In its Tuesday memorandum to fully dismiss three claims and part of a fourth in the Center for Investigative Reporting's case, OpenAI argued the complaint largely repeats allegations brought by other parties who have filed suit against it over its ChatGPT large language model product, and that many of the news organization's claims are "legally infirm."
OpenAI also said the news organization's "novel" claim that ChatGPT creates infringing abridgements of the group's articles should be dismissed, because one "must do more than just recite facts about an existing work" to be infringing the copyright on that work.
According to the memorandum, OpenAI also disputes the claims it is not seeking dismissal for and intends to push back on those claims during a later stage of the case.
"As in past cases, OpenAI does not seek dismissal of the core claim that 'training' a generative AI tool using copyrighted content is alleged infringement rather than fair use, because that claim is properly addressed on summary judgment rather than on the pleadings," the company said.
OpenAI told the Southern District of New York that the Center for Investigative Reporting's abridgement claim, its contributory infringement claims and the group's claims related to copyright management information under the Digital Millennium Copyright Act, or DMCA, all must be dismissed.
For the abridgement claim, OpenAI asserted that ChatGPT summarizing the news organization's articles is not the same as infringing the copyright on those articles, because doing so does not "reprise the original's protected expression."
As for the contributory infringement claims, OpenAI said the Center for Investigative Reporting cannot allege that the large language model maker is liable for third-party copyright infringement from ChatGPT users based only on its generalized knowledge that such infringement exists. The law requires OpenAI to know of specific instances of infringement from ChatGPT users to be liable, the company argued.
When it comes to the DMCA allegations, OpenAI said there is no actual injury alleged in the news organization's suit that the DMCA can relieve. OpenAI said the news organization's articles existing in the company's internal dataset causes no injury, and that "the DMCA simply does not address the conduct to which CIR seeks to ascribe liability."
Microsoft, which also faces claims in the news organization's suit related to its Copilot chatbot, filed its own dismissal bid in September asserting many of the same arguments as OpenAI and similarly foreshadowing its intent to defeat the majority of the suit on the basis of fair use.
"None of these claims has ever been substantiated by factual allegations about how actual real-world people use generative AI tools," Microsoft said. "And CIR's complaint offers nothing new, except the latest confirmation that these claims of harm are empty."
Matthew Topic, counsel for the Center for Investigative Reporting, said he believes the suit will survive dismissal in a Wednesday statement to Law360.
"We are glad to see OpenAI and Microsoft recognize that our core copyright claims are entitled to their day in court, and are confident the rest of the claims will survive dismissal," Topic said. "It is not and cannot be the law that tech companies are allowed to take whatever they want with no regard for the hard work of human creators like Center for Investigative Reporting and Mother Jones, without which their AI product could not exist."
Counsel for the parties did not immediately respond to requests for comment.
OpenAI is represented by Joseph C. Gratz and Eric K. Nikolaides of Morrison Foerster LLP and Robert A. Van Nest, Paven Malhotra, Michelle S. Ybarra, Nicholas S. Goldberg, Thomas E. Gorman, Katie Lynn Joyce, Christopher S. Sun and R. James Slaughter of Keker Van Nest & Peters LLP.
The Center for Investigative Reporting is represented by Jonathan Loevy, Michael Kanovitz, Lauren Carbajal, Stephen Stich Match, Matthew Topic, Thomas Kayes and Steven Art of Loevy & Loevy.
Microsoft Corp. is represented by Annette L. Hurst, Christopher J. Cariello, Sheryl Koval Garko and Laura Brooks Najemy of Orrick Herrington & Sutcliffe LLP.
The case is The Center for Investigative Reporting Inc. v. OpenAI Inc. et al., case number 1:24-cv-04872, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Andrew Karpan. Editing by Nicole Bleier.
Update: this article has been updated with a comment from the Center for Investigative Reporting's counsel.
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