Context: Major AI providers such as OpenAI and Google DeepMind are targets of numerous copyright infringement lawsuits (for a battlemap, see this March 12, 2024 ai fray article). The highest-profile case is, arguably, New York Times v. Microsoft & OpenAI (March 17, 2024 ai fray article).
What’s new: Today, eight U.S. newspapers sued Microsoft and OpenAI in the same district where the NYT case is pending: the Southern District of New York. The plaintiffs are the MediaNews Group-owned Mercury News, Denver Post, Orange County Register and St. Paul Pioneer-Press; Tribune Publishing’s Chicago Tribune, Orlando Sentinel and South Florida Sun Sentinel; and the New York Daily News. All those papers presently belong to hedge fund Alden Global Capital (Wikipedia).
Direct impact: The case overlaps with the NYT action in so many ways that consolidation appears highly likely and may simply be part of the plaintiffs’ plan. Consolidation could cause some limited delay. It is unknown at this point whether the NYT considers the upside of having the support of additional publishers, using Susman Godfrey’s co-counsel in the NYT case, to outweigh the downside of potential delay and a logistically more complicated multi-plaintiff litigation. But presumably the NYT’s own lawyers talked to that client before taking on these new clients.
Wider ramifications: Besides seeking damages and injunctions (which may or may not happen), all those publishers may also be pursuing a political agenda. Should they lose in court, which they very well may given the strength of the fair use defense, their end game may be to ask Congress for legislative intervention.
Here’s the new complaint that was brought by IP litigation firm Rothwell Figg on behalf of the eight above-mentioned newspapers:
There’s an overlap not only with a view to counsel (though Susman Godfrey is involved only in the NYT lawsuit and not this one, possibly due to a conflict as Susman sues a lot of companies, possibly including one or more of the new plaintiffs). Structurally, the first even claims are the same as in the NYT case: direct copyright infringement, vicarious copyright infringement, contributory copyright infringement, removal of copyright management information (Digital Millennium Copyright Act (DMCA)), unfair competition by misappropriation, trademark dilution.
Then there’s a Count VIII: Dilution and Injury to Business Reputation under New York state law. That one relates to hallucination by ChatGPT like the trademark dilution claim, so it’s a state law mirror claim to the federal law claim over trademarks. Sometimes state laws create an additional opportunity. A good example is the Epic Games v. Apple antitrust case, in which all of Epic’s federal antitrust claims under the Sherman Act failed, and even Epic’s state law antitrust claims, but state unfair competition law resulted in the grant of an injunction that is now being enforced.
It could be that the NYT will also throw in a state law claim over dilution and industry to business reputation.
Some class-action lawyers from California wanted to intervene in the NYT case, which the district court denied. They’ve recently appealed that decision to the Second Circuit. But their case was filed in California, and the overlaps are nowhere near as strong as between today’s lawsuit by eight newspapers.
As to the merits, there is a motion to dismiss awaiting adjudication in the NYT case, and it could streamline the case as well as limit the scope of discovery. It cannot at any rate dispose of the entire case, but the defendants have indicated they hope to achieve the rejection of the complaint at the summary judgment stage. Presumably the eight publishers who sued today would voluntarily drop any claims that fail to survive the motion to dismiss in the NYT case. Fair use is typically decided on summary judgment, and that’s going to be the single most important defense in those AI copyright cases.