Google and its owner Alphabet are being sued over their alleged practice of “stealing” web-scraped data and “vast troves of private user data from [its] own products” in order to build commercial artificial intelligence (“AI”) products like its Bard chatbot. In the complaint that they filed with a California federal court on Tuesday, J.L., C.B., K.S., P.M., N.G., R.F., J.D., and G.R. (the “plaintiffs”), who have opted to file anonymously, claim that “for years, Google harvested [our personal and professional information, our creative and copywritten works, our photographs, and even our emails] in secret, without notice or consent from anyone,” thereby, engaging in unfair competition, negligence, invasion of privacy, and copyright infringement, among other causes of action.
In the newly-filed complaint, the plaintiffs allege that “it has very recently come to light” that Google and Alphabet have been scraping personal data from millions of consumers to train its generative AI products without properly notifying or garnering consumer consent, and without giving “credit or fair compensation” to consumers. Google and co. “did not stop there,” according to the plaintiffs, and instead, they “continued to feed the products” – which depend on “personal data of every kind, especially conversational data between humans” – by harnessing data “gleaned from various of its own Google services, including Gmailand Google Search.”
Among some of the key allegations in the plaintiffs’ 90-page complaint …
– Timing: The timing of the lawsuit follows closely from Google’s move to “quietly ‘update’ its online privacy policy [on July 1] to double-down on its position that everything on the internet is fair game for the company to take for private gain and commercial use, including to build and enhance AI products like Bard.” Moreover, they assert that “Google’s sudden notice and admission regarding its scraping practices to build Bard and other AI products came only three days after its competitor OpenAI was sued for theft and commercial misappropriation of personal data on the internet, as part of its own massive ‘scraping’ operation, also done in secret, without notice of consent from anyone whose personal information was taken. “
The plaintiffs further allege that the updates to the Google privacy policy were the tech giant’s “first public acknowledgement of what it had been doing in secret for years: scraping the entire internet to take anything it could, whether contributed on Google platforms or not, and without regard for the privacy, property, and consumer protection interests of the hundreds of millions of Americans.”
– Unfair advantage: Google’s “decision to take personal data without notice, consent, or fair compensation not only violates the individual rights of millions, but also gives Google an unfair advantage over smaller competitors who purchase or otherwise lawfully obtain AI training data in the marketplace,” the plaintiffs argue, noting that there is, in fact, “a mature commercial market for such data.”
– In particular, they claim that as part of its alleged theft of personal data, “Google illegally accessed restricted, subscription-based websites to take the content of millions without permission and infringed at least 200 million materials explicitly protected by copyright, including previously stolen property from websites known for pirated collections of books and other creative works.”
– Copyright considerations: “Instead of competing fairly, Defendants illegally copied the unique works of millions of creators to develop and ‘train’ their AI technology, without consent, credit, or fair compensation. The [Google AI] products’ ability to replicate the writing styles of specific authors, recreate the music and lyrics of specific musicians, duplicate the works of online content producers, as well as the ability to summarize and reproduce copyrighted materials, arises from the fact that these materials were copied by Defendants without authorization and injected into the underlying LLM as part of its training data. This unauthorized theft and usage of copyrighted content stands in stark violation of creators’ exclusive rights under copyright law. “
– Fair use: Looking to get ahead of potential fair use arguments that Google and co. may make, the plaintiffs maintain that “the practice of web scraping effectively nullifies the concept of ‘fair use,’ a critical aspect of copyright law designed to allow limited use of copyrighted material without permission for purposes like commentary, criticism, news reporting, and scholarly reports.” Further, they claim that “the defendants’ wholesale collection and use of copyrighted material, with no option for copyright owners to opt out, far exceeds any reasonable interpretation of ‘fair use.’”
– Notice/Consent: Because Google and co. “conduct web scraping across millions of web pages, without asking the affected consumers their permission to use their content for training,” they “do not, and cannot provide consumers with the notice required by [California state law] at or before the point of collection.”
– Right to be forgotten: “Even if individuals could request that Bard remove their data, it is not possible to do so completely,” which poses problems from a “right to be forgotten” perspective, according to the plaintiffs. “The problem … is the ‘right to be forgotten” – i.e., the right to request a business delete the personal information that it holds about you – is more than a ‘concern,’ it is a guaranteed right for California residents under the California Consumer Privacy Act of 2018 and for children under 13 nationwide under the Children’s Online Privacy Protection Act.”
With the foregoing in mind, the plaintiffs allege that Google and co. have engaged in: (1) unfair competition (as a result of their “illegal collection and use of the plaintiffs’ and classes’ personal information”); (2) negligence, as they have a duty to exercise due care in “obtaining data to train their products, not using individual’s private information to train [their] AI, and destroying personal information to which [they] had no legal right to possess”; (3) invasion of privacy; (4) intrusion upon seclusion; (5) larceny/receipt of stolen property; (6) conversion; (7) unjust enrichment; (8) direct copyright infringement; (9) vicarious copyright infringement; and (10) violation of the Digital Millennium Copyright Act.
In addition to seeking certification of their proposed class action, which includes a couple classes of consumers, including “all persons in the U.S. whose personal information [was] accessed, collected, tracked, taken, or used by the defendants without consent or authorization,” and “all persons in the U.S. who own a U.S. copyright in any work that was used as training data for the defendants’ products,” the plaintiffs are demanding monetary damages and injunctive relief. In terms of the latter, the plaintiffs assert that Google and co. “must be enjoined from these ongoing violations of the privacy and property rights of millions and ordered to stop the illegal theft of internet data.”
They must also be ordered “to allow everyday internet users to opt out of Google’s illicit data collection efforts going forward, and to either delete the data already obtained illegally or pay the owners of that data in the form of ongoing data dividends or other fair compensation.”
The case is J.L., C.B., K.S., et al., v. Alphabet, Inc., et al., 3:23-cv-03440 (N.D. Cal.)
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