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Through the ADventures in Law Blog, BakerHostetler’s Advertising, Marketing and Digital Media team provides updates and analysis on issues and trends in the advertising and marketing industry.

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The Antitrust Advocate blog provides insights and commentary surrounding complex antitrust litigation and trade regulation. It’s presented by members of BakerHostetler’s Antitrust and Competition Team.

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BakerHostetler’s Blockchain Monitor is a weekly blog curated and written by our in-house team of blockchain attorneys. Published every Monday, the blog is dedicated to providing our clients, friends and industry contacts with a concise weekly update of key developments in the fast-paced blockchain industry. By subscribing below you will receive the blog in your email inbox every Monday afternoon.

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BakerHostetler successfully defends class actions around the country. Our team consists of seasoned class action litigators who have represented clients in state and federal courts and in multidistrict litigation in areas such as consumer fraud, securities, antitrust, ERISA, RICO, insurance and data breach.

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Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation.

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The Discovery Advocate blog is presented by members of BakerHostetler’s E-Discovery Advocacy and Management Team (EDAM).  Today’s modern discovery practice requires a practical approach backed by specialized expertise; Discovery Advocate examines the developments and trends that impact today’s litigants in the trenches of litigation and beyond.

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BakerHostetler represents employers in a wide array of class action disputes. This blog is written by members of its Labor and Employment Group.

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BakerHostetler is at the forefront of national law firms providing clients involved in every facet of healthcare delivery across the country with comprehensive legal counsel of remarkable responsiveness, creativity, quality and value.

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In today’s global economy, patents, trademarks, copyrights, trade secrets, domain names and other intellectual property (IP) are among the most valuable assets of market leaders and rising businesses.

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Covering energy and environmental law, Pillar and Post will be your “catalog of record” for legal issues as law and policy careen back and forth under the influence of new ideas and enthusiasms.

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Am Law 100 firm with practices in Business, Digital Assets and Data Management, Intellectual Property, Labor & Employment, Litigation and Tax.

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2024 BHIPP - BakerHostetler IP Perspective

2024 DSIR Report Deeper Dive

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The use of noncompetes is now shifting across the country. Many states are limiting the use of noncompetes. Several states have enacted or are considering prohibitions on noncompetes. Nationally, the Federal Trade Commission is engaging in a rulemaking that could ban noncompete agreements between employers and employees. What does all of this mean for your business? Are there alternatives to noncompetes that can protect your business?

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Since the recent Dobbs decision, which overturned Roe v. Wade, companies have been impacted nationwide and have several new legal angles to consider as it relates to their employees and their businesses. With that in mind, we’ve created a new podcast series, Dobbs on Demand, designed to help you navigate this new and evolving landscape.

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DSIR Report Deeper Dive - 2022

DSIR Report Deeper Dive - 2023

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The Cloakroom podcast series brings you inside Capitol Hill with insightful interviews and discussions with leading lawmakers, both Republicans and Democrats from the House and Senate. Hosted by former Congressman Peter Roskam, who leads BakerHostetler’s Federal Policy team, you’ll hear firsthand about the latest policy debates on taxes, healthcare, energy, financial services and more.
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Case Tracker: Artificial Intelligence, Copyrights and Class Actions

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The Center for Investigative Reporting, a nonprofit news organization, filed a complaint against OpenAI and Microsoft, alleging defendants directly and indirectly infringed plaintiff’s copyright by using those works in their training sets. The issues in this case are similar to those in <a href="https://www.bakerlaw.com/new-york-times-v-microsoft/">New York Times v. Microsoft</a> and <a href="https://www.bakerlaw.com/the-intercept-media-and-raw-story-media-v-openai/">The Intercept Media and Raw Story Media v. OpenAI</a> cases.

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Status conference is scheduled for September 12, 2024. 

Case Background

The Center for Investigative Reporting v. OpenAI, Inc., 1:24-cv-04872

Court:&nbsp;District Court for the Southern District of New York

Judges: Judge Sidney H. Stein

Plaintiff – The Center for Investigative Reporting, Inc., represented by Loevy &amp; Loevy&nbsp;

OpenAI – OpenAI, Inc.; OpenAI GP, LLC; OpenAI, LLC; OpenAI OpCo LLC; OpenAI Global LLC; OAI Corporation, LLC; OpenAI Holdings, LLC, represented by Latham &amp; Watkins LLP; Morrison &amp; Foerster LLP; Keker, Van Nest &amp; Peters LLP&nbsp;

Microsoft – Microsoft Corporation, represented by Orrick, Herrington &amp; Sutcliffe LLP&nbsp;

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Status Updates

Sept. 3, 2024 – OpenAI filed motion to dismiss Counts 1, 3, 4, and 5

OpenAI sought the dismissal of Counts 1, 3, 4, and 5 of plaintiff’s complaint [1] for the following reasons:&nbsp;&nbsp;

(1) dismissing Counts 1 and 4 to the extent they are based on activity that occurred more than three years prior to the filing of this action pursuant to 17 U.S.C. § 507(b);&nbsp;&nbsp;

(2) dismissing Count 1 to the extent it is based on “abridgments,” for failure to state a claim for relief pursuant to Rule 12(b)(6);&nbsp;&nbsp;

(3) dismissing Count 3 in full for failure to allege facts sufficient to state a claim for relief pursuant to Rule 12(b)(6); and&nbsp;&nbsp;

(4) dismissing Counts 4 and 5 in full for lack of standing pursuant to Rule 12(b)(1) and for failure to allege facts sufficient to state a claim for relief pursuant to Rule 12(b)(6).&nbsp;

As in past cases, OpenAI did not seek dismissal of the core claim that “training” a

generative AI tool using copyrighted content is alleged infringement rather than fair use, because that claim is properly addressed on summary judgment rather than on the pleadings.&nbsp;

However, OpenAI challenged plaintiff’s novel claim, Count 1, which contended that OpenAI is liable for copyright infringements consisting of “abridgments” of plaintiff’s copyrighted works in the form of ChatGPT outputs that summarize facts about plaintiff’s articles without reproducing copyrightable expression from them. OpenAI rejected this claim, explaining that to constitute an infringing derivative work, an “abridgment” must do more than just recite facts about an existing work. Specifically, OpenAI argued it would have to reproduce the original work’s protected expression. Becausethe alleged “abridgments” did not do so, OpenAI argued they do not constitute prima facie infringements as a matter of law. 

Sept. 3, 2024 – Microsoft filed motion to dismiss Counts 3, 6, and 7

Microsoft filed a motion to dismiss Counts 3, 6, and 7 of plaintiff’s complaint [1]. With respect to Count 3 (contributory copyright infringement), Microsoft argued that plaintiff’s complaint “contains not a single instance of any real-world user ever using a GPT-based tool to infringe [plaintiff]’s works.” Microsoft stated that at best, plaintiff alleges that GPT-based products are capable of emitting trivial snippets of plaintiffs’ works or bullet-point summaries of articles with direct citation to the original, but that is “nowhere close to showing that Microsoft knew of” instances of infringement and materially contributed to them. Further, Microsoft pointed to plaintiff’s acknowledgment in its complaint [1] that Microsoft and OpenAI both take steps to prevent any possible infringement, such that the contributory infringement claim should be dismissed.

As for Counts 6 and 7 (both claims brought under DMCA § 1202(b)), Microsoft cited to Tremblay v. OpenAI, Doe 1 v. GitHub, and Andersen v. Stability AI to point out a trend of courts rejecting § 1202 claims against LLM-based tools. Microsoft argued that plaintiff’s attempt to predicate a § 1202 claim on mere non-public removal of CMI leaves it unable to allege the sort of concrete injury necessary for Article III standing.

July 1, 2024 – Center for Investigative Reporting and New York Times are related

The court related Center for Investigative Reporting to <a href="https://www.bakerlaw.com/new-york-times-v-microsoft/" target="_blank" rel="noreferrer noopener">New York Times v. Microsoft</a>.

June 27, 2024 – Plaintiff filed statement of relatedness to New York Times v. Microsoft

Plaintiff requested the court relate the current action to <a href="https://www.bakerlaw.com/new-york-times-v-microsoft/" target="_blank" rel="noreferrer noopener">New York Times v. Microsoft</a>.

June 27, 2024 – Plaintiff filed complaint

The Center for Investigative Reporting filed a complaint against OpenAI and Microsoft, alleging defendants used the plaintiff's works in their training sets. The complaint alleged four causes of action:

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Select Court Documents 

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/06/ECF-1-Complaint.pdf" target="_blank" rel="noreferrer noopener">June 27, 2024 – ECF 1 Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/09/ECF-5-Statement-of-Relatedness.pdf" target="_blank" rel="noreferrer noopener">June 27, 2024 – ECF 5 Statement of Relatedness</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/09/ECF-69-and-70-Microsoft-Motion-to-Dismiss.pdf" target="_blank" rel="noreferrer noopener">Sept. 3, 2024 – ECF 69 and 70 Microsoft Motion to Dismiss</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/09/ECF-72-and-73-OpenAI-Motion-to-Dismiss.pdf" target="_blank" rel="noreferrer noopener">Sept. 3, 2024 – ECF 72 and 73 OpenAI Motion to Dismiss</a>