The AI Legal Case Tracker (Updates on Key Media and Entertainment Generative AI Litigation) (as of 9/7/24)
The AI Legal Case Tracker (Updates on Key Media and Entertainment Generative AI Litigation) (as of 9/7/24)
Here are the latest updates on the key generative AI focused copyright infringement-related cases that impact media & entertainment (as of 9/7/24). LOTS of activity this past week (including the first AI copyright trial)! The most recent activity in these cases is listed first (those cases with no new substantive activity this past week are listed second).
(1) The New York Times v. Microsoft & OpenAI
Background: This is perhaps THE case of all cases in the pantheon of pending litigation involving copyright owners and generative AI tech companies. All eyes are on it.
The Times filed its lawsuit in the federal district Court in the Southern District of New York 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: No major substantive developments this past week. Most recently, on August 12th, 2024, The Times filed its First Amended Complaint. And on August 29th, the Court granted a joint request to hold a “status conference” in-person on September 12th. Previously, and most significantly, the Court had ruled that motions for summary judgment must be filed not later than January 7th, 2025 (note: 2025).
And earlier this year, on April 1st, 2024, 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, 2024, 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 (class action lawsuit)
Background: Comedian Sarah Silverman and other artists filed this high profile class action lawsuit on June 28, 2023, in the federal Court in the Northern District of California, asserting copyright infringement claims similar to those in The New York Times case (discussed above) and in their separate California federal court case against Meta (also below). Earlier this year on February 12, 2024, the Court dismissed most of the Silverman plaintiffs’ claims against OpenAI, rejecting their argument that the content generated by ChatGPT (i.e., the “output”) infringes her copyrighted works because there is no “substantial similarity” on the “output” side of the copyright question (and, therefore, no meaningful harm). But the Court gave the plaintiffs an opportunity to amend their complaint to plead a more direct link of harm (which they later did).
Current Status: No major substantive developments this past week. On August 27th, OpenAI filed its Answer to plaintiffs’ Amended Complaint. This followed a major setback to Silverman and the other plaintiffs when, on July 30th, 2024, the Court dismissed Count II of the First Consolidated Amended Complaint, which claimed that OpenAI had engaged in unfair business practices by training their AI on plaintiffs’ copyrighted works without consent or compensation. BUT importantly, the Court did not dismiss the plaintiffs’ primary claim of copyright infringement.
Also importantly, the Court hasn’t yet ruled on the “input” side of the copyright infringement inquiry - whether OpenAI’s mass “training” of their AI on plaintiffs’ works without consent is infringement (which is what I absolutely believe it is). The next settlement conference is September 13th.
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 (class action lawsuit)
Background: This case is very similar to the Sarah Silverman class action against OpenAI in (1) above. Silverman and others sued Mark Zuckerberg’s Meta on July 7, 2023 in the federal district Court in the 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.”
Much like Silverman’s class action case against OpenAI mentioned above, and for similar reasons, in November 2023, the Court dismissed the bulk of plaintiffs’ claims against Meta. But much like in the OpenAI case, the Court 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).
Current Status: No major substantive developments this past week. Previously, on July 5th, 2024, two of the individual plaintiffs voluntarily dismissed their claims against Meta, but the case continues with respect to the other plaintiffs. And on August 29th, plaintiffs filed their Second Consolidated Amended Complaint.
Read my deep dive analysis of the case, the court’s initial rulings, and what they portend here.
(4) UMG Recordings v. Suno
Background: The RIAA on behalf of the major record labels filed their lawsuit in the federal district Court in Massachusetts on June 24, 2024, for mass copyright infringement and related claims based on alleged training on their copyrighted works.
Current Status: No substantive developments this past week. Most recently, on August 1st, Suno filed its Answer to the Complaint, forcefully asserting fair use — and interestingly, also that the music label plaintiffs are engaged in anticompetitive uses of their copyrights. Importantly, for the first time, Suno conceded that it trains its AI on copyrighted works without consent and compensation. But Suno defended its actions in a separate blog post: “Much of the open internet indeed contains copyrighted materials, and some of it is owned by major record labels. Learning is not infringing. It never has been, and it is not now.”
For the record, I vehemently disagree (for all the reasons I have written for months). Now we await motions to dismiss, etc.
(5) UMG Recordings v. Uncharted Labs (d/b/a Udio)
Background: The RIAA on behalf of the major record labels filed this companion lawsuit in the federal district Court in the Southern District of New York on June 24, 2024, for mass copyright infringement and related claims based on alleged training on their copyrighted works.
Current Status: Similarly, no major substantive developments this past week. Udio filed its Answer to the Complaint on August 1st, 2024, asserting the same defenses as used by Suno above. Not surprising, since the same law firm — Latham & Watkins — represents both Suno and Udio. Udio defended its actions this way in its Answer: “Under longstanding doctrine, what Udio has done — use existing sound recordings as data to mine and analyze for the purpose of identifying patterns in the sounds of various musical styles, all to enable people to make their own new creations — is a quintessential ‘fair use’ under copyright law.”
Once again, I vehemently disagree. Now we await motions to dismiss, etc. Until then, on August 22nd, the Court set a “case management conference” for September 26th.
(6) 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). Getty filed its Second Amended Complaint on July 8th, 2024.
Current Status: No major substantive developments this past week. Previously, on July 29th, 2024, the defendants filed both a motion to dismiss Getty’s Second Amended Complaint and a motion to transfer the case to the federal court in the Northern District of California. Then, on August 12th, Getty filed its answering briefs in opposition to defendants’ motions. One week later on August 19th, Stability AI filed its reply briefs to Getty’s opposition briefs. And finally, this past week on August 26th Getty formally asked the Court for oral arguments on those pending motions.
Read more about the case and its background and overall context here.
(7) 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 substantive developments, once again, for the past several weeks. Previously, on June 24th, 2024, the Court granted in part - and denied in part - Anthropic's motion to dismiss the case for lack of personal jurisdiction and improper venue or, in the alternative, to transfer venue. The federal judge (Middle District of Tennessee) ordered the case to be transferred to the United States District Court for the Northern District of California. The case was formally transferred to the California federal court on June 26th,2024 and closed in Tennessee. Previously, the federal judge in Tennessee had set the trial date for November 18, 2025. Now it looks like the trial won’t happen any earlier then 2026 (yes, 2026!). That’s a lot of generative AI “living” until then.
Read my deep dive analysis of - and prediction for - the case and its ultimate resolution here.
(8) Other Key Cases
In a very important recent Court ruling — highly favorable to plaintiff copyright holders vis-a-vis generative AI companies arguing “fair use” — Judge Orrick (a federal judge in the Northern District of California) rejected the attempts of Stability AI and others to dismiss the plaintiffs’ complaint pre-trial on legal grounds. Importantly, this closely watched case moves forward to the evidentiary phase — both on the issues of copyright infringement on the “input” (training side) and “output” side. That doesn’t mean plaintiffs will ultimately win. But it was a major blow against the generative AI companies.
You can read my recent fully analysis about it all here via this link.
Separately, several major news organizations (including the New York Daily News, Chicago Tribune, Orlando Sentinel, San Jose Mercury News) sued OpenAI and Microsoft in April 2024 for copyright infringement and other claims — similar to the lawsuits discussed above.
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.
