Context: Class-action lawyers are suing Microsoft, its Github subsidiary and OpenAI in the name of developers whose source code is used to generate code snippets. Their case has been narrowed step by step. After the dismissal of their Digital Millennium Copyright Act (DMCA) claim over the alleged removal of CMI (copyright management information), they asked the United States District Court for the Northern District of California to certify the related order for an interlocutory appeal, meaning they wanted to clarify the underlying question of statutory interpretation at the earliest opportunity as opposed to after a final judgment. This website wrote at the time that such clarification “would be desirable.” Microsoft and OpenAI opposed the motion.
What’s new: United States District Judge Jon S. Tigar has granted the motion to certify his related order for an interlocutory appeal and to stay the case pending the resolution of such appeal. This decision validates ai fray‘s independent analysis.
Direct impact: It is now up to the United States Court of Appeals for the Ninth Circuit to decide whether to hear the matter. Interlocutory appeals are a rare exception from the “final judgment rule” according to which a lower court should first resolve the entire case before a party can appeal. If the Ninth Circuit accepts to hear the matter now, three basic outcomes are possible:
- Affirmance of Judge Tigar’s dismissal on the basis that only the removal of CMI from entire works violates the DMCA would mean that nothing of commercial significance would be left in the case, which could end it quickly.
- The Ninth Circuit ruling could directly revive the DMCA CMI claim.
- The decision could also leave it to the district court to make a case-specific determination, with some further guidance.
Wider ramifications: There will be an avalanche of amicus curiae briefs, also from high-profile organizations, as DMCA CMI claims were brought in several AI copyright lawsuits that are presently pending. The Ninth Circuit ruling would formally resolve the matter only for districts on the West Coast, and the other cases are predominantly on the East Coast. At minimum, there would be motions for interlocutory appeals in other circuits. Also, this DMCA question has the potential to reach the Supreme Court.
This is the order:
It’s important to understand that Judge Tigar has not changed mind on how this DMCA question (whether removal of CMI applies only to entire works) should be answered. What he has done, however, is to recognize that there is a split between different courts and that this question has yet to be resolved at a higher level, which could ultimately mean the Supreme Court of the United States.
The question at this stage was not whether the class-action lawyers are right in general, much less whether they are right in this specific case, but whether a rare exception form the final judgment rule was granted. ai fray instantly supported this procedural roadmap:
There are assertions in the motion for leave to appeal that defendants can reasonably dispute. But from ai fray‘s perspective, it is actually true that appellate clarification of a question that different courts (and in the Ninth Circuit’s case, arguably even the same appeals court) don’t resolve consistently would be desirable. It also makes sense to stay the Github case in the event of an appeal […]
July 27, 2024 ai fray article
Given how Generative AI works, it will be difficult for a removal-of-CMI claim to succeed. If Github, using OpenAI’s technology, generates a code snippet, it could involve material from a non-traceable multitude of sources. Also, such code snippets typically are, in whole or at least in significant part, boilerplate code that countless programs contain in an identical or materially similar form, meaning that any number of sources could provide input that results in the same snippet or part thereof.
For the class-action law firm behind this case, the Joseph Saveri Law Firm, the fact that this motion was granted means some much-needed relief. In a different AI copyright case in the same district, they’ve been criticized harshly for not having the resources to adequately litigate the matter. They were urged to bring in co-counsel who would share the burden, and they have proudly announced (September 25, 2024 press release by the Joseph Saveri Law Firm) that one of the most well-known and fearsome litigation firms in the entire United States, Boise Schiller Flexner (BSF), is teaming up with them against Meta. That is an accomplishment for them and speaks to the potential that even a high-profile, high-power firm sees in the Meta case.
They won’t need to spend a huge amount of time on this interlocutory appeal of a straightforward question of statutory interpretation, and at minimum it causes significant delay. That frees up resources for their other cases.
This interlocutory appeal will be interesting. Amici curiae (“friends of the court”) might even include the United States Department of Justice (DOJ) and/or state attorneys-general.