Do AI Generators Infringe? Three New Lawsuits Consider This Mega Question

• Jurisdiction: United States,Federal,California
• Law Firm: Frankfurt Kurnit Klein & Selz
• Subject Matter: Intellectual Property, Technology, Copyright, New Technology
• Author: Mr Jeremy Goldman
• Published date: 20 January 2023

We're witnessing a massive revolution in artificial intelligence. Tools like ChatGPT, Midjourney, Stable Diffusion, Dall-E and Copilot allow users to generate text, imagery, computer code and other content based solely on natural language prompts. The creativity, detail and human-like quality of the AI outputs are astonishing, leading to widespread excitement, fear, and ire, as thinking machines force us to question long-held assumptions about the supposed uniqueness of human ingenuity and ponder whether AI is bringing us closer to utopia, human obsolescence, or something in between. Thankfully, this is just a law blog, so we can leave these existential questions about the coming singularity for an episode of Black Mirror.

The legal implications of AI are varied, evolving, and complex, but the focus of this post is AI's intersection with intellectual property'in particular, the IP and IP-adjacent issues raised by AI's input'i.e., the content used to train AI. (A different set of issues relate to the IP protection, or lack thereof, afforded to the output of AI. We've previously blogged about the output issue, which is not the focus of this post.).

The fundamental question is this: do content creators have the right to authorize or block AI systems from collecting and using their content as training data? This question implicates not only complex issues of law but important matters of public policy. What rules around AI will optimally "promote the Progress of Science and useful Arts," the prime directive of the U.S. Constitution's copyright mandate?

These questions are at the center of two class action lawsuits brought against generative AI providers accused of ingesting content without permission. Both cases were filed in the United States District Court for the Northern District of California by the same lawyers (the Joseph Saveri Law Firm and Matthew Butterick). A third lawsuit brought by Getty Images in the United Kingdom raises similar claims.

By establishing the legal parameters of AI machine learning, these disputes have the potential to profoundly impact the acceleration, adoption, and quality of AI systems. Below is a summary of the three lawsuits followed by a discussion of some key legal issues'namely, copyright, web scraping, and copyright preemption'likely to be fiercely litigated in these cases.

The Three New AI Cases

1/ Doe v. GitHub, 22 Civ. 6823 (N.D. Cal. Nov. 10, 2022)

In the first action, a putative class of developers sued GitHub (a popular open-source code repository), OpenAI (owner of GPT-3, the language model behind ChatGPT) and Microsoft (GitHub's owner and OpenAI's lead investor). The action targets Copilot, a subscription-based AI tool co-developed by GitHub and OpenAI using GPT-3 that "promises to assist software coders by providing or filling in blocks of code using AI." The developers claim that the defendants used copyright protected source code, which the developers posted to GitHub under various open-source licenses, as training data for Copilot.

The complaint asserts various causes of action, including violations of the "copyright management information" section of the Digital Millennium Copyright Act (for removing CMI from the source code), 17 U.S.C. ' 1202; and breach of contract (for failing to provide attribution, copyright notices, and a copy of the source code's open-source license). Interestingly, the complaint does not allege straight copyright infringement.

Based on the current schedule, the deadline for the defendant's response'likely, a motion to dismiss'is January 26, 2023. The developers' opposition is due March 9, 2023 and the reply is due April 6, 2023. We'll keep you posted as this potentially landmark case develops.

2/ Andersen v. Stability AI et al., No. 23 Civ. 201 (N.D. Cal. Jan. 13, 2023)

The second case, brought by three visual artists, targets generative art AI tools Stable AI (the developer behind Stable Diffusion), MidJourney (a popular image generator) and Deviant Art (developer of the...