Litigation Nation

Jack Sanker: Welcome Litigation Nation. I'm your host, Jack Sanker. Today's stories more AI news as a couple of authors have sued Open ai, which is the parent company of chat, g p t for copyright violations alleging that their program has been trained on the text of their copyrighted novels. And an update on the Montana climate lawsuit.

Jack Sanker: If you remember this, the kids in Montana that sued the state over alleged constitutional violations of their rights to clean air and water. This case went to trial last month. We have an update on how the trial went, all that and more. Here's what you need to know.

Jack Sanker: So two authors of fiction novels filed a class Action against OpenAI, which is the company that is behind Chat, G B T, the online generative AI chatbot. Whatever you wanna call it, claiming that the AI platform was trained on their copyrighted books and what's their evidence? Well, according to the lawsuit, when prompted, the AI provided very accurate summaries of their novels.

Jack Sanker: Now, I'm not an IP lawyer, so if you are, and you're listening, I'm sorry for this broad and possibly less than 100% accurate generalization, but broadly and generally, commercial use of copyrighted material is prohibited without license or permission from the copyright holder. Here. The fact that the AI can spit out summaries of the books does sort of suggest that it was fed those books as part of its learning process.

Jack Sanker: Apparently, this is the first copyright lawsuit brought against OpenAI. According to a recent article in The Guardian that I'm relying on for this story, quoting from that piece, quote, books are ideal for training large language models because they tend to contain high quality, well-edited, long form prose.

Jack Sanker: Said the author's, lawyers, Joseph Salve and Matthew. Butterwick in an email to the Guardian. It's the gold standard of idea storage for our species. The complaint said that OpenAI unfairly profits from stolen writing ideas and calls for monetary damages on behalf of all US-based authors whose works were allegedly used to train Chad g p t.

Jack Sanker: Though authors with copyrighted works have great legal protection, said Salve and Butterwick, they are confronting companies like Open Eye who behave as if these laws don't apply to them. Unquote. So one potential counterargument I've seen is that The fact that Che G p T is also trained on kind of non copyrighted internet information, which could include, for example, summaries or discussions of the books themselves.

Jack Sanker: So I guess it's possible that it could generate a summary based on sort of general internet rabble. Rather than the text of the novels themselves. Of course, I guess that raises the question of whether online discussions of the novels themselves are copyrighted, and I think, for example, a book review published in the New York Times is also copyrighted by the New York Times, right?

Jack Sanker: IP Lawyers. Anyways, according to The Guardian, their case is going to depend on the interpretation of fair use. Under American law tech companies are on the side of expanding that definition to a fair use to include things like beta mining which it currently probably does not. I am willing to bet that just based on the history of tech companies and the general move fast and break things way of doing business mentality that persists in Silicon Valley.

Jack Sanker: That chat, g b t is probably using copyrighted materials. I am pretty sure that that's gonna be the case. I'd be shocked if that was not the case, just my opinion, of course. But this is a class action. I imagine that other creators including probably graphic creators, there's been allegations, at least kind of rumblings online about generative AI imaging using copyrighted artwork to, to generate different AI pieces of.

Jack Sanker: Art, I suppose you wanna call it. So in any minute, I think that folks are gonna probably join on in this. This will probably be the first of many that are filed against these online generative AI programs. And we'll see what happens. We'll see how the law adapts to this new technology.

Jack Sanker: Up next way back in episode nine, we covered a unique lawsuit filed by Youth activist group in Montana, and here's the gist of it. The Montana Constitution contains a provision that puts the right to a clean and healthful environment at very top of the document before even the freedom of speech and freedom of religion is mentioned in the Montana Constitution.

Jack Sanker: Now, Maybe that sounds like fluff to you. But I want to read the preamble of the Montana Constitution to you now so that you have some context here. Quote, we the people of Montana, grateful to God for the quiet beauty of our state, the grande of our mountains, the vastness of our rolling planes, and desiring to improve the quality of life, equality of opportunity, and to secure the blessings of liberty for this in future generations.

Jack Sanker: Do ordain and establish this constitution. So the very first sentence of the Montana State Constitution, which was amended. In the seventies in order to, to include this kind of explicitly pro climate language. So, It mentions the rolling planes in the mountains. It emphasizes nature. Now, section three of the Montana Constitution, which is titled Inalienable Rights, says all persons are born free and have certain inalienable rights.

Jack Sanker: They include the right to a clean and healthful environment. And the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing, and protecting property, and seeking their safety, health, and happiness in unlawful ways, and enjoying these rights. All persons recognize corresponding responsibilities.

Jack Sanker: Again, the first thing mentioned here in the list of available rights is the right to a clean and healthful environment. So freedom of religion isn't even mentioned until two subsections later, followed by the freedom of assembly and the freedom of speech. Again, this, the climate language is up first, so a lot of people have kind of dismissed this lawsuit that was brought by the Montana youths as kind of based on the preamble or based on sort of flimsy introductory language to the document.

Jack Sanker: And I don't really don't think that's the case. I think that the Montana constitution actually does convey an explicit right to a clean and healthful environment. So the lawsuit here, which is the held versus Montana case, if you wanna look it up alleges that certain activities in the state by the state mainly missions based activities or permitting of emissions based activities by private entities violated the.

Jack Sanker: Youths, many of whom I think are now 18, but when they sued, they were minors, violated their right to a clean and healthful environment, and also targets the Montana epa, which contains a provision that specifically prevents the state from considering its energy economy and how it may contribute to climate change.

Jack Sanker: Montana amended that statute recently to ban the state from considering greenhouse emissions, for example, in environmental reviews for new energy products. So, The trial, by the way, it took place last month and it's concluded about three weeks ago. The parties are waiting on a written opinion from the trial judge.

Jack Sanker: We'll probably get one sometime in late July or August, and which I'm really excited for, according to the activist group that is backing the the plaintiffs on their website. Here's what happened at trial. So from June 12th through the 20th of 2023, the youth plaintiffs, their attorneys and world-renowned experts from across Montana and the United States presented clear and irrefutable evidence that Montana is promoting the extraction and burning of fossil fuels.

Jack Sanker: Despite the availability of renewable energy sources, extracting and burning fossil fuels causes and worsens the climate crisis, the climate crisis injures and harms the youth plaintiffs, and these. Climate injuries and harms caused by the actions of their own government violate the youth's state's constitutional rights.

Jack Sanker: Interestingly enough, the plaintiffs actually called delegates from the 1972 Montana Constitutional Convention to testify regarding this provision of this green language, of this environmentalist language in the Constitution. A. Delegate named May n Ellingson was the youngest delegate at the time of the 1972 Montana Constitutional Convention, and she testified and told the judge that at the time, Montana was the only state that had a constitutionally enshrined right to a clean and healthful climate.

Jack Sanker: But now Montana's climate is, quote, neither clean nor healthful, unquote. They called climate experts, kind of the usual scientists that you'd probably expect climatologists, et cetera. And the plaintiffs themselves, who according to the summaries of trial proceedings that are online at the youth gov.org website, testified as follows.

Jack Sanker: A number of plaintiffs testified regarding their personal stories and how this would've injured them. For example, plaintiff named Ricky described working outdoors on her family's ranch in extreme heat and smoke. Grace, one of the other plaintiffs talked about playing soccer in high school, including how a lot of practices were smoked out, or I guess canceled.

Jack Sanker: A plaintiff named Eva shared her experience filling sandbags for seven hours during severe flooding of the Yellowstone River near her home. Plaintiff named Micah spoke of his love for outdoor activities, especially running, and he was recently diagnosed with asthma and is especially vulnerable to wildfire smoke.

Jack Sanker: He says, I hope people try and make a difference, and I hope the state of Montana can change its ways on fossil fuels. Plaintiff named Badge B took the stand and he discussed his love for Montana's beauty and how he enjoys rafting, hunting, fishing, hiking. And he described how wild wildfires are threatening his family's home, and how the wildfire smoke means he's not able to go outside at certain times.

Jack Sanker: And Georgie a competitive Nordic skier trains year round, apparently wildfire smoke was so bad in the summer of 2021 that she was forced to train indoors and she recalls looking outdoors looking out the window and barely seeing the buildings across the street due to all the smoke. Someone, by the way, is an aside, someone who's based in Chicago here.

Jack Sanker: Recently, about a week ago, we had our own like severe wildfire smoke environment, and it was really nasty. There was a bunch of wildfire that was blowing down from Canada, blew all the way across the Great Lakes into Chicago, and even just going outside for a walk for 15 to 20 minutes leaves a horrible taste in your mouth.

Jack Sanker: Doing anything like going for a run or a bike ride was actually dangerous. So I, I fully subscribed to the idea that being exposed to a lot of wildfire smoke can be unhealthy and dangerous. Anyways, the defense in this case seems to have mainly attacked the procedure elements of the claims, kind of like causation and, and weather, Montana's greenhouse emissions, which frankly, Have gotta be modest in the grand scheme of things compared to, say, China or the Rust Belt states in the US or India or whatever, can properly be blamed for the injuries of these plaintiffs.

Jack Sanker: Now, the plaintiff did not bother to call any climate experts and is resting on the procedural and causation defenses. Like I said, we're still waiting for a verdict. From my perspective, I actually see both sides here. I mean, the Montana constitution I really do think does make it seem like there's a right to a clean and healthy environment for Montana citizens.

Jack Sanker: I buy that and the legislative history, from what I've seen of the. 1972 Montana Constitution makes that clear too. But to me, at least, the case would be much stronger in the context of like specific instances of pollution within Montana, say that the state passed a law that would allow for fracking to occur, which poisoned the groundwater and I don't know, allowed toxic waste to be dumped on a beautiful mountainside.

Jack Sanker: I mean, I actually buy the argument that in those scenarios, the plaintiffs would have a valid constitutional claim. And by the way, there are some examples of this elsewhere. In Pennsylvania, the Constitution requires the state to conserve and maintain public resources for the benefit of all people. And in 2012, a fracking law was found to violate those constitutional provisions for exactly the reasons I mentioned in my examples above it damaged the water.

Jack Sanker: So this isn't, you know, crank litigation. It's a legit theory of enforcing rights. That to my. Humble lawyer, I are clearly conveyed and enumerated in the Montana constitution. And on the issues of damages, yes. I actually think that the plaintiffs getting asthma from the wildfires, other plaintiffs suffering flood damage, some I'm being prevented from being able to participate in outdoor activities.

Jack Sanker: I think that's sufficient to show real harm and create a genuine controversy. The term healthful environment sticks in my mind as I read their summaries of their testimony. If the Montana constitution means to protect against anything, It should mean to protect against environmental contamination, leading to chronic illness and property damage.

Jack Sanker: But the issue is that can you really blame whatever industrial activity is happening in Montana for the global conditions of rising average temperatures? I mean, no shade to Montana, but Montana has a population of just over a million people. Or to put it another way, Montana has about as many residents as Amazon has employees.

Jack Sanker: So whatever you think about climate change, I really have a hard time believing you can blame a lot of it on little Montana. So in that sense, I think the plaintiffs have a tough slog, but with respect to their specific challenges to the various state epa statutory provisions in, in those scenarios, it seems like they have a much fairer shot.

Jack Sanker: Anyways, this ruling is expected sometime in July or August. I'm really excited to read the ruling. I think there's something to the plaintiff's theory, the case here that just catches my interest and I hope catches all of yours interests. Thanks everyone. That's the show. As you noticed, Luke is, isn't here.

Jack Sanker: Unfortunately Luke, unfortunately for us at least, Luke has taken an in-house position at a, a different company. He's gonna remain actually a firm client, but he's no longer gonna be helping out. On the podcast I'll leave you with his last note. This was from Luke last week. As many of you know, today's my last day at Oon Davis.

Jack Sanker: I love this law firm and the people here are the best I've ever worked with. I'm excited for the future success of Oton Davis and all of you. I'll stay connected as a friend, a golf buddy, and a firm client. It was a privilege to be your colleague and partner. Farewell Luke, and for everyone else, we'll talk to you in two weeks.