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`Case 3:23-cv-03223-AMO Document 104 Filed 02/12/24 Page 1 of 13
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`PAUL TREMBLAY, et al.,
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`Plaintiffs,
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`v.
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`OPENAI, INC., et al.,
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`Defendants.
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`Case Nos. 23-cv-03223-AMO
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` 23-cv-03416-AMO
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`ORDER GRANTING IN PART AND
`DENYING IN PART THE MOTIONS TO
`DISMISS
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`This is a putative class action copyright case. OpenAI, Inc.’s motions to dismiss were
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`heard before this Court on December 7, 2023. Having read the papers filed by the parties and
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`carefully considered their arguments therein and those made at the hearing, as well as the relevant
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`legal authority, the Court hereby GRANTS in part and DENIES in part the motions to dismiss for
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`the following reasons.
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`I.
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`BACKGROUND
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`Before the Court are two nearly identical putative class complaints in Tremblay et al v.
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`OpenAI, Inc. et al, 23-cv-3223 and Silverman et al v. OpenAI, Inc. et al, 23-cv-3416. Plaintiffs are
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`authors of books who allege that their books were used to train OpenAI language models that
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`operate the artificial intelligence (“AI”) software ChatGPT.1 Silverman Compl. ¶¶ 1-4; Tremblay
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`Compl. ¶¶ 1-4. Plaintiffs Paul Tremblay, Sarah Silverman, Christopher Golden, and Richard
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`Kadrey (collectively, “Plaintiffs”) hold registered copyrights in their books. Tremblay Compl. ¶¶
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`1 For the purposes of the motion to dismiss at bar, the Court accepts all factual allegations in the
`Complaint as true and construes the pleadings in the light most favorable to the Plaintiffs.
`Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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`Case 3:23-cv-03223-AMO Document 104 Filed 02/12/24 Page 2 of 13
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`10, 12, Ex. A (The Cabin at the End of the World (Tremblay))2; Silverman Compl. ¶¶ 10-13, Ex.
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`A (The Bedwetter (Silverman); Ararat (Golden), and Sandman Slim (Kadrey)).
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`Defendant OpenAI3 creates and sells certain AI software known as large language models
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`(or “LLM”). Tremblay Compl. ¶ 23. These language models are “trained” by inputting large
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`amounts of texts known as the “training dataset.” Id. The language models copy text from the
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`training dataset and extract “expressive information.” Id. ChatGPT is an OpenAI language model
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`that allows paying users to enter text prompts to which ChatGPT will respond and “simulate
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`human reasoning,” including answering questions or summarizing books. Id. ¶¶ 22, 36-38.
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`ChatGPT generates its output based on “patterns and connections” from the training data. Id. ¶ 39.
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`OpenAI copied Plaintiffs’ copyrighted books and used them in its training dataset. Id. ¶
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`24. When prompted to summarize books written by each of the Plaintiffs, ChatGPT generated
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`accurate summaries of the books’ content and themes. Id. ¶ 41 (citing Ex. B); Silverman Compl. ¶
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`42 (citing Ex. B).
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`Plaintiffs seek to represent a class of all people in the U.S. who own a copyright in any
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`work that was used as training data for OpenAI language models during the class period.
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`Tremblay Compl. ¶ 42; Silverman Compl. ¶ 43. Plaintiffs assert six causes of action against
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`various OpenAI entities: (1) direct copyright infringement (Count I); (2) vicarious infringement
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`(Count II); (3) violation of Section 1202(b) of the Digital Millennium Copyright Act (“DMCA”)
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`(Count III); (4) unfair competition under Cal. Bus. & Prof. Code Section 17200 (Count IV); (5)
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`negligence (Count V); and (6) unjust enrichment (Count VI).
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`OpenAI filed the instant motions to dismiss on August 28, 2023, seeking dismissal of
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`Counts II through VI. ECF 33 (“Motion”).4
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`2 Plaintiff Mona Awad voluntarily dismissed her claims without prejudice. ECF 29.
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` Defendants are seven entities that Plaintiffs collectively refer to as “OpenAI.” ECF 33
`(“Motion”) at 14 (citing Tremblay Compl. ¶¶ 13-19; Silverman Compl. ¶¶ 14-20). The Court
`follows this naming convention.
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` 4
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` Defendants’ motion to dismiss addresses both the Silverman and the Tremblay complaints and
`was filed concurrently on both dockets. Motion at 1 n1.
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`Case 3:23-cv-03223-AMO Document 104 Filed 02/12/24 Page 3 of 13
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`II.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain
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`statement of the claim showing that the pleader is entitled to relief.” A defendant may move to
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`dismiss a complaint for failing to state a claim upon which relief can be granted under Federal
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`Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the
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`complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.”
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`Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule
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`12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on
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`its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible
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`when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that
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`the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`In reviewing the plausibility of a complaint, courts “accept factual allegations in the
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`complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”
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`Manzarek, 519 F.3d at 1031. Nonetheless, courts do not “accept as true allegations that are merely
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`conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs.
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`Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).
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`III. ANALYSIS
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`Defendants seek dismissal of all causes of action except for the claim for direct copyright
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`infringement. Motion at 18. Defendants seek dismissal of Count II for vicarious copyright
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`infringement; Count III for violation of Section 1202(b) of the Digital Millennium Copyright Act
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`(“DMCA); Count IV for Unfair Competition under Cal. Bus. & Prof. Code § 17200; Count V for
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`negligence; and Count VI for unjust enrichment. Id. The Court addresses each in turn.
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`A.
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`Vicarious Copyright Infringement (Count II)
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`The Copyright Act grants the copyright holder exclusive rights to (1) “reproduce the
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`copyrighted work in copies,” (2) “prepare derivate works,” and (3) “distribute copies . . . of the
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`copyrighted work to the public.” 17 U.S.C. § 106(1)-(3). Copyright protection does not extend to
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`“every idea, theory, and fact” underlying a copyrighted work. Eldred v. Ashcroft, 537 U.S. 186,
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`219 (2003); see 17 U.S.C. § 102(b). Indeed, “[t]he mere fact that a work is copyrighted does not
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`mean that every element of the work may be protected.” Corbello v. Valli, 974 F.3d 965, 973 (9th
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`Cir. 2020) (citation omitted).
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`Copyright infringement requires that a plaintiff show (1) “he owns as valid copyright” and
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`(2) the defendant “copied aspects of his work.” Corbello, 974 F.3d at 973. The second prong
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`“contains two separate components: ‘copying’ and ‘unlawful appropriation.’” Id. at 974.
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`“Copying can be demonstrated either through direct evidence or by showing that the defendant
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`had access to the plaintiff’s work and that the two works share similarities probative of copying,
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`while the hallmark of ‘unlawful appropriation’ is that the works share substantial similarities.” Id.
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`(citations and internal quotations omitted); see Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led
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`Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (“the hallmark of ‘unlawful appropriation’ is that
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`the works share substantial similarities”) (emphasis in original).
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`A claim of vicarious infringement requires a threshold showing of direct infringement,
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`Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007) (“Amazon.com”); see
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`A&M Recs., Inc. v. Napster, Inc., 239 F.3d 1004, 1013 n.2 (9th Cir. 2001) aff’d, 284 F.3d 1091
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`(2002) (“Secondary liability for copyright infringement does not exist in the absence of direct
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`infringement by a third party”). A plaintiff must then show that “the defendant has (1) the right
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`and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing
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`activity.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 673 (9th Cir. 2017) (“Giganews”)
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`(citation omitted).
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`Defendants argue that the vicarious infringement claim fails for three reasons: (1) Plaintiffs
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`have not alleged that direct infringement occurred; (2) Plaintiffs have not alleged that Defendants
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`had the “right and ability to supervise”; and (3) Plaintiffs have not alleged “direct financial
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`interest.” Motion at 19-21. The Court first considers whether Plaintiffs have adequately alleged
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`direct infringement and, ultimately, does not reach Defendants’ latter two arguments.
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`Plaintiffs suggest that they do not need to allege a “substantial similarity” because they
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`have evidence of “direct copying.” ECF 48 (“Response”) at 15. They argue that because
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`Defendants directly copied the copyrighted books to train the language models, Plaintiffs need not
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`show substantial similarity. Id. at 15 (citing Range Rd. Music, Inc. v. E. Coast Foods, Inc., 668
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`Case 3:23-cv-03223-AMO Document 104 Filed 02/12/24 Page 5 of 13
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`F.3d 1148, 1154 (9th Cir. 2012) (explaining that “substantial similarity” helps determine whether
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`copying occurred “when an allegedly infringing work appropriates elements of an original without
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`reproducing it in toto.”). Plaintiffs misunderstand Range Rd. There, the court did not need to find
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`substantial similarity because the infringement was the public performance of copyrighted songs at
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`a bar. Range Rd., 668 F.3d at 1151-52, 1154. Since the plaintiffs provided unrebutted evidence
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`that the performed songs were the protected songs, they did not need to show that they were
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`substantially similar. Id. at 1154. Distinctly, Plaintiffs here have not alleged that the ChatGPT
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`outputs contain direct copies of the copyrighted books. Because they fail to allege direct copying,
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`they must show a substantial similarity between the outputs and the copyrighted materials. See
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`Skidmore, 952 F.3d at 1064; Corbello, 974 F.3d at 973-74.
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`Plaintiffs’ allegation that “every output of the OpenAI Language Models is an infringing
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`derivative work” is insufficient. Tremblay Compl. ¶ 59; Silverman Compl. ¶ 60. Plaintiffs fail to
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`explain what the outputs entail or allege that any particular output is substantially similar – or
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`similar at all – to their books. Accordingly, the Court dismisses the vicarious copyright
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`infringement claim with leave to amend.
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`B.
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`Section 1202(b) of the DMCA (Count III)
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`In addition to protecting against vicarious and direct infringement, “[c]opyright law
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`restricts the removal or alteration of copyright management information (‘CMI’) – information
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`such as the title, the author, the copyright owner, the terms and conditions for use of the work, and
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`other identifying information set forth in a copyright notice or conveyed in connection with the
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`work.” Stevens v. Corelogic, Inc., 899 F.3d 666, 671 (9th Cir. 2018). Section 1202(b) of the
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`Digital Millennium Copyright Act (DMCA) provides that one cannot, without authority, (1)
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`“intentionally remove or alter any” CMI, (2) “distribute . . . [CMI] knowing that the [CMI] has
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`been removed or altered,” or (3) “distribute . . . copies of works . . . knowing that [CMI] has been
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`removed or altered.” 17 U.S.C. § 1202(b). To state a Section 1202 claim for removal or alteration
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`of CMI, plaintiffs must first identify “what the removed or altered CMI was.” Free Speech Sys.,
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`LLC v. Menzel, 390 F. Supp. 3d 1162, 1175 (N.D. Cal. 2019). Plaintiffs must also show the
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`requisite mental state, as each of the three forms of Section 1202(b) violations requires “knowing,
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`Case 3:23-cv-03223-AMO Document 104 Filed 02/12/24 Page 6 of 13
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`or . . . having reasonable grounds to know, that [intentionally removing CMI] will induce, enable,
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`facilitate, or conceal” infringement. 17 U.S.C. § 1202(b).
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`OpenAI argues that the Section 1202(b)(1) claim fails because Plaintiffs do not plausibly
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`allege that OpenAI intentionally removed CMI during the training process or intended to conceal
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`or induce infringement, and the Section 1202(b)(3) claim fails because Plaintiffs do not allege that
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`Defendant distributed the copyrighted works or copies. Motion at 21-22. The Court begins by
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`analyzing the 1202(b)(1) claim.
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`1.
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`Section 1202(b)(1) – Intentionally Remove or Alter CMI
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`Section 1202(b) requires knowledge or “reasonable grounds to know” that the CMI
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`removal would “induce, enable, facilitate, or conceal an infringement.” In the Ninth Circuit, a
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`plaintiff “must make an affirmative showing, such as by demonstrating a past ‘pattern of conduct’
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`or ‘modus operandi,’ that the defendant was aware or had reasonable grounds to be aware of the
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`probable future impact of its actions.” Stevens, 899 F.3d at 674. At the pleading stage, this
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`requires pleading facts “plausibly showing that the alleged infringer had this required mental
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`state.” Andersen v. Stability AI Ltd., No. 23-CV-00201-WHO, 2023 WL 7132064, at *10 (N.D.
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`Cal. Oct. 30, 2023); see Philpot v. Alternet Media, Inc., No. 18-CV-04479-TSH, 2018 WL
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`6267876, at *5 (N.D. Cal. Nov. 30, 2018) (dismissing DMCA claim where plaintiff “fail[ed] to
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`plead any facts showing that [defendant] had the required mental state”).
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`Plaintiffs allege that “[b]y design,” Defendants remove CMI from the copyrighted books
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`used during the training process. Tremblay Compl. ¶ 64; Silverman Compl. ¶ 65. However,
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`Plaintiffs provide no facts supporting this assertion. Indeed, the Complaints include excerpts of
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`ChatGPT outputs that include multiple references to Plaintiffs’ names, suggesting that OpenAI did
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`not remove all references to “the name of the author.” See, e.g., Tremblay Compl. Ex. B at 3
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`(“Throughout these chapters, Tremblay masterfully maintains the suspense and psychological
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`terror”); Silverman Compl. Ex B. at 1 (“Silverman uses her sharp wit to lend a comedic touch”).
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`Moreover, there are no facts to support the assertion that “[b]y design, the training process does
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`not preserve any CMI.” Tremblay Compl. ¶ 64. In Doe 1 v. GitHub, Inc., No. 22-CV-06823-JST,
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`2023 WL 3449131, at *11 (N.D. Cal. May 11, 2023), plaintiffs alleged where the CMI typically
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`appeared, that defendants were aware that the CMI appeared repeatedly, and that defendants
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`subsequently “trained these programs to ignore or remove CMI and therefore stop producing it.”
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`That was sufficient to support a “reasonable inference that Defendants intentionally designed the
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`programs to remove CMI . . .” Id. By contrast, Plaintiffs here only make conclusory allegations
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`that “[b]y design, the training process does not preserve any CMI.” Tremblay Compl. ¶ 64.
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`Even if Plaintiffs provided facts showing Defendants’ knowing removal of CMI from the
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`books during the training process, Plaintiffs have not shown how omitting CMI in the copies used
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`in the training set gave Defendants reasonable grounds to know that ChatGPT’s output would
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`induce, enable, facilitate, or conceal infringement. See Stevens, 899 F.3d at 673 (finding that
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`allegations that “someone might be able to use [the copyrighted work] undetected . . . simply
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`identifies a general possibility that exists whenever CMI is removed,” and fails to show the
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`necessary mental state). Plaintiffs argue that OpenAI’s failure to state which internet books it uses
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`to train ChatGPT shows that it knowingly enabled infringement, because ChatGPT users will not
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`know if any output is infringing. Response at 21-22. However, Plaintiffs do not point to any
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`caselaw to suggest that failure to reveal such information has any bearing on whether the alleged
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`removal of CMI in an internal database will knowingly enable infringement. Plaintiffs have failed
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`to state a claim under Section 12(b)(1).
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`2.
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`Section 1202(b)(3) – Distribute Works or Copies
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`Plaintiffs also allege that Defendants violated Section 1202(b)(3) because OpenAI created
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`derivative works - ChatGPT outputs - and distributed those outputs without the CMI included.
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`Tremblay Compl. ¶ 65; Silverman Compl. ¶ 66. The DMCA “does not prohibit merely omitting
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`CMI from an infringing work.” Dolls Kill, Inc. v. Zoetop Bus. Co., No. 222CV01463RGKMAA,
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`2022 WL 16961477, at *3 (C.D. Cal. Aug. 25, 2022). While it may be unlawful to recreate
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`another’s work (e.g., under the Copyright Act), this conduct does not necessarily implicate the
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`DMCA. See, e.g., Kirk Kara Corp. v. W. Stone & Metal Corp., No. CV 20-1931-DMG (EX),
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`2020 WL 5991503, at *6 (C.D. Cal. Aug. 14, 2020) (emphasis in original) (dismissing claim
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`because “while the works may be substantially similar, Defendant did not make identical copies
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`of Plaintiff’s works and then remove the engraved CMI”).
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`Under the plain language of the statute, liability requires distributing the original “works”
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`or “copies of [the] works.” 17 U.S.C. § 1202(b)(3). Plaintiffs have not alleged that Defendants
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`distributed their books or copies of their books. Instead, they have alleged that “every output from
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`the OpenAI Language Models is an infringing derivative work” without providing any indication
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`as to what such outputs entail – i.e., whether they are the copyrighted books or copies of the
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`books. That is insufficient to support this cause of action under the DMCA.
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`Plaintiffs compare their claim to that in Doe 1, however, the plaintiffs in Doe 1 alleged that
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`the defendants “distributed copies of [plaintiff’s licensed] code knowing that CMI had been
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`removed or altered.” Doe 1, 2023 WL 3449131, at *11. The Doe 1 plaintiffs alleged that
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`defendants knew that the programs “reproduced training data,” such as the licensed code, as
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`output. Id. Plaintiffs here have not alleged that ChatGPT reproduces Plaintiffs copyrighted works
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`without CMI.
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`Accordingly, the Court dismisses the DMCA claims with leave to amend.
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`C.
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`UCL (Count IV)
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`OpenAI also seeks to dismiss Plaintiffs’ UCL claims. “A business act or practice may
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`violate the UCL if it is either ‘unlawful,’ ‘unfair,’ or ‘fraudulent.’ Each of these three adjectives
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`captures ‘a separate and distinct theory of liability.’” Rubio v. Cap. One Bank, 613 F.3d 1195,
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`1203 (9th Cir. 2010) (citing Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009)).
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`“The UCL’s coverage is sweeping, and its standard for wrongful business conduct intentionally
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`broad.” Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1204 (N.D. Cal. 2014). Plaintiffs advance
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`UCL claims under each prong, and the Court considers each in turn.
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`1.
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`Unlawful
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`Plaintiffs allege that Defendants engaged in “unlawful business practices” by violating the
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`DMCA. Tremblay Compl. ¶¶ 69-70; Silverman Compl. ¶ 70-71. As the Court has dismissed the
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`predicate DMCA claims, the derivate UCL claims cannot remain. See Eidmann v. Walgreen Co.,
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`522 F. Supp. 3d 634, 647 (N.D. Cal. 2021) (“If the ‘plaintiff cannot state a claim under the
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`predicate law . . . [the UCL] claim also fails.’”) (alterations in original) (quoting Hadley v. Kellogg
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`Sales Co., 243 F. Supp. 3d 1074, 1094 (N.D. Cal. 2017)); see Armstrong-Harris v. Wells Fargo
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`Bank, N.A., No. 21-CV-07637-HSG, 2022 WL 3348426, at *3 (N.D. Cal. Aug. 12, 2022) (citing
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`cases).
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`Even if Plaintiffs can bring claims under the DMCA, they must show economic injury
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`caused by the unfair business practice. See Davis v. RiverSource Life Ins. Co., 240 F. Supp. 3d
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`1011, 1017 (N.D. Cal. 2017) (quoting Kwikset Corp. v. Superior Ct., 51 Cal. 4th 310, 322 (2011)).
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`Defendants argue that Plaintiffs have not alleged that they have “lost money or property.” Motion
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`at 29-30; see Kwikset Corp., 51 Cal. 4th at 322-23. Plaintiffs counter that they have lost
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`intellectual property in connection with the DMCA claims because of the “risk of future damage
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`to intellectual property that results the moment a defendant removes CMI from digital copies of
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`Plaintiffs’ work – copies that can be reproduced and distributed online at near zero marginal cost.”
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`Response at 28. However, nowhere in Plaintiffs’ complaint do they allege that Defendants
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`reproduced and distributed copies of their books. Accordingly, any injury is speculative, and the
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`unlawful prong of the UCL claim fails for this additional reason.
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`2.
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`Fraudulent
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`Plaintiffs also argue that they pleaded UCL violations based on “fraudulent” conduct.
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`Response at 26-27. They point to a paragraph in the complaint that states that “consumers are
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`likely to be deceived” by Defendants’ unlawful practices and that Defendants “deceptively
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`designed ChatGPT to output without any CMI.” Tremblay Compl. ¶ 72. The allegation’s
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`references to CMI demonstrates that Plaintiffs’ claims rest on a violation of the DMCA, and thus
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`fail as the Court has dismissed the underlying DMCA claim. Supra Sections B, C(1). To the
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`extent that Plaintiffs ground their claim in fraudulent business practices, Plaintiffs fail to indicate
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`where they have pleaded allegations of fraud. Thus, they fail to satisfy the heightened pleading
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`requirements of Rule 9(b) which apply to UCL fraud claims. See Armstrong-Harris, 2022 WL
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`3348246, at *2. Therefore, the UCL claim based on fraudulent conduct also fails.
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`3.
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`Unfair
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`Under the unfair prong of the UCL, Plaintiffs allege that Defendants used Plaintiffs’
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`copyrighted works to train ChatGPT without Plaintiffs’ authorization. Tremblay Compl. ¶ 71;
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`Silverman Compl. ¶ 72. California courts have defined “unfair” broadly. For example, the
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`Northern District of California
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`United States District Court
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`Case 3:23-cv-03223-AMO Document 104 Filed 02/12/24 Page 10 of 13
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`California Court of Appeal stated, “California’s unfair competition law prohibits not only
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`unlawful business practices but also unfair business practices. The statute is intentionally broad to
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`give the court maximum discretion to control whatever new schemes may be contrived, even
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`though they are not yet forbidden by law.” People ex rel. Renne v. Servantes, 86 Cal.App.4th
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`1081, 1095 (2001). The Court of Appeal explained further, “[o]ne test for determining an ‘unfair’
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`practice is [whether] the gravity of the harm to the victim outweighs the utility of the defendant’s
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`conduct.” Id. at 1095.5
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`Assuming the truth of Plaintiffs’ allegations - that Defendants used Plaintiffs’ copyrighted
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`works to train their language models for commercial profit - the Court concludes that Defendants’
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`conduct may constitute an unfair practice.6 Therefore, this portion of the UCL claim may proceed.
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`D.
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`Negligence (Count V)
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`Negligence claims require that a plaintiff establish (1) duty; (2) breach; (3) causation; and
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`(4) damages. Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (citation omitted). There is a
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`“general duty of care on a defendant . . . who has created a risk of harm to the plaintiff.” Brown v.
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`USA Taekwondo, 11 Cal. 5th 204, 214 (2021), reh’g denied (May 12, 2021) (citations omitted).
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`However, “not every defendant owes every plaintiff a duty of care.” Id. at 213.
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`Plaintiffs allege that Defendants owed them a duty of care based on the control of Plaintiffs
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`information in their possession and breached their duty by “negligently, carelessly, and recklessly
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`collecting, maintaining, and controlling systems – including ChatGPT – which are trained on
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`Plaintiffs’ [copyrighted] works.” Tremblay Compl. ¶¶ 74-75; Silverman Compl. ¶¶ 75-76.
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`Defendants seek to dismiss the negligence claim, arguing that 1) Plaintiffs have not established
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`5 Defendants allege that the “unfair” prong requires alleging that the conduct “threatens an
`incipient violation of an antitrust law.” ECF 54 (“Reply”) at 18 (quoting Cel–Tech Commc'ns,
`Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 164 (1999)). However, that is the definition for
`unfair acts “among competitors.” Sybersound Recs., Inc. v. UAV Corp., 517 F.3d 1137, 1152 (9th
`Cir. 2008) (quoting id.). As that is not the basis of the allegations here, the definition does not
`apply.
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` 6
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` As OpenAI does not raise preemption, the Court does not consider it. However, the Court notes
`the possibility that to the extent the UCL claim alleges the same violations as the copyright claim,
`it may be preempted by the Copyright Act.
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`Northern District of California
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`United States District Court
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`Case 3:23-cv-03223-AMO Document 104 Filed 02/12/24 Page 11 of 13
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`that OpenAI owes them a duty and 2) the Complaints only challenge intentional acts. Motion at
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`30-31.
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`The Complaints allege that Defendants negligently maintained and controlled information
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`in their possession. Tremblay Compl. ¶¶ 74-75; Silverman Compl. ¶¶ 75-76. Plaintiffs argue
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`without legal support that Defendants owed a duty to safeguard Plaintiffs’ works. Response at 30.
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`Plaintiffs do not identify what duty exists to “maintain[] and control[]” the public information
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`contained in Plaintiffs’ copyrighted books. The negligence claim fails on this basis.
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`Plaintiffs’ argument that there is a “special relationship” between the parties also fails. See
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`Response at 30. Nowhere in the Complaints do Plaintiffs allege that there is any fiduciary or
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`custodial relationship between the parties. Plaintiffs do not explain how merely possessing their
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`books creates a special relationship, citing only to an inapposite case where defendants were
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`custodians of plaintiffs’ “personal and confidential information.” Witriol v. LexisNexis Grp., No.
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`C05-02392 MJJ, 2006 WL 4725713, at *8 (N.D. Cal. Feb. 10, 2006).7
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`As Plaintiffs have not alleged that Defendants owed them a legal duty, the Court dismisses
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`this claim with leave to amend.
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`E.
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`Unjust Enrichment (Count VI)
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`In the sixth cause of action, Plaintiffs bring an unjust enrichment claim for OpenAI’s use
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`of the copyrighted books to train ChatGPT. Tremblay Compl. ¶¶ 79-86; Silverman Compl. ¶¶ 80-
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`87. The Ninth Circuit allows an unjust enrichment claim as either an independent cause of action
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`or as a “quasi-contract claim for restitution.” ESG Cap. Partners, LP v. Stratos, 828 F.3d 1023,
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`1038 (9th Cir. 2016). “To allege unjust enrichment as an independent cause of action, a plaintiff
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`7 Defendants do not raise the economic loss doctrine, but it may also preclude recovery. See N.
`Am. Chem. Co. v. Superior Ct., 59 Cal. App. 4th 764, 777 (1997) (“The economic loss rule has
`been applied to bar a plaintiff’s tort recovery of economic damages unless such damages are
`accompanied by some form of physical harm (i.e., personal injury or property damage)”); see also
`Aas v. Superior Ct., 24 Cal. 4th 627, 636 (2000) (limiting liability in a negligence action to
`damages for physical injuries and not permitting recovery for economic loss alone); see, e.g.,
`Strumlauf v. Starbucks Corp., 192 F. Supp. 3d 1025, 1035 (N.D. Cal. 2016) (granting motion to
`dismiss on ground that economic loss doctrine barred plaintiff’s claim).
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`Northern District of California
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`United States District Court
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`

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`Case 3:23-cv-03223-AMO Document 104 Filed 02/12/24 Page 12 of 13
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`must show that the defendant received and unjustly retained a benefit at the plaintiff’s expense.”
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`Id. Restitution is not ordinarily available to a plaintiff unless “the benefits were conferred by
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`mistake, fraud, coercion or request; otherwise, though there is enrichment, it is not unjust.” Nibbi
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`Bros., Inc. v. Home Fed. Sav. & Loan Assn., 205 Cal. App. 3d 1415, 1422 (Cal. Ct. App. 1988)
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`(quoting 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 97, p. 126.); see Astiana v.
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`Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (quoting 55 Cal. Jur. 3d Restitution §
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`2) (the theory underlying an unjust enrichment claim is that “a defendant has been unjustly
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`conferred a benefit ‘through mistake, fraud, coercion, or request.’”).
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`Defendants argue that this claim must be dismissed because Plaintiffs fail to allege what
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`“benefit” they quasi-contractually “conferred” on OpenAI or that Plaintiffs conferred this benefit
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`through “mistake, fraud, or coercion.” Motion at 32 (citing Bittel Tech., Inc. v. Bittel USA, Inc.,
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`No. C10-00719 HRL, 2010 WL 3221864, at *5 (N.D. Cal. Aug. 13, 2010) (“Ordinarily, a plaintiff
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`must show that the benefit was conferred on the defendant through mistake, fraud or coercion.”)
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`(citation omitted). Plaintiffs fail to allege that OpenAI “has been unjustly conferred a benefit
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`‘through mistake, fraud, coercion, or request.’” See Astiana, 783 F.3d at 762 (citation omitted);
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`LeGrand v. Abbott Lab’ys, 655 F. Supp. 3d 871, 898 (N.D. Cal. 2023) (same); see, e.g., Russell v.
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`Walmart, Inc., No. 22-CV-02813-JST, 2023 WL 4341460, at *2 (N.D. Cal. July 5, 2023) (“it is
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`not enough that Russell have provided Walmart with a beneficial service; Russell must also allege
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`that Walmart unjustly secured that benefit through qualifying conduct. Absent qualifying mistake,
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`fraud, coercion, or request by Walmart, there is no injustice.”). As Plaintiffs have not alleged that
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`OpenAI unjustly obtained benefits from Plaintiffs’ copyrighted works through fraud, mistake,
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`coercion, or request, this claim fails.8
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`IV. CONCLUSION
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`For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’
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`motions to dismiss. Plaintiffs’ amended complaint must be filed by March 13, 2024. No
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`8 Because Plaintiffs fail to adequately allege the negligence and unjust enrichment claims, the
`Court need not reach the preemption issue at this time.
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`Northern District of California
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`Case 3:23-cv-03223-AMO Document 104 Filed 02/12/24 Page 13 of 13
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`additional parties or claims may be added without leave of Court or stipulation of Defendants.
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`The amended complaint shall consolidate the cla