Generative AI – Intellectual property cases and policy tracker

Summary

The German collecting society, GEMA (which represents the interests of around 95,000 members in Germany), has issued proceedings against OpenAI in relation to the reproduction of protected song lyrics by German authors, without having acquired a licence or paid the authors. The proceedings have been issued in the Munich Regional Court and argue that, when simple prompts are entered into ChatGPT, it reproduces the original song lyrics with which "the system has obviously been trained".  GEMA has previously declared an opt-out from text and data mining on behalf of its members in accordance with the provisions in the Digital Single Market Copyright Directive.

In addition to unauthorised use of original texts, GEMA refers to unauthorised adaptations (hallucinations) and infringement of moral rights.

Impact

This is the first lawsuit filed by a collecting society worldwide against a provider of a genAI system and will therefore be watched very closely. GEMA presented a generative AI licensing model in September 2024 calling for a responsible approach to genAI, including protection of IP, fair participation of creative professionals in value creation, sustainability, and transparency and responsibility from AI providers.

Summary

This complaint has been filed in the US District Court Southern District of New York by Dow Jones and NYP Holdings (corporate parent, News Corporation), the publishers of The Wall Street Journal and the New York Post, against Perplexity, which is described in the complaint as a platform that allows users to access up to date news and information by 'skipping the links' to the original publishers' websites. The complaint focuses on both the input stage, and also the outputs of Perplexity's products, arguing that sometimes Perplexity's answers contain full or partial verbatim reproductions of the Plaintiffs' copyrighted articles. The complaint also highlights that Perplexity allegedly generates made-up text in its outputs and attributes that text to the Plaintiffs' publications using Plaintiffs' trade marks, which is argued to be likely to cause dilution by blurring/tarnishment.

The claim is for copyright infringement (arising out of Perplexity's alleged copying of the copyrighted works to create inputs for its RAG Index and to generate outputs to user queries) and false designation of origin and dilution of trade marks.

Impact

This is the latest case brought by a news publisher but is the first case that has been brought against Perplexity.

Summary

This complaint has been brought in the US District Court Northern District of California San Francisco Division by a fiction author, Christopher Farnsworth, against Meta relating to its LLaMa tools, which were trained using books including from the Books 3 section of The Pile data set, which the Plaintiff argues included his works. The complaint is for copyright infringement.

Impact

The complaint has been related with the Kadrey v Meta proceedings.

Summary

This complaint has been brought in the US District Court Southern District of New York by two voice actors and by a John Doe Plaintiff (in relation to all plaintiffs, individually, and on behalf of a class of voice actors). The complaint is against AI firm LOVO in relation to the alleged cloning and use of the actors' voices without their permission in LOVO's AI-generated voice technology (Genny). The complaint was filed in May 2024 and has now been amended to incorporate copyright claims, in addition to claims relating to violations of rights of publicity, deceptive business practices, fraud, and breach of contract. The copyright claims are for copyright infringement of the original voice recordings made by the actors and contributory copyright infringement.

Impact

Unauthorised use of performers' likenesses and their voices has been a particularly controversial aspect of genAI technology, and has been a key issue for members of the SAG-AFTRA union in the US (with a strike action by video game voice actors ongoing). There have also been a number of high profile complaints raised by celebrities such as Scarlett Johansson.

Summary

This class action has been brought in the US District Court Northern District of California by three authors of fiction and non-fiction against Anthropic. The claim of copyright infringement relates to Anthropic's Claude model which is the subject of proceedings brought by a number of record companies. The Plaintiffs allege that, whilst Anthropic has been 'particularly secretive' about the sources of its training corpus for Claude, it has admitted to using The Pile dataset. The Plaintiff had sought to have the case related to the existing complaint against Anthropic but this has been denied by the Court. Anthropic's Answer to the Complaint includes reliance on the defence of fair use, amongst other affirmative defences.

Impact

The complaint notes that it has been reported that Claude has been used to generate cheap book content with it being reported that one man had "written" (their use of quotation marks) 97 books in less than a year using Claude (as well as ChatGPT).

Summary

This class action complaint has been brought in the US District Court Northern District of California against OpenAI (there are separate claims against Google/YouTube and Nvidia – the three cases have been related). The Plaintiff is a YouTube user and video creator and the complaint relates to the "surreptitious, non-consensual transcription of millions of YouTube users' videos" to train the Defendants' AI software products. The complaint refers to a New York Times report that claimed Whisper (OpenAI's automatic speech recognition system, released in 2022) is capable of transcribing audio from YouTube videos, and that an OpenAI team had transcribed more than one million hours of videos from YouTube. The claim is for unjust enrichment and unfair competition.

OpenAI has filed a Notice of Motion to Dismiss the complaint on both counts. It argues that the complaint is a 'carbon copy' of pleadings filed in other actions and that state law claims of unfair competition and unjust enrichment have been addressed in a number of judicial opinions in the ongoing cases – to the effect that the use of copyrighted materials to train AI models is exclusively governed by federal copyright law, and that state law claims are pre-empted by the Copyright Act. OpenAI has also applied for the three cases to be related.

On 18 October, the complaint was amended to bring in a new plaintiff and to add complaints of breaches of the Massachusetts Unfair and Deceptive Business Practices Act, and for direct copyright infringement.

Impact

It is notable that the complaint, as initially filed, does not include one of copyright infringement. It is assumed (as asserted by OpenAI) that this is because there will have been no registrations of some of the works in issue in this case.

Summary

This class action complaint has been brought in the US District Court Northern District of California against Google/YouTube (there are separate claims against OpenAI and Nvidia – the three cases have been related) concerning Google's Gemini products. The Plaintiff is a YouTube user and video creator. The complaint relates to the "surreptitious, non-consensual transcription of millions of YouTube users' videos" to train the Defendants' AI software products. The complaint refers to a New York Times article that reported that Google had transcribed YouTube videos to harvest text for its language models, having changed its terms of service in 2023. The claim is for unjust enrichment and unfair competition.

Google has filed a Motion to Dismiss on the grounds that the claims are pre-empted by the Copyright Act. 

Impact

This is the second case brought in relation to YouTube transcripts. As with the other two cases, there is no claim of copyright infringement.  

Summary

This class action complaint has been brought in the US District Court Northern District of California against Nvidia (there are separate claims against Google/YouTube and OpenAI – the three cases have been related) concerning the training of Nvidia's Cosmos AI software.  The Plaintiff is a YouTube user and video creator and the complaint relates to the "surreptitious, non-consensual transcription of millions of YouTube users' videos" to train the Defendants' AI software products in violation of YouTube's terms of service and at the expense of video creators.

Nvidia has filed a Motion to Dismiss on the grounds that the Plaintiffs lack standing (for not asserting that the Plaintiff has suffered or will suffer a concrete, particularised injury) and that the claims are pre-empted by the Copyright Act. 

Impact

This is the third case brought in relation to YouTube transcripts. As with the other two cases, there is no claim of copyright infringement.  

Summary

This class action was brought in the US District Court Northern District of California by an initially anonymised group (comprising an author/journalist, as well as users of Gmail/Google search engines etc including some minors, and users of social media services) against Alphabet Inc, Google Deepmind and Google LLC, in July 2023 in relation to the training of Bard (now Gemini) and other Google AI products. The claim is now proceeding only against Google LLC. The original claim alleged a number of claims including violation of competition laws, negligence, invasion of privacy, intrusion upon inclusion, larceny/receipt of stolen property, conversion, unjust enrichment, direct copyright infringement, vicarious copyright infringement and violation of the DMCA.  

Following the Defendants' Motion to Dismiss the Complaint, the Plaintiffs filed an Amended Complaint in which they made a number of changes to the complaint, including adding new causes of action. In relation to the copyright claims, they removed the vicarious copyright infringement and DMCA claims and revised the direct infringement claim to allege that "Bard's outputs were necessarily derivative" of the Plaintiffs' works (including the work of the author Jill Leovy) used to train the model.  Google filed a Motion to Dismiss arguing that the complaint was a "shotgun pleading", alternatively to dismiss other than the claim of direct infringement in relation to the work of Leovy (except to the extent that it was based on the argument that every output was a derivative infringing work).

On 6 June 2024, the Court granted Google's motion to dismiss with leave to amend in light of concerns expressed by the Judge in their order dismissing the complaint in Cousart v OpenAI.

On 27 June 2024, the Plaintiffs filed their Second Amended Complaint which comprises solely a claim for direct copyright infringement.  The Complaint relates how Gemini was initially built on the LaMDA LLM – with certain of the data used to train LaMDA coming from the C4 dataset which contains copyrighted materials.

The case has been consolidated with Zhang v Google.

Impact

This is one of a number of cases against Google relating to its Gemini (Bard) and other AI products (see Zhang v Google – the cases have been consolidated).

Summary

In this case, the District Court of Hamburg in Germany was asked to consider infringement arising out of the use of images taken by photographer Robert Kneschke (which had been downloaded from Shutterstock which had terms and conditions prohibiting scraping etc) against LAION, during the creation of its LAION 5B dataset of image-text pairs made available free of charge (LAION is a not for profit organisation). The claim specifically does not cover further acts of training or development of AI models using the data set (by companies such as Stability AI, for example).

The Court delivered its decision on 27 September 2024. It found that there was an infringement of the Plaintiff's copyright work by reproduction in the creation of the dataset. The Defendant was not entitled to rely upon the defence of temporary reproduction as the act of reproduction was not transient or incidental. However, as a research organisation, the Defendant could rely upon the exception for text and data mining for non-commercial scientific research purposes (as provided for in Article 3 of the Digital Single Market (DSM) Copyright Directive, and implemented in German law) in relation to its acts of scraping and analysis in the creation of the data set. The data set had been published free of charge and made available to researchers in the field of artificial neural networks. It was irrelevant in the assessment of the creation of the data set that it was also used by commercial companies for training and further developing their AI systems.

The Court therefore did not need to decide whether the Defendant could also rely on the general text and data mining exception provided for in Article 4 of the DSM Copyright Directive. Unlike the exception in Art.3, a rights holders can opt out of the TDM exception in Art.4 provided that its reservation of rights is in a machine-readable format. Whilst the Court did not need to decide on this issue, it suggested that a reservation of rights written solely in 'natural language' would be 'machine understandable' but this would need to be assessed depending on the technical development at the relevant time of use of the work.

Impact

As the first decision dealing with TDM exceptions and the temporary copying exception in relation to AI, this is an important case, albeit of limited scope, as the case focuses on the creation of the data set by LAION, and not on its subsequent use by AI tool developers to train their models.

Summary

The Center for Investigative Reporting (CIR) has brought a complaint against OpenAI and Microsoft in the US District Court Southern District of New York. The CIR, founded in 1976, describes itself as the oldest nonprofit newsroom in the US, reporting investigative stories about under-represented voices (its brands are Mother Jones, Reveal and CIR Studios). It alleges that tens of thousands of its articles have been copied as part of the training process of the Defendants' products, and that they memorize/regurgitate material or abridge it unlawfully.

The complaint alleges direct copyright infringement, contributory copyright infringement, and DMCA violations. CIR seeks actual damages and profits, or statutory damages of no less than $750 per infringed work, and $2500 per DMCA violation.  

OpenAI and Microsoft have filed Motions to Dismiss various of the claims. These include the claims under the DMCA alleging that Microsoft removed copyright infringement information from CIR's works or distributed works with the copyright management information (CMI) removed. They have also filed to dismiss the claim for contributory copyright infringement. In its Motion to Dismiss, OpenAI also seeks to dismiss the count of copyright infringement to the extent it relies upon CIR's 'novel' claim relating to 'abridgments' of CIR's copyrighted works. It argues that this claim should fail as, to constitute an infringing derivative work, an 'abridgment' must do more than just recite facts about an existing work, i.e., it would have to reprise the original's protected expression.

The case has been consolidated with the other newspaper claims, brought by The New York Times and Daily News.

Impact

This is a further complaint brought by a news organisation, in addition to the complaints brought by The New York Times and by a range of local/regional publications. The cases have been  consolidated.

CIR notes that the Defendants greatly benefit from its distinct voice in the marketplace as an investigative news outlet  – if the Defendants were limited to a more homogenous dataset, their LLMs would be "stunted in growth and power".

Summary

This action has been brought in the US District Court for 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.  Udio allows users to create digital music files based on text prompts or audio files. As with the complaint against Suno (see below), the 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 strongly resembling copyrighted recordings. For example, using the prompt "my tempting 1964 girl smokey sing hitsville soul pop" and excerpting lyrics from the band The Temptations led to Udio generating a digital music file called "Sunshine Melody" which would allegedly be instantly recognised as resembling the song "My Girl". 

The claim is for direct copyright infringement.

In its Answer to the Complaint, Udio highlights the fact that the Plaintiffs do not allege that outputs generated by Udio infringe copyright. Whilst it accepts that the "many recordings that Udio was trained on presumably included recording whose rights are owned by the Plaintiffs" it argues that copies used in the training process, given that they are "never seen or heard by anyone", are not infringing. This is because it is argued to be "quintessential fair use" to copy the Plaintiffs' works as part of the process of developing a new technology in the service of creating an ultimately non-infringing new product. Udio further argues that the Plaintiffs, comprising major labels, have an aversion to competition but that "no owns musical styles".  

Impact

Whilst there is already a case relating to song lyrics (the claim against Anthropic's Claude), this (and the Suno claim) are the first claims to have been brought in relation to copyrighted sound recordings.  The Recording Industry Association of America (RIAA) has issued a press release in relation to the claims brought against both Udio and Suno. Noting that the music community has embraced AI, the RIAA argues that unlicensed services set back "the promise of genuinely innovative AI for us all".  Both complaints seek to deal head on with the likely claim of fair use:  “[The services] cannot avoid liability for [their] willful copyright infringement by claiming fair use. The doctrine of fair use promotes human expression by permitting the unlicensed use of copyrighted works in certain, limited circumstances, but [the services] offe[r] imitative machine-generated music—not human creativity or expression.”

In its response to the Answers to the Complaint filed by Udio and Suno, the RIAA issued a statement on X highlighting the "major concession" in relation to "massive unlicensed copying of artists' recordings" and rejects the reliance on fair use as a defence.

Summary

This action has been brought in the US District Court for the District of Massachusetts by a group of major record companies against the company behind Suno, a generative AI service launched in July 2023.  Suno allows users to create digital music files based on text prompts. As with the complaint against Udio (see above), the 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 Suno's product to generate music files strongly resembling copyrighted recordings. For example, Suon's service has generated 29 different outputs that contain the style of Chuck Berry's "Johnny B. Goode" – using the prompt "1950s rock and roll, rhythm & blues, 12 bar blues, rockabilly, energetic male vocalist, singer guitarist" and the lyrics from the original, one output titled "Deep down in Louisiana close to New Orle" replicates the highly distinctive rhythm of the original's chorus, and uses the same melodic shape on the phrases "go Johnny, go, go".

The claim is for direct copyright infringement.

As with the Udio Complaint, in its Answer to the Complaint, Suno highlights the fact that the Plaintiffs do not allege that outputs generated by Suno infringe copyright.  Whilst it notes that "it is no secret that the tens of millions of recordings that Suno's model was trained on presumably included recordings whose rights are owned by the Plaintiffs in this case" it also argues that copies used in the training process, given that they are "never seen or heard by anyone", are not infringing. This is because it is argued to be "quintessential fair use" to use a back-end technological process, invisible to the public, in creating "an ultimately non-infringing new product". Suno also argues that the Plaintiffs, comprising major labels, have an aversion to competition but that "no owns musical styles".  

Impact

Whilst there is already a case relating to song lyrics (the claim against Anthropic's Claude), this (and the Udio claim) are the first claims to have been brought in relation to copyrighted sound recordings.  The Recording Industry Association of America (RIAA) has issued a press release in relation to the claims brought against both Udio and Suno. Noting that the music community has embraced AI, the RIAA argues that unlicensed services set back "the promise of genuinely innovative AI for us all".  Both complaints seek to deal head on with the likely claim of fair use:  “[The services] cannot avoid liability for [their] willful copyright infringement by claiming fair use. The doctrine of fair use promotes human expression by permitting the unlicensed use of copyrighted works in certain, limited circumstances, but [the services] offe[r] imitative machine-generated music—not human creativity or expression.”

In its response to the Answers to the Complaint filed by Udio and Suno, the RIAA issued a statement on X highlighting the "major concession" in relation to "massive unlicensed copying of artists' recordings" and rejects the reliance on fair use as a defence. In relation to the argument that the "apparent attempts to misuse the tool to generate renditions of pre-existing songs" is "unrepresentative of what real people do with Suno", the RIAA notes that in a presentation to venture capitalists, its co-founder was shown on video using "Hendrix" as a prompt.  

Summary

In May 2020, Thomson Reuters and West Publishing Corporation (the Plaintiffs) filed a claim for copyright infringement against ROSS Intelligence Inc. (ROSS). In their claim, the Plaintiffs allege that ROSS “illicitly and surreptitiously” used a third-party Westlaw licensee, LegalEase Solutions which in turn, hired a subcontractor, Morae Global to access and copy the Plaintiffs’ proprietary content on the Westlaw database. It is alleged that ROSS used the content to train its machine learning model to create a competing product.

The Plaintiffs are seeking injunctive relief and damages that they have suffered as a result of ROSS’ direct, contributory, and vicarious copyright infringement and intentional and tortious interference with contractual relations.

In the Memorandum Opinion issued in September 2023, Judge Stephanos Bibas denied the Plaintiff's and ROSS's cross-motions for summary judgment finding that only a jury can evaluate the four factors required for the fair-use defence to copyright infringement. These four factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for the copyrighted work. 

The trial was due to begin before a jury on 23 August 2024. However, the day before the hearing, District of Delaware Judge Stephanos Bibas decided to invite the parties to renew their motions and cross-motions for summary judgment (which will therefore consider issues relating to copyrightability, validity and infringement; and the fair use defence, alongside potentially other issues).  

On 1 October 2024, Thomson Reuters filed renewed motions for partial summary judgment on fair use, direct copyright infringement and Ross' defences of merger, scenes à faire, innocent infringement and copyright misuse.  Ross meanwhile has filed motions for summary judgment on its affirmative defence of fair use and as to Thomson Reuters' copyright claims.

Oral argument on the renewed summary judgment motions will be heard on 5 and 6 December 2024, with a trial date set for 12 May 2025 if the case proceeds (although it may be held earlier). 

Impact

If this case had gone to trial as scheduled, it would have been one of the first to test whether copyright owners can prevent businesses using copyrighted works for the purpose of training machine learning models for AI tools.

Summary

This class action complaint has been issued in the US District Court Northern District of California by two authors (Rebecca Makkai and Jason Reynolds) against MosaicML and its parent company Databricks.  Makkai owns registered copyrights in a number of books including The Hundred Year House, while Reynolds owns registered copyrights in books including As Brave as You.

The plaintiffs allege that their copyright works were included in the training dataset for MosaicML Pretrained Transformer (MPT) a series of large language models created by MosaicML and distributed by Databricks (including MPT-7B launched in May 2023, and MPT-30B launched in June 2023).  MosaicML has noted that a large quantity of data in the MPT training datasets comes from a component dataset called "RedPajama – Books". The complaint asserts that this is hosted on the Hugging Face website and its Books component is a copy of the Books3 dataset, which is itself a component of The Pile, which is derived from the Bibliothik shadow library comprising approximately 196,640 books.  The complaint against MosaicML is for direct copyright infringement.  The complaint against Databricks is for vicarious infringement (Databricks having acquired MosaicML in July 2023).

Impact

This is a further case brought by authors in relation to the use of their copyright works in training datasets for AI models (see also below O'Nan v Databricks and MosaicML). The cases have now been related.

Summary

This class action complaint has been issued in the US District Court Northern District of California by two authors owning registered copyrights in certain books that were alleged to be included in the training dataset Nvidia used to train its NeMo Megatron models, released in September 2022.  The complaint alleges that each of the NeMo Megatron models is hosted on a website called Hugging Face and each has a model card that provides information about the model, including its training dataset – for each of the NeMo Megatron models, the model card states that "the model was trained on 'The Pile' dataset prepared by Eleuther AI" (which includes the Book3 dataset, derived from the Bibliothik shadow library). The complaint is for direct copyright infringement.

Impact

This is a further case brought by authors in relation to the use of their copyright works in training datasets for AI models (see also below Nazemian v Nvidia).

Summary

This complaint has been issued in the US District Court Southern District of New York by a number of regional and local newspapers (such as the New York Daily News and Chicago Tribune) and their publishers against OpenAI and Microsoft.

As with the complaint brought by The New York Times, examples are given of the GPT LLMs having 'memorised' copies of training data, as well as alleged hallucinations.  The complaint is for direct copyright infringement, vicarious copyright infringement, contributory copyright infringement (including in relation to end users, to the extent end users are liable as direct infringers), removal of copyright management information, common law unfair competition by misappropriation, trade mark dilution (in branding outputs generated by OpenAI's GPT-based products), and dilution and injury to business reputation.  

OpenAI and Microsoft have filed Motions to dismiss the ancillary claims (but not the core issue of whether using copyrighted content to train a generative AI model is fair use). The case has been consolidated with The New York Times complaint; the cases have also been consolidated with the claim brought by The Center for Investigative Reporting.

Impact

Describing themselves as a 'rare breed in America' in terms of providing local news coverage, the Plaintiffs cite the new threat posed to them by GenAI products.  But, they also stress that this this is not a battle between new and old technology but one that is based on alleged use of copyrighted newspaper content, without their consent and without what they see as fair payment.  The case should be tracked alongside the complaint brought by The New York Times and The Center for Investigative Reporting (the cases have been consolidated).

Summary

This class action complaint has been brought by a number of visual artists against Google (and its parent company Alphabet) in relation to its text-to-image diffusion models Imagen (announced in May 2022 but not immediately released to the public), Imagen 2 (released in December 2023) and multi-modal models trained on both images and text (such Google Gemini).  The complaint is (only) for direct copyright infringement against Google and vicarious copyright infringement against Alphabet.  The complaint is based on an argument that the key source of Google's training data is the LAION image datasets.

The Defendants have filed a Motion to Dismiss in relation to works not named in the complaint, or not validly registered; the copyright infringement claim based on the theory that the Defendants' AI models are an infringing derivative work; and the vicarious infringement claim against Alphabet in its entirety.

The case has been consolidated with Leovy v Google.

Impact

This is the latest claim brought by visual artists, and includes as one of the Plaintiffs Sarah Andersen, who is a Plaintiff in the action against StabilityAI and other text-to-image models.

Summary

In this class action complaint filed by three authors against Nvidia in the US District Court Northern District of California San Francisco Division, the Plaintiffs have brought a claim of direct copyright infringement against Nvdia relating to its NeMo Megatron LLM series released in September 2022.

The complaint alleges that the Plaintiff's registered copyrights were included in the training dataset used by Nvidia to develop its models. Each of the models is hosted on a website called Hugging Face, with a model card that provides information about the model, including its training dataset, in which it is stated that the model was trained on 'The Pile' dataset prepared by EleutherAI (the complaint therefore alleges that the LLM series was trained on one or more of the Plaintiffs' works).

Impact

This is another case relating to 'The Pile', one component of which is alleged to be a collection of books called Books3, derived from the Bibliotek 'shadow library' website. According to the complaint, the Books3 dataset was removed from Hugging Face in October 2023.

Summary

In this class action filed by three authors against MosaicML (and its parent company Databricks) in the US District Court Northern District of California San Francisco Division, the Plaintiffs have brought a claim of direct copyright infringement relating to the training of MosaicML's Pretrained Transformer (MPT) models including MPT-7B and MPT-30B.  The complaint alleges that the MPTs were trained on a large quantity of data taken from a component dataset called 'RedPajama – Books' which was a dataset hosted on Hugging Face and in respect of which the 'Books' component is a copy of the "Books3 dataset", which his itself a component of The Pile dataset. The complaint also alleges vicarious infringement against Databricks, and the Defendant has applied to consolidate the actions.

Impact

This is another case relating to 'The Pile', one component of which is alleged to be a collection of books called Books3, derived from the Bibliotek 'shadow library' website. The case has been related to the Makkai claim against Databricks, and the Defendant has applied to consolidate the actions.

Summary

Three cases against OpenAI have been consolidated (Tremblay v OpenAI, Silverman v OpenAI and Chabon v OpenAI). 

This class action claim has been brought by two authors as individual and representative Plaintiffs against OpenAI relating to its ChatGPT large language model (LLM). The claim has been brought in the US District Court for the Northern District of California (Mona Awad voluntarily applied for the dismissal of their claim on 11 August 2023).

The Plaintiffs allege that, during the training process of its LLMs, OpenAI copied "at least Plaintiff Tremblay’s book The Cabin at the End of the World; and Plaintiff Awad’s books 13 Ways of Looking at a Fat Girl and Bunny" without their permission. Further, they argue that "because the OpenAI Language Models cannot function without the expressive information extracted from Plaintiffs’ works (and others) and retained inside them, the OpenAI Language Models are themselves infringing derivative works, made without Plaintiffs’ permission and in violation of their exclusive rights under the Copyright Act". The complaint also notes that, when prompted, ChatGPT generates summaries of the Plaintiffs' works.

Of particular relevance in this case is the datasets which OpenAI used in training its GPT models (with OpenAI having confirmed it had used datasets called Books1 and Books2 though it has not revealed the contents of those datasets).

In addition to direct and vicarious copyright infringement, the class action alleges violations of the Digital Millennium Copyright Act, unjust enrichment, violations of the California and common law unfair competition laws, and negligence.

On 28 August 2023, OpenAI filed a Motion to Dismiss a number (but not all) of the Plaintiff's claims. In particular, the Motion to Dismiss does not relate to the direct copyright claim, where OpenAI relies on a defence of fair use.

OpenAI's motion to dismiss was heard on 7 December 2023. In an order of 12 February 2024, the Court dismissed a number of claims in the Complaint, but with leave to amend in relation to the claim to vicarious infringement and the copyright management information (CMI) claim (the claim to direct infringement was not included in the motion to dismiss).  

The First Consolidated Amended Complaint filed by the Plaintiffs alleges direct infringement and unfair competition. OpenAI has filed its Answer to the complaint, and also applied to dismiss the unfair competition claim.

The Court has put in place an inspection protocol in relation to OpenAI's training data which will be made available for inspection at OpenAI's San Francisco offices or other secure nearby location, subject to certain strict protocols and conditions. This is seen as particularly significant as it will be the first time that this information has been made available for inspection.  

Impact

The case has been consolidated with the Silverman and Chabon actions against OpenAI.  OpenAI has applied to dismiss a number of the claims. 

As Open AI puts it in its Reply document, "the issue at the heart of this litigation is whether training artificial intelligence to understand human knowledge violates copyright law. It is on that question that the parties fundamentally disagree, and on which the future of artificial intelligence may turn".

Summary 

This case has now been consolidated with Tremblay v OpenAI – see Tremblay entry for future updates.

In related proceedings to the complaint filed by Tremblay and Awad, the comedian Sarah Silverman, and other Plaintiffs as individual and representative plaintiffs have also brought proceedings against OpenAI relating to ChatGPT in the US District Court for the Northern District of California.

The Plaintiffs allege that, during the training process of its LLMs, OpenAI copied "at least Plaintiff Silverman’s book The Bedwetter; Plaintiff Golden’s book Ararat; and Plaintiff Kadrey’s book Sandman Slime." without Plaintiffs' permission. Further, it is argued that "because the OpenAI Language Models cannot function without the expressive information extracted from Plaintiffs’ works (and others) and retained inside them, the OpenAI Language Models are themselves infringing derivative works, made without Plaintiffs’ permission and in violation of their exclusive rights under the Copyright Act".

In addition to direct and vicarious copyright infringement, the class action alleges violations of the DMCA, unjust enrichment, violations of the California and common law unfair competition laws, and negligence.

On 28 August 2023, OpenAI filed a Motion to Dismiss a number (but not all) of the Plaintiff's claims. In particular, the Motion to Dismiss does not relate to the direct copyright claim, where OpenAI relies on a defence of fair use.

OpenAI's motion to dismiss was heard on 7 December 2023. In an order of 12 February 2024, the Court dismissed a number of claims in the Complaint, but with leave to amend in relation to the claim to vicarious infringement and the copyright management information (CMI) claim (the claim to direct infringement was not included in the motion to dismiss).  

Impact

The complaint has now been consolidated with the Tremblay and Chabon actions against OpenAI (see Tremblay action for further updates).

Summary

This case has now been consolidated with Tremblay v OpenAI – see Tremblay entry for future updates.

A third set of proceedings has been brought against OpenAI in the US District Court for the Northern District of California.  This claim has been brought by a group of authors, playwrights and screenwriters (on both an individual and representative basis), including Pulitzer Prize winning author for fiction, Michael Chabon.

As with the other claims against OpenAI, the claims include direct and vicarious copyright infringement, violations of the DMCA, violations of California unfair competition law, negligence and unjust enrichment.  

Impact

The claims against OpenAI have now been consolidated (see Tremblay action for further updates).

Summary

This case has been consolidated with Alter v OpenAI. 

Following other class actions brought by authors against OpenAI, this case is particularly significant for a number of reasons. First, one of the plaintiffs includes The Authors Guild, alongside 17 well-known Authors Guild members such as John Grisham, Jodi Picoult, Jonathan Franzen, George RR Martin, David Baldacci and Scott Turow. Secondly, unlike the other claims, this one has been brought in the Southern District of New York. Thirdly, whilst there is overlap in relation to the claims (in relation to direct copyright infringement, vicarious copyright infringement, contributory copyright infringement), other claims that have featured in the other cases against OpenAI have not been included.

On 5 February 2024, the Plaintiffs in this action, and in the Alter action, filed a consolidated class action complaint.  The Plaintiffs in the ChatGPT litigation have filed a Motion for this case, and others filed in the Southern District of New York, to be dismissed, or stayed/transferred to the Northern District of California but this application has been rejected.

Impact

The complaint tackles the question of 'fair use' head on noting that there is "nothing fair" about what OpenAI has done, adding that its "unauthorized use of Plaintiffs' copyrighted works thus presents a straightforward infringement case applying well-established law to well-recognized copyright harms".  Whilst the other cases may be expected to settle, given that this case involves The Authors Guild, that seems much more unlikely here.

Summary

This case has now been consolidated with Authors Guild v OpenAI (see Authors Guild entry for further updates).

This complaint is brought by a number of authors, on their own behalf and on behalf of a class against OpenAI and Microsoft, in the US District Court Southern District of New York. The claim is for infringement in the training of OpenAI and Microsoft's GPT models, as well as for contributory infringement by certain of the defendants.

On 2 February 2024, the Plaintiffs in this action, and in the Authors Guild action, filed a consolidated class action complaint. 

Impact

The initial complaint's opening paragraph stated that "the basis of the OpenAI platform is nothing less than the rampant theft of copyrighted works".  The complaint also noted that it asked ChatGPT if one of the authors' work had been included in its training data to which it answered "Yes, Julian Sancton's book 'Madhouse at the End of the Earth' is included in my training data". This is the first class action author complaint against OpenAI, that also cites Microsoft as a defendant.

Summary

This class action complaint has been brought by two non-fiction authors / journalists against Microsoft and OpenAI in the US District Court Southern District of New York.  The complaint makes reference to that of the New York Times and is for direct copyright infringement, vicarious copyright infringement, and contributory copyright infringement.

Whilst the case was consolidated with the Authors Guild and Alter matters, it has now been stayed as the Plaintiff has withdrawn the class allegations.

Impact

As the first AI infringement case issued in 2024, this case is the latest in a string of actions by authors against Microsoft and OpenAI, as well as the high profile complaint brought by The New York Times.  The complaint uses strong language describing the defendants as "no different than any other thief".

Summary

This highly publicised case has been brought by The New York Times against Microsoft and OpenAI in the US District Court Southern District of New York, relating to ChatGPT (including associated offerings), Bing Chat and Microsoft 365 Copilot. It follows a period of months during which the NYT said it attempted to reach a negotiated agreement with Microsoft/OpenAI.

The Complaint raises arguments of large-scale commercial exploitation of NYT content, through the training of the relevant models (including GPT-4 and the next generation GPT-5), noting that the GPT LLMS have also 'memorized' copies of many of the woks encoded into their parameters.  There are extensive exhibits (69 exhibits, comprising around 2000 pages) attached to the Complaint. Exhibit J in particular contains 100 examples of output from GPT-4 (as a 'small fraction') based on prompts in the form of a short snippet from the beginning of an NYT article.  The example outputs are said to recite NYT content verbatim (or near-verbatim), closely summarise it, and mimic its expressive style (and also wrongly attribute false information - hallucinations - to NYT).

The Complaint also focuses on synthetic search applications built on the GPT LLMs which display extensive excepts or paraphrases of contents of search results, including NYT content, that may not have been included in the model's training set (noting that this contains more expressive content from the original article than would be the case in a traditional search result, and without the hyperlink to the NYT website).

The claims are for direct copyright infringement,  vicarious copyright infringement, contributory copyright infringement, DMCA violations, unfair competition by misappropriation, and trade mark dilution.

On 26 February 2024, OpenAI filed a Motion to Dismiss in relation to parts of the claim to direct copyright infringement (re conduct occurring more than 3 years ago), as well as the claims relating to contributory infringement, DMCA violations and state common law misappropriation. In particular, OpenAI alleges that the 'Times paid someone to hack OpenAI's products' and that it took 'tens of thousands of attempts to generate the highly anomalous results' in Exhibit J to the Complaint, including by targeting and exploiting a bug (which OpenAI says it has committed to addressing) in violation of its terms of use. OpenAI goes on to categorise the key dispute in the case as to whether it is fair use to use publicly accessible content to train generative AI models to learn about language, grammar and syntax, and to 'understand the facts that constitute humans' collective knowledge'. The New York Times has categorised OpenAI's motion as grandstanding, with an attention-grabbing claim about 'hacking' that is both irrelevant and false.

Microsoft filed its Motion to Dismiss parts of the claim on 4 March 2024 focusing on (1) the allegation that Microsoft is contributorily liable for end-user infringement (2) violation of DMCA copyright management information and (3) state law misappropriation torts. Drawing an analogy with earlier disruptive technologies, the Motion states "copyright law is no more an obstacle to the LLM than it was to the VCR (or the player piano, copy machine, personal computer, internet, or search engine)"- its point is that the US Supreme Court has previously rejected liability merely based on offering a multi-use product that could be used to infringe. It further states that Microsoft "looks forward to litigating the issues in this case that are genuinely presented, and to vindicating the important values of progress, learning and the sharing of knowledge".

The Plaintiffs filed an Amended Complaint on 12 August 2024 (the amendments add a further approximately 7 million works to the suit).

The case has been consolidated with The Daily News complaint and also with the claim brought by The Center for Investigative Reporting.

OpenAI and Microsoft have filed Motions to Compel The New York Times to produce documents relating to the valuation of and market/s for the works in suit including in relation to subscription losses, effects on advertising revenue, web traffic documentation and high level economic and financial reporting data.  These documents are said to be critical to assessing the fourth fair use factor, the effect of the use upon the potential market for or value of the copyrighted work.

Impact

The opening words of the complaint stress the importance of independent journalism for democracy - and the threat to the NYT's ability to provide that service by the use of its works to create AI products. It further highlights the role of copyright in protecting the output of news organisations, and their ability to produce high quality journalism.

The NYT website is noted in the Complaint as being the most highly represented proprietary source of data in the Common Crawl dataset, itself the most highly weighted dataset in GPT-3. Given the previous attempt at negotiations referred to in the complaint, it will be interesting to see if the launch of this complaint will lead to more fruitful licence negotiations, or whether this case will continue to trial (in which case, it should be tracked alongside the other complaints against OpenAI and Microsoft).

OpenAI's position is that 'training data regurgitation' (or memorisation) and hallucination are 'uncommon and unintended phenomena'. Memorisation is a problem that OpenAI say that they are working hard to address, including through sufficiently diverse datasets. Meanwhile, it points to its partnerships with other media outlets.

Summary

The same set of authors, playwrights and screenwriters in the third set of proceedings against OpenAI also brought a claim against Meta in the US District Court for the Northern District of California.  This case focused on Meta's LLaMa (Large Language Model Meta AI) and noted Meta's statements that LLaMa was trained using books including from the Books3 section of ThePile dataset (assembled from content available in 'shadow library' websites (including Bibliotik)), which the Plaintiffs contended includes their copyright works.

Again, the claims include direct and vicarious copyright infringement, violations of the DMCA, violations of California unfair competition law, negligence and unjust enrichment. 

Impact

Developments in all of these cases should be monitored closely. The case has now been consolidated with another claim against Meta (Kadrey et al v Meta).

Summary

Plaintiffs have brought a class action against Meta relating to its LLaMA (Large Language Model Meta AI) product in the US District Court for the Northern District of California. The claim notes Meta's statements that LLaMa was trained using books including from the Books3 section of ThePile dataset (assembled from content available in 'shadow library' websites (including Bibliotik)), which the Plaintiffs content includes their copyright works.

The claims (as originally drafted) included direct and vicarious copyright infringement, violations of the DMCA, violations of California unfair competition law, negligence and unjust enrichment. 

Meta filed a Motion to Dismiss parts of the claim – the Motion to Dismiss only applies partially to the claim of direct infringement. On this, Meta's Motion states: "Use of texts to train LLaMA to statistically model language and generate original expression is transformative by nature and quintessential fair use—much like Google’s wholesale copying of books to create an internet search tool was found to be fair use in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015)." Clearly, the issue of fair use is going to be central to this debate.

On Thursday 9 November 2023, US District Judge Vince Chhabria indicated that he would grant Meta's motion to dismiss the claims that content generated by Meta's LLaMA tool infringes their copyright (and also that LLaMA is itself an infringing work), but would give the plaintiffs permission to amend most of their claim.

On 11 December 2023, the Plaintiffs filed their amended Complaint, on the basis of direct copyright infringement.

The Plaintiffs filed a Second Amended Complaint on 9 September 2024.

Meta had sought to challenge its CEO Mark Zuckerberg being deposed but the Court denied its motion on 24 September 2024. The Plaintiffs had established that he was the chief decision maker and policy setter for Meta's generative AI brand and the development of the large language models at issue in the action.

Impact

The claim has been consolidated with that brought by a number of authors including Michael Chabon, and also with the Huckabee action against Meta which has been transferred from the US District Court for the Southern District of New York to the US District Court for the Northern District of California.

Summary

This is a case brought against Stability AI (and other AI tools such as Midjourney), this time by a group of visual artists acting as individual and representative plaintiffs. The claim was filed in the US District Court for the Northern District of California.

The Plaintiffs have filed for copyright infringement, Digital Millennium Copyright Act violations, and related state law claims. They allege that the Defendants used their (and other artists’) works to train Stable Diffusion without obtaining their permission. According to the Plaintiffs, when the Defendants’ AI tools create "new images" based entirely on the training images, they are creating an infringing derivative work.

The Plaintiffs seek to bring their suit as a class action on behalf of "millions of artists" in the U.S. that own a copyright in any work that was used to train any version of the AI tools. 

On 19 July 2023, Judge Orrick indicated in a tentative ruling that he would dismiss almost all of the claims against the Defendants but would give the Plaintiffs leave to amend. Of particular note is that the Judge stated that the Plaintiffs need to differentiate between the Defendants and elaborate on what role each of the Defendants played with respect to the allegedly infringing conduct. The Judge was sceptical as to the extent the AI tool relied on the Plaintiffs' works to generate the output images as the AI model contained billions of images. He also expressed doubts as to whether the output images were substantially similar to the Plaintiff's original works.

On 30 October 2023, Judge Orrick's order was published, dismissing parts of the claim. However, the Plaintiffs were given leave to amend, with the Judge requiring them to clarify their infringement claims. Stability Ai's motion to dismiss the claim against it for direct copyright infringement was denied.

On 29 November 2023, the Plaintiffs filed their Amended Complaint, which included a number of new plaintiffs joining the complaint.

On 8 February 2024, Judge Orrick denied the Defendants' motion to strike under California's anti-SLAPP (strategic lawsuits against public participation) statute which had been directed solely at the Plaintiffs' right of publicity claims, on the basis that the Complaint and Amended Complaint fell within the anti-SLAPP statute's public interest exception.

On 7 May 2024, Judge Orrick issued a number of tentative rulings in advance of a hearing on 8 May.

On 12 August 2024, Judge Orrick issued his ruling in which he confirmed the following:

• The allegations of direct and induced copyright infringement are sufficient to proceed. The Plaintiffs alleged that Stable Diffusion is built to a significant extent on copyrighted works and that the way the product operates necessarily invokes copies or protected elements of those works. The plausible inferences were that Stable Diffusion by operation by end users creates copyright infringement and was created to facilitate that infringement by design.
• All DMCA claims are dismissed with prejudice (including in line with the opinion of Judge Tigar in Doe I v GitHub, Inc).
• The claims for unjust enrichment are dismissed but the Plaintiffs have been given leave to make one last attempt to state an unjust enrichment claim.
• Midjourney's motion to dismiss false endorsement and trade dress claims is denied.
• The breach of contract claim against DeviantArt is dismissed with prejudice.

On 31 October 2024, the Plaintiffs filed their Second Amended Complaint.

Impact

In this case, one of the Plaintiffs' arguments is that AI tools which create art “in the style of” an existing artist are infringing derivative works. Copyright infringement requires copying, so the Plaintiffs will have to convince the court that a completely new piece of art “in the style of” an existing artist could be categorised as “copying” that artist.

Summary

In addition to its claim against Stability AI in the UK, Getty Images has brought proceedings in the US District Court of Delaware.

Getty Images' complaint is for copyright infringement, providing false copyright management information, removal or alteration of copyright management information, trademark infringement, unfair competition, trademark dilution, and related state law claims.

In response to Getty Images' amended complaint, Stability AI filed a motion to dismiss for lack of personal jurisdiction, inability to join a necessary party, and failure to state a claim, or alternatively, a motion to transfer the lawsuit to the US District Court for the Northern District of California.

Impact

This case should be tracked alongside the action in the UK, though different issues may arise for consideration given potential divergences e.g., in relation to defences to copyright infringement.

Summary

This claim has been brought by Getty Images against AI image generator Stability AI in the UK High Court.

Getty Images' claim (as summarised in its press release when commencing the claim) is that, through its Stable Diffusion model (under the name DreamStudio), Stability AI has "unlawfully copied and processed millions of images protected by copyright and the associated metadata owned or represented by Getty Images absent a license to benefit Stability AI's commercial interests and to the detriment of content creators".

The claims relate to copyright infringement, database right infringement, and trade mark infringement and passing off.

In brief, Getty Images claims that Stable Diffusion was trained using various subsets of the LAION-5B Dataset which was created by scraping links to photos and videos and associated captions from various websites: Getty Images claims that Stable Diffusion 1.0 was trained using around 12 million visual assets (of which around 7.3 million are copyright works) from Getty Images websites. It further claims that Stable Diffusion 2.0 was trained using around 7.5 million visual assets (of which around 4.4 million are copyright works) from Getty Images websites.

Getty Images also claims that in some cases the synthetic image produced by a user comprises a substantial part of one or more of its copyright works and/or visual assets, suggesting that Stable Diffusion sometimes memorises and generates very similar images to those used to train it. In some cases, the synthetic images produced bear the GETTY IMAGES and ISTOCK signs as a watermark.

Getty Images seeks to restrain the Defendant from doing a number of acts in the UK, without a written licence or agreement from Getty Images.

Stability AI applied for summary judgment / strike out in respect of certain aspects of Getty Images' claim. In particular, it argued that, as the evidence indicated that the training and development of Stable Diffusion took place outside the UK, the claim relating to copyright and database right infringement in that process was bound to fail. On 1 December 2023, the Court rejected Stability AI's application. Whilst the evidence referred to would on its face provide strong support for a finding that no development or training had taken place in the UK, there was other evidence pointing away from that conclusion, as well as a number of unanswered questions and inconsistencies in the evidence. Accordingly, the Court allowed that claim to proceed to trial, alongside a claim for secondary infringement of copyright which again the Court concluded could not be determined on a summary basis. 

On 27 February 2024, Stability AI filed its Defence. In summary, it denies that:

• Development and training of the Stable Diffusion models infringed any of Getty Images' IP rights on the basis that the models were trained and developed outside the UK.
• Making the Stable Diffusion model checkpoints available for download on GitHub or Hugging Face, or for use via DreamStudio, involves any acts of secondary infringement (because Stable Diffusion is not an infringing copy, is not an article, and has not been imported into the UK by Stability).
• Use of Stability Diffusion by users gives rise to claims of infringement.  In particular, it argues that the examples of infringing outputs relied upon were generated by 'wilful contrivance using prompts corresponding exactly or substantially to captions' for Getty Images' works. It further asserts that the act of generating outputs is that of the user (over whom it has no control or knowledge of its prompts), not Stability; it has not made any use of the Getty trade marks in the course of trade; and it is entitled to rely upon caching and hosting safe harbours.

Interestingly, Stability AI also assert that to the extent that any images do include any element of a copyright work, it is possible to rely upon the fair dealing defence for the purposes of pastiche (a defence which has not yet been the subject of significant judicial commentary, other than in the Shazam case relating to Only Fools and Horses).   

Impact

As noted by Peter Nunn in an article in The Times:

"If Getty Images is successful in the UK claim, the court could award it substantial damages and grant an injunction preventing Stability AI from continuing to use the copyright works of Getty Images. This could have knock-on effects, deterring other AI innovators from scraping the internet to use content without the owners’ consent, but also prompting governments to speed up changes to their intellectual property laws so as to permit greater use of protected works in the training of AI programmes."

Peter Nunn discusses AI 'plagiarism' in The Times (mishcon.com)

 

Summary

There have been some changes to the parties in this case, with the complaint against The Eleutherai Institute being voluntarily dismissed and the complaints against Meta and Microsoft severed and transferred.

Former Presidential Candidate and former Governor of Arkansas Mike Huckabee and a group of other plaintiffs have brought a class action against Meta, Bloomberg, Microsoft and The Eleutherai Institute in the United States District Court Southern District of New York. The complaint focuses on EleutherAI's dataset called 'The Pile' which includes in its data sources, 'Books 3', a dataset of a large collection (said to be approximately 18,000) of pirated ebooks.  The complaint notes that The Pile, and specifically Books3, was a popular training data set for companies developing AI technology, including the Defendants in this case.

As in other cases, the complaint alleged direct copyright infringement, vicarious copyright infringement, DCMA claims (removal of copyright management information), conversion, negligence, and unjust enrichment.

The Plaintiffs have since voluntarily dismissed the complaint against The Eleutherai Institute, and the complaints against Meta and Microsoft have been severed and transferred to California. In the Amended Complaint filed in January 2024, the Plaintiffs have withdrawn their indirect copyright infringement, DCMA and state-law claims, leaving the direct copyright infringement claim to be argued. 

Impact

This is the first case involving Bloomberg, which the complaint notes launched the world's first LLM built from scratch for finance. The complaint notes that Bloomberg had stated that it would not use the Books3 dataset used to training future versions of BloombergGPT, but further notes that LLM training is iterative and builds on prior versions, with the Plaintiff's works 'baked in' already.  

Summary

This class-action brought in the US District Court for the Northern District of California targets both Copilot and OpenAI's Codex tool, which provides the technology underlying Copilot. Copilot helps developers write code by generating suggestions based on what it has learned from code in the public domain.  

The complaint (as originally filed) focuses on four key areas:

• An allegation that Copilot violates provisions of the Digital Millennium Copyright Act by ingesting and distributing code snippets (copyrighted information) without including the licence terms, copyright notice and author attribution.
• An allegation that, by not complying with open licence notices, Copilot breaches the conditions of such licences by which the original code had been made available to Copilot/Codex.
• An allegation that Copilot passes off code as an original creation and therefore GitHub, Microsoft and OpenAI have been unjustly enriched by Copilot's subscription based service. This is a claim for unlawful competition.
• An allegation that Github violates the Class's rights under the Californian Privacy Act, Github Privacy Statement and/or the Californian Constitution by inter alia sharing the Class's sensitive personal information; creating a product that contains personal data GitHub cannot delete, alter nor share with the applicable Class member; and selling the Class's personal data.

The Plaintiffs are seeking damages and injunctive relief.

The Defendants have alleged that the complaint lacks standing and have filed for the complaint to be dismissed. After being granted leave to amend their complaint, the Plaintiffs filed an amended complaint in June 2023, which largely resembled their initial complaint but including examples of licensed code owned by three of the Plaintiffs that has been output by Copilot, arguing that this demonstrates the Defendants removed their Copyright Management Information and emitted their code in violation of their open-source licences. On 3 January 2024, the Court granted GitHub's motions to dismiss in part. In particular, the Judge held that the remaining two Plaintiffs had not established a 'particular personalized injury' to confer standing for damages, though this was satisfied for the three Plaintiffs referred to above. The Judge also held that the state law claims of intentional and negligent interference with prospective economic relations, unjust enrichment, negligence and unfair competition are pre-empted by the Copyright Act. The claims under the DCMA were also dismissed with leave to amend.

On 24 June 2024, the Court granted an order granting in part the Defendants' Motion to Dismiss in relation to the remaining claims in the Second Amended Complaint. The Court has dismissed the DMCA complaint (with prejudice) and their complaint for unjust enrichment and punitive damages.  However, it has allowed the Plaintiffs' breach of contract claim for violation of open-source licenses to proceed.

On 24 July 2024, the Plaintiffs sought to certify for interlocutory appeal the issue relating to the DMCA claim.

The Court has certified its order dismissing the DMCA claims for interlocutory appeal as it involves a 'controlling question of law', there is substantial ground for difference of opinion on the issue and the appeal is likely to materially advance the ultimate outcome of the litigation.

Impact

The open source community will be watching this case with particular interest.

In its motion to dismiss GitHub draws attention to its Terms of Service with respect to ownership of code generated by GitHub Copilot. This is simplified in their FAQ section (see 'Does GitHub own the code generated by GitHub Copilot?) where GitHub suggests that "Copilot is a tool, like a compiler or pen" and, as a result, "the code you write with GitHub Copilot's help belongs to you".

Summary

A number of music publishers (comprising Concord, Universal and ABKCO) brought an action against Anthropic in the United States District Court for the Middle District of Tennessee Nashville Division (the case has been ordered to be transferred to the United States District Court for the Northern District of California). The complaint has been brought in order to "address the systematic and widespread infringement of their copyrighted song lyrics" alleged to have taken place during the process of Anthropic building and operating its AI models referred to as 'Claude'.  In particular, the complaint notes that when a user prompts Claude to provide the lyrics to a particular song, its response will provide responses that contain all or significant portions of those lyrics. Further, when Clause is requested to write a song about a certain topic, the complaint alleges that this can involve reproduction of the publishers' copyrighted lyrics – for example, when asked to write a song "about the death of Buddy Holly", it responded by generating output that copies directly from the song "American Pie".

The complaint contains claims relating to direct copyright infringement, contributory infringement, vicarious infringement, and DCMA claims (removal of copyright management information).   

In its response to the Plaintiffs' motion for a preliminary injunction, Anthropic argues that the Plaintiffs devised 'special attacks' in order to evade Claude's built-in guardrails and to generate alleged infringements through 'trial and error'.  It also relies upon the use of copyrighted material as inputs as 'fair use'.

Anthropic has filed a Motion to Dismiss a number of the claims (the claims of contributory copyright infringement, vicarious copyright infringement and removal/alteration of copyright management information). It has not sought to dismiss the claim of direct copyright infringement.

Impact

This was the first case involving the music industry, and also the AI tool developer Anthropic. There are a number of websites which currently aggregate and publish music lyrics – however, this is through an existing licensing market by which the publishers license their copyrighted lyrics.

Summary

This complaint, which has been brought by two news organisations in the US District Court Southern District of New York, is unusual because it does not include claims for copyright infringement. Instead, it alleges violations of the Digital Millennium Copyright Act in that thousands of the Plaintiffs' works were included in training sets with the author, title, and copyright infringement removed.

On 7 November 2024, Justice McMahon granted OpenAI's Motion to Dismiss the complaint that removal of copyright management information (CMI) prior to training ChatGPT is a violation of Section 1202(b)(i) of the Digital Millenium Copyright Act for which the Plaintiffs are entitled to damages and/or injunctive relief. The Court agreed with OpenAI that the Plaintiffs lack Article III standing to pursue the relief sought, in that the Plaintiff has not shown that it is suffered concrete harm.

Impact

It was noteworthy that this case did not include copyright infringement claims. As the Judge points out what was 'really at stake' was not exclusion of CMI from the Defendants' training sets, but the Defendants' use of the Plaintiffs' articles to develop ChatGPT without compensation to the Plaintiffs, but that was not the question before the Court.

Summary

This case concerns whether copyright can be registered in a creative work made by artificial intelligence – specifically a piece called 'A Recent Entrance to Paradise' which was created autonomously by an AI tool (the AI tool, Creativity Machine, was created by Dr Thaler who listed the system as the work's creator and himself as the 'Copyright Claimant' as 'a work-for-hire to the owner of the Creativity Machine').

The work was denied registration by the US Copyright Office on the basis there was no human author to support a claim to copyright registration. The proceedings in the US District Court for the District of Columbia seek to overturn the USCO refusal to register. The case was therefore a judicial review hearing of the Copyright Office's decision as a final agency decision.

Following cross motions for summary judgment, on 18 August 2023, Judge Beryl A. Howell issued an Order (and accompanying Memorandum Opinion) dismissing the Plaintiff's motion for summary judgment and granting the Defendants' cross-motion for summary judgment.

The Judge concluded that the Registrar had not acted arbitrarily or capriciously in reaching its conclusion that the copyright registration should be denied.    

Dr Thaler filed a Notice of Appeal to the US Court of Appeals for the District of Columbia Circuit. In its Reply Brief, the US Copyright Office asserts that human authorship is a basic requisite to obtain copyright protection, based on a straightforward application of the statutory text, history and precedent.  The Brief argues that the Copyright Act's plain text and structure establish a human authorship requirement. In terms of precedent, since the 19th century, the Supreme Court has recognised human creativity as the touchstone of authorship. It further argues that Dr Thaler has offered no sound reason to depart from these 'bedrock principles'.

Oral argument was heard by the US Court of Appeals for the DC Circuit on 19 September 2024.

Impact

Unusually, the question here is purely a legal one: are AI-generated works (created autonomously without any human input) copyrightable?

Thaler's argument is that AI generated works deserve copyright protection as a matter of policy. The Judge said that "copyright has never stretched so far, however, as to protect works generated by new forms of technology absent any guiding human hand … human authorship is a bedrock requirement of copyright".

The position on whether content created by AI generators is protectable differs from country to country (as noted below re the position in the UK as compared to the US). We have written about this here. 

See below also for the US Copyright Office Statement of practice in relation to works containing material generated by AI, which is to the effect that only the human created parts of a generative AI work are protected by copyright.

It appears that in presenting argument to the Court, the Plaintiff implied a level of human involvement in the creation of the work, that was not in accordance with the administrative record before the Copyright Office which was to the effect that the work had been generated by the AI system autonomously and that he had played no role in its creation.

Summary

On 12 July 2024, the EU AI Act was published in the Official Journal of the EU. It entered into force on 1 August 2024. Compliance deadlines can be calculated as set out below.

In relation to copyright, the Act contains provisions relating to obligations on general-purpose AI systems around compliance with EU copyright law (including relating to text and data mining and opt-outs under the EU Digital Single Market Copyright Directive) and transparency around content used to train such models (in the form of sufficiently detailed summaries, which will be by reference to a form template to be published by the proposed AI Office). There is also a requirement that certain AI-generated content (essentially 'deep fakes') be labelled as such.

A draft of a proposed GPAI Code of Practice has been issued for consultation. In relation to copyright, the Code of Practice deals with the need for implementation of a copyright policy, together with both upstream and downstream copyright compliance, as well as compliance with the limits of the TDM exception provided for in the Digital Single Market Copyright Directive. In this regard, signatories are required to respect robots.txt (and to ensure that this does not negatively affect the findability of content, where relevant), make best efforts to identify and comply with other appropriate machine-readable means for effecting an opt-out, and to commit to collaborative development of rights reservation standards. They must also commit to not crawl piracy websites. In relation to transparency, signatories will be required to provide public information about rights reservation compliance, alongside provisions relating to communication and complaint handling, as well as record-keeping to fulfil their obligation to put in place a policy to comply with EU law on copyright and related rights.

Impact

The Act entered into force on 1 August and will be fully applicable 24 months after its entry into force, i.e., on 2 August 2026 (though certain provisions will be applicable sooner, and others at 36 months). There are staggered dates for when different parts of the Act will take effect:

• 6 months after coming into force, provisions concerning banned AI practices take effect (i.e. 2 February 2025)
• 1 year after coming into force, provisions on penalties, confidentiality obligations and general-purpose AI take effect (i.e. 2 August 2025)
• 2 years after coming into force, the remaining provisions take effect (i.e. 2 August 2026)
• 3 years after coming into force, obligations for high-risk AI systems forming a product (or safety component of a product) regulated by EU product safety legislation apply (i.e. 2 August 2027)

Summary

As part of its study of the copyright law and policy issues raised by AI systems, the USCO sought written comments from stakeholders on a number of questions. It had received over 10,000 comments by December 2023. The questions cover the following areas:

1. The use of copyrighted works to train AI models – the USCO notes that there is disagreement about whether or when the use of copyrighted works to develop datasets is infringing. It therefore seeks information about the collection and curation of AI datasets, how they are used to train AI models, the sources of materials and whether permission by / compensation for copyright owners should be required.
2. The copyrightability of material generated using AI systems – the USCO seeks comment on the proper scope of copyright protection for material created using generative AI. It believes that the law in the US is clear that protection is limited to works of human authorship but notes that there are questions over where and how to draw the line between human creation and AI-generated content. For example, a human's use of a generative AI tool could include sufficient control over the technology – e.g., through selection of training materials, and multiple iterations of prompts – to potentially result in output that is human-authored. The USCO notes that it is working separately to update its registration guidance on works that include AI-generated materials.
3. Potential liability for infringing works generated using AI systems – the USCO is interested to hear how copyright liability principles could apply to material created by generative AI systems.  For example, if an output is found to be substantially similar to a copyrighted work that was part of the training dataset, and the use does not qualify as fair use, how should liability be apportioned between the user and the developer?
4. Issues related to copyright – lastly, as a related issue, the USCO is also interested to hear about issues relating to AI-generated materials that feature the names of likeness, including vocal likeness, of a particular person; and also in relation to AI systems that produce visual works 'in the style' of a specific artist.

In July 2024, the USCO published Part 1 of its Report on Copyright and Artificial Intelligence, focusing on Digital Replicas (also called 'deepfakes').  Based on the input received, the USCO has concluded that a new federal law is needed to deal with unauthorised digital replicas, as existing laws do not provide sufficient legal redress. This would cover all individuals, not just celebrities. However, whilst the paper also notes that creators have concerns over AI outputs that deliberately imitate an artist's style, it does not recommend including style in the coverage of the new legislation at this time.    

Separately, a No Fakes Bill (Nurture Originals, Foster Art and Keep Entertainment Safe Bill) has also been proposed in the US Senate. The No Fakes Bill also proposes to enact federal protection for the voice and visual likeness of individuals. The Bill is endorsed by a number of associations representing performers and rights holders, and from within the creative community.

Impact

The issues raised in the Notice are wide-ranging and some are before the Courts for determination. One key issue to resolve is whether the use of AI in generating works could be regarded as akin to a tool like a typewriter in creating a manuscript. Using a typewriter does not result in the manuscript being uncopyrightable in the same way as using Photoshop does not result in a photo taken by a photographer being uncopyrightable. This is the approach that GitHub takes in respect of its Copilot service (for example) where it notes that "Copilot is a tool, like a compiler or pen" and, as a result, its position is that the code produced from GitHub Copilot's should belong to the individual who used the tool. However, again, the legal position as to authorship/ownership is not so clear-cut. Whilst GitHub has no interest in owning Copilot-generated source code that is incorporated into a developer's works, it's not clear whether the terms in Copilot's terms of use effectively assign IP rights to the developer. It is also not clear whether there could be any instances where the use of extensive and carefully worded prompts could ever result in someone being able to claim copyright in the material generated by an AI tool by claiming that the author has ultimate creative control over the work. The USCO had previously considered this in its Statement of Practice. These are just a few issues on which clarity is needed.

Summary

Introduced by Democratic Representative Adam Schiff, The Generative AI Copyright Disclosure Act would require a notice to be submitted to the Register of Copyrights prior to a new generative AI system being released, providing information on all copyrighted works used in building or altering the training dataset. It would also apply retroactively to existing genAI systems.

Impact

The Bill has attracted widespread support from across the creative community including from industry associations and Unions such as the Recording Industry Association of America, Copyright Clearance Center, Directors Guild of America, Authors Guild, National Association of Voice Actors, Concept Art Association, Professional Photographers of America, Screen Actors Guild-American Federation of Television and Radio Artists, Writers Guild of America West, Writers Guild of America East, American Society of Composers, Authors and Publishers, American Society for Collective Rights Licensing, International Alliance of Theatrical Stage Employees, Society of Composers and Lyricists, National Music Publishers Association, Recording Academy, Nashville Songwriters Association International, Songwriters of North America, Black Music Action Coalition, Music Artist Coalition, Human Artistry Campaign, and the American Association of Independent Music.

Summary

In 2021, the UK Intellectual Property Office (UKIPO) consulted on potential changes to the UK's IP framework as a result of AI developments (importantly, this was before the increased levels of interest following the launch of ChatGPT etc).

In particular, a number of policy options were considered relating to the making of copies for the purposes of text and data mining (TDM), a crucial tool in the development and training of AI tools. Currently, an exception is in place under UK copyright law to allow copying for the purposes of TDM, but only where it is for the purpose of non-commercial research, and only where the researcher has lawful access to the works.

Alongside retaining the current exception, or simply improving the licensing environment for relevant works, the consultation sought views on three alternative options:

• Extend the TDM exception to cover commercial research.  
• Adopt a TDM exception for any use, with a right-holder opt-out – modelled on the recent TDM exception introduced in the EU. This would provide rights holders with the right to opt-out individual works, sets of works, or all of their works if they do not want them to be mined.
• Adopt a TDM exception for any use, with no right-holder opt-out – similar to an exception in Japan for information analysis, and also in Singapore.

In June 2022, the UKIPO published the then Government’s response to the consultation, which was in favour of the widest and most liberal of the options under discussion, i.e., a TDM exception for any use, with no right-holder opt-out. Specifically, it was noted that the widening of the exception would ensure that the UK's copyright laws were "among the most innovation-friendly in the world", allowing "all users of data mining technology [to] benefit, with rights holders having safeguards to protect their content". The main safeguard identified for rights holders was the requirement for lawful access.

Following widespread criticism, however, in particular relating to concerns from the creative industries, the then Minister for Science, Research and Innovation confirmed in February 2023 that the proposals would not proceed.

However, following the Sir Patrick Vallance Pro-Innovation Regulation of Technologies Review on Digital Technologies, which called upon the Government to announce a clear policy position, the Conservative Government's response confirmed that it had asked the UKIPO to produce a code of practice. The code of practice was intended to provide balanced and pragmatic guidance to AI firms to access copyright-protected works as an input to their models, whilst ensuring protections are in place on generated outputs to support right holders such as labelling. The Government suggested that an AI firm that committed to the code of practice could expect to have a reasonable licence offered by a rights holder. If a code of practice could not be agreed or adopted, however, legislation may have to be implemented.

In an interim report on governance of AI by the House of Commons Science, Innovation and Technology Committee (dated 31 August 2023), 'the Intellectual Property and Copyright Challenge' was identified as one of the 12 challenges of AI governance. Representatives of the creative industries reported to the Committee that they hoped to reach a mutually beneficial solution with the AI sector, potentially in the form of a licensing framework. Meanwhile, in its report on Connected tech: AI and creative technology (dated 30 August 2023), the House of Commons Culture, Media and Sport Committee welcomed the former Government's rowing back from a broad TDM exception, suggesting that it should proactively support small AI developers, in particular, who may find it difficult to acquire licences, by considering how licensing schemes can be introduced for technical material and how mutually beneficial arrangements can be agreed with rights management organisations and creative industry bodies. Further, it stressed to the Government that it "must work to regain the trust of the creative industries following its abortive attempt to introduce a broad text and data mining exception".

In its response to the House of Commons Culture, Media and Sport Committee's report on AI and the creative industries, the former Government confirmed that it was not proceeding with a wide text and data mining exception and reiterated its commitment to developing a code of practice to "enable the AI and creative sectors to grow in partnership". 

In the report of the House of Lords Communications and Digital Committee on 'Large Language Models and Generative AI' (published 2 February 2024), the Committee noted that the voluntary IPO-led process was welcome and valuable but that debate could not continue indefinitely, and if process remained unresolved by Spring 2024, the Government must set out options and prepare to resolve the dispute definitively, including legislative change if necessary. However, following reports in The Financial Times that the code of practice had been shelved, this was confirmed by the Government in its response to the AI White Paper consultation published on 6 February. 

Impact

Following the change of Government, monitor closely for the new Government's proposals in relation to AI, both generally and in relation to the treatment of copyright works. Whilst the King's Speech made reference to the Government intending to "…seek to establish the appropriate legislation to place requirements on those working to develop the most powerful artificial intelligence models", no further information has yet been provided. Given the reference to 'appropriate legislation', we anticipate that there will be further consideration of this issue, and the Government has indicated that it expects to resolve the issue by the end of the year.

Summary

In contrast to the approach adopted in most other countries, copyright is available in the UK to protect computer-generated works (CGWs) where there is no human creator. The author of such a work is deemed to be the person by whom the necessary arrangements for the creation of the work were undertaken, and protection lasts for 50 years from the date when the work was made.

How this applies in relation to content created with generative AI is currently untested in the UK.  In its consultation in 2021, the Government sought to understand whether the current law strikes the right balance in terms of incentivising and rewarding investment in AI creativity. 

Some have criticised the UK provision for being unclear and contradictory – a work, including a CGW, must be original to be protected by copyright, but the test for originality is defined by reference to human authors, and by reference to human traits such as whether it reflects their 'free and expressive choices' and whether it contains their 'stamp of personality'. 

From an economic perspective, meanwhile, it has been argued that providing copyright protection for CGWs is excessive because the incentive argument for copyright does not apply to computers. Further, some argue from a philosophical viewpoint that copyright should be available to protect only human creations, and that granting protection for CGWs devalues the worth of human creativity.

The consultation proposed the following three policy options, with the Government ultimately deciding to adopt the first option of making no change to the existing law at present:

• Retain the current scheme of protection for CGWs
• Remove protection for CGWs
• Introduce a new right of protection for CGWs, with a reduced scope and duration

Impact

Having consulted, the Government decided to make no changes to the law providing copyright protection for CGWs where there is no human author, but said that this was an area that it would keep under review. In particular, it noted that the use of AI in the creation of these works was still in its infancy, and therefore the impact of the law, and any changes to it, could not yet be fully evaluated.

In view of recent developments, it is clear that this policy approach may need to be revisited sooner rather than later.

We discussed this and the comparison with the approach in the US in our article here (and see further below).

Summary

In March 2023, the US Copyright Office published a Statement of Policy setting out its approach to registration of works containing material generated by AI.

The guidance states that only the human created parts of a generative AI work are protected by copyright. Accordingly, only where a human author arranges AI-generated material in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship’ or modifies AI-generated content ‘to such a degree that the modifications meet the standard for copyright protection,’ will the human-authored aspects of such works be potentially protected by copyright. 

This statement follows a decision by the USCO on copyright registration for Zarya of the Dawn ('the Work'), an 18-page graphic novel featuring text alongside images created using the AI platform Midjourney. Originally, the USCO issued a copyright registration for the graphic novel before undertaking investigations which showed that the artist had used Midjourney to create the images. Following this investigation (which included viewing the artist’s social media), the USCO cancelled the original certificate and issued a new one covering only the text as well as the selection, coordination, and arrangement of the Work’s written and visual elements. In reaching this conclusion, the USCO deemed that the artist’s editing of some of the images was not sufficiently creative to be entitled to copyright as a derivative work.

Impact

The boundaries drawn by the USCO in relation to works created by generative AI confirm there are challenges for those that wish to obtain protection for such works. Developments should continue to be tracked, including in relation to ongoing litigation (see above).