1. Richard Kadrey, et al. v. Meta
Current Status: No major substantive developments this past week. This past week was light on docket updates, but the parties did file another joint case management statement in which they enumerated remaining issues in the case—namely whether Meta infringes on account of its piracy of training data. There are a few big deadlines on the horizon: Opening expert reports are due on September 18th and summary judgment briefing will begin on December 11th.
2. SDNY Multi-District Litigation
Current Status: The Times drops its contributory infringement claims against OpenAI. As discussed two weeks ago, OpenAI filed a motion for judgment on the pleadings regarding the contributory infringement claims brought against them. The motion argued that The New York Times’ contributory infringement claims should be dismissed under the recent Cox Communications, Inc. v. Sony Music Entertainment decision.
This week, the Times filed its response, in which it dropped its contributory infringement claims against OpenAI, though it kept its contributory infringement claims against Microsoft in play. The Times argues that Microsoft has met the new standard under Cox because it intentionally induced OpenAI’s copyright infringement and provided OpenAI with tools tailored to infringing. According to The Times: “Microsoft controls and directs the supercomputing platform used to store, process, and reproduce the training datasets containing millions of Times Works, the GPT models, and OpenAI’s ChatGPT offerings.” This seems like an unsurprising development given the way that Microsoft has positioned itself as a benefactor of OpenAI for the past few years of generative AI development. It remains to be seen whether this will prove persuasive to the factfinders in this case.
3. Disney et al. v. MiniMax & Hailuo AI
Current Status: Plaintiffs submit their Answer to Defendants’ indemnification counterclaims. This week, Plaintiffs filed their answer to counterclaims raised by the Defendants. The counterclaims assert that the Terms of Use for their GAI models became binding on Disney when Disney performed initial research ahead of filing suit. The Defendants claim that therefore, Disney has agreed to indemnify Defendants or has otherwise breached their contract. This is a unique issue not yet seen in other copyright cases, so check back soon to see if the Court addresses the argument in the near term.
4. Elsevier et al. v. Meta
Current Status: Meta moves to transfer the case to the Northern District of California. This case is still a new addition to the herd of copyright disputes ongoing against various LLM companies. It has been filed in the Southern District of New York, a forum which most notably is overseeing the MDL involving numerous Plaintiff publishers alleging copyright infringement. Previously, we speculated that this case would eventually be folded into the MDL to await summary judgment regarding fair use.
Meta appears to have different plans, however. Late last week, the Defendant moved to transfer the case to the Northern District of California, arguing that the case should be lumped in with Kadrey v. Meta and the other NDCA cases against Meta, all of which have been related to Kadrey. The motion was joined by Mark Zuckerberg, who was sued individually alongside Meta.
5. Sony v. Uncharted Labs (d/b/a Udio)
Current Status: No major substantive developments this past week. 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. 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 then replied 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. This week saw no notable new additions to the docket.
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 Defendants’ filing of a similar motion to amend their complaint to add additional works. Suno’s response was 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. This week saw no notable new additions to the docket.
7. Concord Music Group, et al. v. Anthropic
Current Status: No major substantive developments this past week. This past week included no notable new filings. About a month 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.
8. Sarah Andersen et al. v. Stability AI, et al.
Current Status: No major substantive developments this past week. Nothing particularly notable on the docket this week. The only significant filing was joint letter briefing in which Plaintiffs and Defendant Stability AI continue to fight over the production of certain portions of Stability’s source code.
Last week, the Court extended the schedule for near-term discovery issues by about a month and for events including and following expert discovery by two months. Additionally, the Court ordered the parties to continue meeting and conferring regarding deposition witnesses. Also last week, the Court ruled in favor of Defendants, who have been attempting to obtain financial records regarding the works in dispute for some time now. The Court noted that Defendants were entitled to begin investigating the works, especially because Plaintiffs are expected to argue that LLMs have materially damaged the market for their works.
9. Reddit v. Anthropic
Current Status: No major substantive developments this past week. Last week, Anthropic filed a motion to dismiss Reddit’s claims in state court. The motion argued that Reddit’s breach of contract claims are preempted because they address the same harms that the Copyright Act seeks to protect against. Further, Anthropic questions whether Reddit’s browsewrap agreement is sufficient to form contractual obligations in the first place. Overall, these arguments are very similar to the ones that Anthropic tried and failed when attempting to maintain the case’s removal to federal court and so it is questionable whether they will see any more success this time around.
10. Disney, Universal, and Warner Bros. v. Midjourney
Current Status: No major substantive developments this past week. As discussed recently, Midjourney had filed a motion seeking documents related to the development of Disney’s own Generative AI development and its in-house use of such technologies. Last week, the Court issued an order regarding that motion in which it largely rejected Midjourney’s reasoning, finding that Disney’s use of AI was irrelevant to the fair use factors. Nonetheless, the Court did recognize that this information could be relevant to issues related to common industry practices and to Midjourney’s unclean hands defense. As such, the Court granted limited access to documents relating to Disney’s use and training of AI systems. This week included no notable new filings on the docket.
11. 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. Two weeks ago, 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.