OpenAI Argues That the Plaintiffs' 1202 Claim Should Be Dismissed

II. ARGUMENT

C. Plaintiffs Fail to Plead a DMCA Claim Under Section 1202(b)

2. Plaintiffs fail to allege removal from identical copies.

In response to OpenAI’s authority from the Ninth Circuit that they must allege removal of CMI from identical copies (MTD at 12-14), Plaintiffs cite only to out-of-circuit cases that do not support their position. (See Opp. at 14-15.)

See Bounce Exch., Inc. v. Zeus Enter., Ltd., No. 15cv3268 (DLC), 2015 WL 8579023 (S.D.N.Y. Dec. 9, 2015) (addressing whether terms appearing in source code were CMI, not whether removal from non-identical copies falls under § 1202); ICONICS, Inc. v. Massaro, 192 F. Supp. 3d 254 (D. Mass. 2016) (addressing whether source code headers were CMI, not whether copy must be identical).

Plaintiffs next argue “[t]hat the emissions were not exact or identical is of no moment when the allegations make clear the Defendants copied Plaintiffs’ code in order to train Codex and Copilot.” (Opp. at 15.)

Plaintiffs appear to be arguing that the cases about identical copies are really about whether an inference of copying can be made, and that they do not apply where Plaintiffs have alleged copying of their original work in its original form such that an inference is not required.

(Id.)

But these cases aren’t about whether an inference is required—they are about whether excerpting or modifying a work constitutes removal of CMI at all, and hold that it does not. (MTD at 12-13.)

Finally, Plaintiffs selectively quote from the original summary judgment opinion in FrostTsujiArchitects v. Highway Inn, Inc. (Opp. at 15), leaving out the vital remainder of the quoted sentence: “‘Virtually identical’ plans could have been created by redrawing Frost-Tsuji’s plans and not including Frost-Tsuji’s copyright management information, but that would not involve removal or alteration of copyright management information from Frost-Tsuji’s original work.”

No. 13-00496 SOM/BMK, 2014 WL 5798282, at *5 (D. Haw. Nov. 7, 2014) (language omitted from Opp. bolded).

The Frost-Tsuji court did not “[make] plain” that copies could be non-identical, as Plaintiffs contend. (Opp. at 15.) Rather, the court found the opposite—that creating virtually identical plans without CMI would not constitute removal from an original work.

See Frost-Tsuji, 2014 WL 5798282 at *5. Plaintiffs also misread Dolls Kill, Inc. v. Zoetop Bus. Co., No. 22-cv-01463, 2022 WL 16961477 (C.D. Cal. Aug. 25, 2022), as demonstrating “the lack of identicality can only undermine the inference there was copying when no such allegations are made.” (Opp. at 15.)

Dolls Kill says no such thing, and in fact suggests that the DMCA should not be implicated at all here, where Codex or Copilot is generating nonidentical copies. 2022 WL 16961477, at *3 (“Re-creating another party’s work may be unlawful, but it does not necessarily implicate the DMCA because copying a work does not require the removal or alteration of CMI.”).

Because Plaintiffs have failed to plead removal of CMI and affirmatively allege nonidentical outputs, their § 1202 claim should be dismissed with prejudice.