Topic, which also represents The Intercept in a similar DMCA case against OpenAI as well as the nonprofit newsroom Center for Investigative Reporting in a copyright infringement case against OpenAI and Microsoft, says it is “confident that these types of DMCA claims are permitted under with the Constitution.”
Not all experts agree with this. “These claims make no sense and should all be rejected, so I’m not surprised by this ruling,” says Matthew Sag, a professor of law and artificial intelligence at Emory University. He believes the publishers failed to prove that OpenAI broke the law, in part because they did not provide specific examples of ChatGPT distributing copies of their work after CMI was removed.
Ann G. Fort, an intellectual property lawyer and partner at Eversheds Sutherland, suspects that news outlets will need to provide specific examples of how ChatGPT generates copyright-infringing responses. “They will have to demonstrate results,” he says.
DMCA claims have been particularly controversial in many AI lawsuits. In The Intercept, OpenAI also filed a motion to dismiss the complaint on the grounds of standing, but the court procedure was slightly different and the publisher was granted permission to file an amended complaint. It did so last summer, strengthening its thesis by adding 600 pages of exhibits, including examples how OpenAI models could be induced to produce text snippets that were, in at least one case, nearly identical to the Intercept article. There is court expected to rule this month.
Regardless of whether Raw Story and Alternet are ultimately able to file an amended complaint, this week’s dismissal does not appear to nullify other legal arguments; the judge specifically noted that what she felt was missing were specific claims under the DMCA, rather than a broader concept of infringement. “Let’s be clear about what this is really about. The alleged harm for which plaintiffs actually seek relief is not the exclusion of CMI from defendant’s training kits, but rather the defendant’s use of plaintiff’s articles to develop ChatGPT without compensating plaintiff,” writes Judge McMahon. “It is not known whether there is any other statute or legal theory that elevates this type of harm. But this issue is not before the court today.”
Some experts, however, believe that this ruling may actually have far-reaching consequences. “This disposition theory is actually a potential earthquake far beyond artificial intelligence,” says James Grimmelmann, 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 the logic used in this case could be extended to the claim that publishers lack standing “to sue over modeling education at all, even for copyright infringement.”