- In the copyright lawsuit against Mosaic and Databricks, Magistrate Judge Cisneros granted in part of the book authors’ subpoena request to non-party Microsoft to produce documents related to its licensing of copyrighted works for training data.
- Microsoft already produced all executed licensing agreements–14 or 15 deals–it has entered into “that provide for Microsoft to receive, access, and/or use text data in training LLMs[,]” but objects to producing other “documents and communications.”
- Judge Cisneros rejected some of the plaintiffs’ requests, but allowed it “where the communications or documents indicate potential or proposed terms for licensing” related to the licensing deals Microsoft has secured.
- Judge Cisneros discussed the possible relevance of such discovery to Factor 4 of fair use, while also noting the circularity problem courts have recognized in that for every case of fair use copyright owners can claim lost licensing revenues.
In In Re Mosaic LLM Litigation, Magistrate Judge Lisa Cisneros issued an important discovery ruling allowing the book author plaintiffs to subpoena Microsoft’s documents and communications that “indicate potential or proposed terms for licensing.” Microsoft had already produced the actual licenses it struck with 14 or 15 copyright owners.
Although Judge Cisneros rejected the full scope of the plaintiffs’ request to allow all documents “related to licensing books for use as AI training data” Microsoft produced in the MDL Litigation before Judge Stein, Judge Cisneros allowed it with the following qualification:
“Microsoft’s production to its communications with and documents regarding the entities with
which it entered into licensing agreements for AI Training Data, where the communications or
documents indicate potential or proposed terms for licensing. Microsoft and Plaintiffs are directed to designate documents produced in response to RFP No. 2 as “Highly Confidential – Attorneys’ Eyes Only.”
Judge Cisneros’s discussion of licensing and Factor 4 is worth a read:
Download Judge Cisernos’s order
