While it is true that the copyright cases are related and there will obviously be "overlapping discovery," it is not enough to surmount "the burden of forcing plaintiff into an unreasonably short discovery period," reads a response brief filed Friday by the Center for Investigative Reporting, a nonprofit news organization that filed its own copyright case against OpenAI and Microsoft in June. The New York Times and various other newspapers that have filed their own copyright lawsuits against OpenAI and Microsoft also filed their own thoughts on merging suits on Friday.
On Oct. 4, OpenAI and Microsoft filed a motion to consolidate the Center for Investigative Reporting case with the New York Times one, arguing that the center's case is "materially indistinguishable" from the Times suit, and said the San Francisco nonprofit, which publishes the magazine Mother Jones, "stands to benefit immediately from the progress already made in the consolidated cases."
White a discovery period of less than three months for a high-stakes copyright case involving artificial intelligence technology the defendants describe as novel might be "speedy," it is neither just nor inexpensive, the center said.
"OpenAI and Microsoft are attempting through consolidation to force this case into a discovery period of less than three months," the center's lawyer Matt Topic of Loevy & Loevy emailed Law360. "That is simply unreasonable, and based on the pace of discovery in the earlier cases, something the defendants themselves are likely unable to meet."
The New York Times had similar misgivings about having the organization join its suit. The newspaper's own copyright lawsuit against OpenAI and Microsoft dates to the waning days of 2023. The Times case has already been consolidated with a similar lawsuit from a collection of eight regional newspapers owned by private equity giant Alden Global Capital.
While those plaintiffs "do not have any objection in principle to consolidation with the Center for Investigative Reporting," they "will be prejudiced if defendants use consolidation as a hook to further delay this case," reads a response cosigned by the Times and the other newspapers, also filed in the U.S. District Court for the Southern District of New York.
"Defendants claim that consolidation ... would not delay the existing case schedule. But how could it not?" they asked.
Furthermore, the group had misgivings about any effort to consolidate the case with "both the California plaintiffs and the Authors Guild class action plaintiffs," a reference to lawsuits filed last year by writers Paul Tremblay and Mona Awad in California federal court, and a different New York lawsuit filed that year by the Authors Guild and a handful of bestselling novelists, both also alleging copyright infringement based on how OpenAI software is used.
"Consolidation should also end" with the Center for Investigative Reporting, say the various newspapers. "The difficulties arising from defendants' attempts to force the news plaintiffs to coordinate with not just each other, but also both the California plaintiffs and the Authors Guild class action plaintiffs on a deposition protocol have demonstrated that coordination across so many cases is untenable and inefficient," they said.
Justice "should not be stymied because defendants engaged in such wide-ranging infringement that many rights holders have sued them, and will likely continue to do so," the newspapers' response says. "Judicial economy is not served by forcing too many cooks into the same kitchen."
Counsel for the parties involved in the lawsuit did not respond to requests for comment Monday.
OpenAI is represented by Joseph C. Gratz and Eric K. Nikolaides of Morrison Foerster LLP, and by 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.
Microsoft Corp. is represented by Annette L. Hurst, Christopher J. Cariello, Sheryl Koval Garko and Laura Brooks Najemy of Orrick Herrington & Sutcliffe 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.
The Times is represented by Elisha Barron, Ian Crosby, Davida Brook, Ellie Dupler and Tamar Lusztig of Susman Godfrey LLP, and by Steven Lieberman, Jennifer B. Maisel and Kristen J. Logan of Rothwell Figg Ernst & Manbeck PC.
The other newspapers are represented by Steven Lieberman, Jennifer B. Maisel, Robert Parker, Jenny L. Colgate, Mark Rawls, Kristen J. Logan, Jeffrey A. Lindenbaum and Bryan B. Thompson of Rothwell Figg Ernst & Manbeck PC.
The cases are Center for Investigative Reporting Inc. v. OpenAI Inc. et al., case number 1:24-cv-04872, and New York Times Co. v. Microsoft Corp. et al., case number 1:23-cv-11195, both in the U.S. District Court for the Southern District of New York.
--Additional reporting by Lauren Berg, Ivan Moreno and Dorothy Atkins. Editing by Karin Roberts.
Update: This story has been updated to include a comment from counsel for the Center for Investigative Reporting.
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