After reading my 3-part series on copyright and LLMs (start with Part 1, here) a couple of colleagues have asked me whether content owners could use the Digital Millennium Copyright Act (DMCA) to challenge the use of their copyright-protected content.
I’ll provide a short summary of the law on this issue, but the first thing to note is that the DMCA offers two potential avenues for content owners: Section 512(c)‘s widely-used ‘notice and takedown’ system and the lesser-known Section 1202(b)(1), which addresses the removal of copyright management information (CMI), like author names, titles, copyright notices and terms and conditions .
Section 1202(b)(1) – Removal or Alteration of CMI
First, let’s talk about the lesser-known DMCA provision. Several plaintiffs have tried an innovative approach under this provision, arguing that AI companies violated Section 1202(b)(1) by stripping away CMI in the training process.
In November, two federal judges in New York reached opposite conclusions on these claims. In Raw Story Media, Inc. v. OpenAI the plaintiff alleged that OpenAI had removed CMI during the training process, in violation of 1202(b)(1). The court applied the standing requirement established in Transunion v. Ramirez, a recent Supreme Court case that dramatically restricted standing to sue in federal courts to enforce federal statutes. The court held that the publisher lacked standing because it couldn’t prove that it had suffered “concrete harm” from the alleged CMI removal from ChatGPT. The court based this conclusion on the fact that Raw Story “did not allege that a copy of its work from which the CMI had been removed had been disseminated by ChatGPT to anyone in response to any specific query.” Absent dissemination Raw Media had no claim – under Transunion, “no concrete harm, no standing.”
But weeks later, in The Intercept Media v. OpenAI, a different judge issued a short order allowing similar claims to proceed. We are awaiting the opinion explaining his rationale.
The California federal courts have also been unwelcoming to 1202(b)(1) claims. In two cases – Anderson v. Stability AI and Doe 1 v. Gitub the courts dismissed 1202(b)(1) claims on the ground that the removal of CMI requires identicality between the original work and the copy, which the plaintiffs had failed to establish. However, the Github case has been certified for an interlocutory appeal to the Ninth Circuit, and that appeal is worth watching. I’ll note that the identicality requirement is not in the Copyright Act – it is an example of judge-made copyright doctrine.
Section 512(c) – Notice-and-Takedown
While you are likely familiar with the DMCA’s Section 512(c) notice-and-takedown system (think YouTube removing copyrighted videos or music), this law faces major hurdles in the AI context. A DMCA take-down notice must be specific about the location where the infringing material is hosted – typically a URL. In the case of an AI model the challenge is that data used by AI models is not accessible or identifiable, making it impossible for copyright owners to issue takedown notices.
Unsurprisingly, I can’t find any major AI case in which a plaintiff has alleged violation of Section 512(c).
Conclusion
The collision between AI technology and copyright law highlights a fundamental challenge: our existing legal framework, designed for the digital age of the late 1990s, struggles to address the unique characteristics of AI systems. The DMCA, enacted when peer-to-peer file sharing was the primary concern, now faces unprecedented questions about its applicability to AI training data.
Stay tuned.