OpenAI Asks Court to Consolidate Newspapers’ Separate Infringement Lawsuits

OpenAI seeks the consolidation of the separate infringement lawsuits brought by the New York Times (see 2312270044) and eight newspapers (see 2404300034) because the two complaints are "functionally identical," said OpenAI’s memorandum of law Thursday (dockets 1:23-cv-11195 and 1:24-cv-03285) in support of its motion.

Microsoft joins in the motion to consolidate and will file a separate statement of joinder, said OpenAI’s memorandum. Both lawsuits allege that OpenAI and Microsoft are using, without permission or payment, millions of copyrighted newspaper articles to fuel the commercialization of their generative AI products.

There’s “no real dispute” over the benefits of consolidation, said the memorandum. Consolidation “promises consistent rulings on overlapping discovery and merits issues, and the elimination of duplicative discovery to alleviate significant burdens” on the parties, witnesses and the court, it said.

“Unsurprisingly,” the plaintiffs in both lawsuits agree, said the memorandum. Their only disagreement “concerns the schedule on which the consolidated case should proceed,” it said. The Daily News plaintiffs don’t object to consolidation, so long as the consolidated case schedule is based on a modest extension of about two months to the current Times schedule, in which fact discovery ends Sept. 17. The Daily News plaintiffs propose completing fact discovery in their case by November, “notwithstanding the fact there are eight plaintiffs scattered across the country whose works comprise 145,220 entries in a dataset allegedly used to train an accused version of GPT.6,” it said.

The plaintiff's position in the other lawsuit is more complicated, said the memorandum. The Times doesn’t oppose what it calls “coordination,” but it wants to stick to its current January summary-judgment deadline so that it can litigate fair use at the same time as the class-action plaintiffs in Authors Guild v. OpenAI (docket 1:23-cv-08292), it said.

Ignored in that position is that the deadlines in the Times case were set before it proposed trebling the number of works at issue, said the memorandum. Pending before the court is the Times’ proposal to add 7 million new works, atop 3 million existing works, into its litigation, it said.

“At bottom,” the newspaper plaintiffs’ proposed schedules are “infeasible and unworkable,” said the memorandum. Their desire to litigate on the same schedule as the book authors who have filed separate, earlier suits, “should not come at the cost of depriving OpenAI of the time needed to pursue and complete discovery on a timeline commensurate with the expanded scope of the claims and number of plaintiffs,” it said. OpenAI asks that the court grant the parties at least six months to complete fact discovery in the consolidated newspaper cases, it said.