Case 1:25-cv-00501-UNA Document 1 Filed 04/24/25 Page 1 of 62 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ZIFF DAVIS, INC., ZIFF DAVIS, LLC, IGN
`ENTERTAINMENT, INC., and
`EVERYDAY HEALTH MEDIA, LLC,
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`Plaintiffs,
`
`v.
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`Civ. Action No. _______________
`1:25-cv-00501-UNA
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`JURY TRIAL DEMANDED
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`OPENAI, INC., OPENAI GP, LLC, OPENAI,
`LLC, OPENAI OPCO, LLC, OPENAI
`GLOBAL LLC, OAI CORPORATION, and
`OPENAI HOLDINGS, LLC,
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`Defendants.
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`COMPLAINT
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`Plaintiffs Ziff Davis, Inc., Ziff Davis, LLC, IGN Entertainment, Inc., and Everyday Health
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`Media, LLC (together, “Ziff Davis” or “Plaintiffs”), for their Complaint against Defendants
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`OpenAI, Inc., OpenAI GP, LLC, OpenAI, LLC, OpenAI OpCo LLC, OpenAI Global LLC, OAI
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`Corporation, and OpenAI Holdings, LLC (together, “OpenAI”), respectfully allege as follows:
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`INTRODUCTION
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`1.
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`Ziff Davis, by its attorneys, brings this action against OpenAI for copyright
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`infringement, violations of the Digital Millennium Copyright Act (“DMCA”), unjust enrichment,
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`and trademark dilution.
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`2.
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`Ziff Davis has published high-quality journalism for nearly 100 years, growing from
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`its roots as the publisher of Popular Aviation to its current stewardship of over 45 diverse digital
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`media publications and internet brands, including IGN, Mashable, CNET, ZDNET, PCMag,
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`Lifehacker, BabyCenter, and Everyday Health. Each year, it produces nearly 2 million new articles
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`and article updates—including over 5,000 product reviews—in which it owns the exclusive rights
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`Case 1:25-cv-00501-UNA Document 1 Filed 04/24/25 Page 2 of 62 PageID #: 2
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`
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`under 17 U.S.C. § 106 of the Copyright Act (“Ziff Davis Works” or “Plaintiffs’ Works”).
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`3.
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`OpenAI develops Artificial Intelligence (“AI”) large language models (“LLMs”),
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`including its “Generative Pretrained Transformer” or “GPT” series of LLMs.
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`4.
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`To build and operate its LLM software and LLM-based products and services,
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`OpenAI has intentionally and relentlessly reproduced exact copies and created derivatives of Ziff
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`Davis Works without Ziff Davis’s authorization.
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`5.
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`Specifically, Defendant OpenAI has and continues to knowingly:
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`a.
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`Copy the text of Ziff Davis Works from Ziff Davis’s websites without
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`authorization;
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`b.
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`Violate and circumvent Ziff Davis’s explicit written demands and
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`technological controls;
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`c.
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`Strip out key copyright management information (“CMI”) from Ziff Davis
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`Works;
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`d.
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`e.
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`Use copied Ziff Davis Works to develop LLMs;
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`Use copied Ziff Davis Works to operate LLMs and LLM-based products and
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`services, which it provides to third parties;
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`f.
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`Reproduce, distribute, display, perform, and make available for access, Ziff
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`Davis Works verbatim and in close paraphrase and derivative form (but with CMI
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`removed);
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`g.
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`Facilitate and enable the reproduction, distribution, display, and performance
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`of Ziff Davis Works by third parties; and
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`h.
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`Falsely attribute output to Ziff Davis that is not Ziff Davis content, and falsely
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`attribute Ziff Davis content to other parties.
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`6.
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`Defendant OpenAI has taken each of these steps knowing that they violate Ziff
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`
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`Davis’s intellectual property rights and the law.
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`7.
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`OpenAI’s actions violate, either directly or indirectly:
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`a.
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`Ziff Davis’s exclusive rights of reproduction, preparation of derivative works,
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`distribution, performance, and public display under the Copyright Act;
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`b.
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`Provisions of the DMCA prohibiting circumvention of technical copy
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`protection measures and removal of copyright management information;
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`c.
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`d.
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`Delaware state laws’ protection against unjust enrichment; and
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`The Lanham Act’s and Delaware state laws’ prohibitions against trademark
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`dilution.
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`8.
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`OpenAI’s actions and violations of law harm Ziff Davis because they:
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`a.
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`Substitute OpenAI’s LLMs, products, services, and outputs for Ziff Davis’s
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`media content and distribution services;
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`b.
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`Usurp Ziff Davis’s ability to monetize user interactions through advertising,
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`product sales commissions, and other revenue-producing activities;
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`c.
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`Deprive Ziff Davis of the licensing fees OpenAI should have paid to Ziff
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`Davis; and
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`d.
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`Tarnish Ziff Davis’s parent brand and many well-known media brands by
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`falsely attributing to them statements and text that Ziff Davis never published.
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`9.
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`Upon information and belief, OpenAI has long been aware of the widespread reports
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`of copyright infringement after releases of its various products. Further, by letters dated February 5,
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`2024 and May 20, 2024, Ziff Davis put OpenAI on notice of Ziff Davis’s claims.
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`10.
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`Ziff Davis also wrote to OpenAI on August 23, 2024 to provide further information
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`that would support an infringement claim and to request a meeting to discuss a licensing
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`arrangement. OpenAI rebuffed the invitation to meet.
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`11.
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`Ziff Davis has documented—even pre-discovery—specific instances in which
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`OpenAI copied Ziff Davis’s content to develop and operate LLMs, violating the DMCA in multiple
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`knowing and intentional ways in the process.
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`12.
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`OpenAI has concealed much of its misconduct by abandoning its founding principle
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`of openness—and constituent open-sourcing and transparent publication practices—deferring a
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`wealth of information about OpenAI’s infringements and violations of law for discovery.
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`13.
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`Ziff Davis alleges and will prove that whole portions of OpenAI’s LLMs are
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`themselves infringing copies of Ziff Davis Works.
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`14.
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`OpenAI seeks to move fast and break things on the assumption that the federal courts
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`will not be able to effectively redress content owners’ sometimes existential concerns before it is too
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`late.
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`15.
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`Simultaneously with intentionally and egregiously exploiting the content of Ziff
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`Davis and other commercial web publishers without permission, OpenAI is also actively creating
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`and cultivating a market to license content from publishers.
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`16.
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`OpenAI, by its actions, has flouted copyright and trademark law and discredited its
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`own pretext for that flouting. Ziff Davis therefore seeks relief from this Court.
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`JURISDICTION AND VENUE
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`17.
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`This Court has subject matter jurisdiction over Ziff Davis’s claims pursuant to
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`28 U.S.C. §§ 1331 and 1338 as they arise under the Copyright Act.
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`18.
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`This Court has personal jurisdiction over each of the OpenAI Defendants because
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`they are incorporated in, registered in or formed in Delaware, and therefore reside in this District.
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`19.
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`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and 28 U.S.C. §
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`1400(a) because OpenAI and its agents reside in or may be found in this District.
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`PARTIES
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`20.
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`Plaintiff Ziff Davis, Inc. is a Delaware corporation with its principal place of
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`business at 360 Park Avenue South, 17th Floor, New York, New York.
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`21.
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`Plaintiff Ziff Davis, LLC is a Delaware limited liability company with its principal
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`place of business at 360 Park Avenue South, 17th Floor, New York, New York.
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`22.
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`Plaintiff IGN Entertainment, Inc. is a Delaware corporation with its principal place
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`of business at 360 Park Avenue South, 17th Floor, New York, New York.
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`23.
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`Plaintiff Everyday Health Media, LLC is a Delaware limited liability company with
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`its principal place of business at 360 Park Avenue South, 17th Floor, New York, New York.
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`24.
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`Defendant OpenAI, Inc. is a Delaware corporation with its principal place of
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`business at 3180 18th Street, San Francisco, California. Upon information and belief, Defendant
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`OpenAI, Inc. is a non-profit company that governs other OpenAI entities and perpetrated the
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`infringing and other unlawful activities alleged in this complaint.
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`25.
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`Defendant OpenAI GP, LLC is a Delaware limited liability company with its
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`principal place of business at 3180 18th Street, San Francisco, California. OpenAI GP, LLC is
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`wholly owned and controlled by OpenAI, Inc. and is responsible for managing and operating the
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`day-to-day business and affairs of OpenAI OpCo LLC, formerly known as OpenAI LP. Through
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`OpenAI GP, LLC, OpenAI, Inc. controls OpenAI OpCo LLC and OpenAI Global LLC. Upon
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`information and belief, OpenAI, Inc. relaunched itself as a for-profit enterprise in 2019, specifically
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`through OpenAI GP, LLC and OpenAI OpCo LLC, and these entities perpetrated the infringing and
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`other unlawful conduct alleged in this complaint.
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`26.
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`Defendant OpenAI, LLC is a Delaware limited liability company, with its principal
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`place of business located at 3180 18th Street, San Francisco, California. OpenAI, LLC was formed
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`in September 2020, is responsible for monetizing and distributing OpenAI’s LLM-based products,
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`and upon information and belief perpetrated the infringing and other unlawful activities alleged in
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`this complaint. Upon information and belief, OpenAI, LLC is a subsidiary of OpenAI Global LLC,
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`which is owned and controlled by both OpenAI, Inc. and Microsoft Corporation.
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`27.
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`Defendant OpenAI OpCo LLC is a Delaware limited liability company with its
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`principal place of business at 3180 18th Street, San Francisco, California. OpenAI OpCo LLC,
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`formerly known as OpenAI LP, is a subsidiary of OpenAI Global LLC, and is the sole member of
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`OpenAI, LLC. Upon information and belief, OpenAI OpCo LLC perpetrated the infringing and other
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`unlawful activities alleged in this complaint, directing this activity through its control of OpenAI,
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`LLC. Additionally, OpenAI OpCo LLC serves as the for-profit arm of OpenAI, overseeing the
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`commercialization of OpenAI’s products and services, including LLMs and associated application
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`programming interfaces (“APIs”).
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`28.
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`Defendant OpenAI Global LLC is a capped profit limited liability company formed
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`under the laws of Delaware in late 2022, with its principal place of business located at 3180 18th
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`Street, San Francisco, California. Upon information and belief, OpenAI Global LLC is a subsidiary
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`of Open AI, Inc. OpenAI, Inc. holds a majority interest in OpenAI Global LLC indirectly through
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`OpenAI GP, LLC. Upon information and belief, OpenAI Global LLC perpetrated the infringing and
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`other unlawful activities alleged in this complaint through its ownership, control, and direction of
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`OpenAI, LLC.
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`29.
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`Defendant OAI Corporation is a Delaware limited liability company with its
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`principal place of business located at 3180 18th Street, San Francisco, California. OAI Corporation
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`is a subsidiary of OpenAI, Inc. and its sole member is OpenAI Holdings, LLC. Upon information
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`and belief, OAI Corporation perpetrated the infringing and other unlawful activities alleged in this
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`complaint through its ownership, control, and direction of OpenAI Global LLC and OpenAI, LLC.
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`30.
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`Defendant OpenAI Holdings, LLC is a Delaware limited liability company with its
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`principal place of business located at 3180 18th Street, San Francisco, California. Its sole members
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`are OpenAI, Inc. and Aestas, LLC, the latter of which is wholly owned by Aestas Management
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`Company, LLC. Aestas Management Company, LLC is a Delaware entity established to facilitate a
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`$495 million capital raise for OpenAI. Upon information and belief, OpenAI Holdings, LLC
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`perpetrated the infringing and other unlawful activities alleged in this complaint.
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`FACTUAL ALLEGATIONS
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`Ziff Davis’s Media Business
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`31.
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`Founded in 1927 by William Ziff and Bernard Davis, Ziff Davis has been a
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`cornerstone of publishing and media innovation for nearly a century. From its origins in enthusiast
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`print magazines to becoming a digital media powerhouse, Ziff Davis has always adhered to William
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`Ziff’s enduring principle that “growth will come in those media that reach the … consumer in an
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`intensive way, not in those that touch everyone lightly.” This philosophy continues to define Ziff
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`Davis’s brands, driving their ability to deliver deeply relevant, expertly-researched, and trusted
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`content.
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`32.
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`Today, Ziff Davis is a vertically focused digital media and technology company with
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`over 45 portfolio media brands. Its well-known publications and editorial sites, including IGN,
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`Mashable, CNET, ZDNET, PCMag, Lifehacker, BabyCenter, and Everyday Health, are circulated to
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`millions of consumers on a daily basis. A list of Ziff Davis brands is attached hereto as Exhibit A.
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`33.
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` Ziff Davis’s storied history and vast audience of readers demonstrate the quality and
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`value of its brand and content.
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`
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`Ziff Davis’s Media Verticals
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`34.
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`Ziff Davis provides authoritative content and services in discrete and consumer-rich
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`media “vertical” categories, including Technology and Shopping, Gaming and Entertainment, and
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`Health and Wellness, which operate under their own well-known umbrella brands:1
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`● Technology and Shopping. Ziff Davis’s CNET Group comprises marquee
`names of technology journalism, including CNET, a longtime leader in
`providing expert news, information, and trusted reviews covering consumer
`technology, money, wellness, and other topics; ZDNET, an authoritative
`provider of global technology business news, advice, and insights; Mashable,
`a news and entertainment site covering technology and digital media; PCMag,
`a leading authority on technology that delivers lab-based, independent reviews
`of the latest products; Lifehacker, which provides users with general life tips
`and tech help; AskMen, which provides expert advice in men’s lifestyle; and
`Spiceworks, a global IT professional network and marketplace that publishes
`news and research for technology professionals. Ziff Davis Shopping provides
`expert editorial content for shopping needs across eight brands including
`RetailMeNot, which helps guide consumers through the best shopping deals;
`Deals of America, which collates the best online deals, coupons, promotions
`and special offers from US stores in real time; TechBargains, the leading
`online destination for consumers searching for the best deals on the hottest
`products and gadgets; and BlackFriday and TheBlackFriday, which help
`shoppers view popular Black Friday advertisements in one central location.
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`● Gaming and Entertainment. Ziff Davis’s IGN Entertainment is a leading
`digital media company in its own right and predominates in its sector in the
`quality and influence of its content. It provides extensive authoritative content
`relating to video games (including game help and guide content), films, anime,
`television, comics, and other media. It draws on unparalleled access to game
`developers and the broader gaming community. Its brands include IGN, Gamer
`Network (and constituent brands including Eurogamer, Rock Paper Shotgun,
`and VG247), Maxroll, and MapGenie. IGN Entertainment is considered one of
`the most recognizable brands for games, entertainment, and fan-culture in
`major markets worldwide.
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`● Health and Wellness. Ziff Davis’s Everyday Health Group is a recognized
`leader in patient and provider news, information, and services. Its most
`recognizable assets are Everyday Health, a provider of trustworthy health and
`wellness information through expert editorial staff and medical reviewers;
`What To Expect, the world’s most recognized and trusted pregnancy and
`parenting brand; BabyCenter, on which parents and expecting parents rely for
`content about conception, pregnancy, birth, and early childhood development;
`MedPage Today, a trusted source for clinical news coverage across the medical
`specialties; and theSkimm, a provider of news and information through its
`website and suite of email newsletters.
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`35.
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`Ziff Davis’s media properties reach, inform, and guide the decision-making of
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`1 Ziff Davis also operates well-known connectivity, cybersecurity, and marketing technology businesses.
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`hundreds of millions of consumers. In the last twelve available months, Ziff Davis’s top digital media
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`properties together averaged over 292 million unique user visits per month.
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`36.
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`Ziff Davis has built a legacy of trust and authority across diverse audiences,
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`cementing its media properties as leaders in their respective fields. They have won numerous awards,
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`including:
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`a.
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`CNET, Mashable, and Lifehacker are frequently honored for the excellence
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`of their digital media content, winning awards from the LA Press Club, FOLIO’s
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`Eddie & Ozzie Awards, and The Webby Awards.
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`b. MedPage Today is a frequent winner of the Health Information Resource
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`Center’s Digital Health Awards, recognizing the exceptional quality of its deep
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`investigative reporting, news and opinion content, and video series. MedPage Today
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`has won 29 Digital Health Awards in the past three awards years.
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`c. What to Expect and BabyCenter have received a variety of awards for their
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`news, storytelling, and interactive media, including multiple The Webby Awards and
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`Digital Health Awards.
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`d.
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`Everyday Health has won over 100 awards in the past three years alone,
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`including many Digital Health Awards, Academy of Interactive & Visual Arts w3
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`Awards for best website editorial experience, and Medical Marketing & Media
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`Awards for best media brand.
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`e.
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`IGN, Eurogamer, and VG247 have earned dozens of awards throughout their
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`decades of operation, including MCV/DEVELOP Awards, Games Media Awards,
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`Association of Online Publishers Digital Publishing Awards, Shorty Awards, and
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`Webby Awards.
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`37.
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`Reporters for Mashable, CNET, ZDNET, IGN, MedPage Today, and other Ziff
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`Davis investigative reporters devote themselves tirelessly to original investigation, research, and
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`reporting, and they consistently and frequently break major stories in their respective fields.
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`38.
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`Ziff Davis’s content is supported by rigorous research, reporting, and product
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`testing, and its experienced writers and editors incorporate the results of these efforts into original
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`stories. For example:
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`a.
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`Since 1984 PCMag has operated one of the longest-running independent
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`testing facilities for consumer technology products in the country. It produces
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`unbiased technology product and service reviews, and PCMag’s Editor’s Choice
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`award is recognized globally as a trusted mark for buyers and sellers of technology
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`products and services.
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`b.
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`CNET maintains three specialized lab facilities: one in New York City for
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`testing of technology products and measurement of performance data such as battery
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`life, screen brightness, color fidelity, and network connection lag, which it shares
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`with ZDNET; a second in Louisville, Kentucky, in which products such as large
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`appliances, televisions, smart home devices, and fitness equipment are tested under
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`strict environmental controls; and a third in Reno, Nevada for mattress review
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`testing.
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`c.
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`Everyday Health, What to Expect, and BabyCenter all produce journalism that
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`is extensively researched and reported by its original authors and rigorously fact-
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`checked by teams of expert medical reviewers holding M.D.s, Ph.D.s, master’s
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`degrees, and other specialized degrees.
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`d.
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`The journalists writing for IGN and Ziff Davis’s other Gaming and
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`Entertainment digital media properties spend hours playing and beating video games
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`and critically consuming entertainment content, and they use this research and
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`experience to create original reviews, reporting, and book-length game guides.
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`39.
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`Ziff Davis invests directly in content creation through its teams of journalists,
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`editors, designers, and producers, as well as indirectly, by funding website and app platform
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`development, innovation, and maintenance. Ziff Davis invests in the corporate infrastructure that
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`supports that content creation, including through the work of its human resources, finance,
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`accounting, business and corporate development, technology, product management, information
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`security, legal, and management professionals who work within its operating divisions and at the
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`corporate level.
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`40.
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`41.
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`Ziff Davis has a workforce of over 3,800 employees and over 40 offices worldwide.
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`In short, Ziff Davis and its personnel expend and invest considerable time, energy,
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`and resources—and take financial and journalistic risks—to create the Ziff Davis Works.
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`42.
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`Ziff Davis’s reach is global: its publications offer approximately 70 regional
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`editions, and its content is published in 20 languages in over 100 countries. Ziff Davis also has a
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`robust social media presence and as of January 2025 boasted approximately 77 million followers
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`across various platforms.
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`43.
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`In the aggregate, Ziff Davis’s websites realize more inbound traffic from traditional,
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`link-oriented search engines than its key peers, for example receiving over 195 million visits directly
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`from search engine results in March 2025 according to third-party reporting:
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`Case 1:25-cv-00501-UNA Document 1 Filed 04/24/25 Page 12 of 62 PageID #: 12
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`Publisher March 2025 organic search visits
`Rank
`1 Ziff Davis
`195,444,230
`2
`IAC
`171,992,393
`3 NY Times
`167,234,204
`4 Red Ventures
`125,904,722
`5 News Corp
`102,232,014
`6 Hearst
`97,328,101
`7 Future
`96,044,415
`8 Vox Media
`61,957,138
`9 Axel Springer
`61,455,201
`10
`Internet Brands
`50,377,250
`11 Penske
`47,927,190
`12 Gannett
`41,778,440
`13 Buzzfeed
`27,603,953
`14 Advance
`27,227,326
`15 Washington Post
`22,089,245
`16 Alden Capital
`3,222,899
`
`
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`44.
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`The protection of Ziff Davis’s intellectual property in the Ziff Davis Works is
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`essential to its ability to continue to provide the high-quality content that its readers expect, maintain
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`its competitive market position, and grow its revenue.
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`45.
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`Due to this investment, Ziff Davis attracts and retains consumer and professional
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`audience attention and maintains a robust roster of premium clients, generating significant revenue
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`streams from, among other sources, display and video advertising, other sponsorships, content and
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`data licensing, subscriptions, third-party sales referrals, and other forms of performance marketing.
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`46.
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`In 2024, Ziff Davis’s advertising and performance marketing revenue was
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`approximately $778 million, and the total revenue of its Technology and Shopping, Gaming and
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`Entertainment, Health and Wellness, and Connectivity publicly-reportable segments (which
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`previously comprised Ziff Davis’s Digital Media publicly-reportable segment) exceeded $1 billion.
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`47.
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`Ziff Davis licenses its content and other intellectual property to third parties for
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`various uses, such as syndication through platforms including Apple News, MSN, and Yahoo, as well
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`as enterprise licensing through the Copyright Clearance Center and other organizations.
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`48.
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`Ziff Davis also licenses its content to a host of international operators of localized
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`editions of Ziff Davis media properties in countries and regions throughout the world.
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`49.
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`Ziff Davis expends considerable resources in developing and operating its licensing
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`business and pursuing and obtaining new sources of revenue and content business opportunities.
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`50.
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`As such, in a few instances Ziff Davis has negotiated and entered into limited
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`licensing agreements for the authorized use of its content and intellectual property in connection
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`with the development and operation of LLMs and AI systems.
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`51.
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`Ziff Davis does not typically place its media content behind “paywalls.” It is directly
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`harmed by the diversion of consumer attention to competing sources of unauthorized copies of its
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`content because reductions in audience engagement with Ziff Davis websites diminish its revenue—
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`and in turn its ability to produce more high-quality content.
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`Copyright Interests
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`52.
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`Ziff Davis has registrations covering more than 1.3 million works with the U.S.
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`Copyright Office, as set forth in Exhibit B (the “Registered Works”).
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`53.
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`Ziff Davis’s copyright registrations cover, but are not limited to, editorial archives
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`of Everyday Health, What to Expect, MedPage Today, IGN, Eurogamer, Games Industry, Rock
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`Paper Shotgun, Dicebreaker, VG247.com, Migraine Again, Daily Diabetes, BPHope, Mashable,
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`PCMag, CNET, ZDNET, and Lifehacker.
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`Trademark Interests
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`54.
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`Ziff Davis and/or its subsidiaries or affiliates holds federal trademark registrations for
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`ZIFF DAVIS, including under U.S. Registration Nos. 7346739 4107486, and 5821876 (the “Ziff
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`Case 1:25-cv-00501-UNA Document 1 Filed 04/24/25 Page 14 of 62 PageID #: 14
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`
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`Davis Mark”). Ziff Davis also holds federally registered trademarks for many of its brands and
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`variations thereof, as set forth in Exhibit C (together with the Ziff Davis Mark, the “Registered
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`Marks”).
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`55.
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`By virtue of the duration, scope, and geographic reach of Ziff Davis’s advertising and
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`publicity pertaining to each Registered Mark, and the extensive sales of goods and services under
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`the Registered Marks, each of the Registered Marks is distinctive and famous.
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`56.
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`Ziff Davis or its predecessors-in-interest have continuously used the mark ZIFF
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`DAVIS, as well as the titles for each of its individual brands, including those listed in Exhibit A, and
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`variations thereof, in interstate commerce since the date of first publication for each title or website
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`(the “Common Law Marks”). Through the longstanding, exclusive, and widespread use of these
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`marks, Ziff Davis has developed substantial goodwill and recognition among consumers,
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`establishing enforceable common law trademark rights in each mark. Ziff Davis therefore owns the
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`exclusive right to use these trademarks in commerce in connection with its goods and services.
`
`OpenAI’s Business
`
`1.
`
`57.
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`OpenAI’s History
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`OpenAI was founded in December 2015 as a non-profit organization focused on AI
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`research. The company received an initial $1 billion in funding from its founders, including
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`prominent tech entrepreneurs and investors such as Elon Musk (Tesla and X Corp. CEO), Reid
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`Hoffman (LinkedIn co-founder), Sam Altman (former Y Combinator president), and Greg
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`Brockman (former Stripe CTO). Companies like Amazon Web Services and Infosys were also
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`among OpenAI’s early backers.2
`
`58.
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`OpenAI initially declared that its research and activities would not be profit-driven.
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`Its co-founders expressed that the organization’s objective was to advance digital intelligence for
`
`
`2 OpenAI, Introducing OpenAI (Dec. 11, 2015), https://openai.com/index/introducing-openai (last visited Apr. 20, 2025).
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`the collective benefit of humanity, free from an obligation to “generate financial returns.”3
`
`59.
`
`In its application for 501(c)(3) status, OpenAI promised that “[t]he specific purpose
`
`of this corporation is to provide funding for research, development and distribution of technology
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`related to AI. The resulting technology will benefit the public and the corporation will seek to open
`
`source technology for the public benefit when applicable.”4
`
`60.
`
`Despite its initial pledges of philanthropy, OpenAI soon transformed into a multi-
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`billion-dollar for-profit enterprise. In March 2019, three years after its founding, OpenAI established
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`OpenAI LP, a for-profit entity that undertook the majority of OpenAI’s operations, including product
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`development.5 This change allowed OpenAI to raise significant capital from investors seeking
`
`financial returns.
`
`61.
`
`In addition to shedding its non-profit nature, OpenAI abandoned its initial
`
`commitment to openness and transparency.
`
`62.
`
`For instance, prior to the formation of the for-profit OpenAI LP, OpenAI published
`
`relatively transparent research concerning its model development work and released its GPT-1 and
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`GPT-2 LLMs and underlying code under open-source licenses.6
`
`63.
`
`While OpenAI did not release the data used to develop or “train” GPT-2 publicly, it
`
`did publicly release the top 1,000 domains of websites used in the WebText training dataset for
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`GPT-2 and a sample selection of the WebText training dataset itself.7
`
`64.
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`After these model releases, however, OpenAI ceased its open-sourcing practices,
`
`
`
`3 Id.
`4 OpenAI, Inc., Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code (2016),
`https://www.documentcloud.org/documents/25197523-openai-application-for-tax-exempt-status.
`5 Ashley Belanger, OpenAI Plans “Tectonic Shift” from Nonprofit to for-Profit, Giving Altman Equity,” Ars Technica
`(Sept. 27, 2024), https://arstechnica.com/information-technology/2024/09/openai-plans-tectonic-shift-from-nonprofit-
`to-for-profit-giving-altman-equity.
`6 Code and model for the paper “Improving Language Understanding by Generative Pre-Training”,
`https://github.com/openai/finetune-transformer-lm; Code for the paper “Language Models are Unsupervised Multitask
`Learners,” https://github.com/openai/gpt-2.
`7 See discussion, infra, paragraphs 132–34.
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`
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`releasing subsequent models such as GPT-3 without making them publicly available under
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`open-source licenses.
`
`65.
`
`This cessation effectively concealed the identity of the web content data OpenAI used
`
`to train its more recent models, making it more difficult for rightsholders to determine whether their
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`copyrighted works were used without permission in the training process.
`
`66.
`
`OpenAI’s release of its GPT-4 language model on March 14, 2023 was met with
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`significant disappointment from many in the AI community due to the lack of transparency
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`surrounding the model’s development.8
`
`67.
`
`One AI technologist criticized OpenAI for “proudly declar[ing] that they’re
`
`disclosing *nothing* about the contents of their [GPT-4] training set,”9 citing a section of the GPT-
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`4 Technical Report that stated that “[g]iven both the competitive landscape and the safety
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`implications of large-scale models like GPT-4, this report contains no further details about the
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`architecture (including model size), hardware, training compute, dataset construction, training
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`method, or similar.”10
`
`68.
`
`Rightsholders also expressed concern about the apparent unauthorized use of their
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`proprietary content in the model’s training process.11
`
`69.
`
`Elon Musk, an original co-founder of OpenAI, has sued the company, alleging that it
`
`breached its founding commitment to make AI breakthroughs “freely available” to “regulators and
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`the public” and premising a claim for unfair competition on, among other things, OpenAI’s “rampant
`
`
`8 Chris Stolker Walker, Critics Denounce a Lack of Transparency Around GPT-4’s Tech, Fast Company (Mar. 15, 2023),
`https://www.fastcompany.com/90866190/critics-denounce-a-lack-of-transparency-around-gpt-4s-tech.
`9 James Vincent, OpenAI Co-founder Ilya Sutskever Says the Company’s Not Sharing GPT-4 Details for Competitive
`and Safety Reasons, The Verge (Mar. 15, 2023), https://www.theverge.com/2023/3/15/23640180/openai-gpt-4-launch-
`closed-research-ilya-sutskever-interview.
`10 OpenAI, GPT 4 Technical Report (Mar. 22, 2023), https://cdn.openai.com/papers/gpt-4.pdf.
`11 Alex Weprin, Barry Diller’s Media Companies Sue OpenAI, Microsoft for Copyright Infringement, Hollywood
`Reporter (Feb. 28, 2024), https://www.hollywoodreporter.com/business/business-news/barry-diller-media-publishers-
`sue-generative-ai-1235371039 (quoting Barry Diller, CEO of Dotdash Meredith parent company IAC stating “If all the
`world’s information is able to be