As we have discussed several times on this blog, there are major issues with copyright laws and the use of generative artificial intelligence (“AI”) programs like OpenAI’s chatbot ChatGPT. At least two dozen cases have been filed by various plaintiffs and groups around the United States making various copyright infringement claims against the companies that train and operate AI-generative programs.

At least a couple of the copyright plaintiffs have attempted to bring claims under the Digital Millennium Copyright Act (“DMCA”). In particular, the plaintiffs have attempted to assert that AI content generation programs have violated the DMCA by removing what is called “copyright management information” (“CMI”). CMI refers to various details about a copyrighted work that is attached to a digital copy of the work. These details include information like the title, author’s name, the owner of the copyright, etc. The DMCA prohibits intentionally removing or altering the CMI without permission.

In general, the copyright plaintiffs have claimed that the CMI information was removed from images and text that were used by the AI owners during the training process used for the AI programs/modules. The plaintiffs are keen to succeed on DMCA claims because the potential money damages available are significantly higher than standard copyright infringement claims.

In two major case rulings, the DMCA CMI claims have been dismissed. The first case, Andersen v. Stability AI, Ltd. (U.S. N.Dist. Cal. 2024), dismissed the DMCA CMI claims on a Motion To Dismiss based on the fact that plaintiffs had no facts to support the claim (or if such facts did exist, the plaintiffs did not put them in their Complaint or otherwise provide them to the court). In short, the DMCA CMI claims were dismissed with prejudice because the plaintiffs had no evidence that the AI training programs actually removed the CMI.

In the second case — Raw Story Media, Inc. v. OpenAI, Inc., Case No. 24 Civ. 01514, Dist. Court, SD New York 2024 — the plaintiffs also claimed that the CMI was removed and had some evidence to support that claim. However, after examining the legal issues, the federal court judge held that the plaintiffs had no basis for their claim — standing — because there was no damage or injury to the plaintiffs in the simple removal of the CMI. In effect, the judge held that, for an injury to occur, removal of the CMI had to be coupled with some sort of dissemination by the AI program/module. To date, none of the plaintiffs — in any of the cases — have asserted that the AI-generative programs are or have disseminated copies of the copyrighted works. Since there had been no dissemination of the copyrighted works without their associated CMI, the plaintiffs had no DMCA claims. Those parts of the case were dismissed (with leave to amend).

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