1. Sony v. Uncharted Labs (d/b/a Udio)
Current Status: Defendants’ Motion to Dismiss denied, for now. We’ve been following the YouTube “rolling cypher” issue for some time now and the court has, for now, punted on the issue to let the factual record develop. We expect we’ll need to get through expert reports before this issue comes up again.
As background, Plaintiffs accused Udio of scraping copyrighted content from streaming platforms such as YouTube, a process called “stream ripping.” Part of their allegation is that YouTube employs “access controls” such as a rolling cipher to make such scraping more difficult and thus, that Defendants violated § 1201’s prohibition on circumventing technological measures in order to obtain training data by stream ripping.
The crucial issue is that § 1201 differentiates between “access controls,” and “copy controls.” Circumventing access controls constitutes a violation of § 1201(a)(1) but circumventing a copy control does not. This was the basis of Defendants’ motion to dismiss. They argued that YouTube’s rolling cipher was a copy control but not an access control as required by the statute. Plaintiffs maintain that it is both an access and copy control.
Courts have previously held that circumventing encryption on DVDs constitutes a violation of § 1201(a)(1) despite licensed players being able to view video on those DVDs. Plaintiffs argue that this law supports their position while Defendants argue that YouTube works differently from DVDs and that a different result should follow. The Court denied the motion because, at this point, there is an insufficient factual record to determine how YouTube’s controls work. However, the Court noted that Defendants can renew their motion once the record is developed. We expect to see this issue raised again after expert discovery concludes.
2. Richard Kadrey, et al. v. Meta
Current Status: Meta files its Answer to Plaintiffs’ Fourth Amended Complaint. As discussed in the past weeks, Plaintiffs were given permission to file an amended complaint added contributory infringement claims based on Meta’s torrenting activities. This week, Meta filed its answer to that Amended Complaint. The Answer itself is unremarkable—Meta admits to having torrented books without permission but takes issue with the legal conclusions that Plaintiffs say should follow. Given the developed state of this case, it does not appear that many facts remain in dispute. The central question whether Meta’s copying was fair use?
3. Concord Music Group, et al. v. Anthropic
Current Status: Anthropic moves to exclude testimony of Plaintiffs’ expert. This week, Anthropic filed a motion asking the Court to exclude testimony from Plaintiffs’ expert, Michael Smith, regarding harm caused to Plaintiffs by generative AI. Anthropic’s argument is that these opinions are speculative and poorly supported by literature regarding consumer preferences. Anthropic also accuses Smith of contradicting public statements by Plaintiffs themselves by UMG (the parent company of two plaintiffs) in which investors were told that UMG’s revenue was not harmed by “AI royalty dilution” and that AI would have an “overwhelmingly net positive” impact on UMG’s business.
Additionally, this week, Judge Lee related another case to this one, BMG Rights Mgmt (US) v. Anthropic. Given the late stage of litigation that this case is in, it seems likely that BMG will be sidelined pending a resolution of the parties’ summary judgment motions.
4. Reddit v. Anthropic
Current Status: Picking back up in state court. Following several months of dispute, this case has been remanded to state court in San Francisco County. Not much has happened yet in state court, although the Court set a case management conference for May 20th. Additionally, the parties jointly filed a petition to designate the case as “complex” under the local rules.
5. SDNY Multi-District Litigation
Current Status: No major substantive developments this past week. With the close of fact discovery, the docket in the multi-district litigation has slowed considerably, though a small number of discovery issues still remain unresolved. Last week, Magistrate Judge Wang ordered that an in-person Status Conference would be held on May 12, presumably to resolve these remaining issues. The Order also set a briefing schedule ahead of the conference, with opening briefs due April 29, opposition briefs due May 4, and a joint dispute chart from the parties due on May 5.
6. UMG Recordings v. Suno
Current Status: No major substantive developments this past week. This case mirrors Sony v. Uncharted Labs in many respects, including claims of circumvention of technological measures based on YouTube’s rolling cipher. As such, Plaintiffs unsurprisingly submitted a notice of supplemental authority regarding the denied motion to dismiss in Uncharted Labs. The docket was otherwise quiet this week.
7. Sarah Andersen et al. v. Stability AI, et al.
Current Status: No major substantive developments this past week. Last week we reported that, with the close of fact discovery fast-approaching, the parties still had many unresolved issues. One issue was Defendants’ request for additional time to depose Plaintiffs Andersen, Brom, Kaye, and Ortiz. Other issues, including inspection of source code, appear to be moving along on their own as the parties meet and confer behind the scenes.
8. Disney, Universal, and Warner Bros. v. Midjourney
Current Status: No major substantive developments this past week. As discussed recently, Midjourney filed a motion seeking documents related to the development of Disney’s own Generative AI development and its in-house use of such technologies. In response, Disney argued that in-house development and use of AI tools was irrelevant to any claim or defense in the case, accusing Midjourney of attempting to distract from its own unlawful behavior. This week saw no additional development of these discovery disputes, but the Court set an informal discovery videoconference for May 12 at which they will likely be addressed.
9. Hendrix v. Apple
Current Status: No major substantive developments this past week. Early in February, the parties filed an amended consolidated complaint which included additional factual allegations regarding the ways in which Apple integrates its models into its products and the manner in which these models have impaired the market for Plaintiffs’ works. Two weeks ago, Apple filed an answer in which it admitted that its models were trained on copyrighted works but which largely disclaimed Plaintiffs’ allegations as conclusory or simply reciting text from sources which speak for themselves. This week, however, saw no notable filings on the docket.
10. Disney et al. v. MiniMax & Hailuo AI
Current Status: No major substantive developments this past week. Last week, Defendants filed two motions to dismiss Disney’s claims. The first motion concerns MiniMax and Shanghai Xiyu Jizhi Technology (“SXJT”). According to the motion, MiniMax is not a legal entity at all (it is, apparently, a brand name) and thus a Court cannot exercise jurisdiction over it. With respect to SXJT, the motion argues that the Court does not have personal jurisdiction because SXJT is a Chinese company and has not directed any of its activities to the United States. Instead, according to the motion, any US contacts stem from Nanonoble.
The second motion concerns Nanonoble and argues failure to state a claim. Its first major argument is that Disney has not demonstrated that it has registered copyrights on its characters (as opposed to the works in which those characters appear) and, further, that Disney has failed to demonstrate that it even could copyright those characters under Ninth Circuit law. Second, the motion argues that any copying related to Disney’s direct infringement claim did not occur in the United States because the associated models are trained in China. Third, the motion argues that Disney’s secondary infringement claims should be dismissed because (among other reasons) their contributory infringement claims fail the Cox Communications, Inc. requirement that a service be tailored to infringement or that a Defendant affirmatively induced infringement. With respect to induced infringement, Nanonoble argues that Disney failed to plausibly allege that they actively encouraged any users to infringe Disney’s works.