Tag: contributory-liability

Contributory liability for torts, copyright infringement or trademark infringement

Cox Communications v. Sony Music

The Scope of Contributory Liability for Copyright Infringement

Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. __ (2026)

I didn’t list contributory liability for infringement as one of the enduring non-AI issues in copyright law, but this year’s decision in Cox Communications v. Sony Music Entertainment is a reminder that issues thought to have been resolved years ago can resurface at any time.

Factual Background

Cox Communications, Inc. is an internet service provider selling internet, telephone, and cable television connections to millions of people. Some of its customers used this service to set up peer-to-peer networks such as BitTorrent to distribute copyrighted music without the permission of copyright owners. Sony Music Entertainment and other record companies owned the copyrights in some of these songs. Through the Recording Industry Association of America (RIAA), it hired a company to monitor illegal file sharing and notify internet service providers when it detected infringement. The company sent Cox Communications 163,148 notices of infringement during a two-year period. Cox Communications warned or suspended customers who were repeat infringers, but rarely terminated service for copyright infringement.

Sony and others sued Cox Communications for contributory and vicarious copyright infringement. They claimed that Cox Communications failed to take adequate measures to stop infringement, thereby inducing or materially contributing to its customers’ infringement of music copyrights.

The U.S. District Court for the Eastern District of Virginia denied Cox Communications safe harbor under the Digital Millennium Copyright Act (DMCA) and allowed the case to proceed to trial on theories of vicarious and contributory copyright infringement. The jury found Cox Communications liable on both counts and awarded $1 billion in statutory damages.

The Court of Appeals reversed the vicarious liability verdict, but affirmed the finding of willful contributory infringement. It vacated the damages award and remanded the case for a new trial on damages.

The case ultimately made its way to the United States Supreme Court. The Supreme Court unanimously reversed. Justice Thomas wrote the majority opinion. Justice Sotomayor wrote a concurring opinion.

front view of the Library of Congress building

Legal Background

Direct and Indirect Infringement

A copyright owner has the exclusive right to copy, distribute, display, perform, and make derivative works based on the copyrighted work. The exclusive right to perform a work includes the exclusive right to digitally transmit it. Anyone who exercises one of these exclusive rights without the owner’s consent is an infringer. Statutory damages of up to $150,000 per work may be awarded if infringement is willful. 17 U.S.C. § 504 (c)(2).

A person who actually performs the acts of unlawful reproduction, distribution, performance, etc. is guilty of direct infringement. A person who did not actually perform the infringing act but is responsible in some way for furthering it may be guilty of indirect infringement.   

Using an internet service to which you subscribe to reproduce, distribute and transmit copies of musical works without the copyright owners’ permission is an example of direct infringement. Providing a service or facility that customers use to do that is a potential source of contributory liability for infringement, but only under certain conditions.

In this case, Sony sought to hold Cox Communications liable for indirect infringement.

Vicarious and Contributory Liability

Courts recognize two kinds of indirect infringement: vicarious and contributory.

Vicarious liability

Vicarious liability may be imposed when one person has the right and ability to control, supervise and stop another person’s activity. Because employers have this power over their employees, they are often held vicariously liable for their employees’ acts within the course and scope of the employment.

Vicarious liability for infringement requires a showing of direct financial benefit from the infringing activity to the person with supervisory control. The lower courts rejected Sony’s claim of vicarious infringement liability because the financial benefit Cox received from its customers took the form of monthly internet subscription fees. It was not directly tied to infringing activity. Subscribers paid for lawful internet access, not for the ability to infringe copyrights. Cox Communications did not profit specifically or directly from the piracy occurring in the networks its customers set up.

The only issue to reach the United States Supreme Court in this case, therefore, was whether Cox Communications could be held contributorily liable for the infringing acts of its customers.

Contributory liability

Contributory liability may be imposed when a person either induces or materially contributes to another person’s wrongful act.

Material Contribution

The common law basis for contributory liability was “material contribution.” A person could be found to have materially contributed to an activity if s/he provided the site and facilities for infringement. No proof of inducement was necessary. Napster, for example, was found to have materially contributed to users’ acts of infringement because it maintained a centralized service with a searchable index of music files for users to download.

Sony Corp. v. Universal City Studios raised the question whether a company that provides products that enable copyright infringement is always contributorily liable for “materially contributing” to users’ acts of direct infringement.

The case involved video recording products, i.e., equipment that people can use to record television programs. The Supreme Court held that recording free, over-the-air broadcasts to watch at a more convenient time is fair use, so long as the recording is made for the viewer’s own personal, noncommercial use. The Court then held that a company is not contributorily liable for infringement merely because it provides a service or product that customers can use to infringe copyrights, provided the product or service has substantial non-infringing uses. Because recording a television program for later viewing is a substantial, non-infringing use, and there was no evidence that Sony said or did anything to encourage customers to make infringing uses of its products, the Court held the company could not be held contributorily liable for infringing acts on the part of the buyers of its products. The short answer, then, is no. Merely providing a product or service that can be used to infringe copyrights will not necessarily result in contributory liability for infringement, provided it has substantial, non-infringing uses.

Inducement

The Court limited the scope of this holding (sometimes called the “Betamax safe harbor”) in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. In this case, the Court held that a company does not get the benefit of the Betamax safe harbor for a product or service that has substantial, non-infringing uses if it actively induces infringing uses.

In Grokster, the Court relied on marketing, communications and operational evidence that Grokster had deployed promotional materials and meta-tags designed to capture internet searches for “Napster.” Napster was a file-sharing network that had been shut down after a court ordered it to block users from sharing copyrighted materials. (Napster has since been rebranded as a provider of generative and agentic AI services.) It also distributed newsletters to users touting the availability of copyrighted music and movies to download on its networks. Customer support instructed users on how to locate, download and play copyrighted files.

Even if a product or service has substantial, non-infringing uses, then, contributory liability may arise  if a company actively induces infringing uses by soliciting and encouraging infringers to use it and helping customers use it to infringe copyrights.

The Issue in Cox Communications v. Sony

Two rules can be distilled from pre-2026 contributory infringement cases:

1) Furnishing a product or service may result in “material contribution” liability if its primary use is to infringe copyrights.

2) Furnishing a product or service that has substantial, non-infringing uses will not result in contributory liability unless the provider actively induces infringing uses.

The question raised in Cox Communications v. Sony Music was whether failing to stop known infringing uses is also a basis for imposing contributory liability, when the product or service has substantial, non-infringing uses.

The holding in Cox Communications v. Sony Music

The Supreme Court unanimously held that an internet service provider’s failure to stop known infringing uses of its service is not a basis for imposing contributory liability for the infringing uses that customers make of its service. An ISP’s failure to stop known infringement neither induces users’ infringement nor provides an independent, third basis for contributory liability.

The Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) immunizes ISPs from contributory liability for user-provided content if they have implemented “a policy that provides for the termination in appropriate circumstances of subscribers and account holders” who are repeat infringers. 17 U.S.C. § 512(i)(1)A).

Sony basically argued that this immunity would be unnecessary if ISPs are not liable for providing services to known infringers anyway. Why try to incentivize ISPs to terminate known infringers’ accounts if they are not at risk of liability even in the absence of the DMCA?

The DMCA, however, does not expressly impose liability for providing internet service to known infringers. Another DMCA provision says that failure to comply with the DMCA’s safe harbor conditions “shall not bear adversely upon . . . a defense by the service provider . . . that the service provider’s conduct is not infringing.” 17 U.S.C. § 512(l).

To put it more colloquially, the DMCA’s safe harbor provisions are meant to be a shield, not a sword.

Intent

Although intent has never been an essential element of a copyright infringement claim, Justice Thomas interpreted the Court’s precedents as imposing an intent requirement in contributory infringement claims:

“The provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement. The intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement.”

Cox Communications v. Sony Music, at 7.

Justice Sotomayor’s Concurrence

Justice Sotomayor agreed that an ISP cannot be held contributorily liable for copyright infringement unless intent is established. She filed a concurring opinion, however, to dispute that inducement and tailoring a product to infringing uses are the only two situations that may support a finding of intent. She would have held the door open for other ways of establishing intent under common law “aiding and abetting” theory.

She also criticized the majority’s interpretation of the DMCA:

“The majority’s decision thus permits ISPs to sell an internet connection to every single infringer who wants one without fear of liability and without lifting a finger to prevent infringement. It also means that Cox is free to abandon its current policy of responding to copyright infringement. [U]nder the rule the majority adopts today, the safe harbor provision will not “d[o] anything at all” going forward. . . . Congress did not enact the safe harbor just so that this Court could eviscerate it.”

Cox Communications v. Sony Music (J. Sotomayor, concurring opinion) (citations omitted) at 6–7.

Nevertheless, because she did not believe the requisite showing of intent had been made in this case, she concurred in the judgment.

Limitations

 Cox Communications v. Sony Music only applies to internet service providers, what the common law described as “conduits.” It does not directly apply to people who copy, distribute or host infringing material.

Also, the Court noted that an ISP normally does not actually have knowledge of the identity of the user who is committing direct infringement. It has records of IP addresses associated with accounts, but a single IP address might be used by multiple people, not all of whom are infringers. It is possible that in a different case, where the defendant actually does know the identity of the specific direct infringer, the requisite finding of intent might be easier to make. Future cases will need to flesh that out.

Implications

As Congress and courts grapple with emerging generative AI copyright issues, it is likely that attempts will be made to apply the principles announced in Cox Communications v. Sony Music to generative AI architecture. While the internet is a neutral data conduit, large language models that drive generative-AI function by ingesting massive datasets of protected works to optimize their commercial output. Rights holders argue that building a system dependent on unauthorized ingestion constitutes direct or secondary infringement. However, the intent requirement articulated in Cox provides AI developers with a potentially expansive defense to output infringement. If providing a tool with the simple knowledge that users may generate infringing outputs is legally insufficient, then the battleground over generative AI must shift. Because generative AI tools arguably have substantial, non-infringing uses, litigators will need to prove intent to induce infringement to prevail on a contributory output infringement claim. The potential impact on input infringement claims, of course, is a different matter.

We are already seeing this defense framework reshape federal dockets. In June 2026, tech platforms seized upon the Cox precedent to try to stop copyright claims at the pleadings stage. In a motion filed in Tennessee federal court, X Corp. invoked Cox v. Sony Music to argue that music publishers’ secondary liability claims must be dismissed, asserting that the plaintiffs failed to allege explicit “affirmative inducement” rather than general platform piracy.

Practical Tip

Despite the Court’s ruling in Cox Communications v. Sony Music, platform providers may find it prudent to continue to comply with DMCA safe harbor requirements. Not only could this help them qualify for the immunities the DMCA provides, but it might also help demonstrate a lack of infringing intent.

Longstanding and Emerging Legal Issues in Trademark Law

Trademark law protects brand identifiers like names, logos, words, slogans, and other things, ensuring consumers aren’t deceived about the source of a product or service. It also protects businesses from unfair competition. Core concepts include use in commerce, distinctiveness and the likelihood of confusion, which dictate whether a mark can be registered and enforced.

Jack Daniels whiskey bottle and Bad Spaniels dog toy - parody goods trademark infringement

Whether you’re a startup founder, an artist, or just astudent of the law, understanding trademark law is essential. Here is a breakdown of the fundamentals, followed by some of the biggest trending issues in the trademark world today.

The Fundamentals of Trademark Law

A trademark is any word, name, drawing, graphic, or device used to identify the source of goods or services and distinguish them from others. The four essential requirements for a valid trademark are:

Distinctiveness

A trademark must operate not only to identify the source of a product or service but also to distinguish it from others.

It is evaluated along a spectrum:

  • Fanciful marks: These are completely made-up, invented words, graphics, etc. that have nothing whatsoever to do with the nature or quality of the products or services with which they are associated. These are inherently distinctive, meaning it is not necessary to prove that consumers have come to associate the mark with the source. XEROX and EXXON are examples.
  • Arbitrary marks: These are real words, images of real things, etc., but they bear no relationship to the product or service with which they are associated. APPLE computers is an example. These, too, are inherently distinctive.
  • Suggestive marks: Suggestive marks are marks that hint at the nature or a quality of the product or service, but do not directly describe it. They require some imaginative thought on the part of the consumer to “connect the dots.” JAGUAR for cars and COPPERTONE for suntan lotion are examples. A suggestive mark is inherently distinctive.
  • Descriptive marks. These describe a quality, ingredient, or characteristic of the product or service. Unlike suggestive marks, they don’t merely hint at it; they come right out and directly describe the product or service, or a characteristic or ingredient of it. HOLIDAY INN and INTERNATIONAL BUSINESS MACHINES are examples. Descriptive marks cannot be claimed as trademarks unless they have acquired “secondary meaning.” The burden of proof is on the claimant to show that consumers have come to identify the brand with the claimant’s product or service, and not with other sources of it.
  • Generic marks: These are names for a category of product or service. MILK, as a mark for milk would be an example. No trademark rights can be claimed in generic marks.

Likelihood of Confusion

The primary legal standard for both registering a mark and suing for infringement is “likelihood of confusion”. This means determining if an ordinary consumer would mistakenly believe that your product or service and someone else’s come from the same source, or are affiliated.

Courts apply a multi-factor test (primarily the DuPont factors) to assess likelihood of confusion. The most critical ones are:

  • Similarity of the marks: Do they look, sound, or convey a similar commercial impression?
  • Relatedness of the goods/services

Courts consider other factors, too.

Two marks may be confusingly similar even if they are not identical. The key is whether consumers would be likely to confuse the source of one with the source of the other.

Use in Commerce

A mark must be used in commerce as a source identifier. Otherwise, a trademark does not come into being. To register a trademark federally with the USPTO, the use must be in interstate or foreign commerce. Purely intrastate commerce will not suffice for federal registration.

Registration

Registered tradmeark symbol

In the United States, trademarks come into existence through use in commerce as a trademark. When all the elements of a valid trademark exist (distinctiveness, etc.) a “common law” trademark exists. The scope of protection a common law trademark affords, however, is limited to the geographic area of trade. To get nationwide protection and the right to use the coveted ® symbol, you must register your mark with the U.S. Patent and Trademark Office (USPTO).

My experience has been that the major stumbling blocks for people who apply to register their trademark with the USPTO are (1) lack of distinctiveness, usually due to selecting a descriptive mark without acquired meaning; (2) likelihood of confusion with another person’s or company’s trademark; and (3) improperly completing the application for registration.

Topical Issues in Trademark Law

Fraudulent filings

The USPTO has implemented rigorous enforcement frameworks to crack down on fraudulent filings. Historically, many trademark owners were in the habit of registering their marks in more than one category of goods or services, either to “keep options open” for possible company expansion into a new product line, or to prevent competitors from doing so. The USPTO is making more vigorous efforts to crack down on registrants who fraudulently claim use in connection with goods or services with which they are not actually using the mark.

Due to a massive influx of suspicious, fraudulent, or automated filings, laregly by trademark mills, the office has cracked down by requiring stricter identity verification and heavily scrutinizing specimens of use. If a brand is caught digitally altering logos or faking mock-ups of their goods in commerce, their registration very likely will be swiftly canceled. Examiners are inspecting specimens of use more closely now, trying to ferret out digitally created mock-ups of trademarks being used in commerce. A false or fraudulent specimen of use is grounds for cancellation of registration.

The Trademark Modernization Act has given the USPTO new and enhanced powers to cancel unused and fraudulent registrations.

AI-Generated Counterfeits

Generative-AI is being used to create knock-offs of digital products. This is creating challenges for owners of trademarks in digital products and services.

Intermediary Platform Liability

Can an online marketplace platform or intermediary website or online service provider be held contributorily liable for facilitating or otherwise contributing to counterfeit and trademark-infringing goods being sold on their platforms?

Phrases Without Trademark Functionality

People are increasingly trying to claim trademark ownership over common words and phrases, such as “Hello. How are you?” The USPTO and courts are rebuffing a lot of these efforts. It is still possible for a phrase to become a trademark, but proof of acquired secondary meaning as a source identifier is needed. Otherwise, an applicant is likely to experience a “failure to function as a trademark” denial.

Read more about non-AI-related legal issues.

Visit my extensive Trademark FAQs page.

Need help with a trademark registration? Contact attorney Thomas James.

AI Lawsuits Roundup

A status update on 24 pending lawsuits against AI companies – what they’re about and what is happening in court – prepared by Minnesota copyright attorney Thomas James.

Advancements in artificial intelligence technology, including generative-AI, have introduced a wide range of new or exacerbated legal problems. Collectively, I call these AI legal issues. Although not all of them are unique to scenarios involving AI, they are certainly testing and stretching the capacity of legal institutions. Here is a very brief summary of how these issues are playing out in the courts, as of February 28, 2024. 

Copyright

Stephen Thaler's AI-generated artwork, "A Recent Entrance to Paradise"

Thaler v. Perlmutter (D.D.C. 2022).

Complaint filed June 2, 2022. Thaler created an AI system called the Creativity Machine. He applied to register copyrights in the output he generated with it. The Copyright Office refused registration on the ground that AI output does not meet the “human authorship” requirement. (I explained that requirement in a previous blog post that explored the difference between human and AI creation of a work. He then sought judicial review. The district court granted summary judgment for the Copyright Office. (See A Recent Exit from Paradise.) In October, 2023, Thaler filed an appeal to the District of Columbia Circuit Court of Appeals (Case no. 23-5233).

Doe v. GitHub, Microsoft, and OpenAI (N.D. Cal. 2022)

I wrote about this case in Generative AI: The Top 12 Lawsuits.  The complaint was filed November 3, 2022. Software developers claim the defendants trained Codex and Copilot on code derived from theirs, which they published on GitHub. Some claims have been dismissed, but claims that GitHub and OpenAI violated the DMCA and breached open source licenses remain. Discovery is ongoing.

Andersen v. Stability AI (N.D. Cal. 2023)

The Andersen v. Stability AI complaint was filed January 13, 1023. Visual artists sued Midjourney, Stability AI and DeviantArt for copyright infringement for allegedly training their generative-AI models on images scraped from the Internet without copyright holders’ permission. Other claims included DMCA violations, publicity rights violations, unfair competition, breach of contract, and a claim that output images are infringing derivative works. On October 30, 2023, the court largely granted motions to dismiss, but granted leave to amend the complaint. Plaintiffs filed an amended complaint on November 29, 2023. Defendants have filed motions to dismiss the amended complaint. Hearing on the motion is set for May 8, 2024.

Getty Images v. StabilityAI (U.K. 2023)

Complaint filed January, 2023. Getty Images claims StabilityAI scraped images without its consent. The Getty Images lawsuit has survived a motion to dismiss. The case appears to be heading to trial.

In re OpenAI ChatGPT Litigation (N.D. Cal. 2023)

Complaint filed June 28, 3023. Originally captioned Tremblay v. OpenAI. Book authors sued OpenAI for direct and vicarious copyright infringement, DMCA violations, unfair competition and negligence. Both input (training) and output (derivative works) claims are alleged, as well as state law claims of unfair competition, etc.

Most state law and DMCA claims have been dismissed, but claims based on unauthorized copying during the AI training process remain. An amended complaint is likely to come in March. The court has directed the amended complaint to consolidate Tremblay v. OpenAI, Chabon v. OpenAI, and Silverman v. OpenAI.  

Kadrey v. Meta (N.D. Cal. 2023)

Complaint filed July 7, 2023. Sarah Silverman and other authors allege Meta infringed copyrights in their works by making copies of them while training Meta’s AI model; that the AI model is itself an infringing derivative work; and that outputs are infringing copies of their works. Plaintiffs also allege DMCA violations, unfair competition, unjust enrichment, and negligence. The court granted Meta’s motion to dismiss all claims except the claim that unauthorized copies were made during the AI training process. An amended complaint and answer have been filed.

In 2025, Judge Chhabria ruled in Meta’s favor on fair use with respect to AI training; reserved the motion for summary judgment on the DMCA claims for decision in a separate order, and held that the claim of infringing distribution via leeching or seeding “will remain a live issue in the case.” Kadrey v. Meta Platforms. 

J.L. v. Google (N.D. Cal. 2023)

Complaint filed July 11, 2023. In another case I mentioned in Generative AI: The Top 12 Lawsuits, an author filed a complaint against Google alleging misuse of content posted on social media and Google platforms to train Google’s AI Bard. (Gemini is the successor to Google’s Bard.) Claims include copyright infringement, DMCA violations, and others. J.L. filed an amended complaint and Google has filed a motion to dismiss it. A hearing is scheduled for May 16, 2024.

Chabon v. OpenAI (N.D. Cal. 2023)

Complaint filed September 9, 2023. Authors allege that OpenAI infringed copyrights while training ChatGPT, and that ChatGPT is itself an unauthorized derivative work. They also assert claims of DMCA violations, unfair competition, negligence and unjust enrichment. Chabon v. OpenAI has been consolidated with Tremblay v. OpenAI, and the cases are now captioned In re OpenAI ChatGPT Litigation.

Chabon v. Meta Platforms (N.D. Cal. 2023)

Complaint filed September 12, 2023. Authors assert copyright infringement claims against Meta, alleging that Meta trained its AI using their works and that the AI model itself is an unauthorized derivative work. The authors also assert claims for DMCA violations, unfair competition, negligence, and unjust enrichment. In November, 2023, the court issued an Order dismissing all claims except the claim of unauthorized copying in the course of training the AI. The court described the claim that an AI model trained on a work is a derivative of that work as “nonsensical.” Chabon v. Mea Platforms.

Authors Guild v. OpenAI, Microsoft, et al. (S.D.N.Y. 2023)

Complaint filed September 19, 1023. Book and fiction writers filed a complaint for copyright infringement in connection with defendants’ training AI on copies of their works without permission. A motion to dismiss has been filed. Authors Guild v. Open AI et al.

Huckabee v. Bloomberg, Meta Platforms, Microsoft, and EleutherAI Institute (S.D.N.Y. 2023)

Complaint filed October 17, 2023. Political figure Mike Huckabee and others allege that the defendants trained AI tools on their works without permission when they used Books3, a text dataset compiled by developers; that their tools are themselves unauthorized derivative works; and that every output of their tools is an infringing derivative work.  Claims against EleutherAI have been voluntarily dismissed. Claims against Meta and Microsoft have been transferred to the Northern District of California. Bloomberg is expected to file a motion to dismiss soon. Huckabee v. Bloomberg et al.

Huckabee v. Meta Platforms and Microsoft (N.D. Cal. 2023)

Complaint filed October 17, 2023. Political figure Mike Huckabee and others allege that the defendants trained AI tools on their works without permission when they used Books3, a text dataset compiled by developers; that their tools are themselves unauthorized derivative works; and that every output of their tools is an infringing derivative work. Plaintiffs have filed an amended complaint. Plaintiffs have stipulated to dismissal of claims against Microsoft without prejudice. Huckabee v. Meta Platforms and Microsoft.

Concord Music Group v. Anthropic (M.D. Tenn. 2023)

Complaint filed October 18, 2023. Music publishers claim that Anthropic infringed publisher-owned copyrights in song lyrics when they allegedly were copied as part of an AI training process (Claude) and when lyrics were reproduced and distributed in response to prompts. They have also made claims of contributory and vicarious infringement. Motions to dismiss and for a preliminary injunction are pending. Concord Music Group v. Anthropic.

Alter v. OpenAI and Microsoft (S.D.N.Y. 2023)

Complaint filed November 21, 2023. Nonfiction author alleges claims of copyright infringement and contributory copyright infringement against OpenAI and Microsoft, alleging that reproducing copies of their works in datasets used to train AI infringed copyrights. The court has ordered consolidation of Author’s Guild (23-cv-8292) and Alter (23-cv-10211). On February 12,2024, plaintiffs in other cases filed a motion to intervene and dismiss. Alter v. OpenAI and Microsoft.

New York Times v. Microsoft and OpenAI (S.D.N.Y. 2023)

Complaint filed December 27, 2023. The New York Times alleges that their news stories were used to train AI without a license or permission, in violation of their exclusive rights of reproduction and public display, as copyright owners. The complaint also alleges vicarious and contributory copyright infringement, DMCA violations, unfair competition, and trademark dilution. The Times seeks damages, an injunction against further infringing conduct, and a Section 503(b) order for the destruction of “all GPT or other LLM models and training sets that incorporate Times Works.” On February 23, 2024, plaintiffs in other cases filed a motion to intervene and dismiss this case. New York Times v. Microsoft and OpenAI.

Basbanes and Ngagoyeanes v. Microsoft and OpenAI (S.D.N.Y. 2024)

Complaint filed January 5, 2024. Nonfiction authors assert copyright claims against Microsoft and OpenAI. On February 6, 2024, the court consolidated this case with Authors Guild (23-cv-08292) and Alter v. Open AI (23-cv-10211), for pretrial purposes. Basbanes and Ngagoyeanes v. Microsoft and OpenAI.

Trademark

Getty Images v. Stability AI (D. Del.)

AI-generated image of female soccer players with wrong number and position of limbs, and "Getty Images" logo on it

Getty Images v. Stability AI Complaint filed on February 3, 2023. Getty Images alleges claims of copyright infringement, DMCA violation and trademark violations against Stability AI. The judge has dismissed without prejudice a motion to dismiss or transfer on jurisdictional grounds. The motion may be re-filed after the conclusion of jurisdictional discovery, which is ongoing.

Privacy and Publicity Rights

Flora v. Prisma Labs (N.D. Cal.)

Complaint filed February 15, 2023. Plaintiffs allege violations of the Illinois Biometric Privacy Act in connection with Prisma Labs’ collection and retention of users’ selfies in AI training. The court has granted Prisma’s motion to compel arbitration. Flora v. Prisma Labs. 

Kyland Young v. NeoCortext (C.D. Cal. 2023)

Complaint filed April 3, 2023. This complaint alleges that AI tool Reface used a person’s image without consent, in violation of the person’s publicity rights under California law. The court has denied a motion to dismiss, ruling that publicity rights claims are not preempted by federal copyright law. The case has been stayed pending appeal. Kyland Young v. NeoCortext.

Complaint filed June 28, 2023. Users claim OpenAI violated the federal Electronic Communications Privacy Act and California wiretapping laws by collecting their data when they input content into ChatGPT. They also claim violations of the Computer Fraud and Abuse Act. Plaintiffs voluntarily dismissed the case on September 15, 2023. See now A.T. v. OpenAI (N.D. Cal. 2023) (below). P.M. v. OpenAI.

A.T. v. OpenAI (N.D. Cal. 2023)

Complaint filed September 5, 2023. ChatGPT users claim the company violated the federal Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, and California Penal Code section 631 (wiretapping). The gravamen of the complaint is that ChatGPT allegedly accessed users’ platform access and intercepted their private information without their knowledge or consent. Motions to dismiss and to compel arbitration are pending. A.T. v. OpenAI.

Defamation

Walters v. OpenAI (Gwinnett County Super. Ct. 2023), and Walters v. OpenAI (N.D. Ga. 2023)

Gwinnett County complaint filed June 5, 2023.

Federal district court complaint filed July 14, 2023.

Radio Radio talk show host sued OpenAI for defamation. A reporter had used ChatGPT to get information about him. ChatGPT wrongly described him as a person who had been accused of fraud. In October, 2023, the federal court remanded the case to the Superior Court of Gwinnett County, Georgia.  On January 11, 2024, the Gwinnett County Superior Court denied OpenAI’s motion to dismiss. Walters v. OpenAI. 

Battle v. Microsoft (D. Md. 2023)

Complaint filed July 7, 2023. Pro se defamation complaint against Microsoft alleging that Bing falsely described him as a member of the “Portland Seven,” a group of Americans who tried to join the Taliban after 9/11. Battle v. Microsoft.

Caveat

This list is not exhaustive. There may be other cases involving AI that are not included here. For a discussion of bias issues in Google’s Gemini, have a look at Scraping Bias.

Visit my extensive Copyright FAQs page.