Judge Chhabria just issued his order granting Meta’s motion to dismiss the Kadrey plaintiffs’ California state law computer fraud claim (CDAFA). But the Judge denied Meta’s motion to dismiss the plaintiffs’ DMCA CMI claim. This is no surprise given what the Judge said at the hearing, where he expressed skepticism about this claim.
Article III standing
- Judge Chabbria sides with Judge Rakoff’s conclusion that Article III standing is established based “on removal of copyright management information is an interference with a property right that is closely related to the “kind of property-based harms traditionally actionable in copyright.” The Intercept Media, Inc. v. OpenAI, Inc., 2025 WL 556019, at *5–6 (S.D.N.Y. Feb. 20, 2025). But see Raw Story Media, Inc. v. OpenAI, Inc., 2024 WL 4711729, at *3–4 (S.D.N.Y. Nov. 7, 2024).
- Adding to that: “Moreover, the plaintiffs allege that the CMI removal facilitated and concealed actual infringement of their copyrights. Copyright infringement is obviously a concrete injury sufficient for standing. So even if the CMI removal isn’t sufficiently concrete, the plaintiffs have alleged a different injury that is traceable to the CMI removal.“
Section 1202(b)(1) intentional removal of CMI
- Judge Chhabria said whether plaintiffs allege a viable Section 1202(b)(1) claim was a “closer call.” But ultimately ruled that it was sufficient.
- Interestingly, of the activities in 1202(b)(1)’s double scienter clause (“knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title”, Judge Chhabria rules that the plaintiffs’ complaint only plausibly alleges Meta’s knew that its alleged removal of CMI will conceal its own (alleged) infringement, not to enable or faciltate anyone else’s infringement:
- “But the plaintiffs have adequately alleged that Meta intentionally removed CMI to conceal copyright infringement. The plaintiffs allege that Meta “knew that Llama was especially ‘prone’ to memorizing and generating outputs of CMI unless CMI was removed from” its training data. They also allege that Meta took a number of other steps to reduce the likelihood that Llama would generate outputs that would reveal or indicate that copyrighted material was included in training datasets. Taken together, these allegations raise a “reasonable, if not particularly strong, inference” that Meta removed CMI to try to prevent Llama from outputting CMI and thus revealing that it was trained on copyrighted material. Friedman v. Live Nation Merchandise, Inc., 833 F.3d 1180, 1189 (9th Cir. 2016). This use of copyrighted material is clearly an identifiable (alleged) infringement. See Stevens v. Corelogic, Inc., 899 F.3d 666, 673-75 (9th Cir. 2018). And that Meta voluntarily revealed that an early Llama model was trained on a particular dataset containing copyrighted material doesn’t mean that it would have had no reason to hide the use of other such datasets to train later models.1”
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