Meta Platforms (parent company of Facebook) and OpenAI (creator of ChatGPT) have individually filed a Motion to Dismiss the class-action lawsuit filed by comedian Sarah Silverman and authors Richard Kadrey and Christopher Golden for alleged copyright infringement. These lawsuits highlight the potential legal consequences industry leading AI technologies will begin to face as these technologies become more mainstream. Both Meta and OpenAI moved to dismiss all claims except the direct infringement claim, as the companies plan to contest this claim later as a matter of law.

Meta and OpenAI moved to dismiss the authors’ claims alleging vicarious copyright infringement, violation of the Digital Millennium Copyright Act (DMCA), unfair competition, negligence, and unjust enrichment “so that [this case does] not proceed to discovery and beyond with legally infirm theories of liability.” OpenAI claimed that the authors “misconceive the scope of copyright, failing to take into account the limitations and exceptions (including fair use) that properly leave room for innovations like the large language models now at the forefront of artificial intelligence.”

OpenAI argued that the purpose of copyright law is “to promote the Progress of Science and useful Arts” by protecting an author’s expression of their ideas but “not the underlying idea itself, facts embodied within the author’s articulated message, or other building blocks of creative”, which are arguably the elements of authors’ works that would be useful to OpenAI’s ChatGPT training model. According to OpenAI, Silverman’s attempt to convince the court that every ChatGPT output represents a derivative work, “regardless of whether there are any similarities between the output and the training works” is an “erroneous legal conclusion.” 

While both Meta and OpenAI stated that their use of the books when training their respective AI programs was of “quintessential fair use,” it appears the parties plan to address the question of fair use more thoroughly at a later date, with a more complete record. As predicted, OpenAI cited the 2^nd Circuit Court’s decision in Authors Guild v. Google and reminded the court that “while an author may register a copyright in [its] book, the ‘statistical information’ pertaining to ‘word frequencies, syntactic patterns, and thematic markers’ in that book are beyond the scope of copyright protection.” OpenAI stated that “[u]nder the resulting judicial precedent, it is not an infringement to create ‘wholesale cop[ies] of [a work] as a preliminary step to develop a new, non-infringing product, even if the new product competes with the original.” Because fair use is an affirmative defense (to be proven by the defendant), Meta and OpenAI will likely explore this issue further at a later stage of the case.

As this case continues to develop, the court will have to address the fast-paced innovation in the artificial intelligence space and decide how it will address potentially novel intellectual property ownership issues. If Meta and Open AI succeed in their dismissal of the majority of the authors’ claims, the only thing left for the court to decide would be whether their training models directly infringe the authors’ respective copyrights under the law. The authors are unlikely to give up without a fight, as it is their opinion that generative AI represents a copy of “human intelligence” that has been “repackaged and divorced from its creators.”