The New York Times Fails to Explain How ChatGPT's Responses Were Acts of Copyright Infringement

B. The Complaint Fails to State a Contributory Infringement Claim

Count IV attempts to hold OpenAI liable for “materially contribut[ing] to and directly assist[ing] with the direct infringement perpetrated by end-users of the GPT-based products.” Compl. ¶ 179. This claim relies on the doctrine of “contributory infringement,” a species of secondary liability that the Supreme Court has defined by reference to the Patent Act. 35 U.S.C. § 271(b); Sony, 464 U.S. at 435–41. To plead it, a plaintiff must allege: “(1) direct infringement by a third party, (2) that the defendant had knowledge of the infringing activity, (3) and that the defendant materially contributed to the third party’s infringement.” Dow Jones & Co., Inc. v. Juwai Ltd., No. 21-cv-7284, 2023 WL 2561588, at *3 (S.D.N.Y. Mar. 17, 2023) (cleaned up). Here, the acts of “direct infringement” alleged are the example outputs from the Complaint, discussed above. See supra 12. To proceed with Count IV, the Times must allege that OpenAI “had knowledge” of the Times’s creation of those outputs. Dow Jones, 2023 WL 2561588, at *3.

A defendant cannot be contributorily liable without “culpable intent,” and courts may not “imput[e] intent” solely based on the “characteristics or uses of a [] product.” Metro-GoldwynMayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 934 (2005). As the Supreme Court explained in Commil USA, LLC v. Cisco Sys., Inc., contributory patent infringement requires more than allegations that a defendant knew there “might” be infringement. 575 U.S. 632, 642 (2015). Instead, a plaintiff must allege that the defendant had actual knowledge of specific infringements.

Courts have consistently applied this same approach to copyright claims. Pleading a contributory copyright claim requires allegations that the defendant either had “actual knowledge of specific acts of infringement” or “took deliberate actions to avoid learning about the infringement.” Luvdarts LLC v. AT & T Mobility, LLC, 710 F.3d 1068, 1072 (9th Cir. 2013).[34] As the Fourth Circuit recently explained, this follows directly from Commil, as well as other foundational Supreme Court cases like Sony, 464 U.S. 417, and Grokster, 545 U.S. 913. See BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293, 308–10 (4th Cir. 2018) (allegations that defendant “should have known” insufficient). Courts in this district agree, rejecting allegations that defendants are “general[ly] aware[] that there are infringements” as insufficient.[35]

Here, the only allegation supporting the Times’s contributory claim states that OpenAI “had reason to know of the direct infringement by end-users” because of its role in “developing, testing, and troubleshooting” its products. Compl. ¶ 180. But “generalized knowledge” of “the possibility of infringement” is not enough. Luvdarts, 710 F.3d at 1072. The Complaint does not allege OpenAI “investigated or would have had reason to investigate” the use of its platform to create copies of Times articles. Popcornflix.com, 2023 WL 571522, at *6. Nor does it suggest that OpenAI had any reason to suspect this was happening. Indeed, OpenAI’s terms expressly prohibit such uses of its services. Supra note 8. And even if OpenAI had investigated, nothing in the Complaint explains how it might evaluate whether these outputs were acts of copyright infringement or whether their creation was authorized by the copyright holder (as they were here).

[34] The Second Circuit adopted this rule in Viacom Int’l, Inc. v. YouTube, Inc. for the parallel standard under 17 U.S.C. § 512. 676 F.3d 19, 35 (2d Cir. 2012) (requiring actual knowledge or “deliberate effort to avoid [] knowledge”). It also used a similar rule in the Lanham Act context in Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 107 (2d Cir. 2010) (“contributory [] liability” requires “contemporary knowledge of which particular [acts] are infringing”).

[35] Lefkowitz v. John Wiley & Sons, No. 13-cv-6414, 2014 WL 2619815, at *11 (S.D.N.Y. June 2, 2014) (dismissing claim); State Street Global Advisors Trust Co. v. Visbal, 431 F. Supp. 3d 322, 358 (S.D.N.Y. 2020) (same); see also Hartmann v. Popcornflix.com LLC, No. 20-cv-4923, 2023 WL 5715222, at *6 (S.D.N.Y. Sept. 5, 2023) (dismissing for failure to plead defendant “would have had reason to investigate the [] infringement”); Hartmann v. Apple, Inc., No. 20-cv-6049-GHW, 2021 WL 4267820, at *7 (S.D.N.Y. Sept. 20, 2021) (“general ability to discover” insufficient).