Article III standing has become a major issue in the DMCA-based lawsuits (for alleged removal of CMI) since Judge McMahon’s dismissal of Raw Story Media’s complaint against OpenAI. NVIDIA has also asserted the lack of standing in the YouTube video scraping case brought by Millette.
And now Eleven Labs has asserted it against the voice-actor plaintiffs in Vacker v. Eleven Labs.
Article III of the U.S. Constitution requires that a plaintiff have suffered a concrete, particularized injury before they have standing in a federal court. For more on the Supreme Court’s fairly restrictive view of injury in fact, see Transunion LLC v. Ramirez, in which the Court held that asserting a statutory violation of the Fair Credit Reporting Act did not itself constitute an injury under Article III. In the Raw Story Media decision, Judge McMahon applied that reasoning to the violation of the DMCA’s removal of copyright management information from copies of copyrighted works. The removal of CMI did not have a “close historical or common-law analogue for their asserted injury.” Plaintiffs needed to allege something more, such as the dissemination of the altered copies to the public. Removal absent dissemination was simply not enough for an Article III injury.
Eleven Labs even goes to the lengths of seeking attorneys’ fees from the plaintiff under N.Y. law’s Anti-SLAPP. According to Eleven Labs, “a defendant in an action involving ‘public … participation’ “shall” be awarded its “costs and attorney’s fees” upon a demonstration that the action “was commenced or continued without a substantial basis in fact and law.” N.Y. Civ. R. L. § 70-a(1).