This year has been a busy one in the generative artificial intelligence (gen AI) class action litigation landscape. New pleadings were filed, including several new class actions, several consolidated and amended complaints, and one appeal. Several key decisions were issued, including a trio that formed a three-way split of authority on how to determine whether training a gen AI model on copyrighted materials constitutes “fair use” under the Copyright Act. Additionally, one humongous settlement was reached.

Gen AI class actions typically allege that a gen AI developer violated copyright laws by generating infringing outputs and/or by using unauthorized copies of copyrighted works as inputs to train the developer’s models. 

Many of these gen AI class actions are “bet-the-company” lawsuits, even for the world’s largest companies. Plaintiffs in gen AI class actions typically invoke the Copyright Act in order to seek billions—and sometimes even trillions—of dollars on the theory that thousands or millions of unauthorized copies of copyrighted works, times up to $150,000 per copyrighted work for willful infringement, equals a crushing, settlement-inspiring number.

This year, the U.S. District Court for the Northern District of California issued three conflicting opinions that created a triple split of authority in gen AI class actions involving allegations that that an AI developer downloaded copyrighted works from pirating websites to train its AI models in violation of the Copyright Act. The key issue in all three rulings was the extent to which an AI developer’s use of the plaintiffs’ works qualifies as a “fair use” under Section 107 of the Copyright Act. Each of the three opinions conflicted with the other, thus presaging further litigation over the hotly contested issue of fair use. 

First, Judge William H. Alsup denied an AI developer’s motion for summary judgment on the issue of fair use. In short, Alsup held that an AI developer that allegedly copied over seven million copies of books “from a pirate site has infringed already, full stop.” With up to about $10 trillion of potential statutory damages thereby continuing to hang in the balance as a result of this ruling, pending further decisions on the defendant’s additional defenses, and in lieu of an appeal, the parties promptly settled thereafter for $1.5 billion, one of this year’s largest settlements in any type of class action lawsuit.

Two days after Alsup’s decision, Judge Vince Chhabria, by contrast, granted partial summary judgment for an AI developer, finding instead that “the plaintiffs are wrong that the fact that the AI developer downloaded the books from shadow libraries and did not start with an ‘authorized copy’ of each book gives them an automatic win. To say that the developer’s downloading was ‘piracy’ and thus cannot be fair use begs the question.” Judge Chhabria further held that to overcome a fair use defense, therefore, the named plaintiffs would need to show that the AI model either sufficiently regurgitated plaintiffs’ works in the model’s outputs or sufficiently diluted the market for the plaintiffs’ works, but since there was insufficient evidence in the record to show either regurgitation or market dilution, summary judgment was warranted for the defendant, leaving plaintiffs’ sole remaining copyright claim involving distribution of copies by way of participating in a filesharing network.

Two weeks later, Judge Lisa Cisneros granted a named plaintiff’s motion to compel an AI developer to produce documents and communications relating to licensing books for use as AI training data. In granting the motion, in part, Cisneros noted and disagreed with the prior two summary judgment decisions’ express holdings “that the negative impact on the plaintiffs’ ability to license their work for generative AI training is not a cognizable form of market harm under factor four, and thus not relevant as a matter of law.” As Cisneros explained in disagreement with these prior decisions’ holdings that the market for licensing is not pertinent to determining fair use, Cisneros noted that the Copyright Act lists four factors courts consider to determine whether use of a copyrighted work is fair: “the purpose and character of the use …; the nature of the copyrighted work; the amount and sustainability of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.” Cisneros then concluded in favor of production, finding that “the Ninth Circuit has not yet addressed factor four in the context of AI” and finding no “controlling authority that forecloses a finding that evidence of an existing market for licensing material for training AI bears on the factor four analysis.” 

The U.S. District Court for the Northern District of California also issued a class certification decision this year, granting it in part and denying it in part. In sum, the court held that where a collection of books downloaded from a pirating website contains sufficient file contents and metadata to readily determine whether the books are copyrighted, common issues predominate over others such that a “classic case for certification” is presented. By contrast, the same opinion held that, in the case of pirated collections that do not contain sufficient file contents and metadata to readily determine whether the books are copyrighted, individualized issues predominate over common ones such that class certification should be denied.

Additional notable decisions issued in 2025 in gen AI class actions include a decision denying class certification on the basis of the class definition being defined as a “fail-safe” class, dispositive decisions defining the contours of claims alleging that gen AI developers violated the Digital Millenium Copyright Act, a decision on the copyrightability of voice in the context of voice cloning technology, and multiple additional decisions on motions to compel, further clarifying the scope of documents that may or may not be discoverable in gen AI class actions.

In sum, with gen AI continuing to proliferate and the current presidential administration continuing the prior administration’s policy goals of sustaining and enhancing America’s global AI dominance, gen AI litigation is multiplying. We should expect to see an upward trend of key decisions and new cases in the remainder of this year and beyond as this burgeoning area of the law continues to unfold.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.