News/Media Alliance Chose Best Possible Defendant in AI Lawsuit
Google is one of the world’s most recognized brands, the dominant name in search and advertising and, more recently, a leader in AI.
It would seem like the obvious target for publishers to sue for copyright and trademark infringement. But the fact is that Google is a complex behemoth making it almost impossible for anyone but the U.S. government to go up against.
That’s why a collection of publishers including McClatchy, Forbes Media, Politico, Business Insider and others are instead suing little-known AI company Cohere for copyright and trademark infringement.
The case against Cohere also appears to have pretty clean cut arguments. According to the publishers’ claims, Cohere violated copyright by allegedly making direct copies of content, including stories behind paywalls. They challenge the AI company’s potential “fair use” defense by showing they’ve made complete copies of content and they point to Cohere’s own product, which shows the sources of its information.
“I don’t know why their lawyers would have advised them that this was a good idea, but they did it, and so that made them a very solid target to make good law,” Danielle Coffey, chief executive officer at News/Media Alliance told AMO. “Google’s case is so complex, because it’s also about antitrust… even though they’re causing more harm… You want to go after the best case, so we chose the best possible defendant.”
The plaintiffs “are seeking a permanent injunction and damages for Cohere’s extensive and willful infringement.” Cohere did not respond to a request for comment.
Not Alone
Plenty of other media companies are suing generative AI businesses that have surged in the past couple of years: The New York Times sued OpenAI and Microsoft for copyright infringement late last year, and Dow Jones & Company and NYP Holdings sued Perplexity AI in October for the very same reason.
Not that media companies are unwilling to negotiate deals with AI companies: Conde Nast and Dotdash Meredith both signed with OpenAI products, while the Associated Press signed with Gemini. Even News/Media Alliance recently launched an AI licensing framework agreement with ProRata AI, which is actively working on behalf of publishers to ensure publishers are fairly credited and compensated.
So why bother litigating? Coffey believes the AI companies may be hedging their bets because they recognize at some level that what they are doing may be unlawful. The Copyright Act of 1976 prevents the unauthorized copying of a work of authorship.
“There’s a presumption in law that once you make a copy of our content, that’s a violation, because we have exclusive derivative rights per the Copyright Act in the Constitution.”
But AI companies are using the “Fair Use” defense in which U.S. law allows limited use of copyrighted material without having to first acquire permission from the copyright holder. But what AI companies are doing is not limited in scope, it’s being done at mass scale, and it is unlikely such technology could have been realistically foreseen back in the 1970s.
“It’s not a question of whether what they’re doing is unlawful, but it’s a question whether the courts will excuse that behavior,” Coffey said.
News/Media Alliance gathered the 10 plaintiffs because it’s seeking an industry solution, creating both licensing precedent and legal precedent, rather than just a one-off decision.
The next step in the legal process against Cohere is that the AI company either answers the complaint or files a motion to dismiss. Coffey thinks the media companies are on solid ground as some other legal processes have seen motions to dismiss denied. It will take a while to wend its way through the courts, and other decisions may be taken before then, setting some kind of precedent.
