Recent Trends in Generative Artificial Intelligence Litigation in the United States

Although still in their infancy, a growing number of recently-filed lawsuits associated with generative artificial intelligence (AI) training practices, products, and services have provided a meaningful first look into how US courts may address the privacy, consumer safety, and intellectual property protection concerns that have been raised by this new, and inherently evolving, technology. The legal theories that have served as the basis of recent claims have varied widely, are often overlapping, and have included invasion of privacy and property rights; patent, trademark, and copyright infringement; libel and defamation; and violations of state consumer protection laws, among others.

To date, courts have appeared reluctant to impose liability on AI developers and have expressed skepticism of plaintiffs’ rhetoric around AI’s purported world-ending potential. Courts have also found a number of recent complaints to be lacking in the specific, factual, and technical details necessary to proceed beyond the pleadings stage. This alert aims to provide a snapshot of the current litigation landscape in the rapidly growing field of generative-AI law in the United States.

CURRENT LANDSCAPE

Privacy Cases

Over a two-week period in June and July, 2023, a number of federal class action lawsuits were filed in the US District Court for the Northern District of California, many by the same law firm, against the developers of some of the most well-known generative AI products on the market, including OpenAI, Inc. (OpenAI) and Alphabet Inc./Google LLC (Google).

On 28 June 2023, for example, in P.M. v. OpenAI LP1, an anonymous group of plaintiffs filed suit against OpenAI LP (OpenAI) and Microsoft, Inc. (Microsoft) alleging that OpenAI stole private and personal information belonging to millions of people by collecting publicly-available data from the Internet2 to develop and train its generative AI tools—including ChatGPT (an AI text generator), Dall-E (an AI image generator), and Vall-E (an AI speech generator). The plaintiffs allege that OpenAI’s practice of using datasets of information gathered from the Internet to train its generative AI tools constitutes theft, misappropriation, and a violation of their privacy and property rights. The complaint also includes claims for violations of the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act (CFAA), various state consumer protection statutes, and a number of common law claims. Emphasizing arguments that AI poses a danger to human civilization in the form of misinformation, malware, and even autonomous weapons systems, the plaintiffs seek injunctive relief, including the implementation of human oversight and human-developed ethical protocols for OpenAI’s products. In addition, plaintiffs seek various forms of class-wide damages and/or restitution on behalf of multiple classes that purport to include all persons whose personal information was used without permission.

On 11 July 2023, in J.L. v. Alphabet Inc.,3 the same plaintiffs’ firm as in P.M. filed a similar class action complaint against Google, asserting both privacy and copyright law violations. As with P.M., the plaintiffs raise theoretical concerns relating to the proliferation of AI.4 The plaintiffs in J.L. argued that many of Google’s generative AI products, including Bard (a text generator), Imagen and Gemini (two text-to-image diffusion models), MusicLM (a text-to-music tool), and Duet AI (a data visualization tool), all relied on training data that Google collected from the Internet. The complaint does note that Google was transparent and disclosed its data gathering practices, but suggested that Google should have explored other options for the development of training data, such as purchasing from the commercial data market. Additionally, and without any specific evidence, the plaintiffs argued that Google violated the Copyright Act because: (1) Google’s AI products allegedly used copyrighted text, music, images, and data for training purposes; and (2) the AI products themselves, as well as their expressive output, constitute infringing derivative works. Like the plaintiffs in P.M., the plaintiffs in J.L. are seeking broad injunctive relief aimed at restricting Google’s generative AI products. These plaintiffs are also seeking further specific relief with respect to their claims for copyright infringement, as well as various forms of class-wide damages related to its theories.