Here is our latest review and assessment of major AI-related disputes in the media and entertainment sectors.
Our AI Litigation Tracker is prepared by McKool Smith principal Avery Williams.
1. Richard Kadrey, et al. v. Meta
Current Status: Plaintiffs move to certify summary judgment issues for interlocutory appeal. Close to a year ago, Judge Chhabria ruled in favor of Meta during partial summary judgment regarding whether Meta training its LLMs was fair use. This week, the Kadrey plaintiffs have asked the district court to certify issues raised on summary judgment for interlocutory appeal to the Ninth Circuit. Plaintiffs argue that interlocutory appeal is appropriate because:
- Whether acquisition-by-piracy can be excused by an “ultimate use” that is fair use is an open question.
- There is a need to determine how differences between the Bartz v. Anthropic and Kadrey v. Meta summary judgment determinations should be resolved.
- Because resolution of these questions will materially advance the Kadrey case as well as related litigation against Meta.
- Because a Ninth Circuit decision will promote clarity for both copyright holders and members of the “AI industry.”
Though a bit late, this motion has enormous implications. Kadrey and Bartz both reached the same conclusion regarding fair use but approached the problem very differently, leaving the ultimate question of fair use fractured across district courts within the Northern District of California. Whether the Ninth Circuit will hear this issue any time soon is anyone’s guess. Given the extraordinary visibility of this issue on a global stage, we think there is the possibility of it being fast tracked.
2. SDNY Multi-District Litigation
Current Status: Cox v. Sony rears its head in OpenAI’s motion for judgment on the pleadings. This week, OpenAI filed a motion for judgment on the pleadings regarding the contributory infringement claims brought against them. The motion is based on the recent Cox Communications, Inc. v. Sony Music Entertainment decision by the Supreme Court and argues that contributory copyright infringement has been foreclosed by the decision.
In effect, OpenAI argues that while contributory infringement previously applied where a party had knowledge of third party infringement. The Supreme Court ruled that mere knowledge by an ISP that their customers were using the Internet to commit copyright infringement was not enough to create contributory infringement. Instead the provider is liable only if it intended that the service be used for infringement. One way of showing the needed intent is if the service is “tailored to infringement.” OpenAI arguest that the Defendants cannot show tailoring and that the claims should be dismissed.
3. Sony v. Uncharted Labs (d/b/a Udio)
Current Status: Plaintiffs submit their reply in support of their motion to amend their Complaint. Late last month, Plaintiffs filed a motion to amend their complaint by adding a number of additional copyrighted works which they allege have been infringed. last week, Udio filed its opposition, accusing Plaintiffs of initially asserting infringement of “representative works” only to later add additional works at the close of fact discovery. Plaintiffs filed their reply this week, responding that any delay in updated their list of asserted works came down to the necessity of a forensic review of Defendants’ training data to identify infringed works in the first instance.
4. UMG Recordings v. Suno
Current Status: Plaintiffs submit their reply in support of their motion to amend their Complaint. This case mirrors Sony v. Uncharted Labs in many respects, including Defendants’ filing of a similar motion to amend their complaint to add additional works. Suno’s response is near identical to that filed in the Udio case and discussed above. Likewise, UMG Recordings submitted a Reply that mirrored the Reply in Sony v. Uncharted Labs.
5. Elsevier et al. v. Meta
Current Status: Recently filed. This new addition to the tracker was filed just last month by Plaintiffs Elsevier, Hachette, McGraw Hill, and other publishers of academic articles and textbooks against Meta. The cause of action extends from the same facts as Kadrey: that Meta engaged in the systematic torrenting of copyrighted works in order to train its models and should therefore pay compensation. Although the case is filed in the Southern District of New York, it appears to track the facts and issues raised in Kadrey v. Meta closely. Notably, the Complaint places arguments that address fair use front and center, alleging that Meta has “displace[d] legitimate sales,” “usurp[ed] the licensing market,” and “generate[s] outputs that substitute for copyrighted works.”
6. Concord Music Group, et al. v. Anthropic
Current Status: No major substantive developments this past week. Although this past week included no notable new filings, three weeks ago, Plaintiffs filed their Second Amended Complaint in the case, in which they removed their secondary infringement claims based on premised on contributory and vicarious liability.
This decision followed a meet and confer last month in which Plaintiffs informed Anthropic that they did not intend to proceed on their secondary infringement claims. The meet and confer evidently occurred the night before Anthropic’s deadline to file its summary judgment briefing, as Anthropic notes in a footnote in its brief, and appears to have been unexpected. Concord does not directly state why it chose to dismiss these claims, but it seems likely that the decision is related to the Cox Communications, Inc. decision, in which the Supreme Court ruled that to show secondary copyright infringement, a service provider must either actively induce infringement or have specifically tailored the service to infringement. Last week, the Court issued an order mooting Anthropic’s motion for relief regarding the magistrate’s order that denied them access to certain investigative prompts that Plaintiffs used to support their secondary liability theories.
7. Sarah Andersen et al. v. Stability AI, et al.
Current Status: No major substantive developments this past week. For the past several weeks, most docket entries in this matter have involved minor discovery disputes between Plaintiffs and the various Defendant entities. This week involved no notable new docket entries, though the Court recently extended deadlines to file briefing regarding source code and interrogatory responses, indicating that further discovery disputes are likely to emerge.
8. Reddit v. Anthropic
Current Status: No major substantive developments this past week. 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 July 22nd (continued from May 20th). Additionally, the parties jointly filed a petition to designate the case as “complex” under the local rules.
9. 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 past week involved no notable new filings on the docket, though it appears that Disney has begun pursuing discovery of training source code.
10. Hendrix v. Apple
Current Status: No major substantive developments this past week. This case has seen little movement since Plaintiffs filed their consolidated complaint followed by Apple filing their answer. Last week, the Court entered a Common Benefit Order providing instructions for how time should be entered and split across parties when work undertaken by attorneys benefits all parties. This week saw no notable new developments on the docket.
11. Disney et al. v. MiniMax & Hailuo AI
Current Status: No major substantive developments this past week. Last week, following their failure to dismiss Disney’s claims outright, Defendants filed their Answer to Disney’s complaint this week. The Answer raises a number of affirmative defenses, including lack of personal jurisdiction, invalid or insufficient registration, and unclean hands. Unsurprisingly, Minimax also asserts that—to the extent that the Court has jurisdiction and finds valid copyrights—their infringement constitutes fair use. This week saw no new filings on the docket.