Context: Claims against Generative AI systems under the Digital Millennium Copyright Act (DMCA) have not made headway in U.S. court so far. Relatively speaking, the furthest any of those claims has gotten so far is that a district court (Northern District of California) allowed an interlocutory appeal, in a class action against Github/Microsoft and OpenAI, over the question of whether the removal of copyright management information (CMI) matters only if entire works from which CMI has been removed are reproduced (September 28, 2024 ai fray article).
What’s new: Yesterday (November 7, 2024), Judge Colleen McMahon of the United States District Court for the Southern District of New York dismissed a DMCA-only complaint by news sources against OpenAI (PDF). She noted that “what is really at stake here … is not the exclusion of CMI from Defendants’ training sets, but rather Defendants’ use of Plaintiffs’ articles to develop ChatGPT without compensation to Plaintiffs.” But if that was an issue, it would have to be raised under copyright law in a narrow sense, not under the DMCA.
Direct impact: The plaintiffs can try to convince the judge that an amended complaint has merit, and she didn’t rule out allowing an amendment with respect to injunctive relief, but is very skeptical.
Wider ramifications: In the current environment with dozens of AI copyright actions pending in the U.S. alone, decisions like this receive a lot of attention and are used extensively as persuasive authority. That makes them relevant, but it is important to bear in mind that district court decisions are not binding outside a given district. Appellate decisions are technically binding only in a given circuit, but do make considerable persuasive impact elsewhere.
Raw Story Media, Inc. v. OpenAI Inc. (case no. 1:24-cv-01514, S.D.N.Y.) started with a complaint that had only one claim: a DMCA claim. That is unusual.
Various AI copyright cases focus very much on input (such as Authors Guild v. OpenAI). Even the New York Times’s lawyers gradually shifted the emphasis to input, though the original complaint looked at first sight like the priority was on output (based on the sample ChatGTP answers they provided). But as Judge McMahon’s decision explains, the DMCA does not lend itself to an input-only theory. Therefore, the complaint was dismissed because it failed to allege that copyrighted material from which CMI had been removed was actually part of ChatGPT’s output.
Obviously facts are not protected by copyright law anyway. The relevant hurdle here is the Article III requirement of an injury in fact. Raw Story Media and AlterNet tried to get over that one by arguing that “common law … recognizes interference with property, without more, as a concrete injury.” Here, the alleged interference was the removal of CMI. That didn’t convince Judge McMahon, who observed that even under the DMCA it’s not necessarily unlawful to produce, for example, a derivative work, provided that the integrity of the CMI is preserved, which is what Section 1202 is concerned with.
Judge McMahon’s order distinguishes § 1202 from the exclusive rights clause of U.S. copyright law (§ 106).
The other fundamental problem in Judge McMahon’s view is that those plaintiffs can’t argue there is a “historical or common law analogue” for the removal of CMI from material used to train Generative AI systems.
There is, however, an analogy in modern Supreme Court jurisprudence that the decision discusses. In TransUnion v. Ramirez (PDF), which was about personal information and not copyright, Justice Clarence Thomas said that “[because] TransUnion violated each class member’s individual rights, … [the plaintiffs in that case] thus [had] a sufficient injury to sue in federal court.” But that was merely a dissenting opinion and the SCOTUS majority decided otherwise: “No concrete harm, no standing.”
The two remedies sought by the plaintiffs in this AI DMCA case are damages and an injunction. While the decision doesn’t say so in the clearest terms, it indicates that ikt is only because of the prayer for injunctive relief that Judge McMahon is willing to take a look at a motion to amend the complaint, but she probably won’t be persuaded that an amendment is anything but futile.
This may go up to the Second Circuit pretty soon, unless the plaintiffs and (especially) the class-action lawyers feel it’s not worth pursuing the case any further.