There is a great deal of litigation pending, starting with respect to AI-generated images and texts and whether such images and texts infringe upon copyrights held by original creators and holders of those copyrights. The most-watched case is pending in the federal court in the Northern District of California, and it is called Andersen v. Stability AI, Ltd. (N.Dist. Cal.). In that case, a number of plaintiffs have sued a number of companies that commercially provide AI image-generating software/web platforms for users. For now, the case does not involve AI-generated text. The plaintiffs claim that, in various ways, the AI programs violate U.S. copyright laws. The claims can be summarized as follows:

• Direct infringement — this is based on allegations that the AI companies downloaded or otherwise acquired copies of five billion copyrighted images without permission and used those images to train (“training images”) the AI program at issue and caused those images to be stored at and incorporated in the AI program as compressed copies; unauthorized acquisition and storage of copyrighted images can, under certain circumstances, be deemed copyright infringement.
• Inducing vicarious copyright infringement — this legal claim asserts that, by distributing the AI program via third-party downloads and use/deployment of the AI program, the defendants are inducing consumers and other third parties to engage in copyright infringement; inducement and/or facilitation by one party of infringement by another is a form of infringement under U.S. copyright laws.
• Unauthorized creation of derivative works — under U.S. copyright law, copyright holders can prohibit the creation of derivative works; the plaintiffs claim that the “output images” provided by the AI program to consumers are derivative works that constitute copyright infringement.
• Digital Millennium Copyright Act (“DMCA”) claims — the DMCA prohibits persons from removing or altering copyright management information and other aspects of digital images, such as removing a copyright notice, the name of, and other identifying information about, the author of a work, etc.; the plaintiffs claim that the original training images had such information removed before providing the images to the AI program.

After the Andersen case was originally filed, in the usual course of litigation, the defendants filed various written Motions to have the various legal claims dismissed. The only claim that the court allowed was the direct infringement claim. The court found that unauthorized acquisition and storage claims were adequately stated in the original complaint. See Andersen v. Stability AI, Ltd. (N.Dist. Cal. Oct. 30, 2023). See the link above. Note that for a Motion To Dismiss, the court must assume “as true” any facts that are pleaded in the Complaint. Whether such facts are actually true will be determined in the later stages of the case. The court granted the plaintiffs an opportunity to amend and rewrite their claims.

The plaintiffs proceeded to amend their Complaint. The Complaint retained the direct infringement, inducement, and the DMCA-related claims. The plaintiffs dropped any infringement claim that the output images were derivatives of the original works. New Motions to Dismiss were filed.

On August 12, 2024, the court issued its opinion on the new Motions To Dismiss. Since the direct infringement claim had already been approved, the court addressed the inducement and DMCA claims. The court agreed that the inducement claim was sufficiently pleaded based on the fact — taken as true — that the AI program that was downloaded and used contained compressed copies of training images. That fact alone was sufficient for the inducement claim to go forward. The DMCA claims were dismissed since the plaintiffs had no facts to support the claim that copyright management information had been removed by the defendants. The court also dismissed a number of state law-based claims.

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