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<h2 class="wp-block-heading"><strong>Summary</strong></h2>

In two nearly identical lawsuits, <em>The Intercept Media v. OpenAI</em> and <em>Raw Story Media v. OpenAI</em>, a trio of news organizations represented by the same firm alleged DMCA violations arising out of the alleged inclusion of plaintiffs’ works of journalism in the datasets used to train ChatGPT.

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<p>In two nearly identical lawsuits, <em>The Intercept Media v. OpenAI</em> and <em>Raw Story Media v. OpenAI</em>, a trio of news organizations represented by the same firm alleged DMCA violations arising out of the alleged inclusion of plaintiffs’ works of journalism in the datasets used to train ChatGPT.</p>

<h2 class="wp-block-heading"><strong>What We’re Watching</strong></h2>

In <em>Intercept Media v. OpenAI</em>, the remaining claim is a §1202(b)(1) violation. In <em>Raw Story Media</em>, all claims have been dismissed and the court is considering plaintiffs’ motion for leave to amend their complaint.

<p>In <em>Intercept Media v. OpenAI</em>, the remaining claim is a §1202(b)(1) violation. In <em>Raw Story Media</em>, all claims have been dismissed and the court is considering plaintiffs’ motion for leave to amend their complaint.</p>

Case Background

Start with the basic building block of all narrative.

In a village of La Mancha, the name of which I have no desire to call to mind, there lived not long since one of those gentlemen that keep a lance in the lance-rack, an old buckler, a lean hack, and a greyhound for coursing.

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<em>The Intercept Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01515

<p><em>The Intercept Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01515</p>

<em>Raw Story Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01514

<p><em>Raw Story Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01514</p>

<strong>Court</strong>: U.S. District Court for the Southern District of New York

<p><strong>Court</strong>: U.S. District Court for the Southern District of New York</p>

<em>The Intercept Media v. OpenAI </em>– District Judge Jed S. Rakoff and Magistrate Judge Henry J. Ricardo&nbsp;

<p><em>The Intercept Media v. OpenAI </em>– District Judge Jed S. Rakoff and Magistrate Judge Henry J. Ricardo&nbsp;</p>

<em>Raw Story Media v. OpenAI</em> – District Judge Colleen McMahon&nbsp;

<p><em>Raw Story Media v. OpenAI</em> – District Judge Colleen McMahon&nbsp;</p>

Plaintiffs – The Intercept Media, Inc.; Raw Story Media, Inc.; and AlterNet Media, Inc., represented by Loevy &amp; Loevy.

<p>Plaintiffs – The Intercept Media, Inc.; Raw Story Media, Inc.; and AlterNet Media, Inc., represented by Loevy &amp; Loevy.</p>

OpenAI – OpenAI, Inc.; OpenAI GP, LLC; OpenAI, LLC; OpenAI OPCO LLC; OpenAI Global LLC; OAI Corporation, LLC; and OpenAI Holdings, LLC, represented by Morrison &amp; Foerster LLP and Latham &amp; Watkins LLP.

<p>OpenAI – OpenAI, Inc.; OpenAI GP, LLC; OpenAI, LLC; OpenAI OPCO LLC; OpenAI Global LLC; OAI Corporation, LLC; and OpenAI Holdings, LLC, represented by Morrison &amp; Foerster LLP and Latham &amp; Watkins LLP. </p>

Former defendant – Microsoft Corporation, represented by Orrick, Herrington, &amp; Sutcliffe LLP

<p>Former defendant – Microsoft Corporation, represented by Orrick, Herrington, &amp; Sutcliffe LLP</p>

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<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title">Case Background</h2></summary><div class="wp-block-contentpilot-accordion__content"><p><strong>Captions</strong>:</p><p><em>The Intercept Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01515</p><p><em>Raw Story Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01514</p><p><strong>Court</strong>: U.S. District Court for the Southern District of New York</p><p><strong>Judges</strong>: </p><p><em>The Intercept Media v. OpenAI </em>– District Judge Jed S. Rakoff and Magistrate Judge Henry J. Ricardo&nbsp;</p><p><em>Raw Story Media v. OpenAI</em> – District Judge Colleen McMahon&nbsp;</p><p><strong>Parties</strong>:</p><p>Plaintiffs – The Intercept Media, Inc.; Raw Story Media, Inc.; and AlterNet Media, Inc., represented by Loevy &amp; Loevy.</p><p>OpenAI – OpenAI, Inc.; OpenAI GP, LLC; OpenAI, LLC; OpenAI OPCO LLC; OpenAI Global LLC; OAI Corporation, LLC; and OpenAI Holdings, LLC, represented by Morrison &amp; Foerster LLP and Latham &amp; Watkins LLP. </p><p>Former defendant – Microsoft Corporation, represented by Orrick, Herrington, &amp; Sutcliffe LLP</p></div></details>

Status Updates

<strong>Dec. 20, 2024 – OpenAI opposed motion to amend <em>Raw Story Media </em>complaint</strong>

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OpenAI argued that plaintiffs’ proposed amendments are futile. OpenAI argued that plaintiffs are not “persons injured” within the meaning of DMCA.

<p>OpenAI argued that plaintiffs’ proposed amendments are futile. OpenAI argued that plaintiffs are not “persons injured” within the meaning of DMCA.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Dec. 20, 2024 – OpenAI opposed motion to amend <em>Raw Story Media </em>complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Dec. 20, 2024 – OpenAI opposed motion to amend <em>Raw Story Media </em>complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>OpenAI argued that plaintiffs’ proposed amendments are futile. OpenAI argued that plaintiffs are not “persons injured” within the meaning of DMCA.</p></div></details>

<strong>Dec. 5, 2024 – OpenAI answered <em>The Intercept</em> complaint</strong>

OpenAI filed an answer to The Intercept’s amended complaint [87]. OpenAI denied the single remaining cause of action – violation of 17 U.S.C. §1202(b)(1).

<p>OpenAI filed an answer to The Intercept’s amended complaint [87]. OpenAI denied the single remaining cause of action – violation of 17 U.S.C. §1202(b)(1).</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Dec. 5, 2024 – OpenAI answered <em>The Intercept</em> complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Dec. 5, 2024 – OpenAI answered <em>The Intercept</em> complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>OpenAI filed an answer to The Intercept’s amended complaint [87]. OpenAI denied the single remaining cause of action – violation of 17 U.S.C. §1202(b)(1).</p></div></details>

<strong><strong>Nov. 21, 2024 – Plaintiffs requested leave to file amended complaint in <em>Raw Story Media</em></strong></strong>

Raw Story Media and AlterNet Media filed a motion for leave to amend its complaint or alternatively to continue jurisdictional discovery regarding the defendants’ dissemination of plaintiffs’ works. Plaintiffs argued that the proposed amendments present a close analogy between copyright infringement and Plaintiffs’ DMCA injuries based on the specific facts of this case. Plaintiffs also argued their proposed amendments justify standing based on disgorgement of unlawful profits. Plaintiffs argued that its proposed amended complaint would survive a 12(b)(6) challenge.

<p>Raw Story Media and AlterNet Media filed a motion for leave to amend its complaint or alternatively to continue jurisdictional discovery regarding the defendants’ dissemination of plaintiffs’ works. Plaintiffs argued that the proposed amendments present a close analogy between copyright infringement and Plaintiffs’ DMCA injuries based on the specific facts of this case. Plaintiffs also argued their proposed amendments justify standing based on disgorgement of unlawful profits. Plaintiffs argued that its proposed amended complaint would survive a 12(b)(6) challenge.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong>Nov. 21, 2024 – Plaintiffs requested leave to file amended complaint in <em>Raw Story Media</em></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong>Nov. 21, 2024 – Plaintiffs requested leave to file amended complaint in <em>Raw Story Media</em></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>Raw Story Media and AlterNet Media filed a motion for leave to amend its complaint or alternatively to continue jurisdictional discovery regarding the defendants’ dissemination of plaintiffs’ works. Plaintiffs argued that the proposed amendments present a close analogy between copyright infringement and Plaintiffs’ DMCA injuries based on the specific facts of this case. Plaintiffs also argued their proposed amendments justify standing based on disgorgement of unlawful profits. Plaintiffs argued that its proposed amended complaint would survive a 12(b)(6) challenge.</p></div></details>

<strong><strong><strong>Nov. 21, 2024 – Court dismissed all but one claim in <em>The Intercept</em></strong></strong></strong>

The court dismissed with prejudice all of The Intercept’s claims against Microsoft and its §1202(b)(3) claim against OpenAI. The court permitted The Intercept’s&nbsp;&nbsp; §1202(b)(1) claim against OpenAI to proceed.

<p>The court dismissed with prejudice all of The Intercept’s claims against Microsoft and its §1202(b)(3) claim against OpenAI. The court permitted The Intercept’s&nbsp;&nbsp; §1202(b)(1) claim against OpenAI to proceed.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong><strong>Nov. 21, 2024 – Court dismissed all but one claim in <em>The Intercept</em></strong></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong><strong>Nov. 21, 2024 – Court dismissed all but one claim in <em>The Intercept</em></strong></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The court dismissed with prejudice all of The Intercept’s claims against Microsoft and its §1202(b)(3) claim against OpenAI. The court permitted The Intercept’s&nbsp;&nbsp; §1202(b)(1) claim against OpenAI to proceed.</p></div></details>

<strong><strong><strong><strong>Nov. 7, 2024 – Court granted OpenAI’s motion to dismiss <em>Raw Story Media </em>complaint.</strong></strong></strong></strong>

The Court agreed with defendants that the Raw Story Media and AlterNet Media Inc. lacked Article III standing to assert their claims. The plaintiffs were found to lack a concrete injury-in-fact.

<p>The Court agreed with defendants that the Raw Story Media and AlterNet Media Inc. lacked Article III standing to assert their claims. The plaintiffs were found to lack a concrete injury-in-fact.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong><strong><strong>Nov. 7, 2024 – Court granted OpenAI’s motion to dismiss <em>Raw Story Media </em>complaint.</strong></strong></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong><strong><strong>Nov. 7, 2024 – Court granted OpenAI’s motion to dismiss <em>Raw Story Media </em>complaint.</strong></strong></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The Court agreed with defendants that the Raw Story Media and AlterNet Media Inc. lacked Article III standing to assert their claims. The plaintiffs were found to lack a concrete injury-in-fact.</p></div></details>

<strong>Aug. 27, 2024 – The Intercept filed notice of supplemental authority ISO its opposition to OpenAI’s motion to dismiss </strong>

The Intercept filed a notice of supplemental authority regarding the Second Circuit’s decision in <em>Michael Grecco Prods., Inc. v. RADesign, Inc</em>. No. 23-1078, 2024 WL 3836578 (2d Cir. Aug. 16, 2024), which The Intercept argued supported its position in its opposition [90] to OpenAI’s motion to dismiss [89] that its DMCA § 1202(b) claims were not barred by the statute of limitations.&nbsp;&nbsp;

<p>The Intercept filed a notice of supplemental authority regarding the Second Circuit’s decision in <em>Michael Grecco Prods., Inc. v. RADesign, Inc</em>. No. 23-1078, 2024 WL 3836578 (2d Cir. Aug. 16, 2024), which The Intercept argued supported its position in its opposition [90] to OpenAI’s motion to dismiss [89] that its DMCA § 1202(b) claims were not barred by the statute of limitations.&nbsp;&nbsp;</p>

The Intercept explained that the Second Circuit had clarified that, under the discovery rule, the sophistication of a plaintiff did not automatically relieve the defendant of its burden to plead and prove a Copyright Act statute of limitations defense. In addition, it explained that the Second Circuit reiterated that, for dismissal on limitations grounds, it must be “clear from the face of the complaint” that the plaintiff, exercising due diligence, would have discovered its claims less than 3 years before it filed the lawsuit. Finally, it explained that the Second Circuit had emphasized that a defendant’s statute of limitations argument is an affirmative defense, so plaintiffs need not allege timeliness of their claims in the complaint.

<p>The Intercept explained that the Second Circuit had clarified that, under the discovery rule, the sophistication of a plaintiff did not automatically relieve the defendant of its burden to plead and prove a Copyright Act statute of limitations defense. In addition, it explained that the Second Circuit reiterated that, for dismissal on limitations grounds, it must be “clear from the face of the complaint” that the plaintiff, exercising due diligence, would have discovered its claims less than 3 years before it filed the lawsuit. Finally, it explained that the Second Circuit had emphasized that a defendant’s statute of limitations argument is an affirmative defense, so plaintiffs need not allege timeliness of their claims in the complaint.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Aug. 27, 2024 – The Intercept filed notice of supplemental authority ISO its opposition to OpenAI’s motion to dismiss </strong></h2></summary><div class="wp-block-contentpilot-accordion__content">

</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Aug. 27, 2024 – The Intercept filed notice of supplemental authority ISO its opposition to OpenAI’s motion to dismiss </strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The Intercept filed a notice of supplemental authority regarding the Second Circuit’s decision in <em>Michael Grecco Prods., Inc. v. RADesign, Inc</em>. No. 23-1078, 2024 WL 3836578 (2d Cir. Aug. 16, 2024), which The Intercept argued supported its position in its opposition [90] to OpenAI’s motion to dismiss [89] that its DMCA § 1202(b) claims were not barred by the statute of limitations.&nbsp;&nbsp;</p><p>The Intercept explained that the Second Circuit had clarified that, under the discovery rule, the sophistication of a plaintiff did not automatically relieve the defendant of its burden to plead and prove a Copyright Act statute of limitations defense. In addition, it explained that the Second Circuit reiterated that, for dismissal on limitations grounds, it must be “clear from the face of the complaint” that the plaintiff, exercising due diligence, would have discovered its claims less than 3 years before it filed the lawsuit. Finally, it explained that the Second Circuit had emphasized that a defendant’s statute of limitations argument is an affirmative defense, so plaintiffs need not allege timeliness of their claims in the complaint.</p></div></details>

<strong>Aug. 22, 2024 – OpenAI filed notice of supplemental authority ISO its motion to dismiss in each case </strong>

OpenAI filed a notice of supplemental authority regarding a court order in <a href="https://bakerlawstaging.contentpilot.net/andersen-v-stability-ai/" target="_blank" rel="noreferrer noopener">Andersen v. Stability AI</a>, which granted defendants’ motions to dismiss plaintiffs’ DMCA § 1202(b) claims. OpenAI argued the court order supported its motions to dismiss [68 &amp; 89] the complaints filed by Raw Story Media [1] and The Intercept Media [87]. OpenAI explained that the <em>Andersen</em> court held plaintiffs’ § 1202(b) claims failed “[b]ecause there are no allegations that any output from [the models] was identical to a plaintiff’s work,” an argument OpenAI had asserted in its motions to dismiss each complaint.&nbsp;

<p>OpenAI filed a notice of supplemental authority regarding a court order in <a href="https://bakerlawstaging.contentpilot.net/andersen-v-stability-ai/" target="_blank" rel="noreferrer noopener">Andersen v. Stability AI</a>, which granted defendants’ motions to dismiss plaintiffs’ DMCA § 1202(b) claims. OpenAI argued the court order supported its motions to dismiss [68 &amp; 89] the complaints filed by Raw Story Media [1] and The Intercept Media [87]. OpenAI explained that the <em>Andersen</em> court held plaintiffs’ § 1202(b) claims failed “[b]ecause there are no allegations that any output from [the models] was identical to a plaintiff’s work,” an argument OpenAI had asserted in its motions to dismiss each complaint.&nbsp;</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Aug. 22, 2024 – OpenAI filed notice of supplemental authority ISO its motion to dismiss in each case </strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Aug. 22, 2024 – OpenAI filed notice of supplemental authority ISO its motion to dismiss in each case </strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>OpenAI filed a notice of supplemental authority regarding a court order in <a href="https://bakerlawstaging.contentpilot.net/andersen-v-stability-ai/" target="_blank" rel="noreferrer noopener">Andersen v. Stability AI</a>, which granted defendants’ motions to dismiss plaintiffs’ DMCA § 1202(b) claims. OpenAI argued the court order supported its motions to dismiss [68 &amp; 89] the complaints filed by Raw Story Media [1] and The Intercept Media [87]. OpenAI explained that the <em>Andersen</em> court held plaintiffs’ § 1202(b) claims failed “[b]ecause there are no allegations that any output from [the models] was identical to a plaintiff’s work,” an argument OpenAI had asserted in its motions to dismiss each complaint.&nbsp;</p></div></details>

<strong>July 15, 2024 – The Intercept filed a supplemental brief opposing Microsoft’s and OpenAI’s motions to dismiss</strong>

The Intercept filed a supplemental brief in opposition to Microsoft’s [88] and OpenAI’s [89] renewed motions to dismiss its amended complaint [87]. Regarding standing, The Intercept argued that it had sufficiently alleged a concrete injury based on the defendants’ “interference with its copyright-protected property,” which was analogous to copyright infringement claims for which public dissemination is not required. However, if the court agreed with defendants that public dissemination of CMI-less copies of its works was required, it argued it was entitled to jurisdictional discovery.

<p>The Intercept filed a supplemental brief in opposition to Microsoft’s [88] and OpenAI’s [89] renewed motions to dismiss its amended complaint [87]. Regarding standing, The Intercept argued that it had sufficiently alleged a concrete injury based on the defendants’ “interference with its copyright-protected property,” which was analogous to copyright infringement claims for which public dissemination is not required. However, if the court agreed with defendants that public dissemination of CMI-less copies of its works was required, it argued it was entitled to jurisdictional discovery. </p>

As for OpenAI’s statute of limitations argument, The Intercept contended that it “has plausibly alleged that OpenAI employed the same CMI removal processes,” web scraping algorithms designed to remove CMI from news articles, “within the last three years.” It also argued that the discovery rule, if applied, may extend the applicable statute of limitations period.

<p>As for OpenAI’s statute of limitations argument, The Intercept contended that it “has plausibly alleged that OpenAI employed the same CMI removal processes,” web scraping algorithms designed to remove CMI from news articles, “within the last three years.” It also argued that the discovery rule, if applied, may extend the applicable statute of limitations period.</p>

Regarding the DMCA’s double-scienter requirement, The Intercept argued that defendants had reason to know their removal of CMI would (1) conceal their own infringement during training from users by omitting CMI in outputs; (2) conceal the infringing nature of outputs from users; and (3) induce, enable, and facilitate users to infringe by further distributing infringing outputs to others, as some users would be less likely to do so if they knew the outputs were infringing. And in response to defendants’ argument that ordinary users would never produce the regurgitations attached to its complaint, it emphasized that “ChatGPT is far less prone to regurgitation now than it was years ago.”

<p>Regarding the DMCA’s double-scienter requirement, The Intercept argued that defendants had reason to know their removal of CMI would (1) conceal their own infringement during training from users by omitting CMI in outputs; (2) conceal the infringing nature of outputs from users; and (3) induce, enable, and facilitate users to infringe by further distributing infringing outputs to others, as some users would be less likely to do so if they knew the outputs were infringing. And in response to defendants’ argument that ordinary users would never produce the regurgitations attached to its complaint, it emphasized that “ChatGPT is far less prone to regurgitation now than it was years ago.”</p>

The Intercept also argued it had plausibly alleged its § 1202(b)(3) claims by including allegations that defendants “distributed the training data, from which CMI had been removed, with each other.” It pointed to an interview quote from Microsoft’s CEO that “we have the data,” leading to a “plausible inference” that Microsoft and OpenAI exchanged the training data. Further, it argued that defendants had reason to know such distribution of CMI-less copies would conceal their infringement, as “clearly the recipient of an unattributed wall of text … would have no idea that it was an unauthorized copy of The Intercept’s works.”

<p>The Intercept also argued it had plausibly alleged its § 1202(b)(3) claims by including allegations that defendants “distributed the training data, from which CMI had been removed, with each other.” It pointed to an interview quote from Microsoft’s CEO that “we have the data,” leading to a “plausible inference” that Microsoft and OpenAI exchanged the training data. Further, it argued that defendants had reason to know such distribution of CMI-less copies would conceal their infringement, as “clearly the recipient of an unattributed wall of text … would have no idea that it was an unauthorized copy of The Intercept’s works.” </p>

Finally, The Intercept rebutted Microsoft’s arguments regarding its involvement in creating the training datasets at issue by relying upon allegations concerning Microsoft’s admission that “we have the data” as well as its “close partnership” with OpenAI and provision of bespoke supercomputing resources used to power ChatGPT.

<p>Finally, The Intercept rebutted Microsoft’s arguments regarding its involvement in creating the training datasets at issue by relying upon allegations concerning Microsoft’s admission that “we have the data” as well as its “close partnership” with OpenAI and provision of bespoke supercomputing resources used to power ChatGPT.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>July 15, 2024 – The Intercept filed a supplemental brief opposing Microsoft’s and OpenAI’s motions to dismiss</strong></h2></summary><div class="wp-block-contentpilot-accordion__content">







</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>July 15, 2024 – The Intercept filed a supplemental brief opposing Microsoft’s and OpenAI’s motions to dismiss</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The Intercept filed a supplemental brief in opposition to Microsoft’s [88] and OpenAI’s [89] renewed motions to dismiss its amended complaint [87]. Regarding standing, The Intercept argued that it had sufficiently alleged a concrete injury based on the defendants’ “interference with its copyright-protected property,” which was analogous to copyright infringement claims for which public dissemination is not required. However, if the court agreed with defendants that public dissemination of CMI-less copies of its works was required, it argued it was entitled to jurisdictional discovery. </p><p>As for OpenAI’s statute of limitations argument, The Intercept contended that it “has plausibly alleged that OpenAI employed the same CMI removal processes,” web scraping algorithms designed to remove CMI from news articles, “within the last three years.” It also argued that the discovery rule, if applied, may extend the applicable statute of limitations period.</p><p>Regarding the DMCA’s double-scienter requirement, The Intercept argued that defendants had reason to know their removal of CMI would (1) conceal their own infringement during training from users by omitting CMI in outputs; (2) conceal the infringing nature of outputs from users; and (3) induce, enable, and facilitate users to infringe by further distributing infringing outputs to others, as some users would be less likely to do so if they knew the outputs were infringing. And in response to defendants’ argument that ordinary users would never produce the regurgitations attached to its complaint, it emphasized that “ChatGPT is far less prone to regurgitation now than it was years ago.”</p><p>The Intercept also argued it had plausibly alleged its § 1202(b)(3) claims by including allegations that defendants “distributed the training data, from which CMI had been removed, with each other.” It pointed to an interview quote from Microsoft’s CEO that “we have the data,” leading to a “plausible inference” that Microsoft and OpenAI exchanged the training data. Further, it argued that defendants had reason to know such distribution of CMI-less copies would conceal their infringement, as “clearly the recipient of an unattributed wall of text … would have no idea that it was an unauthorized copy of The Intercept’s works.” </p><p>Finally, The Intercept rebutted Microsoft’s arguments regarding its involvement in creating the training datasets at issue by relying upon allegations concerning Microsoft’s admission that “we have the data” as well as its “close partnership” with OpenAI and provision of bespoke supercomputing resources used to power ChatGPT.</p></div></details>

<strong>July 8, 2024 – Microsoft and OpenAI filed supplemental briefs ISO their motions to dismiss The Intercept’s amended complaint</strong>

<em>Microsoft</em>. Microsoft filed a supplemental brief in support of its motion to dismiss The Intercept’s amended complaint [87]. Microsoft first argued that The Intercept does not have standing because ChatGPT and Copilot “have never generated, and no facts plausibly suggest they are likely ever to generate, outputs matching The Intercept’s copyrighted works” under “realistic conditions.” As a result, “there is no public dissemination of a CMI-less copy of The Intercept’s works; [and] without public dissemination, there is no concrete injury.” And even assuming Microsoft shared CMI-less copies with OpenAI, “dissemination between the Defendants is not the sort of <em>public</em> lack of attribution that may cause injury.”

<p><em>Microsoft</em>. Microsoft filed a supplemental brief in support of its motion to dismiss The Intercept’s amended complaint [87]. Microsoft first argued that The Intercept does not have standing because ChatGPT and Copilot “have never generated, and no facts plausibly suggest they are likely ever to generate, outputs matching The Intercept’s copyrighted works” under “realistic conditions.” As a result, “there is no public dissemination of a CMI-less copy of The Intercept’s works; [and] without public dissemination, there is no concrete injury.” And even assuming Microsoft shared CMI-less copies with OpenAI, “dissemination between the Defendants is not the sort of <em>public</em> lack of attribution that may cause injury.”</p>

Second, Microsoft contended that it was not involved in creating the datasets used to train ChatGPT and Copilot. It explained that The Intercept’s allegations related to OpenAI’s use of “Dragnet and Newspaper” algorithms to scrape copyrighted articles when creating the WebText datasets were aimed at OpenAI, not Microsoft. Further, The Intercept’s reliance on “Microsoft’s general collaboration with OpenAI and provision of computing and cloud technology” was “a legally insufficient basis” for a § 1202(b) claim.

<p>Second, Microsoft contended that it was not involved in creating the datasets used to train ChatGPT and Copilot. It explained that The Intercept’s allegations related to OpenAI’s use of “Dragnet and Newspaper” algorithms to scrape copyrighted articles when creating the WebText datasets were aimed at OpenAI, not Microsoft. Further, The Intercept’s reliance on “Microsoft’s general collaboration with OpenAI and provision of computing and cloud technology” was “a legally insufficient basis” for a § 1202(b) claim.</p>

Finally, Microsoft argued that The Intercept did not plausibly establish § 1202(b)’s double-scienter requirement, explaining “[i]t is objectively implausible that removal of CMI could ever facilitate or conceal copyright infringement because the GPT-based tools are unlikely to ever reproduce The Intercept’s content <em>at all</em>.” Further, Microsoft’s lack of involvement in creating the datasets at issue prevented it from having “any reason to believe that removal of CMI would facilitate piracy” of The Intercept’s works.

<p>Finally, Microsoft argued that The Intercept did not plausibly establish § 1202(b)’s double-scienter requirement, explaining “[i]t is objectively implausible that removal of CMI could ever facilitate or conceal copyright infringement because the GPT-based tools are unlikely to ever reproduce The Intercept’s content <em>at all</em>.” Further, Microsoft’s lack of involvement in creating the datasets at issue prevented it from having “any reason to believe that removal of CMI would facilitate piracy” of The Intercept’s works.</p>

<em>OpenAI</em>. OpenAI likewise filed a supplemental brief, characterizing The Intercept’s lawsuit as an improper attempt to use DMCA § 1202(b) as “a back-door to a claim for copyright infringement” because The Intercept failed to register its copyrighted works prior to the alleged infringement and thus could not pursue statutory damages. It emphasized that “every court to have considered whether a Section 1202 claim can be pled” based on similar conduct had concluded that it cannot, citing <a href="https://bakerlawstaging.contentpilot.net/the-copilot-litigation/">Doe v. GitHub, Inc</a>. and <a href="https://bakerlawstaging.contentpilot.net/kadrey-v-meta/">Kadrey v. Meta</a>.

<p><em>OpenAI</em>. OpenAI likewise filed a supplemental brief, characterizing The Intercept’s lawsuit as an improper attempt to use DMCA § 1202(b) as “a back-door to a claim for copyright infringement” because The Intercept failed to register its copyrighted works prior to the alleged infringement and thus could not pursue statutory damages. It emphasized that “every court to have considered whether a Section 1202 claim can be pled” based on similar conduct had concluded that it cannot, citing <a href="https://bakerlawstaging.contentpilot.net/the-copilot-litigation/">Doe v. GitHub, Inc</a>. and <a href="https://bakerlawstaging.contentpilot.net/kadrey-v-meta/">Kadrey v. Meta</a>.</p>

Like Microsoft, OpenAI argued that The Intercept lacks standing because “the exclusion of CMI from internal datasets that never see the light of day is not, standing alone, a concrete injury that could satisfy Article III’s requirement.” As for the alleged “regurgitations” of CMI-less copies of The Intercept’s works generated by ChatGPT, OpenAI argued that “The Intercept does not allege that any ChatGPT user—other than The Intercept—has ever used similar prompts or otherwise caused ChatGPT to output portions” of such works.

<p>Like Microsoft, OpenAI argued that The Intercept lacks standing because “the exclusion of CMI from internal datasets that never see the light of day is not, standing alone, a concrete injury that could satisfy Article III’s requirement.” As for the alleged “regurgitations” of CMI-less copies of The Intercept’s works generated by ChatGPT, OpenAI argued that “The Intercept does not allege that any ChatGPT user—other than The Intercept—has ever used similar prompts or otherwise caused ChatGPT to output portions” of such works.</p>

Regarding the merits, OpenAI first argued that The Intercept’s § 1202(b)(1) claim was time-barred because it “hinge[d] on an alleged act of CMI removal” in connection with the WebText dataset “that occurred five years before it chose to file this action,” outside of the applicable three-year statute of limitations.

<p>Regarding the merits, OpenAI first argued that The Intercept’s § 1202(b)(1) claim was time-barred because it “hinge[d] on an alleged act of CMI removal” in connection with the WebText dataset “that occurred five years before it chose to file this action,” outside of the applicable three-year statute of limitations.</p>

Moreover, OpenAI pointed out a lack of allegations that plausibly establish § 1202(b)’s double-scienter requirement. OpenAI explained that its alleged removal of CMI in internal datasets could not conceal infringement because “the absence of CMI in a <em>non-public</em> dataset cannot have any effect on what the public does or does not know.” As for CMI-less ChatGPT outputs, OpenAI explained that The Intercept failed to allege that OpenAI had “reasonable grounds to know” that (1) ChatGPT would regurgitate any of The Intercept’s articles at the time of such CMI removal or (2) that “its alleged exclusion of CMI from The Intercept’s articles in training datasets had any ‘identifiable connection’ to the inclusion or exclusion of CMI in potential ChatGPT outputs.”

<p>Moreover, OpenAI pointed out a lack of allegations that plausibly establish § 1202(b)’s double-scienter requirement. OpenAI explained that its alleged removal of CMI in internal datasets could not conceal infringement because “the absence of CMI in a <em>non-public</em> dataset cannot have any effect on what the public does or does not know.” As for CMI-less ChatGPT outputs, OpenAI explained that The Intercept failed to allege that OpenAI had “reasonable grounds to know” that (1) ChatGPT would regurgitate any of The Intercept’s articles at the time of such CMI removal or (2) that “its alleged exclusion of CMI from The Intercept’s articles in training datasets had any ‘identifiable connection’ to the inclusion or exclusion of CMI in potential ChatGPT outputs.”</p>

Finally, OpenAI challenged The Intercept’s § 1202(b)(3) claim as “conclusory,” noting the absence of specific allegations as to “when, why, or how” OpenAI “shared” identical but CMI-less copies of The Intercept’s works with Microsoft.

<p>Finally, OpenAI challenged The Intercept’s § 1202(b)(3) claim as “conclusory,” noting the absence of specific allegations as to “when, why, or how” OpenAI “shared” identical but CMI-less copies of The Intercept’s works with Microsoft.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>July 8, 2024 – Microsoft and OpenAI filed supplemental briefs ISO their motions to dismiss The Intercept’s amended complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content">













</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>July 8, 2024 – Microsoft and OpenAI filed supplemental briefs ISO their motions to dismiss The Intercept’s amended complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p><em>Microsoft</em>. Microsoft filed a supplemental brief in support of its motion to dismiss The Intercept’s amended complaint [87]. Microsoft first argued that The Intercept does not have standing because ChatGPT and Copilot “have never generated, and no facts plausibly suggest they are likely ever to generate, outputs matching The Intercept’s copyrighted works” under “realistic conditions.” As a result, “there is no public dissemination of a CMI-less copy of The Intercept’s works; [and] without public dissemination, there is no concrete injury.” And even assuming Microsoft shared CMI-less copies with OpenAI, “dissemination between the Defendants is not the sort of <em>public</em> lack of attribution that may cause injury.”</p><p>Second, Microsoft contended that it was not involved in creating the datasets used to train ChatGPT and Copilot. It explained that The Intercept’s allegations related to OpenAI’s use of “Dragnet and Newspaper” algorithms to scrape copyrighted articles when creating the WebText datasets were aimed at OpenAI, not Microsoft. Further, The Intercept’s reliance on “Microsoft’s general collaboration with OpenAI and provision of computing and cloud technology” was “a legally insufficient basis” for a § 1202(b) claim.</p><p>Finally, Microsoft argued that The Intercept did not plausibly establish § 1202(b)’s double-scienter requirement, explaining “[i]t is objectively implausible that removal of CMI could ever facilitate or conceal copyright infringement because the GPT-based tools are unlikely to ever reproduce The Intercept’s content <em>at all</em>.” Further, Microsoft’s lack of involvement in creating the datasets at issue prevented it from having “any reason to believe that removal of CMI would facilitate piracy” of The Intercept’s works.</p><p><em>OpenAI</em>. OpenAI likewise filed a supplemental brief, characterizing The Intercept’s lawsuit as an improper attempt to use DMCA § 1202(b) as “a back-door to a claim for copyright infringement” because The Intercept failed to register its copyrighted works prior to the alleged infringement and thus could not pursue statutory damages. It emphasized that “every court to have considered whether a Section 1202 claim can be pled” based on similar conduct had concluded that it cannot, citing <a href="https://bakerlawstaging.contentpilot.net/the-copilot-litigation/">Doe v. GitHub, Inc</a>. and <a href="https://bakerlawstaging.contentpilot.net/kadrey-v-meta/">Kadrey v. Meta</a>.</p><p>Like Microsoft, OpenAI argued that The Intercept lacks standing because “the exclusion of CMI from internal datasets that never see the light of day is not, standing alone, a concrete injury that could satisfy Article III’s requirement.” As for the alleged “regurgitations” of CMI-less copies of The Intercept’s works generated by ChatGPT, OpenAI argued that “The Intercept does not allege that any ChatGPT user—other than The Intercept—has ever used similar prompts or otherwise caused ChatGPT to output portions” of such works.</p><p>Regarding the merits, OpenAI first argued that The Intercept’s § 1202(b)(1) claim was time-barred because it “hinge[d] on an alleged act of CMI removal” in connection with the WebText dataset “that occurred five years before it chose to file this action,” outside of the applicable three-year statute of limitations.</p><p>Moreover, OpenAI pointed out a lack of allegations that plausibly establish § 1202(b)’s double-scienter requirement. OpenAI explained that its alleged removal of CMI in internal datasets could not conceal infringement because “the absence of CMI in a <em>non-public</em> dataset cannot have any effect on what the public does or does not know.” As for CMI-less ChatGPT outputs, OpenAI explained that The Intercept failed to allege that OpenAI had “reasonable grounds to know” that (1) ChatGPT would regurgitate any of The Intercept’s articles at the time of such CMI removal or (2) that “its alleged exclusion of CMI from The Intercept’s articles in training datasets had any ‘identifiable connection’ to the inclusion or exclusion of CMI in potential ChatGPT outputs.”</p><p>Finally, OpenAI challenged The Intercept’s § 1202(b)(3) claim as “conclusory,” noting the absence of specific allegations as to “when, why, or how” OpenAI “shared” identical but CMI-less copies of The Intercept’s works with Microsoft.</p></div></details>

<strong>June 21, 2024 – The Intercept filed amended complaint</strong>

The Intercept amended its complaint against OpenAI and Microsoft in an attempt to address the lack of specificity in its original complaint. The amended complaint retained both DMCA claims asserted against each defendant:

<p>The Intercept amended its complaint against OpenAI and Microsoft in an attempt to address the lack of specificity in its original complaint. The amended complaint retained both DMCA claims asserted against each defendant:</p>

An organized collection of items displayed in a specific order.

core/list

List


<ol class="wp-block-list">
<li>Violation of § 1202(b)(1) through the intentional removal of CMI from copies of The Intercept’s copyrighted works and inclusion of them in training datasets for ChatGPT and Copilot (Counts 1 &amp; 3).</li>



<li>Violation of § 1202(b)(3) by sharing CMI-less copies of The Intercept’s copyrighted works in connection with the development of ChatGPT and Copilot (Counts 2 &amp; 4).</li>
</ol>


<ol><li>Violation of § 1202(b)(1) through the intentional removal of CMI from copies of The Intercept’s copyrighted works and inclusion of them in training datasets for ChatGPT and Copilot (Counts 1 &amp; 3).</li><li>Violation of § 1202(b)(3) by sharing CMI-less copies of The Intercept’s copyrighted works in connection with the development of ChatGPT and Copilot (Counts 2 &amp; 4).</li></ol>

The amended complaint attempted to add specificity by explaining the process by which defendants curated and cleaned their LLM training datasets. It explained that OpenAI admitted to using “Newspaper” and “Dragnet” web scraping algorithms to develop the WebText dataset used to train ChatGPT and how those algorithms removed CMI from copies that were “substantively identical” to the original articles. The Intercept also detailed how scientists created an “approximation” of the WebText dataset, which it relied on to identify which of its articles had been included.

<p>The amended complaint attempted to add specificity by explaining the process by which defendants curated and cleaned their LLM training datasets. It explained that OpenAI admitted to using “Newspaper” and “Dragnet” web scraping algorithms to develop the WebText dataset used to train ChatGPT and how those algorithms removed CMI from copies that were “substantively identical” to the original articles. The Intercept also detailed how scientists created an “approximation” of the WebText dataset, which it relied on to identify which of its articles had been included.</p>

Moreover, the amended complaint added details alleging the tendency of ChatGPT and Copilot to regurgitate copyrighted works without CMI in its outputs. It asserted that OpenAI possessed “a repository of every regurgitation of [p]laintiff’s works” due to OpenAI’s retention of users’ chat histories with ChatGPT. It also claimed that OpenAI has “effectively admitted that regurgitation of copyrighted works is infringement,” relying on copyright-related error messages received from ChatGPT when attempting to obtain the same regurgitations attached to the complaint in <a href="https://bakerlawstaging.contentpilot.net/daily-news-v-microsoft/">Daily News v. Microsoft</a>.

<p>Moreover, the amended complaint added details alleging the tendency of ChatGPT and Copilot to regurgitate copyrighted works without CMI in its outputs. It asserted that OpenAI possessed “a repository of every regurgitation of [p]laintiff’s works” due to OpenAI’s retention of users’ chat histories with ChatGPT. It also claimed that OpenAI has “effectively admitted that regurgitation of copyrighted works is infringement,” relying on copyright-related error messages received from ChatGPT when attempting to obtain the same regurgitations attached to the complaint in <a href="https://bakerlawstaging.contentpilot.net/daily-news-v-microsoft/">Daily News v. Microsoft</a>.</p>

As for the DMCA’s double scienter requirement, The Intercept relied on OpenAI’s creation of opt-opt tools for copyright owners, as well as each defendant’s pledge to indemnify ChatGPT and Copilot users against copyright infringement claims, to allege that defendants had reason to know their removal of CMI and distribution of CMI-less copies would induce, enable, facilitate, or conceal copyright infringement.

<p>As for the DMCA’s double scienter requirement, The Intercept relied on OpenAI’s creation of opt-opt tools for copyright owners, as well as each defendant’s pledge to indemnify ChatGPT and Copilot users against copyright infringement claims, to allege that defendants had reason to know their removal of CMI and distribution of CMI-less copies would induce, enable, facilitate, or conceal copyright infringement.</p>

The amended complaint also attempted to explain the relationship between Microsoft and OpenAI in greater detail.

<p>The amended complaint also attempted to explain the relationship between Microsoft and OpenAI in greater detail. </p>

Finally, the amended complaint included more than 600 pages of exhibits, including a list of The Intercept’s copyrighted works as well as a list describing which of those works were included in an approximation of the WebText dataset.

<p>Finally, the amended complaint included more than 600 pages of exhibits, including a list of The Intercept’s copyrighted works as well as a list describing which of those works were included in an approximation of the WebText dataset.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>June 21, 2024 – The Intercept filed amended complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content">











</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>June 21, 2024 – The Intercept filed amended complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The Intercept amended its complaint against OpenAI and Microsoft in an attempt to address the lack of specificity in its original complaint. The amended complaint retained both DMCA claims asserted against each defendant:</p><ol><li>Violation of § 1202(b)(1) through the intentional removal of CMI from copies of The Intercept’s copyrighted works and inclusion of them in training datasets for ChatGPT and Copilot (Counts 1 &amp; 3).</li><li>Violation of § 1202(b)(3) by sharing CMI-less copies of The Intercept’s copyrighted works in connection with the development of ChatGPT and Copilot (Counts 2 &amp; 4).</li></ol><p>The amended complaint attempted to add specificity by explaining the process by which defendants curated and cleaned their LLM training datasets. It explained that OpenAI admitted to using “Newspaper” and “Dragnet” web scraping algorithms to develop the WebText dataset used to train ChatGPT and how those algorithms removed CMI from copies that were “substantively identical” to the original articles. The Intercept also detailed how scientists created an “approximation” of the WebText dataset, which it relied on to identify which of its articles had been included.</p><p>Moreover, the amended complaint added details alleging the tendency of ChatGPT and Copilot to regurgitate copyrighted works without CMI in its outputs. It asserted that OpenAI possessed “a repository of every regurgitation of [p]laintiff’s works” due to OpenAI’s retention of users’ chat histories with ChatGPT. It also claimed that OpenAI has “effectively admitted that regurgitation of copyrighted works is infringement,” relying on copyright-related error messages received from ChatGPT when attempting to obtain the same regurgitations attached to the complaint in <a href="https://bakerlawstaging.contentpilot.net/daily-news-v-microsoft/">Daily News v. Microsoft</a>.</p><p>As for the DMCA’s double scienter requirement, The Intercept relied on OpenAI’s creation of opt-opt tools for copyright owners, as well as each defendant’s pledge to indemnify ChatGPT and Copilot users against copyright infringement claims, to allege that defendants had reason to know their removal of CMI and distribution of CMI-less copies would induce, enable, facilitate, or conceal copyright infringement.</p><p>The amended complaint also attempted to explain the relationship between Microsoft and OpenAI in greater detail. </p><p>Finally, the amended complaint included more than 600 pages of exhibits, including a list of The Intercept’s copyrighted works as well as a list describing which of those works were included in an approximation of the WebText dataset.</p></div></details>

<strong>June 6, 2024 – Order granting leave for The Intercept to amend its complaint</strong>

After considering the parties’ briefings and oral argument on defendants’ motions to dismiss, the Court issued an order granting leave for The Intercept to file an amended complaint “to attempt to rectify some of the seeming lack of specificity in its current complaint.” It ordered The Intercept to file an amended complaint by June 21, 2024.

<p>After considering the parties’ briefings and oral argument on defendants’ motions to dismiss, the Court issued an order granting leave for The Intercept to file an amended complaint “to attempt to rectify some of the seeming lack of specificity in its current complaint.” It ordered The Intercept to file an amended complaint by June 21, 2024.</p>

The Court also explained that defendants may file a supplemental brief in support of their motions to dismiss by July 8, 2024, and The Intercept may then file a supplemental brief in opposition by July 15, 2024.

<p>The Court also explained that defendants may file a supplemental brief in support of their motions to dismiss by July 8, 2024, and The Intercept may then file a supplemental brief in opposition by July 15, 2024.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>June 6, 2024 – Order granting leave for The Intercept to amend its complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content">

</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>June 6, 2024 – Order granting leave for The Intercept to amend its complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>After considering the parties’ briefings and oral argument on defendants’ motions to dismiss, the Court issued an order granting leave for The Intercept to file an amended complaint “to attempt to rectify some of the seeming lack of specificity in its current complaint.” It ordered The Intercept to file an amended complaint by June 21, 2024.</p><p>The Court also explained that defendants may file a supplemental brief in support of their motions to dismiss by July 8, 2024, and The Intercept may then file a supplemental brief in opposition by July 15, 2024.</p></div></details>

The Intercept Media and Raw Story Media v. OpenAI

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