Judge Jed Rakoff published his long-awaited opinion, some 3 months after announcing his ruling. Judge Rakoff disagreed with OpenAI’s argument–and with Judge Colleen McMahon’s prior ruling in Raw Story Media v. OpenAI–that the Intercept lacked Article III injury under the Supreme Court’s ruling in TransUnion v. Ramirez. Oddly, Judge Rakoff failed to mention, much less discuss, Judge McMahon’s opinion.
This creates a split of authority in the Southern District of New York. If this split eventually becomes a circuit split (such as between Second and Ninth Circuits), that will guarantee the U.S. Supreme Court will review–and resolve–it.
A day later, the Kadrey book authors in the Kadrey v. Meta case and the New York Times in the New York Times v. Microsoft consolidated cases have cited Judge Rakoff’s ruling to support their DMCA CMI claims.