Rift Develops Between Counsel for Various Microsoft, OpenAI Plaintiffs

Grant Herrmann, the law firm representing authors Nicholas Basbanes and Nicholas Gage in their Jan. 5 copyright infringement lawsuit against Microsoft and OpenAI, is being sidelined by counsel for the other 29 authors and the Authors Guild, it wrote U.S. District Judge Sidney Stein for Southern New York in Manhattan in a letter Monday (docket 1:23-cv-08292).

The consolidated class action filed Friday by the 29 authors and the Authors Guild combines the two previously separate complaints brought against Microsoft and OpenAI by fiction and nonfiction authors, but not the action brought by Basbanes and Gage (see 2402050037). Grant Herrmann told the judge it wasn’t for any lack of trying.

For the past week, Grant Herrmann agreed to every request other counsel made “in the interests of private ordering,” not burdening the court, and working with other counsel “cooperatively and in good faith,” said the letter. But other counsel wouldn’t "take yes for an answer," it said.

Grant Herrmann now asks the judge to set a briefing schedule to resolve its Jan. 22 motion asking for consolidation of the Basbanes-Gage action with the other two cases, said the letter. It continues to support other counsel’s pending motion to serve as interim co-lead counsel so long as a steering committee is created that allows Grant Herrmann to ensure that the interests of Basbanes and Gage, and the interests of those like them, “are fully represented,” it said.

In retrospect, it appears that other counsel never intended to “work cooperatively” with Grant Herrmann “to ensure that its clients’ interests, and the interests of those like them, are represented,” said the letter. Their conduct was "inconsistent" with their assurance that they would work cooperatively with other law firms, it said.

Basbanes and Gage, with Grant Herrmann’s help, “commenced their own action on behalf of themselves and all others similarly situated” because “certain elements” of the other two complaints didn’t address “serious concerns they, and certainly many like them, have about this case,” said the letter. Already, by consolidating, the other two cases “have remedied at least one of those concerns -- namely, that there should be no bifurcation of this dispute based on whether the registered copyrighted work is fiction or nonfiction,” it said.

The Jan. 22 motion also identifies other concerns, but Basbanes and Gage “otherwise support the goals articulated” in the other two complaints, said the letter. That’s why Basbanes and Gage support other counsel’s motion to serve as interim co-lead counsel, “but with the assurances that their interests, and the interests of those like them,” are represented by Grant Herrmann’s service “on an appropriate steering committee,” it said.