In MiniMax suit, Nanoble moves to dismiss Disney’s copyright claims, citing lack of direct infringement and no contributory infringement under Supreme Court’s decision in Cox

Defendant Nanoble in Disney v. MiniMax has filed two motions to dismiss: one based on lack of personal jurisdiction (12(b)(2)) and the other based on failure to state a claim for relief (12(b)(3)).

The latter motion offers various grounds to dismiss the complaint of Disney, summarized as follows:

Nanoble’s citation of the Supreme Court’s recent decision in Cox Communications comes as no surprise. Nor the defendant’s emphasis on the extraterritoriality of the training of its models outside the United States as being outside the reach of the U.S. Copyright Act (see Subafilms, Ltd. v. MGM-Pathe Communications Co., cited in brief at 11, 14).

One issue that fascinates me is whether the Plaintiff’s own generation of allegedly infringing images should count as infringement–and, if so, how much weight to give it. Nanoble makes the bold argument: “As to the output allegations, the Studios rely primarily on 52 video outputs the Studios’ lawyers created using the Hailuo AI tool. But a copyright owner cannot infringe its own copyright.” Nanoble later cites: “But a copyright ‘owner cannot infringe his own copyright.” Richmond v. Weiner, 353 F.2d 41, 44, 46 (9th Cir. 1965).“

I haven’t read this 9th Circuit precedent yet, but hope to do so soon.

This issue is the same one faced by the UK Court in Getty Images v. Stability AI (UK). There, too, the court questioned the evidentiary value of the plaintiffs’ own generation of allegedly infringing files versus actual infringement by third party users in what she described as “in the wild.”

Mrs Justice Joanna Smith decision in Getty Images v. Stability AI. No secondary copyright infringement. Limited trademark infringement.No trademark dilution.

There might be some case law suggesting alleged infringement made by an investigator is still relevant to prove infringement in music-file sharing cases, but I suspect this issue will become a big issue contested in the AI copyright lawsuits. That is especially so if the plaintiffs’ investigators use adversarial techniques with AI models beyond the normal usage.

I am not familiar with Hailuo AI, the generator offered by Nanoble and other defendants. Aaron Moss of Copyright Lately contends: “The complaint alleges plenty of other organic evidence, including subscriber-posted Instagram videos featuring Spider-Man, the Simpsons, Batman, the Joker, and Superman, as well as third-party posts across Reddit, TikTok, and YouTube.”

Assuming Moss is correct, then that could be evidence of potential direct infringement “in the wild.”

Excerpt: