Case 3:23-cv-03417-VC Document 56 Filed 11/20/23 Page 1 of 4

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIARICHARD KADREY, et al.,

Case No. 23-cv-03417-VC

Plaintiffs,
ORDER GRANTING MOTION TO
DISMISSv.
META PLATFORMS, INC.,

Re: Dkt. No. 23Defendant.

Meta has moved to dismiss all claims except the one alleging that the unauthorizedcopying of the plaintiffs’ books for purposes of training LLaMA constitutes copyright
infringement. The motion is granted. The remaining theories of liability, at least as articulated in
the complaint, are not viable. This order assumes familiarity with the facts of the case, theparties’ arguments, and the relevant law.
1. The plaintiffs allege that the “LLaMA language models are themselves infringing
derivative works” because the “models cannot function without the expressive information
extracted” from the plaintiffs’ books. This is nonsensical. A derivative work is “a work based
upon one or more preexisting works” in any “form in which a work may be recast, transformed,or adapted.” 17 U.S.C. § 101. There is no way to understand the LLaMA models themselves as arecasting or adaptation of any of the plaintiffs’ books.
2. Another theory is that “every output of the LLaMA language models is an infringing
derivative work,” and that because third-party users initiate queries of LLaMA, “every outputfrom the LLaMA language models constitutes an act of vicarious copyright infringement.” But
the complaint offers no allegation of the contents of any output, let alone of one that could beCase 3:23-cv-03417-VC Document 56 Filed 11/20/23 Page 2 of 4

understood as recasting, transforming, or adapting the plaintiffs’ books. Without any plausible
allegation of an infringing output, there can be no vicarious infringement. See Perfect 10, Inc. v.
Amazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007).
The plaintiffs are wrong to say that, because their books were duplicated in full as part of
the LLaMA training process, they do not need to allege any similarity between LLaMA outputs
and their books to maintain a claim based on derivative infringement. To prevail on a theory that
LLaMA’s outputs constitute derivative infringement, the plaintiffs would indeed need to allege
and ultimately prove that the outputs “incorporate in some form a portion of” the plaintiffs’
books. Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984); see also Andersen v.
Stability AI Ltd., No. 23-CV-00201-WHO, 2023 WL 7132064, at *7-8 (N.D. Cal. Oct. 30, 2023)(“[T]he alleged infringer’s derivative work must still bear some similarity to the original work or
contain the protected elements of the original work.”); 2 Melville B. Nimmer & David Nimmer,Nimmer on Copyright § 8.09 (Matthew Bender Rev. Ed. 2023) (“Unless enough of the preexisting work is contained in the later work to constitute the latter an infringement of the former,
the latter, by definition, is not a derivative work.”); 1 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright § 3.01 (Matthew Bender Rev. Ed. 2023) (“A work is not derivative unlessit has substantially copied from a prior work.” (emphasis omitted)). The plaintiffs cite Range
Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148 (9th Cir. 2012), but that case is notapplicable here. In Range Road, the infringement was the public performance of copyrighted
songs at a bar. Id. at 1151-52. The plaintiffs presented evidence (namely, the testimony ofsomeone they sent to the bar) that the songs performed were, in fact, the protected songs. Id. at1151-53. The defendants presented no evidence of their own that the protected songs were notperformed. Nor did they present evidence that the performed songs were different in any
meaningful way from the protected songs. Id. at 1154. The Ninth Circuit held that, under thesecircumstances, summary judgment for the plaintiffs was appropriate. And the Court rejected thedefendants’ contention that the plaintiffs, under these circumstances, were also required topresent evidence that the performed songs were “substantially similar” to the protected songs.

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That contention made no sense, because the plaintiffs had already offered unrebutted evidence
that the songs performed at the bar were the protected songs. Id. at 1154. Of course, if thedefendants had presented evidence at summary judgment that the songs performed at the bar
were meaningfully different from the protected songs, then there would have been a dispute overwhether the performances were infringing, and the case would have needed to go to trial. At thattrial, the plaintiffs would have needed to prove that the performed songs (or portions of theperformed songs) were “substantially similar” to the protected songs. That’s the same thing theplaintiffs would need to do here with respect to the content of LLaMA’s outputs. To the extent
that they are not contending LLaMa spits out actual copies of their protected works, they wouldneed to prove that the outputs (or portions of the outputs) are similar enough to the plaintiffs’
books to be infringing derivative works. And because the plaintiffs would ultimately need toprove this, they must adequately allege it at the pleading stage.
3. The plaintiffs’ Digital Millennium Copyright Act Section 1202(b) claims must also bedismissed. There are no facts to support the allegation that LLaMA ever distributed theplaintiffs’ books, much less did so “without their CMI.” This is fatal to the Section 1202(b)claims. See Free Speech Sys., LLC v. Menzel, 390 F. Supp. 3d 1162, 1175 (N.D. Cal. 2019). The
allegation that Meta violated Section 1202(a)(1) of the DMCA also fails because the plaintiffs
have not plausibly alleged that LLaMA is an infringing derivative work.
4. The UCL claim must also be dismissed. To the extent it is based on the surviving claim
for direct copyright infringement, it is preempted. See 17 U.S.C. § 301(a); Maloney v. T3Media,Inc., 853 F.3d 1004, 1010 (9th Cir. 2017). To the extent it is based on allegations of fraud orunfairness separate from the surviving copyright claim, the plaintiffs have not come close toalleging such fraud or unfairness.
5. The last two claims, for unjust enrichment and negligence, must also be dismissed aspreempted. The complaint alleges the use of the plaintiffs’ books to train LLaMA unjustlyenriched Meta, but this claim relies on the same rights contained in the Copyright Act. See Del
Madera Props. v. Rhodes & Gardner, Inc., 820 F.2d 973, 977 (9th Cir. 1987). Similarly, the3Case 3:23-cv-03417-VC Document 56 Filed 11/20/23 Page 4 of 4

plaintiffs allege Meta breached a duty of care “to act in a reasonable manner toward others” bycopying the plaintiffs’ books to train LLaMA. Again, the duty alleged (to the extent it could bethought to exist) is premised on the rights protected by the Copyright Act and thus any claims forbreach of this duty are preempted. Even if the negligence claim was not preempted, the“economic loss doctrine” would apply. See Kalitta Air, LLC v. Cent. Tex. Airborne Sys., Inc.,
315 Fed. App’x 603, 605-06 (9th Cir. 2008).
* * * *All the claims are dismissed with leave to amend except for the negligence claim which
is dismissed with prejudice. The plaintiffs may file an amended complaint within 21 days of thisruling. Any response to the complaint is due 21 days after the complaint is filed.

IT IS SO ORDERED.
Dated: November 20, 2023______________________________________
VINCE CHHABRIA
United States District Judge4