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As OpenAI Is Sued by Fiction Writers Microsoft Added to January Briefing in SDNY, Fair Use?

by Matthew Russell Lee, Patreon Book Substack

SDNY COURTHOUSE, Nov 29– Fiction writers and the Authors Guild have sued OpenAI and on November 29 the intial pre-trial conference was held before U.S. District Court for the Southern District of New York Judge Sidney H. Stein. Inner City Press was there, thread:

Judge Stein: So I got a letter that the plaintiffs intend to file an amended complaint to add Microsoft?

Plaintiffs' counsel: Yes, Your Honor. Judge: File that by Monday... Now, there's this other case that says it is related, I've invited counsel up.   Judge: Do the parties agree they are related?

Plaintiffs' counsel: We agree, both are opt-out class actions, and the rules for relatedness are satified. Judge: What about consolidation?

Plaintiffs' lawyer: We haven't decided yet, we're working cooperatively.

OpenAI lawyer: We agree, they are related. Judge: Certainly it's easier for me if they go forward on a consolidated basis. Ms. Blakely, let the Clerk's office know I've accepted it as related. Plaintiff, tell me what you think the case is about. 

Plaintiffs' lawyer: This is a tight class action, filed here in the center of publishing by professional fiction writers.  [From caption: Christina Baker Kline, David Baldacci,  George Saunders, John Grisham Jonathan Franzen, Michael Connelly,  Scott Turow 

Plaintiffs' lawyer: They stole books. We represent professional fiction writers. We have remedial theories and can move quickly. The cases in California, there are three

Judge: I'm interested in the first filed rule, and/or a stay  Judge: There are exceptions to the first filed rule, but they'll say they don't apply.

Plaintiffs' lawyer: The cases in California allege that LMMs are infringing machines. It's interesting, but it's a broader class. We are not just a subset - we are focused   Judge: Aren't you arguing that too? That they are gobbling up Mr. Baldacci's work?

Plaintiffs' lawyer: He was reproduced wholesale, and even new work produced. Mr Balducci - I mean Baldacci, I was thinking of food - is very concerned.   Judge: Are you saying the violation is if OpenAI spits out another copy of the novel? Plaintiffs' counsel: It is the willful copying and reproduction of his books. 

2d plaintiffs' lawyer: We're focused on the mass copying of works to train LMMs.  Plaintiffs' lawyer: The 3 California cases have been consolidated, there's a hearing on Dec 8 on a motion to dismiss.

OpenAI lawyer: We have not moved to dismiss the reproduction claim, which is the one here. Plaintiffs' lawyer: The court said summary judgment 1st  

OpenAI lawyer: We're not talking about anyone getting copies of Mr. Baldacci's books about of ChatGPT. To the extent there were reproduction is was for a non-infringing reason: learning and training. Plaintiffs' lawyer: We have evidence of output that infringes Plaintiffs' lawyer: This is not remotely like Google Books. 

OpenAI lawyer: This claim is one of the claims in California cases, which are also filed by authors. So we believe in the first filed rule here.

Plaintiffs' lawyer: We are professional fiction writers Plaintiffs' lawyer: Microsoft has only been sued in the cases in New York.

Judge: Let me set a date to move to dismiss or answer - it will be January 12, to give Microsoft time. Last day for plaintiff to response, January 26. Reply, February 2.   Judge: Talk to me about Google Books, and if we should deal with certification first.

 Plaintiffs' counsel: That should be done here. Judge: The 2d Circuit disagreed. Plaintiffs' counsel: That was an inapposite case. Class actions can be accordions

 Plaintiffs' lawyer: It doesn't make sense to have a summary judgment about one or 18 persons' issues that doesn't apply to the others.

Judge: I assume OpenAI will say fair use applies Plaintiffs' lawyer: This underscores the benefits of certification 1st 

Judge: If we know what ChatGPT is doing with the materials that are shoved into its maw is fair use, that would be in line with Google Books.

Plaintiffs' lawyer: Authors are afraid. I think we will win. In this new context, an adverse ruling would not be the end 

 Judge: I want the parties to submit to me, by January 12, their positions on whether fair use should come first, or class certification.  OpenAI lawyer: We think this is all fair use, to train the model to learn and produce non-infringing outputs. 

OpenAI lawyer: We want an answer on summary judgment. We may not need a class certification if it is resolved as in Google Books. Or the disputes of fact could be specific to individual, the particular work

 Judge: I tend to think I don't need this as this point, but does the court need a tutorial on how this thing works? I'm thinking of patent cases, if need to get smart. Plaintiffs' lawyer: In connection with class cert we have have machine learning experts 

OpenAI lawyer: Let's do expert discovery then hold a hearing, with class cert thereafter.  Plaintiffs' lawyer: We anticipate experts in connection with class certification. 

Judge: This is as far as I should take it now. Talk to Microsoft, adhere to these dates. 

 Judge: Let's leave it at that. Adjourned.

The case is Authors Guild et al v. OpenAI Inc. et al., 23-cv-8292 (Stein)


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