AI Fair-Use Ruling Lays First Marker as OpenAI, Meta Cases Loom

Aaron Moss, Litigation Partner and author of Copyright Lately, was quoted by Bloomberg Law, noting that Judge Bibas’ finding—that Ross Intelligence’s use wasn’t transformative—will likely serve as a key reference for attorneys litigating the many pending generative AI cases. Aaron highlighted that, unlike Ross’ product, which was designed as a direct market substitute for Westlaw, generative AI models like ChatGPT serve broader purposes, a difference that could be key in future legal arguments.

Excerpts:

Bibas’ conclusion that Ross’ use wasn’t transformative shows AI copyright cases are “not simply a question of, ‘does the output infringe,’” said Aaron Moss of Greenberg Glusker Fields Claman & Machtinger LLP.

“That is the part of the case that I do think that—notwithstanding the caveats—lawyers are going to be looking to in litigating the 40-plus other cases that do involve generative AI,” he added.

Unlike Ross’ software, AI models such as ChatGPT can be used for many purposes, Moss said, even if it can occasionally spit out copies of articles as The New York Times has alleged.

“It’s certainly not a substitute in the same way that the court seemed to think that Ross’ tool was,” he said. “That obviously gives defense lawyers in these other cases a point of differentiation.”

Resources

• Bloomberg Law