by Matthew Russell Lee, Patreon Book Substack
SDNY COURTHOUSE, Nov 29– Fiction writers and the Authors Guild have sued OpenAI and on November 29 the intial pre-trial conference was held before U.S. District Court for the Southern District of New York Judge Sidney H. Stein. Inner City Press was there, thread:
Judge Stein: So I got a letter that the plaintiffs intend to file an amended complaint to add Microsoft?
Plaintiffs' counsel: Yes, Your Honor. Judge: File that by Monday... Now, there's this other case that says it is related, I've invited counsel up. Judge: Do the parties agree they are related?
Plaintiffs' counsel: We agree, both are opt-out class actions, and the rules for relatedness are satified. Judge: What about consolidation?
Plaintiffs' lawyer: We haven't decided yet, we're working cooperatively.
OpenAI lawyer: We agree, they are related. Judge: Certainly it's easier for me if they go forward on a consolidated basis. Ms. Blakely, let the Clerk's office know I've accepted it as related. Plaintiff, tell me what you think the case is about.
Plaintiffs' lawyer: This is a tight class action, filed here in the center of publishing by professional fiction writers. [From caption: Christina Baker Kline, David Baldacci, George Saunders, John Grisham Jonathan Franzen, Michael Connelly, Scott Turow
Plaintiffs' lawyer: They stole books. We represent professional fiction writers. We have remedial theories and can move quickly. The cases in California, there are three
Judge: I'm interested in the first filed rule, and/or a stay Judge: There are exceptions to the first filed rule, but they'll say they don't apply.
Plaintiffs' lawyer: The cases in California allege that LMMs are infringing machines. It's interesting, but it's a broader class. We are not just a subset - we are focused Judge: Aren't you arguing that too? That they are gobbling up Mr. Baldacci's work?
Plaintiffs' lawyer: He was reproduced wholesale, and even new work produced. Mr Balducci - I mean Baldacci, I was thinking of food - is very concerned. Judge: Are you saying the violation is if OpenAI spits out another copy of the novel? Plaintiffs' counsel: It is the willful copying and reproduction of his books.
2d plaintiffs' lawyer: We're focused on the mass copying of works to train LMMs. Plaintiffs' lawyer: The 3 California cases have been consolidated, there's a hearing on Dec 8 on a motion to dismiss.
OpenAI lawyer: We have not moved to dismiss the reproduction claim, which is the one here. Plaintiffs' lawyer: The court said summary judgment 1st
OpenAI lawyer: We're not talking about anyone getting copies of Mr. Baldacci's books about of ChatGPT. To the extent there were reproduction is was for a non-infringing reason: learning and training. Plaintiffs' lawyer: We have evidence of output that infringes Plaintiffs' lawyer: This is not remotely like Google Books.
OpenAI lawyer: This claim is one of the claims in California cases, which are also filed by authors. So we believe in the first filed rule here.
Plaintiffs' lawyer: We are professional fiction writers Plaintiffs' lawyer: Microsoft has only been sued in the cases in New York.
Judge: Let me set a date to move to dismiss or answer - it will be January 12, to give Microsoft time. Last day for plaintiff to response, January 26. Reply, February 2. Judge: Talk to me about Google Books, and if we should deal with certification first.
Plaintiffs' counsel: That should be done here. Judge: The 2d Circuit disagreed. Plaintiffs' counsel: That was an inapposite case. Class actions can be accordions
Plaintiffs' lawyer: It doesn't make sense to have a summary judgment about one or 18 persons' issues that doesn't apply to the others.
Judge: I assume OpenAI will say fair use applies Plaintiffs' lawyer: This underscores the benefits of certification 1st
Judge: If we know what ChatGPT is doing with the materials that are shoved into its maw is fair use, that would be in line with Google Books.
Plaintiffs' lawyer: Authors are afraid. I think we will win. In this new context, an adverse ruling would not be the end
Judge: I want the parties to submit to me, by January 12, their positions on whether fair use should come first, or class certification. OpenAI lawyer: We think this is all fair use, to train the model to learn and produce non-infringing outputs.
OpenAI lawyer: We want an answer on summary judgment. We may not need a class certification if it is resolved as in Google Books. Or the disputes of fact could be specific to individual, the particular work
Judge: I tend to think I don't need this as this point, but does the court need a tutorial on how this thing works? I'm thinking of patent cases, if need to get smart. Plaintiffs' lawyer: In connection with class cert we have have machine learning experts
OpenAI lawyer: Let's do expert discovery then hold a hearing, with class cert thereafter. Plaintiffs' lawyer: We anticipate experts in connection with class certification.
Judge: This is as far as I should take it now. Talk to Microsoft, adhere to these dates.
Judge: Let's leave it at that. Adjourned.
The case is Authors Guild et al v. OpenAI Inc. et al., 23-cv-8292 (Stein)
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