Topik, who is also representing The Intercept in a similar DMCA suit against OpenAI, as well as the editorial nonprofit Center for Investigative Reporting in a copyright infringement suit against OpenAI and Microsoft, said he is “confident that these types of DMCA claims are permitted under the Constitution.”
Not all experts agree. “These claims don’t make sense and should be dismissed, so I’m not surprised by this decision,” said Matthew Sagg, a professor of law and artificial intelligence at Emory University. He believes that the publishers failed to prove that OpenAI violated the law in part because they did not offer specific examples that ChatGPT distributed copies of their work after the CMI was removed.
Anne G. Fort, an intellectual property attorney and partner at Eversheds Sutherland, suspects that news outlets will have to provide specific examples of how ChatGPT produces infringing responses. “They will have to show results,” she says.
Digital Millennium Copyright Act (DMCA) claims have been particularly contested in a number of AI lawsuits. In the case, The Intercept OpenAI also filed a motion to dismiss, but the court process was slightly different and the publisher was granted leave to file an amended complaint. He did so last summer, bolstering his case by adding 600 pages of exhibits, including examples of how OpenAI models could be prompted to produce snippets of text that, in at least one case, were nearly identical to an Intercept article. The court is expected to rule later this month.
Whether or not Raw Story and Alternet are ultimately allowed to file an amended complaint, this week’s dismissal doesn’t seem to rule out other legal arguments; the judge pointedly noted that in her view, the specific claims under the DMCA were lacking, not the broader concept of infringement. “Let’s get clear on what’s really at stake here. The alleged harm for which Plaintiffs really seek relief is not CMI’s exclusion from Defendant’s training kits, but rather Defendant’s use of Plaintiff’s articles to develop ChatGPT without compensation to Plaintiff,” Judge McMahon wrote. “It remains to be seen whether there is any other statute or legal theory that raises this type of harm.” But that question is not before the court today.
However, some experts believe that this decision could indeed have far-reaching consequences. “This disempowerment theory is actually a potential earthquake far beyond AI,” said James Grimmelman, a professor of digital and internet law at Cornell University. “It has the potential to significantly limit the types of intellectual property cases that federal courts can hear.” He suspects that the logic applied in that case could be extended to argue that publishers lack standing “to sue at all for model training, even for copyright infringement’.
