A new copyright lawsuit involving AI. But this one was brought by the company behind the search engine Brave. It seeks a declaratory judgment of noninfringement.
After receiving a cease and desist letter from News Corp., Brave Software filed a lawsuit instead. It seeks a declaration that its indexing of News Corp. web content is not infringement (because fair use) and the use of AI chatbots, such as OpenAI’s ChatGPT, with Brave’s search engine (through APIs) is not infringement.
This copyright lawsuit is the 40th copyright-related lawsuit against AI uses of copyrighted works in the United States.
But Brave’s actions are not infringement, nor do they breach any contract. Instead, they are fair use. The asserted copyright-protected works are being used in a transformative way—to offer a search engine, which none of Defendants do. Brave also uses its search functionality to improve the results of third-party chatbots. Defendants also do not offer anything comparable to that. While Defendants may license their works for LLM training, that is not the same thing Brave offers. Defendants do not undertake the massive effort that Brave and other search engines do to index the web and then identify third-party content that is relevant to user queries. As a result, they cannot offer a chatbot the ability to step into the shoes of a search engine user to rapidly deploy searches necessary to provide accurate, up-to-date responses to user queries at the point of inference. The remaining fair use factors also make clear that Brave’s actions are allowed. Defendants’ works, largely news reporting articles, are heavily factual, and the snippets represent just a small percentage of the works. And Defendants themselves benefit from Brave’s maintenance of a search engine—as noted above, Brave always attributes the sources of third-party content, including from Defendants’ websites, which may promote user traffic to Defendants’ websites and articles. Meanwhile, Defendants’ breach of contract allegations are expressly preempted by the federal Copyright Act and otherwise fail because Brave did not agree to Defendants’ contracts of adhesion.
* * *
An actual, present, and justiciable controversy exists between Brave and Defendants concerning Brave’s fair use of Defendants’ publicly available website content—namely whether Brave has infringed any copyright-protected works, and will continue to infringe these works, by accessing, indexing, summarizing, and creating snippets of Defendants’ publicly available websites as necessary to perform core search engine functions.