Copyright Lawsuits Begin Legal Backlash Against AI-Generated Works

01.20.23

For years, Artificial Intelligence (AI) programs have been working in the background of our lives, developing everything from building temperature control systems to immersive conversational partners. However, in recent months these systems entered the foreground of a new arena: federal court. Alongside our recent article recounting a dispute over proper inventorship of AI-developed inventions, available at this link, this article summarizes recent lawsuits alleging that leading AI companies and their software programs are systematically infringing copyrights held by computer programmers and artists alike. 

The first major lawsuit came in November of 2022. Plaintiffs filed the putative class action suit against Github, Microsoft, and various OpenAI business entities in connection with the jointly-developed ​“GitHub Copilot” software. At issue is how the Copilot software is trained to create ​“new” computer code. The Copilot software works by electronically scraping databases of code from various online sources and, in some instances, allegedly incorporating the existing code into ​“new” programs without credit. Per the plaintiffs, taking code in this manner constitutes copyright infringement because much of the purportedly copied code was reproduced without credit and in violation of each respective software license. In response, defendants claim that use of the relevant code was a ​“fair use” under federal copyright law. The case is still in the very early stages, but the result is likely to have widespread effects on both copyright law and the viability of using AI to generate commercial software.

The second class action lawsuit came in early 2023. The suit, filed on behalf of potentially thousands of artists, alleges that Stability AI, Inc., its UK counterpart Stability AI, LTD, and Midjourney, Inc., developed software named ​“Stable Diffusion” that, in response to user-submitted text prompts, trawls the internet to collect copyrighted artistic works and then combines the works to create a ​“new” derivative work. For example, in response to a user’s request to produce a photorealistic image of an attorney writing an article on copyright lawsuits, the Stable Diffusion software would look for artistic works of lawyers drafting various documents and would then combine aspects of the works to produce an approximate representation of me at my desk. According to plaintiffs’ counsel, Stable Diffusion doesn’t create wholly original pieces of art; Stable Diffusion instead acts as a mere ​“21st-century collage tool” improperly using billions of copyrighted artworks.

The likely outcome of each suit is unclear, and a final result may take years and numerous appeals to achieve. Regardless, that plaintiffs are taking an aggressive stance against the alleged poaching is a sign that thousands of living, breathing creators are not going to give up to AI without a fight.

• Copyright