AI Infringement Case Updates: March 31, 2025
1. Kadrey et al. v. Meta
Background: Author Richard 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. Meta’s defense is “fair use.” The judge assigned is Judge Vince Chhabria.
At first, in November 2023, the Court dismissed the bulk of plaintiffs’ claims against Meta. But the Court gave 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: “Fair Use” Motions for Summary Judgment filed by both sides! High noon in N.D. Cal. as the parties’ showdown over fair use truly gets rolling. This week Meta filed its own Motion for Partial Summary Judgment as well as its opposition to the plaintiffs’ motion. Its central request was a summary judgment that would conclude that its copying of plaintiffs’ works was fair use. Meta positioned itself as unique among entities producing LLMs as having released the weights for its models on a non-commercial or permissive basis and, therefore, having enabled numerous platforms to build on top of the results of their training on copied data. We’re not sure that enabling scores of other LLMs to perpetuate the alleged copyright infringement weighs in Meta’s favor, but that’s their story and they’re sticking to it.
The four “fair use” factors to be considered by the courts are: 1) the transformative character of the use and whether it is commercial; 2) the nature of the copyrighted work; 3) the portion of the copyrighted work used; and 4) the market impact of the use. Taking the factors one at a time, Meta argued that 1) LLMs represented monumentally transformative use of copyrighted works, turning numerous textual inputs into a tool to be used for generative tasks; 2) because the copyrighted works were published, the second factor favored them; 3) that its use of entire books to draw statistical relations from them was necessary for its purpose of creating a transformative tool, citing Authors Guild v. Google Books; and 4) (the factor that the court in Thomson Reuters v. Ross viewed as being the most important factor) Meta’s use of plaintiffs’ works did not harm the market for their sale as books and that there is not a market for licensing such works as training data. In support of this point, Meta argued that each book taken individually did not have value as training data. Meta also requested summary judgment in its favor as to plaintiffs’ DMCA claim.
Everyone can draw their own conclusions about Meta’s arguments, but in our view, Meta’s arguments on the nature of the copyrighted work (claiming that the works were published), the portion of the copyrighted work used (all of it), and the market impact (each book, individually, has no value as training data), seem weak. Meta’s “no market for training data” argument seems particularly odd, as there are plenty of examples where copyright holders have licensed their works for generative AI training. The value of a single book might be small, but it cannot be “zero” and it is nonetheless also an infringement.
We have response and reply briefs to look forward to as the parties hash out their arguments. It might be too much to hope for a speedy decision on this issue, but the cards will soon all be on the table.
In addition, the Court granted Meta’s request for a rebuttal expert report from Dr. Frederiksen-Cross. As we reported last week, Meta hopes to rebut points made regarding its torrenting of plaintiffs’ copyrighted works.
2. The New York Times v. Microsoft & OpenAI
Background: This is perhaps the single 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 another brought by the Daily News and other publications. The judge assigned to the consolidated cases i Judge Sidney Stein.
Current Status: The Court rules on defendants’ Motion to Dismiss. We don’t have a full opinion yet, but following the parties’ January 14th oral arguments, the Court just issued its ruling as to defendants’ Motion to Dismiss. The Court denied defendants’ motions to dismiss plaintiffs’ core copyright infringement claims, contributory infringement claims, and state and federal trademark dilution claims. The Court did, however, dismiss plaintiffs’ common law unfair competition by misappropriation claims as well as most of plaintiffs’ DMCA claims, though it maintained the Daily News and CIR’s 1202(b)(1) claims against OpenAI. The Court indicated that it would issue an opinion explaining the basis for this ruling in the near future. All in all, we see this most recent decision to be an overall “win” for plaintiffs. Bottom line: their core copyright infringement claims are moving forward.
Stay tuned for the update as soon as we get the full opinion.
3. 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: Court denies preliminary injunction and direct infringement claims. This week the Court ruled against plaintiffs’ request for a preliminary injunction, finding that plaintiffs had failed to establish irreparable harm. The Court was unconvinced by plaintiffs’ arguments that they were being caused reputational harm or suffering diminished value in their works or ability to negotiate licensing agreements. We take this decision as a recognition of the emerging market for generative AI training licenses. To be clear, failure to prove irreparable harm does not mean there is no harm, only that you can fix the harm by paying money. We have never believed that a court would force generative AI companies to shut down through preliminary injunction — the question has been whether they will have to pay. After the scores of licensing deals we have seen, and the Thomson Reuters v. Ross decision rejecting “fair use” as a matter of lw, we think the question is not so much whether GenAI companies will have to pay for training data, but how much.
Additionally, the Court ruled for defendants and granted their motion to dismiss plaintiffs’ secondary copyright infringement claims, as well as their claims related to removal of copyright management information. The Court found that plaintiffs failed to allege any instances of third-party infringement, only that their own investigators were able to induce the generation of copies of their lyrics. The Court also found that plaintiffs had failed to plead removal of CMI, noting that they had alleged that some outputs did contain attribution for lyrics which undermined their claims. However, the Court granted plaintiffs leave to amend, so it is possible that we have not seen the last of these claims.
Overall, as Peter Csathy points out in his newsletter, generative AI companies may consider this most recent ruling to be a big victory. But we instead see it as a quintessential “winning the battle, but losing the war” scenario the Courts seems to be inching closer to its “fair use” decision — which we expect to go in Universal Music Group’s favor.
4. Thomson Reuters v. Ross Intelligence: The “Fair Use” Shot Heard Around The Litigation World
On February 11th, in a case that comes tantalizingly close to deciding the issue of “fair use” in generative AI model training (with many taking the position that now that issue is firmly decided, as laid out below), Circuit Judge Bibas of the District of Delaware ruled that the “fair use” doctrine does not protect the use of West Headnotes in determining what to display as a result of a user query. Thomson Reuters v. Ross Intelligence involves an AI search tool made by the now-defunct Ross Intelligence (“Ross”). Ross’ tool accepted user queries on legal questions and responded with relevant case law. To determine what cases to provide in response to user queries, Ross compared the user queries to “Bulk Memos” from LegalEase, which were written using Westlaw Headnotes. Boiling it down, when a user’s query contained language similar to a West Headnote, Ross’ tool would respond by providing the cases that the West Headnote related to.
While Ross’s tool was not a modern generative AI model (it didn’t use a transformer model or perform next-token prediction to generate unique output for queries), an important similarity exists between Ross’ use of West Headnotes and the way generative AI models train on other copyrighted materials. Ross’ tool did not actually reproduce the West Headnotes in response to a user’s query. Ross used the Headnotes just for “training,” that is, to determine what to produce in response to a user's query. It is easy to draw an analogy between Ross’ use of West Headnotes to determine what cases are responsive to a user’s query, and OpenAI’s use of The New York Times articles to determine how to respond to a question about politics (see the separate The New York Times case against OpenAI summary below). The technology is different, but the themes are similar.
In that context, the Court’s grant of summary judgment against Ross’ fair-use defense — as a matter of law — provides insight into how another court might rule in a generative AI training case. “Fair use” is based on four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the potential impact on the market. The Thompson Reuters Court found that factors two and three favored Ross because of the low degree of creativity involved in carving out headnotes from cases, as well as the fact that Ross did not output the headnotes themselves but rather judicial opinions. However, factor one favored Thomson Reuters because of the commercial nature of Ross’ product and the fact that it was not transformative. The Court noted that Ross’ product was not generative AI, suggesting that a generative AI product could be more transformative than the simpler lexical searching tool that Ross made. Finally, the fourth factor and “undoubtedly the single most important element of fair use” favored Thomson Reuters because of the potential impact on Thomson Reuters’ ability to sell its own data for use in training AI if Ross’ use was permissible. On balance, the Court flatly rejected Ross’ “fair use” defense as a matter of law. That question will not go to a jury.
AI developers will undoubtedly focus on the issue of transformative-use in generative AI fair-use battles to come, but the “commercial use” and “market impact” factors will continue to favor content owners over generative AI companies. We have already seen several massive licensing deals where companies like Reuters and Reddit are profiting from the sale of their own data. If courts continue to favor the “market impact” factor as we see in Thompson Reuters, then OpenAI, Sonos, and the like will have an uphill battle to prove their “fair use” defense.
5. In re OpenAI ChatGPT Litigation
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 we reported last week, OpenAI filed its opposition to plaintiffs’ motion for leave to amend their complaint, filed March 4th. According to OpenAI, plaintiffs’ amendment would broaden the scope of the class which brought the suit against them, introduce eleven new claims, and add Microsoft as a defendant. OpenAI argues that to allow such an amendment at this stage of litigation would prejudice them and reintroduce claims previously dismissed by the Court.
Plaintiffs have also continued to push back against their recent discovery losses, in which they were denied discovery from Reuters and Microsoft. It remains to be seen whether they will gain access to any of this information.
6. Brave Software, Inc. v. News Corp., et al.
Current Status: No major substantive developments this past week. No new developments have taken place yet in this newly filed case but check back here to find out when they do.
As reported last week: Brave Software filed an action for declaratory judgment of no copyright infringement, copyright misuse, and no breach of contract against News Corp, Dow Jones, and NYP Holdings. Brave distributes the open-source Brave browser, which blocks ads and trackers while displaying its own limited set of ads as a source of revenue for the company. Brave Software also developed Brave Search, which exited beta in mid-2022 and which serves as the default search engine in the Brave browser. Brave Search is also significant because it is the search engine which certain AI chatbots such as Perplexity, Mistral, and others make use of. Brave filed its declaratory judgment action following the receipt of cease-and-desist letters from the named defendants.
The allegations are that Brave, by indexing defendants’ websites in order to enervate its Brave Search engine, infringed on defendants’ copyrights and breached their terms of service. In its complaint, Brave characterized these allegations as baseless bullying intended to prevent new entrants to the sectors already dominated by Big Tech. Brave maintains that its indexing is well-established fair use and non-infringing. Although it does not directly implicate LLMs, this case’s relation to AI cannot be denied. Not only is Brave Search used by several AI chatbots, the allegations at issue also track the logic of copyright infringement theories alleged by artists and authors against AI companies. As always, we will keep you updated here each week as the case develops.
7. 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 its answer on August 1st, 2024, Suno argued that its 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. As we reported several weeks ago, plaintiff and defendant have both noted their inability to resolve their disagreements over discovery matters. Though there haven’t been many major developments this past week, the parties did file a joint proposed order regarding training data inspection.
8. UMG Recordings v. Uncharted Labs (d/b/a Udio)
Background: This case 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, 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: Plaintiffs’ request for time to amend denied. Last week we reported on plaintiffs’ request for more time to amend their complaint. On March 25th, defendants filed their opposition to such an extension of time, accusing plaintiffs of trying to further complicate an already complex litigation by adding nearly 2,000 additional works. That same day, the Court denied plaintiffs’ motion, and in a hand-written order (that we’re 99% sure we’re reading correctly), held that plaintiffs could seek leave to file an amended complaint at any convenient time.
9. 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: Perplexity submits its reply supporting its motion to dismiss. Two weeks ago we reported that plaintiffs submitted their memorandum of law opposing defendants’ motion to dismiss or transfer the case. This week, Perplexity submitted its reply arguing that the Court lacked personal jurisdiction and, thus, the case should be dismissed due to insufficient contacts with New York. According to Perplexity, it had no more than a handful of technical staff in New York and as such its business activities were insufficient to give rise to personal jurisdiction. Additionally, it argued that personal jurisdiction was unsupported because its service was available nationally, with no particular connection to New York.
In the alternative, Perplexity argued that the case should be transferred to the Northern District of California, where Perplexity’s primary business operations and development are located. Those familiar with IP litigation may recognize the Northern District of California as a business-friendly jurisdiction for technology disputes. It seems likely that Perplexity sees N.D. Cal. as a much friendlier venue.
10. 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 substantive developments this past week. Last week we reported that the Court had ruled on plaintiffs’ request for 60 depositions, granting them only 30. This week, however, brought no new discovery developments.
11. 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 CMI from their articles, which they argue is a violation of the DMCA.
Current Status: No major substantive developments this past week. As we reported two months ago month, Raw Story Media submitted its reply in support of its request for leave to file an amended complaint. They assert that the removal of copyright management information (CMI) by OpenAI constitutes copyright infringement, which is a recognized harm under Article III. Additionally, they claim that OpenAI unlawfully profited from this removal, which is analogous to unjust enrichment, a common-law injury. If the Court finds that standing requires dissemination, Raw Story Media requests jurisdictional discovery to determine if OpenAI disseminated their articles. With their earlier complaint dismissed in its entirety for lack of standing, this is Raw Story Media’s last chance in this lawsuit.
Last week, plaintiffs submitted a notice of authority referencing the order in New York Times v. Microsoft, which we discuss above. Plaintiffs stated that the order was supportive of their pending motion for leave to amend.
12. 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: Nine weeks of nothing new. The plaintiffs continue to languish while the Court considers Stability AI’s jurisdictional arguments. Stability AI refuses to participate in discovery until the Court rules, and it is unclear when that decision may come. Until then, we will continue to note the status.
13. The Intercept Media v. OpenAI
Background: The Intercept Media, a news publisher represented by the same firm that represents the plaintiffs in the Raw Story Media litigation below, filed suit against OpenAI and Microsoft on February 28th, 2024 in the Southern District of New York, the same day Raw Story Media commenced their suit. Like the Raw Story allegations, The Intercept alleged that their articles were used to train ChatGPT and brought claims for the removal of the copyright management information (“CMI”) from the articles.
Current Status: No major substantive developments this past week. Nothing new since OpenAI filed its answer to The Intercept’s First Amended Complaint on December 6th. OpenAI presented 10 affirmative defenses, including fair use, several equitable doctrines, statute of limitations, lack of mitigation, and failure to state a claim.
14. 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, 2024 (refer to the activity discussed above).
15. 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.
16. INTERNATIONAL CASE TRACKED: Canadian News Media Companies v. OpenAI
In a case similar to The New York Times v. OpenAI, Canada’s major news organizations sued OpenAI for copyright infringement on November 28th. Filed in Ontario’s Superior Court of Justice, the news organizations are seeking billions of dollars in compensation for the “ongoing, deliberate, and unauthorized misappropriation of the Plaintiffs’ valuable news media works.” This is the first case of its kind in Canada, and presents a new front against OpenAI, after one was opened in Germany in Gema v. OpenAI as reported last week.
See https://litigate.com/assets/uploads/Canadian-News-Media-Companies-v-OpenAI.pdf
17. INTERNATIONAL CASE TRACKED: GEMA v. OpenAI
GEMA, a German association representing more than 95,000 composers, lyricists and publishers, filed suit in German court accusing OpenAI of reproducing their members’ song lyrics without a license. Gema claims this is a test case to clarify the law in Germany, and that it aims to establish a license model that would compensate music creators whose works are used to train AI models. The details of German copyright law are a bit beyond the scope of this blog, but we did think it noteworthy that the litigation trend is catching on worldwide. While we don’t plan to track this case closely, we will watch for any momentous developments.