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Through the ADventures in Law Blog, BakerHostetler’s Advertising, Marketing, and Digital Media team provides updates and analysis on legal issues and trends in the advertising and marketing industry.

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In today’s global economy, patents, trademarks, copyrights, trade secrets, domain names and other intellectual property (IP) are among the most valuable assets of market leaders and rising businesses.

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Join us for AD Nauseam, an AdLaw podcast series featuring Amy Mudge and Daniel Kaufman, partners from our Advertising, Marketing, and Digital Media team. Together, they have decades of advertising experience and share their insights on trending legal issues in the advertising space, with an emphasis on the FTC and NAD developments.

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The use of noncompetes is now shifting across the country. Many states are limiting the use of noncompetes. Several states have enacted or are considering prohibitions on noncompetes. Nationally, the Federal Trade Commission is engaging in a rulemaking that could ban noncompete agreements between employers and employees. What does all of this mean for your business? Are there alternatives to noncompetes that can protect your business?

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Since the recent Dobbs decision, which overturned Roe v. Wade, companies have been impacted nationwide and have several new legal angles to consider as it relates to their employees and their businesses. With that in mind, we’ve created a new podcast series, Dobbs on Demand, designed to help you navigate this new and evolving landscape.

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Wait, what?

Case Tracker: Artificial Intelligence, Copyrights and Class Actions

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In April, the United States Judicial Panel on Multidistrict Litigation consolidated twelve cases originally brought in the Southern District of New York and Northern District of California against OpenAI and Microsoft. The MDL litigation is in S.D.N.Y.&nbsp;

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For case activity before April 2025, visit:&nbsp;&nbsp;

<a href="https://www.bakerlaw.com/alter-v-openai/" target="_blank" rel="noreferrer noopener">Authors Guild v. OpenAI; Alter v. OpenAI; and Basbanes v. Microsoft</a>&nbsp;

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<a href="https://www.bakerlaw.com/openai-chatgpt-litigation/" target="_blank" rel="noreferrer noopener">Chabon v. OpenAI; Silverman v. OpenAI; and Tremblay v. OpenAI</a>&nbsp;

<a href="https://www.bakerlaw.com/the-intercept-media-and-raw-story-media-v-openai/" target="_blank" rel="noreferrer noopener">The Intercept Media v. OpenAI and Raw Story Media v. OpenAI&nbsp;</a>

<a href="https://www.bakerlaw.com/new-york-times-v-microsoft/" target="_blank" rel="noreferrer noopener">New York Times v. Microsoft; Daily News v. Microsoft; and The Center for Investigative Reporting v. OpenAI</a>&nbsp;

The parties met for a settlement conference on September 26, 2025.

Case Background

Caption: In re: OpenAI, Inc. Copyright Infringement Litigation, No. 1:25-md-3143&nbsp;

Court: Southern District of California&nbsp;

Judges: District Judge Sidney H. Stein and Magistrate Judge Ona T. Wang&nbsp;

Alter Plaintiffs – Jonathan Alter, The Authors Guild, David Baldacci, Kai Bird, Mary Bly, Taylor Branch, Rich Cohen, Michael Connelly, Sylvia Day, Jonathan Franzen, John Grisham, Elin Hilderbrand, Christina Baker Kline, Maya Shanbhag Lang, Victor LaValle, Eugene Linden, George R.R. Martin, Daniel Okrent, Jodi Picoult, Douglas Preston, Roxana Robinson, Julian Sancton, George Saunders, Stacy Schiff, Hampton Sides, James Shapiro, Jia Tolentino, Scott Turow, Simon Winchester, and Rachel Vail, on behalf of themselves and a putative class&nbsp;

Basbanes Plaintiffs – Nicholas A. Basbanes and Nicholas Ngagoyeanes (professionally known as Nicholas Gage)&nbsp;&nbsp;

Tremblay Plaintiffs – Paul Tremblay, Sarah Silverman, Christopher Golden, and Richard Kadrey on behalf of themselves and a putative class, represented by Joseph Saveri Law Firm, LLP and Matthew Butterick; Michael Chabon, Ta-Nehisi Coates, Junot Díaz, Andrew Sean Greer, David Henry Hwang, Matthew Klam, Laura Lippman, Rachel Louise Snyder, Ayelet Waldman, and Jacqueline Woodson on behalf of themselves and a putative class&nbsp;

News Media Plaintiffs – Daily News, LP, Chicago Tribune Company, LLC, Orlando Sentinel Communications Company, LLC, Sun-Sentinel Company, LLC, San Jose Mercury-News, LLC, DP Media Network, LLC, ORB Publishing, LLC and Northwest Publications, LLC (“Daily News Plaintiffs”); New York Times Company; Center for Investigative Reporting; The Intercept Media, Inc.; Raw Story Media, Inc.; and AlterNet Media, Inc.&nbsp;

Millette – David Millette&nbsp;

OpenAI – OpenAI, Inc., OpenAI LP, OpenAI GP, LLC, OpenAI, LLC, OpenAI OpCo, LLC, OpenAI Global, LLC, and OAI Corporation, LLC&nbsp;

Microsoft – Microsoft Corporation&nbsp;

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Status Updates

July 30-Aug. 27, 2025 – Motion to dismiss Ziff Davis Complaint

On July 14, OpenAI filed motion to dismiss [ECF 300] the Ziff Davis Complaint, stating that of the nine claims brought by Ziff Davis and co., only two are claims this court has yet to encounter within this multidistrict litigation – circumvention of technical measures under the DMCA (Claim V) and claim for unjust enrichment (Claim IV). OpenAI stated that it has already moved to dismiss those claims, citing to ECF 52, and rather than oppose the motion, plaintiffs amended its complaint. OpenAI argued that the claims as alleged remain the same, such that the arguments for dismissal remain –&nbsp;&nbsp;For Claim V, the DMCA does not prohibit the alleged disregarding of statements in robots.txt files. Rather, the DMCA applies only to “technological measures that effectively control[] access to a [copyrighted] work.” OpenAI argued that robots.txt files “do not ‘control access’ but rather—as Ziff Davis’s complaint makes clear—simply allow website operators to communicate their preferences as to web crawling.”&nbsp;

For Claim IV, unjust enrichment is preempted by the Copyright Act.&nbsp;&nbsp;

OpenAI then argued that the other following claims should be dismissed:&nbsp;

On August 27, Ziff Davis plaintiffs filed in opposition of OpenAI’s motion to dismiss, arguing that OpenAI “attempts to sidestep [plaintiffs’] well-pleaded claims by mischaracterizing both the law and the allegations in” their complaint.&nbsp;&nbsp;

In support of their Claim VII, Plaintiffs argued that their complaint clearly alleges that “OpenAI systematically and on a massive scale crawls [plaintiffs’] websites to scrape [their] copyrighted content in direct violation of specific technological measures—robots.txt directives—implemented expressly to block OpenAI’s GPTBot.” Plaintiffs defended their websites’ robots.txt files as “effective technological controls” as required by the DMCA by explaining the technical function of the Robots Exclusion Protocol and citing legal precedent that enforces robots.txt files as technological measures under the DMCA. Plaintiffs walked through in defense of their other claims, arguing that their “claims are well-pleaded, supported by detailed factual allegations, and fully cognizable under governing law.”

July 7, 2025 – Ziff Davis and others filed amended complaint

Ziff Davis and another group of plaintiffs filed their first amended complaint against OpenAI, setting forth nine causes of action:&nbsp;

June 18, 2025 – Court denied Raw Story Media and AlterNet Media’s motion for reconsideration regarding order on motion to dismiss

The court denied Raw Story Media, Inc. and AlterNet Media, Inc.’s motion for reconsideration of the dismissal of their complaint without leave to amend. Plaintiffs argued that their complaint’s dismissal should be reconsidered because such dismissal was made by another court and is inconsistent with the S.D.N.Y court’s decision in New York Times v. Microsoft, but the court stated that their dismissal is a final order and plaintiffs failed to show the “extraordinary circumstances” required to warrant relief from such final order. The court admitted that the transfer of Raw Story Media and AlterNet Media’s case to the S.D.N.Y court and the court’s prevalence in like case create tension between the original dismissal and other holdings, but to “remedy that inconsistency,” plaintiffs should take an appeal from the original court’s determination to the U.S. Court of Appeals for the Second Circuit.&nbsp;

June 11-18, 2025 – Defendants filed answers to New York Times second amended complaint

Defendants deny every allegation of the second amended complaint. Microsoft asserted eighteen affirmative defenses, and OpenAI asserted thirty-one defenses.

May 28, 2025 – New York Times filed second amended complaint

New York Times filed a second amended complaint against Microsoft and OpenAI, alleging:

New York Times’s common law claim for unfair competition by misappropriation (Count VI) was dismissed pursuant to the Court’s April 4, 2025 Order.

May 22, 2025 – Court filed case management order, pursuant to case management conference

In the case management order, the court focused on (1) leadership counsel, (2) the consolidated class action complaint, (3) staying the Petryazhna Action (formerly Millette v. OpenAI), (4) additional deadlines, and (5) additional matters.

As for leadership counsel, the court appointed a leadership committee for the Newspaper plaintiffs. The court awaits decision from the Tremblay/Authors Guild plaintiffs to appoint their leadership committee.

As for the consolidated class action complaint, the court ordered the Tremblay/Authors Guild plaintiffs to file a single consolidated class action complaint by June 13, 2025. The court specified that the complaint is to be limited to only the same products and causes of action that have already been asserted in the pending putative class actions. As for Millete v. OpenAI, the parties are ordered to file a stipulation by May 23, 2025, to stay the Petryazhna matter pending a determination of class certification or summary judgment in the consolidated class action.

May 20, 2025 – OpenAI filed amended answers to complaints from Daily News Plaintiffs, New York Times, and CIR

As in the original answers [8-10], OpenAI’s amended answers denied that it had directly or secondarily infringed any publisher’s copyrights, violated the DMCA by intentionally removing CMI from any publisher’s works, or diluted any publisher’s trademark. OpenAI did, however, admit several factual allegations related to training datasets used to train its GPT-2 and GPT-3 models.&nbsp; OpenAI asserted 34 affirmative defenses against Daily News and New York Times and 29 against CIR.

May 18, 2025 – Microsoft filed joint pre-conference statement

Microsoft filed a joint initial case management conference statement in advance of the case management conference scheduled for May 22, 2025. The statement discussed the appointment of leadership counsel, as both plaintiff parties agree (and defendants do not dispute) that two leadership counsels are warranted—one for the Newspaper plaintiffs, and one for the Tremblay/Authors Guild plaintiffs. As for the structure of the litigation, the Tremblay/Authors Guild plaintiffs disagree with the Newspaper plaintiffs and the defendants as to how the complaints are to be consolidated; the Newspaper plaintiffs and the defendants argued that Tremblay/Authors Guild plaintiffs’ petition for consolidated pleadings is incomprehensible and unnecessary.

April 29, 2025 – Defendants answered complaints from Daily News Plaintiffs, New York Times, and CIR

OpenAI’s answers [8-10] denied that it had directly or secondarily infringed any publisher’s copyrights, violated the DMCA by intentionally removing CMI from any publisher’s works, or diluted any publisher’s trademark. OpenAI did, however, admit several factual allegations related to training datasets used to train its GPT-2 and GPT-3 models.&nbsp;

Microsoft’s answers [11-13] denied that it had directly or secondarily infringed any publisher’s copyrights, or that it had diluted any publisher’s trademarks. Microsoft admitted several factual allegations pertaining to its business relationship with OpenAI and that some of its products use OpenAI’s LLMs. However, Microsoft denied factual allegations that GPT LLMs “memorized” or encoded any copies or derivatives of the publishers’ works, and that the publishers had suffered any harm attributable to Microsoft’s or OpenAI’s conduct.&nbsp;

Each defendant also asserted numerous affirmative defenses, with common defenses including failure to state a claim, fair use, de minimis copying, invalid or lack of copyright ownership, and lack of provable injury.&nbsp;

April 11, 2025 – Transfer Order

The United States Judicial Panel on Multidistrict Litigation consolidated what were originally twelve different cases against OpenAI and Microsoft, finding that they involve common questions of fact “arising from allegations that OpenAI and Microsoft used copyrighted works, without consent or compensation, to train their” LLMs. These cases are:&nbsp;

Select Court Documents

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/1.pdf" target="_blank" rel="noreferrer noopener">April 3, 2025 - ECF 1 Transfer Order</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/8.pdf" target="_blank" rel="noreferrer noopener">April 29, 2025 - ECF 8 OpenAI's Answer to Daily News Plaintiffs' Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/9.pdf" target="_blank" rel="noreferrer noopener">April 29, 2025 - ECF 9 OpenAI's Answer to Plaintiff</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/10.pdf" target="_blank" rel="noreferrer noopener">April 29, 2025 - ECF 10 OpenAI's Answer to CFI Reporting, Inc.'s First Amended Complaint </a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/11.pdf" target="_blank" rel="noreferrer noopener">April 29, 2025 - ECF 11 Microsoft's Answer to the New York Times First Amended Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/12.pdf" target="_blank" rel="noreferrer noopener">April 29, 2025 - ECF 12 Microsoft's Answer to the Daily News LP et al.'s Complaint </a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/13.pdf">April 29, 2025 - ECF 13 Microsoft's Answer to CFI Reporting, Inc.'s First Amended Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/ECF-47-Joint-Initial-Case-Management-Conference-Statement.pdf" target="_blank" rel="noreferrer noopener">May 18, 2025 - ECF 47 – Joint Initial Case Management Statement</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/ECF-50-–-OpenAI-Amended-Answer-to-Daily-News.pdf" target="_blank" rel="noreferrer noopener">May 20, 2025 - ECF 50 – OpenAI Amended Answer to Daily News</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/ECF-51-–-OpenAI-Amended-Answer-to-CIR.pdf" target="_blank" rel="noreferrer noopener">May 20, 2025 - ECF 51 – OpenAI Amended Answer to CIR </a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/ECF-52-–-OpenAI-Amended-Answer-to-New-York-Times.pdf" target="_blank" rel="noreferrer noopener">May 20, 2025 - ECF 52 – OpenAI Amended Answer to New York Times</a>

May 22, 2025 - ECF 60 – Case Management Order

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/05/ECF-72-–-New-York-Times-Second-Amended-Complaint.pdf" target="_blank" rel="noreferrer noopener">May 28, 2025 - ECF 72 – New York Times Second Amended Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/09/ECF-160.pdf" target="_blank" rel="noreferrer noopener">June 11, 2025 – ECF 160 Microsoft Answer to NYT Amended Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/09/ECF-164.pdf" target="_blank" rel="noreferrer noopener">June 11, 2025 – ECF 164 OpenAI Answer to NYT Amended Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/09/ECF-216.pdf" target="_blank" rel="noreferrer noopener">June 18, 2025 – ECF 216 Motion for Reconsideration re: Order on Motion to Dismiss</a>&nbsp;

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/09/ECF-300.pdf" target="_blank" rel="noreferrer noopener">July 7, 2025 – ECF 300 Amended Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/09/ECF-405-and-407.pdf" target="_blank" rel="noreferrer noopener">July 30, 2025 – ECF 405 and 407 OpenAI Motion to Dismiss Ziff Davis Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/09/ECF-494.pdf" target="_blank" rel="noreferrer noopener">Aug. 27, 2025 – ECF 494 Opposition to Motion to Dismiss Ziff Davis Complaint</a>