On the final day of 2024, it’s fitting to identify what we believe were the Top 5 stories in the U.S. copyright lawsuits against AI companies. Our method was completely unscientific, but, nonetheless, perfectly valid.
No. 5. Judge Bibas postpones first trial on the day before it was to start
It’s not often a nonevent turns into a big deal. But Judge Bibas granting a continuance of the first trial in an AI copyright lawsuit on August 22, 2024 was. It was a stunning turn of events in the case of Thomson Reuters v. ROSS Intelligence, and in some ways still a bit of a mystery, given that Judge Bibas had already held, in 2023, that the case must go to trial due to disputed factual issues. Had Judge Bibas held the trial, we would have had the first decision on fair use already.
But this case is still likely to produce the first final judgment on fair use in the training of an AI model. Judge Bibas said he expected to have a decision on the parties’ renewed motions for summary judgment in January 2025. And then the trial is scheduled for May 12, 2025. The first trial date was expected to last 5 days, so it’s reasonable to expect that would be the maximum.
No. 4 U.S. copyright lawsuits v. AI hits 38
The fourth biggest story of 2024 was the sheer number of copyright lawsuits filed. It hit 38 total suits (some of which are consolidated) in December 2024. Most are in the Northern District of California and then Southern District of New York, followed by Delaware, Massachusetts, and the Central District of Los Angeles. (We will be updating our Map in the New Year.)
No. 3 OpenAI plans on petitioning to transfer 8 lawsuits to the Multidistrict Litigation for pretrial
The third biggest story of 2024 was OpenAI’s notification to one court that the company plans on seeking a transfer of 8 lawsuits against it to the Multidistrict Litigation (MDL). This petition has yet to be filed, but if it is and if it is eventually granted, an MDL court would then oversee all 8 copyright-related lawsuits against OpenAI from the Northern District of California and the Southern District of New York. The MDL court (one judge) would preside over the discovery and pretrial proceedings, including summary judgment. The MDL court could also hold a bellwether trial to get the verdicts for some of the cases. But OpenAI has stated that it will not seek a stay of the current proceedings pending a decision on the MDL petition.
No. 2 David Boies law firm takes over the Kadrey plaintiffs/book authors lawsuit from Joseph Saveri Law Firm
In another stunning turn of events, the Joseph Saveri Law Firm lost its lead role in representing the book authors / Kadrey plaintiffs in the lawsuit against Meta. At a hearing in Sep. 20, 2024, 14 days before discovery was to close, Judge Chhabria publicly chastised the Saveri Law Firm lawyers for failing to prosecute their case. Judge Chhabria even reportedly stated that he “will not certify a class represented by this legal team.” (The Saveri Law Firm has a number of other AI copyright lawsuits and is seeking to be the interim lead counsel in those.)
That rebuke led to the change in lead attorney to David Boies and other seasoned lawyers from his firm, who were appointed interim lead class counsel. Boies’s attorneys deposed Meta CEO Mark Zuckerberg and assert they got quite damaging testimony from Zuckerberg that justifies the court to grant leave for them to file a Third Amended Complaint to include (again) a DMCA CMI claim and California state law claim under the Comprehensive Computer Data Access and Fraud Act.
No. 1 District courts dismiss DMCA CMI claims on 2 different grounds, but 9th Circuit agrees to hear interlocutory appeal in Doe 1 v. Github
The fair use question has garnered the most media attention in the AI copyright lawsuits. But the less glamorous issue of the interpretation of Section 1202 of the Digital Millennium Copyright Act for various claims related to the removal of copyright management information (CMI), such as the author’s name, is one that may have just as much significance, if not more. Unlike copyright infringement claims, the DMCA CMI claims do not require copyright registration.
Thus far, the district courts have largely dismissed these DMCA CMI claims (in the ND California: Judges Tigar, Orrick, Martinez-Olguin, and Chhabria for the lack of the removal of CMI from an identical copy); and in the SDNY, Judge McMahon for lack of Article III standing with an injury in fact). In the Intercept v. OpenAI, Judge Rakoff dismissed some of the DMCA claims, but allowed the Section 1202(b)(1) claim for intentional removal of CMI. The opinion is not yet out, however.
In Doe 1 v. Github, Judge Tigar allowed an interlocutory appeal of his ruling dismissing the CMI claim due to lack of an alleged identical copyright from which the defendant removed CMI, but recognized that other district courts had differed in their interpretations. The Ninth Circuit accepted the interlocutory appeal and set the following briefing schedule:
Monday, December 30, 2024: J. Doe Mediation Questionnaire due
Friday, January 10, 2025: J. Doe Appeal Transcript Order Due
Monday, February 10, 2025: J. Doe Appeal Transcript Due
Monday, March 10, 2025: J. Doe Appeal Opening Brief Due
Thursday, April 10, 2025: Github, Inc. Appeal Answering Brief Due Microsoft Corporation Appeal Answering Brief Due OpenAI, Inc. Appeal Answering Brief Due
The significance of the Ninth Circuit’s decision cannot be overstated.
