Microsoft Opposes 14 Calif. Plaintiffs Intervening in 4 N.Y. OpenAI Cases

Microsoft conditionally opposes the Feb. 12 motions of the 14 plaintiffs in the first-filed copyright infringement suit against OpenAI in the Northern District of California to intervene in and to dismiss the four actions against OpenAI and Microsoft filed subsequently in the Southern District of New York (see 2402140028), said Microsoft’s opposition Monday (docket 1:23-cv-08292). The California plaintiffs alternatively seek to stay the four SDNY cases or transfer them to California. Microsoft is a defendant in each of the SDNY cases but not in the California case, said its opposition. The California plaintiffs “remarkably do not mention” that fact in their motions, said Microsoft. Were all the plaintiffs in the California and New York actions to agree that Microsoft should be dismissed with prejudice “so that the remaining common parties can facilitate complete consolidation of those matters,” Microsoft wouldn’t object, it said. But on the assumption that the plaintiffs in the New York actions aren’t amenable to dismissing Microsoft with prejudice, it opposes the relief sought by the California plaintiffs, Microsoft said. Its opposition is “for the simple reason that it is defending the cases brought against it in the jurisdiction where those cases were filed,” it said. Microsoft is doing so “with deliberate speed and pursuant" to the 2nd U.S. Circuit Court of Appeals’ "instructions regarding the handling of copyright class actions,” it said. The California plaintiffs’ motions should be “seen as what they plainly are: jockeying for position among putative class counsel in two separate jurisdictions,” it said. Though there may come a time when one court or the other has to address that dispute, that “turf war” involves the procedural step of class certification, it said. The 2nd Circuit has instructed that class certification should follow summary judgment rather than precede it, said Microsoft. The issue may not arise at all as to Microsoft if the court agrees with its fair use defenses. The 2nd Circuit has recognized that those summary judgment defenses should come first “in order to preserve judicial resources by potentially rendering class certification proceedings unnecessary,” it said.