Yet another group of authors has filed class action copyright infringement lawsuits against artificial intelligence pioneers Open AI and Meta, claiming the companies’ AI services used unauthorized copies of their books to train their AI models, including copies that were allegedly scraped from notorious pirate sites. The plaintiffs in the new suits, filed last week in the Northern District of California, include Michael Chabon, David Henry Hwang, Matthew Klam, Rachel Louise Snyder, and Ayelet Waldman.
“On information and belief, the reason ChatGPT can generate a writing in the style of a certain author or accurately summarize a certain copyrighted book and provide in-depth analysis of that book is because it was copied by OpenAI and copied and analyzed by the underlying GPT model as part of its training data,” the Open AI complaint states, adding that “at no point did Plaintiffs authorize OpenAI to download and copy their protected works.”
The claims in the new suits are nearly identical to claims in two previous author class actions filed over the summer by authors Paul Tremblay and Mona Awad (though Awad has since pulled out of the suit) and, in a separate suit, by Christopher Golden, Richard Kadrey, and comedian Sarah Silverman. It is common in class action law for numerous suits to be filed, which are then later consolidated.
Like the previous suits, the latest action seeks damages and injunctive relief, and puts forth six causes of action: direct copyright infringement; vicarious copyright infringement; a DMCA violation for the removal of copyright management information; violations of California’s unfair competition law; negligence; and unjust enrichment.
Meanwhile, in an August 28 filing, lawyers for Open AI moved to dismiss five of the six causes of action previously lodged by authors against Open AI, citing various deficiencies. “None of these causes of action states a viable claim for relief because none of the legal theories challenged here actually condemns the conduct alleged with respect to ChatGPT, the language models that power it, or the process used to create them,” Open AI attorneys argue. “It is important for these claims to be trimmed from the suit at the outset, so that these cases do not proceed to discovery and beyond with legally infirm theories of liability.” A preliminary schedule in that case would have motions heard on December 7.
While the suits have helped raise awareness of the threats to creators posed by AI, lawyers have told PW the copyright claims face long odds in court.
Even if the author suits get past the threshold issues associated with the alleged copying at issue and how AI training actually works—which is no sure thing—lawyers say there is ample case law to suggest fair use, including a recent case against plagiarism detector TurnItIn.com, which held that works could be ingested to create a database used to expose plagiarism by students; the landmark Kelly v. Arriba Soft case, which held that the reproduction and display of photos as thumbnails was fair use, and, in the publishing industry’s own backyard, the landmark Google Books case.
“I just don’t see how these cases have legs,” one copyright lawyer bluntly told PW in July, adding that there is just “too much established case law to support this kind of transformative use as a fair use.”
In July, federal judge William Orrick suggested he was leaning toward dismissing similar copyright claims filed against AI companies by artists. “Orrick’s reaction to the suit appears to confirm legal and technology analysts’ assessment that current copyright law is not equipped to address the potential injustices engendered by AI,” noted a report in ARTnews