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Judge Rakoff explains why The Intercept's claim that OpenAI stripped copyright information from its articles before training survives, while its distribution claim and claims against Microsoft fail
On Feb. 20, 2025, Judge Jed Rakoff issued the opinion behind his Nov. 21, 2024 bottom-line order (Dkt. 122). That order had dismissed all claims against Microsoft with prejudice, dismissed The Intercept's DMCA 1202(b)(3) distribution claim with prejudice, and let its 1202(b)(1) removal claim against OpenAI proceed. The opinion rejects OpenAI's standing argument, holding that removal of copyright management information is closely related to property harms copyright has long recognized and that publication to a third party is not required, parting ways with Judge McMahon's Raw Story ruling. On the merits it finds intentional removal plausibly pleaded on information and belief, given that OpenAI's data is secret, and finds the knowledge element met under the theory that OpenAI had reason to know removal would facilitate downstream infringement, pointing to ChatGPT's reproduction of articles, its marketing and OpenAI's indemnity for commercial users. The court said a lenient scienter standard "does not give The Intercept a free pass." The 1202(b)(3) claim failed because the complaint did not plausibly allege OpenAI distributed the articles.
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