Joseph C. Gratz

Joseph C. Gratz used to be a sound designer for theater, where his fascination with copyright, remixes and sampling sparked his initial interest in legal matters.

"I've been programming for fun since I was a kid," he said. "Computers stayed fun and that's an important part of my enjoyment of my work. My practice combines the legal side and the tinkering/programming side of my brain that makes my job the most fun. And recently, I've been working with AI companies to help them design their products in a way that complies with copyright law and creates fewer complications, and that has been fascinating."

His major pending cases involve litigation when copyright and trademark law meet new technologies like generative AI.

Gratz represents OpenAI in a class action Digital Millennium Copyright Act suit about generative AI models. The plaintiffs in the suit are programmers who posted their open-source code to GitHub. OpenAI worked with GitHub to develop Copilot, a tool that helps programmers write code more efficiently by suggesting code using generative AI. The plaintiffs alleged that the AI training process on their publicly posted code involved wrongful removal of copyright management information. Virtually all of the claims in the case were dismissed for failure to state a claim. A motion to dismiss the remaining claims is pending.

"The most interesting thing about all these cases is that they are about using copyrighted works to train a computer to produce something other than a copy of those copyrighted works," Gratz said. "It's not interesting for a computer to present an exact copy of an existing article or picture. If you show these computers enough examples, it can create new things that have never been created before. The opportunity with AI and large language models is the ability to be a tool to create entirely new things and not simply copy existing things."

He said the courts are looking at how well these existing laws deal with things that have been created much later than the original law to determine whether something is substantially similar or copying for a purpose that is not to expressly represent this work.

"It's particularly relevant for me because one of my favorite cases to have worked on is the Google Books case and that laid the groundwork for these technology companies to do these kinds of work," Gratz said.

Gratz said one trend he has observed is greater recognition of the practical realities of facing online platforms, "particularly in the RedBubble case where the 9th circuit recognized that the level of individual scrutiny given to each post online, depends on whether it's a site that hand curates the posts or a large platform that is unable to provide the same level of scrutiny."

He added: "We are going to look at the realities at what the platform could reasonably have done rather than holding them to an impossible standard."