Judge Tigar issued an interesting order today in Nazemian v. NVIDIA, allowing NVIDIA to file a motion for summary judgment on its fair use defense before the court considers whether to certify a class of plaintiffs. Neal Katyal, the former Acting Solicitor General, is one of the attorneys representing NVIDIA.
Other than ROSS Intelligence’s upcoming motion for summary judgment (after Judge Bibas postponed the trial set for Aug. 23), NVIDIA’s request is, I believe, the only one by a defendant in the AI copyright litigation seeking a summary judgment on the defense of fair use.
Of course, allowing a motion doesn’t mean anything on the merits of the motion, or how a court might rule. Fair use may involve disputed factual issues that are not resolvable on summary judgment, but, in some cases, courts do decide fair use on summary judgment.
I had assumed that the juries would be the ones first deciding fair use. But we should see if any of the other cases involve a similar motion on fair use.
UPDATE: Many of the other copyright cases will likely see motions for summary judgment on infringement and fair use, but, under the scheduling order, the summary judgment motions will be due in January 2025 and later.
