Topic, who also represents The Intercept in a similar DMCA case against OpenAI, as well as the nonprofit newsroom the Center for Investigative Reporting in a copyright infringement case against both OpenAI and Microsoft, says he is “confident that this type of DMCA claims are allowed under the Constitution.”
Not all experts agree. “These claims make no sense and should all be dismissed, so I am not surprised by this ruling,” said Matthew Sag, professor of law and artificial intelligence at Emory University. He believes the publishers have failed to prove that OpenAI broke the law in part because they haven't provided concrete examples of ChatGPT distributing copies of their work after stripping CMI.
Ann G. Fort, an intellectual property attorney and partner at Eversheds Sutherland, suspects that the news media will have to provide specific examples of how ChatGPT produces infringing comments. “They will have to show output,” she says.
DMCA claims are particularly contentious in a number of AI lawsuits. In The Intercept case, OpenAI also filed a motion to dismiss the case for summary judgment, but the legal process was slightly different and the publisher was allowed to file an amended complaint. It did so last summer, strengthening its position by adding 600 pages of evidence, including examples of how OpenAI's models could be induced to produce snippets of text that were, in at least one case, virtually 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 does not appear to preclude other legal arguments; the judge pointedly noted that she found the specific DMCA claims, not the broader concept of infringement, lacking. “Let's be clear about what is really at stake here. The alleged harm for which Plaintiffs really seek recovery is not CMI's exclusion from Defendant's training kits, but rather Defendant's use of Plaintiff's items to develop ChatGPT without compensation to Plaintiff,” Judge McMahon wrote. “Whether there is another statute or legal theory that increases this type of harm remains to be seen. But that question is not before the court today.”
However, some experts believe that this ruling could indeed have far-reaching consequences. “This no-status theory is actually a potential earthquake that goes far beyond AI,” said James Grimmelmann, a professor of digital and internet law at Cornell University. “It has the potential to significantly limit the types of IP cases that federal courts can hear.” He suspects that the logic applied in this case could be expanded to argue that publishers have no standing at all “to sue for model training at all, even for copyright infringement.”
