November 19, 2024

OpenAI’s Texts and DMs: Business or Personal?

If you’ve been following this blog, you’re familiar with the copyright infringement cases the New York Times and the Authors Guild have brought against OpenAI, makers of ChatGPT. So familiar, in fact, I won’t summarize these suits again. You can find a prior post about these cases here. The current dispute is interesting, at least to me (social media + law = fun for a nerd like me!) because it is another data point on how courts grapple with the blurry line between business and personal communications on social media.

Taking a step back for the non-litigators and non-lawyers in the room: In litigation, the parties must exchange materials that could have a bearing on the case. This generally covers a pretty broad range of materials and requires each party to produce all such materials that are in its “possession, custody, or control.” A party can also subpoena a non-party to the case for relevant materials in the non-party’s “possession, custody, or control.” However, where possible, it’s generally better to get discovery materials from a party instead of a non-party.

Turning back to the cases against OpenAI, the Authors Guild asked the tech company to produce texts and social media direct messages from more than 30 current and former employees, including some of the company’s top executives. It claims these communications may shed light on the issues in the case.

OpenAI has pushed back strongly. It claims that its employees’ social media accounts and personal phones are, well, personal and, therefore, not in its control. It also contends the Guild’s request might intrude on these persons’ privacy. OpenAI also rejects the Guild’s assumption that OpenAI’s search of its internal materials relevant to the case will be inadequate without its employees’ and former employees’ texts and DMs. It sniffs that the Guild should wait until it receives OpenAI’s documents before presuming as much (how rude!). 

The Authors Guild has responded by pointing to OpenAI employees’ posts on X (yes, formerly Twitter) that clearly indicate they used their “personal” social media for work purposes. Same goes for their phones which, while they may not be paid for by the company, seem to have been used to text about business. 

So, who’s right here? For starters, it seems pretty likely that, at least for current OpenAI employees, OpenAI could just tell people to turn over DMs and text messages. Assuming the employees don’t object or refuse, this should be enough to establish that OpenAI has “control.” The fact that it seems that OpenAI hasn’t taken this basic step before refusing to produce DMs and text messages seems like a really good way to piss off the Magistrate Judge hearing this issue, especially if the employees violated OpenAI policies requiring work-related communications to take place on devices and accounts owned by the company (it should have such policies if it doesn’t!) or if the communications were clearly within the scope of an employee’s employment. Without that basic showing, it seems likely that the Authors Guild will prevail. 

If it does (or if it doesn’t) there will be more about it here!