Sarah Silverman and other authors’ lawsuit against OpenAI, the company behind ChatGPT, has hit a snag.

Silverman, Richard Kadrey, Christopher Golden and Paul Tremblay’s original complaint claims OpenAI used their books without authorization to develop its so-called large language models, which their makers pitch as powerful tools for automating tasks by replicating human conversation. 

On Monday, a federal judge dismissed several claims in the suit, including vicarious copyright infringement, negligence and unjust enrichment. 

AI expert Marva Bailer explained to FOX Business that people could expect more cases like this in the future.

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“The ruling for this case is going to be consistent with many other cases,” she said. “They’re trying to prove that the input into OpenAI, which is a large language model, will be derivative of their original work. And what constitutes that is the output of the work. So, that’s what this case means. They’re examining the output to see if it has the copyright in the likeness of the original work.”

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The vicarious copyright infringement claim states that answers generated by OpenAI’s ChatGPT program is an infringing work made possible only by information taken from copyrighted material, in this case Silverman’s book, “The Bedwetter,” and other authors’ works such as Paul Tremblay’s “The Cabin at the End of the World.”

“Plaintiffs fail to explain what the outputs entail or allege that any particular output is substantially similar – or similar at all – to their books. Accordingly, the Court dismisses the vicarious copyright infringement claim with leave to amend,” U.S. District Judge Araceli Martinez-Olguin wrote in an order.

“This court case is going to be one of many,” Bailer said. “And for artists to win and authors to win, they are being asked to connect the dots. And that is going to be a very challenging opportunity for people to be able to connect those dots.”

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ChatGPT illustration

A claim under the Digital Millennium Copyright Act, which “restricts the removal or alteration of copyright management information [also known as CMI]” such as title, author and the copyright owner, was dismissed as well.

Judge Martinez-Olguin sided with OpenAI, writing, “Plaintiffs provide no facts supporting this assertion. Indeed, the Complaints include excerpts of ChatGPT outputs that include multiple references to Plaintiffs’ names, suggesting that OpenAI did not remove all references to ‘the name of the author.’

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“Even if Plaintiffs provided facts showing Defendants’ knowing removal of CMI from the books during the training process, Plaintiffs have not shown how omitting CMI in the copies used in the training set gave Defendants reasonable grounds to know that ChatGPT’s output would induce, enable, facilitate, or conceal infringement.”

Bailer noted, “What we’re looking at is the Fair Use Act. And so, one of the arguments is, is this education? And if it is education, then it would be OK to use these works. But where the authors and creators are having a challenge is they’re feeling like they’re losing compensation, but they need to connect the dots. And that’s where the nuance is going to come in.”

 

Sarah Silverman

The claims of creating and distributing “derivative works” was similarly dismissed. Originally, Silverman and the other plaintiffs alleged “that ‘every output from the OpenAI Language Models is an infringing derivative work.’”

However, the judge ruled that was done “without providing any indication as to what such outputs entail – i.e., whether they are the copyrighted books or copies of the books,” calling it “insufficient” to support their claim under the Digital Millennium Copyright Act. 

Claims of negligence and unjust enrichment were dismissed due to lack of proof of legal duty and relationship between parties and failure to allege that OpenAI “unjustly” obtained benefits from the copyrighted works through fraud or other means.

The judge did uphold the unfair competition claim, writing, “Assuming the truth of Plaintiffs’ allegations — that Defendants used Plaintiffs’ copyrighted works to train their language models for commercial profit — the Court concludes that Defendants’ conduct may constitute an unfair practice. Therefore, this portion of the UCL [The Unfair Competition Law of California] claim may proceed.”

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Sarah Silverman posing with her hands on her hips

Silverman and her fellow plaintiffs have until March 13 to file changes to their complaint and continue with that claim.

FOX Business reached out to both Silverman and OpenAI, but they did not immediately respond to requests for comment.

“The plaintiffs do have the opportunity to come back and connect the dots. But what that looks like is they’re going to need to prove that they have either lost income or lost the opportunity for their brand,” Bailer explained. 

Bailer noted that for a Hollywood star like Silverman and bestselling authors, that could be difficult.

Sarah Silverman posing on the red carpet

“In many cases, that’s going to be very, very hard to prove, because not only do they have books, they currently have podcasts out, they have movies, they have Broadway plays. So, to be able to all tie it back to this open AI language model is going to be very challenging.”

Additionally, in Bailer’s opinion, the lawsuit is less about economics and more intellectual.

“I feel this argument is not about compensation. It is about control and consistency,” she said. “And this is a new model. So, when you’re seeing your name in places that you didn’t know it was going to be, and also, by the way, it might not be exactly what you wanted it to say, or the connection is going to challenge you, but it also might open a whole new audience or experience that you’ve never thought of. So, it’s going to require a lot of patience.

“They’re thinking of the then and now, and they’re trying to protect the brand and likeness, but they are not thinking of the future economies that they could really be a part of.”

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