U.S. District Judge Colleen McMahon entered an order tossing the suit brought by Raw Story and AlterNet, two news sites that claimed OpenAI violated the Digital Millennium Copyright Act by erasing author and copyright information from their articles that were used as training material for ChatGPT's large language model.
The problem with the damages claims, said Judge McMahon on Thursday, is that the DMCA is focused on the dissemination of work that has had its copyright information removed. Raw Story and AlterNet haven't explained how they were harmed if nobody ever saw ChatGPT's internal training models, held the judge.
"I am not convinced that the mere removal of identifying information from a copyrighted work — absent dissemination — has any historical or common-law analogue," she wrote. "Plaintiffs allege that their copyrighted works (absent copyright management information) were used to train an AI-software program and remain in ChatGPT's repository of text. But Plaintiffs have not alleged any actual adverse effects stemming from this alleged DMCA violation."
Judge McMahon similarly said Raw Story and AlterNet don't have standing to seek an injunction requiring OpenAI to remove its articles from ChatGPT's training sets, unswayed that there's a risk these documents will be used to reproduce and disseminate copyrighted works in the future.
"Plaintiffs allege that ChatGPT has been trained on a scrape of most of the internet, which includes massive amounts of information from innumerable sources on almost any given subject," wrote the judge. "Given the quantity of information contained in the repository, the likelihood that ChatGPT would output plagiarized content from one of plaintiffs' articles seems remote."
The judge was clear to differentiate Raw Story and AlterNet's DMCA claims from allegations of actual copyright infringement that a slew of other news outlets have filed. She said it "remains to be seen" whether those other legal theories can survive — "but that question is not before the court today."
Judge McMahon concluded that she'll consider allowing Raw Story and AlterNet to amend their complaint if they file a proper proposal, but noted she's "skeptical about plaintiffs' ability to allege a cognizable injury."
A lawyer for the news sites, Matt Topic of Loevy & Loevy, told Law360 on Thursday that his team does indeed plan to keep pursuing the lawsuit.
"We are certain we can address the concerns the court identified through an amended complaint and confident these kinds of DMCA claims are permitted under the Constitution," said Topic.
OpenAI's counsel did not immediately return a request for comment.
Thursday's decision preliminarily dismissed just one of the many copyright lawsuits that OpenAI is facing from journalism publishers. The Intercept, for example, still has a pending DMCA suit over the removal of its author information from ChatGPT training sets.
Other news organizations have sued OpenAI for copyright infringement, beginning with The New York Times' December 2023 complaint alleging OpenAI trained ChatGPT on its articles without a licensing agreement. Eight regional newspapers owned by private equity giant Alden Global Capital brought a similar infringement suit in April, followed by the Center for Investigative Reporting in June. Those cases are all still alive.
Raw Story and AlterNet are represented by Jonathan Loevy, Michael Kanovitz, Matthew Topic, Steven Art, Lauren Carbajal, Stephen Stich Match and Thomas Kayes of Loevy & Loevy.
OpenAI is represented by Joseph C. Gratz, Rose S. Lee, Andrew L. Perito, Vera Ranieri, Carolyn M. Homer, Eric Nikolaides and Emily C. Wood of Morrison & Foerster LLP; Joseph R. Wetzel, Andrew M. Gass, Sarang V. Damle, Allison L. Stillman, Elana Nightingale Dawson, Herman H. Yue, Michael A. David, Rachel Renee Blitzer, Luke A. Budiardjo and Yijun Zhong of Latham & Watkins LLP; and Robert A. Van Nest, R. James Slaughter, Paven Malhotra, Michelle Ybarra, Nicholas S. Goldberg, Thomas E. Gorman, Katie Lynn Joyce, Andrew S. Bruns, Andrew Dawson, Christopher S. Sun and Edward A. Bayley of Keker Van Nest & Peters LLP.
The case is Raw Story Media Inc. et al. v. OpenAI Inc. et al., case number 1:24-cv-01514, in the U.S. District Court for the Southern District of New York.
--Editing by Andrew Cohen.
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