The list of cases that target the developers/operators of generative artificial intelligence (“AI”) platforms, most of which tend to focus heavily on copyright infringement and Digital Millennium Copyright Act (“DMCA”) claims, keeps growing. Among a number of newly filed cases is one that was filed against Microsoft and OpenAI in the U.S. District Court for the Southern District of New York on April 30. The “publisher plaintiffs,” which include the companies behind the New York Daily News, the Chicago Tribune, the Orland Sentinel, and the Denver Post, among others, set out an array of copyright-centric causes of action, such as direct, vicarious, and contributory copyright infringement.
From a copyright perspective, this case – and others like it – centers on two key issues: One at the input/training stage and one that has to do with AI-generated output. Primarily, the publisher plaintiffs take issue with OpenAI and Microsoft’s allegedly unauthorized use of the newspapers’ content to train the large language models that power their generative AI offerings, including ChatGPT and Copilot. In terms of output, the plaintiffs claim that OpenAI and Microsoft have run afoul of copyright law by providing users of their generative AI tools with “content that is identical to, or a slightly masked version of, the newspapers’ content.”
Copyright claims aside, the case is arguably most interesting because of its inclusion of trademarks claims, which have been far less frequently waged in generative AI cases. Specifically, the plaintiff publishers set out a federal trademark dilution claim (15 U.S.C. § 1125(c)), as well as one under New York state law (N.Y. Gen. Bus. Law § 360-l).