James Bernard MacKinnon, the author of three books that Meta allegedly used to train its AI models, has commenced the class action on behalf of Canadian residents whose copyrighted materials were used without their licence or permission by Meta to train its large language models.
The lawsuit filed in the B.C. Supreme Court on April 16 seeks aggregate and punitive damages from Meta, including for the loss of control of the copyrighted work and the loss of licensing revenue.
Counsel for the plaintiff, Reidar Mogerman of CFM Lawyers LLP said that the claim would have implications for how copyright law in Canada operates in the face of the new challenges posed by AI.
“It will test whether a company can claim ‘fair use’ when they unlawfully obtain written works and use those works in a way Canadian authors never contemplated or intended,” he told Law360 Canada in an email.
Meta did not immediately respond to a request for comment.
MacKinnon has alleged that Meta downloaded millions of pirated books, including those authored by the plaintiff and others, that are protected under Canadian copyright law to train its AI models.
The social media giant is already facing a similar lawsuit in the United States and has argued in those proceedings that the use of copyrighted works for AI training qualifies as “fair use” under U.S. copyright law.
The lawsuit commenced in B.C. states that Meta chose to obtain data sets online that it knew contained unlicensed copyright material, instead of licensing books for this purpose or relying on books in the public domain.
“It made no effort to pay the owners of this copyright to obtain or use their works,” the lawsuit alleges.
MacKinnon has alleged that Meta decided to use copyrighted books to train its LLMs because it believed doing so would give it an advantage over its competition.
The lawsuit alleges that Meta had, in March and April 2023, pursued licensing deals with publishers of copyrighted books but later changed course and decided to continue using pirated books to train its Al models.
“This directive to stop licensing was known of and approved by the highest levels within Meta, including by Mark Zuckerberg, Meta’s founder, chairman, chief executive officer and controlling shareholder,” the notice of civil claim reads.
The lawsuit states that Meta monetizes its LLMs directly through licensing, and indirectly through their use to increase engagement on its platforms Facebook, WhatsApp, Messenger and Instagram, which increases the value of advertising on those applications and increases Meta’s revenue.
The plaintiff has also alleged that Meta used software to alter or remove rights management information and copyright management information in the copyrighted works.
According to the lawsuit, when Meta unlawfully acquired copyrighted material through a bit torrent platform, which functions through peer-to-peer file sharing, Meta also distributed copyrighted material to other users of the torrent system.
The lawsuit notes that the plaintiff and class members lost the opportunity to choose to license their copyright in the copyrighted works to Meta, as well as the opportunity to choose not to contribute to the development of the Meta LLMs, “which pose a threat to people who do creative work.”
The plaintiff has also requested an injunction restraining Meta from making available, in British Columbia, any Meta large language model that is built from or incorporates material infringing the copyrights of the plaintiff or any class member.
Mogerman said that the class action was being brought to preserve the right of Canadian authors to control what use is made of their copyrighted works.
“The action aims to protect an author’s ability to choose whether they want their works contributing to a technology that poses a significant threat to the livelihood of people who write for a living,” he said.
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