1. SDNY Multi-District Litigation
Current Status: Discovery filings not over yet. Although discovery is supposed to be closed, a few straggler issues remain open. This weekend, several parties filed motions on these issues. Defendants have filed a motion to compel the New York Times to produce brand tracker information while Plaintiffs have filed motions to compel documents from Microsoft relating to their express licensing defenses and asking OpenAI to produce an additional 30(b)(6) witness.
2. Concord Music Group, et al. v. Anthropic
Current Status: More amicus briefs incoming. With both parties’ summary judgment motions in, more motions for leave to file amicus briefs in support of Anthropic have arrived on the docket. The briefs, if they are permitted, will come from (1) “copyright law professors,” (2) Chamber of Progress and Engine Advocacy, (3) The Electronic Frontier Foundation, and (4) The Computer and Communications Industry Association, AI Progress, Inc., and NetChoice, LLC.
Among other things, the amicus briefs claim that adopting a market-dilution argument to find no fair use for GAI training would violate the first Amendment. The argument is twofold. First, the professors argue that—in the context of this case—dilution would discriminate based on content, i.e., song lyrics. They also argue that dilution would divide people into two categories: those who generate lyrics “the old-fashioned way” and (2) those who use an LLM to do it and claim that discriminating between the two is impermissible.
We struggle to see the merit in these arguments. There is no reason that dilution would discriminate on the kind of content, like song lyrics. The professors clearly knew this since they cited Kadrey, which relates to books, not song lyrics. Likewise, of course copyright divides people into two groups to accomplish its purpose (i.e., “those who actually made the artistic work” and “those who did not and so require a license to copy it”). We find it unlikely that a First Amendment-based restriction on how copyright can apply to AI would be consistent with existing copyright law.
3. Sarah Andersen et al. v. Stability AI, et al.
Current Status: Discovery extended, hearings set. With the end of fact discovery fast-approaching, Plaintiffs requested an extension. Last week, the Court granted the extension in part, putting the new discovery cutoff at July 1st and the cutoff for depositions at August 15th. DeviantArt also submitted a response to Plaintiffs’ request for the issuance of letters rogatory, claiming that the testimony that Plaintiffs are seeking was not sufficiently important to justify issuance. The Court has set a hearing on the issuance of letters rogatory for April 28th and a joint discovery status conference for May 14th.
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. Disney, Universal, and Warner Bros. v. Midjourney
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. The Court set an informal discovery videoconference for May 12th at which they will likely be addressed. This week saw no notable new filings.
6. Sony v. Uncharted Labs (d/b/a Udio)
Current Status: No major substantive developments this past week. Two weeks ago, the Court denied Defendants’ motion to dismiss based on the meaning of 17 U.S.C. § 1201, finding that the factual record was too incomplete to evaluate how YouTube’s rolling cipher works. This week included no notable new filings.
7. 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 submitted a notice of supplemental authority regarding the denied motion to dismiss in Uncharted Labs. Last week, Defendants submitted their own letter arguing that the Uncharted Labs decision was wrong because it allowed Plaintiffs’ claims to proceed despite finding that they had not adequately explained how the rolling cipher worked. It seems unlikely that the Suno court will dismiss the claim where the Uncharted Labs court allowed it, but check back soon to find out.
8. Richard Kadrey, et al. v. Meta
Current Status: No major substantive developments this past week. 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. Last week, Meta filed its answer to that Amended Complaint. Last week, Plaintiffs refiled unredacted versions of several past pleadings as ordered by the Court, including their briefing and letters related to their motion for leave to amend. The unredacted portions of these documents largely involve minor details of Meta’s torrenting activities which motivated Plaintiffs’ contributory infringement claim. This week included no notable new filings.
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. About a month 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. few weeks ago, 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.
This week, Disney filed opposition to Defendants’ motions, arguing that it had adequately plead secondary liability and that Defendants’ vague arguments regarding extraterritorial copying did not merit dismissal.