The Intercept’s lawsuit against OpenAI continues to allege underlying copyright infringement

last week one New York federal judge rules The Intercept’s significant copyright infringement claim against OpenAI will proceed in court. The ruling is the latest in a series of major legal rulings involving the AI ​​developer this month, after OpenAI sought to dismiss lawsuits from several digital news publishers.

Judge Jed Rakoff says OpenAI authorship information removed The Intercept allegedly fed its articles into the training datasets it used to build ChatGPT. to do this, Digital Millennium Copyright Act (DMCA)It is a 1998 law that, among other protections, makes it illegal to remove the author’s name, terms of use, or title from a digital work.

The judge rejected The Intercept’s argument that OpenAI denied that claim. knowingly distributed copies articles after removing DMCA protected information. The judge also dismissed all of The Intercept’s claims against Microsoft. billions of dollars OpenAI was invested in and named in the initial application. The judge’s opinion explaining the reasons for dismissal will be published in the coming weeks.

“The decision allows DMCA requests to be filed against OpenAI on behalf of digital publishers without copyright registration,” he said. Matt TopicHe is a partner at Loevy & Loevy, which represents The Intercept. “We’re obviously disappointed to lose our claim against Microsoft, but the real claim is the DMCA claim against OpenAI and we’re very happy to see that it can move forward.”

“Our models are trained on publicly available data based on fair use and related principles that we consider fair to creators,” OpenAI spokesman Jason Deutrom said in a statement.

earlier this year I reported The Intercept’s lawsuit was to create a new legal strategy for digital news publishers to sue OpenAI.

New York Times lawsuit against OpenAI and similar lawsuits New York Daily News And Mother Jonesgive rise to claims of copyright infringement. Infringement lawsuits require the relevant works to be first registered with the United States Copyright Office (USCO). However, most digital news publishers’ article archives are not registered. For many, including The Intercept, it is too costly or burdensome to submit all of their published work to the USCO online.

Until this summer, the government agency required that each website article page be filed and charged separately. USCO in August added a rule This allows “news websites” to bulk file articles. The decision cited, among other reasons, concerns about uncontrolled infringement of online news content and the hope that copyright registrations remain “compatible with technological changes.” But the new rule comes too late for most digital news publishers who are looking to take legal action against OpenAI, particularly for using its work to train ChatGPT.

For now, the Intercept lawsuit is the only case by a news publisher that is not related to copyright infringement and has gone beyond the motion to dismiss stage.

DMCA-focused legal strategy earlier this month took a big hit When another New York federal judge dismissed all DMCA claims filed against OpenAI by Raw Story and AlterNet. He is jointly represented by progressive digital news sites Loevy & Loevy.

“Let’s be clear about what’s really at stake here. “The alleged injury for which Plaintiffs truly seek relief is not the exclusion (of content moderation information) from Defendants’ training sets, but Defendants’ use of Plaintiffs’ articles to develop ChatGPT without compensation,” Judge Colleen MacMahon wrote in this decision.

Despite this setback, the judge said he would consider an amended complaint against OpenAI, taking into account their concerns. An amended complaint, proposed by Raw Story and AlterNet, was filed by Loevy & Loevy just before the Intercept decision was announced last week.

“When they filled their training sets with journalistic works, Defendants had a choice: They could train ChatGPT using journalistic works with the DMCA-protected copyright management information intact, or they could eliminate it. “The defendants chose the second one,” he says. proposed amended complaint. “In the process, (OpenAI) trained ChatGPT not to acknowledge or respect copyrights, not to notify ChatGPT users when the responses they received were protected by journalists’ copyrights, and not to attribution when using the work of human journalists.”

Like The Intercept, Raw Story and AlterNet are seeking $2,500 in damages for each instance in which OpenAI allegedly removed DMCA-protected information in training datasets. If damages were calculated based on each article allegedly used to train ChatGPT, it could quickly reach tens of thousands of breaches.

“The proposed amended complaint would match and possibly even exceed the surviving allegations in the Intercept lawsuit,” Topic said. “Different judges may have different views on the same question, but we are optimistic that we will have the opportunity to proceed with an amended claim.”

It’s unclear whether the Intercept decision will encourage other publications to consider the DMCA case; So far, few publications have followed in their footsteps. As time goes on, concerns are emerging that new lawsuits against OpenAI could be vulnerable to statute of limitations restrictions, especially if news publishers want to cite the training datasets that underpin ChatGPT. But the decision is a sign that Loevy & Loevy is focusing on a specific DMCA claim that might actually hold up in court.

“We think the surviving claim for The Intercept is one that most digital publishers could also make,” Topic said.

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