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Case Tracker: Artificial Intelligence, Copyrights and Class Actions

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<div class="wp-block-button"><a class="wp-block-button__link wp-element-button" href="https://www.bakerlaw.com/services/artificial-intelligence-ai/case-tracker-artificial-intelligence-copyrights-and-class-actions/">Case Tracker: Artificial Intelligence, Copyrights and Class Actions</a></div>


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<div class="wp-block-buttons"><div class="wp-block-button"><a class="wp-block-button__link wp-element-button" href="https://www.bakerlaw.com/services/artificial-intelligence-ai/case-tracker-artificial-intelligence-copyrights-and-class-actions/">Case Tracker: Artificial Intelligence, Copyrights and Class Actions</a></div></div>

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<h2 class="wp-block-heading" id="h-summary"><strong>Summary</strong></h2>

In this consolidated action, plaintiffs allege direct infringement arising from the scraping and use of copyrighted works to train Google’s AI products (including Gemini). &nbsp;

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<p>In this consolidated action, plaintiffs allege direct infringement arising from the scraping and use of copyrighted works to train Google’s AI products (including Gemini). &nbsp;</p>

<h2 class="wp-block-heading" id="h-what-we-re-watching"><strong>What We’re Watching</strong></h2>

The court granted Google’s motion to dismiss in part without leave to amend. Plaintiffs’ second amended consolidated complaint, ordered to not add any new claims, is due September 25. Google is to file its answer by October 16.

<p>The court granted Google’s motion to dismiss in part without leave to amend. Plaintiffs’ second amended consolidated complaint, ordered to not add any new claims, is due September 25. Google is to file its answer by October 16.</p>

<strong>Case Background</strong>

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In a village of La Mancha, the name of which I have no desire to call to mind, there lived not long since one of those gentlemen that keep a lance in the lance-rack, an old buckler, a lean hack, and a greyhound for coursing.

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In re Google Generative AI Copyright Litigation Master File Case No. 5:23-cv-03440-EKL

<p>In re Google Generative AI Copyright Litigation Master File Case No. 5:23-cv-03440-EKL</p>

Formerly <em>Leovy v. Google</em> (5:23-cv-03440-EKL) and <em>Zhang v. Google</em> (5:24-cv-02531-EKL).

<p>Formerly <em>Leovy v. Google</em> (5:23-cv-03440-EKL) and <em>Zhang v. Google</em> (5:24-cv-02531-EKL).</p>

<strong>Court: </strong>Northern District of California

<p><strong>Court: </strong>Northern District of California</p>

<strong>Judge: </strong>Judge Eumi K Lee and Magistrate Judge Susan van Keulen

<p><strong>Judge: </strong>Judge Eumi K Lee and Magistrate Judge Susan van Keulen</p>

Plaintiffs –&nbsp; Steve Almond, Sarah Andersen, Burl Barer, Jessica Fink, Kirsten Hubbard, Mike Lemos, Jill Leovy, Connie McLennan, Jingna Zhang, variously represented by Bleichmar Fonti &amp;Auld LLP,&nbsp; Clarkson Law Firm P.C. Joseph Saveri Law Firm, Matthew Butterick, Lockridge Grindal Nauen

<p>Plaintiffs –&nbsp; Steve Almond, Sarah Andersen, Burl Barer, Jessica Fink, Kirsten Hubbard, Mike Lemos, Jill Leovy, Connie McLennan, Jingna Zhang, variously represented by Bleichmar Fonti &amp;Auld LLP,&nbsp; Clarkson Law Firm P.C. Joseph Saveri Law Firm, Matthew Butterick, Lockridge Grindal Nauen </p>

Google – Alphabet Inc. and Google LLC, represented by Wilson Sonsini Goodrich &amp; Rosati

<p>Google – Alphabet Inc. and Google LLC, represented by Wilson Sonsini Goodrich &amp; Rosati</p>

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<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Case Background</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p><strong>Caption: </strong></p><p>In re Google Generative AI Copyright Litigation Master File Case No. 5:23-cv-03440-EKL</p><p>Formerly <em>Leovy v. Google</em> (5:23-cv-03440-EKL) and <em>Zhang v. Google</em> (5:24-cv-02531-EKL).</p><p><strong>Court: </strong>Northern District of California</p><p><strong>Judge: </strong>Judge Eumi K Lee and Magistrate Judge Susan van Keulen</p><p><strong>Parties:</strong></p><p>Plaintiffs –&nbsp; Steve Almond, Sarah Andersen, Burl Barer, Jessica Fink, Kirsten Hubbard, Mike Lemos, Jill Leovy, Connie McLennan, Jingna Zhang, variously represented by Bleichmar Fonti &amp;Auld LLP,&nbsp; Clarkson Law Firm P.C. Joseph Saveri Law Firm, Matthew Butterick, Lockridge Grindal Nauen </p><p>Google – Alphabet Inc. and Google LLC, represented by Wilson Sonsini Goodrich &amp; Rosati</p></div></details>

<strong>Status Updates</strong>

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<strong>Sept. 25, 2025 – Plaintiffs filed second amended consolidated complaint</strong>

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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title"><strong>Sept. 25, 2025 – Plaintiffs filed second amended consolidated complaint</strong></h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title"><strong>Sept. 25, 2025 – Plaintiffs filed second amended consolidated complaint</strong></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Plaintiffs filed their second amended consolidated complaint against Google (removing Alphabet as a defendant). Accordingly with the court’s order [ECF 216], plaintiffs updated the scope of the definition of “Generative AI Models” and the class definition. Plaintiffs asserted the following causes of action: Direct Copyright Infringement against Google (Count I).</p></div></details>

<strong>Sept. 11, 2025 – Court granted motion to dismiss in part without leave to amend</strong>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title"><strong>Sept. 11, 2025 – Court granted motion to dismiss in part without leave to amend</strong></h3></summary><div class="wp-block-contentpilot-accordion__content">

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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title"><strong>Sept. 11, 2025 – Court granted motion to dismiss in part without leave to amend</strong></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Google’s motion to dismiss concerned plaintiffs’ direct infringement claims, arguing that plaintiffs failed to plausibly allege valid copyright registration over each of Andersen’s works and infringement as to certain generative AI models and products. Google also moved to dismiss plaintiffs’ claims for injunctive relief and vicarious copyright infringement claims. The court granted dismissal of:</p><ul class="wp-block-list"><li>The direct infringement claims targeted against the following AI models: Codey, Chirp, Veo, MedLM, LearnLM, SecLM, Gemma, CodeGemma, RecurrentGemma, and PaliGemma. Google argued that “[p]laintiffs’ allegations ‘that a particular training dataset contains Plaintiffs’ works cannot open the door to discovery into any and all of Google’s generative AI models or products, where Plaintiffs have failed to make any allegations connecting those models or products to Plaintiffs’ works.’” The court limited the scope of plaintiffs’ definition of “Generative AI Models” to PaLM, GLaM, LaMDA, Bard, Gemini, and Imagen.</li><li>The vicarious infringement claim against Alphabet. The court held that plaintiffs failed to plausibly allege that Alphabet had the practical ability to stop or limit Google’s alleged direct infringement, as the Court cannot be held vicariously liable based on the ordinary control that a parent company exercises over its subsidiary.</li></ul></div></details>

<strong>Apr. 21, 2025 – The court struck class allegations.</strong> 

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title"><strong>Apr. 21, 2025 – The court struck class allegations.</strong> </h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title"><strong>Apr. 21, 2025 – The court struck class allegations.</strong> </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>The court granted defendants' motion to strike class allegations from the consolidated amended complaint with leave to amend. Plaintiffs proposed a stipulation under which plaintiffs would amend the class definition to capture the proposed definitions in the <em>Leovy</em> and <em>Zhang</em> complaints, and defendants rejected such stipulation. The court agreed with Google’s argument that plaintiffs proposed an improper fail-safe class definition because the court cannot determine who is a member of the class without deciding the merits of each potential class member’s claim. The court gave plaintiffs leave to amend to redefine the class to resolve the fail-safe issue.</p></div></details>

Feb. 21, 2025 – Defendants filed reply in support of motion to strike class allegations  

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Feb. 21, 2025 – Defendants filed reply in support of motion to strike class allegations  </h3></summary><div class="wp-block-contentpilot-accordion__content">



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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Feb. 21, 2025 – Defendants filed reply in support of motion to strike class allegations  </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Defendants filed a reply in support of their motion to strike class allegations [98] in plaintiffs’ consolidated class action complaint [91]. By proposing a “new, alternative” proposed class definition in their opposition [105], defendants argued that plaintiffs had effectively conceded that the proposed class in their complaint [91] was an improper “fail-safe” class definition that cannot be certified under Rule 23.&nbsp;</p><p>Defendants also reiterated that plaintiffs should not be granted leave to amend. According to defendants, plaintiffs had yet to show how <em>any</em> class could ultimately be certified under Rule 23 in light of the individualized issues (e.g., ownership, registration, validity, and license) pointed out by Defendants in their motion to strike [98].&nbsp;&nbsp;</p><p>Alternatively, assuming plaintiffs were granted leave to amend, defendants reiterated that merits-related discovery unnecessary for class certification should be stayed. Defendants emphasized the “massive discovery burdens” plaintiffs sought to impose by demanding “[i]ndiscriminate discovery into every aspect of Google’s AI work that is not at all connected to a class certification theory,” including all training data used by Google to train any of its generative AI models.&nbsp;</p></div></details>

Feb. 7, 2025 – Plaintiffs filed opposition to defendants’ motion to strike class allegations 

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Feb. 7, 2025 – Plaintiffs filed opposition to defendants’ motion to strike class allegations </h3></summary><div class="wp-block-contentpilot-accordion__content">



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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Feb. 7, 2025 – Plaintiffs filed opposition to defendants’ motion to strike class allegations </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Plaintiffs opposed defendants’ motion to strike class allegations [98] in plaintiffs’ consolidated class action complaint [91]. Plaintiffs contended that striking class allegations at the pleading stage is rare and would be premature in this case, as their complaint “sufficiently alleged plausible class allegations” and they did not have a chance to develop the factual record through discovery. For these reasons, plaintiffs explained that a motion to strike under Rule 12(f) was an improper vehicle to challenge their class allegations.</p><p>Moreover, plaintiffs argued that defendants should prevail on their motion to strike only if defendants’ arguments precluded certification of any class, and that defendants’ arguments had failed to do so. Plaintiffs emphasized that their class allegations were sufficient for pleading purposes, as they had alleged each element of Rule 23(a) as well as predominating common questions under Rule 23(b)(3). And even if their proposed class definition constituted an improper “fail-safe” class, plaintiffs argued that such issues could be addressed on amendment and offered an alternative proposed class definition closely resembling the earlier proposed class definitions in <em>Leovy</em> and <em>Zhang </em>(which defendants had not challenged).&nbsp;</p><p>Regarding defendants’ request to stay discovery related to the merits, plaintiffs explained that information on defendants’ licensing agreements, training data, and AI systems and products were “central to class certification while also overlapping with merits discovery.” Thus, plaintiffs urged the court to deny defendants’ request to bifurcate discovery related to the merits from discovery related to class certification.&nbsp;</p></div></details>

Jan. 17, 2025 – Defendants move to strike plaintiffs’ class allegations 

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Jan. 17, 2025 – Defendants move to strike plaintiffs’ class allegations </h3></summary><div class="wp-block-contentpilot-accordion__content">





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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Jan. 17, 2025 – Defendants move to strike plaintiffs’ class allegations </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Defendants moved to strike the putative class definition included in plaintiffs’ consolidated class action complaint [91]. Defendants explained that, in light of the individualized issues (e.g., ownership, registration, validity, license, and damages) they identified at the initial case management conference, plaintiffs chose to define their putative class to include only those individuals who owned a <em>valid</em> copyright registration that was <em>infringed</em> by Google through use without any <em>license or</em> <em>authorization</em>.&nbsp;&nbsp;</p><p>Defendants argued that such “fail-safe” class definitions are facially improper and routinely struck by courts because “membership can only be determined after each individual’s claim is resolved on the merits,” thereby allowing class members with unsuccessful claims to avoid a final judgment. In addition, </p><p>defendants pointed out that plaintiffs failed to disclose this significant amendment to their class definition during the parties meet-and-confer, as ordered by the court.&nbsp;</p><p>Defendants also argued that plaintiffs should be denied leave to amend their complaint to include a permissible class definition. Alternatively, if the court were to grant leave to amend, defendants argued that the court should limit discovery to issues related to class certification (absent a showing of good cause for additional discovery) to avoid unnecessary and abusive discovery without the prospect of a viable class.&nbsp;</p></div></details>

Dec. 20, 2024 – Plaintiffs file consolidated class action complaint

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Dec. 20, 2024 – Plaintiffs file consolidated class action complaint</h3></summary><div class="wp-block-contentpilot-accordion__content">



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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Dec. 20, 2024 – Plaintiffs file consolidated class action complaint</h3></summary><div class="wp-block-contentpilot-accordion__content"><p>In the now-consolidated <em>In re Google Generative AI Copyright Litigation</em>,plaintiffs filed a consolidated class action complaint and demand for jury trial. Plaintiffs asserted a single claim for direct copyright infringement, outlining Google’s use of Google’s Infiniset Dataset, C4 dataset (which is based on Common Crawl), LAION-400M, and LAION-5B to train Google AI tools including Gemini (and its predecessor Bard) and Imagen 3 (and its predecessors Imagen and Imagen 2).</p><p>Plaintiffs assert two causes of action:</p><ol class="wp-block-list"><li>Direct copyright infringement by Google LLC through “multiple distinct acts of unauthorized reproduction and use”</li><li>Vicarious copyright infringement by Alphabet based on the actions of Google LLC, which plaintiffs allege is legally and practically supervised by Alphabet</li></ol></div></details>

Dec. 20, 2024 – Case referred to private ADR

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Dec. 20, 2024 – Case referred to private ADR</h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Dec. 20, 2024 – Case referred to private ADR</h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Following a December 18 case management conference, the Court referred the case to private alternative dispute resolution.</p></div></details>

Oct. 28, 2024 – Court order granting joint stipulation to consolidate

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Oct. 28, 2024 – Court order granting joint stipulation to consolidate</h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Oct. 28, 2024 – Court order granting joint stipulation to consolidate</h3></summary><div class="wp-block-contentpilot-accordion__content"><p>The court issued an order granting the joint stipulation to consolidate Leovy and Zhang [72] and denying as moot Google’s motion to consolidate the cases [70].</p></div></details>

Oct. 25, 2024 – Parties filed joint stipulation to consolidate <em>Leovy</em> and <em>Zhang</em>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Oct. 25, 2024 – Parties filed joint stipulation to consolidate <em>Leovy</em> and <em>Zhang</em></h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Oct. 25, 2024 – Parties filed joint stipulation to consolidate <em>Leovy</em> and <em>Zhang</em></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>All parties in <em>Leovy v. Google</em> and <em>Zhang v. Google</em> filed a joint stipulation requesting that the court consolidate the cases for all pretrial and trial proceedings.</p></div></details>

Oct. 9, 2024 – Google moved to consolidate <em>Leovy</em> and <em>Zhang</em>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Oct. 9, 2024 – Google moved to consolidate <em>Leovy</em> and <em>Zhang</em></h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Oct. 9, 2024 – Google moved to consolidate <em>Leovy</em> and <em>Zhang</em></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Google filed a motion to consolidate <em>Leovy v. Google</em> and <em>Zhang v. Google</em>, No. 5:24-cv-02531-EKL, arguing that the allegations and putative class in <em>Leovy</em> “entirely subsume” those in <em>Zhang</em>. Google explained that the cases involved a common question of law or fact because each lawsuit alleged that Google’s use of copyrighted works to train its generative AI models is copyright infringement, and Google defended against each lawsuit by arguing that such use is protected by the fair use doctrine. Google also noted an overlap in the generative AI products at issue, including Gemini.</p></div></details>

Sept. 12, 2024 – Google filed reply ISO motion to dismiss 

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Sept. 12, 2024 – Google filed reply ISO motion to dismiss </h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Sept. 12, 2024 – Google filed reply ISO motion to dismiss </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Google filed a reply in support of its motion to dismiss, stating that plaintiffs’ second amended complaint “remains highly unclear about which of her allegations properly remain part of the case.” Google argued that (1) plaintiffs fail to allege a basis for recovering punitive damages, treble damages, nominal damages, or disgorgement; and (2) plaintiffs violate Rule 8’s plain statement requirement.&nbsp;</p></div></details>

Aug. 22, 2024 – Plaintiffs’ opposed Google’s motion to dismiss  

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Aug. 22, 2024 – Plaintiffs’ opposed Google’s motion to dismiss  </h3></summary><div class="wp-block-contentpilot-accordion__content">









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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Aug. 22, 2024 – Plaintiffs’ opposed Google’s motion to dismiss  </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Plaintiffs filed an opposition to Google’s motion to dismiss [55] the second amended complaint [47], arguing the complaint satisfied Rules 8 and 12(b)(6). Plaintiffs argued that the complaint complied with Rule 8 by “precisely” alleging Google’s act of infringement – copying and embedding of plaintiffs’ copyrighted works into the LLM that drives its Gemini and possibly other AI products. Plaintiffs also challenged Google’s argument that the complaint failed to identify all AI products that Google may have built using their copyrighted works, explaining that “Rule 8 does not require pleading ‘all’ potentially relevant facts much less those within a defendant’s exclusive control.”&nbsp;</p><p>As for Google’s argument that allegations “devoted to the public outrage of Google’s infringement” obfuscated their direct infringement claim, plaintiffs argued these allegations were “directly relevant” to their request for equitable relief.&nbsp;</p><p>Plaintiffs also disputed Google’s assertion that their requests for an injunction and disgorgement of profits attributable to Google’s infringement were inappropriate, explaining that these remedies were expressly authorized by the Copyright Act and often sought by plaintiffs in copyright infringement cases. Plaintiffs emphasized that they were permitted to plead all available remedies at this stage and could elect between alternative remedies at any time before judgment is rendered.&nbsp;</p><p>As for injunctive relief, plaintiffs argued that they were not required to satisfy the 4-part test for injunctive relief at the pleading stage but had alleged sufficient facts to demonstrate their ability to do so on a full evidentiary record. Plaintiffs emphasized that Google’s infringement was ongoing and there was a threat of future infringement that monetary damages would not prevent. Further, plaintiffs argued that preemptive dismissals of injunctive relief are disfavored in the copyright context, as they “would eviscerate [a] plaintiff’s ability to prevent future infringement.”&nbsp;</p><p>Plaintiffs also challenged Google’s argument that their requested injunction was overbroad, arguing that injunctions designed to bar use contingent on compensation and/or to prevent infringement of yet-unregistered works were accepted equitable remedies. &nbsp;</p><p>Finally, plaintiffs clarified that they were not seeking punitive, treble, and nominal damages in light of Google’s argument that such damages were unavailable for a copyright infringement claim.</p></div></details>

Aug. 5, 2024 – Court order relating <em>Zhang</em> and <em>Leovy</em>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Aug. 5, 2024 – Court order relating <em>Zhang</em> and <em>Leovy</em></h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Aug. 5, 2024 – Court order relating <em>Zhang</em> and <em>Leovy</em></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>After reviewing the <em>Zhang</em> plaintiffs’ opposition [56] to Google’s renewed motion to relate <em>Zhang</em> and <em>Leovy</em> [49], the court ordered that the two cases are nonetheless related.</p></div></details>

Aug. 1, 2024 – Joint stipulation modifying briefing schedule for Google’s motion to dismiss

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Aug. 1, 2024 – Joint stipulation modifying briefing schedule for Google’s motion to dismiss</h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Aug. 1, 2024 – Joint stipulation modifying briefing schedule for Google’s motion to dismiss</h3></summary><div class="wp-block-contentpilot-accordion__content"><p>The parties stipulated to modify the court’s briefing schedule for Google’s motion to dismiss [55] the second amended complaint [47]. Plaintiffs’ opposition is due August 22, 2024, and Google’s reply is due September 12, 2024.</p></div></details>

July 30, 2024 – <em>Zhang</em> plaintiffs opposed Google’s renewed motion to relate <em>Zhang</em> and <em>Leovy</em>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 30, 2024 – <em>Zhang</em> plaintiffs opposed Google’s renewed motion to relate <em>Zhang</em> and <em>Leovy</em></h3></summary><div class="wp-block-contentpilot-accordion__content">



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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 30, 2024 – <em>Zhang</em> plaintiffs opposed Google’s renewed motion to relate <em>Zhang</em> and <em>Leovy</em></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>The <em>Zhang</em> plaintiffs opposed Google’s renewed motion to relate <em>Zhang</em> and <em>Leovy</em> [49], arguing that the cases were “plainly not related.” They explained that “[a]lthough <em>Leovy</em> and <em>Zhang</em> both concern generative AI models created and sold by Google,” the cases involved “different parties, different classes of individuals (writers versus visual artists), different property (language models versus image models), and different transactions and events (the scraping of different and disparate datasets).” In contrast to plaintiff <em>Leovy</em>, a book author “challenging Google’s use of text” from the C4 dataset and other sources for Google’s LLMs, the <em>Zhang</em> plaintiffs “are cartoonists, illustrators, and photographers challenging Google’s use of visual images” from the LAION-400M dataset for Google’s image generation models.</p><p>Moreover, the <em>Zhang</em> plaintiffs asserted that, in light of these differences, having the cases proceed together would increase the burden of litigation, waste time, delay resolution, and muddy the issues for the court. They contended that there will be little overlap in substantive issues, discovery, or motion practice. </p><p>Finally, the <em>Zhang</em> plaintiffs argued that the Ninth Circuit’s “first-filed” rule did not apply because that rule is generally applied where two identical cases, with the same parties and underlying claims, are proceeding in different courts.</p></div></details>

July 29, 2024 – Google moved to dismiss plaintiffs’ second amended complaint

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 29, 2024 – Google moved to dismiss plaintiffs’ second amended complaint</h3></summary><div class="wp-block-contentpilot-accordion__content">



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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 29, 2024 – Google moved to dismiss plaintiffs’ second amended complaint</h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Google filed a motion to dismiss plaintiffs’ second amended complaint [47] under Rules 8 and 12(b)(6). Google argued that plaintiffs violated Rule 8 by failing to provide a short and plain statement of plaintiffs’ claim for relief, and instead “obfuscated” the remaining claim for copyright infringement by retaining irrelevant factual allegations relating to plaintiffs’ state law claims from previous complaints. Further, Google argued that the second amended complaint [47] “vaguely asserts that Google infringed by copying [plaintiff] Leovy’s work to train Google’s Gemini service … and other unspecified ‘Products,’” which “leave[s] the scope of the claim (and the bounds of discovery) unclear.”</p><p>Moreover, Google argued that the second amended complaint [47] failed to allege a basis for recovery of punitive, treble, or nominal damages, as well as non-restitutionary disgorgement of profits. Google explained that each of these demands for recovery are unavailable as a matter of law for plaintiffs’ copyright infringement claim, for which monetary damages are limited to actual damages (which may include the infringer’s profits) or statutory damages. When plaintiffs have failed to make showings required for actual or statutory damages, Google explained that courts have awarded no damages. And regarding disgorgement of profits, Google asserted that “there is no free-standing entitlement to non-restitutionary disgorgement of all profits, but only a right to actual damages, including the specified non-duplicative profits of the alleged infringer.” </p><p>Finally, Google argued that plaintiffs’ demands for “unusual and sweeping” injunctive relief, “including that this Court sit as AI overseer for [plaintiffs’] so-called ‘Accountability Protocols,’” were only supported by conclusory allegations. Google explained that the second amended complaint [47] “includes no factual allegations explaining how [plaintiffs] will supposedly suffer irreparable injury absent an injunction, or why monetary relief is an inadequate remedy.” Further, Google contended that such “Accountability Protocols,” which would “bar[ ] any use of the protected materials until Plaintiff and Class Members are fairly compensated for the stolen and copied protected materials, and are compensated for the ongoing use of their intellectual property,” would be “impermissibly broad in enjoining conduct that is not infringement.”</p></div></details>

July 26, 2024 – Order permitting <em>Zhang </em>plaintiffs to respond to Google’s renewed motion to relate <em>Zhang </em>and <em>Leovy</em>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 26, 2024 – Order permitting <em>Zhang </em>plaintiffs to respond to Google’s renewed motion to relate <em>Zhang </em>and <em>Leovy</em></h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 26, 2024 – Order permitting <em>Zhang </em>plaintiffs to respond to Google’s renewed motion to relate <em>Zhang </em>and <em>Leovy</em></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>In response to <em>Zhang </em>plaintiffs’ motion for leave to file a motion for reconsideration [53] regarding the court’s order relating <em>Zhang </em>and <em>Leovy </em>[51], the court permitted <em>Zhang </em>plaintiffs to respond to Google’s renewed motion to relate [49] the two cases by no later than July 30, 2024.</p></div></details>

July 24, 2024 – <em>Zhang</em> plaintiffs moved for leave to file motion for reconsideration on whether to relate <em>Zhang</em> with <em>Leovy</em>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 24, 2024 – <em>Zhang</em> plaintiffs moved for leave to file motion for reconsideration on whether to relate <em>Zhang</em> with <em>Leovy</em></h3></summary><div class="wp-block-contentpilot-accordion__content">

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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 24, 2024 – <em>Zhang</em> plaintiffs moved for leave to file motion for reconsideration on whether to relate <em>Zhang</em> with <em>Leovy</em></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>The plaintiffs in <em>Zhang v. Google LLC</em> filed a motion for leave to file a motion for reconsideration regarding the court’s order relating <em>Zhang</em> with <em>Leovy v. Google </em>[51]. </p><p>The <em>Zhang</em> plaintiffs argued that they had been disadvantaged by the method Google used to serve them with its renewed motion to relate [49] the two cases. They explained that, unlike its first motion, Google only filed its renewed motion to relate via ECF without an additional notice directed to counsel for the <em>Zhang</em> plaintiffs via email. Further, “[t]he ECF Notice, filed in the <em>Leovy</em> Action, makes no reference to the <em>Zhang</em> Action,” and thus counsel for the <em>Zhang</em> plaintiffs did not receive such notice. And as a result, “Google’s motion was adjudicated in the absence of opposition,” thereby prejudicing the <em>Zhang</em> plaintiffs in light of Google’s knowledge that the <em>Zhang</em> plaintiffs intended to oppose the motion.</p></div></details>

July 23, 2024 – Order relating <em>Zhang v. Google</em> with <em>Leovy v. Google</em> 

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 23, 2024 – Order relating <em>Zhang v. Google</em> with <em>Leovy v. Google</em> </h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 23, 2024 – Order relating <em>Zhang v. Google</em> with <em>Leovy v. Google</em> </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>The court issued an order relating <em>Zhang v. Google, LLC</em>, No. 5:24-cv-02531-EJD, with <em>Leovy v. Google</em>.&nbsp;</p></div></details>

July 11, 2024 – Google renewed motion to relate with <em>Zhang v. Google</em> 

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 11, 2024 – Google renewed motion to relate with <em>Zhang v. Google</em> </h3></summary><div class="wp-block-contentpilot-accordion__content">

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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 11, 2024 – Google renewed motion to relate with <em>Zhang v. Google</em> </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Google renewed its earlier motion [42] to consider whether <em>Zhang v. Google, LLC</em>, No. 5:24-cv-02531-EJD, should be related to this case. Google argued that “the two putative class actions are now both squarely focused on claims of copyright infringement against Google for training its AI models,” including Gemini and Imagen, and that Google’s anticipated defenses are the same in both cases. Google also explained that the privacy and other state-law claims asserted by plaintiffs in their previous complaints had now been dropped, which both <em>Leovy</em> [45] and <em>Zhang</em> [44] plaintiffs had emphasized in their earlier oppositions. Further, it noted that counsel for the <em>Leovy</em> plaintiffs “agree[d] that the overlap in claims and defenses justifies relating the cases.”</p><p>Google also argued that the proposed class definition in this case “entirely encompasses the proposed class definition in <em>Zhang,</em>” and that there will be overlap in discovery, class certification, and dispositive motion practice.&nbsp;</p></div></details>

July 3, 2024 – The parties stipulated to extend the time for Google to respond to plaintiffs’ second amended complaint. 

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 3, 2024 – The parties stipulated to extend the time for Google to respond to plaintiffs’ second amended complaint. </h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">July 3, 2024 – The parties stipulated to extend the time for Google to respond to plaintiffs’ second amended complaint. </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>The parties stipulated that Google would have until July 29, 2024 to respond to plaintiffs’ second amended complaint [47].&nbsp;</p></div></details>

June 27, 2024 – Plaintiffs filed second amended class action complaint 

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">June 27, 2024 – Plaintiffs filed second amended class action complaint </h3></summary><div class="wp-block-contentpilot-accordion__content">





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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">June 27, 2024 – Plaintiffs filed second amended class action complaint </h3></summary><div class="wp-block-contentpilot-accordion__content"><p>In response to the court’s order [46] granting Google’s motion to dismiss [33] plaintiffs’ first amended complaint [28] and granting plaintiffs leave to amend, plaintiffs filed a second amended complaint. Plaintiffs asserted a single claim for direct copyright infringement, omitting the various privacy and other state-law claims included in plaintiffs’ first amended complaint.&nbsp;&nbsp;</p><p>Plaintiffs alleged that Google’s unauthorized “copying, storing, processing, and reproducing of the entirety of” their copyrighted works to train Gemini and its8 other AI products willfully infringed on their exclusive rights in those works. And during the fine-tuning process, they alleged that “Google continues to train/re-train its AI models to better mimic the works, content, expressive style, protected designs, and other important parts of authors’ works.” Further, plaintiffs argued that Google’s “wholesale collection and use of copyrighted material, with no option for copyright owners to opt out, far exceeds any reasonable interpretation of ‘fair use.’”&nbsp;</p><p>To allege that Google used their copyrighted works to train Gemini and its other AI products, plaintiffs relied heavily on research finding that LaMDA, the LLM that Gemini was initially built upon, was trained on the C4 dataset. They alleged the C4 dataset “is rife with copyrighted and protected works,” including works scraped from scribd.com, where “[w]ord for word excerpts” of plaintiff Leovy’s copyrighted book appeared. They also noted that the dataset Google used to train Gemini also contained data from notorious pirate sites such as b-ok.org (or Z Library), where a pirated version of plaintiff Leovy’s book had been published in its entirety.&nbsp;&nbsp;</p><p>Plaintiffs also alleged that “Google quietly amended its privacy policy” in July 2023 “to openly assert that it ‘collects’ publicly available information from the web to train its AI Products, including ‘Gemini’ and ‘Cloud AI.’” However, they noted Google had been engaging in “this theft on a massive scale in secret for years” and argued this amendment “reflected [Google’s] intent to continue exploiting for commercial gain copyrighted works that are ‘publicly available online,’" which supported its request for injunctive relief.</p></div></details>

June 6, 2024 – Court granted motion to dismiss with leave to amend and denied motion to relate

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">June 6, 2024 – Court granted motion to dismiss with leave to amend and denied motion to relate</h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">June 6, 2024 – Court granted motion to dismiss with leave to amend and denied motion to relate</h3></summary><div class="wp-block-contentpilot-accordion__content"><p>The court granted Google’s motion to dismiss [33] plaintiffs’ amended complaint [28] with leave to amend in light of Judge Chhabria’s order dismissing the complaint in <em>Cousart v. OpenAI LP</em> under Rule 8 and set a July 9, 2024 deadline for the second amended complaint. In light of the forthcoming second amended complaint, the court denied Google’s motion to relate [42] the case with <em>Zhang v. Google</em>.</p></div></details>

June 4, 2024 – <em>Zhang </em>and <em>Leovy </em>plaintiffs filed separate oppositions to Google’s motion to relate

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">June 4, 2024 – <em>Zhang </em>and <em>Leovy </em>plaintiffs filed separate oppositions to Google’s motion to relate</h3></summary><div class="wp-block-contentpilot-accordion__content">

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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">June 4, 2024 – <em>Zhang </em>and <em>Leovy </em>plaintiffs filed separate oppositions to Google’s motion to relate</h3></summary><div class="wp-block-contentpilot-accordion__content"><p><em>Zhang</em> <em>Plaintiffs’ Opposition</em>. The plaintiffs in <em>Zhang v. Google </em>opposed Google’s motion to relate [42] the two cases. They argued that the <em>Leovy</em> plaintiffs’ complaint differed by including various state law claims and allegations that Google trained AI models other than Imagen and Gemini (e.g., Bard) on copyrighted works other than visual art (e.g., text, audio recordings, and video). They also explained that there is no overlap between the named plaintiffs in either action and characterized the possibility that the class definition in <em>Leovy </em>might encompass the class definition in <em>Zhang </em>as “a premature and irrelevant consideration.”</p><p><em>Leovy Plaintiffs’ Opposition</em>. The <em>Leovy </em>plaintiffs filed a separate opposition, making similar arguments that significant differences in the parties, claims, AI models, and types of copyrighted works at issue in each case weighed against having the two cases proceed together.</p></div></details>

May 31, 2024 – Google filed motion to relate with <em>Zhang v. Google</em>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">May 31, 2024 – Google filed motion to relate with <em>Zhang v. Google</em></h3></summary><div class="wp-block-contentpilot-accordion__content">

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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">May 31, 2024 – Google filed motion to relate with <em>Zhang v. Google</em></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Google filed an administrative motion to consider whether <em>Zhang v. Google LLC</em>, No. 5:24-cv-02531-EJD, should be related to this case. Google argued that “both cases are putative class actions for copyright infringement arising from Google’s generative AI technology,” explaining that allegations in both cases concern Google’s use of copyrighted works in the LAION-400M dataset to train its AI models, including Imagen and Gemini. Further, Google explained that its anticipated defenses in each case, including fair use, would “significantly overlap” between the two cases. In addition, Google argued that the proposed class definition in this case “wholly encompasses” the proposed class definition in <em>Zhang v. Google</em>.</p><p>In light of these similarities, Google contended that having the cases proceed separately “would result in unduly burdensome duplication of effort” in discovery, class certification, and dispositive motion practice.</p></div></details>

May 28, 2024 – Google filed statement of recent decision in <em>Cousart v. OpenAI LP</em>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">May 28, 2024 – Google filed statement of recent decision in <em>Cousart v. OpenAI LP</em></h3></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">May 28, 2024 – Google filed statement of recent decision in <em>Cousart v. OpenAI LP</em></h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Google submitted a statement of recent decision in <em>Cousart v. OpenAI LP</em>, No. 3:23-cv-04557-VC (N.D. Cal. May 23, 2024), where Judge Chhabria granted the <em>Cousart </em>defendants’ motion to dismiss the complaint in its entirety for failure to comply with Rule 8—echoing an argument that Google advanced in its own motion to dismiss [33]. Judge Chhabria found the <em>Cousart </em>plaintiffs’ complaint was “not only excessive in length, but also contain[ed] swaths of unnecessary and distracting allegations making it nearly impossible to determine the adequacy of plaintiffs’ legal claims.” As a result, Google asserted this decision was relevant to its pending motion to dismiss [33].</p></div></details>

Apr. 5, 2024 – Google filed reply in support of its motion to dismiss

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Apr. 5, 2024 – Google filed reply in support of its motion to dismiss</h3></summary><div class="wp-block-contentpilot-accordion__content">

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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Apr. 5, 2024 – Google filed reply in support of its motion to dismiss</h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Google filed a reply in support of its motion to dismiss [33] plaintiffs’ first amended complaint [28], arguing the complaint failed to satisfy Fed. R. Civ. P. 8 by “express[ing] itself in sweeping generalities and leav[ing] it to the reader to try to piece together the factual basis for each asserted count.” Google insisted that the complaint failed to identify what specific personal information was at issue and how plaintiffs were harmed by Google’s alleged misuse of their personal information for each cause of action.</p><p>Google maintained that plaintiffs failed to state a plausible claim for each cause of action. To the extent that plaintiffs’ direct copyright infringement claim (Count 12) was based on a theory that every output of Bard was an infringing derivative work of each copyrighted work it was trained upon, Google argued that the court had already rejected this theory, citing <a href="https://www.bakerlaw.com/kadrey-v-meta/" target="_blank" rel="noreferrer noopener"><em>Kadrey v. Meta</em></a> and <a href="https://www.bakerlaw.com/openai-chatgpt-litigation/" target="_blank" rel="noreferrer noopener"><em>Tremblay v. OpenAI</em></a>. Google emphasized that plaintiffs had not sufficiently alleged that “any particular output is substantially similar” to protected expression in plaintiff Leovy’s copyrighted book.</p></div></details>

Mar. 15, 2024 - Plaintiffs filed opposition to Google’s motion to dismiss

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Mar. 15, 2024 - Plaintiffs filed opposition to Google’s motion to dismiss</h3></summary><div class="wp-block-contentpilot-accordion__content">













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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Mar. 15, 2024 - Plaintiffs filed opposition to Google’s motion to dismiss</h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Plaintiffs opposed Google’s motion to dismiss [30] the first amended complaint [28], arguing the complaint satisfied Fed. R. Civ. P. 8 because it gave Google fair notice of its potential liability by clearly delineating the legal claims and alleging facts to support those claims. Plaintiffs maintained their complaint also satisfied Fed. R. Civ. P. 12(b)(6). For their direct infringement claim (Count 12), plaintiffs argued that Bard’s outputs were “necessarily derivative of” plaintiffs’ copyrighted works because Google had copied and used the entirety of their works to train Bard. Plaintiffs explained that embedding copies of their works in Bard constituted unlawful misappropriation by enabling Bard to generate outputs based on their works.</p><p>Regarding their unfair competition claim (Count 1), plaintiffs argued they had stated a claim under both the unlawful prong and unfairness prong of this cause of action. Specifically, plaintiffs alleged Google violated the unlawful prong by scraping their personal data in violation of the CCPA, COPPA, and several other laws. Plaintiffs alleged Google violated the unfairness prong by scraping their personal data without consent or payment, which “harm[ed] law-abiding competitors, who seek consent or pay for AI training data.”&nbsp;</p><p>Plaintiffs argued their negligence claim (Count 2) was not barred by the economic loss doctrine and they had sufficiently alleged that Google owed them a duty of care to protect their sensitive personal data, which Google breached by failing to include adequate privacy and safety features in its AI products.</p><p>As for their CDAFA claim (Count 3), plaintiffs argued they had sufficiently alleged that Google improperly took their data without permission by using automated bots to crawl and scrape their data from websites and then storing and indexing that data. Plaintiffs further argued that Google’s misuse of this scraped data to develop and train their AI products were “separate and independent violations of the CDAFA.”</p><p>Plaintiffs argued their privacy claims (Counts 4-5) should not be dismissed because they had a reasonable expectation of privacy in the “sensitive” personal data they posted online and that Google’s unauthorized use of such data without adequate safeguards was “highly offensive.” In response to Google’s argument that the websites it scraped were “publicly available,” plaintiffs pointed to their belief that these websites would only share their personal data with “specific audiences for specific purposes.”</p><p>Plaintiffs argued they had adequately pled claims for larceny, conversion, and trespass to chattels (Counts 6-8) because they have property rights in their personal data and Google’s scraping of such data, without consent and for its own monetary gain, was an actionable taking that interfered with their rights. Plaintiffs explained they had control over where their personal data was posted and how it was accessed but lost this control once it was used to train Google’s AI products.&nbsp;</p><p>Plaintiffs argued that they had stated a claim for tortious interference (Count 9) by alleging that Google intentionally interfered with their contracts with websites by scraping their personal data in violation of the websites’ terms of use. Further, plaintiffs argued the presence of their data gave Google adequate knowledge that they were using the websites it scraped. As for their breach of contract claim (Count 10), plaintiffs argued they were third-party beneficiaries of the contracts between Google and third-party websites, which Google breached by scraping in violation of the websites’ terms of use. Plaintiffs argued their unjust enrichment claim (Count 11) should not be dismissed because they sufficiently alleged that Google was unjustly enriched by taking and misusing their personal data, without consent or compensation, to develop its AI products for commercial gain. And in response to Google’s privacy policy argument, plaintiffs explained that Google only amended its privacy policy to allow use of data for AI training after Google was already scraping their data and using it for such purposes. </p><p>Finally, plaintiffs challenged Google’s argument that many of their state law claims (Counts 1-3, 6-9, 11) were preempted by the Copyright Act, arguing these claims seek to protect “qualitatively different” rights and contain extra elements of data misuse and unauthorized access.</p></div></details>

Feb. 9, 2024 – Google filed motion to dismiss

<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Feb. 9, 2024 – Google filed motion to dismiss</h3></summary><div class="wp-block-contentpilot-accordion__content">













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<details class="wp-block-contentpilot-accordion"><summary><h3 class="wp-block-contentpilot-accordion__title">Feb. 9, 2024 – Google filed motion to dismiss</h3></summary><div class="wp-block-contentpilot-accordion__content"><p>Google moved to dismiss plaintiffs’ first amended complaint [28] under Rule 8, arguing it was a “classic ‘shotgun complaint,’” combining all factual allegations in a lengthy background section and incorporating them wholesale into numerous counts, making it “virtually impossible” to know which factual allegations supported which claims. </p><p>Alternatively, Google moved to dismiss under Rule 12(b)(6), except to the extent plaintiffs’ direct copyright infringement claim (Count 12) was based on Google’s use of plaintiff Leovy’s book to train Bard. To the extent the copyright infringement claim was based on a theory that every output of Bard was an infringing derivative work of each copyrighted work it was trained upon, however, Google argued that the complaint did not adequately plead substantial similarity between any copyrighted work and any Bard output.</p><p>Google argued that plaintiffs lacked standing and failed to plead that Google had engaged in any unlawful, unfair, or fraudulent business practice required to sustain their unfair competition law claim (Count 1). Google argued that plaintiffs failed to plead with particularity how Google had misrepresented its use of scraped information to train its AI models or how plaintiffs relied on any such misrepresentation.</p><p>Google argued the negligence claim (Count 2) was barred by the economic loss rule because the only harm alleged was purely financial. Further, Google challenged plaintiffs’ assertion that it owed them a duty of care to avoid “web scraping without consent” and “using Personal Information to train its AI products,” arguing neither duty was imposed by law, assumed by Google, or arose out of a preexisting relationship.</p><p>Google argued plaintiffs’ CDAFA claim (Count 3) seeks to “criminalize everyday use of the internet” and emphasized that plaintiffs have not alleged that Google hacked into password-protected servers to obtain plaintiffs’ personal information. As for plaintiffs’ privacy claims (Counts 4-5), Google argued that the plaintiffs did not identify the specific private information at issue or plausibly allege both a reasonable expectation of privacy and a “highly offensive” intrusion into that privacy interest. Google explained that plaintiffs retained no privacy interest to information they posted to publicly available websites which were scraped by Google. Further, it argued that the complaint did not allege use or disclosure of any particular Google search query or Gmail conversation in order to train Bard.</p><p>Google moved to dismiss plaintiffs’ claims of &nbsp;larceny, conversion, and trespass to chattels (Counts 6-8), arguing that plaintiffs had no property right in personal information shared on publicly available websites and scraping and use of such information could not establish theft, conversion, or interference because plaintiffs still had access to copies of that information.</p><p>Google argued that plaintiffs’ breach of contract claim (Count 9) failed to identify specific anti-scraping provisions in the terms of use of the allegedly scraped websites. Google also disputed plaintiffs’ assertion that they were intended beneficiaries of any such website’s terms. Google challenged plaintiffs’ tortious interference claim (Count 10) on grounds that plaintiffs failed to allege Google’s knowledge of specific websites with whom plaintiffs had contracted or explain how Google was “substantially certain” that its web crawling would cause such websites to breach those contracts. </p><p>Finally, Google asserted that many of plaintiffs’ state law claims (Counts 1-3, 6-9, 11) were preempted by the Copyright Act.</p></div></details>

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