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

In two nearly identical lawsuits, <em>The Intercept Media v. OpenAI</em> and <em>Raw Story Media v. OpenAI</em>, a trio of news organizations represented by the same firm alleged DMCA violations arising out of the alleged inclusion of plaintiffs’ works of journalism in the datasets used to train ChatGPT.

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<p>In two nearly identical lawsuits, <em>The Intercept Media v. OpenAI</em> and <em>Raw Story Media v. OpenAI</em>, a trio of news organizations represented by the same firm alleged DMCA violations arising out of the alleged inclusion of plaintiffs’ works of journalism in the datasets used to train ChatGPT.</p>

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

As of April 2025, this case has been consolidated into <em>In re: OpenAI Copyright Infringement Litigatio</em>n.&nbsp;

<p>As of April 2025, this case has been consolidated into <em>In re: OpenAI Copyright Infringement Litigatio</em>n.&nbsp;</p>

The Intercept’s sole remaining claim is that OpenAI violated § 1202(b)(1). The court dismissed all of Raw Story Media’s claims.

<p>The Intercept’s sole remaining claim is that OpenAI violated § 1202(b)(1). The court dismissed all of Raw Story Media’s claims.</p>

Case Background

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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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<em>The Intercept Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01515

<p><em>The Intercept Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01515</p>

<em>Raw Story Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01514

<p><em>Raw Story Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01514</p>

<strong>Court</strong>: U.S. District Court for the Southern District of New York

<p><strong>Court</strong>: U.S. District Court for the Southern District of New York</p>

<em>The Intercept Media v. OpenAI </em>– District Judge Jed S. Rakoff and Magistrate Judge Henry J. Ricardo&nbsp;

<p><em>The Intercept Media v. OpenAI </em>– District Judge Jed S. Rakoff and Magistrate Judge Henry J. Ricardo&nbsp;</p>

<em>Raw Story Media v. OpenAI</em> – District Judge Colleen McMahon&nbsp;

<p><em>Raw Story Media v. OpenAI</em> – District Judge Colleen McMahon&nbsp;</p>

Plaintiffs – The Intercept Media, Inc.; Raw Story Media, Inc.; and AlterNet Media, Inc., represented by Loevy &amp; Loevy.

<p>Plaintiffs – The Intercept Media, Inc.; Raw Story Media, Inc.; and AlterNet Media, Inc., represented by Loevy &amp; Loevy.</p>

OpenAI – OpenAI, Inc.; OpenAI GP, LLC; OpenAI, LLC; OpenAI OPCO LLC; OpenAI Global LLC; OAI Corporation, LLC; and OpenAI Holdings, LLC, represented by Morrison &amp; Foerster LLP and Latham &amp; Watkins LLP.

<p>OpenAI – OpenAI, Inc.; OpenAI GP, LLC; OpenAI, LLC; OpenAI OPCO LLC; OpenAI Global LLC; OAI Corporation, LLC; and OpenAI Holdings, LLC, represented by Morrison &amp; Foerster LLP and Latham &amp; Watkins LLP. </p>

Former defendant – Microsoft Corporation, represented by Orrick, Herrington, &amp; Sutcliffe LLP

<p>Former defendant – Microsoft Corporation, represented by Orrick, Herrington, &amp; Sutcliffe LLP</p>

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<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title">Case Background</h2></summary><div class="wp-block-contentpilot-accordion__content"><p><strong>Captions</strong>:</p><p><em>The Intercept Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01515</p><p><em>Raw Story Media, Inc. v. OpenAI, Inc.</em>, No. 1:24-cv-01514</p><p><strong>Court</strong>: U.S. District Court for the Southern District of New York</p><p><strong>Judges</strong>: </p><p><em>The Intercept Media v. OpenAI </em>– District Judge Jed S. Rakoff and Magistrate Judge Henry J. Ricardo&nbsp;</p><p><em>Raw Story Media v. OpenAI</em> – District Judge Colleen McMahon&nbsp;</p><p><strong>Parties</strong>:</p><p>Plaintiffs – The Intercept Media, Inc.; Raw Story Media, Inc.; and AlterNet Media, Inc., represented by Loevy &amp; Loevy.</p><p>OpenAI – OpenAI, Inc.; OpenAI GP, LLC; OpenAI, LLC; OpenAI OPCO LLC; OpenAI Global LLC; OAI Corporation, LLC; and OpenAI Holdings, LLC, represented by Morrison &amp; Foerster LLP and Latham &amp; Watkins LLP. </p><p>Former defendant – Microsoft Corporation, represented by Orrick, Herrington, &amp; Sutcliffe LLP</p></div></details>

Status Updates

<strong>April 18, 2025 – Raw Story Media moved for reconsideration </strong>

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Raw Story Media asked the court to reconsider its order to  granting OpenAI’s motion to dismiss [117] and denying plaintiffs’ motion to amend their complaint [118-119]. Plaintiffs argued that the Judicial Panel on Multidistrict Litigation granting OpenAI’s request to transfer all copyright-adjacent cases against it, including this litigation, into a multidistrict litigation (“MDL”) shortly after the court denied plaintiffs’ motion to amend their complaint [118-119] constituted a changed circumstance warranting reconsideration.  

<p>Raw Story Media asked the court to reconsider its order to  granting OpenAI’s motion to dismiss [117] and denying plaintiffs’ motion to amend their complaint [118-119]. Plaintiffs argued that the Judicial Panel on Multidistrict Litigation granting OpenAI’s request to transfer all copyright-adjacent cases against it, including this litigation, into a multidistrict litigation (“MDL”) shortly after the court denied plaintiffs’ motion to amend their complaint [118-119] constituted a changed circumstance warranting reconsideration.  </p>

Raw Story Media explained that all other sets of plaintiffs in the MDL survived challenges to their standing to bring § 1202(b)(1) claims against OpenAI, making them the lone outlier. Further, they emphasized OpenAI’s argument in favor of MDL that MDL was necessary to streamline discovery and “avoid inconsistent rulings on important and emerging questions of law,” highlighting the conflicting rulings on standing in <em>Raw Story</em> and <em>The Intercept. </em>Plaintiffs explained that forcing them to appeal the unfavorable court orders to the Second Circuit cuts against OpenAI’s arguments in favor of MDL, especially if the Second Circuit ultimately reversed.  

<p>Raw Story Media explained that all other sets of plaintiffs in the MDL survived challenges to their standing to bring § 1202(b)(1) claims against OpenAI, making them the lone outlier. Further, they emphasized OpenAI’s argument in favor of MDL that MDL was necessary to streamline discovery and “avoid inconsistent rulings on important and emerging questions of law,” highlighting the conflicting rulings on standing in <em>Raw Story</em> and <em>The Intercept. </em>Plaintiffs explained that forcing them to appeal the unfavorable court orders to the Second Circuit cuts against OpenAI’s arguments in favor of MDL, especially if the Second Circuit ultimately reversed.  </p>

On the standing issue, plaintiffs argued that, like the other plaintiffs involved in the MDL, they suffered harm analogous to copyright infringement through OpenAI downloading tens of thousands of their copyrighted works and intentionally removing CMI before using the CMI-less copies to train OpenAI’s GPT models.&nbsp;

<p>On the standing issue, plaintiffs argued that, like the other plaintiffs involved in the MDL, they suffered harm analogous to copyright infringement through OpenAI downloading tens of thousands of their copyrighted works and intentionally removing CMI before using the CMI-less copies to train OpenAI’s GPT models.&nbsp;</p>

Finally, plaintiffs argued that they should be granted leave to amend their complaint because OpenAI had not argued that permitting them to do so would cause OpenAI any prejudice and only opposed based on the supposed inadequacy of the pleadings. Plaintiffs further contended that they had statutory standing under § 1203(a) and had plausibly alleged intentional removal of CMI by OpenAI through the Dragnet and Newspaper algorithms as well as that OpenAI had reasonable grounds to know that such CMI removal would induce, enable, facilitate, or conceal copyright infringement, as OpenAI was aware that ChatGPT outputs could infringe copyrights.

<p>Finally, plaintiffs argued that they should be granted leave to amend their complaint because OpenAI had not argued that permitting them to do so would cause OpenAI any prejudice and only opposed based on the supposed inadequacy of the pleadings. Plaintiffs further contended that they had statutory standing under § 1203(a) and had plausibly alleged intentional removal of CMI by OpenAI through the Dragnet and Newspaper algorithms as well as that OpenAI had reasonable grounds to know that such CMI removal would induce, enable, facilitate, or conceal copyright infringement, as OpenAI was aware that ChatGPT outputs could infringe copyrights.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>April 18, 2025 – Raw Story Media moved for reconsideration </strong></h2></summary><div class="wp-block-contentpilot-accordion__content">





</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>April 18, 2025 – Raw Story Media moved for reconsideration </strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>Raw Story Media asked the court to reconsider its order to  granting OpenAI’s motion to dismiss [117] and denying plaintiffs’ motion to amend their complaint [118-119]. Plaintiffs argued that the Judicial Panel on Multidistrict Litigation granting OpenAI’s request to transfer all copyright-adjacent cases against it, including this litigation, into a multidistrict litigation (“MDL”) shortly after the court denied plaintiffs’ motion to amend their complaint [118-119] constituted a changed circumstance warranting reconsideration.  </p><p>Raw Story Media explained that all other sets of plaintiffs in the MDL survived challenges to their standing to bring § 1202(b)(1) claims against OpenAI, making them the lone outlier. Further, they emphasized OpenAI’s argument in favor of MDL that MDL was necessary to streamline discovery and “avoid inconsistent rulings on important and emerging questions of law,” highlighting the conflicting rulings on standing in <em>Raw Story</em> and <em>The Intercept. </em>Plaintiffs explained that forcing them to appeal the unfavorable court orders to the Second Circuit cuts against OpenAI’s arguments in favor of MDL, especially if the Second Circuit ultimately reversed.  </p><p>On the standing issue, plaintiffs argued that, like the other plaintiffs involved in the MDL, they suffered harm analogous to copyright infringement through OpenAI downloading tens of thousands of their copyrighted works and intentionally removing CMI before using the CMI-less copies to train OpenAI’s GPT models.&nbsp;</p><p>Finally, plaintiffs argued that they should be granted leave to amend their complaint because OpenAI had not argued that permitting them to do so would cause OpenAI any prejudice and only opposed based on the supposed inadequacy of the pleadings. Plaintiffs further contended that they had statutory standing under § 1203(a) and had plausibly alleged intentional removal of CMI by OpenAI through the Dragnet and Newspaper algorithms as well as that OpenAI had reasonable grounds to know that such CMI removal would induce, enable, facilitate, or conceal copyright infringement, as OpenAI was aware that ChatGPT outputs could infringe copyrights.</p></div></details>

<strong>April 18, 2025 – The Intercept filed its second amended complaint</strong>

The Intercept filed a second amended complaint seeking damages and injunctive relief based on OpenAI’s alleged violations of § 1202(b)(1). The Intercept also included allegations that Microsoft violated § 1202(b)(1) and both defendants violated § 1202(b)(3) to preserve its appellate rights, which were similar to allegations supporting those claims in its first amended complaint [87].&nbsp;

<p>The Intercept filed a second amended complaint seeking damages and injunctive relief based on OpenAI’s alleged violations of § 1202(b)(1). The Intercept also included allegations that Microsoft violated § 1202(b)(1) and both defendants violated § 1202(b)(3) to preserve its appellate rights, which were similar to allegations supporting those claims in its first amended complaint [87].&nbsp;</p>

The Intercept alleged that OpenAI used two algorithms—Dragnet and Newspaper—to extract text, including The Intercept articles, from websites for inclusion in its training datasets, and knew that these algorithms did not extract CMI accompanying the extracted text to create WebText and WebText2. In support, The Intercept attached the results of a data scientist’s application of the two algorithms to URLs associated with The Intercept’s copyrighted articles allegedly included in OpenAI’s training datasets, which contained substantively identical text but omitted CMI. The Intercept also alleged that a recreation of Common Crawl included thousands of URLs associated with its copyrighted articles, again omitting CMI. 

<p>The Intercept alleged that OpenAI used two algorithms—Dragnet and Newspaper—to extract text, including The Intercept articles, from websites for inclusion in its training datasets, and knew that these algorithms did not extract CMI accompanying the extracted text to create WebText and WebText2. In support, The Intercept attached the results of a data scientist’s application of the two algorithms to URLs associated with The Intercept’s copyrighted articles allegedly included in OpenAI’s training datasets, which contained substantively identical text but omitted CMI. The Intercept also alleged that a recreation of Common Crawl included thousands of URLs associated with its copyrighted articles, again omitting CMI. </p>

Moreover, The Intercept alleged that OpenAI’s removal of CMI both concealed OpenAI’s own copyright infringement in the process of training ChatGPT and facilitated downstream copyright infringement in ChatGPT outputs generated and further distributed by end users. The Intercept claimed that OpenAI had publicly admitted their knowledge that ChatGPT incorporates and sometimes even regurgitates verbatim copyrighted works of journalism in outputs without associated CMI, pointing to recent changes OpenAI made to ChatGPT reducing the likelihood of these occurrences. The Intercept included several examples of ChatGPT outputs containing regurgitations of its copyrighted articles without CMI.&nbsp;

<p>Moreover, The Intercept alleged that OpenAI’s removal of CMI both concealed OpenAI’s own copyright infringement in the process of training ChatGPT and facilitated downstream copyright infringement in ChatGPT outputs generated and further distributed by end users. The Intercept claimed that OpenAI had publicly admitted their knowledge that ChatGPT incorporates and sometimes even regurgitates verbatim copyrighted works of journalism in outputs without associated CMI, pointing to recent changes OpenAI made to ChatGPT reducing the likelihood of these occurrences. The Intercept included several examples of ChatGPT outputs containing regurgitations of its copyrighted articles without CMI.&nbsp;</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>April 18, 2025 – The Intercept filed its second amended complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content">



</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>April 18, 2025 – The Intercept filed its second amended complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The Intercept filed a second amended complaint seeking damages and injunctive relief based on OpenAI’s alleged violations of § 1202(b)(1). The Intercept also included allegations that Microsoft violated § 1202(b)(1) and both defendants violated § 1202(b)(3) to preserve its appellate rights, which were similar to allegations supporting those claims in its first amended complaint [87].&nbsp;</p><p>The Intercept alleged that OpenAI used two algorithms—Dragnet and Newspaper—to extract text, including The Intercept articles, from websites for inclusion in its training datasets, and knew that these algorithms did not extract CMI accompanying the extracted text to create WebText and WebText2. In support, The Intercept attached the results of a data scientist’s application of the two algorithms to URLs associated with The Intercept’s copyrighted articles allegedly included in OpenAI’s training datasets, which contained substantively identical text but omitted CMI. The Intercept also alleged that a recreation of Common Crawl included thousands of URLs associated with its copyrighted articles, again omitting CMI. </p><p>Moreover, The Intercept alleged that OpenAI’s removal of CMI both concealed OpenAI’s own copyright infringement in the process of training ChatGPT and facilitated downstream copyright infringement in ChatGPT outputs generated and further distributed by end users. The Intercept claimed that OpenAI had publicly admitted their knowledge that ChatGPT incorporates and sometimes even regurgitates verbatim copyrighted works of journalism in outputs without associated CMI, pointing to recent changes OpenAI made to ChatGPT reducing the likelihood of these occurrences. The Intercept included several examples of ChatGPT outputs containing regurgitations of its copyrighted articles without CMI.&nbsp;</p></div></details>

<strong>April 3, 2025 – Court denied Raw Story Media’s motion for leave to amend. </strong>

The court denied Raw Story Media’s motion for leave to amend its complaint [118-119], finding that the allegations added to plaintiffs’ proposed amendments did not confer standing to pursue either damages or injunctive relief. With respect to damages, the court found that plaintiffs still failed to plausibly allege that a copy of any of their copyrighted works with CMI removed was disseminated by ChatGPT to anyone in response to a specific inquiry. The court explained that plaintiffs’ new allegations on the technical process by which OpenAI uploaded their copyrighted works into OpenAI’s training datasets did not render plaintiffs’ asserted harm more concrete.  

<p>The court denied Raw Story Media’s motion for leave to amend its complaint [118-119], finding that the allegations added to plaintiffs’ proposed amendments did not confer standing to pursue either damages or injunctive relief. With respect to damages, the court found that plaintiffs still failed to plausibly allege that a copy of any of their copyrighted works with CMI removed was disseminated by ChatGPT to anyone in response to a specific inquiry. The court explained that plaintiffs’ new allegations on the technical process by which OpenAI uploaded their copyrighted works into OpenAI’s training datasets did not render plaintiffs’ asserted harm more concrete.  </p>

Moreover, the court found that plaintiffs still lacked standing to pursue injunctive relief because the likelihood of ChatGPT outputting plagiarized content from plaintiffs’ copyrighted works seemed remote. The court explained that plaintiffs’ reliance on allegations of plagiarism made by other litigants in other lawsuits against OpenAI did not show “certainly impending” injury or “substantial risk” that they will suffer the same harm.&nbsp;

<p>Moreover, the court found that plaintiffs still lacked standing to pursue injunctive relief because the likelihood of ChatGPT outputting plagiarized content from plaintiffs’ copyrighted works seemed remote. The court explained that plaintiffs’ reliance on allegations of plagiarism made by other litigants in other lawsuits against OpenAI did not show “certainly impending” injury or “substantial risk” that they will suffer the same harm.&nbsp;</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>April 3, 2025 – Court denied Raw Story Media’s motion for leave to amend. </strong></h2></summary><div class="wp-block-contentpilot-accordion__content">

</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>April 3, 2025 – Court denied Raw Story Media’s motion for leave to amend. </strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The court denied Raw Story Media’s motion for leave to amend its complaint [118-119], finding that the allegations added to plaintiffs’ proposed amendments did not confer standing to pursue either damages or injunctive relief. With respect to damages, the court found that plaintiffs still failed to plausibly allege that a copy of any of their copyrighted works with CMI removed was disseminated by ChatGPT to anyone in response to a specific inquiry. The court explained that plaintiffs’ new allegations on the technical process by which OpenAI uploaded their copyrighted works into OpenAI’s training datasets did not render plaintiffs’ asserted harm more concrete.  </p><p>Moreover, the court found that plaintiffs still lacked standing to pursue injunctive relief because the likelihood of ChatGPT outputting plagiarized content from plaintiffs’ copyrighted works seemed remote. The court explained that plaintiffs’ reliance on allegations of plagiarism made by other litigants in other lawsuits against OpenAI did not show “certainly impending” injury or “substantial risk” that they will suffer the same harm.&nbsp;</p></div></details>

<strong>February 20, 2025 – Court granted Microsoft’s and (in part) OpenAI’s motion to dismiss The Intercept’s complaint. </strong>

<strong><em>OpenAI’s Motion to Dismiss</em></strong>. The court granted OpenAI’s motion to dismiss The Intercept’s § 1202(b)(3) claim but denied OpenAI’s request to dismiss the § 1202(b)(1) claim.&nbsp;&nbsp;

<p><strong><em>OpenAI’s Motion to Dismiss</em></strong>. The court granted OpenAI’s motion to dismiss The Intercept’s § 1202(b)(3) claim but denied OpenAI’s request to dismiss the § 1202(b)(1) claim.&nbsp;&nbsp;</p>

Regarding the § 1202(b)(3) claim, the court found that The Intercept’s complaint lacked factual support for its allegation that OpenAI distributed its articles. Regarding OpenAI’s alleged sharing of the ChatGPT training dataset (including The Intercept’s articles) with Microsoft, the court explained that “the mere fact that Microsoft has a partnership with OpenAI and that it provides a data center and supercomputing infrastructure” was an insufficient indication that the companies shared training data for their competing AI products or that they shared The Intercept’s articles in particular. 

<p>Regarding the § 1202(b)(3) claim, the court found that The Intercept’s complaint lacked factual support for its allegation that OpenAI distributed its articles. Regarding OpenAI’s alleged sharing of the ChatGPT training dataset (including The Intercept’s articles) with Microsoft, the court explained that “the mere fact that Microsoft has a partnership with OpenAI and that it provides a data center and supercomputing infrastructure” was an insufficient indication that the companies shared training data for their competing AI products or that they shared The Intercept’s articles in particular. </p>

As for the § 1202(b)(1) claim, the court found that The Intercept had plausibly alleged OpenAI’s intentional removal of CMI from its articles through its use of the Dragnet and Newspaper algorithms. Further, the court found that The Intercept had plausibly alleged that OpenAI had reasonable grounds to know that its removal of CMI would induce, enable, facilitate, or conceal copyright infringement. Although the court rejected the theory that OpenAI had the requisite knowledge that its removal of CMI would conceal its own infringement in reproducing The Intercept’s articles in training datasets, it found persuasive a second theory that OpenAI’s removal of CMI would facilitate downstream infringement through regurgitations of its articles in ChatGPT outputs. It reasoned that The Intercept had plausibly alleged that OpenAI knew ChatGPT regurgitated verbatim copyrighted-protected works of journalism in outputs (including some of The Intercept’s works), as well as that some users would likely infringe copyrights through ChatGPT outputs.&nbsp;&nbsp;

<p>As for the § 1202(b)(1) claim, the court found that The Intercept had plausibly alleged OpenAI’s intentional removal of CMI from its articles through its use of the Dragnet and Newspaper algorithms. Further, the court found that The Intercept had plausibly alleged that OpenAI had reasonable grounds to know that its removal of CMI would induce, enable, facilitate, or conceal copyright infringement. Although the court rejected the theory that OpenAI had the requisite knowledge that its removal of CMI would conceal its own infringement in reproducing The Intercept’s articles in training datasets, it found persuasive a second theory that OpenAI’s removal of CMI would facilitate downstream infringement through regurgitations of its articles in ChatGPT outputs. It reasoned that The Intercept had plausibly alleged that OpenAI knew ChatGPT regurgitated verbatim copyrighted-protected works of journalism in outputs (including some of The Intercept’s works), as well as that some users would likely infringe copyrights through ChatGPT outputs.&nbsp;&nbsp;</p>

<strong><em>Microsoft’s Motion to Dismiss</em></strong>. The court granted Microsoft’s motion to dismiss The Intercept’s § 1202(b) claims.  

<p><strong><em>Microsoft’s Motion to Dismiss</em></strong>. The court granted Microsoft’s motion to dismiss The Intercept’s § 1202(b) claims.  </p>

Regarding § 1202(b)(1), the court found that none of the evidence related to Microsoft’s involvement with ChatGPT, including its partnership with and 49% ownership stake in OpenAI, its alleged provision of the data center and supercomputing infrastructure used to train ChatGPT, and its CEO’s statement that “we have the data,” bore any relationship to the alleged CMI removal by OpenAI.   

<p>Regarding § 1202(b)(1), the court found that none of the evidence related to Microsoft’s involvement with ChatGPT, including its partnership with and 49% ownership stake in OpenAI, its alleged provision of the data center and supercomputing infrastructure used to train ChatGPT, and its CEO’s statement that “we have the data,” bore any relationship to the alleged CMI removal by OpenAI.   </p>

Moreover, the court dismissed The Intercept’s § 1202(b)(3) claim against Microsoft for the same reasons it dismissed the analogous § 1202(b)(3) claim against OpenAI.&nbsp;

<p>Moreover, the court dismissed The Intercept’s § 1202(b)(3) claim against Microsoft for the same reasons it dismissed the analogous § 1202(b)(3) claim against OpenAI.&nbsp;</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>February 20, 2025 – Court granted Microsoft’s and (in part) OpenAI’s motion to dismiss The Intercept’s complaint. </strong></h2></summary><div class="wp-block-contentpilot-accordion__content">









</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>February 20, 2025 – Court granted Microsoft’s and (in part) OpenAI’s motion to dismiss The Intercept’s complaint. </strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p><strong><em>OpenAI’s Motion to Dismiss</em></strong>. The court granted OpenAI’s motion to dismiss The Intercept’s § 1202(b)(3) claim but denied OpenAI’s request to dismiss the § 1202(b)(1) claim.&nbsp;&nbsp;</p><p>Regarding the § 1202(b)(3) claim, the court found that The Intercept’s complaint lacked factual support for its allegation that OpenAI distributed its articles. Regarding OpenAI’s alleged sharing of the ChatGPT training dataset (including The Intercept’s articles) with Microsoft, the court explained that “the mere fact that Microsoft has a partnership with OpenAI and that it provides a data center and supercomputing infrastructure” was an insufficient indication that the companies shared training data for their competing AI products or that they shared The Intercept’s articles in particular. </p><p>As for the § 1202(b)(1) claim, the court found that The Intercept had plausibly alleged OpenAI’s intentional removal of CMI from its articles through its use of the Dragnet and Newspaper algorithms. Further, the court found that The Intercept had plausibly alleged that OpenAI had reasonable grounds to know that its removal of CMI would induce, enable, facilitate, or conceal copyright infringement. Although the court rejected the theory that OpenAI had the requisite knowledge that its removal of CMI would conceal its own infringement in reproducing The Intercept’s articles in training datasets, it found persuasive a second theory that OpenAI’s removal of CMI would facilitate downstream infringement through regurgitations of its articles in ChatGPT outputs. It reasoned that The Intercept had plausibly alleged that OpenAI knew ChatGPT regurgitated verbatim copyrighted-protected works of journalism in outputs (including some of The Intercept’s works), as well as that some users would likely infringe copyrights through ChatGPT outputs.&nbsp;&nbsp;</p><p><strong><em>Microsoft’s Motion to Dismiss</em></strong>. The court granted Microsoft’s motion to dismiss The Intercept’s § 1202(b) claims.  </p><p>Regarding § 1202(b)(1), the court found that none of the evidence related to Microsoft’s involvement with ChatGPT, including its partnership with and 49% ownership stake in OpenAI, its alleged provision of the data center and supercomputing infrastructure used to train ChatGPT, and its CEO’s statement that “we have the data,” bore any relationship to the alleged CMI removal by OpenAI.   </p><p>Moreover, the court dismissed The Intercept’s § 1202(b)(3) claim against Microsoft for the same reasons it dismissed the analogous § 1202(b)(3) claim against OpenAI.&nbsp;</p></div></details>

<strong>Dec. 20, 2024 – OpenAI opposed motion to amend <em>Raw Story Media </em>complaint</strong>

OpenAI argued that plaintiffs’ proposed amendments are futile. OpenAI argued that plaintiffs are not “persons injured” within the meaning of DMCA.

<p>OpenAI argued that plaintiffs’ proposed amendments are futile. OpenAI argued that plaintiffs are not “persons injured” within the meaning of DMCA.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Dec. 20, 2024 – OpenAI opposed motion to amend <em>Raw Story Media </em>complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Dec. 20, 2024 – OpenAI opposed motion to amend <em>Raw Story Media </em>complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>OpenAI argued that plaintiffs’ proposed amendments are futile. OpenAI argued that plaintiffs are not “persons injured” within the meaning of DMCA.</p></div></details>

<strong>Dec. 5, 2024 – OpenAI answered <em>The Intercept</em> complaint</strong>

OpenAI filed an answer to The Intercept’s amended complaint [87]. OpenAI denied the single remaining cause of action – violation of 17 U.S.C. §1202(b)(1).

<p>OpenAI filed an answer to The Intercept’s amended complaint [87]. OpenAI denied the single remaining cause of action – violation of 17 U.S.C. §1202(b)(1).</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Dec. 5, 2024 – OpenAI answered <em>The Intercept</em> complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Dec. 5, 2024 – OpenAI answered <em>The Intercept</em> complaint</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>OpenAI filed an answer to The Intercept’s amended complaint [87]. OpenAI denied the single remaining cause of action – violation of 17 U.S.C. §1202(b)(1).</p></div></details>

<strong><strong>Nov. 21, 2024 – Plaintiffs requested leave to file amended complaint in <em>Raw Story Media</em></strong></strong>

Raw Story Media and AlterNet Media filed a motion for leave to amend its complaint or alternatively to continue jurisdictional discovery regarding the defendants’ dissemination of plaintiffs’ works. Plaintiffs argued that the proposed amendments present a close analogy between copyright infringement and Plaintiffs’ DMCA injuries based on the specific facts of this case. Plaintiffs also argued their proposed amendments justify standing based on disgorgement of unlawful profits. Plaintiffs argued that its proposed amended complaint would survive a 12(b)(6) challenge.

<p>Raw Story Media and AlterNet Media filed a motion for leave to amend its complaint or alternatively to continue jurisdictional discovery regarding the defendants’ dissemination of plaintiffs’ works. Plaintiffs argued that the proposed amendments present a close analogy between copyright infringement and Plaintiffs’ DMCA injuries based on the specific facts of this case. Plaintiffs also argued their proposed amendments justify standing based on disgorgement of unlawful profits. Plaintiffs argued that its proposed amended complaint would survive a 12(b)(6) challenge.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong>Nov. 21, 2024 – Plaintiffs requested leave to file amended complaint in <em>Raw Story Media</em></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong>Nov. 21, 2024 – Plaintiffs requested leave to file amended complaint in <em>Raw Story Media</em></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>Raw Story Media and AlterNet Media filed a motion for leave to amend its complaint or alternatively to continue jurisdictional discovery regarding the defendants’ dissemination of plaintiffs’ works. Plaintiffs argued that the proposed amendments present a close analogy between copyright infringement and Plaintiffs’ DMCA injuries based on the specific facts of this case. Plaintiffs also argued their proposed amendments justify standing based on disgorgement of unlawful profits. Plaintiffs argued that its proposed amended complaint would survive a 12(b)(6) challenge.</p></div></details>

<strong><strong><strong>Nov. 21, 2024 – Court dismissed all but one claim in <em>The Intercept</em></strong></strong></strong>

The court dismissed with prejudice all of The Intercept’s claims against Microsoft and its §1202(b)(3) claim against OpenAI. The court permitted The Intercept’s&nbsp;&nbsp; §1202(b)(1) claim against OpenAI to proceed.

<p>The court dismissed with prejudice all of The Intercept’s claims against Microsoft and its §1202(b)(3) claim against OpenAI. The court permitted The Intercept’s&nbsp;&nbsp; §1202(b)(1) claim against OpenAI to proceed.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong><strong>Nov. 21, 2024 – Court dismissed all but one claim in <em>The Intercept</em></strong></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong><strong>Nov. 21, 2024 – Court dismissed all but one claim in <em>The Intercept</em></strong></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The court dismissed with prejudice all of The Intercept’s claims against Microsoft and its §1202(b)(3) claim against OpenAI. The court permitted The Intercept’s&nbsp;&nbsp; §1202(b)(1) claim against OpenAI to proceed.</p></div></details>

<strong><strong><strong><strong>Nov. 7, 2024 – Court granted OpenAI’s motion to dismiss <em>Raw Story Media </em>complaint.</strong></strong></strong></strong>

The Court agreed with defendants that the Raw Story Media and AlterNet Media Inc. lacked Article III standing to assert their claims. The plaintiffs were found to lack a concrete injury-in-fact.

<p>The Court agreed with defendants that the Raw Story Media and AlterNet Media Inc. lacked Article III standing to assert their claims. The plaintiffs were found to lack a concrete injury-in-fact.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong><strong><strong>Nov. 7, 2024 – Court granted OpenAI’s motion to dismiss <em>Raw Story Media </em>complaint.</strong></strong></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong><strong><strong><strong>Nov. 7, 2024 – Court granted OpenAI’s motion to dismiss <em>Raw Story Media </em>complaint.</strong></strong></strong></strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The Court agreed with defendants that the Raw Story Media and AlterNet Media Inc. lacked Article III standing to assert their claims. The plaintiffs were found to lack a concrete injury-in-fact.</p></div></details>

<strong>Aug. 27, 2024 – The Intercept filed notice of supplemental authority ISO its opposition to OpenAI’s motion to dismiss </strong>

The Intercept filed a notice of supplemental authority regarding the Second Circuit’s decision in <em>Michael Grecco Prods., Inc. v. RADesign, Inc</em>. No. 23-1078, 2024 WL 3836578 (2d Cir. Aug. 16, 2024), which The Intercept argued supported its position in its opposition [90] to OpenAI’s motion to dismiss [89] that its DMCA § 1202(b) claims were not barred by the statute of limitations.&nbsp;&nbsp;

<p>The Intercept filed a notice of supplemental authority regarding the Second Circuit’s decision in <em>Michael Grecco Prods., Inc. v. RADesign, Inc</em>. No. 23-1078, 2024 WL 3836578 (2d Cir. Aug. 16, 2024), which The Intercept argued supported its position in its opposition [90] to OpenAI’s motion to dismiss [89] that its DMCA § 1202(b) claims were not barred by the statute of limitations.&nbsp;&nbsp;</p>

The Intercept explained that the Second Circuit had clarified that, under the discovery rule, the sophistication of a plaintiff did not automatically relieve the defendant of its burden to plead and prove a Copyright Act statute of limitations defense. In addition, it explained that the Second Circuit reiterated that, for dismissal on limitations grounds, it must be “clear from the face of the complaint” that the plaintiff, exercising due diligence, would have discovered its claims less than 3 years before it filed the lawsuit. Finally, it explained that the Second Circuit had emphasized that a defendant’s statute of limitations argument is an affirmative defense, so plaintiffs need not allege timeliness of their claims in the complaint.

<p>The Intercept explained that the Second Circuit had clarified that, under the discovery rule, the sophistication of a plaintiff did not automatically relieve the defendant of its burden to plead and prove a Copyright Act statute of limitations defense. In addition, it explained that the Second Circuit reiterated that, for dismissal on limitations grounds, it must be “clear from the face of the complaint” that the plaintiff, exercising due diligence, would have discovered its claims less than 3 years before it filed the lawsuit. Finally, it explained that the Second Circuit had emphasized that a defendant’s statute of limitations argument is an affirmative defense, so plaintiffs need not allege timeliness of their claims in the complaint.</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Aug. 27, 2024 – The Intercept filed notice of supplemental authority ISO its opposition to OpenAI’s motion to dismiss </strong></h2></summary><div class="wp-block-contentpilot-accordion__content">

</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Aug. 27, 2024 – The Intercept filed notice of supplemental authority ISO its opposition to OpenAI’s motion to dismiss </strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The Intercept filed a notice of supplemental authority regarding the Second Circuit’s decision in <em>Michael Grecco Prods., Inc. v. RADesign, Inc</em>. No. 23-1078, 2024 WL 3836578 (2d Cir. Aug. 16, 2024), which The Intercept argued supported its position in its opposition [90] to OpenAI’s motion to dismiss [89] that its DMCA § 1202(b) claims were not barred by the statute of limitations.&nbsp;&nbsp;</p><p>The Intercept explained that the Second Circuit had clarified that, under the discovery rule, the sophistication of a plaintiff did not automatically relieve the defendant of its burden to plead and prove a Copyright Act statute of limitations defense. In addition, it explained that the Second Circuit reiterated that, for dismissal on limitations grounds, it must be “clear from the face of the complaint” that the plaintiff, exercising due diligence, would have discovered its claims less than 3 years before it filed the lawsuit. Finally, it explained that the Second Circuit had emphasized that a defendant’s statute of limitations argument is an affirmative defense, so plaintiffs need not allege timeliness of their claims in the complaint.</p></div></details>

<strong>Aug. 22, 2024 – OpenAI filed notice of supplemental authority ISO its motion to dismiss in each case </strong>

OpenAI filed a notice of supplemental authority regarding a court order in <a href="https://www.bakerlaw.com/andersen-v-stability-ai/" target="_blank" rel="noreferrer noopener">Andersen v. Stability AI</a>, which granted defendants’ motions to dismiss plaintiffs’ DMCA § 1202(b) claims. OpenAI argued the court order supported its motions to dismiss [68 &amp; 89] the complaints filed by Raw Story Media [1] and The Intercept Media [87]. OpenAI explained that the <em>Andersen</em> court held plaintiffs’ § 1202(b) claims failed “[b]ecause there are no allegations that any output from [the models] was identical to a plaintiff’s work,” an argument OpenAI had asserted in its motions to dismiss each complaint.&nbsp;

<p>OpenAI filed a notice of supplemental authority regarding a court order in <a href="https://www.bakerlaw.com/andersen-v-stability-ai/" target="_blank" rel="noreferrer noopener">Andersen v. Stability AI</a>, which granted defendants’ motions to dismiss plaintiffs’ DMCA § 1202(b) claims. OpenAI argued the court order supported its motions to dismiss [68 &amp; 89] the complaints filed by Raw Story Media [1] and The Intercept Media [87]. OpenAI explained that the <em>Andersen</em> court held plaintiffs’ § 1202(b) claims failed “[b]ecause there are no allegations that any output from [the models] was identical to a plaintiff’s work,” an argument OpenAI had asserted in its motions to dismiss each complaint.&nbsp;</p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Aug. 22, 2024 – OpenAI filed notice of supplemental authority ISO its motion to dismiss in each case </strong></h2></summary><div class="wp-block-contentpilot-accordion__content"></div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>Aug. 22, 2024 – OpenAI filed notice of supplemental authority ISO its motion to dismiss in each case </strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>OpenAI filed a notice of supplemental authority regarding a court order in <a href="https://www.bakerlaw.com/andersen-v-stability-ai/" target="_blank" rel="noreferrer noopener">Andersen v. Stability AI</a>, which granted defendants’ motions to dismiss plaintiffs’ DMCA § 1202(b) claims. OpenAI argued the court order supported its motions to dismiss [68 &amp; 89] the complaints filed by Raw Story Media [1] and The Intercept Media [87]. OpenAI explained that the <em>Andersen</em> court held plaintiffs’ § 1202(b) claims failed “[b]ecause there are no allegations that any output from [the models] was identical to a plaintiff’s work,” an argument OpenAI had asserted in its motions to dismiss each complaint.&nbsp;</p></div></details>

<strong>July 15, 2024 – The Intercept filed a supplemental brief opposing Microsoft’s and OpenAI’s motions to dismiss</strong>

The Intercept filed a supplemental brief in opposition to Microsoft’s [88] and OpenAI’s [89] renewed motions to dismiss its amended complaint [87]. Regarding standing, The Intercept argued that it had sufficiently alleged a concrete injury based on the defendants’ “interference with its copyright-protected property,” which was analogous to copyright infringement claims for which public dissemination is not required. However, if the court agreed with defendants that public dissemination of CMI-less copies of its works was required, it argued it was entitled to jurisdictional discovery.

<p>The Intercept filed a supplemental brief in opposition to Microsoft’s [88] and OpenAI’s [89] renewed motions to dismiss its amended complaint [87]. Regarding standing, The Intercept argued that it had sufficiently alleged a concrete injury based on the defendants’ “interference with its copyright-protected property,” which was analogous to copyright infringement claims for which public dissemination is not required. However, if the court agreed with defendants that public dissemination of CMI-less copies of its works was required, it argued it was entitled to jurisdictional discovery. </p>

As for OpenAI’s statute of limitations argument, The Intercept contended that it “has plausibly alleged that OpenAI employed the same CMI removal processes,” web scraping algorithms designed to remove CMI from news articles, “within the last three years.” It also argued that the discovery rule, if applied, may extend the applicable statute of limitations period.

<p>As for OpenAI’s statute of limitations argument, The Intercept contended that it “has plausibly alleged that OpenAI employed the same CMI removal processes,” web scraping algorithms designed to remove CMI from news articles, “within the last three years.” It also argued that the discovery rule, if applied, may extend the applicable statute of limitations period.</p>

Regarding the DMCA’s double-scienter requirement, The Intercept argued that defendants had reason to know their removal of CMI would (1) conceal their own infringement during training from users by omitting CMI in outputs; (2) conceal the infringing nature of outputs from users; and (3) induce, enable, and facilitate users to infringe by further distributing infringing outputs to others, as some users would be less likely to do so if they knew the outputs were infringing. And in response to defendants’ argument that ordinary users would never produce the regurgitations attached to its complaint, it emphasized that “ChatGPT is far less prone to regurgitation now than it was years ago.”

<p>Regarding the DMCA’s double-scienter requirement, The Intercept argued that defendants had reason to know their removal of CMI would (1) conceal their own infringement during training from users by omitting CMI in outputs; (2) conceal the infringing nature of outputs from users; and (3) induce, enable, and facilitate users to infringe by further distributing infringing outputs to others, as some users would be less likely to do so if they knew the outputs were infringing. And in response to defendants’ argument that ordinary users would never produce the regurgitations attached to its complaint, it emphasized that “ChatGPT is far less prone to regurgitation now than it was years ago.”</p>

The Intercept also argued it had plausibly alleged its § 1202(b)(3) claims by including allegations that defendants “distributed the training data, from which CMI had been removed, with each other.” It pointed to an interview quote from Microsoft’s CEO that “we have the data,” leading to a “plausible inference” that Microsoft and OpenAI exchanged the training data. Further, it argued that defendants had reason to know such distribution of CMI-less copies would conceal their infringement, as “clearly the recipient of an unattributed wall of text … would have no idea that it was an unauthorized copy of The Intercept’s works.”

<p>The Intercept also argued it had plausibly alleged its § 1202(b)(3) claims by including allegations that defendants “distributed the training data, from which CMI had been removed, with each other.” It pointed to an interview quote from Microsoft’s CEO that “we have the data,” leading to a “plausible inference” that Microsoft and OpenAI exchanged the training data. Further, it argued that defendants had reason to know such distribution of CMI-less copies would conceal their infringement, as “clearly the recipient of an unattributed wall of text … would have no idea that it was an unauthorized copy of The Intercept’s works.” </p>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>July 15, 2024 – The Intercept filed a supplemental brief opposing Microsoft’s and OpenAI’s motions to dismiss</strong></h2></summary><div class="wp-block-contentpilot-accordion__content">







</div></details>

<details class="wp-block-contentpilot-accordion"><summary><h2 class="wp-block-contentpilot-accordion__title"><strong>July 15, 2024 – The Intercept filed a supplemental brief opposing Microsoft’s and OpenAI’s motions to dismiss</strong></h2></summary><div class="wp-block-contentpilot-accordion__content"><p>The Intercept filed a supplemental brief in opposition to Microsoft’s [88] and OpenAI’s [89] renewed motions to dismiss its amended complaint [87]. Regarding standing, The Intercept argued that it had sufficiently alleged a concrete injury based on the defendants’ “interference with its copyright-protected property,” which was analogous to copyright infringement claims for which public dissemination is not required. However, if the court agreed with defendants that public dissemination of CMI-less copies of its works was required, it argued it was entitled to jurisdictional discovery. </p><p>As for OpenAI’s statute of limitations argument, The Intercept contended that it “has plausibly alleged that OpenAI employed the same CMI removal processes,” web scraping algorithms designed to remove CMI from news articles, “within the last three years.” It also argued that the discovery rule, if applied, may extend the applicable statute of limitations period.</p><p>Regarding the DMCA’s double-scienter requirement, The Intercept argued that defendants had reason to know their removal of CMI would (1) conceal their own infringement during training from users by omitting CMI in outputs; (2) conceal the infringing nature of outputs from users; and (3) induce, enable, and facilitate users to infringe by further distributing infringing outputs to others, as some users would be less likely to do so if they knew the outputs were infringing. And in response to defendants’ argument that ordinary users would never produce the regurgitations attached to its complaint, it emphasized that “ChatGPT is far less prone to regurgitation now than it was years ago.”</p><p>The Intercept also argued it had plausibly alleged its § 1202(b)(3) claims by including allegations that defendants “distributed the training data, from which CMI had been removed, with each other.” It pointed to an interview quote from Microsoft’s CEO that “we have the data,” leading to a “plausible inference” that Microsoft and OpenAI exchanged the training data. Further, it argued that defendants had reason to know such distribution of CMI-less copies would conceal their infringement, as “clearly the recipient of an unattributed wall of text … would have no idea that it was an unauthorized copy of The Intercept’s works.” </p><p>Finally, The Intercept rebutted Microsoft’s arguments regarding its involvement in creating the training datasets at issue by relying upon allegations concerning Microsoft’s admission that “we have the data” as well as its “close partnership” with OpenAI and provision of bespoke supercomputing resources used to power ChatGPT.</p></div></details>

The Intercept Media and Raw Story Media v. OpenAI

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