Judge crosses out some claims by writers against OpenAI, lets them have another crack at it

Scribes may have a point about unfair competition, direct copyright infringement

Updated A US judge has dismissed some of the claims made by writers in a copyright infringement lawsuit against OpenAI, and gave the wordsmiths a chance to amend their complaint.

The case kicked off in 2023 when novelists Paul Tremblay, Christopher Golden, and Richard Kadrey, and writer-comedian-actress Sarah Silverman accused OpenAI of unlawfully scraping their work without consent to train the Microsoft-backed super-lab's large language models.

The creators claimed OpenAI's ChatGPT produced accurate summaries of their books and offered that as evidence that their writing had been ripped off. Since OpenAI's neural networks learn to generate text from its training data, the group argued the output should be considered a "derivative work" of their IP.

The plaintiffs also alleged that OpenAI’s model deliberately omitted so-called copyright management information, or CMI – think books' ISBN numbers and authors' names – when it produced output based on their works. They also accused the upstart of unfair competition, negligence, and unjust enrichment.

All in all, the writers are upset that, as alleged, OpenAI not only used copyrighted work without permission nor compensation to train its models, its AI systems generate prose that closely apes their own, which one might say would hinder their ability to profit from that work.

Federal district Judge Araceli Martínez-Olguín, sitting in northern California, was asked by OpenAI in August to dismiss most of the authors' claims – all but an allegation of direct copyright infringement. OpenAI hopes to defeat that charge at trial to make a point to any other creative person considering pursuing it.

In a fresh order [PDF] handed down on Monday, Judge Martínez-Olguín delivered the bad news for the scribes, which included throwing out an allegation of vicarious copyright infringement.

"Plaintiffs fail to explain what the outputs entail or allege that any particular output is substantially similar – or similar at all – to their books. Accordingly, the court dismisses the vicarious copyright infringement claim," she wrote.

She also opined that the authors couldn't prove that CMI had been stripped from the training data or that its absence indicated an intent to hide any copyright infringement.

Claims of unlawful business practices, fraudulent conduct, negligence, and unjust enrichment were similarly dismissed.

The judge did allow a claim of unfair business practices to proceed. The authors' claim of direct copyright infringement will also, as explained above, continue.

"Assuming the truth of plaintiffs' allegations – that defendants used plaintiffs' copyrighted works to train their language models for commercial profit – the court concludes that defendants' conduct may constitute an unfair practice," Judge Martínez-Olguín wrote.

Although this case against OpenAI has been narrowed, it clearly isn't over yet. The plaintiffs have also been given an opportunity to amend their arguments in light of the above ruling, by filing a fresh complaint before March 13.

The Register has asked OpenAI and the lawyers representing the plaintiffs for comment. We'll let you know if they have anything worth saying. ®

Updated to add

Matthew Butterick, one of the lawyers representing the writers, has been in touch to remind us that claim of direct copyright infringement is continuing, so not all of the copyright allegations have been thrown out. We're happy to make their clear.

"Our plaintiffs' core claim against OpenAI — direct copyright infringement under the US Copyright Act for training language models using plaintiffs’ copyrighted works — was not dismissed, and we are eager to move forward and litigate that claim," he told us.

"Judge Martínez-Olguín also granted plaintiffs permission to amend their other claims and they will be filing an amended complaint in short order. In the meantime, discovery in the case is moving forward and class certification briefing is scheduled for after the conclusion of discovery."

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