‘GenAI’ Judges Favor Summary Judgment on Copyright, Not Fair Use
Developers of generative artificial intelligence models are facing claims of direct copyright infringement in federal district courts around the country. In these cases, where so much is riding on the affirmative defense of fair use, many of the generative AI defendants are hoping for a favorable ruling on summary judgment.
Bloomberg Law dockets research found 19 copyright lawsuits against generative AI defendants that are currently pending in federal district courts. These 19 cases are filed in four jurisdictions: the Northern District of California, the District of Delaware, the Southern District of New York, and the Middle District of Tennessee. The 11 judges overseeing these cases have varying degrees of experience deciding summary judgment motions involving copyright law, according to Bloomberg Law’s Litigation Analytics tool.
Judges Jed Saul Rakoff and Colleen McMahon, from the Southern District of New York, have each decided more than 20 summary judgment motions involving copyright law, making them the most experienced of the 11.
Some judges have little to no experience deciding summary judgment motions on copyright issues. For example, Judge Araceili Martinez-Olguin, who was appointed to the Northern District of California only a few months before the filing of the first of her OpenAI cases, has limited experience deciding summary judgment motions, with none involving copyright law, thus far. Likewise, Judge Margaret M. Garnett, who was appointed to the Southern District of New York in November 2023, hasn’t penned a summary judgment decision yet.
Despite their varying amounts of experience, it appears that the majority of the generative AI judges are willing to grant in whole or in part motions for summary judgment involving copyright law. However, only Judges Sidney H. Stein, Jon S. Tigar, Waverly D. Crenshaw, Jr., Rakoff, and McMahon have decided motions for summary judgment involving the affirmative defense of fair use. Only three found in favor of fair use, forecasting an uphill battle for generative AI defendants.
Armed with this kind of knowledge about a judge’s experience with copyright law, practitioners can determine how much information they may need to provide the judge presiding over their case.
GENERATE THE DATA
To replicate the research that was used for this article:
1. Visit Bloomberg Law’s Litigation Analytics page (Bloomberg Terminal subscribers: Run BLAW OUT <GO> and search for “Litigation Analytics”.)
Litigation Analytics is a tool that provides data-driven analytical information about federal district courts, federal district court judges, companies, law firms, and lawyers.
2. Select the tab for Judge, and search the case’s assigned judge, here, “Sidney H. Stein”.
3. Under Motion Outcomes, filter the motion type, motion outcome, date, and legal topics, as applicable.
4. Select “Summary Judgment” in the Motion Type filter.
5. Select “Copyright Law” in the Legal Topics filter, and click “Done”. If the specific legal topic doesn’t appear in the drop down menu, type it into the search bar. If the judge hasn’t decided a legal topic, the topic won’t be listed in the drop down menu or be searchable.
The results show a breakdown of how a judge has ruled and provide the relevant court opinions.
The resulting data can be used to quickly and efficiently identify cases that are pertinent to the issues at hand, and to shed light on how a judge may decide a dispositive motion.
Because Bloomberg Law’s research tools are regularly updated, users’ results when following these instructions may differ from the results generated for this article.
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