Judge: Just Because AI Trains On Your Publication, Doesn’t Mean It Infringes On Your Copyright

I get that a lot of people don’t like the big AI companies and how they scrape the web. But these copyright lawsuits being filed against them are absolute garbage. And you want that to be the case, because if it goes the other way, it will do real damage to the open web by further entrenching the largest companies. If you don’t like the AI companies find another path, because copyright is not the answer.

So far, we’ve seen that these cases aren’t doing all that well, though many are still ongoing.

Last week, a judge tossed out one of the early ones against OpenAI, brought by Raw Story and Alternet.

Part of the problem is that these lawsuits assume, incorrectly, that these AI services really are, as some people falsely call them, “plagiarism machines.” The assumption is that they’re just copying everything and then handing out snippets of it.

But that’s not how it works. It is much more akin to reading all these works and then being able to make suggestions based on an understanding of how similar things kinda look, though from memory, not from having access to the originals.

Some of this case focused on whether or not OpenAI removed copyright management information (CMI) from the works that they were being trained on. This always felt like an extreme long shot, and the court finds Raw Story’s arguments wholly unconvincing in part because they don’t show any work that OpenAI distributed without their copyright management info.

For one thing, Plaintiffs are wrong that Section 1202 “grant[ s] the copyright owner the sole prerogative to decide how future iterations of the work may differ from the version the owner published.” Other provisions of the Copyright Act afford such protections, see 17 U.S.C. § 106, but not Section 1202. Section 1202 protects copyright owners from specified interferences with the integrity of a work’s CMI. In other words, Defendants may, absent permission, reproduce or even create derivatives of Plaintiffs’ works-without incurring liability under Section 1202-as long as Defendants keep Plaintiffs’ CMI intact. Indeed, the legislative history of the DMCA indicates that the Act’s purpose was not to guard against property-based injury. Rather, it was to “ensure the integrity of the electronic marketplace by preventing fraud and misinformation,” and to bring the United States into compliance with its obligations to do so under the World Intellectual Property Organization (WIPO) Copyright Treaty, art. 12(1) (“Obligations concerning Rights Management Information”) and WIPO Performances and Phonograms Treaty….

Moreover, I am not convinced that the mere removal of identifying information from a copyrighted work-absent dissemination-has any historical or common-law analogue.

Then there’s the bigger point, which is that the judge, Colleen McMahon, has a better understanding of how ChatGPT works than the plaintiffs and notes that just because ChatGPT was trained on pretty much the entire internet, that doesn’t mean it’s going to infringe on Raw Story’s copyright:

Plaintiffs allege that ChatGPT has been trained on “a scrape of most of the internet,” Compl. , 29, which includes massive amounts of information from innumerable sources on almost any given subject. Plaintiffs have nowhere alleged that the information in their articles is copyrighted, nor could they do so. When a user inputs a question into ChatGPT, ChatGPT synthesizes the relevant information in its repository into an answer. Given the quantity of information contained in the repository, the likelihood that ChatGPT would output plagiarized content from one of Plaintiffs’ articles seems remote.

Finally, the judge basically says, “Look, I get it, you’re upset that ChatGPT read your stuff, but you don’t have an actual legal claim here.”

Let us be clear about what is really at stake here. The alleged injury for which Plaintiffs truly seek redress is not the exclusion of CMI from Defendants’ training sets, but rather Defendants’ use of Plaintiffs’ articles to develop ChatGPT without compensation to Plaintiffs. See Compl. ~ 57 (“The OpenAI Defendants have acknowledged that use of copyright-protected works to train ChatGPT requires a license to that content, and in some instances, have entered licensing agreements with large copyright owners … They are also in licensing talks with other copyright owners in the news industry, but have offered no compensation to Plaintiffs.”). Whether or not that type of injury satisfies the injury-in-fact requirement, it is not the type of harm that has been “elevated” by Section 1202(b )(i) of the DMCA. See Spokeo, 578 U.S. at 341 (Congress may “elevate to the status of legally cognizable injuries, de facto injuries that were previously inadequate in law.”). Whether there is another statute or legal theory that does elevate this type of harm remains to be seen. But that question is not before the Court today.

While the judge dismisses the case with prejudice and says they can try again, it would appear that she is skeptical they could do so with any reasonable chance of success:

In the event of dismissal Plaintiffs seek leave to file an amended complaint. I cannot ascertain whether amendment would be futile without seeing a proposed amended pleading. I am skeptical about Plaintiffs’ ability to allege a cognizable injury but, at least as to injunctive relief, I am prepared to consider an amended pleading.

I totally get why publishers are annoyed and why they keep suing. But copyright is the wrong tool for the job. Hopefully, more courts will make this clear and we can get past all of these lawsuits.