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This litigation consists of twelve actions\npending in the Northern District of California and the Southern District of New York, as listed on\n\nSchedule A.\n\nMicrosoft Corporation, a defendant in several of the New York actions, supports\ncentralization in either the Northern District of California or the Southern District of New York,\nand asks that the MDL be assigned to an experienced transferee judge. Plaintiffs in the Millette\naction support centralization in the Northern District of California. All other responding plaintiffs\noppose centralization, though their alternative positions differ, Plaintiffs in the California class\nactions (Tremblay, Silverman, and Chabon) alternatively support the Northern District of\nCalifornia as the transferee district. Plaintiffs in the two New York class actions (Authors Guild\nand Alter) alternatively suggest the Southern District of New York as the transferee district.\nPlaintiffs in the New York \u201cNews\u201d cases (New York Times, Daily News, and Center for\nInvestigative Reporting) and the New York \u201cDMCA\u201d cases (Raw Story Media and The Intercept)\nalternatively suggest that, if an MDL 1s created, the News and DMCA cases should be centralized\nin the Souther District of New York.?\n\nOn the basis of the papers filed and the hearing session held, we find that the actions listed\non Schedule A involve common questions of fact, and that centralization in the Southern District\nof New York will serve the convenience of the parties and witnesses and promote the just and\n\n* Judge David C. Norton did not participate in the decision of this matter.\n\n! OpenAI, Inc.; OpenAI, L.P.; OpenAI OpCo LLC; OpenAI GP LLC; OpenAI LLC; OpenAI\nGlobal LLC; OAI Corporation LLC; OpenAI Holdings LLC; OpenAI Startup Fund I LLC;\nOpenA] Startup Fund GP I LLC; and OpenAI Startup Fund Management LLC (collectively,\nOpenAT}.\n\n* This alternative suggestion is a nonstarter because the News cases and the DMCA cases are\nalready pending in the Southern District of New York and thus lack the multidistrict character\nrequired by 28 U.S.C. \u00a7 1407{a),\n\n\fEee EE EEE ewe\n\nCase 3:23-cv-03416-AMO Document 72 Filed 04/21/25 Page2of5\nCase MDL No. 3143 Document 85 Filed 04/03/25 Page 2 of 5\n\n2.\n\nefficient conduct of this litigation. These actions share factual questions arising from allegations\nthat OpenAI and Microsoft used copyrighted works, without consent or compensation, to train\ntheir large language models (LLMs), such as GPT-4, which underlie defendants\u2019 generative\nartificial intelligence products, such as OpenAI\u2019s ChatGPT and Microsoft\u2019s Bing Chat (rebranded\nas Copilot), which can algorithmically simulate human reasoning and inference.\u2019 Each action will\ninvolve overlapping, complex, and voluminous discovery regarding how defendants trained and\ndesigned their LLMs.* Given the novel and complicated nature of the technology, there likely will\nbe overlapping experts across these actions. Centralization will eliminate duplicative discovery;\nprevent inconsistent pretrial rulings, particularly as to class certification; and conserve the\nresources of the parties, their counsel, and the judiciary.\n\nThe opposing plaintiffs focus on the differences among the claims in these actions. For\ninstance, they contend class action cases are brought by authors of fiction and non-fiction works\n(primarily novels) who allege that their copyrighted works were infringed when defendants used\nthem as input in the training of their LLMs whereas the News plaintiffs assert that millions of their\ncopyrighted works (newspaper articles) were infringed both when used as input in the training of\ndefendants\u2019 LLMs and by the LLMs output\u2014specifically, that defendants\u2019 artificial intelligence\nproducts generate verbatim and detailed summaries of news content. Plaintiffs also argue that the\nDMCA plaintiffs, unlike plaintiffs in the other cases, do not allege copyright infringement.\nInstead, they allege that defendants violated the Digital Millennium Copyright Act (DMCA), 17\nU.S.C. \u00a7 1202, which, inter alia, prohibits the removal of copyright management information (such\nas author, title, copyright, and terms of use information) from a work. Finally, plaintiffs in the\nMillette action, unlike the other plaintiffs, seek to represent a putative class of YouTube content\ncreators whose videos (or, more specifically, transcripts of those videos) were used to train\ndefendants\u2019 LLMs.\n\nThese differences in claims and the underlying material alleged to be infringed do not\npresent a significant obstacle to centralization given the substantial overlap in factual questions\n\n3 According to the parties, LLMs are algorithms that predict words that are likely to follow a given\nstring of text based on the potentially billions of examples used to train it. LLMs encode the\ninformation from a training. corpus that they use to make these predictions as numbers called\n\u201cparameters.\u201d There are, for example, approximately 1.76 trillion parameters in the GPT-4 LLM.\nTraining an LLM allegedly involves storing encoded copies of the training works in computer\nmemory, repeatedly passing them through the model with words masked out, and adjusting the\nparameters to minimize the difference between the masked-out words and the words the model\npredicts to fill in. After being trained on a general corpus, LLMs may be subject to \u201cfine-tuning\u201d\nby, for example, performing additional rounds of training using specific types of works to better\nmimic their content or style, or providing them with human feedback to reinforce desired or\nsuppress undesired behaviors. Once trained, LLMs generate output based on patterns and\nconnections drawn from the training data.\n\n4 According to the parties, defendants have already produced petabytes of data from their training\nsets.\n\fCase 3:23-cv-03416-AMO Document 72 Filed 04/21/25 Page 3of5\nCase MDL No, 3143 Document 85 Filed 04/03/25 Page 3of5\n\n-3-\n\nand discovery relating to defendants\u2019 training of their LLMs.\u201d It is not uncommon for transferee\ncoutts to establish separate tracks for actions involving differing claims that allow the actions to\nprogress efficiently. See, e.g., In re Jan. 2021 Short Squeeze Trading Litig., MDL No, 2989, 2021\nWL 1258399, at *3 (J.P.M.L. Apr. 2, 2021) (\u2018The transferee court, though, can employ any number\nof pretrial techniques\u2014such as establishing claim-specific or defendant specific tracks and\ncreating an attorney leadership structure that reflects the differences in the claims\u2014to manage the\ndifferences that these actions may present.\u201d).\n\nThe opposing plaintiffs also argue that Judge Araceli Martinez-Olguin in the Northern\nDistrict of California and Judge Sidney H. Stein in the Southern District of New York, as well as\ntheir assigned magistrate judges, are already closely coordinating with one another with respect to\ndiscovery. While this informal coordination is commendable, we are persuaded that Section 1407\ncentralization will ensure overall economies. The currently assigned judges and magistrate judges\nhave dedicated substantial time and resources to this litigation, and far more will be required as\npretrial proceedings progress to the deposition stage. Moreover, these judges will be called upon\nto resolve duplicative discovery disputes and overlapping dispositive and class certification\nmotions. Centralization will allow a single judge to coordinate discovery, streamline pretrial\nproceedings, and eliminate inconsistent rulings.\n\nThe opposing plaintiffs insist that pretrial proceedings in the class actions and the News\nactions are too advanced for centralization to be beneficial. We do not find this argument\npersuasive. Counsel stated during oral argument that only four depositions have been taken thus\nfar and, at a minimum, forty more depositions will be needed in the class actions alone. The parties\nhave been unable to agree on a deposition coordination protocol to eliminate duplicative\ndepositions of defense witnesses\u2014-indeed, much of the recent briefing by the parties and oral\nargument before the Panel consisted of counsel blaming the other side for the breakdown in\nnegotiations. Opportunities abound for the transferee judge to redirect the parties onto a more\nefficient path and eliminate the potential for duplicative discovery and pretrial motion practice, as\nwell as inconsistent pretrial rulings and scheduling.\n\nFinally, the opposing plaintiffs argue that OpenAI cannot seek centralization under the\nterms of a January 2024 stipulation and order in the New York class actions. We need not resolve\nthe parties\u2019 dispute regarding the interpretation of this stipulation because, regardless of whether\nOpenAI could request centralization under the stipulation, this Panel itself can certainly order It.\nSee 28 U.S.C. \u00a7 1407(c) (granting the Panel the authority to centralize civil actions upon its own\ninitiative); Hearing Session Order, MDL No, 3143 (J.P.M_L. Feb. 14, 2025), ECF No. 65 (\u201cIT IS\nFURTHER ORDERED that the Panel may, on its own initiative, consider transfer of any or all of\nthe actions in those matters [listed on the attached Schedule] to any district or districts.\u201d). Cf Uber\nTechs., Inc. v. U.S. Jud. Panel on Multidistrict Litig., No. 23-3445, \u2014 F.4th __, 2025 WL 748135,\nat *8 (9th Cir. Mar. 10, 2025) (\u201cEt is clear from the text of Section 1407 that the statute does not\ncreate an individual right to centralization that may be waived but instead vests the JPML with a\n\n> Even the most unique of these actions\u2014the Millette YouTube action\u2014will share common factual\nquestions and significant discovery regarding the training of defendants\u2019 LLMs.\n\fCase 3:23-cv-03416-AMO Document 72 Filed 04/21/25 Page4of5\nCase MDL No, 3143 Document 85 Filed 04/03/25 Page 4of5\n\n4.\n\npower to manage the federal docket by centralizing cases that is unfettered by private\nagreements.\u201d\u2019).\n\nThe Southern District of New York is an appropriate transferee district for this litigation.\nEight of the twelve actions in this docket are already pending in this convenient and accessible\nvenue, Several plaintiffs, as well as Microsoft Corporation, alternatively suggest or do not oppose\ncenttalization in the Southern District of New York. Judge Sidney H. Stein, an experienced\ntransferee judge, presides over six of the eight actions in the district. Both he and Magistrate Judge\nOna T. Wang have devoted substantial time and resources to this litigation, and thus are well\nsituated to steer this litigation on a prudent and expeditious course.\n\nIT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside\nthe Southern District of New York are transferred to the Southern District of New York and, with\n\nthe consent of that court, assigned to the Honorable Sidney H. Stein for coordinated or consolidated\npretrial proceedings.\n\nPANEL ON MULTIDISTRICT LITIGATION\n\nSiu LAL. Lo Date \u00e9 f\n\nKaren K. Caldwell\n\nChair\nNathaniel M. Gorton Matthew F. Kennelly\nRoger T. Benitez Dale A. Kimball\nMadeline Cox Arleo\nA CERTIFIED COPY\n\nTAMMLM: HELLWIG, CLERK\n\nBY \u00a2f( 4eca_\n\nDeputy Clerk\n\n\fOE EEE EEE REE EEE EEE DEED EEE EEE ET\nCase 3:23-cv-03416-AMO Document 72 Filed 04/21/25 Page5of5 :\nCase MDL No. 3143 Document 85 Filed 04/03/25 Page5of5\n\nIN RE: OPENAI, INC., COPYRIGHT\nINFRINGEMENT LITIGATION MDL No. 3143\n\n|\n|\nSCHEDULE A |\n|\n|\n\nNorthern District of California\n\nTREMBLAY, ET AL. v. OPENAL, INC., ET AL., C.A. No. 3:23\u2014-03223 |\nSILVERMAN, ET AL. v. OPENAT, INC., ET AL., C.A. No. 3:23\u2014-03416\nCHABON, ET AL. v. OPENAL INC., ET AL., C.A, No, 3:23-04625\nMILLETTE vy. OPENAI, INC., ET AL., C.A. No. 5:24-04710 |\n\nSouthern District of New York\n\nAUTHORS GUILD, ET AL. v. OPENAL, INC., ET AL., C.A. No. 1:23-08292\nALTER, ET AL. v. OPENAL, INC., ET AL., C_A. No. 1:23-10211\nTHE NEW YORK TIMES COMPANY v. MICROSOFT CORPORATION, ET AL.,\nC.A. No. 1:23-11195\nBASBANES, ET AL. v. MICROSOFT CORPORATION, ET AL., C.A, No. 1:24-00084\nRAW STORY MEDIA, INC., ET AL. v. OPENAI, INC., ET AL., C.A No. 1:24-01514\nTHE INTERCEPT MEDIA, INC, v. OPENAL INC., ET AL., C.A. No. 1:24-01515\nDAILY NEWS LP, ET AL. v. MICROSOFT CORPORATION, ET AL.,\nC.A. No, 1:24-03285\nTHE CENTER FOR INVESTIGATIVE REPORTING, INC. v. OPENAI, INC., ET AL.,\nC.A. No. 1:24-04872\n\n","ocr_status":1,"date_upload":"2025-04-24T18:47:16.137347-07:00","document_number":"72","attachment_number":null,"pacer_doc_id":"035025657006","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order","acms_document_guid":""}],"date_created":"2025-04-22T07:04:43.089953-07:00","date_modified":"2026-05-19T12:07:06.491955-07:00","date_filed":"2025-04-21","time_filed":null,"entry_number":72,"recap_sequence_number":"2025-04-21.001","pacer_sequence_number":248,"description":"MDL TRANSFER ORDER transferring case to the Southern District of New York re MDL No. 3143. (far, COURT STAFF) (Filed on 4/21/2025) (Entered: 04/22/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/399202804/","id":399202804,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/408405840/","id":408405840,"tags":[],"absolute_url":"/docket/67569254/71/silverman-v-openai-inc/","date_created":"2024-08-12T16:35:36.122627-07:00","date_modified":"2026-05-19T12:07:06.442637-07:00","sha1":"16651a963e48682b180e45e880749ef08b9bab87","page_count":2,"file_size":69842,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.71.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.71.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.415174/408405840.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:23-cv-03416-AMO Document 71 Filed 08/12/24 Page 1 of 2\n\n\n\n 1 Joseph R. Saveri (State Bar No. 130064)\n Cadio Zirpoli (State Bar No. 179108)\n 2 Christopher K.L. Young (State Bar No. 318371)\n JOSEPH SAVERI LAW FIRM, LLP\n 3 601 California Street, Suite 1505\n San Francisco, California 94108\n 4 Telephone: (415) 500-6800\n Facsimile: (415) 395-9940\n 5 Email: jsaveri@saverilaw\ufb01rm.com\n czirpoli@saverilaw\ufb01rm.com\n 6 cyoung@saverilaw\ufb01rm.com\n\n 7 Counsel for Individual and Representative\n Plainti\ufb00s and the Proposed Class\n 8\n\n 9\n UNITED STATES DISTRICT COURT\n10 NORTHERN DISTRICT OF CALIFORNIA\n SAN FRANCISCO DIVISION\n11\n\n12 Paul Tremblay, et al., Case No. 3:23-cv-03223-AMO\n Case No. 3:23-cv-03416-AMO\n13 Individual and Representative Plainti\ufb00s,\n NOTICE OF WITHDRAWAL OF\n14 v. COUNSEL\n\n15 OpenAI, Inc.; et al.,\n Defendants.\n16\n Sarah Silverman, et al.,\n17\n Individual and Representative Plainti\ufb00s,\n18\n v.\n19\n OpenAI, Inc.; et al.,\n20\n Defendants.\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n Lead Case No. 3:23-cv-03223-AMO\n NOTICE OF WITHDRAWAL OF COUNSEL\n\f Case 3:23-cv-03416-AMO Document 71 Filed 08/12/24 Page 2 of 2\n\n\n\n 1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:\n\n 2 PLEASE TAKE NOTICE THAT Kathleen J. McMahon is no longer an attorney at the\n\n 3 Joseph Saveri Law Firm, LLP and is hereby withdrawn as counsel for Individual and Representative\n\n 4 Plainti\ufb00s and the Proposed Class. Kathleen J. McMahon should be removed from the Court\u2019s\n\n 5 service list with respect to this action. The Joseph Saveri Law Firm, LLP continues to represent the\n\n 6 Plainti\ufb00s. All future correspondence and papers in this action should continue to be directed to\n\n 7 counsel of record.\n\n 8\n\n 9 Dated: August 12, 2024 Respectfully Submitted,\n\n10 By: /s/ Joseph R. Saveri\n Joseph R. Saveri\n11\n\n12 Joseph R. Saveri (State Bar No. 130064)\n Cadio Zirpoli (State Bar No. 179108)\n13 Christopher K.L. Young (State Bar No. 318371)\n JOSEPH SAVERI LAW FIRM, LLP\n14 601 California Street, Suite 1505\n San Francisco, California 94108\n15 Telephone: (415) 500-6800\n Facsimile: (415) 395-9940\n16 Email: jsaveri@saverilaw\ufb01rm.com\n czirpoli@saverilaw\ufb01rm.com\n17 cyoung@saverilaw\ufb01rm.com\n\n18 Counsel for Individual and Representative\n Plainti\ufb00s and the Proposed Class\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n\n Lead Case No. 3:23-cv-03223-AMO 1\n NOTICE OF WITHDRAWAL OF COUNSEL\n\f","ocr_status":2,"date_upload":"2024-08-12T16:38:33.690989-07:00","document_number":"71","attachment_number":null,"pacer_doc_id":"035024728478","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice of Change In Counsel","acms_document_guid":""}],"date_created":"2024-08-12T16:35:36.046119-07:00","date_modified":"2026-05-19T12:07:06.399428-07:00","date_filed":"2024-08-12","time_filed":"16:25:09","entry_number":71,"recap_sequence_number":"2024-08-12.001","pacer_sequence_number":244,"description":"NOTICE of Change In Counsel by Joseph R. Saveri Withdrawal of Counsel - Kathleen J. McMahon (Saveri, Joseph) (Filed on 8/12/2024) (Entered: 08/12/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/378670304/","id":378670304,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/386347013/","id":386347013,"tags":[],"absolute_url":"/docket/67569254/70/silverman-v-openai-inc/","date_created":"2024-02-16T10:04:42.563714-08:00","date_modified":"2026-05-19T12:07:06.346960-07:00","sha1":"ba906b178bc8719e4b50cdbebab6f9a96c0da910","page_count":4,"file_size":361322,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.70.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.70.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.415174/386347013.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:23-cv-03416-AMO Document 70 Filed 02/16/24 Page 1 of 4\n\n\n\n 1\n\n 2\n\n 3\n\n 4\n\n 5\n\n 6\n\n 7\n\n 8\n\n 9\n\n10 UNITED STATES DISTRICT COURT\n NORTHERN DISTRICT OF CALIFORNIA\n11 SAN FRANCISCO DIVISION\n12\n Paul Tremblay, Lead Case No. 3:23-cv-03223-AMO\n13\n Individual and Representative Plaintiff, [PROPOSED] PRETRIAL ORDER NO. 1\n14\n v. [Filed Concurrently With Stipulation and\n15 [Proposed] Order to Consolidate Related Cases]\n OpenAI, Inc., et al.,\n16 Defendants.\n17\n This document relates to:\n18 Case No. 3:23-cv-03223-AMO\n19 Case No. 4:23-cv-03416-AMO\n20 Case No. 4:23-cv-04625-AMO\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n\n Case No. 3:23-cv-03223-AMO\n [PROPOSED] PRETRIAL ORDER NO. 1\n\f Case 3:23-cv-03416-AMO Document 70 Filed 02/16/24 Page 2 of 4\n\n\n\n\n 1 To facilitate the efficient management of the actions filed against OpenAI, Inc.; OpenAI, L.P.;\n\n 2 OpenAI OpCo, L.L.C.; OpenAI GP, L.L.C.; OpenAI Startup Fund I, L.P.; OpenAI Startup Fund GP I,\n\n 3 L.L.C.; and OpenAI Startup Fund Management, LLC (\u201cOpenAI\u201d) regarding OpenAI LLMs used for\n\n 4 ChatGPT (the \u201cOpenAI ChatGPT Actions\u201d) involving claims of Direct Copyright Infringement (17\n\n 5 U.S.C. \u00a7 106), Vicarious Copyright Infringement (17 U.S.C. \u00a7 106), the Digital Millenium Copyright\n\n 6 Act \u2013 Removal of Copyright Management Information (17 U.S.C. \u00a7 1202 (b)) (\u201cthe DMCA\u201d), Unfair\n\n 7 Competition (Cal. Bus. & Prof. Code \u00a7\u00a7 17200, et seq.), Negligence, and Unjust Enrichment, the\n\n 8 Court hereby ORDERS as follows:\n\n 9 1. The provisions of this Order shall govern the practice and procedures in the OpenAI\n\n10 ChatGPT Actions that were or will be related to Tremblay, et al. v. OpenAI ,Inc ., et al., Case No.\n\n11 3:23-cv-03223-AMO (N.D. Cal. June 28, 2023) (\u201cTremblay Action\u201d) pursuant to N.D. Cal. Civil\n\n12 Local Rule 3-12.1 Pursuant to Federal Rule of Civil Procedure 42(a), the Court now consolidates the\n\n13 OpenAI ChatGPT Actions into Case No. 23-cv-03223. The OpenAI ChatGPT Actions currently\n\n14 pending in the Northern District have been consolidated for all purposes under Federal Rule of Civil\n\n15 Procedure 42(a) pursuant to stipulation by the parties. See ECF No. 107 Consolidation does not have\n\n16 the effect of making any entity a party to any action in which he, she, or it has not been named, served,\n\n17 or added in accordance with the Federal Rules of Civil Procedure. All subsequent filings filed in this\n\n18 Court related to the OpenAI ChatGPT Actions shall be captioned \u201cIn re OpenAI ChatGPT Litigation\u201d\n\n19 under Case No. 23-cv-03223.\n\n20 2. In any cases that are subsequently filed in, removed to, or transferred to this Court\n\n21 involving the same or substantially similar issues of law and fact, Plaintiffs and/or the party\n\n22 responsible for the filing, removal, and/or transfer shall file a notice of related case under Civil Local\n\n23 Rules 3-12 and 7-11 and a stipulation or administrative motion to consolidate actions within fourteen\n\n24 (14) days after the filing, removal, or transfer of the case (whichever is later).\n\n25\n\n26\n 1\n Silverman, et al v. OpenAI, Inc., et al., Case No. 4:23-cv-03416-KAW (N.D. Cal. July 7, 2023)\n27 (\u201cSilverman Action\u201d) and Chabon, et al. v. OpenAI, Inc, et al., Case No. 4:23-cv-04625-AMO (N.D.\n28 Cal. Sept. 8, 2023) (\u201cChabon Action\u201d) have previously been related to the Tremblay Action by the\n Court. (ECF Nos. 26, - 53.)\n\n 1 Case No. 3:23-cv-03223-AMO\n [PROPOSED] PRETRIAL ORDER NO. 1\n\f Case 3:23-cv-03416-AMO Document 70 Filed 02/16/24 Page 3 of 4\n\n\n\n\n 1 3. Every pleading or motion filed in the master docket shall bear the following caption:\n\n 2 UNITED STATES DISTRICT COURT\n\n 3 NORTHERN DISTRICT OF CALIFORNIA\n\n 4 SAN FRANCISCO DIVISION\n\n 5 IN RE OPENAI CHATGPT LITIGATION Master File No. 23-cv-03223-AMO\n\n 6 This Document Relates To: [\u201cAll Actions\u201d or the\n docket numbers of each individual case to which\n 7\n the document relates.]\n 8\n\n 9 4. If a document pertains to only one or some of the member cases, the document must list\n10 the actions or the docket number of each individual action to which the document applies immediately\n11 under the master caption as set forth above. Documents that pertain to one or only some of the\n12 individual pending actions shall also be filed in the individual case(s) to which the documents pertain.\n13 5. Each attorney of record is obligated to become a Northern District of California ECF\n14 User and be assigned a user ID and password for access to the system. If she or he has not already\n15 done so, counsel shall register forthwith as an ECF User and be issued an ECF User ID and password.\n16 Forms and instructions can be found on the Court\u2019s website at www.cand.uscourts.gov/ cm-ecf. The\n17 docket in Case No. 3:23-cv-03223-AMO will constitute the master docket. All filings shall be filed in\n18 the master docket.\n19 6. A copy of this Order shall be filed by the Clerk in any subsequent OpenAI ChatGPT\n20 Action related to In Re:OpenAI ChatGPT Litigation. The parties shall file a notice attaching a copy of\n21 this Order in any subsequent OpenAI ChatGPT Action related to In Re: OpenAI ChatGPT Litigation.\n22 7. Counsel are directed to familiarize themselves with the Northern District of California\u2019s\n23 Local Rules, the Standing Order for All Judges of the Northern District of California, the Court\u2019s\n24 standing orders, and the Guidelines for Professional Conduct for the Northern District of California.\n25 8. Counsel who appeared in a related case prior to consolidation need not enter an\n26 additional appearance before this Court. Attorneys admitted to practice and in good standing in any\n27 United States District Court may, at Case No. 3:23-cv-03223-AMO, seek to be admitted pro hac vice\n28 in this litigation pursuant to N.D. Cal. Civil Local Rule 11-3. The requirement that pro hac vice\n\n\n 2 Case No. 3:23-cv-03223-AMO\n [PROPOSED] PRETRIAL ORDER NO. 1\n\f Case 3:23-cv-03416-AMO Document 70 Filed 02/16/24 Page 4 of 4\n\n\n\n\n 1 counsel retain local counsel, see N.D. Cal. Civil Local Rules 11-3(a)(3) and 11-3(e), is waived and\n\n 2 does not apply to this action.\n\n 3\n\n 4 IT IS SO ORDERED.\n\n 5\n\n 6\n Dated: February 16, 2024\n 7 Honorable Araceli Mart\u00ednez-Olgu\u00edn\n United States Judge\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n\n 3 Case No. 3:23-cv-03223-AMO\n [PROPOSED] PRETRIAL ORDER NO. 1\n\f","ocr_status":2,"date_upload":"2024-02-16T10:07:03.679469-08:00","document_number":"70","attachment_number":null,"pacer_doc_id":"035024083065","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Pretrial Order","acms_document_guid":""}],"date_created":"2024-02-16T10:04:42.549310-08:00","date_modified":"2026-05-19T12:07:06.272039-07:00","date_filed":"2024-02-16","time_filed":"09:29:13","entry_number":70,"recap_sequence_number":"2024-02-16.002","pacer_sequence_number":240,"description":"PRETRIAL ORDER as Modified. Signed by Judge Araceli Martinez-Olguin on 2/16/2024. (ads, COURT STAFF) (Filed on 2/16/2024) (Entered: 02/16/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/378670303/","id":378670303,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/386347012/","id":386347012,"tags":[],"absolute_url":"/docket/67569254/69/silverman-v-openai-inc/","date_created":"2024-02-16T10:04:42.529790-08:00","date_modified":"2026-05-19T12:07:06.203325-07:00","sha1":"c7052955d8328f650525317a1cbf3e626c23a28c","page_count":6,"file_size":378447,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.69.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.69.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.415174/386347012.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:23-cv-03416-AMO Document 69 Filed 02/16/24 Page 1 of 6\n\n\n\n 1\n\n 2 [counsel on signature page]\n\n 3\n\n 4\n\n 5\n\n 6\n\n 7\n\n 8\n\n 9\n\n10\n\n11\n UNITED STATES DISTRICT COURT\n12 NORTHERN DISTRICT OF CALIFORNIA\n SAN FRANCISCO DIVISION\n13\n\n14 Paul Tremblay, Case No. 3:23-cv-03223-AMO\n Individual and Representative Plaintiff, STIPULATION AND [PROPOSED] ORDER\n15\n CONSOLIDATING CASES\n v.\n16\n Judge: Araceli Martinez-Olguin\n OpenAI, Inc., et al., Complaint Filed: June 28, 2023\n17\n Defendants. Trial Date: n/a\n18\n Sarah Silverman, et al., Case No. 4:23-cv-03416-AMO\n19\n Individual and Representative Plaintiffs, RELATED CASE\n20\n v. Judge: Araceli Martinez-Olguin\n21 Complaint Filed: July 7, 2023\n OpenAI, Inc., et al.,\n Trial Date: n/a\n22\n Defendants.\n23\n\n24 Michael Chabon, et al., Case No. 4:23-cv-04625-AMO\n25 Individual and Representative Plaintiffs, RELATED CASE\n26 v.\n Judge: Araceli Martinez-Olguin\n27 OpenAI, Inc., et al., Complaint Filed: Sept. 8, 2023\n Trial Date: n/a\n28 Defendants.\n\n Case No. 3:23-cv-03223-AMO\n STIPULATION AND [PROPOSED] ORDER CONSOLIDATING CASES\n\f Case 3:23-cv-03416-AMO Document 69 Filed 02/16/24 Page 2 of 6\n\n\n\n\n 1 Pursuant to Federal Rule of Civil Procedure 42(a) and Local Rule 3-12(a), Plaintiffs Paul\n\n 2 Tremblay, Sarah Silverman, Christopher Golden, Richard Kadrey, Michael Chabon, Ta-Nehisi Coates,\n\n 3 Junot Diaz, Andrew Sean Greer, David Henry Hwang, Matthew Klam, Laura Lippman, Rachel Louise\n\n 4 Snyder, Ayelet Waldman, and Jacqueline Woodson and Defendants OpenAI, Inc.; OpenAI, L.P.;\n\n 5 OpenAI OpCo, L.L.C.; OpenAI GP, L.L.C.; OpenAI Startup Fund GP I, L.L.C.; OpenAI Startup Fund\n\n 6 I, L.P.; and OpenAI Startup Fund Management, LLC jointly request that the above-captioned actions\n\n 7 (the \u201cActions\u201d) be related and consolidated for all pretrial and trial proceedings. The parties, by and\n\n 8 through their undersigned counsel, stipulate as follows:\n\n 9 WHEREAS, on June 28, 2023, Plaintiff Paul Tremblay1 filed a Complaint (ECF No. 1) against\n\n10 Defendants OpenAI, Inc.; OpenAI, L.P.; OpenAI OpCo, L.L.C.; OpenAI GP, L.L.C.; OpenAI Startup\n\n11 Fund GP I, L.L.C.; OpenAI Startup Fund I, L.P.; and OpenAI Startup Fund Management, LLC 2 in\n\n12 Tremblay, et al. v. OpenAI, Inc., et al., No. 3:23-cv-03223-AMO (N.D. Cal. June 28, 2023) (the\n\n13 \u201cTremblay Action\u201d);\n\n14 WHEREAS, on July 7, 2023, Plaintiffs Sarah Silverman, Christopher Golden, and Richard\n\n15 Kadrey3 filed a Complaint (ECF No. 1) against Defendants in Silverman, et al v. OpenAI, Inc, et al.,\n\n16 No. 4:23-cv-03416-AMO (N.D. Cal. July 7, 2023) (the \u201cSilverman Action\u201d);\n\n17 WHEREAS, on July 19, 2023, Plaintiffs filed an Administrative Motion to Consider Whether\n\n18 Cases Should Be Related regarding the Tremblay Action and Silverman Action (Tremblay Action, ECF\n\n19 No. 16);\n\n20 WHEREAS, on July 28, 2023, this Court granted the motion and ordered the Clerk to relate the\n\n21 later-filed Silverman Action to the Tremblay Action (Tremblay Action, ECF No. 26);\n\n22 WHEREAS, on September 8, 2023, Plaintiffs Michael Chabon, David Henry Hwang, Matthew\n\n23\n\n24 1\n On August 11, 2023, a former Plaintiff in this action\u2014Mona Awad\u2014voluntarily dismissed her\n25 individual claims and exited the case. ECF No. 29.\n 2\n26 OpenAI, Inc.; OpenAI, L.P.; OpenAI GP, L.L.C.; OpenAI OpCo, LLC; OpenAI Startup Fund GP I,\n L.L.C.; OpenAI Startup Fund I, L.P.; and OpenAI Startup Fund Management, LLC are collectively\n27 referred as \u201cOpenAI\u201d or \u201cDefendants.\u201d\n 3\n28 Plaintiffs Paul Tremblay, Sarah Silverman, Christopher Golden, and Richard Kadrey are collectively\n referred to as \u201cPlaintiffs.\u201d\n 1 Case No. 3:23-cv-03223-AMO\n STIPULATION AND [PROPOSED] ORDER CONSOLIDATING CASES\n\f Case 3:23-cv-03416-AMO Document 69 Filed 02/16/24 Page 3 of 6\n\n\n\n\n 1 Klam, Rachel Louise Snyder, and Ayelet Waldman filed a Complaint against Defendants in Chabon, et\n\n 2 al. v. OpenAI, Inc, et al., Case No. 4:23-cv-04625-PHK (N.D. Cal. Sept. 8, 2023) (\u201cChabon Action\u201d);\n\n 3 WHEREAS, on September 20, 2023, Plaintiffs filed an Administrative Motion to Consider\n\n 4 Whether Cases Should Be Related seeking to relate the Chabon Action to the Tremblay Action (ECF\n\n 5 No. 46);\n\n 6 WHEREAS, on October 5, 2023, an amended complaint was filed in the Chabon Action (ECF\n\n 7 No. 11);\n\n 8 WHEREAS, on October 10, 2023, this Court granted the motion and ordered the Clerk to\n\n 9 relate the Chabon Action to the Tremblay Action (Tremblay Action, ECF No. 53; Chabon Action, ECF\n\n10 No. 17);\n\n11 WHEREAS, the Tremblay Action, the Silverman Action, and the Chabon Action (collectively,\n\n12 the \u201cRelated Actions\u201d) all bring putative class action claims regarding ChatGPT and allege the same\n\n13 causes of action against the same Defendants;\n\n14 WHEREAS, the parties agree that consolidation of the Actions will advance the just and\n\n15 efficient progress of this litigation, reduce case duplication, conserve Court time and resources, avoid\n\n16 the need to contact parties and witnesses for multiple proceedings, and minimize the expenditure of\n\n17 time and money for all parties involved. See Fed. R. Civ. P. 42(a);\n\n18 WHEREAS, by stipulating to consolidation of the Related Actions, Defendants do not concede\n\n19 the truth of any of Plaintiffs\u2019 allegations or that certification of the putative classes is proper under\n\n20 Federal Rule of Civil Procedure 23 and specifically reserves its right to oppose class certification on\n\n21 all available grounds;\n\n22 WHEREAS, the parties have met and conferred and agreed to the terms of the [Proposed]\n\n23 Pretrial Order No. 1 filed herewith;\n\n24 NOW THEREFORE, the parties, through their undersigned counsel, hereby stipulate and\n\n25 agree that, subject to the approval of the Court:\n\n26 1. The Tremblay Action, the Silverman Action, and the Chabon Action shall be\n\n27 consolidated for all purposes under Federal Rule of Civil Procedure 42(a);\n\n28\n\n 2 Case No. 3:23-cv-03223-AMO\n STIPULATION AND [PROPOSED] ORDER CONSOLIDATING CASES\n\f Case 3:23-cv-03416-AMO Document 69 Filed 02/16/24 Page 4 of 6\n\n\n\n\n 1 2. Following the ruling on Defendants\u2019 Motions to Dismiss (Tremblay Action, ECF\n\n 2 No. 33; Silverman Action, ECF No. 32), Plaintiffs will file a consolidated complaint, by March\n\n 3 13, 2024. See ECF 104.\n\n 4 3. The Chabon Action shall be stayed pending consolidation. Defendants need not\n\n 5 respond to the Chabon Complaint until Plaintiffs have filed a consolidated complaint.\n\n 6 4. The Court shall enter the [Proposed] Pretrial Order No. 1 filed herewith.\n\n 7 IT IS SO STIPULATED.\n 8\n Dated: October 26, 2023 By: /s/ Joseph R. Saveri\n 9\n Joseph R. Saveri\n10\n\n11 Joseph R. Saveri (State Bar No. 130064)\n Cadio Zirpoli (State Bar No. 179108)\n12 Christopher K.L. Young (State Bar No. 318371)\n Kathleen J. McMahon (State Bar No. 340007)\n13\n JOSEPH SAVERI LAW FIRM, LLP\n14 601 California Street, Suite 1000\n San Francisco, California 94108\n15 Telephone: (415) 500-6800\n16 Facsimile: (415) 395-9940\n Email: jsaveri@saverilawfirm.com\n17 czirpoli@saverilaw\ufb01rm.com\n cyoung@saverilawfirm.com\n18\n kmcmahon@saverilaw\ufb01rm.com\n19\n Matthew Butterick (State Bar No. 250953)\n20 1920 Hillhurst Avenue, #406\n21 Los Angeles, CA 90027\n Telephone: (323) 968-2632\n22 Facsimile: (415) 395-9940\n Email: mb@buttericklaw.com\n23\n\n24 Counsel for Plainti\ufb00s and the Proposed Class in the\n Tremblay and Silverman Actions\n25\n\n26\n\n27\n\n28\n\n 3 Case No. 3:23-cv-03223-AMO\n STIPULATION AND [PROPOSED] ORDER CONSOLIDATING CASES\n\f Case 3:23-cv-03416-AMO Document 69 Filed 02/16/24 Page 5 of 6\n\n\n\n\n 1\n Dated: October 26, 2023 By: /s/ Daniel J. Muller\n 2 Daniel J. Muller\n\n 3 Daniel J. Muller (State Bar No. 193396)\n VENTURA HERSYE & MULLER, LLP\n 4\n 1506 Hamilton Avenue\n 5 San Jose, California 95125\n Telephone: (408) 512-3022\n 6 Facsimile: (408) 512-3023\n 7 Email: dmuller@venturahersey.com\n\n 8 /s/ Bryan L. Clobes\n Bryan L. Clobes (admitted pro hac vice)\n 9 CAFFERTY CLOBES MERIWETHER\n & SPRENGEL LLP\n10\n 205 N. Monroe Street\n11 Media, PA 19063\n Telephone: (215) 864-2800\n12 bclobes@caffertyclobes.com\n13 Alexander J. Sweatman (pro hac vice anticipated)\n14 CAFFERTY CLOBES MERIWETHER\n & SPRENGEL LLP\n15 135 South LaSalle Street, Suite 3210\n Chicago, IL 60603\n16 Telephone: (312) 782-4880\n asweatman@caffertyclobes.com\n17\n\n18 Counsel for Plaintiffs and the Proposed Class in the\n Chabon Action\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n 4 Case No. 3:23-cv-03223-AMO\n STIPULATION AND [PROPOSED] ORDER CONSOLIDATING CASES\n\f Case 3:23-cv-03416-AMO Document 69 Filed 02/16/24 Page 6 of 6\n\n\n\n\n 1 Dated: October 26, 2023\n By: Joesph C. Gratz\n 2 Joseph C. Gratz\n\n 3 Joseph C. Gratz (State Bar No. 240676)\n MORRISON & FOERSTER LLP\n 4 425 Market Street\n 5 San Francisco, CA 94105\n Telephone: 415-268-7000\n 6 Facsimile: 415-268-7522\n Email: jgratz@mofo.com\n 7\n Counsel for OpenAI, Inc.; OpenAI, L.P.; OpenAI GP,\n 8 L.L.C.; OpenAI OpCo, LLC; OpenAI Startup Fund GP\n 9 I, L.L.C.; OpenAI Startup Fund I, L.P.; and OpenAI\n Startup Fund Management, LLC\n10\n\n11\n\n12 IT IS SO ORDERED.\n\n13\n\n14 Dated: February 16, 2024\n Honorable Araceli Mart\u00ednez-Olgu\u00edn\n15 United States Judge\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n 5 Case No. 3:23-cv-03223-AMO\n STIPULATION AND [PROPOSED] ORDER CONSOLIDATING CASES\n\f","ocr_status":2,"date_upload":"2024-02-16T10:07:00.922935-08:00","document_number":"69","attachment_number":null,"pacer_doc_id":"035024083051","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Stipulation","acms_document_guid":""}],"date_created":"2024-02-16T10:04:42.514194-08:00","date_modified":"2026-05-19T12:07:06.164405-07:00","date_filed":"2024-02-16","time_filed":"09:25:43","entry_number":69,"recap_sequence_number":"2024-02-16.001","pacer_sequence_number":238,"description":"Order as Modified by Judge Araceli Martinez-Olguin granting (60) Stipulation Consolidating Cases in case 3:23-cv-03223-AMO. Associated Cases: 3:23-cv-03223-AMO, 3:23-cv-03416-AMO, 3:23-cv-04625-AMO(ads, COURT STAFF) (Filed on 2/16/2024) (Entered: 02/16/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/378265087/","id":378265087,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/385931216/","id":385931216,"tags":[],"absolute_url":"/docket/67569254/68/silverman-v-openai-inc/","date_created":"2024-02-12T18:12:54.643097-08:00","date_modified":"2026-05-19T12:07:06.104765-07:00","sha1":"5d2a654fac40a829613b017f0a4af781cbc2dbd3","page_count":13,"file_size":249583,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.68.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.68.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.415174/385931216.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 1 of 13\n\n\n\n\n 1\n\n 2\n\n 3\n\n 4 UNITED STATES DISTRICT COURT\n\n 5 NORTHERN DISTRICT OF CALIFORNIA\n\n 6\n\n 7 PAUL TREMBLAY, et al., Case Nos. 23-cv-03223-AMO\n Plaintiffs, 23-cv-03416-AMO\n 8\n v. ORDER GRANTING IN PART AND\n 9\n DENYING IN PART THE MOTIONS TO\n 10 OPENAI, INC., et al., DISMISS\n Defendants.\n 11\n\n 12\nNorthern District of California\n United States District Court\n\n\n\n\n 13 This is a putative class action copyright case. OpenAI, Inc.\u2019s motions to dismiss were\n\n 14 heard before this Court on December 7, 2023. Having read the papers filed by the parties and\n\n 15 carefully considered their arguments therein and those made at the hearing, as well as the relevant\n\n 16 legal authority, the Court hereby GRANTS in part and DENIES in part the motions to dismiss for\n\n 17 the following reasons.\n\n 18 I. BACKGROUND\n\n 19 Before the Court are two nearly identical putative class complaints in Tremblay et al v.\n\n 20 OpenAI, Inc. et al, 23-cv-3223 and Silverman et al v. OpenAI, Inc. et al, 23-cv-3416. Plaintiffs are\n\n 21 authors of books who allege that their books were used to train OpenAI language models that\n\n 22 operate the artificial intelligence (\u201cAI\u201d) software ChatGPT.1 Silverman Compl. \u00b6\u00b6 1-4; Tremblay\n\n 23 Compl. \u00b6\u00b6 1-4. Plaintiffs Paul Tremblay, Sarah Silverman, Christopher Golden, and Richard\n\n 24 Kadrey (collectively, \u201cPlaintiffs\u201d) hold registered copyrights in their books. Tremblay Compl. \u00b6\u00b6\n\n 25\n\n 26\n 1\n 27 For the purposes of the motion to dismiss at bar, the Court accepts all factual allegations in the\n Complaint as true and construes the pleadings in the light most favorable to the Plaintiffs.\n 28 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 2 of 13\n\n\n\n\n 1 10, 12, Ex. A (The Cabin at the End of the World (Tremblay))2; Silverman Compl. \u00b6\u00b6 10-13, Ex.\n\n 2 A (The Bedwetter (Silverman); Ararat (Golden), and Sandman Slim (Kadrey)).\n\n 3 Defendant OpenAI3 creates and sells certain AI software known as large language models\n\n 4 (or \u201cLLM\u201d). Tremblay Compl. \u00b6 23. These language models are \u201ctrained\u201d by inputting large\n\n 5 amounts of texts known as the \u201ctraining dataset.\u201d Id. The language models copy text from the\n\n 6 training dataset and extract \u201cexpressive information.\u201d Id. ChatGPT is an OpenAI language model\n\n 7 that allows paying users to enter text prompts to which ChatGPT will respond and \u201csimulate\n\n 8 human reasoning,\u201d including answering questions or summarizing books. Id. \u00b6\u00b6 22, 36-38.\n\n 9 ChatGPT generates its output based on \u201cpatterns and connections\u201d from the training data. Id. \u00b6 39.\n\n 10 OpenAI copied Plaintiffs\u2019 copyrighted books and used them in its training dataset. Id. \u00b6\n\n 11 24. When prompted to summarize books written by each of the Plaintiffs, ChatGPT generated\n\n 12 accurate summaries of the books\u2019 content and themes. Id. \u00b6 41 (citing Ex. B); Silverman Compl. \u00b6\nNorthern District of California\n United States District Court\n\n\n\n\n 13 42 (citing Ex. B).\n\n 14 Plaintiffs seek to represent a class of all people in the U.S. who own a copyright in any\n\n 15 work that was used as training data for OpenAI language models during the class period.\n\n 16 Tremblay Compl. \u00b6 42; Silverman Compl. \u00b6 43. Plaintiffs assert six causes of action against\n\n 17 various OpenAI entities: (1) direct copyright infringement (Count I); (2) vicarious infringement\n\n 18 (Count II); (3) violation of Section 1202(b) of the Digital Millennium Copyright Act (\u201cDMCA\u201d)\n\n 19 (Count III); (4) unfair competition under Cal. Bus. & Prof. Code Section 17200 (Count IV); (5)\n\n 20 negligence (Count V); and (6) unjust enrichment (Count VI).\n\n 21 OpenAI filed the instant motions to dismiss on August 28, 2023, seeking dismissal of\n\n 22 Counts II through VI. ECF 33 (\u201cMotion\u201d).4\n\n 23\n\n 24 2\n Plaintiff Mona Awad voluntarily dismissed her claims without prejudice. ECF 29.\n 25 3\n Defendants are seven entities that Plaintiffs collectively refer to as \u201cOpenAI.\u201d ECF 33\n (\u201cMotion\u201d) at 14 (citing Tremblay Compl. \u00b6\u00b6 13-19; Silverman Compl. \u00b6\u00b6 14-20). The Court\n 26 follows this naming convention.\n 27 4\n Defendants\u2019 motion to dismiss addresses both the Silverman and the Tremblay complaints and\n was filed concurrently on both dockets. Motion at 1 n1.\n 28\n 2\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 3 of 13\n\n\n\n\n 1 II. LEGAL STANDARD\n\n 2 Federal Rule of Civil Procedure 8(a) requires that a complaint contain \u201ca short and plain\n\n 3 statement of the claim showing that the pleader is entitled to relief.\u201d A defendant may move to\n\n 4 dismiss a complaint for failing to state a claim upon which relief can be granted under Federal\n\n 5 Rule of Civil Procedure 12(b)(6). \u201cDismissal under Rule 12(b)(6) is appropriate only where the\n\n 6 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.\u201d\n\n 7 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule\n\n 8 12(b)(6) motion, a plaintiff must plead \u201cenough facts to state a claim to relief that is plausible on\n\n 9 its face.\u201d Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible\n\n 10 when a plaintiff pleads \u201cfactual content that allows the court to draw the reasonable inference that\n\n 11 the defendant is liable for the misconduct alleged.\u201d Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).\n\n 12 In reviewing the plausibility of a complaint, courts \u201caccept factual allegations in the\nNorthern District of California\n United States District Court\n\n\n\n\n 13 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.\u201d\n\n 14 Manzarek, 519 F.3d at 1031. Nonetheless, courts do not \u201caccept as true allegations that are merely\n\n 15 conclusory, unwarranted deductions of fact, or unreasonable inferences.\u201d In re Gilead Scis. Secs.\n\n 16 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).\n\n 17 III. ANALYSIS\n\n 18 Defendants seek dismissal of all causes of action except for the claim for direct copyright\n\n 19 infringement. Motion at 18. Defendants seek dismissal of Count II for vicarious copyright\n\n 20 infringement; Count III for violation of Section 1202(b) of the Digital Millennium Copyright Act\n\n 21 (\u201cDMCA); Count IV for Unfair Competition under Cal. Bus. & Prof. Code \u00a7 17200; Count V for\n\n 22 negligence; and Count VI for unjust enrichment. Id. The Court addresses each in turn.\n\n 23 A. Vicarious Copyright Infringement (Count II)\n\n 24 The Copyright Act grants the copyright holder exclusive rights to (1) \u201creproduce the\n\n 25 copyrighted work in copies,\u201d (2) \u201cprepare derivate works,\u201d and (3) \u201cdistribute copies . . . of the\n\n 26 copyrighted work to the public.\u201d 17 U.S.C. \u00a7 106(1)-(3). Copyright protection does not extend to\n\n 27 \u201cevery idea, theory, and fact\u201d underlying a copyrighted work. Eldred v. Ashcroft, 537 U.S. 186,\n\n 28 219 (2003); see 17 U.S.C. \u00a7 102(b). Indeed, \u201c[t]he mere fact that a work is copyrighted does not\n 3\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 4 of 13\n\n\n\n\n 1 mean that every element of the work may be protected.\u201d Corbello v. Valli, 974 F.3d 965, 973 (9th\n\n 2 Cir. 2020) (citation omitted).\n\n 3 Copyright infringement requires that a plaintiff show (1) \u201che owns as valid copyright\u201d and\n\n 4 (2) the defendant \u201ccopied aspects of his work.\u201d Corbello, 974 F.3d at 973. The second prong\n\n 5 \u201ccontains two separate components: \u2018copying\u2019 and \u2018unlawful appropriation.\u2019\u201d Id. at 974.\n\n 6 \u201cCopying can be demonstrated either through direct evidence or by showing that the defendant\n\n 7 had access to the plaintiff\u2019s work and that the two works share similarities probative of copying,\n\n 8 while the hallmark of \u2018unlawful appropriation\u2019 is that the works share substantial similarities.\u201d Id.\n\n 9 (citations and internal quotations omitted); see Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led\n\n 10 Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (\u201cthe hallmark of \u2018unlawful appropriation\u2019 is that\n\n 11 the works share substantial similarities\u201d) (emphasis in original).\n\n 12 A claim of vicarious infringement requires a threshold showing of direct infringement,\nNorthern District of California\n United States District Court\n\n\n\n\n 13 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007) (\u201cAmazon.com\u201d); see\n\n 14 A&M Recs., Inc. v. Napster, Inc., 239 F.3d 1004, 1013 n.2 (9th Cir. 2001) aff\u2019d, 284 F.3d 1091\n\n 15 (2002) (\u201cSecondary liability for copyright infringement does not exist in the absence of direct\n\n 16 infringement by a third party\u201d). A plaintiff must then show that \u201cthe defendant has (1) the right\n\n 17 and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing\n\n 18 activity.\u201d Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 673 (9th Cir. 2017) (\u201cGiganews\u201d)\n\n 19 (citation omitted).\n\n 20 Defendants argue that the vicarious infringement claim fails for three reasons: (1) Plaintiffs\n\n 21 have not alleged that direct infringement occurred; (2) Plaintiffs have not alleged that Defendants\n\n 22 had the \u201cright and ability to supervise\u201d; and (3) Plaintiffs have not alleged \u201cdirect financial\n\n 23 interest.\u201d Motion at 19-21. The Court first considers whether Plaintiffs have adequately alleged\n\n 24 direct infringement and, ultimately, does not reach Defendants\u2019 latter two arguments.\n\n 25 Plaintiffs suggest that they do not need to allege a \u201csubstantial similarity\u201d because they\n\n 26 have evidence of \u201cdirect copying.\u201d ECF 48 (\u201cResponse\u201d) at 15. They argue that because\n\n 27 Defendants directly copied the copyrighted books to train the language models, Plaintiffs need not\n\n 28 show substantial similarity. Id. at 15 (citing Range Rd. Music, Inc. v. E. Coast Foods, Inc., 668\n 4\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 5 of 13\n\n\n\n\n 1 F.3d 1148, 1154 (9th Cir. 2012) (explaining that \u201csubstantial similarity\u201d helps determine whether\n\n 2 copying occurred \u201cwhen an allegedly infringing work appropriates elements of an original without\n\n 3 reproducing it in toto.\u201d). Plaintiffs misunderstand Range Rd. There, the court did not need to find\n\n 4 substantial similarity because the infringement was the public performance of copyrighted songs at\n\n 5 a bar. Range Rd., 668 F.3d at 1151-52, 1154. Since the plaintiffs provided unrebutted evidence\n\n 6 that the performed songs were the protected songs, they did not need to show that they were\n\n 7 substantially similar. Id. at 1154. Distinctly, Plaintiffs here have not alleged that the ChatGPT\n\n 8 outputs contain direct copies of the copyrighted books. Because they fail to allege direct copying,\n\n 9 they must show a substantial similarity between the outputs and the copyrighted materials. See\n\n 10 Skidmore, 952 F.3d at 1064; Corbello, 974 F.3d at 973-74.\n\n 11 Plaintiffs\u2019 allegation that \u201cevery output of the OpenAI Language Models is an infringing\n\n 12 derivative work\u201d is insufficient. Tremblay Compl. \u00b6 59; Silverman Compl. \u00b6 60. Plaintiffs fail to\nNorthern District of California\n United States District Court\n\n\n\n\n 13 explain what the outputs entail or allege that any particular output is substantially similar \u2013 or\n\n 14 similar at all \u2013 to their books. Accordingly, the Court dismisses the vicarious copyright\n\n 15 infringement claim with leave to amend.\n\n 16 B. Section 1202(b) of the DMCA (Count III)\n\n 17 In addition to protecting against vicarious and direct infringement, \u201c[c]opyright law\n\n 18 restricts the removal or alteration of copyright management information (\u2018CMI\u2019) \u2013 information\n\n 19 such as the title, the author, the copyright owner, the terms and conditions for use of the work, and\n\n 20 other identifying information set forth in a copyright notice or conveyed in connection with the\n\n 21 work.\u201d Stevens v. Corelogic, Inc., 899 F.3d 666, 671 (9th Cir. 2018). Section 1202(b) of the\n\n 22 Digital Millennium Copyright Act (DMCA) provides that one cannot, without authority, (1)\n\n 23 \u201cintentionally remove or alter any\u201d CMI, (2) \u201cdistribute . . . [CMI] knowing that the [CMI] has\n\n 24 been removed or altered,\u201d or (3) \u201cdistribute . . . copies of works . . . knowing that [CMI] has been\n\n 25 removed or altered.\u201d 17 U.S.C. \u00a7 1202(b). To state a Section 1202 claim for removal or alteration\n\n 26 of CMI, plaintiffs must first identify \u201cwhat the removed or altered CMI was.\u201d Free Speech Sys.,\n\n 27 LLC v. Menzel, 390 F. Supp. 3d 1162, 1175 (N.D. Cal. 2019). Plaintiffs must also show the\n\n 28 requisite mental state, as each of the three forms of Section 1202(b) violations requires \u201cknowing,\n 5\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 6 of 13\n\n\n\n\n 1 or . . . having reasonable grounds to know, that [intentionally removing CMI] will induce, enable,\n\n 2 facilitate, or conceal\u201d infringement. 17 U.S.C. \u00a7 1202(b).\n\n 3 OpenAI argues that the Section 1202(b)(1) claim fails because Plaintiffs do not plausibly\n\n 4 allege that OpenAI intentionally removed CMI during the training process or intended to conceal\n\n 5 or induce infringement, and the Section 1202(b)(3) claim fails because Plaintiffs do not allege that\n\n 6 Defendant distributed the copyrighted works or copies. Motion at 21-22. The Court begins by\n\n 7 analyzing the 1202(b)(1) claim.\n\n 8 1. Section 1202(b)(1) \u2013 Intentionally Remove or Alter CMI\n\n 9 Section 1202(b) requires knowledge or \u201creasonable grounds to know\u201d that the CMI\n\n 10 removal would \u201cinduce, enable, facilitate, or conceal an infringement.\u201d In the Ninth Circuit, a\n\n 11 plaintiff \u201cmust make an affirmative showing, such as by demonstrating a past \u2018pattern of conduct\u2019\n\n 12 or \u2018modus operandi,\u2019 that the defendant was aware or had reasonable grounds to be aware of the\nNorthern District of California\n United States District Court\n\n\n\n\n 13 probable future impact of its actions.\u201d Stevens, 899 F.3d at 674. At the pleading stage, this\n\n 14 requires pleading facts \u201cplausibly showing that the alleged infringer had this required mental\n\n 15 state.\u201d Andersen v. Stability AI Ltd., No. 23-CV-00201-WHO, 2023 WL 7132064, at *10 (N.D.\n\n 16 Cal. Oct. 30, 2023); see Philpot v. Alternet Media, Inc., No. 18-CV-04479-TSH, 2018 WL\n\n 17 6267876, at *5 (N.D. Cal. Nov. 30, 2018) (dismissing DMCA claim where plaintiff \u201cfail[ed] to\n\n 18 plead any facts showing that [defendant] had the required mental state\u201d).\n\n 19 Plaintiffs allege that \u201c[b]y design,\u201d Defendants remove CMI from the copyrighted books\n\n 20 used during the training process. Tremblay Compl. \u00b6 64; Silverman Compl. \u00b6 65. However,\n\n 21 Plaintiffs provide no facts supporting this assertion. Indeed, the Complaints include excerpts of\n\n 22 ChatGPT outputs that include multiple references to Plaintiffs\u2019 names, suggesting that OpenAI did\n\n 23 not remove all references to \u201cthe name of the author.\u201d See, e.g., Tremblay Compl. Ex. B at 3\n\n 24 (\u201cThroughout these chapters, Tremblay masterfully maintains the suspense and psychological\n\n 25 terror\u201d); Silverman Compl. Ex B. at 1 (\u201cSilverman uses her sharp wit to lend a comedic touch\u201d).\n\n 26 Moreover, there are no facts to support the assertion that \u201c[b]y design, the training process does\n\n 27 not preserve any CMI.\u201d Tremblay Compl. \u00b6 64. In Doe 1 v. GitHub, Inc., No. 22-CV-06823-JST,\n\n 28 2023 WL 3449131, at *11 (N.D. Cal. May 11, 2023), plaintiffs alleged where the CMI typically\n 6\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 7 of 13\n\n\n\n\n 1 appeared, that defendants were aware that the CMI appeared repeatedly, and that defendants\n\n 2 subsequently \u201ctrained these programs to ignore or remove CMI and therefore stop producing it.\u201d\n\n 3 That was sufficient to support a \u201creasonable inference that Defendants intentionally designed the\n\n 4 programs to remove CMI . . .\u201d Id. By contrast, Plaintiffs here only make conclusory allegations\n\n 5 that \u201c[b]y design, the training process does not preserve any CMI.\u201d Tremblay Compl. \u00b6 64.\n\n 6 Even if Plaintiffs provided facts showing Defendants\u2019 knowing removal of CMI from the\n\n 7 books during the training process, Plaintiffs have not shown how omitting CMI in the copies used\n\n 8 in the training set gave Defendants reasonable grounds to know that ChatGPT\u2019s output would\n\n 9 induce, enable, facilitate, or conceal infringement. See Stevens, 899 F.3d at 673 (finding that\n\n 10 allegations that \u201csomeone might be able to use [the copyrighted work] undetected . . . simply\n\n 11 identifies a general possibility that exists whenever CMI is removed,\u201d and fails to show the\n\n 12 necessary mental state). Plaintiffs argue that OpenAI\u2019s failure to state which internet books it uses\nNorthern District of California\n United States District Court\n\n\n\n\n 13 to train ChatGPT shows that it knowingly enabled infringement, because ChatGPT users will not\n\n 14 know if any output is infringing. Response at 21-22. However, Plaintiffs do not point to any\n\n 15 caselaw to suggest that failure to reveal such information has any bearing on whether the alleged\n\n 16 removal of CMI in an internal database will knowingly enable infringement. Plaintiffs have failed\n\n 17 to state a claim under Section 12(b)(1).\n\n 18 2. Section 1202(b)(3) \u2013 Distribute Works or Copies\n\n 19 Plaintiffs also allege that Defendants violated Section 1202(b)(3) because OpenAI created\n\n 20 derivative works - ChatGPT outputs - and distributed those outputs without the CMI included.\n\n 21 Tremblay Compl. \u00b6 65; Silverman Compl. \u00b6 66. The DMCA \u201cdoes not prohibit merely omitting\n\n 22 CMI from an infringing work.\u201d Dolls Kill, Inc. v. Zoetop Bus. Co., No. 222CV01463RGKMAA,\n\n 23 2022 WL 16961477, at *3 (C.D. Cal. Aug. 25, 2022). While it may be unlawful to recreate\n\n 24 another\u2019s work (e.g., under the Copyright Act), this conduct does not necessarily implicate the\n\n 25 DMCA. See, e.g., Kirk Kara Corp. v. W. Stone & Metal Corp., No. CV 20-1931-DMG (EX),\n\n 26 2020 WL 5991503, at *6 (C.D. Cal. Aug. 14, 2020) (emphasis in original) (dismissing claim\n\n 27 because \u201cwhile the works may be substantially similar, Defendant did not make identical copies\n\n 28 of Plaintiff\u2019s works and then remove the engraved CMI\u201d).\n 7\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 8 of 13\n\n\n\n\n 1 Under the plain language of the statute, liability requires distributing the original \u201cworks\u201d\n\n 2 or \u201ccopies of [the] works.\u201d 17 U.S.C. \u00a7 1202(b)(3). Plaintiffs have not alleged that Defendants\n\n 3 distributed their books or copies of their books. Instead, they have alleged that \u201cevery output from\n\n 4 the OpenAI Language Models is an infringing derivative work\u201d without providing any indication\n\n 5 as to what such outputs entail \u2013 i.e., whether they are the copyrighted books or copies of the\n\n 6 books. That is insufficient to support this cause of action under the DMCA.\n\n 7 Plaintiffs compare their claim to that in Doe 1, however, the plaintiffs in Doe 1 alleged that\n\n 8 the defendants \u201cdistributed copies of [plaintiff\u2019s licensed] code knowing that CMI had been\n\n 9 removed or altered.\u201d Doe 1, 2023 WL 3449131, at *11. The Doe 1 plaintiffs alleged that\n\n 10 defendants knew that the programs \u201creproduced training data,\u201d such as the licensed code, as\n\n 11 output. Id. Plaintiffs here have not alleged that ChatGPT reproduces Plaintiffs copyrighted works\n\n 12 without CMI.\nNorthern District of California\n United States District Court\n\n\n\n\n 13 Accordingly, the Court dismisses the DMCA claims with leave to amend.\n\n 14 C. UCL (Count IV)\n\n 15 OpenAI also seeks to dismiss Plaintiffs\u2019 UCL claims. \u201cA business act or practice may\n\n 16 violate the UCL if it is either \u2018unlawful,\u2019 \u2018unfair,\u2019 or \u2018fraudulent.\u2019 Each of these three adjectives\n\n 17 captures \u2018a separate and distinct theory of liability.\u2019\u201d Rubio v. Cap. One Bank, 613 F.3d 1195,\n\n 18 1203 (9th Cir. 2010) (citing Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009)).\n\n 19 \u201cThe UCL\u2019s coverage is sweeping, and its standard for wrongful business conduct intentionally\n\n 20 broad.\u201d Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1204 (N.D. Cal. 2014). Plaintiffs advance\n\n 21 UCL claims under each prong, and the Court considers each in turn.\n\n 22 1. Unlawful\n\n 23 Plaintiffs allege that Defendants engaged in \u201cunlawful business practices\u201d by violating the\n\n 24 DMCA. Tremblay Compl. \u00b6\u00b6 69-70; Silverman Compl. \u00b6 70-71. As the Court has dismissed the\n\n 25 predicate DMCA claims, the derivate UCL claims cannot remain. See Eidmann v. Walgreen Co.,\n\n 26 522 F. Supp. 3d 634, 647 (N.D. Cal. 2021) (\u201cIf the \u2018plaintiff cannot state a claim under the\n\n 27 predicate law . . . [the UCL] claim also fails.\u2019\u201d) (alterations in original) (quoting Hadley v. Kellogg\n\n 28 Sales Co., 243 F. Supp. 3d 1074, 1094 (N.D. Cal. 2017)); see Armstrong-Harris v. Wells Fargo\n 8\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 9 of 13\n\n\n\n\n 1 Bank, N.A., No. 21-CV-07637-HSG, 2022 WL 3348426, at *3 (N.D. Cal. Aug. 12, 2022) (citing\n\n 2 cases).\n\n 3 Even if Plaintiffs can bring claims under the DMCA, they must show economic injury\n\n 4 caused by the unfair business practice. See Davis v. RiverSource Life Ins. Co., 240 F. Supp. 3d\n\n 5 1011, 1017 (N.D. Cal. 2017) (quoting Kwikset Corp. v. Superior Ct., 51 Cal. 4th 310, 322 (2011)).\n\n 6 Defendants argue that Plaintiffs have not alleged that they have \u201clost money or property.\u201d Motion\n\n 7 at 29-30; see Kwikset Corp., 51 Cal. 4th at 322-23. Plaintiffs counter that they have lost\n\n 8 intellectual property in connection with the DMCA claims because of the \u201crisk of future damage\n\n 9 to intellectual property that results the moment a defendant removes CMI from digital copies of\n\n 10 Plaintiffs\u2019 work \u2013 copies that can be reproduced and distributed online at near zero marginal cost.\u201d\n\n 11 Response at 28. However, nowhere in Plaintiffs\u2019 complaint do they allege that Defendants\n\n 12 reproduced and distributed copies of their books. Accordingly, any injury is speculative, and the\nNorthern District of California\n United States District Court\n\n\n\n\n 13 unlawful prong of the UCL claim fails for this additional reason.\n\n 14 2. Fraudulent\n\n 15 Plaintiffs also argue that they pleaded UCL violations based on \u201cfraudulent\u201d conduct.\n\n 16 Response at 26-27. They point to a paragraph in the complaint that states that \u201cconsumers are\n\n 17 likely to be deceived\u201d by Defendants\u2019 unlawful practices and that Defendants \u201cdeceptively\n\n 18 designed ChatGPT to output without any CMI.\u201d Tremblay Compl. \u00b6 72. The allegation\u2019s\n\n 19 references to CMI demonstrates that Plaintiffs\u2019 claims rest on a violation of the DMCA, and thus\n\n 20 fail as the Court has dismissed the underlying DMCA claim. Supra Sections B, C(1). To the\n\n 21 extent that Plaintiffs ground their claim in fraudulent business practices, Plaintiffs fail to indicate\n\n 22 where they have pleaded allegations of fraud. Thus, they fail to satisfy the heightened pleading\n\n 23 requirements of Rule 9(b) which apply to UCL fraud claims. See Armstrong-Harris, 2022 WL\n\n 24 3348246, at *2. Therefore, the UCL claim based on fraudulent conduct also fails.\n\n 25 3. Unfair\n\n 26 Under the unfair prong of the UCL, Plaintiffs allege that Defendants used Plaintiffs\u2019\n\n 27 copyrighted works to train ChatGPT without Plaintiffs\u2019 authorization. Tremblay Compl. \u00b6 71;\n\n 28 Silverman Compl. \u00b6 72. California courts have defined \u201cunfair\u201d broadly. For example, the\n 9\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 10 of 13\n\n\n\n\n 1 California Court of Appeal stated, \u201cCalifornia\u2019s unfair competition law prohibits not only\n\n 2 unlawful business practices but also unfair business practices. The statute is intentionally broad to\n\n 3 give the court maximum discretion to control whatever new schemes may be contrived, even\n\n 4 though they are not yet forbidden by law.\u201d People ex rel. Renne v. Servantes, 86 Cal.App.4th\n\n 5 1081, 1095 (2001). The Court of Appeal explained further, \u201c[o]ne test for determining an \u2018unfair\u2019\n\n 6 practice is [whether] the gravity of the harm to the victim outweighs the utility of the defendant\u2019s\n\n 7 conduct.\u201d Id. at 1095.5\n\n 8 Assuming the truth of Plaintiffs\u2019 allegations - that Defendants used Plaintiffs\u2019 copyrighted\n\n 9 works to train their language models for commercial profit - the Court concludes that Defendants\u2019\n\n 10 conduct may constitute an unfair practice.6 Therefore, this portion of the UCL claim may proceed.\n\n 11 D. Negligence (Count V)\n\n 12 Negligence claims require that a plaintiff establish (1) duty; (2) breach; (3) causation; and\nNorthern District of California\n United States District Court\n\n\n\n\n 13 (4) damages. Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (citation omitted). There is a\n\n 14 \u201cgeneral duty of care on a defendant . . . who has created a risk of harm to the plaintiff.\u201d Brown v.\n\n 15 USA Taekwondo, 11 Cal. 5th 204, 214 (2021), reh\u2019g denied (May 12, 2021) (citations omitted).\n\n 16 However, \u201cnot every defendant owes every plaintiff a duty of care.\u201d Id. at 213.\n\n 17 Plaintiffs allege that Defendants owed them a duty of care based on the control of Plaintiffs\n\n 18 information in their possession and breached their duty by \u201cnegligently, carelessly, and recklessly\n\n 19 collecting, maintaining, and controlling systems \u2013 including ChatGPT \u2013 which are trained on\n\n 20 Plaintiffs\u2019 [copyrighted] works.\u201d Tremblay Compl. \u00b6\u00b6 74-75; Silverman Compl. \u00b6\u00b6 75-76.\n\n 21 Defendants seek to dismiss the negligence claim, arguing that 1) Plaintiffs have not established\n\n 22\n\n 23\n 5\n Defendants allege that the \u201cunfair\u201d prong requires alleging that the conduct \u201cthreatens an\n incipient violation of an antitrust law.\u201d ECF 54 (\u201cReply\u201d) at 18 (quoting Cel\u2013Tech Commc'ns,\n 24 Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 164 (1999)). However, that is the definition for\n unfair acts \u201camong competitors.\u201d Sybersound Recs., Inc. v. UAV Corp., 517 F.3d 1137, 1152 (9th\n 25 Cir. 2008) (quoting id.). As that is not the basis of the allegations here, the definition does not\n 26 apply.\n 6\n 27 As OpenAI does not raise preemption, the Court does not consider it. However, the Court notes\n the possibility that to the extent the UCL claim alleges the same violations as the copyright claim,\n 28 it may be preempted by the Copyright Act.\n\n 10\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 11 of 13\n\n\n\n\n 1 that OpenAI owes them a duty and 2) the Complaints only challenge intentional acts. Motion at\n\n 2 30-31.\n\n 3 The Complaints allege that Defendants negligently maintained and controlled information\n\n 4 in their possession. Tremblay Compl. \u00b6\u00b6 74-75; Silverman Compl. \u00b6\u00b6 75-76. Plaintiffs argue\n\n 5 without legal support that Defendants owed a duty to safeguard Plaintiffs\u2019 works. Response at 30.\n\n 6 Plaintiffs do not identify what duty exists to \u201cmaintain[] and control[]\u201d the public information\n\n 7 contained in Plaintiffs\u2019 copyrighted books. The negligence claim fails on this basis.\n\n 8 Plaintiffs\u2019 argument that there is a \u201cspecial relationship\u201d between the parties also fails. See\n\n 9 Response at 30. Nowhere in the Complaints do Plaintiffs allege that there is any fiduciary or\n\n 10 custodial relationship between the parties. Plaintiffs do not explain how merely possessing their\n\n 11 books creates a special relationship, citing only to an inapposite case where defendants were\n\n 12 custodians of plaintiffs\u2019 \u201cpersonal and confidential information.\u201d Witriol v. LexisNexis Grp., No.\nNorthern District of California\n United States District Court\n\n\n\n\n 13 C05-02392 MJJ, 2006 WL 4725713, at *8 (N.D. Cal. Feb. 10, 2006).7\n\n 14 As Plaintiffs have not alleged that Defendants owed them a legal duty, the Court dismisses\n\n 15 this claim with leave to amend.\n\n 16 E. Unjust Enrichment (Count VI)\n\n 17 In the sixth cause of action, Plaintiffs bring an unjust enrichment claim for OpenAI\u2019s use\n\n 18 of the copyrighted books to train ChatGPT. Tremblay Compl. \u00b6\u00b6 79-86; Silverman Compl. \u00b6\u00b6 80-\n\n 19 87. The Ninth Circuit allows an unjust enrichment claim as either an independent cause of action\n\n 20 or as a \u201cquasi-contract claim for restitution.\u201d ESG Cap. Partners, LP v. Stratos, 828 F.3d 1023,\n\n 21 1038 (9th Cir. 2016). \u201cTo allege unjust enrichment as an independent cause of action, a plaintiff\n\n 22\n\n 23 7\n Defendants do not raise the economic loss doctrine, but it may also preclude recovery. See N.\n Am. Chem. Co. v. Superior Ct., 59 Cal. App. 4th 764, 777 (1997) (\u201cThe economic loss rule has\n 24 been applied to bar a plaintiff\u2019s tort recovery of economic damages unless such damages are\n 25 accompanied by some form of physical harm (i.e., personal injury or property damage)\u201d); see also\n Aas v. Superior Ct., 24 Cal. 4th 627, 636 (2000) (limiting liability in a negligence action to\n 26 damages for physical injuries and not permitting recovery for economic loss alone); see, e.g.,\n Strumlauf v. Starbucks Corp., 192 F. Supp. 3d 1025, 1035 (N.D. Cal. 2016) (granting motion to\n 27 dismiss on ground that economic loss doctrine barred plaintiff\u2019s claim).\n 28\n 11\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 12 of 13\n\n\n\n\n 1 must show that the defendant received and unjustly retained a benefit at the plaintiff\u2019s expense.\u201d\n\n 2 Id. Restitution is not ordinarily available to a plaintiff unless \u201cthe benefits were conferred by\n\n 3 mistake, fraud, coercion or request; otherwise, though there is enrichment, it is not unjust.\u201d Nibbi\n\n 4 Bros., Inc. v. Home Fed. Sav. & Loan Assn., 205 Cal. App. 3d 1415, 1422 (Cal. Ct. App. 1988)\n\n 5 (quoting 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, \u00a7 97, p. 126.); see Astiana v.\n\n 6 Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (quoting 55 Cal. Jur. 3d Restitution \u00a7\n\n 7 2) (the theory underlying an unjust enrichment claim is that \u201ca defendant has been unjustly\n\n 8 conferred a benefit \u2018through mistake, fraud, coercion, or request.\u2019\u201d).\n\n 9 Defendants argue that this claim must be dismissed because Plaintiffs fail to allege what\n\n 10 \u201cbenefit\u201d they quasi-contractually \u201cconferred\u201d on OpenAI or that Plaintiffs conferred this benefit\n\n 11 through \u201cmistake, fraud, or coercion.\u201d Motion at 32 (citing Bittel Tech., Inc. v. Bittel USA, Inc.,\n\n 12 No. C10-00719 HRL, 2010 WL 3221864, at *5 (N.D. Cal. Aug. 13, 2010) (\u201cOrdinarily, a plaintiff\nNorthern District of California\n United States District Court\n\n\n\n\n 13 must show that the benefit was conferred on the defendant through mistake, fraud or coercion.\u201d)\n\n 14 (citation omitted). Plaintiffs fail to allege that OpenAI \u201chas been unjustly conferred a benefit\n\n 15 \u2018through mistake, fraud, coercion, or request.\u2019\u201d See Astiana, 783 F.3d at 762 (citation omitted);\n\n 16 LeGrand v. Abbott Lab\u2019ys, 655 F. Supp. 3d 871, 898 (N.D. Cal. 2023) (same); see, e.g., Russell v.\n\n 17 Walmart, Inc., No. 22-CV-02813-JST, 2023 WL 4341460, at *2 (N.D. Cal. July 5, 2023) (\u201cit is\n\n 18 not enough that Russell have provided Walmart with a beneficial service; Russell must also allege\n\n 19 that Walmart unjustly secured that benefit through qualifying conduct. Absent qualifying mistake,\n\n 20 fraud, coercion, or request by Walmart, there is no injustice.\u201d). As Plaintiffs have not alleged that\n\n 21 OpenAI unjustly obtained benefits from Plaintiffs\u2019 copyrighted works through fraud, mistake,\n\n 22 coercion, or request, this claim fails.8\n\n 23 IV. CONCLUSION\n\n 24 For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants\u2019\n\n 25 motions to dismiss. Plaintiffs\u2019 amended complaint must be filed by March 13, 2024. No\n\n 26\n 27 8\n Because Plaintiffs fail to adequately allege the negligence and unjust enrichment claims, the\n 28 Court need not reach the preemption issue at this time.\n\n 12\n\f Case 3:23-cv-03416-AMO Document 68 Filed 02/12/24 Page 13 of 13\n\n\n\n\n 1 additional parties or claims may be added without leave of Court or stipulation of Defendants.\n\n 2 The amended complaint shall consolidate the claims in 23-cv-3223-AMO (Tremblay et al. v.\n\n 3 OpenAI, Inc. et al.), 23-cv-04625-AMO (Chabon et al. v. OpenAI, Inc. et al.), 23-cv-03416\n\n 4 (Silverman et al. v. OpenAI, Inc. et al.). The Court will issue a separate order consolidating the\n\n 5 three cases. This Order terminates ECF 33 in 23-cv-3223-AMO (Tremblay et al. v. OpenAI, Inc.\n\n 6 et al.) and ECF 32 in 23-cv-03416 (Silverman et al. v. OpenAI, Inc. et al.).\n\n 7\n\n 8 IT IS SO ORDERED.\n\n 9 Dated: February 12, 2024\n\n 10\n\n 11\n ARACELI MART\u00cdNEZ-OLGU\u00cdN\n 12 United States District Judge\nNorthern District of California\n United States District Court\n\n\n\n\n 13\n\n 14\n\n 15\n\n 16\n\n 17\n\n 18\n\n 19\n\n 20\n\n 21\n\n 22\n\n 23\n\n 24\n\n 25\n\n 26\n 27\n\n 28\n 13\n\f","ocr_status":2,"date_upload":"2024-02-12T18:14:04.356063-08:00","document_number":"68","attachment_number":null,"pacer_doc_id":"035024068003","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Order on Motion to Dismiss","acms_document_guid":""}],"date_created":"2024-02-12T18:12:54.623893-08:00","date_modified":"2026-05-19T12:07:06.068728-07:00","date_filed":"2024-02-12","time_filed":"18:01:27","entry_number":68,"recap_sequence_number":"2024-02-12.002","pacer_sequence_number":236,"description":"Order by Judge Araceli Martinez-Olguin granting in part and denying in part 32 Motion to Dismiss. Cross-posted in 23-cv-03223. (amolc2, COURTSTAFF) (Filed on 2/12/2024) (Entered: 02/12/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/378189534/","id":378189534,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/385854602/","id":385854602,"tags":[],"absolute_url":"/docket/67569254/67/silverman-v-openai-inc/","date_created":"2024-02-12T09:15:30.667056-08:00","date_modified":"2026-05-19T12:07:06.020332-07:00","sha1":"59efc80086261b76503baae6ea879db4c5b1a4e0","page_count":2,"file_size":234970,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.67.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.67.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.415174/385854602.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:23-cv-03416-AMO Document 67 Filed 02/12/24 Page 1 of 2\n\n\n UNITED STATES DISTRICT COURT TRANSCRIPT ORDER COURT USE ONLY\n NORTHERN DISTRICT OF CALIFORNIA Please use one form per court reporter. DUE DATE:\n CAND 435 CJA counsel please use Form CJA24\n (CAND Rev. 08/2018) Please read instructions on next page.\n1a. CONTACT PERSON FOR THIS ORDER 2a. CONTACT PHONE NUMBER 3. CONTACT EMAIL ADDRESS\nNicholas Loaiza (310) 789-3119 nloaiza@susmangodfrey.com\n1b. ATTORNEY NAME (if different) 2b. ATTORNEY PHONE NUMBER 3. ATTORNEY EMAIL ADDRESS\nRohit Nath (310) 789-3138 rnath@susmangodfrey.com\n4. MAILING ADDRESS (INCLUDE LAW FIRM NAME, IF APPLICABLE) 5. CASE NAME 6. CASE NUMBER\nSusman Godfrey LLP\n1900 Avenue of the Stars, Suite 1400 Tremblay, et al v. OpenAI, Inc., et al 3:23-cv-03223\nCentury City, CA 90067\n 8. THIS TRANSCRIPT ORDER IS FOR:\n7. COURT REPORTER NAME ( FOR FTR, LEAVE BLANK AND CHECK BOX)\u2192 \u2750 FTR \u2750 APPEAL \u2750 CRIMINAL \u2750 In forma pauperis (NOTE: Court order for transcripts must be attached)\nAna Dub \u2750 NON-APPEAL \u2714 CIVIL\n \u2750 CJA: Do not use this form; use Form CJA24.\n\n\n9. TRANSCRIPT(S) REQUESTED (Specify portion(s) and date(s) of proceeding(s) for which transcript is requested), format(s) & quantity and delivery type:\n\n b. SELECT FORMAT(S) (NOTE: ECF access is included\n a. HEARING(S) (OR PORTIONS OF HEARINGS) c. DELIVERY TYPE ( Choose one per line)\n with purchase of PDF, text, paper or condensed.)\n\n DATE JUDGE TYPE PORTION PDF TEXT/ASCII PAPER CONDENSED ECF ACCESS ORDINARY 14-Day EXPEDITED 3-DAY DAILY HOURLY REALTIME\n If requesting less than full hearing, (email) (email) (email) (web) (30-day) (7-day) (Next day) (2 hrs)\n (initials) (e.g. CMC) specify portion (e.g. witness or time)\n\n \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1\n \u25cf\n\n\n\n\n \u25cf\n12/07/2023 AMO MTD\n \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1\n \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1\n \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1\n \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1\n \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1 \uf0a1\n10. ADDITIONAL COMMENTS, INSTRUCTIONS, QUESTIONS, ETC:\n\n\n\n\nORDER & CERTIFICATION (11. & 12.) By signing below, I certify that I will pay all charges (deposit plus additional). 12. DATE\n11. SIGNATURE\n 02/09/2024\n\n\n Clear Form Save as new PDF\n\f Case 3:23-cv-03416-AMO Document 67 Filed 02/12/24 Page 2 of 2\n\n\nCAND 435\n(Rev. 08/2018) INSTRUCTIONS\nUse this form to order the transcription of a record of proceedings. CJA counsel should use Form CJA24. Before completing this form, please visit cand.uscourts.gov/transcripts\nfor complete transcript ordering information. THESE INSTRUCTIONS SUPPLEMENT THE WEBSITE INFORMATION.\n 1. Complete a separate order form for each case number for which transcripts are ordered.\n 2. Complete a separate order form for each court reporter who reported proceedings in the case.\n 3. Complete Items 1-12. Keep a copy of your completed order form for your records.\n 4. E-file this form in the U.S. District Court CM/ECF system. Exceptions to e-filing: (a) sealed cases/proceedings; (b) non-parties; (c) pro se parties who are not e-filers.\n In such cases, mail or hand-deliver a hard copy addressed to the court reporter supervisor (email list available at cand.uscourts.gov/transcripts/contact) at the\n Court division where the proceeding was held.\n 5. Next, the court reporter/transcriber will contact you to confirm estimated costs and delivery options. Deliver payment to the court reporter/transcriber promptly.\n Upon receipt of the deposit, the court reporter/transcriber will begin work on the transcript.\n 6. Unless prepayment is waived, delivery time is computed from the date the court reporter/transcriber receives the deposit, authorized CJA 24 Form, authorization\n from Federal Public Defender\u2019s Office or, for transcripts ordered by the U.S. government, from the date of receipt of the DCN number.\n 7. The deposit fee is an estimate. Any overage will be refunded; any shortage will be due from you.\n ITEM-BY-ITEM INSTRUCTIONS (ITEMS 1-12):\nItems 1-3 In fields 1a, 2a & 3a, please provide the contact name and information for the person responsible for ordering the transcript. In a law office, this is usually a\n paralegal or administrative assistant, not the attorney. In fields 1b, 2b & 3b, provide the attorney name and contact info, if the attorney is not the contact person.\nItems 5-6. Only one case number may be listed per order.\nItem 7. Visit cand.uscourts.gov/transcripts for instructions for determining the name of the court reporter who reported the proceeding or if the proceeding was audio-\n recorded. If minutes have not been filed, contact the court reporter supervisor at the division where the hearing was held.\nItem 8. Check appeal OR non-appeal AND criminal OR civil. In forma pauperis: a court order specifically authorizing transcripts is required before transcripts may be\n ordered in forma pauperis.\nItem 9a. List specific date(s) of the proceedings for which transcript is requested. A transcript of only a portion of a proceeding may be ordered, if the description is clearly\n written to facilitate processing. Under \u201ctype,\u201d indicate briefly what type of proceeding it was, such as \u201cmotion,\u201d \u201csentencing,\u201d or \u201cCMC.\u201d\nItem 9b. Select desired FORMAT(S) for transcript. There is an additional charge for each format ordered. Visit cand.uscourts.gov/transcripts/rates for details. Unlock\n ECF/web access is included at no extra charge with each of the other formats.\nItem 9c. There are 7 DELIVERY TYPES to choose from (times are computed from date of receipt of the deposit fee or DCN number). NOTE: Full price may be charged only if\n the transcript is delivered within the required time frame. For example, if an order for expedited transcript is not completed and delivered within 7 calendar days,\n the 14-day delivery rate would be charged.\n TRANSCRIPT DELIVERY TIMES:\n \uf0a7 ORDINARY \u2500 30 calendar days.\n \uf0a7 14-DAY \u2500 14 calendar days.\n \uf0a7 EXPEDITED \u2500 7 calendar days.\n \uf0a7 3-DAY \u2500 3 calendar days\n \uf0a7 DAILY (NEXT DAY) \u2500 Following adjournment and prior to the normal opening hour of the court on the following morning whether or not it actually is a court day.\n \uf0a7 HOURLY (SAME DAY) \u2500 within two (2) hours.\n \uf0a7 REALTIME \u2500 A draft unedited, uncertified transcript produced by a certified realtime reporter as a byproduct of realtime to be delivered electronically during\n proceedings or immediately following adjournment.\nItem 11. Sign in this space to certify that you will pay all charges (the deposit plus any additional charges.) An electronic or conformed (/s/) signature is acceptable.\nItem 12. Enter the date of signing the order and certification.\n\f","ocr_status":2,"date_upload":"2024-02-12T09:20:59.875437-08:00","document_number":"67","attachment_number":null,"pacer_doc_id":"035024064169","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Transcript Order","acms_document_guid":""}],"date_created":"2024-02-12T09:15:30.651652-08:00","date_modified":"2026-05-19T12:07:05.986480-07:00","date_filed":"2024-02-12","time_filed":"09:02:12","entry_number":67,"recap_sequence_number":"2024-02-12.001","pacer_sequence_number":234,"description":"TRANSCRIPT ORDER for proceedings held on December 27, 2023 before Judge Araceli Martinez-Olguin for Court Reporter Ana Dub (amd, COURT STAFF) (Filed on 2/12/2024) (Entered: 02/12/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/374490543/","id":374490543,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/382071154/","id":382071154,"tags":[],"absolute_url":"/docket/67569254/66/silverman-v-openai-inc/","date_created":"2024-01-01T14:18:33.450733-08:00","date_modified":"2026-05-19T12:07:05.947370-07:00","sha1":"7fe37c13031b5bcc074cf4fb310dcc44c2f6561f","page_count":1,"file_size":151605,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.66.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.66.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.415174/382071154.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:23-cv-03416-AMO Document 66 Filed 01/01/24 Page 1 of 1\n\n\n UNITED STATES DISTRICT COURT TRANSCRIPT ORDER COURT USE ONLY\n NORTHERN DISTRICT OF CALIFORNIA Please use one form per court reporter. DUE DATE:\n CAND 435 CJA counsel please use Form CJA24\n (CAND Rev. 08/2018) Please read instructions on next page.\n1a. CONTACT PERSON FOR THIS ORDER 2a. CONTACT PHONE NUMBER 3. CONTACT EMAIL ADDRESS\nAlia Abadir (202) 974-1854 dc-managingclerk@cgsh.com\n1b. ATTORNEY NAME (if different) 2b. ATTORNEY PHONE NUMBER 3. ATTORNEY EMAIL ADDRESS\nArminda Bepko (212) 225-2517 abepko@cgsh.com\n\n4. MAILING ADDRESS (INCLUDE LAW FIRM NAME, IF APPLICABLE) 5. CASE NAME 6. CASE NUMBER\nCleary Gottlieb Steen & Hamilton LLP\n2112 Pennsylvania Avenue, NW Tremblay et al v. OpenAI, Inc. et al 3:23-cv-03223\nWashington, DC 20037\n 8. THIS TRANSCRIPT ORDER IS FOR:\n7. COURT REPORTER NAME ( FOR FTR, LEAVE BLANK AND &+(&.\u0003%2; \u0239\u0003\u07ab FTR \u07ab APPEAL \u07ab CRIMINAL \u07ab In forma pauperis (NOTE: Court order for transcripts must be attached)\nAna Dub \u2714 NON-APPEAL\n \u07ab \u2714 CIVIL\n \u07ab CJA: Do not use this form; use Form CJA24.\n\n\n9. TRANSCRIPT(S) REQUESTED (Specify portion(s) and date(s) of proceeding(s) for which transcript is requested), format(s) & quantity and delivery type:\n\n b. SELECT FORMAT(S) (NOTE: ECF access is included\n a. HEARING(S) (OR PORTIONS OF HEARINGS) c. DELIVERY TYPE ( Choose one per line)\n with purchase of PDF, text, paper or condensed.)\n\n DATE JUDGE TYPE PORTION PDF TEXT/ASCII PAPER CONDENSED ECF ACCESS ORDINARY 14-Day EXPEDITED 3-DAY DAILY HOURLY REALTIME\n If requesting less than full hearing, (email) (email) (email) (web) (30-day) (7-day) (Next day) (2 hrs)\n (initials) (e.g. CMC) specify portion (e.g. witness or time)\n\n12/07/2023 AMO MTD { { { { { { { { { { { {\n \u25cf\n\n\n\n\n \u25cf\n { { { { { { { { { { { {\n { { { { { { { { { { { {\n { { { { { { { { { { { {\n { { { { { { { { { { { {\n { { { { { { { { { { { {\n10. ADDITIONAL COMMENTS, INSTRUCTIONS, QUESTIONS, ETC:\n\n\n\n\nORDER & CERTIFICATION (11. & 12.) By signing below, I certify that I will pay all charges (deposit plus additional). 12. DATE\n11. SIGNATURE\n /s/ Alia Abadir 12/14/2023\n\n\n Clear Form Save as new PDF\n\f","ocr_status":2,"date_upload":"2024-01-04T21:26:42.747510-08:00","document_number":"66","attachment_number":null,"pacer_doc_id":"035023923995","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Transcript Order","acms_document_guid":""}],"date_created":"2024-01-01T14:18:33.434304-08:00","date_modified":"2026-05-19T12:07:05.907187-07:00","date_filed":"2024-01-01","time_filed":"13:51:03","entry_number":66,"recap_sequence_number":"2024-01-01.001","pacer_sequence_number":232,"description":"TRANSCRIPT ORDER for proceedings held on December 7, 2023 before Judge Araceli Martinez-Olguin for Court Reporter Ana Dub (amd, COURT STAFF) (Filed on 1/1/2024) (Entered: 01/01/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/373158490/","id":373158490,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/413454359/","id":413454359,"tags":[],"absolute_url":"/docket/67569254/65/silverman-v-openai-inc/","date_created":"2024-09-25T12:50:34.067121-07:00","date_modified":"2026-05-19T12:07:05.856580-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"65","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2023-12-13T12:43:53.695016-08:00","date_modified":"2026-05-19T12:07:05.798941-07:00","date_filed":"2023-12-13","time_filed":null,"entry_number":65,"recap_sequence_number":"2023-12-13.001","pacer_sequence_number":null,"description":"Clerk's Notice Vacating Case Management Conference. Case Management Conference set for 1/4/2024 at 10:00 AM is hereby VACATED. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ads, COURT STAFF) (Filed on 12/13/2023) (Entered: 12/13/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/373142463/","id":373142463,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/380690482/","id":380690482,"tags":[],"absolute_url":"","date_created":"2023-12-13T11:11:57.400982-08:00","date_modified":"2023-12-13T11:11:57.416934-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Clerk's Notice","acms_document_guid":""}],"date_created":"2023-12-13T11:11:57.375686-08:00","date_modified":"2023-12-13T11:11:57.375696-08:00","date_filed":"2023-12-13","time_filed":"08:45:59","entry_number":null,"recap_sequence_number":"2023-12-13.001","pacer_sequence_number":null,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/372917197/","id":372917197,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/380460892/","id":380460892,"tags":[],"absolute_url":"/docket/67569254/64/silverman-v-openai-inc/","date_created":"2023-12-11T11:39:20.288877-08:00","date_modified":"2026-05-19T12:07:05.757346-07:00","sha1":"065d363a4502a9638221a9cc2f5d6c61fd2ac3d4","page_count":14,"file_size":211956,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.64.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.64.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.415174/380460892.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 1 of 14\n\n\n Pages 1 - 14\n\n UNITED STATES DISTRICT COURT\n\n NORTHERN DISTRICT OF CALIFORNIA\n\nBefore The Honorable Araceli Martinez-Olguin, Judge\n\nPAUL TREMBLAY, et al., )\n Individual and )\n Representative Plaintiffs, )\n )\n VS. ) NO. 23-CV-03223 AMO\n )\nOPENAI, INC., et al., )\n Defendants. )\n__________________________________________)\n )\nSARAH SILVERMAN, et al., )\n Individual and )\n Representative Plaintiffs, )\n )\n VS. ) NO. 23-CV-03416 AMO\n )\nOPENAI, INC., et al., )\n Defendants. )\n__________________________________________)\n )\nMICHAEL CHABON, et al., )\n Plaintiffs, )\n )\n VS. ) NO. 23-CV-04625 AMO\n )\nOPENAI, INC., et al., )\n Defendants. )\n__________________________________________)\n\n San Francisco, California\n Thursday, December 7, 2023\n\n TRANSCRIPT OF PROCEEDINGS\n\n\n\n (APPEARANCES ON FOLLOWING PAGE)\n\n\nREPORTED BY: Ana Dub, RDR, RMR, CRR, CCRR, CRG, CCG\n CSR No. 7445, Official United States Reporter\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 2 of 14 2\n\n\n1 APPEARANCES:\n\n2 For Plaintiffs:\n JOSEPH SAVERI LAW FIRM, INC.\n3 601 California Street\n San Francisco, California 94108\n4 BY: JOSEPH R. SAVERI, ATTORNEY AT LAW\n CHRISTOPHER K. YOUNG, ATTORNEY AT LAW\n5\n\n6 LAW OFFICE OF MATTHEW BUTTERICK\n 1920 Hillhurst Avenue, Suite 406\n7 Los Angeles, California 90027\n BY: MATTHEW C. BUTTERICK, ATTORNEY AT LAW\n8\n\n9 For Defendants:\n LATHAM & WATKINS LLP\n10 505 Montgomery Street, Suite 2000\n San Francisco, California 94111\n11 BY: ANDREW M. GASS, ATTORNEY AT LAW\n\n12\n MORRISON & FOERSTER LLP\n13 425 Market Street\n San Francisco, California 94105\n14 BY: JOSEPH C. GRATZ, ATTORNEY AT LAW\n\n15\n\n16 Also Present: Renny Hwang\n Fred von Lohmann\n17 Mike Trinh\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 3 of 14 3\n\n\n1 Thursday - December 7, 2023 3:06 p.m.\n\n2 P R O C E E D I N G S\n\n3 ---o0o---\n\n4 THE CLERK: Calling civil matters, Related\n\n5 Cases 23-3223, Tremblay, et al. v. OpenAI Incorporated, et al.\n\n6 and 23-3416, Silverman, et al. v. OpenAI Incorporated, et al.\n\n7 Counsel, please state your appearances for the record,\n\n8 starting with the plaintiff.\n\n9 MR. SAVERI: Good afternoon, Your Honor. Joseph\n\n10 Saveri on behalf of the plaintiffs.\n\n11 MR. YOUNG: Good afternoon, Your Honor.\n\n12 Christopher Young on behalf of plaintiffs.\n\n13 MR. BUTTERICK: Your Honor, good afternoon. Matthew\n\n14 Butterick for the plaintiffs.\n\n15 THE COURT: Good afternoon.\n\n16 MR. GASS: Good morning, Your Honor. Andy Gass from\n\n17 Latham & Watkins on behalf of defendants OpenAI.\n\n18 With us in the gallery from OpenAI are Renny Hwang,\n\n19 Fred von Lohmann, and Mike Trinh.\n\n20 THE COURT: Good afternoon.\n\n21 MR. GRATZ: Hi. I'm Joe Gratz from Morrison &\n\n22 Foerster, also for OpenAI.\n\n23 THE COURT: Good afternoon, everyone, and thank you\n\n24 for hanging in there. I realize you didn't have much choice in\n\n25 the matter, but I still want to thank you for your patience.\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 4 of 14 4\n\n\n1 All right. Mr. Saveri, let's talk. So I have the\n\n2 benefit of -- because -- and I thank you all for the\n\n3 supplemental -- for all the supplemental authority that you\n\n4 have continued to bring my way.\n\n5 I have to tell you, I read Judge Chhabria's short,\n\n6 sweet opinion; and so you'll forgive me, Mr. Saveri, but I'm\n\n7 tempted to just start by asking you: Tell me why\n\n8 Judge Chhabria is wrong that the theories of liability, at\n\n9 least as presented in the current operative complaint, aren't\n\n10 viable.\n\n11 MR. SAVERI: Well, Your Honor, thank you.\n\n12 We certainly differ with respect to the way\n\n13 Judge Chhabria landed on a number of the issues, and I could go\n\n14 through those.\n\n15 I would also say that with respect to how\n\n16 Judge Chhabria landed on them -- I mean, first of all, the\n\n17 direct infringement claim is not disputed in both cases.\n\n18 There's the claim with respect to the training -- right? --\n\n19 which is essentially -- which the defendants don't dispute.\n\n20 The training model claims are not opposed.\n\n21 So there are, just as in Judge -- the case\n\n22 involving -- that Judge Chhabria decided, the direct\n\n23 infringement, the copyright claims were not opposed, and they\n\n24 will proceed. So at least with respect to one -- with respect\n\n25 to a -- we have multiple theories of liability with respect to\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 5 of 14 5\n\n\n1 that claim. And there are claims that are not opposed. So\n\n2 that claim is surviving.\n\n3 Now, in addition, there are other claims that\n\n4 Judge Chhabria did rule on: the vicarious infringement\n\n5 claim, the state law claims. Those claims as well, he did, of\n\n6 course, grant leave to amend with respect to all of them.\n\n7 And to the extent that you are impressed or convinced\n\n8 by Judge Chhabria's --\n\n9 THE COURT: Moved. Sorry.\n\n10 MR. SAVERI: -- moved, that we, of course, would want\n\n11 to have leave to amend.\n\n12 Look, I think there are a couple of key things that I\n\n13 would say.\n\n14 The fact that the -- the fact that -- most of\n\n15 Judge Chhabria's -- a lot of the argument in front of\n\n16 Judge Chhabria was about substantial similarity and whether the\n\n17 Ninth Circuit law requires that or not. I just want to be very\n\n18 clear with Your Honor that our position under the Range Road\n\n19 case, other cases in the Ninth Circuit, hold that when we\n\n20 allege and we can prove direct copying, the requirement of\n\n21 substantial similarity is not an additional requirement.\n\n22 And what I would ask the Court to look at is\n\n23 Judge Bibas' decision from the District of Delaware in the\n\n24 Thomson Reuters case, where Judge Bibas wrote (as read):\n\n25 \"There are two ways to show actual copying.\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 6 of 14 6\n\n\n1 Thomas Reuters\" -- that's the plaintiffs in that\n\n2 case -- \"can present direct evidence or it can\n\n3 present circumstantial evidence demonstrating that\n\n4 the defendants there had access to the copyrighted\n\n5 work and that their work contained similarities\n\n6 probative of copying.\"\n\n7 So the copyright claims involve a claim that the\n\n8 protected work was impermissibly, without permission,\n\n9 reproduced. That reproduction can be shown by evidence of\n\n10 direct copying as well as substantial similarity, which is\n\n11 circumstantial evidence of that.\n\n12 It's our position, consistent with what Judge Bibas\n\n13 found in this recent Thomson Reuters case, that those are\n\n14 alternative ways of proving it. Judge Chhabria, to be fair,\n\n15 was not -- was not moved and disagreed with us. But I wanted\n\n16 to be very clear that that's -- that that's our -- that's our\n\n17 position.\n\n18 With respect to the other --\n\n19 THE COURT: Before you move on --\n\n20 MR. SAVERI: Yes.\n\n21 THE COURT: Before you move on, you mentioned that you\n\n22 have other Ninth Circuit authority beyond Range Road. If you\n\n23 were going to point me to one other, what would it be?\n\n24 MR. SAVERI: Well, in addition to Range Road for this\n\n25 point?\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 7 of 14 7\n\n\n1 THE COURT: Yes.\n\n2 MR. SAVERI: Sure, Your Honor. I think the three\n\n3 cases that we think are the best and show why we are correct,\n\n4 one, Range Road was the Ninth Circuit 2012 case. I just\n\n5 mentioned the Thomson Reuters case, which was a September 25th,\n\n6 2023, case by Judge Bibas from the District of Delaware. We've\n\n7 also cited ITC Textile vs. Wal-Mart Stores, which is a -- cited\n\n8 in the brief. It's a Central District of California case\n\n9 decided in December of 2015.\n\n10 So those are really the three cases we hang our\n\n11 collective hat on, and so I just wanted to be very clear about\n\n12 that.\n\n13 THE COURT: Thank you.\n\n14 MR. SAVERI: It's an interesting position you've put\n\n15 me in, Your Honor, because very much I think that the -- a lot\n\n16 of arguments that we made in front of Judge Chhabria we would\n\n17 just simply repeat to you here. We've put them in our briefs.\n\n18 THE COURT: If it -- go ahead.\n\n19 MR. SAVERI: And, Your Honor, I guess what -- if there\n\n20 are any particular ones that you would want me to address, I'm\n\n21 happy -- I'm happy to go through them.\n\n22 Certainly, we feel like -- and we're confident that\n\n23 with leave to amend, there are more facts to allege. I guess I\n\n24 would say that one of the consequences of that will be a\n\n25 complaint which is substantially longer and in more detail.\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 8 of 14 8\n\n\n1 And that's by way of a promise, not a threat. But there will\n\n2 be a much longer document.\n\n3 And we welcome the opportunity. You know, we've had a\n\n4 number of these other cases. Judge Tigar, Judge Orrick has\n\n5 given us leave to amend. We do our homework, and we're\n\n6 prepared to address the questions or concerns that the Court\n\n7 has about the pleading.\n\n8 So if there are particular questions or elements of\n\n9 our theory you'd like me to address, I'm happy to do it.\n\n10 THE COURT: Let me say this, Mr. Saveri. One of the\n\n11 things that jumped out at me -- not only do I have the benefit\n\n12 of Judge Chhabria's opinion, I also read through the transcript\n\n13 from that hearing. And I think what struck me -- And I don't\n\n14 mean to -- I don't mean to -- you all will get time. I'm not\n\n15 saying you don't.\n\n16 But what struck me, ultimately, is that it felt like\n\n17 many places in the dialogue with Judge Chhabria, what I --\n\n18 where I think he landed, ultimately, was you describing things\n\n19 that might be viable causes of action but that just aren't\n\n20 presently in the complaint as pled.\n\n21 So you don't have to convince me that there might well\n\n22 be things that you can add that you will get to -- you'll live\n\n23 to write another day; but ultimately, what I have in front of\n\n24 me is the complaint as it is.\n\n25 MR. SAVERI: And I understand that, Your Honor. And\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 9 of 14 9\n\n\n1 if you read the transcript, you will note that I tried to show\n\n2 and tried to convince that the facts are there that are\n\n3 necessary to state our causes of action under Rule 8,\n\n4 consistent with the rules of notice pleading. I fully\n\n5 understand that Judge Chhabria was not sold, and he thought and\n\n6 believes a number of the specific facts that we talked about\n\n7 were not in the complaint.\n\n8 And, again, I would find myself in the same position.\n\n9 We could talk about those and explain them; but if the Court\n\n10 finds that the complaint, as pled, is missing some of those\n\n11 complaints, I think what we would do is say: Well, we\n\n12 disagree. We'd certainly -- we're entitled to leave to amend,\n\n13 and that would be the appropriate way to proceed.\n\n14 THE COURT: Thank you, Mr. Saveri.\n\n15 Gentlemen?\n\n16 MR. GASS: Andy Gass from Latham & Watkins on behalf\n\n17 of OpenAI.\n\n18 And, Your Honor, I'll be brief here. Like you, I was\n\n19 quite persuaded by Judge Chhabria's order, as I was by\n\n20 Judge Orrick's order of October 30. We should remember to give\n\n21 him his due.\n\n22 Just to very quickly respond to Mr. Saveri's argument,\n\n23 the binding Ninth Circuit precedent that he didn't mention is\n\n24 the Litchfield case, in which there was a playwright who had\n\n25 written a one-act play about an extraterrestrial and submitted\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 10 of 14 10\n\n\n1 it to Universal Films to see if they would make a movie of it.\n\n2 And so they had the play right there, and they sent her a note\n\n3 saying \"We'll pass.\"\n\n4 They went on to make the movie E.T., and she sued them\n\n5 and Steven Spielberg for having illegally copied her idea, her\n\n6 play, and then for having created an unlawful derivative work\n\n7 via the movie.\n\n8 And so everyone agrees that Universal had access to\n\n9 the copyrighted work that they would ultimately -- was\n\n10 ultimately at issue in the case. On the basis of those facts,\n\n11 the Ninth Circuit held that it was frivolous to contend that\n\n12 the movie was a derivative work of the play, irrespective of\n\n13 whether there was substantial similarity between the two,\n\n14 because, they said: Of course, even in a case where the\n\n15 defendant had access, unmistakably, to a copy of the allegedly\n\n16 infringed work, the plaintiff still needs to show that their\n\n17 thing looks like her thing.\n\n18 I won't go ahead and distinguish the Range Road case\n\n19 because I think that Judge Chhabria did that quite ably.\n\n20 Another case that Mr. Saveri mentioned was the ITC\n\n21 case. There, too, it's the same analysis that Judge Chhabria\n\n22 embraced with respect to Range Road, which is to say, it was\n\n23 undisputed in that case that what the defendant did was use an\n\n24 identical copy of the plaintiffs' thing.\n\n25 The facts of that one were a little different. It was\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 11 of 14 11\n\n\n1 about textiles. And the plaintiff in that case had actually\n\n2 sent verbatim identical digital files of their textiles to the\n\n3 defendant. And the defendant -- there's a quote in the case\n\n4 from a sworn declaration from the defendant saying, \"Of course\n\n5 we used the actual thing that they had sent us.\" So there was\n\n6 no debate about that.\n\n7 And just as in Range Road, where as Judge Chhabria\n\n8 noted, the point was there was no dispute with respect to\n\n9 infringement that what had been used at the output stage, so to\n\n10 speak, was identical, so, too, in the ITC case. That's all\n\n11 that those cases stand for.\n\n12 The Thomson Reuters case, briefly, is an important\n\n13 one, I agree with Mr. Saveri; but it helps OpenAI here, not his\n\n14 side. I would direct Your Honor's attention to star page 10 of\n\n15 the Westlaw opinion in that case.\n\n16 And that's a case that's a little bit closer factually\n\n17 to the scenario that we're looking at here. It's a case about\n\n18 a start-up company that was trying to create a sort of\n\n19 generative AI-type product for lawyers. And so the copyrighted\n\n20 works that were copied in that case were Westlaw opinions with\n\n21 the headnotes and all of that stuff included. And Judge Bibas\n\n22 in that case denies summary judgment to both sides, but he has\n\n23 a lot to say about whether the ultimate use of the copyrighted\n\n24 headnotes in the judicial opinions is fair use.\n\n25 What he says at the passage that I'm directing your\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 12 of 14 12\n\n\n1 attention to here at page star 10 is, he says (as read):\n\n2 \"I actually need to know whether, in practice,\n\n3 the outputs of the defendant's product reprise the\n\n4 copyrighted expression from the headnotes, because if\n\n5 they do, this is a very different case than if\n\n6 they're just reprising the unprotected expression\n\n7 from the judicial opinions.\"\n\n8 Now, suffice it to say, that analysis makes no sense\n\n9 if literally everything that the AI spits out is a prima facie\n\n10 infringement.\n\n11 So if Your Honor doesn't have any more questions, I\n\n12 will sit down.\n\n13 THE COURT: Thank you.\n\n14 MR. GASS: Thank you.\n\n15 MR. SAVERI: And, Your Honor, without belaboring it,\n\n16 we addressed the arguments that my opponent just made with\n\n17 respect to Litchfield. We cite to the ITC Textile case, and we\n\n18 cite this language in the brief.\n\n19 (As read):\n\n20 \"In particular, the fact that the final result\n\n21 of defendants' work differs from plaintiff's work is\n\n22 not exonerating.\"\n\n23 So I would just refer the Court to the language in the\n\n24 argument that we have on page 9 of our brief, our discussion of\n\n25 ITC Textile and how, as we explain in Footnote 4, that\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 13 of 14 13\n\n\n1 Litchfield can, in fact, be distinguished.\n\n2 I mean, here, we have allegations, which we will\n\n3 prove, that the work of our plaintiffs was substantially\n\n4 copied, if not copied completely. That proof was absent in the\n\n5 Litchfield case completely.\n\n6 The other thing I would just note about Judge Bibas's\n\n7 decision is, I think what's important here -- among the things\n\n8 that are important here is, ultimately, Judge Bibas concludes\n\n9 that these issues, the issues that are framed by the complaint,\n\n10 are ultimately factual issues and, as my opponent just\n\n11 indicated, that these are issues which are more appropriately\n\n12 not resolved on the pleadings but more appropriately under\n\n13 Rule 56 on summary judgment or is going to -- most likely by a\n\n14 jury at trial. And I think that's quite important.\n\n15 With that, Your Honor, I don't have anything to add.\n\n16 THE COURT: Thank you, Mr. Saveri.\n\n17 Counsel, I thank you all. I'll take it under\n\n18 submission.\n\n19 My sense is that it's probably beneficial for you all\n\n20 to get -- I will tell you, I'm tempted to do it from the Bench,\n\n21 but I think there's some value in there being something else\n\n22 written. I'm sure my law clerks don't love that. But we'll\n\n23 get you something. I won't promise you any sort of timeline,\n\n24 but I'll just thank you and take it under submission.\n\n25 MR. SAVERI: Okay. Thank you.\n\f Case 3:23-cv-03416-AMO Document 64 Filed 12/11/23 Page 14 of 14 14\n\n\n1 THE COURT: Thank you.\n\n2 And I regret keeping you. I should have had you all\n\n3 go first. I'm so sorry.\n\n4 (Laughter.)\n\n5 THE COURT: All right. We're adjourned. Thank you.\n\n6 (Proceedings adjourned at 3:23 p.m.)\n\n7 ---o0o---\n\n8 CERTIFICATE OF REPORTER\n\n9 I certify that the foregoing is a correct transcript\n\n10 from the record of proceedings in the above-entitled matter.\n\n11\n\n12 DATE: Monday, December 11, 2023\n\n13\n\n14\n\n15\n\n16 _____________________________________________\n\n17 Ana Dub, RDR, RMR, CRR, CCRR, CRG, CCG\n CSR No. 7445, Official United States Reporter\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\f","ocr_status":2,"date_upload":"2024-04-07T19:03:00.659990-07:00","document_number":"64","attachment_number":null,"pacer_doc_id":"035023853499","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Transcript","acms_document_guid":""}],"date_created":"2023-12-11T11:39:20.253903-08:00","date_modified":"2026-05-19T12:07:05.652717-07:00","date_filed":"2023-12-11","time_filed":"11:07:52","entry_number":64,"recap_sequence_number":"2023-12-11.001","pacer_sequence_number":224,"description":"Transcript of Proceedings held on December 7, 2023, before Judge Araceli Martinez-Olguin. Court Reporter Ana Dub, CSR 7445, RDR, RMR, CRR, CCRR, CRG, CCG, telephone number 415-290-1651; ana_dub@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (87 in 3:23-cv-03223-AMO) Transcript Order ) Release of Transcript Restriction set for 3/11/2024. 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CLOBES, ESQ.\n 6\n For Defendants:\n 7 Morrison & Foerster, LLP\n 425 Market Street\n 8 San Francisco, California\n 94105\n 9 BY: TIFFANY CHEUNG, ESQ.\n JOSEPH CHARLES GRATZ, ESQ.\n10\n Latham & Watkins, LLP\n11 505 Montgomery Street\n Suite 2000\n12 San Francisco, California\n 94111\n13 BY: ANDREW MICHAEL GASS, ESQ.\n14 Transcribed by: Echo Reporting, Inc.\n Contracted Court Reporter/\n15 Transcriber\n echoreporting@yahoo.com\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 3 of 21\n\n\n\n 3\n 1 Wednesday, November 8, 2023 10:14 a.m.\n 2 P-R-O-C-E-E-D-I-N-G-S\n 3 --oOo--\n 4 THE CLERK: Calling civil matter 23-3223, Tremblay\n 5 et al v. OpenAI Incorporated et al, including related cases\n\n 6 23-3416, Silverman et al v. OpenAI Incorporated et al, and\n\n 7 23-4625, Chabon v. OpenAI Incorporated et al.\n\n 8 Counsel, can you please state your appearances for the\n 9 record, starting with the plaintiffs?\n\n10 MR. SAVERI: Good morning, your Honor. Joseph\n11 Saveri on behalf of plaintiffs Tremblay and Silverman.\n\n12 MR. BUTTERICK: Good morning. Matthew Butterick\n13 on behalf of plaintiffs Tremblay and Silverman.\n\n14 MR. CLOBES: Good morning, your Honor. I'm Bryan\n15 Clobes from Cafferty Clobes on behalf of the Chabon\n\n16 plaintiffs.\n\n17 MS. CHEUNG: Good morning, your Honor. Tiffany\n18 Cheung of Morrison and Foerster on behalf of OpenAI\n\n19 defendants.\n\n20 MR. GRATZ: Good morning, your Honor. Joe Gratz,\n21 also at Morrison and Foerster, also on behalf of defendants.\n\n22 MR. GASS: And Andy Gass from Latham and Watkins\n23 on behalf of defendants.\n\n24 THE COURT: Good morning, everyone. And thank you\n25 for finding time to do this, and thank you for letting us\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 4 of 21\n\n\n\n 4\n 1 know that the last time we set did not work for you all.\n\n 2 All right, folks. Just a couple of things. I wanted\n 3 to meet with you all today to talk about both your\n\n 4 stipulation to consolidate the cases, and then as we had --\n\n 5 because we have the matter pending from the Silverman and\n\n 6 Tremblay cases, the summary judgment briefing schedule. So\n 7 we're going to hit both of those today.\n\n 8 I'm going to start with consolidation. And with\n 9 consolidation, I just -- I want to understand this, right,\n\n10 the reason to consolidate cases -- you all are asking for\n\n11 consolidation. I'm grateful that you all are asking for\n12 consolidation, but one of the reasons to do it is for --\n\n13 right -- is for -- is because it would be just and efficient\n\n14 and conserve time -- the Court's time and resources.\n\n15 So I'm trying to understand why on earth you would want\n16 me to look through the motions to dismiss that were filed in\n\n17 both Tremblay/Silverman, then go through -- and then come up\n\n18 with a consolidated complaint. I'm trying to understand --\n19 I -- if -- I don't know who to look to in that one since\n\n20 it's an agreement between all of you, but I want to tell you\n\n21 that, frankly, my inclination is to have you all create a\n\n22 consolidated complaint and go through the motions to dismiss\n\n23 once, so that we're just dealing with it. I don't see the\n24 purpose in going through the iterations. And it -- that, to\n25 me, seems to be the opposite of conserving court time and\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 5 of 21\n\n\n\n 5\n 1 resources. And rather than consolidating these cases, you\n 2 still are trying to hold Chabon out as a thing that\n\n 3 shouldn't be -- that case out as a thing that shouldn't be\n\n 4 dealt with yet.\n\n 5 So if someone could please --\n 6 MR. SAVERI: Your Honor --\n 7 THE COURT: Yes.\n 8 MR. SAVERI: Your Honor, let me take a crack at\n 9 it.\n\n10 So, actually, in our view, the consolidation will\n11 actually save judicial time and resources in the following\n\n12 way, first, the Tremblay and Silverman cases are advanced,\n\n13 and the briefing is happening -- happened, and the Chabon\n\n14 case, if you look at the complaint, the allegations are\n\n15 virtually -- are very, very similar, almost carbon copies of\n\n16 what has -- what is contained in Tremblay and Silverman.\n\n17 So in our view, because of that, it would make sense to\n18 resolve the issues on Tremblay and Silverman in the event\n\n19 that a complaint needs to be filed as a result of your -- an\n\n20 order on the motion to dismiss -- that at that point, a\n\n21 consolidated complaint would be -- could be filed.\n\n22 If on the other hand the Court denies the motions to\n23 dismiss completely, there would be really no need to file an\n\n24 additional consolidated complaint, and we could proceed with\n\n25 the schedule apace.\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 6 of 21\n\n\n\n 6\n 1 The alternative would be to basically press reset, to\n 2 require us to file another consolidated complaint or to file\n\n 3 a complaint on behalf of all the plaintiffs. And then the\n 4 defendants would have an opportunity to respond to that. So\n 5 we would end up at very much the same place, but it would be\n\n 6 a number of months later.\n\n 7 In my view and my experience, this is an efficient way\n 8 of dealing with this situation where there are cases filed\n\n 9 initially -- they advance, and then there are follow-on\n\n10 cases that resemble the cases that were already on file very\n\n11 closely. We feel actually that doing it in this way is the\n12 best way of conserving judicial resources and having the\n\n13 case proceed. And that's the explanation.\n14 THE COURT: I guess -- I'm trying to understand --\n15 and I may be looking -- I may be looking a bit to you, Mr.\n\n16 Clobes, since you're the -- since you're the newest one\n\n17 among us here. Usually, that's been me in the room. I'm\n18 heartened by it not being me this time, but I'm just trying\n\n19 to understand if ultimately you're satisfied with the --\n\n20 that if we -- that if the Court rules on the motions to\n\n21 dismiss and -- right, there may be a complaint -- if I -- if\n\n22 nothing changes -- if the complaints as they are right now\n\n23 are not amended later, you're satisfied with what is\n\n24 presently pled there?\n\n25 MR. CLOBES: Yeah, your Honor. Thank you. We've\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 7 of 21\n\n\n\n 7\n 1 carefully considered the briefing on dismissal. We've been\n 2 in contact with Mr. Saveri's office, and we -- we've worked\n\n 3 together in many cases in the past.\n\n 4 We're satisfied with the state of affairs. The\n 5 complaints are very similar, other than the fact allegations\n\n 6 relating to the particular individual plaintiffs. And we've\n 7 also been in touch with defense counsel to coordinate things\n\n 8 like service and filing our motion to relate and all of\n\n 9 that.\n\n10 So I think that -- you know, if your Honor needs more\n11 briefing now or later, we're happy to participate, but --\n\n12 right -- but right -- right. But our view is that the\n13 issues have been fully joined. We know there's an argument\n14 scheduled for early next month on the dismissal motion. And\n15 your Honor will then at some point rule after the argument.\n\n16 I think the idea that's captured in the proposed\n\n17 consolidation order of then allowing plaintiffs to\n\n18 collectively -- our firm and Joe's firm to put together a\n\n19 consolidated amended complaint consistent with your Honor's\n\n20 ruling is the most efficient way to proceed.\n\n21 THE COURT: I appreciate hearing that from you\n22 all. What I want to avoid is the idea that we're going to\n23 do the motion to dismiss dance again in a few months.\n\n24 MR. CLOBES: Right.\n25 THE COURT: Okay. Good. So as long as we're all\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 8 of 21\n\n\n\n 8\n 1 on the same page about that -- let me put it this way, no\n\n 2 more than would be otherwise -- no more than we otherwise\n\n 3 would have done already just in Tremblay and Silverman,\n\n 4 right? I'm not trying to --\n 5 MR. CLOBES: Yes.\n 6 THE COURT: I'm not trying to tell defendants if\n 7 they can't file a second motion to dismiss if the complaint\n\n 8 -- if they see something wrong in the complaint. I just\n 9 want to make sure that we aren't doing -- I want to make\n\n10 sure that we aren't taking longer than we need or that we\n\n11 somehow are letting the folks in Chabon come back later to\n\n12 do more. So if we are all on the same page about that, then\n13 that may be fine.\n\n14 But you'll see -- so let me flag a few other things\n15 from you with regard to your -- with your stipulation,\n\n16 things that you'll see change. So what will happen in the\n17 next day or two is that we -- right. I'll take a pen to\n18 your proposed stipulation and make just a handful of edits,\n\n19 including, for example, you'll see me put in something about\n\n20 the fact that there won't be -- well, a couple of things. I\n21 would -- well, we'll ask -- we'll put a deadline on the\n\n22 consolidated complaint, and we'll tie it to a ruling on the\n\n23 motion to dismiss, just to put it within so many days.\n\n24 Is there any reason not to close -- once these are\n25 consolidated, is there -- and the -- right -- is there any\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 9 of 21\n\n\n\n 9\n 1 reason not to close Silverman and Chabon? Right, we'll --\n 2 as you all are suggesting, we'll consolidate everything into\n\n 3 3223. Is there any reason not to close 3416 or 4625?\n 4 MR. SAVERI: So, your Honor, let me speak to 3416.\n 5 That's my case -- Silverman.\n\n 6 THE COURT: Uh-huh.\n 7 MR. SAVERI: This is Joe Saveri. I really think\n 8 this is a matter of administration by the Court of its\n\n 9 docket. And so, you know, from our perspective, we would\n10 have the low number case Silverman be the lead case. That\n11 would allow us to file everything in that docket. That's\n12 kind of the point of the consolidation in part, so that we\n\n13 can kind of clean that up.\n\n14 I -- Silverman should probably not be dismissed. I\n15 mean, we would not in -- until the consolidated complaint\n\n16 was filed, we would not want to have anything entered in the\n\n17 docket which would indicate that her claims were dismissed\n\n18 either voluntarily or involuntarily. But in terms of the\n19 way the Court administers the docket, once the cases are\n\n20 consolidated, we don't really see a point, I guess, in\n\n21 maintaining the separate docket.\n\n22 THE COURT: Just to make sure -- I think, Mr.\n23 Saveri, you and I are saying something similar, but I want\n\n24 to make sure. I don't think it would say -- I don't think\n25 the docket would say anything about the Silverman\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 10 of 21\n\n\n\n 10\n 1 plaintiff's claims being dismissed. It would simply say\n 2 that the -- right -- in both Silverman and Chabon, I\n\n 3 understand that the docket would simply say they've been\n\n 4 consolidated into 3223 and they would be closed, and I just\n\n 5 -- I'm just making sure that -- not that -- well, think of\n\n 6 -- I may just be previewing it for you so that no one panics\n\n 7 when they see those cases closed, or to give you an\n\n 8 opportunity to tell me why that shouldn't happen. And I\n 9 think I hear you saying, \"Yes, judge, as long as you don't\n\n10 mark it dismiss -- as long as nothing is dismissed in the\n\n11 process.\" Is that right?\n12 MR. SAVERI: Yes, your Honor. And one thing, my\n13 last name is pronounced Saveri, and it's the kind of thing\n\n14 where if I don't -- if we don't have this conversation\n\n15 now --\n\n16 THE COURT: Please.\n17 MR. SAVERI: -- two years from now, you'll say --\n18 THE COURT: No, no.\n19 MR. SAVERI: -- why didn't you tell me today that\n20 I was mispronouncing your name.\n\n21 THE COURT: No, no, I appreciate it. I really do.\n22 I do.\n\n23 MR. SAVERI: I would imagine you might, but I just\n24 wanted to -- I just wanted to --\n\n25 THE COURT: Yes. I made a note for myself, and I\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 11 of 21\n\n\n\n 11\n 1 could -- I clearly did not understand my own little note\n\n 2 about where the accent was.\n\n 3 All right. So one last thing here. Can you all\n 4 explain to me -- there -- there's one other -- there's a\n\n 5 couple of other things in the stip that I wanted to discuss.\n\n 6 So I want to -- I want to highlight for you all -- in\n\n 7 paragraphs -- this is not in the stip, excuse me. This is\n 8 in the pretrial order.\n\n 9 MR. SAVERI: Yes.\n10 THE COURT: In paragraph six, you all are asking\n11 that the clerk be the one -- you all are asking for the\n\n12 clerk to file a notice attaching a copy of this order in any\n\n13 subsequent OpenAI ChatGPTs. Can you all please explain to\n14 me why the clerk or the Court should be doing that instead\n\n15 of you all serving it on parties who may bring subsequent\n\n16 claims?\n\n17 MR. SAVERI: Your Honor, this kind of provision is\n18 ordinary in these types of orders, and I've seen courts,\n\n19 depending on how they are set up, do it either way. We are\n20 fine with taking the responsibility for doing that if -- so\n\n21 we're happy to do that.\n\n22 THE COURT: Thank you. And then the other thing I\n23 wanted to point out for you or I wanted to note for you all\n\n24 -- down in paragraph eight, you all were asking that the\n\n25 requirement for pro hac vice counsel be waived. I won't be\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 12 of 21\n\n\n\n 12\n 1 doing that because this is not an MDL.\n\n 2 MR. SAVERI: Okay.\n 3 THE COURT: So I will still -- if -- you know,\n 4 depending on -- if at some point you want me to revisit\n\n 5 that, I'm open to that. But at this point, I won't be doing\n 6 that.\n\n 7 MR. SAVERI: That's fine, your Honor.\n 8 THE COURT: Okay. Folks, I think that is\n 9 everything that I had on consolidation. So you should\n10 expect to see a modified -- you'll -- you should expect to\n\n11 see some modifications consistent with what we've discussed\n\n12 today, and -- but you should see those ordered -- either\n\n13 entered the consolidation order and the other documents\n\n14 entered today and tomorrow or today or tomorrow.\n\n15 Let's talk for a minute -- let's talk for a minute\n16 about the summary judgment briefing.\n\n17 So, Mr. Gratz, we talked a little bit at the initial\n18 case management conference, and I appreciate you all -- both\n\n19 sides, I appreciate you all sending me in -- sending in some\n\n20 short briefs about why maybe the summary judgment briefing\n\n21 should be done before class cert. I will share with you all\n22 that I am -- I feel strongly about just doing motion -- just\n\n23 doing motions for summary judgment once. And so I agree\n24 with plaintiffs that doing a motion for summary judgment\n\n25 before class cert will deny them the opportunity to be able\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 13 of 21\n\n\n\n 13\n 1 to seek summary judgment.\n\n 2 So I'm, at this point, going to deny the request to do\n 3 summary judgment before class cert. We're going to keep the\n 4 schedule that we have right now. We'll bring in Chabon.\n 5 We'll -- and as you -- and as I've done so far, what we'll\n\n 6 do is -- right, we've got to schedule through class cert.\n\n 7 Once we get through class cert, we'll have another -- we'll\n\n 8 have a further case management conference and set a schedule\n\n 9 for all things necessary thereafter.\n\n10 MR. SAVERI: Okay, your Honor.\n11 MR. CLOBES: Thank you, your Honor.\n12 THE COURT: Of course. All right, folks -- go\n13 ahead.\n\n14 MS. CHEUNG: I'm sorry, your Honor. I'm sorry to\n15 interrupt. There is just one question that I had that I --\n16 we were hoping to raise with you with respect to the summary\n\n17 judgment motions, because we certainly understand your one\n\n18 summary judgment rule and absolutely we would anticipate\n\n19 only one time filing summary judgment motions. The idea\n20 would be to have both sides doing those summary judgment\n\n21 motions. And even if we couldn't do them -- do summary\n22 judgment before class cert, doing them at the same time we\n\n23 do think still will allow the Court the opportunity to have\n\n24 a full record so that you would have a full understanding of\n\n25 the claims at issue and also help inform your class\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 14 of 21\n\n\n\n 14\n 1 certification ruling.\n\n 2 So understand what you're saying about doing summary\n 3 judgment before, but doing them in parallel and together, I\n\n 4 think we'll have the best of all worlds. So we wanted to\n 5 raise that with you.\n\n 6 THE COURT: Mr. Saveri -- and tell me if I got it\n 7 right that time, please.\n\n 8 MR. SAVERI: Saveri. Saveri.\n 9 THE COURT: Saveri. Shoot. Okay. I will have to\n10 fix this. All right. Sorry. Keep going.\n11 MR. SAVERI: Well, I -- it's fine.\n12 THE COURT: I'll just write it. I'll write the VE\n13 real big for myself. Sorry.\n14 So, Mr. Saveri, please tell me what you think about\n15 doing them in parallel, which I think is a little different\n\n16 than what we've been talking about so far.\n\n17 MR. SAVERI: So, your Honor, I say a couple of\n18 things about that. One, I think it's a bad idea. I think\n19 that the -- yeah, putting aside it's been a little bit of a\n\n20 moving target now -- I think the defendants -- this is the\n\n21 third proposal they've made on that. But here's the\n22 problem, I think. The class certification briefing and the\n23 work in class certification is a heavy lift. It's a heavy\n24 lift for the lawyers. And then ultimately it's going to be\n25 a -- you know, a complex issue to be resolved, including a\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 15 of 21\n\n\n\n 15\n 1 well-developed factual and legal record.\n\n 2 In my experience, combining summary judgment on top of\n 3 that will -- the burden will not just be additive, it will\n\n 4 be multiplying. And so it's going to be a lot of work for\n 5 counsel, and then having class certification and summary\n\n 6 judgment at the same time for the Court. I mean, it clearly\n 7 -- I'm not going to presume about the work that it would\n\n 8 take on the Court's end. But in my experience, it can be\n 9 quite a heavy lift. And so that's why we feel, based on our\n10 experience, that to sequence classification before -- get\n\n11 those issues ventilated, framed, and resolved, and then move\n\n12 to summary judgment -- is just the most efficient way of\n\n13 doing.\n\n14 MS. CHEUNG: Your Honor, may I respond? Because\n15 in terms of the burden, we do think actually at the end of\n\n16 the day, this will be the most efficient. We can certainly\n17 brief things in a way so that they're not duplicative, but\n\n18 provide your Honor with the helpful background and context\n\n19 of the merits of the claims that ultimately you will have to\n\n20 consider in determining whether a class is appropriate here.\n\n21 So doing that all at once and having the full picture\n22 is going to be more efficient for the Court. That does\n23 allow us also to hold the hearing on class certification and\n\n24 summary judgment at the same time so that we can combine\n\n25 that process as well.\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 16 of 21\n\n\n\n 16\n 1 And having the full picture, your Honor, we do think,\n 2 at the end of the day, for the long run is actually going to\n\n 3 save time, because if there is some class that is certified\n\n 4 prematurely based on an incomplete record because we don't\n\n 5 have the full merits issues before your Honor, you could be\n\n 6 having to face a motion to decertify. And I've definitely\n 7 been in that situation before, unfortunately, where the\n\n 8 Court has sequence class certification first, and then\n\n 9 summary judgment, and then a motion to decertify was\n\n10 necessary because it became clear from the record, having\n\n11 the full record in front of the Court, that the class, as\n\n12 initially anticipated, could not be certified, which is why\n\n13 we would propose, your Honor, doing them together. We do\n14 think in the long run this will be the most efficient path.\n\n15 And we can certainly adjust the briefing schedule as\n\n16 necessary.\n\n17 MR. SAVERI: Your Honor -- your Honor, excuse me,\n18 if I may.\n\n19 THE COURT: Hold that thought. Hold that thought,\n20 if you would.\n\n21 So I'm going to tell you, Ms. Cheung, I think Mr. -- I\n22 will -- I hear Mr. Saveri, and I agree with him that this is\n\n23 now -- it's a different proposal than the one that I've been\n\n24 considering. And so for the time being, we're going to\n25 stick with what we've got. You are welcome in -- you're\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 17 of 21\n\n\n\n 17\n 1 welcome -- I mean, perhaps as we get closer, if after you've\n\n 2 seen them move for -- if after you've seen them move for\n\n 3 class cert you think summary judgment is still appropriate,\n\n 4 you can request to do that briefing. You can write -- you\n 5 all are going to -- I'm sure you all are going to negotiate\n\n 6 a briefing schedule for class cert, billed in their time if\n\n 7 you like -- I would advise it -- to look at their -- to look\n\n 8 at their initial motion. If you want to request then\n 9 additional pages to do the motion for class cert, I'll\n\n10 revisit it. But today, I'm only prepared to go forward with\n11 what we've already set.\n\n12 Mr. Saveri, do you still want to try and jump in?\n13 MR. SAVERI: No. I'm going to take yes for an\n14 answer, your Honor.\n\n15 THE COURT: We discuss sometimes in my chambers\n16 that lawyers don't know when to stop. So forgive me for\n17 cutting you off, but I'm just like just let me -- you --\n\n18 you've -- it's not even you so much as just a -- as more\n\n19 just my -- this is where I am right now. I'm open to -- I'm\n20 still open to the idea that maybe they go together, but not\n\n21 today. So perhaps -- yeah. As you get closer and as you\n22 get into the discovery, if you want to try me again, I'm\n\n23 open to that, but not today.\n\n24 MS. CHEUNG: Thank you, your Honor. We -- we're\n25 -- we understand and certainly can revisit once we proceed\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 18 of 21\n\n\n\n 18\n 1 with some discovery and also see the plaintiffs' class\n\n 2 certification motion.\n\n 3 THE COURT: That's right. And we still need to\n 4 get -- I'm jumping way ahead of myself because we still have\n\n 5 to deal with these motions to dismiss next month. So we'll\n 6 get there first, and -- but we'll sort of go from there.\n\n 7 All right. Folks, I think that's everything. Tell me\n 8 if there's something else you all wanted to do today.\n\n 9 MR. SAVERI: I wanted to clarify. So the --\n10 THE COURT: Yes, sir.\n11 MR. SAVERI: What I'm hearing is the order or the\n12 scheduling order that the Court previously entered is going\n\n13 to remain intact for now.\n\n14 THE COURT: Correct.\n15 MR. SAVERI: Very good. Thank you, your Honor.\n16 THE COURT: Of course. Anything else from anyone\n17 else?\n\n18 MS. CHEUNG: Just -- apologize. One last issue --\n19 on the current schedule, would it be possible, your Honor,\n\n20 to adjust the expert schedule just modestly, because\n\n21 currently we have defendants' --\n\n22 THE COURT: Ms. Cheung, have you raised this with\n23 plaintiff's counsel?\n\n24 MS. CHEUNG: I have not. So we are happy to --\n25 THE COURT: We're going to -- so we're going to\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 19 of 21\n\n\n\n 19\n 1 stop, and you're going to talk with them and see if you can\n\n 2 get a stipulation around it. And if you can, wonderful.\n 3 And if you can't, you can make an administrative motion for\n\n 4 that.\n\n 5 MS. CHEUNG: Okay.\n 6 THE COURT: But for -- but that's -- I'm not going\n 7 -- I would really prefer not to -- call it the privilege of\n\n 8 the relatively brand new judge. I would really rather not\n 9 have to make these calls, especially if you can maybe even\n\n10 just work it out between the two of you.\n\n11 So raise -- you know, we're -- I like to think we're\n12 finishing early. Maybe it's not early for you all. Maybe\n13 you thought you would be done at 10:30. But you can stay on\n14 the line. I will just run away. And we'll stop the\n15 recording, and maybe you all can talk about the expert\n\n16 schedule. And if you have something, file a stip and let us\n17 know.\n\n18 MS. CHEUNG: Perfect. Thank you.\n19 MR. SAVERI: Your Honor, if you -- I -- to --\n20 that's not going to work for me. I actually have to visit\n21 someone in the hospital after this, but you --\n\n22 THE COURT: Oh, sir, I'm not requiring you to\n23 stay. Let's be -- I'm so sorry. You don't have to. I'm\n24 just -- that was -- I apologize. I should know not to make\n25 light anymore.\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 20 of 21\n\n\n\n 20\n 1 MR. SAVERI: My -- they -- my opponents know where\n 2 to reach me. They --\n 3 THE COURT: Yes.\n 4 MR. SAVERI: -- have the ability to find me. And\n 5 so we're open --\n\n 6 THE COURT: Yes. No, I'm exact -- I'm -- thank\n 7 you for -- I should know better. I am not ordering you to\n 8 meet and confer about that right now. I am not.\n 9 Just -- at your leisure, Ms. Cheung, I leave it to you\n10 to follow up with plaintiffs' counsel to try and get a\n\n11 stipulation from them or let us know if you just need to\n\n12 move for it.\n\n13 MS. CHEUNG: Thank you.\n14 THE COURT: All right. Thank you, everyone. Have\n15 a good rest of your day.\n\n16 MR. CLOBES: Thank you.\n17 MR. SAVERI: Thank you, your Honor.\n18 MR. GRATZ: Thank you, your Honor.\n19 (Proceedings adjourned at 10:36 a.m.)\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n\n\n\n Echo Reporting, Inc.\n\fCase 3:23-cv-03416-AMO Document 60 Filed 11/28/23 Page 21 of 21\n\n\n\n 21\n 1 CERTIFICATE OF TRANSCRIBER\n 2\n\n 3 I certify that the foregoing is a true and correct\n 4 transcript, to the best of my ability, of the above pages of\n\n 5 the official electronic sound recording provided to me by\n\n 6 the U.S. District Court, Northern District of California, of\n\n 7 the proceedings taken on the date and time previously stated\n\n 8 in the above matter.\n\n 9 I further certify that I am neither counsel for,\n10 related to, nor employed by any of the parties to the action\n\n11 in which this hearing was taken; and, further, that I am not\n\n12 financially nor otherwise interested in the outcome of the\n\n13 action.\n\n14\n\n15\n\n16\n\n17 Echo Reporting, Inc., Transcriber\n18 Tuesday, November 28, 2023\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n\n\n\n Echo Reporting, Inc.\n\f","ocr_status":2,"date_upload":"2024-04-07T19:03:19.106323-07:00","document_number":"60","attachment_number":null,"pacer_doc_id":"035023794758","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Transcript","acms_document_guid":""}],"date_created":"2023-11-28T14:07:05.098723-08:00","date_modified":"2026-05-19T12:07:05.351795-07:00","date_filed":"2023-11-28","time_filed":"13:06:46","entry_number":60,"recap_sequence_number":"2023-11-28.001","pacer_sequence_number":208,"description":"Transcript of Proceedings held on 11/08/23, before Judge Araceli Martinez-Olguin. Court Reporter/Transcriber Echo Reporting, Inc., telephone number echoreporting@yahoo.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (72 in 3:23-cv-03223-AMO) Transcript Order ) Redaction Request due 12/19/2023. Redacted Transcript Deadline set for 12/29/2023. Release of Transcript Restriction set for 2/26/2024. (Jauregui, Tara) (Filed on 11/28/2023) (Entered: 11/28/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/371644680/","id":371644680,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/379133284/","id":379133284,"tags":[],"absolute_url":"/docket/67569254/59/silverman-v-openai-inc/","date_created":"2023-11-27T16:09:32.265807-08:00","date_modified":"2026-05-19T12:07:05.273759-07:00","sha1":"d9e8836c67c724678dd70ec2f9c83a19075c2217","page_count":3,"file_size":220438,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.59.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.59.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.415174/379133284.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:23-cv-03416-AMO Document 59 Filed 11/27/23 Page 1 of 3\n\n\n 1 MORRISON & FOERSTER LLP LATHAM & WATKINS LLP\n Joseph C. Gratz (SBN 240676) Andrew M. Gass (SBN 259694)\n 2 jgratz@mofo.com andrew.gass@lw.com\n Tiffany Cheung (SBN 211497) Joseph R. Wetzel (SBN 238008)\n 3 tcheung@mofo.com joseph.wetzel@lw.com\n 425 Market Street 505 Montgomery Street, Suite 2000\n 4 San Francisco, CA 94105 San Francisco, CA 94111\n Telephone: 415.258.7522 Telephone: 415.391.0600\n 5\n Allyson R. Bennett (SBN 302090) Sarang V. Damle (pro hac vice)\n 6 abennett@mofo.com sy.damle@lw.com\n 707 Wilshire Boulevard, Suite 6000 555 Eleventh Street, NW, Suite 1000\n 7 Los Angeles, CA 90017-3543 Washington, D.C. 20004\n Telephone: 213.892.5454 Telephone: 202.637.2200\n 8\n Allison L. Stillman (pro hac vice)\n 9 alli.stillman@lw.com\n 1271 Avenue of the Americas\n 10 New York, NY 10020\n Telephone: 212.751.4864\n 11\n Attorneys for Defendants OpenAI, Inc.,\n 12 OpenAI, L.P., OpenAI OpCo, L.L.C., OpenAI\n GP, L.L.C., OpenAI Startup Fund GP I, L.L.C.,\n 13 OpenAI Startup Fund I, L.P., and OpenAI\n Startup Fund Management, LLC\n 14\n UNITED STATES DISTRICT COURT\n 15\n NORTHERN DISTRICT OF CALIFORNIA\n 16\n SAN FRANCISCO DIVISION\n 17\n\n 18 IN RE OPENAI CHATGPT LITIGATION Master File No. 3:23-cv-03223-AMO\n 19\n This Document Relates To:\n DEFENDANTS\u2019 STATEMENT OF\n 20 RECENT DECISION\n Case No. 3:23-cv-03223-AMO\n 21 Case No. 4:23-cv-03416-AMO\n 22\n\n 23\n\n 24\n\n 25\n\n 26\n\n 27\n\n 28\n DEFENDANTS\u2019 STATEMENT OF RECENT DECISION\nATTORNEYS AT LAW\n SAN FRANCISCO\n MASTER FILE NO. 3:23-CV-03223-AMO\n\f Case 3:23-cv-03416-AMO Document 59 Filed 11/27/23 Page 2 of 3\n\n\n 1 Pursuant to this Court\u2019s Civil Local Rule 7-3(d)(2), Defendants respectfully submit this\n\n 2 Statement of Recent Decision to bring to the Court\u2019s attention newly issued authority relevant to\n\n 3 their Motion to Dismiss (ECF No. 33). On November 20, 2023, the United States District Court\n\n 4 for the Northern District of California issued an order dismissing a number of related claims,\n\n 5 including claims for vicarious copyright infringement, claims under Section 1202 of the Digital\n\n 6 Millennium Copyright Act (DMCA), claims under California\u2019s Unfair Competition Law (UCL),\n\n 7 and claims for unjust enrichment and negligence. Order Granting Motion to Dismiss, Kadrey et\n\n 8 al. v. Meta Platforms, Inc., No. 23-cv-03417-VC, ECF No. 56 (N.D. Cal. Nov. 20, 2023)\n\n 9 (Chhabria, J.). In pertinent part, the Court (a) rejected the plaintiffs\u2019 contention that \u201cevery output\n\n 10 of the LLaMA language models is an infringing derivative work\u201d and similarly rejected plaintiffs\u2019\n\n 11 argument that they \u201cdo not need to allege any similarity between LLaMA outputs and their books\n\n 12 to maintain a claim based on derivative infringement,\u201d id. at 2; (b) dismissed plaintiffs\u2019 claim for\n\n 13 vicarious copyright infringement for failure to plead that any LLaMA outputs were \u201csubstantially\n\n 14 similar\u201d to their books, id. at 3; (c) dismissed plaintiffs\u2019 claim under Section 1202 of the DMCA\n\n 15 because \u201c[t]here are no facts to support the allegation that LLaMA ever distributed the plaintiffs\u2019\n\n 16 books, much less did so \u2018without their CMI,\u2019\u201d id. at 3; (d) dismissed plaintiffs\u2019 UCL claim,\n\n 17 including because \u201cthe plaintiffs have not come close to alleging [] fraud or unfairness,\u201d id.;\n\n 18 (e) dismissed plaintiffs\u2019 claim for unjust enrichment as preempted by the Copyright Act, id.; and\n\n 19 (f) dismissed with prejudice plaintiffs\u2019 negligence claim as preempted by the Copyright Act and\n\n 20 as barred by the \u201ceconomic loss doctrine,\u201d id. at 3\u20134. A true and correct copy of the order is\n\n 21 attached hereto as Exhibit 1.\n\n 22\n\n 23\n\n 24\n\n 25\n\n 26\n\n 27\n\n 28\n DEFENDANTS\u2019 STATEMENT OF RECENT DECISION\n 1\nATTORNEYS AT LAW\n SAN FRANCISCO\n MASTER FILE NO. 3:23-CV-03223-AMO\n\f Case 3:23-cv-03416-AMO Document 59 Filed 11/27/23 Page 3 of 3\n\n\n 1 Dated: November 27, 2023 Respectfully submitted,\n\n 2\n By: /s/ Andrew M. Gass\n 3\n MORRISON & FOERSTER LLP\n 4 Joseph C. Gratz (SBN 240676)\n jgratz@mofo.com\n 5 Tiffany Cheung (SBN 211497)\n tcheung@mofo.com\n 6 425 Market Street\n San Francisco, CA 94105\n 7 Telephone: 415.258.7522\n\n 8 Allyson R. Bennett (SBN 302090)\n abennett@mofo.com\n 9 707 Wilshire Boulevard, Suite 6000\n Los Angeles, CA 90017-3543\n 10 Telephone: 213.892.5454\n\n 11 LATHAM & WATKINS LLP\n Andrew M. Gass (SBN 259694)\n 12 andrew.gass@lw.com\n Joseph R. Wetzel (SBN 238008)\n 13 joseph.wetzel@lw.com\n 505 Montgomery Street, Suite 2000\n 14 San Francisco, CA 94111\n Telephone: 415.391.0600\n 15\n Sarang V. Damle (pro hac vice)\n 16 sy.damle@lw.com\n 555 Eleventh Street, NW, Suite 1000\n 17 Washington, D.C. 20004\n Telephone: 202.637.2200\n 18\n Allison L. Stillman (pro hac vice)\n 19 alli.stillman@lw.com\n 1271 Avenue of the Americas\n 20 New York, NY 10020\n Telephone: 212.751.4864\n 21\n Attorneys for Defendants OpenAI, Inc., OpenAI,\n 22 L.P., OpenAI OpCo, L.L.C., OpenAI GP, L.L.C.,\n OpenAI Startup Fund GP I, L.L.C., OpenAI Startup\n 23 Fund I, L.P., and OpenAI Startup Fund\n Management, LLC\n 24\n\n 25\n\n 26\n\n 27\n\n 28\n DEFENDANTS\u2019 STATEMENT OF RECENT DECISION\n 2\nATTORNEYS AT LAW\n SAN FRANCISCO\n MASTER FILE NO. 3:23-CV-03223-AMO\n\f","ocr_status":2,"date_upload":"2023-11-27T16:10:47.082434-08:00","document_number":"59","attachment_number":null,"pacer_doc_id":"035023789225","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Statement of Recent Decision","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/379133604/","id":379133604,"tags":[],"absolute_url":"/docket/67569254/59/1/silverman-v-openai-inc/","date_created":"2023-11-27T16:10:34.392654-08:00","date_modified":"2024-04-09T16:04:23.599453-07:00","sha1":"3666e91da36be64ae051cb170e3ac5805be1a58f","page_count":5,"file_size":131286,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.59.1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.59.1.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:23-cv-03416-AMO Document 59-1 Filed 11/27/23 Page 1 of 5\n\n\n\n\n EXHIBIT 1\n\f Case\n Case3:23-cv-03416-AMO\n 3:23-cv-03417-VC Document 59-1\n 56 Filed\n Filed\n 11/20/23\n 11/27/23Page\n Page1 of\n 2 of\n 45\n\n\n\n\n UNITED STATES DISTRICT COURT\n\n NORTHERN DISTRICT OF CALIFORNIA\n\n\n RICHARD KADREY, et al., Case No. 23-cv-03417-VC\n Plaintiffs,\n ORDER GRANTING MOTION TO\n v. DISMISS\n META PLATFORMS, INC., Re: Dkt. No. 23\n Defendant.\n\n\n\n Meta has moved to dismiss all claims except the one alleging that the unauthorized\n\ncopying of the plaintiffs\u2019 books for purposes of training LLaMA constitutes copyright\n\ninfringement. The motion is granted. The remaining theories of liability, at least as articulated in\n\nthe complaint, are not viable. This order assumes familiarity with the facts of the case, the\n\nparties\u2019 arguments, and the relevant law.\n\n 1. The plaintiffs allege that the \u201cLLaMA language models are themselves infringing\n\nderivative works\u201d because the \u201cmodels cannot function without the expressive information\n\nextracted\u201d from the plaintiffs\u2019 books. This is nonsensical. A derivative work is \u201ca work based\n\nupon one or more preexisting works\u201d in any \u201cform in which a work may be recast, transformed,\n\nor adapted.\u201d 17 U.S.C. \u00a7 101. There is no way to understand the LLaMA models themselves as a\n\nrecasting or adaptation of any of the plaintiffs\u2019 books.\n\n 2. Another theory is that \u201cevery output of the LLaMA language models is an infringing\n\nderivative work,\u201d and that because third-party users initiate queries of LLaMA, \u201cevery output\n\nfrom the LLaMA language models constitutes an act of vicarious copyright infringement.\u201d But\n\nthe complaint offers no allegation of the contents of any output, let alone of one that could be\n\f Case\n Case3:23-cv-03416-AMO\n 3:23-cv-03417-VC Document 59-1\n 56 Filed\n Filed\n 11/20/23\n 11/27/23Page\n Page2 of\n 3 of\n 45\n\n\n\n\nunderstood as recasting, transforming, or adapting the plaintiffs\u2019 books. Without any plausible\n\nallegation of an infringing output, there can be no vicarious infringement. See Perfect 10, Inc. v.\n\nAmazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007).\n\n The plaintiffs are wrong to say that, because their books were duplicated in full as part of\n\nthe LLaMA training process, they do not need to allege any similarity between LLaMA outputs\n\nand their books to maintain a claim based on derivative infringement. To prevail on a theory that\n\nLLaMA\u2019s outputs constitute derivative infringement, the plaintiffs would indeed need to allege\n\nand ultimately prove that the outputs \u201cincorporate in some form a portion of\u201d the plaintiffs\u2019\n\nbooks. Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984); see also Andersen v.\n\nStability AI Ltd., No. 23-CV-00201-WHO, 2023 WL 7132064, at *7-8 (N.D. Cal. Oct. 30, 2023)\n\n(\u201c[T]he alleged infringer\u2019s derivative work must still bear some similarity to the original work or\n\ncontain the protected elements of the original work.\u201d); 2 Melville B. Nimmer & David Nimmer,\n\nNimmer on Copyright \u00a7 8.09 (Matthew Bender Rev. Ed. 2023) (\u201cUnless enough of the pre-\n\nexisting work is contained in the later work to constitute the latter an infringement of the former,\n\nthe latter, by definition, is not a derivative work.\u201d); 1 Melville B. Nimmer & David Nimmer,\n\nNimmer on Copyright \u00a7 3.01 (Matthew Bender Rev. Ed. 2023) (\u201cA work is not derivative unless\n\nit has substantially copied from a prior work.\u201d (emphasis omitted)). The plaintiffs cite Range\n\nRoad Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148 (9th Cir. 2012), but that case is not\n\napplicable here. In Range Road, the infringement was the public performance of copyrighted\n\nsongs at a bar. Id. at 1151-52. The plaintiffs presented evidence (namely, the testimony of\n\nsomeone they sent to the bar) that the songs performed were, in fact, the protected songs. Id. at\n\n1151-53. The defendants presented no evidence of their own that the protected songs were not\n\nperformed. Nor did they present evidence that the performed songs were different in any\n\nmeaningful way from the protected songs. Id. at 1154. The Ninth Circuit held that, under these\n\ncircumstances, summary judgment for the plaintiffs was appropriate. And the Court rejected the\n\ndefendants\u2019 contention that the plaintiffs, under these circumstances, were also required to\n\npresent evidence that the performed songs were \u201csubstantially similar\u201d to the protected songs.\n\n\n 2\n\f Case\n Case3:23-cv-03416-AMO\n 3:23-cv-03417-VC Document 59-1\n 56 Filed\n Filed\n 11/20/23\n 11/27/23Page\n Page3 of\n 4 of\n 45\n\n\n\n\nThat contention made no sense, because the plaintiffs had already offered unrebutted evidence\n\nthat the songs performed at the bar were the protected songs. Id. at 1154. Of course, if the\n\ndefendants had presented evidence at summary judgment that the songs performed at the bar\n\nwere meaningfully different from the protected songs, then there would have been a dispute over\n\nwhether the performances were infringing, and the case would have needed to go to trial. At that\n\ntrial, the plaintiffs would have needed to prove that the performed songs (or portions of the\n\nperformed songs) were \u201csubstantially similar\u201d to the protected songs. That\u2019s the same thing the\n\nplaintiffs would need to do here with respect to the content of LLaMA\u2019s outputs. To the extent\n\nthat they are not contending LLaMa spits out actual copies of their protected works, they would\n\nneed to prove that the outputs (or portions of the outputs) are similar enough to the plaintiffs\u2019\n\nbooks to be infringing derivative works. And because the plaintiffs would ultimately need to\n\nprove this, they must adequately allege it at the pleading stage.\n\n 3. The plaintiffs\u2019 Digital Millennium Copyright Act Section 1202(b) claims must also be\n\ndismissed. There are no facts to support the allegation that LLaMA ever distributed the\n\nplaintiffs\u2019 books, much less did so \u201cwithout their CMI.\u201d This is fatal to the Section 1202(b)\n\nclaims. See Free Speech Sys., LLC v. Menzel, 390 F. Supp. 3d 1162, 1175 (N.D. Cal. 2019). The\n\nallegation that Meta violated Section 1202(a)(1) of the DMCA also fails because the plaintiffs\n\nhave not plausibly alleged that LLaMA is an infringing derivative work.\n\n 4. The UCL claim must also be dismissed. To the extent it is based on the surviving claim\n\nfor direct copyright infringement, it is preempted. See 17 U.S.C. \u00a7 301(a); Maloney v. T3Media,\n\nInc., 853 F.3d 1004, 1010 (9th Cir. 2017). To the extent it is based on allegations of fraud or\n\nunfairness separate from the surviving copyright claim, the plaintiffs have not come close to\n\nalleging such fraud or unfairness.\n\n 5. The last two claims, for unjust enrichment and negligence, must also be dismissed as\n\npreempted. The complaint alleges the use of the plaintiffs\u2019 books to train LLaMA unjustly\n\nenriched Meta, but this claim relies on the same rights contained in the Copyright Act. See Del\n\nMadera Props. v. Rhodes & Gardner, Inc., 820 F.2d 973, 977 (9th Cir. 1987). Similarly, the\n\n\n 3\n\f Case\n Case3:23-cv-03416-AMO\n 3:23-cv-03417-VC Document 59-1\n 56 Filed\n Filed\n 11/20/23\n 11/27/23Page\n Page4 of\n 5 of\n 45\n\n\n\n\nplaintiffs allege Meta breached a duty of care \u201cto act in a reasonable manner toward others\u201d by\n\ncopying the plaintiffs\u2019 books to train LLaMA. Again, the duty alleged (to the extent it could be\n\nthought to exist) is premised on the rights protected by the Copyright Act and thus any claims for\n\nbreach of this duty are preempted. Even if the negligence claim was not preempted, the\n\n\u201ceconomic loss doctrine\u201d would apply. See Kalitta Air, LLC v. Cent. Tex. Airborne Sys., Inc.,\n\n315 Fed. App\u2019x 603, 605-06 (9th Cir. 2008).\n\n * * * *\n\n All the claims are dismissed with leave to amend except for the negligence claim which\n\nis dismissed with prejudice. The plaintiffs may file an amended complaint within 21 days of this\n\nruling. Any response to the complaint is due 21 days after the complaint is filed.\n\n\n\n IT IS SO ORDERED.\n\nDated: November 20, 2023\n ______________________________________\n VINCE CHHABRIA\n United States District Judge\n\n\n\n\n 4\n\f","ocr_status":2,"date_upload":"2024-01-04T21:26:45.576041-08:00","document_number":"59","attachment_number":1,"pacer_doc_id":"035023789226","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 1","acms_document_guid":""}],"date_created":"2023-11-27T16:09:32.255148-08:00","date_modified":"2026-05-19T12:07:05.214092-07:00","date_filed":"2023-11-27","time_filed":"16:00:35","entry_number":59,"recap_sequence_number":"2023-11-27.001","pacer_sequence_number":206,"description":"STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byOpenAI GP, L.L.C., OpenAI OpCo, L.L.C., OpenAI Startup Fund GP I, L.L.C., OpenAI Startup Fund I, L.P., OpenAI Startup Fund Management, LLC, OpenAI, Inc., OpenAI, L.P.. (Attachments: # 1 Exhibit 1)(Gass, Andrew) (Filed on 11/27/2023) (Entered: 11/27/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/370345790/","id":370345790,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67569254/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/377733806/","id":377733806,"tags":[],"absolute_url":"/docket/67569254/58/silverman-v-openai-inc/","date_created":"2023-11-09T15:36:24.016995-08:00","date_modified":"2026-05-19T12:07:05.170133-07:00","sha1":"8c80efcc43c49607182b6c07502838047cd94bb3","page_count":4,"file_size":291568,"filepath_local":"recap/gov.uscourts.cand.415174/gov.uscourts.cand.415174.58.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.415174/gov.uscourts.cand.415174.58.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.415174/377733806.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:23-cv-03416-AMO Document 58 Filed 11/09/23 Page 1 of 4\n\n\n\n 1\n\n 2\n\n 3\n\n 4\n\n 5\n\n 6\n\n 7\n\n 8\n\n 9\n\n10 UNITED STATES DISTRICT COURT\n NORTHERN DISTRICT OF CALIFORNIA\n11 SAN FRANCISCO DIVISION\n12\n Paul Tremblay, Lead Case No. 3:23-cv-03223-AMO\n13\n Individual and Representative Plaintiff, [PROPOSED] PRETRIAL ORDER NO. 1\n14\n v. [Filed Concurrently With Stipulation and\n15 [Proposed] Order to Consolidate Related Cases]\n OpenAI, Inc., et al.,\n16 Defendants.\n17\n This document relates to:\n18 Case No. 3:23-cv-03223-AMO\n19 Case No. 4:23-cv-03416-AMO\n20 Case No. 4:23-cv-04625-AMO\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n30\n Case No. 3:23-cv-03223-AMO\n31\n [PROPOSED] PRETRIAL ORDER NO. 1\n\f Case 3:23-cv-03416-AMO Document 58 Filed 11/09/23 Page 2 of 4\n\n\n\n\n 1 To facilitate the efficient management of the actions filed against OpenAI, Inc.; OpenAI, L.P.;\n\n 2 OpenAI OpCo, L.L.C.; OpenAI GP, L.L.C.; OpenAI Startup Fund I, L.P.; OpenAI Startup Fund GP I,\n\n 3 L.L.C.; and OpenAI Startup Fund Management, LLC (\u201cOpenAI\u201d) regarding OpenAI LLMs used for\n\n 4 ChatGPT (the \u201cOpenAI ChatGPT Actions\u201d) involving claims of Direct Copyright Infringement (17\n\n 5 U.S.C. \u00a7 106), Vicarious Copyright Infringement (17 U.S.C. \u00a7 106), the Digital Millenium Copyright\n\n 6 Act \u2013 Removal of Copyright Management Information (17 U.S.C. \u00a7 1202 (b)) (\u201cthe DMCA\u201d), Unfair\n\n 7 Competition (Cal. Bus. & Prof. Code \u00a7\u00a7 17200, et seq.), Negligence, and Unjust Enrichment, the\n\n 8 Court hereby ORDERS as follows:\n\n 9 1. The provisions of this Order shall govern the practice and procedures in the OpenAI\n\n10 ChatGPT Actions that were or will be related to Tremblay, et al. v. OpenAI ,Inc ., et al., Case No.\n\n11 3:23-cv-03223-AMO (N.D. Cal. June 28, 2023) (\u201cTremblay Action\u201d) pursuant to N.D. Cal. Civil\n\n12 Local Rule 3-12.1 Pursuant to Federal Rule of Civil Procedure 42(a), the Court now consolidates the\n\n13 OpenAI ChatGPT Actions into Case No. 23-cv-03223. The OpenAI ChatGPT Actions currently\n\n14 pending in the Northern District have been will be deemed consolidated for all purposes under Federal\n\n15 Rule of Civil Procedure 42(a) pursuant to stipulation by the parties, see ECF No. 60, and upon the\n\n16 filing of a consolidated complaint within 30 days of the Court\u2019s ruling on the pending motions to\n\n17 dismiss in 23-cv-3223 and 23-cv-3416. Consolidation does not have the effect of making any entity a\n\n18 party to any action in which he, she, or it has not been named, served, or added in accordance with the\n\n19 Federal Rules of Civil Procedure. All subsequent filings filed in this Court related to the OpenAI\n\n20 ChatGPT Actions shall be captioned \u201cIn re OpenAI ChatGPT Litigation\u201d under Case No. 23-cv-\n\n21 03223.\n\n22 2. In any cases that are subsequently filed in, removed to, or transferred to this Court\n\n23 involving the same or substantially similar issues of law and fact, Plaintiffs and/or the party\n\n24 responsible for the filing, removal, and/or transfer shall file a notice of related case under Civil Local\n\n25\n\n26\n 1\n Silverman, et al v. OpenAI, Inc., et al., Case No. 4:23-cv-03416-KAW (N.D. Cal. July 7, 2023)\n27 (\u201cSilverman Action\u201d) and Chabon, et al. v. OpenAI, Inc, et al., Case No. 4:23-cv-04625-AMO (N.D.\n28 Cal. Sept. 8, 2023) (\u201cChabon Action\u201d) have previously been related to the Tremblay Action by the\n Court. (ECF Nos. 26, - 53.)\n30\n 1 Case No. 3:23-cv-03223-AMO\n31 [PROPOSED] PRETRIAL ORDER NO. 1\n\f Case 3:23-cv-03416-AMO Document 58 Filed 11/09/23 Page 3 of 4\n\n\n\n\n 1 Rules 3-12 and 7-11 and a stipulation or administrative motion to consolidate actions within fourteen\n\n 2 (14) days after the filing, removal, or transfer of the case (whichever is later).\n\n 3 3. Every pleading or motion filed in the master docket shall bear the following caption:\n\n 4 UNITED STATES DISTRICT COURT\n\n 5 NORTHERN DISTRICT OF CALIFORNIA\n\n 6 SAN FRANCISCO DIVISION\n\n 7 IN RE OPENAI CHATGPT LITIGATION Master File No. 23-cv-03223-AMO\n\n 8 This Document Relates To: [\u201cAll Actions\u201d or the\n docket numbers of each individual case to which\n 9\n the document relates.]\n10\n\n11 4. If a document pertains to only one or some of the member cases, the document must list\n12 the actions or the docket number of each individual action to which the document applies immediately\n13 under the master caption as set forth above. Documents that pertain to one or only some of the\n14 individual pending actions shall also be filed in the individual case(s) to which the documents pertain.\n15 5. Each attorney of record is obligated to become a Northern District of California ECF\n16 User and be assigned a user ID and password for access to the system. If she or he has not already\n17 done so, counsel shall register forthwith as an ECF User and be issued an ECF User ID and password.\n18 Forms and instructions can be found on the Court\u2019s website at www.cand.uscourts.gov/ cm-ecf. The\n19 docket in Case No. 3:23-cv-03223-AMO will constitute the master docket. All filings shall be filed in\n20 the master docket.\n21 6. A copy of this Order shall be filed by the Clerk parties in any subsequent OpenAI\n22 ChatGPT Action related to In Re:OpenAI ChatGPT Litigation.\n23 7. Counsel are directed to familiarize themselves with the Northern District of California\u2019s\n24 Local Rules, the Standing Order for All Judges of the Northern District of California, the Court\u2019s\n25 standing orders, and the Guidelines for Professional Conduct for the Northern District of California.\n26 Noncompliance will be grounds for sanction.\n27 8. Counsel who appeared in a related case prior to consolidation need not enter an\n28 additional appearance before this Court. Attorneys admitted to practice and in good standing in any\n30\n 2 Case No. 3:23-cv-03223-AMO\n31 [PROPOSED] PRETRIAL ORDER NO. 1\n\f Case 3:23-cv-03416-AMO Document 58 Filed 11/09/23 Page 4 of 4\n\n\n\n\n 1 United States District Court may, at Case No. 3:23-cv-03223-AMO, seek to be admitted pro hac vice\n\n 2 in this litigation pursuant to N.D. Cal. Civil Local Rule 11-3. The requirement that pro hac vice\n\n 3 counsel retain local counsel, see N.D. Cal. Civil Local Rules 11-3(a)(3) and 11-3(e), is waived and\n\n 4 does not apply to this action.\n\n 5\n\n 6 IT IS SO ORDERED.\n\n 7\n\n 8\n Dated: November 9, 2023\n 9 Honorable Araceli Mart\u00ednez-Olgu\u00edn\n United States District Judge\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n30\n 3 Case No. 3:23-cv-03223-AMO\n31 [PROPOSED] PRETRIAL ORDER NO. 1\n\f","ocr_status":2,"date_upload":"2023-11-09T15:40:44.153127-08:00","document_number":"58","attachment_number":null,"pacer_doc_id":"035023735478","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Pretrial Order","acms_document_guid":""}],"date_created":"2023-11-09T15:36:23.995520-08:00","date_modified":"2026-05-19T12:07:05.134106-07:00","date_filed":"2023-11-09","time_filed":"15:16:01","entry_number":58,"recap_sequence_number":"2023-11-09.001","pacer_sequence_number":204,"description":"PRETRIAL ORDER NO. 1. Signed by Judge Araceli Martinez-Olguin on 11/9/2023. (ads, COURT STAFF) (Filed on 11/9/2023) (Entered: 11/09/2023)","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=67569254&page_size=40"}