Plaintiffs' Proposed Injunction Would 'Paralyze' OpenAI's Defense, Says Opposition

A Feb. 16 motion for injunction by the plaintiffs in three nearly identical copyright class actions that were consolidated Nov. 9 in In Re: OpenAI ChatGPT Litigation requests “extraordinary and drastic relief,” said defendant OpenAI in its opposition to the motion Thursday (docket 3:23-cv-03223) in U.S. District Court for Northern California in San Francisco.

The opposition asserts that the plaintiffs in Tremblay et al. v OpenAI, Silverman et al v. OpenAI and Chabon et al v. OpenAI seek an injunction prohibiting OpenAI entities from defending themselves in an action filed in U.S. District Court for Southern New York in Manhattan. The California court should deny their motion, “which defies precedent, fairness, and common sense,” said the opposition.

The San Francisco court ordered the parties Oct. 6 to submit briefing in support of their proposed case schedules, said the defendant’s filing. OpenAI’s brief argued that summary judgment should be sequenced prior to class certification, noting a “closely analogous case” involving Google Books, in which the 2nd Circuit reversed a district court’s grant of class certification as premature in Authors Guild v. Google.

In Paul Tremblay's and related actions, plaintiffs argued that sequencing summary judgment prior to class certification “would be inappropriate ‘[i]n the absence of an express or implied waiver by the defendant’ of the so-called ‘one-way intervention rule,’” said OpenAI’s opposition. The court heard argument Nov. 8 and decided not to sequence summary judgment prior to class certification “for the time being,” inviting OpenAI to revisit the item at a later date, it said.

The Northern California court dismissed four of the six claims in the plaintiffs’ complaint and ordered them to file an amended complaint by March 13, said OpenAI’s opposition.

On Sept. 19, a different group of authors filed a class action -- Authors Guild vs. OpenAI -- in the Southern District of New York, and on Nov. 22, the parties to that action filed a Rule 26(f) report in which OpenAI -- the sole defendant at the time -- indicated it intended to file a motion under the first-to-file rule to dismiss the action or transfer it to California. Alternatively, if the action remained in New York, the court should sequence summary judgment prior to class certification, said the defendant then.

Yet a different group of authors filed another putative class action, Sancton v. OpenAI, also in the New York court, naming as defendants OpenAI entities and Microsoft. On Jan. 19, the Authors Guild and Sancton parties filed a joint stipulation in which OpenAI and Microsoft defendants agreed not to bring a motion to dismiss under the first-to-file rule, said OpenAI’s opposition. The parties agreed summary judgment would be briefed before plaintiffs’ motion for class certification, and the court endorsed the stipulation Jan. 22, it said. Plaintiffs in the New York actions filed a consolidated complaint on Feb. 5.

The New York Times Co. filed an action vs. multiple OpenAI entities and Microsoft on Dec. 27 (see 2312270044), assigned to the same judge as the Authors Guild and Sancton actions. OpenAI’s responsive pleading is due Monday.

On Feb. 8, three weeks after the SDNY defendants stated their intent not to transfer those cases to California, plaintiffs filed the motion asking the NDCA court to enjoin OpenAI from proceeding in subsequently filed actions, including Authors Guild, Sancton and The New York Times, said the opposition. Plaintiffs asserted that their claim “was the first in the United States to allege that OpenAI committed direct copyright infringement” and that the subsequently filed actions are “copycat[s],” said the filing.

The plaintiffs’ motion also argued that plaintiffs and class members in the SDNY actions are “subsumed by the class asserted in the Tremblay action,” which “which purports to cover ‘[a]ll persons or entities domiciled in the United States that own a United States copyright in any work that was used as training data for the OpenAI Language Models,’” said the opposition. They then filed a motion seeking to intervene in the SDNY actions “'for the limited purpose of’ moving the Court to dismiss, stay, or transfer those actions under the first-to-file rule,” the opposition said.

The injunction plaintiffs request in their motion is “inappropriate and unprecedented,” said the opposition. Plaintiffs seek to enjoin OpenAI from defending itself, “but nothing in the proposed injunction prevents the plaintiffs in the SDNY actions from continuing to prosecute their claims,” it said. The order they propose would place OpenAI “in an impossible position: complying with the proposed injunction would require OpenAI to ignore court-ordered deadlines in the SDNY actions -- including, for example, its obligation to respond to pending discovery requests and to file a responsive pleading in the New York Times action,” it said. Plaintiffs don’t explain how OpenAI could comply with that injunction “without triggering a motion for default judgment,” it said.

Only in “‘the most unusual cases’ is injunctive relief against another district court proceeding appropriate,” said the opposition, referencing the “principle of comity” that requires district courts to “exercise care to avoid interference with each other’s affairs.” OpenAI is the defendant in both sets of lawsuits, and none of the cases plaintiffs cited in their motion supports the idea that a federal court can “reach beyond its own docket and enjoin a defendant from defending itself in a separate action brought against it in a separate district,” it said.

The injunction plaintiffs seek “would paralyze OpenAI’s defense in a group of critically important cases that will decide the fate of an industry that promises to ‘add the equivalent of $2.6 trillion to $4.4 trillion annually’ to the global economy,” said the defendants’ opposition. Plaintiffs’ desire to be “the first to litigate that issue notwithstanding their self-imposed resource constraints is not a sufficient reason” for the court to grant the “extraordinary and unprecedented relief” their motion requests, it said.