Open AI reply to amended complaint Court Filing Kandis A. Westmore, November 3, 2023 is part of . You can jump to any part in this filing . This is part 12 of 13. HackerNoon’s Legal PDF Series here II. ARGUMENT G. Plaintiffs Fail to State a Claim for Negligence Plaintiffs have not adequately pled that OpenAI owe them any duty of care, as they would need to in order to state a claim for negligence. In their Opposition, Plaintiffs contend that OpenAI’s duty arises from Plaintiffs’ open source licenses and their unspecified “special relationship.” (Opp. at 24-25.) Neither is true under the circumstances here. Plaintiffs’ argument that “a duty may arise out of a contract” (id. at 24) ignores subsequent California case law that imposed an independent-duty requirement for tort claims predicated on a breach of contract. Plaintiffs’ cited authority is inapplicable. Plaintiff cites 6 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 1201, which relies on Eads v. Marks, 39 Cal. 2d 807, 811-12 (1952) (where the California Supreme Court recognized a tort cause of action based on negligent failure to perform contractual duties), but recent decisions raise serious doubts about the viability of Eads. See Peregrine Pharms., Inc. v. Clinical Supplies Mgmt., Inc., No. SACV 12-1608 JGB (ANx), 2015 WL 13309286, at *8 n.11 (C.D. Cal. June 22, 2015) (observing that “the continued relevance of Eads is somewhat questionable”); Britz Fertilizers, Inc. v. Bayer Corp., No. 1:07-cv-00846-OWW-SMS, 2008 WL 341628, at *11 (E.D. Cal. Feb. 5, 2008) (determining that “Eads has been refuted by later California case law that establishes the independent duty requirement”). In Britz, the court highlighted three later-decided California Supreme Court cases that held “conduct amounting to a breach of contract only becomes tortious when it also violates a duty independent of the contract arising from principles of tort law.” See 2008 WL 13309286, at *7-9 (citing Aas v. Super. Ct., 24 Cal. 4th 627 (2000); Elrich v. Menezes, 21 Cal. 4th 543 (1999); and Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal. 4th 85 (1995)). Likewise, Plaintiffs cite Buxbom v. Smith, 23 Cal. 2d 535 (1944), but there the court did not hold that a breach of contract could support a finding of duty. See Buxbom at 548. Because Plaintiffs did not allege an independent duty distinct from any obligations under the open source licenses, they fail to state a claim for negligence. (See Opp. at 24.) Further, Plaintiffs have neither cited authority for finding a special relationship under these circumstances, nor plausibly alleged that the balance of the six factors they cite in their brief supports such a relationship. (See id. at 24-25 (citing Vera Mona, LLC v. Dynasty Grp. USA LLC, No. EDCV 20-2615 JGB (KKx), 2021 WL 3623297, at *4 (C.D. Cal. Apr. 15, 2021) (courts look to six factors to determine whether a special relationship exists: “(1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant’s conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct and (6) the policy of preventing future harm”)).) These factors do not support any “special relationship” based on OpenAI’s alleged use of Plaintiffs’ code for training AI. The open source nature of Plaintiffs’ code makes it unlikely that this use was intended to affect Plaintiffs, or that it was foreseeable and certain that Plaintiffs would suffer injury. Indeed, the purpose of open source is to make code publicly accessible for anyone to use and modify, as well as foster collaboration. Moreover, Plaintiffs have not cited any authority finding that using publicly available data to train and develop generative AI products is morally wrong or violates a public policy preventing such use. (See Opp. at 25.) Plaintiffs primarily argue that “to the extent Copilot generates a duty because it hosts Plaintiffs’ open source code,” that would also extend to OpenAI because Copilot is alleged to be a joint venture between GitHub and OpenAI. (Opp. at 25.) But Plaintiffs cite no cases supporting their argument that entering into a business relationship with a separate entity that hosts publicly available code somehow creates a duty to Plaintiffs. The three cases that Plaintiffs do cite are inapposite. In Witriol v. LexisNexis Group, the court ruled that plaintiffs adequately pled the duty element of negligence by alleging that “[a]s custodians of the Representative Plaintiff’s and the Class Members’ personal and confidential information,” defendants owed a duty to prevent unauthorized access to private and sensitive data. No. 05-CV-02392 MJJ, 2006 WL 4725713, at *1, 8 (N.D. Cal. Feb. 10, 2006) (emphasis added). Similarly, Bass v. Facebook, Inc. held that Facebook owed its users a duty of care because “some of the information [published on Facebook] was private.” 394 F. Supp. 3d 1024, 1039 (N.D. Cal. 2019). Neither case supports finding a duty where an entity merely “possess[es]” publicly available data of individuals with whom they lack any relationship. (See Opp. at 25.) Likewise, in In re Sony Gaming Networks & Customer Data Security Breach Litigation, the court found that defendant owed a “legal duty to safeguard consumer’s confidential information entrusted to a commercial entity.” 996 F. Supp. 2d at 955, 966 (S.D. Cal. 2014) (emphasis added). That is not the case here. Because Plaintiffs’ code is available to the public, no similar duty exists. This claim should be dismissed. Continue Reading . Here About HackerNoon Legal PDF Series: We bring you the most important technical and insightful public domain court case filings. This court case 3:22-cv-06823-KAW retrieved on September 2, 2023, from is part of the public domain. The court-created documents are works of the federal government, and under copyright law, are automatically placed in the public domain and may be shared without legal restriction. Storage.Courtlistener

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OpenAI Court Case: Do the Plaintiffs Have a Claim for Negligence?

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