The AI Litigation Tracker (Updates on Key Media and Entertainment Generative AI Infringement Cases) (as of 11/9/24)
The AI Litigation Tracker (Updates on Key Media and Entertainment Generative AI Infringement Cases) (as of 11/9/24)
Here are the latest updates on the key generative AI focused copyright infringement-related litigations that impact media & entertainment (as of 11/9/24), now monitored, compiled, updated and tracked in greater depth by partner Avery Williams and the team at McKool Smith (just voted “Plaintiff Firm of the Year” by The National Law Journal and with the most “Top 100 Verdicts” in U.S.).The most significant developments for the week are listed first.
1. Raw Story Media & Alternet v. OpenAI
Background: News publishers Raw Story Media and Alternet filed suit against OpenAI and Microsoft on February 28th, 2024 in the Southern District of New York, claiming their articles were used to train the LLM that powers OpenAI’s ChatGPT. Rather than claiming copyright infringement, the plaintiffs alleged one cause of action for violating the DMCA (which is a separate provision of the Copyright Act related to Internet content). The plaintiffs claimed that OpenAI removed the copyright management information (CMI) from their articles, which they argue is a violation of the DMCA.
Current Status: MAJOR UPDATE! The Court dismissed the case for lack of standing. But not the “fair use” ruling we’ve been waiting for. By far the biggest news in generative AI/media litigation this week is the dismissal of Raw Story Media’s DMCA copyright case. Last week, Judge Colleen McMahon granted the defendants’ motion to dismiss the plaintiffs’ claim in its entirety. The Court held that the plaintiffs lacked standing to bring the suit, explaining that removal of the CMI did not constitute a “concrete” injury.
But, in his latest weekly “the brAIn” newsletter, Peter Csathy writes that the Court likely got it wrong here. And, in any event, the Court gave plaintiffs an opportunity to try to revise their complaint to allege new claims that may be actionable.
The Intercept, another news publisher, sued OpenAI with similar claims earlier this year. There is a pending motion to dismiss in that case, so we’ll wait and see whether the outcome is the same.
2. The New York Times v. Microsoft & OpenAI
Background: This is the most closely watched litigation involving copyright owners and generative AI tech companies.
On December 27, 2023, The New York Times sued Microsoft and OpenAI in the U.S. District Court for the Southern District of New York for copyright infringement and other related claims. The Times alleges that the companies used “millions” of its copyrighted articles to train their AI models without its consent. The Times claims this has resulted in economic harm by pulling users away from their paywalled content and impacting advertising revenue. The complaint alleges several causes of action, including copyright infringement, unfair competition, and trademark dilution. In its pleadings, The Times asserts that Microsoft and OpenAI are building a “market substitute” for its news and further that their AI generates “hallucinations” based on The Times’ articles also substantially damage its reputation and brand. The Times seeks “billions of dollars of statutory and actual damages.” Microsoft and OpenAI assert the defense of “fair use” - i.e., no license, payment or consent is needed.
On September 13, 2024, the Court granted a motion to consolidate the case with one brought by the Daily News and other publications. The judge assigned is Judge Sidney Stein.
Current Status: No major substantive developments this past week. Both sides continue updating the Court regarding their discovery disputes. On November 2nd, the parties jointly notified the Court of an ongoing dispute regarding production of the works OpenAI used to train its GPT models. In a separate letter, parties from the several newspaper-related AI cases jointly notified the Court of ongoing efforts to consolidate discovery.
3. The Center for Investigative Reporting v. OpenAI
Background: The Center for Investigative Reporting, which produces Mother Jones and Reveal, sued Microsoft and OpenAI for essentially the same claims made in The New York Times case above.
Current Status: Motion to consolidate recently granted! Microsoft and OpenAI asked the court to consolidate this case with NY Times v. Microsoft & OpenAI, and — and, as indicated above, the Magistrate granted the motion to consolidate on October 30th (refer to the activity discussed above).
4. Dow Jones & Co, et al v. Perplexity AI
Background: On October 21st, 2024 The Wall Street Journal and The New York Post sued generative search company Perplexity AI in the U.S. District Court for the Southern District of New York for copyright infringement and other related claims. A new twist in this litigation is the focus on Retrieval Augmented Generation (“RAG”) AI. RAG GenAI not only uses an LLM trained on copyrighted material to respond to individual prompts, but also goes out to the web to update itself based on the relevant query. Perplexity even said the quiet part out loud, encouraging its users to “skip the links” to the actual sources of the copyrighted content. Based on Perplexity’s RAG model, the media plaintiffs allege that Perplexity is infringing on their copyrights at the input and output stage, sometimes reproducing copyrighted content verbatim. Plaintiffs cited their parent company News Corp’s recent licensing agreement with OpenAI in explaining that GenAI technology can be developed by legitimate means.
Current Status: Still waiting for a responsive pleading from Perplexity. Perplexity was served with the lawsuit on October 23rd, 2024 and its answer is due by November 13th. We should have updates for you in the next couple weeks.
5. Kadrey et al. v. Meta
Background: This case is similar to the “In re OpenAI ChatGPT Litigation” class action below against OpenAI. In this case, Kadrey, comedian Silverman, and others sued Mark Zuckerberg’s Meta on July 7, 2023 in the U.S. District Court (Northern District of California) for mass infringement - i.e., unlicensed “training” of their generative AI model on millions of copyrighted works, including their own. Not surprisingly, Meta’s defense is “fair use.” The judge assigned is Judge Vince Chhabria.
Much like the class action “In Re OpenAI ChatGPT Litigation” 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 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: The Court issued several orders on the ongoing discovery disputes. IT reluctantly granted the Plaintiffs’ request to extend written discovery to November 8th. The Court, however, blamed the plaintiffs’ for the missed deadlines, and conditioned the extension on plaintiffs paying Meta’s fees for their work opposing the request.
The court, fed up with the constant discovery fights, also ordered both parties to stop contacting the Courtroom Deputy about the disputes and to instead file a joint status report. The parties filed the report detailing disputes over deposition scheduling, and the Court ruled in Meta’s favor.
6. 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 24th, 2024, for mass copyright infringement and related claims based on alleged training on their copyrighted works. Suno is a generative AI service that allows users to create digital music files based on text prompts. This is the first case brought against an AI service related to sound recordings. In their answer on August 1st, Suno argued that their actions were protected by fair use. The judge assigned is Chief Judge F. Dennis Saylor, IV.
Current Status: No major substantive developments this past week. The Court scheduled a hearing for November 18th regarding the case schedule. Stay tuned for updates.
7. UMG Recordings v. Uncharted Labs (d/b/a Udio)
Background: This action was brought on June 24, 2024, in the Southern District of New York, by a group of major record companies against the company behind Udio, a generative AI service launched in April 2024 by a team of former researchers from Google Deepmind. Much like Suno above, Udio allows users to create digital music files based on text prompts or audio files. And as with the complaint against Suno (see above), plaintiffs rely on tests comprising targeted prompts including the characteristics of popular sound recordings — such as the decade of release, the topic, genre, and descriptions of the artist. They allege that using these prompts caused Udio's product to generate music files that strongly resembled copyrighted recordings. The claims are for direct infringement and related causes of action. The judge assigned is Judge Alvin K. Hellerstein.
Current Status: No major substantive developments this past week. Judge Hellerstein addressed the fact that defense counsel is friends with the Judge’s daughter, and visited his home 30 years ago. This is seemingly a non-issue, but the Court asked that if either party objects to his continuing to preside over the case, they should do so by letter by November 12th. The Court also ordered the parties to appear for a status conference on November 13th.
8. Sarah Andersen v. Stability AI
Background: Visual artists filed this putative class action on January 13th, 2023, alleging direct and induced copyright infringement, DMCA violations, false endorsement and trade dress claims based on the creation and functionality of Stability AI’s Stable Diffusion and DreamStudio, Midjourney Inc.’s generative AI tool, and DeviantArt’s DreamUp. On August 12th, 2024, the Court dismissed many of the claims in the plaintiffs’ first amended complaint, leaving the claims for direct copyright infringement, trademark, trade dress, and inducement. The assigned judge is Judge William H. Orrick.
Current Status: No major developments this past week. As a reminder, the plaintiffs filed their Second Amended Complaint on October 31st. This is the plaintiffs’ last chance to plead an unjust enrichment claim outside of the Copyright Act. We’ll see if the plaintiffs find success in this third attempt.
9. Concord Music Group, et al. v. Anthropic
Background: UMG, Concord Music and several other major music companies sued Amazon-backed OpenAI competitor Anthropic on October 18th, 2023 in the U.S. District 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. In its response, Anthropic claimed fair use. The case was transferred to the Northern District of California on June 26th, 2024 and closed in Tennessee. The judge assigned is Judge Eumi K. Lee. The parties have not yet had a case management conference.
Current Status: No major substantive developments this past week. The Court modified and accepted the parties’ joint scheduling order. The close of fact discovery will be April 14th, 2025, expert discovery on August 13th, 2025, and the trial is set for March 4th, 2026, or at the Court’s convenience between February 23rd, 2026 and March 16th, 2026.
10. In re OpenAI ChatGPT Litigation (the cases, Paul Tremblay v. OpenAI, Inc., Sarah Silverman v. OpenAI, Inc., and Chabon v. OpenAI were consolidated and recaptioned to this new moniker)
Background: Comedian Sarah Silverman and other artists filed this class action lawsuit in the Northern District of California on June 28th, 2023, asserting copyright infringement claims, in addition to unfair competition, negligence, and unjust enrichment. The plaintiffs alleged that OpenAI used their copyrighted written works to train its AI chatbot. In February, the Court dismissed most of the claims against OpenAI, rejecting plaintiffs’ argument that the content generated by ChatGPT (i.e., the “output”) infringes their 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). In July, the Court dismissed the unfair competition claim. The claim for direct infringement is the only main one that remains. The case is assigned to Judge Araceli Martinez-Olguin.
Current Status: No major substantive developments this past week. As a reminder, on October 25th, the parties jointly requested that the Court to schedule a case management conference to address deposition coordination and modify the case schedule. That conference is still pending. The parties disagree on several issues, but do agree that the discovery cutoff should be extended past January 27th, 2025 due to the number of depositions.
11. Getty Images v. Midjourney and Stability AI
Background: Getty Images filed this lawsuit against image generator Stability AI on February 2nd, 2023, accusing the company of infringing more than 12 million photographs, their associated captions and metadata, in building and offering Stable Diffusion and DreamStudio. 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 from, Getty Images (i.e., market substitution). This case also includes trademark infringement allegations arising from the accused technology’s ability to replicate Getty Images’ watermarks in the AI outputs. Getty filed its Second Amended Complaint on July 8th, 2024, and the parties are currently engaged in jurisdictional discovery related to defendants’ motion to transfer the case to the Northern District of California. The judge assigned is Judge Jennifer L. Hall.
Current Status: No major developments yet again this past week. Like last week, this case has been quiet for the last month or so. Getty made a request on August 26th for oral argument on the defendants’ motion to dismiss for failure to join a party, motion to dismiss for lack of jurisdiction, and motion to transfer the case to the Northern District of California. The Court has not ruled on that request, but it should be an interesting hearing if it goes forward.
12. The Authors Guild, et al. v. OpenAI
Case Background. The Authors Guild and seventeen individual authors (including John Grisham, George R.R. Martin and Nicholas A. Basbanes) filed a putative class-action suit against OpenAI on September 19th, 2023. The plaintiffs claimed that OpenAI trained its ChatGPT LLM by copying their copyrighted works. The complaint brings claims under 17 U.S.C. §501 for direct, vicarious, and contributory copyright infringement. The case is assigned to Judge Ona T. Wang.
Current Status: No major substantive developments this week. We are still waiting for the court’s decision on discovery consolidation. The case seems to be on ice until then.
