Author: Washington Journal of Law, Technology & Arts

Emulation or Piracy for Profit? Nintendo Says No.

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By: Kevin Vu

Nintendo, the developer of various beloved video games and consoles, was recently in the news for its lawsuit against, and subsequent settlement with, Tropic Haze, the developers of the Nintendo Switch emulator “Yuzu.” In the initial complaint, Nintendo alleged that “[w]ith Yuzu in hand, nothing stops a user from obtaining and playing unlawful copies of virtually any game made for the Nintendo Switch, all without paying a dime to Nintendo or any of the hundreds of other game developers and publishers making and selling games for the Nintendo Switch. In effect, Yuzu turns general computing devices into tools for massive intellectual property infringement of Nintendo and others’ copyrighted works.” In essence, Nintendo alleged that Tropic Haze “facilitate[d] piracy at a colossal scale.”

Nintendo’s battles against piracy are nothing new. The company has a storied history of filing lawsuits against various forms of piracy – including individuals who sold Nintendo Switch-hacking devices and international cases against Nintendo game copy-holding websites. But some commentators argue that emulation is not piracy – which might explain why Nintendo has yet not filed similar lawsuits against other emulators like “Dolphin” (which emulates the Nintendo Wii). 

Emulation or Piracy?

Emulation, as commonly referred to in this context, means a computer program that “imitates a video game console.” At first blush, it is easy to see why such programs would be an issue for first-party developers like Nintendo. Emulation programs might disincentivize consumers from buying the latest video game console to play their video games for example.  The historic answer to criticisms like that is that emulation falls under fair use. 

For example, in Sony Computer Entertainment v. Connectix Corp., 203 F.3d 596, 609 (9th Cir. 2000), the Ninth Circuit determined that an emulator for Sony’s PlayStation did not infringe on Sony’s copyright because that emulator fell under fair use. Courts typically consider four factors for determining whether fair use applies: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market value of the copyrighted work. 17 U.S.C. § 107. Under the Ninth Circuit’s precedence at the time, fair use preserved the public’s access to elements in copyrighted computer codes. Sony Comput. Ent., 203 F.3d at 603. The court determined that the second factor weighed in favor of fair use because Sony’s program was not publicly available such that the defendant’s process of reverse engineering Sony’s program was necessary to replicate the program. Id. at 603-04. As to the first and fourth factors, the court concluded that the defendant’s emulation program was transformative because it “afford[ed] opportunities for game play in new environments” such that “the [emulator was] a legitimate competitor in the market for platforms on which Sony and Sony-licensed games [could] be played.” Id. at 606-07. Accordingly, the court concluded that the emulation of Sony’s PlayStation was protected under fair use. Id. at 609.

That reverse engineering approach was codified by the Digital Millennium Copyright Act (DMCA) as 17 U.S.C. § 1201(f), which generally allows for reverse engineering of a computer program “for the sole purpose of . . . achiev[ing] interoperability of an independently created program[.]” 

In contrast, piracy is understood as “[t]he illegal reproduction and distribution of copyrighted material on the Web.” That definition is distinguishable from the situation in the Sony Computer Entertainment case because there, the emulator was essentially a reverse engineered PlayStation that did not wholly copy Sony’s program. But, as some proponents have argued, emulation naturally leads to piracy because emulators do not have anti-piracy safeguards. The idea behind this is that a video game console, like the Nintendo Switch, will have safeguards that disallow someone from using a pirated copy of a game, but emulators do not have that same protection. Because emulators can run on pirated games, the argument is that emulators support piracy by doing so, resulting in lost profits for the developers of both games and consoles. In contrast, however, some argue that emulation is necessary to preserve the history of video games, along with letting people enjoy games or video game systems that are no longer produced or supported.

Why Yuzu was Targeted.

Many individuals have theorized that Yuzu was targeted because the program emulated a current-generation console in the Nintendo Switch, as opposed to other emulators which are focused on older consoles that are no longer supported. Others have pointed out that Nintendo’s original complaint did not explicitly argue that the Yuzu emulator was illegal, but rather because Yuzu’s developers showed how to break into Nintendo’s game files or even a Nintendo Switch. Additionally, the complaint also noted that Yuzu had a Patreon page (a website that allows people to support creators by donating on a monthly subscription basis) that provided subscribers with early access and unreleased features to the public – in short, that Tropic Haze was profiting from Yuzu. 

Whatever the reason, Nintendo’s actions have already had wide effects on other emulators. For example, Tropic Haze was also developing “Citra,” a 3DS emulator, but under their settlement agreement with Nintendo, Citra has also been discontinued. Another Nintendo console emulator, “DraStic” (for the Nintendo DS), used to be a paid app on Google Play but has since been free to download. 

All of this is a signal that Nintendo, and perhaps other companies, may seek to be more litigious with emulators. Although the DMCA and case law may allow certain forms of emulation, clearly Nintendo is looking at other strategies to fight emulators. For example, when the Dolphin emulator was seeking to be added to the Steam storefront, Nintendo told Steam that Dolphin did not comply with the DMCA because Dolphin used Nintendo’s encryption keys. Dolphin disputed that determination, but Steam refused to allow Dolphin on its storefront until Dolphin and Nintendo could reach an agreement. Currently, Dolphin is still available on the Internet for download and use. Whatever the case, individuals and emulators should be wary about Nintendo’s – and other video game company’s – recent efforts in combating emulation and privacy.

Is Trade Secret Law the New Patent Law?

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Exploring Alternate Avenues to Patent Protection of AI-Designed Pharmaceuticals

By: Anushka Parihar

Artificial intelligence (AI) continues to revolutionize industries worldwide. A rapidly evolving application of AI is now emerging in the pharmaceutical industry, resulting in AI-designed pharmaceuticals. 

Many businesses use AI and machine learning algorithms as a tool to sift through large databases of data to identify potential drug targets and design molecules that interact with those targets. AI is also utilized to promote the efficiency of clinical trials by predicting the efficacy of untested drugs. Consequently, AI is an essential tool in creating therapeutics for a wide range of human conditions.

The emergence of AI as a key tool for drug discovery sparks questions about how to afford intellectual property protections to AI-designed drugs. 

Patentability of AI-Designed Pharmaceuticals

Patent law has traditionally been the main source of IP protection in the pharmaceutical industry. Patent protection is important to sustained progress in this field, where competition and profit is key. The research and development process for creating drugs is lengthy, complex, and expensive. Without the 20-year monopoly afforded by patent protection, pharmaceutical companies may not have the ability to fund their research, thereby losing the economic incentive that drives drug innovation.

The United State Patent and Trademark Office (USPTO) released guidelines for AI patentability in February 2024. These guidelines largely follow the Federal Circuit’s holding in Thaler v. Vidal that only natural persons can be inventors, and therefore, AI cannot be named as an inventor in a patent application. Although this does not preclude AI-assisted inventions from patentability, it does pose a significant barrier in cases where a human did not provide a significant contribution to the invention. Courts are directed to evaluate the significance of human contribution on an individual basis but simply owning or overseeing AI is not enough to contribute to the invention. 

Even though some actors may still be able to assert that their AI-designed pharmaceuticals are patentable, the lack of case law makes it difficult to predict how the USPTO and the courts will rule on issues regarding patent protection of AI-designed drugs. Due to the recent implementation of the patent guidelines, it may take three to five years to get concrete insight into what constitutes significant human involvement in AI-assisted inventions. 

This leaves a large problem for companies and inventors who depend on patent protection to recoup their sizable investments into drug discovery. As such, alternate intellectual property protections must be considered.

Trade Secret Law as a Possible Solution 

The Defend Trade Secrets Act defines a trade secret as information that derives independent economic value from not being generally known or readily ascertainable. Trade secrets are protected under both federal and state law and are enforced domestically and globally. There is no formal registration or validation process. Most importantly, there are currently no requirements for human creators and inventors in trade secret law. 

These characteristics make trade secret protection an excellent avenue for protecting AI-designed drugs. Since information generated by AI is not generally known or readily ascertainable, it is novel information gathered by the AI tool using set inputs. In fact, AI’s capacity to find patterns and create formulas that are not easily understandable to people underscores its immense potential in the pharmaceutical sector. 

To be a valid trade secret, the creator must have taken reasonable measures to keep sensitive information confidential. As long as businesses and collaborators are protecting the various inputs, outputs, and algorithms used by AI tools, they should be able to claim trade secret protection. Trade secret law also provides for remedies in the event of misappropriation, which occurs when a trade secret is acquired by improper means or disclosed without consent. 

Of course, no solution comes without its own issues. Replacing patent protection with trade secret protection isn’t a complete answer. Trade secret law does not afford protection when information is acquired through reverse engineering, independent development, or instances where the trade secret becomes general industry knowledge. Due to this restriction, companies may be unable to claim trade secret misappropriation when others decipher and subsequently replicate AI-assisted processes that led to the creation of a novel drug. 

Additionally, pharmaceutical companies often rely on their patent portfolios to build credibility and attract ongoing investments. These portfolios are considered intangible assets and can increase a company’s valuation in the market. While trade secrets absolutely contribute to a company’s intellectual property portfolio, they tend to be considered invisible components, as any disclosure outside of permissible limits is considered misappropriation and leads to the loss of a trade secret. In contrast, patent portfolios, which include patents that are necessarily published and fully disclosed, are easily valued and understood. As a result, trade secret law may not be a good replacement to patent law in terms of building a portfolio to further a company’s financial goals. This consequence is of particular concern due to the significant investment in research and development that is vital to the pharmaceutical industry. 

While replacing patents with trade secrets may not be the most viable long-term solution, it seems to be one of the only ways for businesses to gain intellectual property protections for AI-assisted inventions. In light of the new AI-related patentability requirements which may preclude patent protection, drug companies may want to start turning to trade secret law to protect their novel pharmaceuticals. 

Shelving the dream of an online library? Hachette v. Internet Archive goes to the Second Circuit

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By: Zachary Blinkinsop

The opening chapter: COVID-19 and the National Emergency Library.

With the COVID-19 lockdowns of early 2020 slamming library doors shut, students and researchers found themselves struggling to access critical educational materials. Libraries, like many institutions, scrambled to adapt to the unprecedented challenges posed by the pandemic. Many librarians responded by espousing the use of copyrighted materials in remote education and research. They cited the doctrine of fair use which protects certain unlicensed uses of copyrighted materials without permission from the rightsholder. Fair use can protect the use of copyrighted materials in a range of contexts, including in research, education, news reporting, and criticism.

The main character in today’s story, an online library, may have pushed the limits of fair use too far. Even before the pandemic, the Internet Archive ran a digital library in compliance with the principles of controlled digital lending. Controlled digital lending (CDL) is a novel legal framework that would permit libraries to digitize their physical books and to lend those digital copies in a manner analogous to traditional lending practices. Under the CDL framework, a library needs to maintain an “owned to loaned” ratio, lending only as many digital copies of an item as it legally owns. The legal theory of CDL had been largely untested, and legal scholars held a wide range of opinions about whether courts would broadly hold CDL to comport with fair use.

In March of 2020, the Internet Archive launched its National Emergency Library to support “emergency remote teaching, research activities, independent scholarship, and intellectual stimulation” while schools and libraries were closed due to the pandemic. It temporarily allowed multiple users to check out the same digital copy simultaneously, disregarding the “owned to loaned” ratio prescribed by the CDL framework. This sparked controversy.

The plot thickens: a lawsuit filed.

Publishers had already been taking aim at controlled digital lending programs. The Authors Guild argued that “copyright law does not support the practice of even true, traditional libraries offering unauthorized scans of books to its users on an e-lending basis…” The National Emergency Library’s flouting of CDL’s permissive framework crossed an implicit redline for publishers. In June of 2020, Hachette, HarperCollins, Wiley, and Penguin Random House sued the Internet Archive in the Southern District of New York for “willful mass copyright infringement.” In their complaint, publishers eviscerated the underpinnings of CDL, “the rules of which”, they wrote, “have been concocted from wholecloth and continue to get worse.”

In its response, the Internet Archive insisted that the National Emergency Library qualified under fair use as it offered a noncommercial, educational service to the public during a national emergency. It further maintained that a digital library should be treated like a traditional library: “Contrary to the publishers’ accusations, the Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world.”

The future of controlled digital lending and the viability of online libraries was at stake in the case.

How does fair use apply to controlled digital lending?

Section 107 of the Copyright Act directs courts to consider four factors when evaluating a fair use defense to a claim of copyright infringement. A court must balance (1) the purpose of and character of the use, including whether it innovates in any way and whether it is for a commercial or non-profit purpose; (2) the nature of the copyrighted work; (3) the amount of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the market value of the copyrighted work. Courts adjudicate fair use claims on a case-by-case basis; an activity that qualifies as fair use in one set of circumstances may not qualify under a different set of facts.

Capitol Records v. ReDigi, a case decided in 2013, foreshadowed the outcome of Hachette v. Internet Archive. ReDigi was a service that facilitated the resale of digital files originally purchased from the iTunes store. In that case, the court held that ReDigi’s resale of digital music files fell “well outside the fair use defense.” Running through the four-step test, the court found that (1) uploading and distributing digital files for sale does not add anything new to a copyrighted work; (2) copyright protections are intended to protect musical recordings; (3) transmitting a work in its entirety usually negates a fair use defense; and (4) ReDigi’s sales obviously undercut Capitol Records’ profits.

Although ReDigi’s marketplace was commercial in nature, an obvious difference from the nonprofit intent of the National Emergency Library, the other facts broadly aligned. The National Emergency Library arguably did not innovate the use of copyrighted books. Copyright protections clearly protect rightsholders’ interests in published books. The books offered through the National Emergency Library were transmitted in whole, and this arguably undercut the publishers’ profits from ebook sales.

An open-and-shut case? The Second Circuit enters the plot.

Judge John G. Koeltl held that the Internet Archive’s National Emergency Library failed all four factors of the fair use test. He wrote in his opinion that “IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction.” The opinion was a resounding victory for publishers.

The Internet Archive promised to continue fighting. The founder of the Internet Archive, Brewster Kahle, framed the case as a battle for free access to information within a wider war for global democracy: “Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.”

On December 15, 2023, the Internet Archive filed its opening brief to the U.S. Court of Appeals for the Second Circuit. In the brief, the Internet Archive asks the Court to reverse the lower court’s decision and to hold that its controlled digital lending is fair use. The Internet Archive is arguing that the lower court erred in applying the four-factor test because the court “failed to grasp the key feature of controlled digital lending: the digital copy is available only to the one person entitled to borrow it at a time, just like lending a print book.” The Internet Archive says that the court’s misunderstanding particularly tainted its analysis of the first and fourth factors. For example, it argues that the court’s analysis of the fourth factor did not take into account expert testimony indicating that “lending is not a substitute for Publishers’ ebooks and has no effect on Publishers’ markets.”

The Second Circuit’s decision in this case will shape the future of controlled digital lending and the ongoing debate surrounding fair use and access to information in the digital era. Librarians, publishers, and legal scholars will be watching closely, waiting for the next major development in the application of free use to a rapidly evolving digital world.

Stay tuned for the next chapter in this story.

Gene Editing and IP Battles: The Fight for CRISPR/Cas-9 Patent Rights

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By: Bethany Butler

Gene editing technologies have the potential to greatly influence medicine and impact future therapies to treat debilitating conditions. Gene editing research seeks to “modify genes of living organisms to improve our understanding of gene function and develop ways to use it to treat genetic or acquired diseases.” One gene editing tool is the CRISPR/Cas-9 system, which allows for precision genome editing by cutting DNA in targeted locations for replacement. The first gene editing therapy utilizing CRISPR/Cas-9, called Casgevy, was approved by the Food and Drug Administration (FDA) in December of 2023. Casgevy is a treatment for patients with sickle cell disease, an inherited blood disorder that may cause painful symptoms and require lifelong interventions.

The emergence of CRISPR/Cas-9 Technology

The history of the CRISPR/Cas-9 system’s discovery and application largely involves two prominent research teams battling for its intellectual property rights. One team (“the Broad Institute”) hails from molecular biologist Feng Zhang of the Broad Institute, Harvard University, and the Massachusetts Institute of Technology; the other (“Charpentier and Doudna”) represents researcher Emmanuelle Charpentier of the Max Planck Institute for Infection Biology, Jennifer Doudna of the University of California, Berkeley, and the University of Vienna. Both teams have found success with their CRISPR/Cas-9 systems. In 2020, Emmanuelle Charpentier and Jennifer Doudna won the Nobel Prize in chemistry for the team’s 2012 discovery of the Cas-9 enzyme’s role in the CRISPR process. 

The two groups have not existed in harmony though, as patent battles between them stem from each groups’ 2012 US Patent and Trademark Office (“USPTO”) filings. Both teams filed applications to protect their respective gene editing tools, and unless the teams claimed distinct inventions regarding the use of the CRISPR/Cas-9 technology in human genomes, the USPTO would not allow patent protection to extend to both. 

Patent Protections of Gene Editing Technology

There are three types of patents that an inventor may file with the USPTO: utility, design, and plant. Gene editing technologies, like the CRISPR/Cas-9 system, often fall under the utility patent category. Utility patents are useful, new, and non-obvious. The non-obvious requirement refers to if a person of ordinary skill in the art would likely predict the invention by combining prior art references. CRISPR/Cas-9 patent rights come with limited monopolies, the potential for patent royalties, access to license the technology for future therapies in human cells, like the newly approved sickle cell therapy. 

Charpentier and Doudna’s May 2012 patent application demonstrated the use of this technology but did not go so far as to claim its use in eukaryotic cells (i.e. CRISPR/Cas-9 gene editing in human cells). Conversely, the Broad Institute demonstrated the use of this technology specifically in eukaryotic cells in their December 2012 patent application. The Broad Institute’s patent application was approved on April 15, 2014, and the team received the first patent for a method of altering eukaryotic cells using the technology. 

The CRISPR/Cas-9 Patent Fight

The Broad Institute, led by molecular biologist Feng Zhang, prevailed over Doudna and Charpentier regarding patent rights related to the CRISPR/Cas-9 technology. The main issue over these rights is which team developed the use of the CRISPR/Cas-9 gene editing in the modification of eukaryotic genomes.

Over the last 10 years, the two research teams have appealed various patent decisions, with the Patent Trials and Appeals Board (PTAB) and the Federal Circuit continually ruling in favor of the Broad Institute. For example, in a 2017 appeal, the Federal Circuit confirmed the PTAB’s finding that the Broad Institute’s claims were non-obvious regarding “the extent to which the art provided instructions for applying the CRISPRCas9 technology in a new environment”. The latest decision was on February 28, 2022, confirming the Broad Institute’s team was the first to invent the technology for modifying genomes in human cells. The decision stemmed from earlier interference claims holding that the Broad Institute’s patents claimed distinct subject matter compared to Doudna and Charpentier’s claims. Currently, the Broad Institute and Zhang’s team has prevailed in the patent space for the rights to CRISPR/Cas-9 gene editing technology in eukaryotic cells and now are able to license this technology for therapeutic applications. 

The CRISPR/Cas-9 Technology In Action Today

The Broad Institute licensed its technology to Editas Medicine in 2014. Vertex Pharmaceuticals, the pharmaceutical company that developed the sickle cell therapy, Casgevy, reached a licensing deal with Editas Medicine in December 2023. This deal pertains to the use of the CRISPR/Cas-9 technology in the Casgevy treatment and other sickle cell therapies. Individuals with sickle cell disease inherit genes that encode for abnormal hemoglobin production resulting in abnormal red blood cells. The Casgevy treatment uses the CRISPR/Cas-9 technology to edit patients’ blood stem cells to increase the production of fetal hemoglobin, which is not affected by the sickle cell mutation, thereby diluting the affected sickled blood cells. The edited cells are then infused back into the patient and have the potential to treat the disease. For the use of this technology, Vertex Pharmaceuticals agreed to pay Editas Medicine $50 million dollars upfront and licensing fees through 2034 ranging from $10 million to $40 million dollars annually. 

The far reaches of gene editing technologies have the potential to transform medicine and better the lives of many. CRISPR/Cas-9 editing technology is a vital therapeutic tool in this space and the fight for its patent rights continues. With the rollout of novel therapies, U.S. patent law is the key to lucrative licensing deals for the victors in these CRISPR/Cas-9 patent wars.

Plot Twist: Understanding the Authors Guild v. OpenAI Inc Complaint

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By: Stella Haynes Kiehn

While George R.R. Martin remains hard at work on the final installments in the critically acclaimed A Song of Ice and Fire series; in July 2023, one tenacious fan used ChatGPT to finish the series in a fraction of the time. For fans who don’t feel the urge to read speculations, ChatGPT can also write entirely new stories set in the style and world of any author whose work exists on the internet. These AI-generated novels are only part of a growing issue about the use of copyrighted works to train Large Language Models (LLM) such as ChatGPT. Now, the authors are looking to reverse the narrative. In a complaint filed on Sept. 19, 2023, in the Southern District of New York, the Author’s Guild, the nation’s oldest and largest organization of writers, is suing Open.AI, the maker of ChatGPT, in a class action lawsuit.

The complaint alleges that OpenAI used the authors’ voices, characters, stories, etc. to train ChatGPT, which in turn allowed users to create unauthorized sequels and derivatives of their copyrighted works. Plaintiffs argue that OpenAI should have first obtained a licensing agreement to use their copyrighted works. Plaintiffs also seek a permanent injunction against OpenAI to prevent the alleged harms from reoccurring. All authors seek damages for the lost opportunity to license their works, and for the “market usurpation defendants have enabled by making Plaintiffs unwilling accomplices in their own replacement.” The named plaintiffs include David Baldacci, Mary Bly, Michael Connelly, Sylvia Day, Jonathan Franzen, John Grisham, Elin Hilderbrand, Christina Baker Kline, Maya Shanbhag Lang, Victor LaValle, George R.R. Martin, Jodi Picoult, Douglas Preston, Roxana Robinson, George Saunders, Scott Turow, and Rachel Vail.

At issue legally is Title 17 of the United States Code. The complaint brings claims under 17 U.S.C. §501 for direct, vicarious, and contributory copyright infringement. 17 U.S.C. §501 allows for copyright owners to sue for enforcement of their exclusive rights and 17 U.S.C. §106 sets forth a list of exclusive rights for copyright owners. Different plaintiffs allege different infringements upon the §106 rights, but all plaintiffs commonly allege ChatGPT’s ability to provide derivative works infringed on their copyrighted materials. Under 17 U.S.C. §101, “a ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” For instance, Plaintiff Martin alleges that “when prompted, ChatGPT generated an infringing, unauthorized, and detailed outline for an alternate sequel to A Clash of Kings, one of the Martin Infringed Works, and titled the infringing and unauthorized derivative “A Dance With Shadows,” using the same characters from Martin’s existing books in the series A Song of Ice and Fire.” Under U.S. Copyright Law, only a copyright owner may prepare, or authorize someone else to prepare, a derivative work from the copyrighted material. All plaintiffs also commonly allege ChatGPT’s ability to recite verbatim passages from the copyrighted works. Under 17 U.S.C 106, only copyright owners can create, or license the ability to create, direct copies of their work. However, it should be noted that at the time the complaint was filed, ChatGPT will no longer provide direct excerpts from copyrighted works.

Screen capture of the blog author’s attempt to engage ChatGPT with copyrighted content.

Although it is certain that ChatGPT has produced infringing work, how do we know that OpenAI knowingly trained ChatGPT on copyrighted materials? The complaint provides multiple reasons. First, until very recently, “ChatGPT could be prompted to return quotations of text from copyrighted books with a good degree of accuracy, suggesting that the underlying LLM must have ingested these books in their entirety during its ‘training.’” Second, the presence of derivative works on the internet created by ChatGPT suggests that it had access to the source materials. For example, author Jane Friedman discovered “a cache of garbage books” written under her name for sale on Amazon that were created by ChatGPT. Third, it is likely that OpenAI trained ChatGPT on copyrighted items because, as one group of AI researchers have observed, books are essential for chatbot development; “[b]ooks are a rich source of both fine-grained information, how a character, an object or a scene evolve through a story.” Finally, OpenAI has essentially confirmed this to be true, stating that their  “training” data is “derived from existing publicly accessible ‘corpora’ … of data that include copyrighted works.”

Open AI maintains that its actions were lawful. In a blog post responding to the filing of The New York Times v. OpenAI, a suit about using New York Times copyrighted materials to train ChatGPT, OpenAI argues that “based on well-established precedent, the ingestion of copyrighted works to create large language models or other AI training databases generally is a fair use.” The Library Copyright Alliance (LCA) also supports a fair use argument, pointing to the history of courts applying the US Copyright Act to AI. Fair use is a legal doctrine that permits the unlicensed use of copyright-protected works in certain circumstances, such as for parody, comment, or criticism. The LCA focuses on “the precedent established in Authors Guild v. HathiTrust and upheld in Authors Guild v. Google.” Notably, in Authors Guild v. Google, the US Court of Appeals for the Second Circuit held that Google’s mass digitization of a large volume of in-copyright books to distill and reveal new information about them was a fair use. The LCA argues that “while these cases did not concern generative AI, they did involve machine learning” and the fair use precedents could summarily be applied.

Despite the plaintiff’s complaints about how AI is currently being used, the complaint specifically states that the “plaintiffs don’t object to the development of generative AI”.The complaint simply asserts that “defendants had no right to develop their AI technologies with unpermitted use of the authors’ copyrighted works. Defendants could have “‘trained’ their large language models on works in the public domain or paid a reasonable licensing fee to use copyrighted works.” In fact, the complaint specifically recognizes that OpenAI’s chief executive Sam Altman has told Congress that he shares Plaintiffs’ concerns. According to Altman, “Ensuring that the creator economy continues to be vibrant is an important priority for OpenAI. … OpenAI does not want to replace creators.”

Unfortunately for any curious Game of Thrones fans out there, the ChatGPT produced novels have been removed due to the pending lawsuit. However, as AI Chatbots grow more powerful, and users grow more adept, it is undoubtedly true that further lawsuits similar to this one will occur. Open AI amended the complaint in December 2023 to include Microsoft, an investor of OpenAI. The complaint now alleges that “OpenAI’s ‘training’ its LLMs could not have happened without Microsoft’s financial and technical support arising from OpenAI’s use of their copyrighted works to train ChatGPT.” The inclusion of Microsoft, a powerful defendant, against the Author’s Guild, a prominent litigant, creates the potential for this case to have far-reaching ramifications for both copyright holders and AI developers.