Legal challenges mounted against AI tools

Andrew Easterbrook

By now, most people will have heard about tools like ChatGPT and Stable Diffusion – AI tools that can generate complex text and images.

They are types of “generative AI”. Unsurprisingly, their release has prompted a raft of litigation based on breaches of rights asserted by content creators. Most of those challenges allege the output appears to be a copy of their work, or occurred because their work was used in training the AI.

There are three major lawsuits targeting AI tools and some have potential implications for New Zealand. As far as we can find, no defendants have filed full responses to the various complaints.

GitHub Copilot

GitHub is a Microsoft-owned code repository, meaning people go there to develop and publish software code. Once published, that code is often subject to licence terms dictating how it may be used. In the not uncommon circumstance that the code is not subject to a licence, GitHub’s own materials acknowledge that copyright law does not allow reproduction, distribution or the creation of derivative works.

Open AI and Microsoft collaborated to make a tool called Copilot. Copilot helps people write code, a little like autocomplete on your iPhone. The language model for Copilot was at least partly trained on the GitHub code repository.

In November 2022, lawyers filed a class action lawsuit against Microsoft, GitHub and OpenAI, asserting that:

■ Microsoft and OpenAI trained Codex (the language model used to power Copilot) and Copilot using code published on GitHub;

■ doing so violated the open-source licences under which that code had been published; and

■ Codex and Copilot output copyrighted materials without following the terms of the relevant licences. They claim relief on the basis of breaches of copyright legislation, breach of contract, unjust enrichment, privacy and personal data breaches and a range of other causes of action. Based on previous publications, it is anticipated the defendants will argue that their generative AI system has learnt things by looking at what’s publicly available online and simply use what they learn to create new works (like a human does). They are likely to say that falls within the US “fair use” doctrine, allowing limited use of copyright material. It remains to be seen what defences or arguments may be made in connection with the other causes of action.

Artists vs Stable Diffusion

Stable Diffusion is an online tool that will generate images from text prompts. It is owned by Stability AI.

In January 2023 the same group of lawyers involved in the Copilot litigation filed a second class action on behalf of three artists against Stability AI, DeviantArt and Midjourney. The lawsuit makes similar claims to the Copilot litigation (breach of contract, violation of the DMCA and a few others), and also alleges direct copyright infringement.

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