| 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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