the AI legal case tracker (updates on key media and entertainment focused generative AI cases) (as of 5/26/24)

Here are the latest updates on the key generative AI focused copyright infringement-related cases that impact media & entertainment (as of 5/26/24).

(1) The New York Times v. Microsoft & OpenAI

Background: The Times filed its lawsuit in the federal courts of New York (Southern District) on December 27, 2023 for mass copyright infringement and other related claims), asserting that OpenAI “trained” its generative AI on “millions” of its copyrighted articles without consent and payment (and Microsoft enabled the infringement). In its pleading tour de force (one that serves as a master class for all future plaintiffs in these types of AI infringement cases), The Times also asserts that Microsoft and OpenAI are trying to build a “market substitute” for its news and, also notably, that their AI generates “hallucinations” based on The Times’ articles that substantially damage its reputation and brand. The Times seeks “billions of dollars of statutory and actual damages.” Microsoft and OpenAI will, of course, claim “fair use” - i.e., no license, payment or consent is needed.

Current Status: On May 20th, The New York Times filed a motion to file a First Amended Complaint. Previously, on May 3rd, the court set several important timing deadlines. Most significantly, motions for summary judgment must be filed not later than January 7th, 2025 (in other words, we have a long way to go). Previously, on April 1st, the court denied the attempt by the California federal court Sarah Silverman plaintiffs (discussed in the summaries below) to dismiss, pause or transfer this The New York Times case to California because similar issues are at play. Silverman and the other artists had asked for this relief because they believe the California court will be more sympathetic to their claims. And on April 15th, the Silverman plaintiffs filed an “interlocutory appeal” to challenge the court’s decision. That is still pending.

Read my deep dive analysis of - and prediction for - the case and its ultimate resolution here.

(2) Sarah Silverman, et al. v. OpenAI

Background: Comedian Sarah Silverman and other artists filed this class action lawsuit in a California federal court (Northern District of California), asserting copyright infringement claims similar to those in The New York Times case (discussed below) and in their separate California federal court case against Meta (also below). They are asking the judge in The Times’ New York case to put a halt to that case until this one plays out due to their similar issues.

Current Status: Several discovery matters this past week, but no major new developments on the merits of the case. On April 15th, OpenAI filed its reply brief to the plaintiffs’ opposition to OpenAI’s motion to dismiss their Amended Complaint (OpenAI had filed its motion to dismiss on March 27th). Previously, on April 1st (and per my summary above), these California plaintiffs failed in their bid to convince the New York federal court to defer to their case here. Months earlier, on February 12, 2024, the federal judge dismissed most of the Silverman plaintiffs’ claims against OpenAI, rejecting her argument that the content generated by ChatGPT (i.e., the “output”) infringes her copyrighted works because there is no “substantial similarity” (and, therefore, no meaningful harm). But the court gave the Silverman plaintiff group an opportunity to amend their complaint to plead a more direct link of harm - and they filed their amended complaint on March 13th. OpenAI’s motion to dismiss is pending.

My prediction is that the judge won’t change his mind with respect to the amended complaint, and that he’ll permanently dismiss all claims on the “output” side of the equation. I also predict he will dismiss most, if not all, claims based on OpenAI’s unlicensed training on the “input” side. The court hasn’t yet ruled on the “input” side of the equation - whether OpenAI’s mass “training” of its generated AI on their copyrighted works without consent is infringement.

Read my deep dive analysis of the case, the court’s initial rulings, and what they portend here.

(3) Sarah Silverman, et al. v. Meta

Background: In this similar class action to her lawsuit filed against OpenAI (discussed above), Sarah Silverman and others sued Mark Zuckerberg’s Meta on July 7, 2023 in another federal court (again Northern District of California) for mass infringement - i.e., unlicensed “training” of their generative AI on millions of copyrighted works, including their own. Not surprisingly, Meta’s defense is “fair use.”

Current Status: No major new developments again this past week. It’s been several weeks since any substantive case movement. As mentioned above, earlier on April 1st, these California plaintiffs failed in their bid to convince the New York federal court to defer to their case here. Apart from that, much like in Silverman’s case against OpenAI, and for similar reasons, on November 2023, the judge dismissed the bulk of her claims against Meta. But much like in the OpenAI case, the judge gave the Silverman plaintiffs a chance to amend their complaint to add a more direct link to actual harm (and they filed their amended complaint in December 2023). The re-hearing on Meta’s attempt to dismiss the Silverman’s lawsuit is pending.

Much like in the OpenAI case above, my prediction is that the judge here won’t change his mind and most of Silverman’s case will be dismissed pre-trial.

Read my deep dive analysis of the case, the court’s initial rulings, and what they portend here.

(4) Universal Music Group, et al. v. Anthropic

Background: UMG, Concord Music and several other major music companies sued Amazon-backed OpenAI competitor Anthropic on October 18, 2023 in a Tennessee federal court (Middle District of Tennessee). The music companies assert that Anthropic is infringing their music lyric copyrights on a massive scale by scraping the entire web to train its AI, essentially sucking up their copyrighted lyrics into its vortex – all without any licensing, consent or payment. 

Current Status: No major new developments this past week. Most recently, on May 10th, the parties together filed a joint status report. Universal Music Group and the other plaintiffs filed a preliminary injunction motion (essentially asking the judge to stop Anthropic in its tracks from more non-consensual “training”), and Anthropic is asking the judge to dismiss their infringement claims. The preliminary injunction motion has been pending for months. Accordingly, on April 12th the plaintiffs filed a “motion to ascertain status of motion for preliminary injunction”, which the court granted on April 17th (but the court ruled that it will not take oral argument on that motion). Separately, the trial date is set for November 18, 2025 (no, that’s not a typo; 2025 it is).

Read my deep dive analysis of - and prediction for - the case and its ultimate resolution here.

(5) Getty Images v. Midjourney and Stability AI

Background: Getty Images sued generative AI text-to-image companies Midjourney and Stability AI on February 3, 2023 in a Delaware federal court for mass infringement of its copyrighted photographic library. Getty’s claims are similar to those in The New York Times v. Microsoft & OpenAI case above, but here they are in the context of visual images instead of written articles - i.e., unlicensed scraping by their AI with an intent to compete directly with, and profit fro, Getty Images (i.e., market substitution).

Current Status: No major new developments again this past week. BUT Stability AI’s CEO recently resigned in the wake of litigation pressure, together with other factors. Back on the legal front, unlike in the two Silverman cases above, the judge here so far has denied the Midjourney defendants’ motion to dismiss the case. But the judge gave them a chance to try again after some procedural matters are resolved. Will Stability AI’s new “sheriff” change course on its litigation strategy?

Read more about the case and its background and overall context here.

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If you would like to recommend a case to track - or offer your special insights to any of these cases - reach out to Peter Csathy at peter@creativemedia.biz. And reach out to Peter to explore his firm, Creative Media’s, legal and business AI advisory services.