The Nazemian and Dubus plaintiffs and NVIDIA submitted their case management statement to Judge Tigar.
A preview of their fair use arguments:
Plaintiffs’ Position
The legal and factual issue at the core of this case is whether Defendant’s unlawful copying has violated the Copyright Act, 17 U.S.C. § 501, et seq. NVIDIA has indicated that it will rely upon a fair use defense. However, NVIDIA will not be able to carry its burden to prove fair use. For example, NVIDIA has not disputed that it copied Plaintiffs’ work to train its AI models without consent, credit, or compensation. By relying on works taken without creators’ permission, any argument on fair use will fall short. Harper & Row v. Nation Enterprises, 471 U.S. 539, 562 (1985) (explaining that fair use defense “presupposes good faith”); Mfg. Automation & Software Sys., Inc. v. Hughes, 2018 WL 3197696, at *11 (C.D. Cal. June 25, 2018) (“[C]ourts have concluded that fair use is not an available defense to intermediate copying when a defendant is in unauthorized possession of a plaintiff’s source code.”). That is before considering the sheer volume of infringements, which, of course, counsels against fair use. See Harper & Row, 471 U.S. at 569 (“‘Isolated instances of minor infringements, when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented.’”) (quoting S. Rep. No. 473 at 65 (1975)).
There are numerous other questions of law or fact common to the class, and those issues predominate over any question affecting individual class members. See Section 9, infra.
Microsoft Word – 2025-01-07 Joint Case Management Statement
Defendant’s Position
Among other issues, this case presents two interrelated questions: First, whether Plaintiffs’ claims represent an impermissible attempt to copyright facts and grammar. Second, whether any copying by NVIDIA is a fair use.
Although generative AI is a recent phenomenon, the legal principles governing this case were established long ago: Copyright law protects specific expressions, but does not grant property rights over facts, ideas, data, or information. As the Supreme Court has explained: “[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking.” Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991). “[T]his is not some unforeseen byproduct of a statutory scheme. It is, rather, the essence of copyright and a constitutional requirement . . . . [C]opyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work . . . . This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.” Id. at 349-50 (internal quotations and citations omitted); Baker v. Selden, 101 U.S. 99, 102-04 (1879); U.S. Const., Art. I, § 8, cl. 8; 17 U.S.C. § 102(b).
In addition, fair use protects the ability to copy particular expressions for a transformative purpose. As an example, the Ninth Circuit Court of Appeals ruled that making intermediate copies of entire source code files was fair use where the copying provided access to the unprotected ideas and functions embedded in that code and the defendant created a transformative new product. Sony Computer Entertainment Inc. v. Connectix Corp., 203 F.3d 596, 602-08 (9th Cir. 2000). As another example, the Second Circuit Court of Appeals ruled that copying entire books to create a searchable database was fair use. Authors Guild v. Google, Inc., 804 F.3d 202, 224-25 (2d Cir. 2015). NVIDIA disputes Plaintiffs characterizations of the facts and law and specifically denies that NVIDIA has ever acted in bad faith. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n.18, (1994) (“If the use is otherwise fair, then no permission need be sought or granted.”); Google, LLC v. Oracle Am., Inc., 593 U.S. 1, 32 (2021) (“our decision in Campbell expressed some skepticism about whether bad faith has any role in a fair use analysis. We find this skepticism justifiable”).