Case 1:24-cv-01514-CM Document 70 Filed 05/13/24 Page 1 of 26
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`
`
`
`
`No. 1:24-cv-01514-CM
`
`
`RAW STORY MEDIA, INC., ALTERNET
`MEDIA, INC.,
`
` Plaintiffs,
`
` v.
`
`OPENAI, INC., OPENAI GP, LLC,
`OPENAI, LLC, OPENAI OPCO LLC,
`OPENAI GLOBAL LLC, OAI
`CORPORATION, LLC, and OPENAI
`HOLDINGS, LLC,
`
` Defendants.
`
`
`
`PLAINTIFFS’ MEMORANDUM OF LAW
`IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
`
`

`

`Case 1:24-cv-01514-CM Document 70 Filed 05/13/24 Page 2 of 26
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`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`IV.
`
`INTRODUCTION ...............................................................................................................1
`
`BACKGROUND .................................................................................................................2
`
`A.
`
`B.
`
`Plaintiffs publish thousands of news articles online that contain CMI ....................2
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`Defendants intentionally remove CMI from Plaintiffs’ news articles .....................3
`
`LEGAL STANDARDS .......................................................................................................4
`
`ARGUMENT .......................................................................................................................5
`
`A.
`
`Plaintiffs have Article III standing ...........................................................................5
`
`1.
`
`2.
`
`3.
`
`Plaintiffs’ injuries are concrete ....................................................................5
`
`Plaintiffs’ injuries are particularized ............................................................8
`
`Even on Defendants’ theory, Plaintiffs have standing to seek an
`injunction .....................................................................................................9
`
`B.
`
`C.
`
`Plaintiffs were “injured” under section 1203(a) ....................................................10
`
`Plaintiffs state a claim under section 1202(b)(1) ...................................................12
`
`1.
`
`2.
`
`Plaintiffs adequately allege the existence and removal of CMI from their
`articles ........................................................................................................12
`
`Plaintiffs adequately allege scienter ...........................................................21
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`V.
`
`CONCLUSION ..................................................................................................................21
`
`

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`Case 1:24-cv-01514-CM Document 70 Filed 05/13/24 Page 3 of 26
`
`Cases
`
`A&M Recs., Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) ................................................................. 7
`
`Aaberg v. Francesca’s Collections, Inc., No. 17-cv-115, 2018 WL 1583037
`
`(S.D.N.Y. Mar. 27, 2018) ........................................................................................................ 15, 20
`
`Alan Ross Mach. Corp. v. Machinio Corp., No. 17-cv-3569, 2019 WL 1317664
`
`(N.D. Ill. Mar. 22, 2019) ................................................................................................................ 11
`
`Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................................... 5
`
`Bohnak v. Marsh & McLennan Cos., Inc., 79 F.4th 276 (2d Cir. 2023) ....................................................... 5
`
`Calloway v. Marvel Ent. Grp., a Div. of Cadence Indus. Corp., No. 82-cv-8697, 1983 WL 1141,
`(S.D.N.Y. June 30, 1983) ............................................................................................................... 13
`
`
`Cole v. John Wiley & Sons, Inc., No. 11-cv-2090, 2012 WL 3133520 (S.D.N.Y. Aug. 1, 2012) .............. 14
`
`Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42 (2d Cir. 1991) ........................................................ 21
`
`Devocean Jewelry LLC v. Associated Newspapers Ltd., No. 16-cv-2150, 2016 WL 6135662,
`
`(S.D.N.Y. Oct. 19, 2016) ......................................................................................................... 15, 20
`
`Doe 1 v. Github, 672 F. Supp. 3d 837 (N.D. Cal. 2023) ................................................................... 9, 10, 20
`
`Dow Jones & Co., Inc. v. Int’l Sec. Exch., Inc., 451 F.3d 295 (2d Cir. 2006) ............................................ 12
`
`Erickson v. Pardus, 551 U.S. 89 (2007) ....................................................................................................... 5
`
`F. W. Woolworth Co. v. Contemp. Arts, 344 U.S. 228 (1952) ...................................................................... 8
`
`Felix the Cat Prods., Inc. v. Cal. Clock Co., No. 04-cv-5714, 2007 WL 1032267
`
`(S.D.N.Y. Mar. 30, 2007) .............................................................................................................. 14
`
`Fischer v. Forrest, 968 F.3d 216 (2d Cir. 2020) ......................................................................................... 12
`
`Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427 (2019) ................................................................. 11
`
`Fox Film Corp. v. Doyal, 286 U.S. 123 (1932) ............................................................................................ 7
`
`Free Speech Sys., LLC v. Menzel, 390 F. Supp. 3d 1162 (N.D. Cal. 2019) ................................................ 14
`
`George & Co. LLC v. Target Corp., No. 21-cv-4254, 2022 WL 1407236 (E.D.N.Y. Jan. 27, 2022) ........ 17
`
`Hirsch v. CBS Broad. Inc., No. 17-cv-1860, 2017 WL 3393845 (S.D.N.Y. Aug. 4, 2017) ........... 15, 16, 20
`
`Izmo, Inc. v. Roadster, Inc., No. 18-cv-06092, 2019 WL 13210561 (N.D. Cal. Mar. 26, 2019) ................ 20
`
`Jewell-La Salle Realty Co. v. Buck, 283 U.S. 202 (1931) ............................................................................. 8
`
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`Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, No. 16-cv-1318, 2017 WL 696126
`(S.D.N.Y. Feb. 15, 2017) ............................................................................................................... 14
`
` 
`Murphy v. Millennium Radio Grp. LLC, No. 08-cv-1743, 2015 WL 419884 (D.N.J. Jan. 30, 2015) ........ 17
`
`Palmer Kane LLC v. Scholastic Corp., No. 12-cv-3890, 2013 WL 709276 (S.D.N.Y. Feb. 27, 2013) ..... 14
`
`Saba Cap. Cef Opportunities 1, Ltd. v. Nuveen Floating Rate Income Fund, 88 F.4th 103
`
`(2d Cir. 2023) ................................................................................................................................... 5
`
`Sherwood 48 Assocs. v. Sony Corp. of Am., 76 F. App’x 389 (2d Cir. 2003) ............................................. 14
`
`Sierra Club v. Con-Strux, LLC, 911 F.3d 85 (2d Cir. 2018) ......................................................................... 4
`
`Sitnet LLC v. Meta Platforms, Inc., No. 23-cv-6389, 2023 WL 6938283 (S.D.N.Y. Oct. 20, 2023) ......... 14
`
`Sonterra Cap. Master Fund Ltd. v. UBS AG, 954 F.3d 529 (2d Cir. 2020) .................................................. 4
`
`Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ........................................................................................ 5, 6, 8
`
`Steele v. Bongiovi, 784 F. Supp. 2d 94, 97-98 (D. Mass. 2011) ................................................................. 11
`
`Stevens v. CoreLogic, 899 F.3d 666, 674 (9th Cir. 2018) ........................................................................... 20
`
`The New York Times Company v. Microsoft Corp., No. 23-cv-11195 (S.D.N.Y. Feb. 26, 2024) .......... 2, 19
`
`TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) .......................................................................... 5, 7, 8, 9
`
`Tremblay v. OpenAI, Inc., No. 23-cv-03223, 2024 WL 557720 (N.D. Cal. Feb. 12, 2024)....................... 17
`
`Wolo Mfg. Corp. v. ABC Corp., 349 F. Supp. 3d 176 (E.D.N.Y. 2018) ..................................................... 14
`
`Statutes
`
`1202(b)(3) ................................................................................................................................................... 11
`
`17 U.S.C. § 106 ............................................................................................................................................. 6
`
`17 U.S.C. § 106(1) ........................................................................................................................................ 6
`
`17 U.S.C. § 106(2) ........................................................................................................................................ 6
`
`17 U.S.C. § 1202(b) .............................................................................................................................. 12, 18
`
`17 U.S.C. § 1202(b)(1) ..................................................................................................................... 6, 11, 15
`
`17 U.S.C. § 1203(a) .................................................................................................................................... 10
`
`17 U.S.C. § 1203(c) ...................................................................................................................................... 6
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`17 U.S.C. § 504(c)(1) .................................................................................................................................... 8
`
`17 U.S.C. § 504(b) ........................................................................................................................................ 6
`
`Pub. L. 105-304, 112 Stat. 2860 (1998) ........................................................................................................ 6
`
`Other Authorities
`
`Act of May 31, 1790, ch. 15, § 2 .............................................................................................................. 7, 8
`
`Molly Bohannon, Lawyer Used ChatGPT In Court—And Cited Fake Cases. A Judge Is Considering
`Sanctions (Forbes June 8, 2023) ................................................................................................................... 1
`
`Rules
`
`Fed. R. Civ. P. 8(a)(2) ................................................................................................................................... 4
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`Case 1:24-cv-01514-CM Document 70 Filed 05/13/24 Page 6 of 26
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`I.
`
`INTRODUCTION
`
`Plaintiffs Raw Story and AlterNet have alleged that the OpenAI Defendants took a vast
`
`number of Plaintiffs’ news articles without Plaintiffs’ permission, removed their copyright
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`management information, and used them to train ChatGPT products that incorporate and even
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`completely regurgitate works on which they were trained. OpenAI’s ChatGPT products, now
`
`worth billions of dollars, could not have been created without this training process—a process for
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`which Defendants never requested, much less received, permission.
`
`Defendants’ motion contends that Plaintiffs are not entitled to their day in court on their
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`Digital Millennium Copyright Act claims because they lack standing, have not adequately put
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`Defendants on notice of their claims, and have not shown that Defendants acted with the required
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`scienter. Not unlike the so-called “hallucinations” to which their products are sometimes prone,
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`Defendants ignore or mischaracterize both the applicable law and the allegations of the Complaint.
`
`See, e.g., Molly Bohannon, Lawyer Used ChatGPT In Court—And Cited Fake Cases. A Judge Is
`
`Considering
`
`Sanctions
`
`(Forbes
`
`June
`
`8,
`
`2023),
`
`https://www.forbes.com/sites/mollybohannon/2023/06/08/lawyer-used-chatgpt-in-court-and-
`
`cited-fake-cases-a-judge-is-considering-sanctions/?sh=34a922fa7c7f.
`
`On standing, Defendants argue that Plaintiffs must allege specific works that ChatGPT
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`disseminated to the public. But DMCA standing does not require dissemination. As with copyright
`
`infringement (the closest historical analogue to the DMCA), the injury is the interference with a
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`plaintiff’s right to exclude others from using its copyrighted works irrespective of dissemination.
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`Plaintiffs have alleged just that.
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`Nor does the complaint fall short from a notice perspective. Having hidden much of the
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`content of their training sets from public view, Defendants seek to leverage their own secrecy as a
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`basis for dismissal, but their argument demands far more of Plaintiffs’ Complaint than the pleading
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`

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`stage requires and ignores many of the Complaint’s allegations. Based on allegations derived from
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`the analysis of Plaintiffs’ AI data scientist expert, Defendants are sufficiently on notice that
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`Plaintiffs’ claims are based on the works published on Plaintiffs’ websites and placed into
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`Defendants’ training sets with author, title, and copyright information removed, and Defendants
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`cannot and do not claim ignorance of the contents of their own training sets. Defendants also argue,
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`disingenuously and incorrectly, that Plaintiffs were supposedly required to identify specific
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`instances of regurgitation of their own works, but when the New York Times made exactly those
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`allegations against them, Defendants accused them of nothing less than computer hacking.
`
`Memorandum of Law in Support of OpenAI Defendants’ Motion to Dismiss, 2, The New York
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`Times Company v. Microsoft Corp., No. 23-cv-11195 (S.D.N.Y. Feb. 26, 2024).
`
`Plaintiffs have adequately pled scienter as well. The Second Circuit allows for lenient
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`scienter pleading, but even if a greater level of detail were required, Plaintiffs have pled abundant
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`facts—well beyond the bare-bones pleadings that led to dismissals in some out-of-jurisdiction
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`DMCA cases—including that ChatGPT plagiarizes substantial content. Defendants’ contrary
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`arguments rest on supposed pleading rules this District has expressly rejected.
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`In sum, Plaintiffs’ claims are sufficiently pled to overcome a motion to dismiss.
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`Defendants’ motion should be denied.
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`II.
`
`BACKGROUND
`
`A.
`
`Plaintiffs publish thousands of news articles online that contain CMI.
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`Plaintiffs Raw Story Media, Inc. and AlterNet Meda, Inc. are award-winning news
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`organizations. Compl. ¶¶ 8-14. Their articles (created by professional authors who create media
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`content with the expectation of earning a living) are published on the internet. Id. ¶ 31; see also
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`rawstory.com; alternet.org. At the time of publication, their articles are conveyed with author,
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`title, and copyright information. Compl. ¶ 31.
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`B.
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`Defendants intentionally remove CMI from Plaintiffs’ news articles.
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`Generative AI systems and large language models, including ChatGPT, are trained on
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`works created by humans. Compl. ¶¶ 4-5. Once trained, an LLM is able to provide responses to
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`user prompts. Id. ¶ 33. These responses sometimes mimic material from the works on which they
`
`are trained, and sometimes even “regurgitate” those works entirely for its own (paying) customers.
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`Id. ¶¶ 34-36. When that happens, ChatGPT generally does not provide the author, title, and
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`copyright information contained in the original version of the work. Id. ¶ 39.
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`Beginning with GPT-4, Defendants have hidden from the public and from copyright
`
`owners the precise contents of the training sets on which their products are built. Id. ¶ 28. But
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`information exists about prior ChatGPT training sets, and that information shows that Defendants
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`have trained their products on thousands of Plaintiffs’ copyright-protected news articles. Id. ¶ 37.
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`In particular, Defendant trained ChatGPT using training sets called WebText and WebText2—sets
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`created by OpenAI that are collections of links posted on the website Reddit. Id. ¶¶ 29-30.
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`Defendants also created training sets derived from a repository called Common Crawl, which is a
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`vast “scrape of most of the internet” created by a third party. Id.
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`Defendants have not published the contents of WebText, WebText2, or their training sets
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`derived from Common Crawl. Id. ¶ 28. But various public sources have recreated approximations
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`of these datasets. Id. ¶ 37. And in those approximations, thousands of Plaintiffs’ articles appear
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`without the copyright management information with which Plaintiffs conveyed them to the public.
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`Id. There is only one plausible explanation for this: Defendants intentionally removed the CMI.
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`After all, given the nature of LLM training, if ChatGPT had been trained on works that included
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`CMI, it would have learned to output CMI. Id. ¶ 38.
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`Likewise, Defendants knew, or had reasonable grounds to know, that their removal of
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`Plaintiffs’ CMI in their training sets would likely induce, enable, facilitate, or conceal infringement
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`by both themselves and ChatGPT users. Indeed, after the tortious acts giving rise to this lawsuit
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`were committed, Defendants have recently not only created tools to allow copyright owners to
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`block their work from being incorporated into training sets, but they also reached licensing deals
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`with some media organizations to pay them for the content they used for training, suggesting (at
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`least in the light most favorable to Plaintiffs) that they know that copying journalists’ works is
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`likely infringement. Id. ¶¶ 57, 58. The removal of CMI, in turn, furthers and conceals Defendants’
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`infringement at least by preventing ChatGPT users from knowing that outputs are based on
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`copyright-protected works of journalism. Id. ¶ 46. It also furthers ChatGPT users’ infringement
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`at least by encouraging them to distribute outputs the users do not know are infringing. Id. ¶¶ 44-
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`45. And it facilitates Defendants’ large-scale copying and use of copyright-protected material in
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`their training sets by avoiding the problems for their products that would arise if Defendants had
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`included CMI. Id. ¶¶ 33, 38, 46.
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`III.
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`LEGAL STANDARDS
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`Rule 8 requires only “a short and plain statement of the claim showing that the pleader is
`
`entitled to relief.” Fed. R. Civ. P. 8(a)(2). On a motion to dismiss under Rule 12(b)(1) for lack of
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`standing, the court’s resolution depends on whether the motion is facial—based solely on the
`
`allegations in the complaint—or fact-based. Sonterra Cap. Master Fund Ltd. v. UBS AG, 954 F.3d
`
`529, 533 (2d Cir. 2020). When the motion is facial, as Defendants’ motions are here, the court
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`must “accept[] as true all material factual allegations of the complaint, and draw[] all reasonable
`
`inferences in favor of the plaintiff.” Id. (cleaned up). In these cases, “the plaintiff has no
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`evidentiary burden.” Id.
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`Likewise, under Rule 12(b)(6), the court must “accept[] all factual allegations as true and
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`draw[] all reasonable inferences in favor of the plaintiff.” Sierra Club v. Con-Strux, LLC, 911
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`F.3d 85, 88 (2d Cir. 2018). The court must deny the motion if the complaint “contain[s] sufficient
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`factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Ashcroft
`
`v. Iqbal, 556 U.S. 662, 678, (2009)). And because the purpose of a complaint is to “give the
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`defendant fair notice of what the ... claim is and the grounds upon which it rests,” a plaintiff need
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`not plead “specific facts” in order to overcome a motion to dismiss. Erickson v. Pardus, 551 U.S.
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`89, 93 (2007) (cleaned up) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)).
`
`Defendants may dispute the accuracy of Plaintiffs’ allegations or question Plaintiffs’ ability to
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`prove them, but those are issues for trial, not the pleading stage. See Giuffre v. Dershowitz, 410
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`F. Supp. 3d 564, 577 (S.D.N.Y. 2019) (“[P]laintiffs can put their allegations out to the world and
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`must only plead them, not prove them, at the motion to dismiss stage.”).
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`IV.
`ARGUMENT
`A. Plaintiffs have Article III standing.
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`Article III standing requires, inter alia, a “concrete and particularized” injury. Spokeo, Inc.
`
`v. Robins, 578 U.S. 330, 339 (2016). Plaintiffs plausibly allege both.
`
`1.
`
`Plaintiffs’ injuries are concrete.
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`An injury is concrete if it has a “close historical or common-law analogue.” TransUnion
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`LLC v. Ramirez, 594 U.S. 413, 424 (2021). The analogy need not be an “exact duplicate.” Id. at
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`433. Instead, “some relationship to a well-established common-law analog” will do. Bohnak v.
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`Marsh & McLennan Cos., Inc., 79 F.4th 276, 285 (2d Cir. 2023); see also Saba Cap. Cef
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`Opportunities 1, Ltd. v. Nuveen Floating Rate Income Fund, 88 F.4th 103, 115-16 (2d Cir. 2023)
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`(holding that dilution of voting shares is analogous to a common-law “property-based injury”). In
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`deciding concreteness, “[c]ourts must afford due respect to Congress’s decision to impose a
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`statutory prohibition or obligation on a defendant, and to grant a plaintiff a cause of action to sue
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`over the defendant’s violation of that statutory prohibition or obligation.” TransUnion, 594 U.S.
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`at 425. Both “tangible” and “intangible” harms are concrete. See id. at 424-425.
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`The unlawful removal of CMI from a copyright-protected work—Plaintiffs’ claim here—
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`is analogous to copyright infringement. Congress evidently saw the two as analogous: it called
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`the DMCA an Act “[t]o amend title 17, United States Code,” which exclusively concerns
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`copyright. Pub. L. 105-304, 112 Stat. 2860 (1998). It did so because CMI protects the integrity
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`of copyrighted works. See S. Rep. 105-190 at 16 (1998). Further recognizing the analogy,
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`Congress provided similar remedies for DMCA violations as it long had for copyright
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`infringement: in both, the plaintiff can choose between actual damages and profits on the one hand,
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`and statutory damages on the other. Compare 17 U.S.C. §§ 504(b), (c) (copyright infringement)
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`with 17 U.S.C. § 1203(c) (DMCA violations)). While not dispositive, Congress’s view on the
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`matter is entitled to considerable weight. See Spokeo, 578 U.S. at 341 (“[B]ecause Congress is
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`well positioned to identify intangible harms that meet minimum Article III requirements, its
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`judgment is also instructive and important.”).
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`The analogy between copyright infringement and DMCA violations also follows from first
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`principles: both the Copyright Act and the DMCA protect similar rights involving copyright-
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`protected works. The Copyright Act protects certain exclusive rights, such as the rights to
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`reproduce the work and prepare derivative works. See 17 U.S.C. § 106 (listing exclusive rights).
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`The DMCA grants copyright owners similar rights. In particular, the protection against removing
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`or altering CMI, 17 U.S.C. § 1202(b)(1), is analogous to the rights to reproduce the works and
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`prepare derivative ones, 17 U.S.C. §§ 106(1), (2): both grant the copyright owner the sole
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`prerogative to decide how future iterations of the work may differ from the version the owner
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`published.
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`Given this analogy, Plaintiffs have alleged a concrete injury: Defendants’ interference with
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`their exclusive right to control their copyrighted works by removing CMI from them. See Compl.
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`¶¶ 47-58. For copyright infringement, courts have never required more. See Fox Film Corp. v.
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`Doyal, 286 U.S. 123, 127 (1932) (describing copyright owner’s right as one simply to “exclude
`
`others from using his property”). This also accords with the common law, which recognizes
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`interference with property, without more, as a concrete injury. See Restatement (Second) of Torts
`
`§ 163 (“One who intentionally enters land in the possession of another is subject to liability to the
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`possessor for a trespass, although his presence on the land causes no harm to the land, its possessor,
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`or to any thing or person in whose security the possessor has a legally protected interest.”). Given
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`the infringement-DMCA analogy, the same holds for the latter: the unlawful removal of CMI from
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`a copyrighted work is a concrete injury.
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`Defendants would impose two more conditions for standing. First, they would require that
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`the defendant disseminate the plaintiff’s works. See Mot. at 5-7. But copyright infringement—
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`the relevant historical analogue—has never required dissemination. This has been true from the
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`1790 Copyright Act, passed by the first Congress, to the present version of the law. See Act of
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`May 31, 1790, ch. 15, § 2 (imposing liability on anyone who “shall print, reprint, publish, or
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`import” a copyrighted work); A&M Recs., Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir.
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`2001) (holding that downloading of files containing copyrighted music violates the reproduction
`
`right). Given the close analogy between copyright infringement and DMCA violations, nothing
`
`justifies treating DMCA violations differently.
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`Defendants contend that TransUnion supports a dissemination requirement. Mot. at 5-7.
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`But it is far afield. The TransUnion plaintiffs alleged that a credit reporting agency did not keep
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`accurate credit files. See TransUnion, 594 U.S. at 421. Likening their injury to one at common
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`law, the plaintiffs chose defamation. See id. at 432. The Court held that the analogy justified a
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`finding of injury for plaintiffs whose credit files were disseminated to third parties, but not for
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`Case 1:24-cv-01514-CM Document 70 Filed 05/13/24 Page 13 of 26
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`those whose files were not. See id. at 433. It reached that conclusion because defamation requires
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`publication. See id. at 434. Thus, its dissemination requirement was an artifact of the plaintiffs’
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`chosen analogy to a historical injury that requires it. That has no bearing on a case like this, where
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`Plaintiffs analogize to a different historical injury—copyright infringement—that does not.
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`Second, Defendants would require economic harm. See Mot. at 7. But standing does not
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`require this. See TransUnion, 594 U.S. at 425. And neither, historically, has copyright
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`infringement—the relevant analogy. This is clear from the 1790 version of the Copyright Act
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`which granted statutory damages of 50 cents per infringing page without any further showing. See
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`Act of May 31, 1790, ch. 15, § 2. The same rule has persisted, with the Supreme Court making
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`clear long ago that liability may lie “[e]ven for uninjurious and unprofitable invasions of
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`copyright.” F. W. Woolworth Co. v. Contemp. Arts, 344 U.S. 228, 233 (1952); see also Jewell-La
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`Salle Realty Co. v. Buck, 283 U.S. 202, 208 (1931) (construing Copyright Act to mandate
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`minimum statutory damages of $10 per performance even if “there is no showing as to actual
`
`loss”); 17 U.S.C. § 504(c)(1) (providing for statutory damages for copyright infringement without
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`regard to economic loss). Given the analogy between DMCA violations and copyright
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`infringement, the same result follows: DMCA violations do not require economic harm.
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`Defendants cite no contrary authority.
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`2.
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`Plaintiffs’ injuries are particularized.
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`“For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual
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`way.’” Spokeo, 578 U.S. at 339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992)).
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`Plaintiffs met that requirement by alleging that Defendants removed CMI from their copyright-
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`protected news articles. See Compl. ¶¶ 47-58. If such removal constitutes an Article III injury—
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`and it does for the reasons just given—then Plaintiffs have alleged that they suffered them in a
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`personal and individual way.
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`Case 1:24-cv-01514-CM Document 70 Filed 05/13/24 Page 14 of 26
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`Defendants resist this conclusion, relying on Doe 1 v. Github, 672 F. Supp. 3d 837 (N.D.
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`Cal. 2023). That reliance is misplaced. Doe 1 held that the plaintiffs did not identify a
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`particularized injury sufficient to confer standing for damages because they did not allege
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`dissemination of their own works (though, as discussed in Section IV.A.3, infra, it did find
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`standing for an injunction). See id. at 850. But like TransUnion, Doe 1 required dissemination
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`only because of how the plaintiffs defined their injury: as a violation of their licenses, which
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`prohibited dissemination without CMI. See id. Because the plaintiffs did not allege CMI-less
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`disseminations of their own works, they “do not allege that they themselves have suffered the
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`injury they describe,” and thus failed the particularity requirement. Id. The Court offered no view
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`on the analogy to copyright infringement because it was not asked to. Its holding on standing for
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`damages is therefore inapposite. Plaintiffs have standing to pursue damages for Defendants’
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`removal of Plaintiffs’ CMI.
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`3.
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`Even on Defendants’ theory, Plaintiffs have standing to seek an
`injunction.
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`Plaintiffs seek both damages for Defendants’ past CMI removal and an injunction requiring
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`Defendants to remove their articles from their training sets. See Compl. at 11. Defendants do not
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`directly dispute Plaintiffs’ standing to seek injunctive relief, and both of Defendants’ standing
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`cases, TransUnion and Doe 1, only rejected plaintiffs’ standing to seek damages. Even if correct,
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`however, Defendants’ arguments against standing for damages would not vitiate Plaintiffs’
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`standing to seek an injunction, as the outcome of the standing analysis may differ between these
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`forms of relief based on the same underlying facts. See TransUnion, 594 U.S. at 431 (holding that
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`“plaintiffs must demonstrate standing for each claim that they press and for each form of relief that
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`they seek (for example, injunctive relief and damages”); id. at 436-37 (holding that risk of future
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`harm can ground a claim for an injunction but not a claim for damages).
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`Case 1:24-cv-01514-CM Document 70 Filed 05/13/24 Page 15 of 26
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`In any case, Plaintiffs have standing to seek an injunction even on Defendants’ inaccurate
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`theory of standing as allegedly requiring dissemination. In fact, the Court need look no further
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`than Defendants’ lead case, Doe 1, which found standing for injunctive relief even though the
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`Plaintiffs did not allege dissemination of their own works. See Doe 1, 672 F. Supp. 3d at 850-51.
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`Specifically, it held that the plaintiffs had standing by alleging “a substantial risk that Defendants’
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`programs will reproduce Plaintiffs’ licensed code as output.” Id. at 851. The plaintiffs had alleged
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`that the programs were trained on their source code, that the programs sometimes reproduced well-
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`known code (though not plaintiffs’ own), and that one of the programs reproduces code “about 1%
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`of the time.” Id.
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`Plaintiffs here have easily cleared that bar. They allege that ChatGPT was trained on their
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`copyrighted works, Compl. ¶ 37, that ChatGPT has reproduced copyrighted works of journalism,
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`id. ¶¶ 34-35, and that “nearly 60% of the responses provided by Defendants’ GPT-3.5 product in
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`a study conducted by Copyleaks contained some form of plagiarized content, and over 45%
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`contained text that was identical to pre-existing content,” id. ¶ 5. This conveys a much greater
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`risk than 1%. Thus, even if standing did require dissemination of Plaintiffs’ own works, but see
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`Section IV.A.1, supra, Plaintiffs have plausibly alleged facts to support standing for an injunction.
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`B.
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`Plaintiffs were “injured” under section 1203(a).
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`Defendants argue that Plaintiffs “are not within the class of plaintiffs that Congress
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`authorized to sue” for DMCA violations—a class Defendants do not even define—and thus that
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`Plaintiffs did not suffer an injury under 17 U.S.C. § 1203(a) (“Any person injured by a violation
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`of section 1201 or 1202 may bring a civil action.”). See Mot. at 11 This argument fails for the
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`same reason as the last: Plaintiffs suffered an Article III injury, and Defendants give no reason to
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`believe that “injury” under section 1203(a) means anything different than it does under Article III.
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`Case 1:24-cv-01514-CM Document 70 Filed 05/13/24 Page 16 of 26
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`Defendants further suggest that Plai