OpenAI Gets Copyright Suit Dismissed, First of Many?

On November 7, U.S. District Judge Colleen McMahon dismissed the copyright lawsuit brought by Raw Story Media Inc. (“Raw Story”) and Alternet Media Inc. (“Alternet”) against OpenAI without prejudice. Numerous cases have been brought against OpenAI or similar generative artificial intelligence (“AI”) entities, based on claims such as trademark law violations, copyright infringement, and violations of the Digital Millennium Copyright Act (“DMCA”). As this verdict is handed down, we see an early look at how some of these cases may be handled.

In the case at hand, Raw Story and Alternet claimed that, “ChatGPT is trained on large amounts of text, known as ‘training sets’ and [that] [t]hese training sets range from collections of links posted on the website Reddit to scrape of most of the internet.” Moreover, they claimed that, “‘thousands’ of [Raw Story and Alternet’s] copyrighted works of journalism were caught in this ‘scrape,” stripped of their author, title, and copyright information, and input into at least three of OpenAI’s training sets (WebText, WebText2, and Common Crawl).” Based on the foregoing, Raw Story and Alternet alleged that OpenAI’s removal of copyright management information (“CMI”) from its works – prior to its inclusion in OpenAI’s training sets – is a violation of Section 1202(b)(i) of the DMCA.

Section 1202(b)(i) of the DMCA provides that:

No person shall, without the authority of the copyright owner or the law,… intentionally remove or alter any [CMI]…knowing, or with respect to civil remedies under section 1203, having reasonable grounds to know that it will induce enable, facilitate or conceal an infringement of any right under this title.

17 U.S.C. § 1202(b) (emphasis added).

Judge McMahon held that Raw Story and Alternet lacked standing to bring a claim for violation of Section 1202(b)(i) of the DMCA, stating that, neither theory of harm alleged by Raw Story and Alternet established a “concrete injury-in-fact.” In furtherance, Judge McMahon identified that, “[t]he alleged injury for which Plaintiffs truly seek redress is not the exclusion of CMI from Defendants’ training sets, but rather Defendants’ use of Plaintiffs’ articles to develop ChatGPT without compensation to Plaintiffs.”

The remote risk of injury created by OpenAI’s scraping activities and ChatGPT’s output referenced by Judge McMahon may prove to be a difficult burden for news outlets to overcome. However, Raw Story and Alternet based its claims on an outdated model of ChatGPT, which Judge McMahon noted, and an amended pleading referencing the current model and additional evidence may prove to be more effective.

We will continue to monitor and provide updates on any significant developments.