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MANHATTAN (CN) — ChatGPT maker OpenAI asked a New York federal judge on Thursday morning to dismiss copyright claims brought by the large online publisher Ziff Davis, which accuses OpenAI of scraping its online content without authorization to train the artificial intelligence chatbot’s language technology.
Ziff Davis, a digital media company with website brands including IGN, Mashable, CNET, Everyday Health and PCMag, sued OpenAI in Delaware federal district court in April over copyright infringement, violations of the Digital Millennium Copyright Act, unjust enrichment and trademark dilution.
Ziff Davis argues in the complaint that despite explicitly blocking OpenAI’s GPTBot scraping software from its websites through lines of instruction code published by OpenAI, the publisher still saw a spike in the bot’s activity on some of its sites.
The case was later transferred to Manhattan federal court where it was consolidated into a multidistrict litigation with other ChatGPT copyright cases out of California and New York from authors, writers and news publishers.
Calling Ziff Davis’ amended claims “a tag-along” action to multidistrict litigation, the San Francisco-based OpenAI argued in its motion to dismiss that the unjust enrichment claim fails because it is preempted by the Digital Millennium Copyright Act.
“First, it is premised on the notion — disproven by plaintiffs’ own allegations — that a robots.txt file constitutes a ‘technological measure that effectively controls access to a work protected under [the Copyright Act],” Open AI wrote in a court filing. “Second, Ziff Davis has not alleged that OpenAI circumvented anything, which likewise dooms the Section 1201(a) claim.”
During oral arguments on Thursday, OpenAI attorney Joseph Gratz rebutted the trademark dilution claims, arguing that the company’s brands do not meet the required standard of being “famous among the general consuming public of the United States.”
Ziff Davis contends that its many well-known media brands have been tarnished as a result of OpenAI has been falsely attributing them to statements and text Ziff Davis never published, as well as attributing its content to other parties.
With more than 45 sites globally, Ziff Davis is one of the largest publishers in the U.S., providing various sources of consumer-rich content that includes health and wellness, technology, entertainment, as well as product and gaming reviews.
The company said it holds registrations covering more than 1.3 million works with the U.S. Copyright Office, from editorial archives of Everyday Health, What to Expect, MedPage Today, IGN, Eurogamer, Games Industry, Dicebreaker, Mashable, PCMag, CNET, ZDNET, Lifehacker and more.
If U.S. District Judge Sidney Stein sides with Ziff Davis against the motion to dismiss, OpenAI requested that the Bill Clinton appointee stay the publisher’s latest claims concerning newer ChatGPT models because they are beyond the scope of the multidistrict litigation.
Los Angeles-based intellectual property attorney Guy Ruttenberg argued a stay would effectively require the company to litigate its claims twice, first on remand back to Delaware court and then again later in Manhattan federal court.
“That’s very, very disruptive to our case,” he said.
Gratz meanwhile argued on behalf of OpenAI that if the additional Ziff Davis claims and models are not stayed, it would slow down the discovery deadlines in place for the multidistrict litigation.
He said the eight newer ChatGPT models at issue in the Ziff Davis amended complaint would involve a greater scope of custodians to be deposed, in addition to new training data and source code for those additional software models.
“We are sprinting to reach the finish line with respect to the current discovery schedule,” Gratz said Thursday. “There is real hope that we can get there … I think that hope vanishes if we add another eight, nine models to this thing.”
“Time is finite,” he proffered.
“But I’m not sure associates are,” the judge responded, concluding the 90-minute hearing without immediately ruling from the bench on the motions.
The consolidated multidistrict litigation combined two previously consolidated cases in the Southern District of New York with four cases transferred from the Northern District of California, along with two other additional New York cases.
The first of these cases to be filed in the Southern District of New York was brought by the Authors Guild professional organization for writers in September 2023. The Authors Guild was joined by 17 other authors on the lawsuit, including George R.R. Martin, John Grisham, Elin Hilderbrand, Jonathan Franzen and Jodi Picoult.
The New York Times filed a suit four months later in the same court seeking to curb OpenAI’s practice of using the newspaper’s stories to train its chatbots.
The coalition of authors who sued OpenAI in the Northern District of California in 2023 includes Pulitzer Prize-winning novelists Michael Chabon, Ta-Nehisi Coates and Junot Diaz.
Comedian Sarah Silverman and two other authors brought an earlier complaint against OpenAI in San Francisco federal court claiming ChatGPT can accurately summarize their books when prompted. They say they didn’t give OpenAI permission to use their copyrighted books to train ChatGPT.
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