Delve into the complexities of vicarious infringement and DMCA violations in AI training. Scott Hervey and James Kachmar from Weintraub Tobin dissect the recent district court ruling on OpenAI's copyright infringement allegations on this installment of “The Briefing.” Watch this episode on theWeintraub YouTube channel here or listen to this podcast episode here.

Show Notes:Scott As we have previously reported, in 2023, several authors, including the comedian Sarah Silverman, filed putative class action lawsuits against OpenAI's ChatGPT, alleging various copyright infringement claims. On February 12th, 2024, a district court in the Northern District of California issued its order and ruled on the OpenAI defendants' motion to dismiss various claims in the two pending putative class action lawsuits. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by my partner, James Kachmar, and we're going to discuss the Court's order on this installment of "The Briefing by Weintraub Tobin. James, welcome back to "The Briefing."James Thanks, Scott. It's good to be back.Scott So, James, could you give us some background on these cases?James Sure, Scott. The author plaintiffs alleged that OpenAI infringed on their published works by using these works to help train its Large Language Model or LLM. Basically, OpenAI is alleged to have scanned the books into their system to help train the language models. The authors claim that because these books are protected by copyright law, using them in this training and the output generated by OpenAI, which the app is known ChatGPT, by summarizing their books, constituted an infringement of their copyright protections in their works. The plaintiffs in the two separate lawsuits alleged similar claims against OpenAI for both direct and vicarious copyright infringement under the Copyright Act, as well as violation of Section 1202(b) of the Digital Millennium Copyright Act or DMCA, which is removal of copyright management information. The OpenAI defendants moved to dismiss all the claims alleged by the author plaintiffs, with the exception of the first cause of action for direct copyright infringement. It's a bit unclear from the Court's order as to why the defendants did not move to dismiss that claim as well.Scott Yeah, I found that to be interesting. The Court began by recognizing the general rules that govern motions to dismiss in federal actions. In essence, to survive such a motion, a plaintiff must plead enough facts to state a claim to relief that is plausible on its face. In essence, the plaintiff must allege sufficient factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged.James That's correct, Scott. Let's first look at the vicarious copyright infringement claim. The Court noted that the Copyright Act grants the copyright holder exclusive rights to reproduce the copyrighted work and any copies thereof, to prepare derivative works, and distribute copies of the copyrighted work to the public. However, the Court noted that the mere fact that a work is copyrighted does not mean that every element of the work may be protected.Scott That's right. To allege a valid copyright infringement claim, the plaintiff must show that one, he or she owns a valid copyright in the work alleged to be infringed, and two, that the defendant copied aspects of protectable aspects of his or her work.James That's right, Scott. The Court was really focused on this second prong, which really contains two separate components: copying and unlawful appropriation of a copyrighted work. Generally, a plaintiff can satisfy these elements by showing that the defendant had access to the plaintiff's work and that the two works share similarities probative of copying, while the hallmark of unlawful appropriation is that the work shares substantial similarities.Scott The Court noted that a claim of vicarious infringement re...