Now that the parties have filed unredacted versions of their briefs, we know what the David Boies law firm thinks are smoking guns from the discovery they received from Mark Zuckerberg. Just how damaging are they? Boies represents the Kadrey plaintiffs in the proposed class action for book authors against Meta.
Well, here’s the unredacted passage from the opening of the reply brief with highlights we added:
The plaintiffs allege, based on documents and deposition testimony from Meta officials:
(1) some of Meta’s AI executive team knew that LibGen dataset had pirated copies of works: “a dataset we know to be pirated,”
(2) “Meta engineers discussed accessing and reviewing LibGen data but hesitated to get started because “torrenting from a [Meta-owned] corporate laptop doesn’t feel right [smiley emoji],”
(3) “one of those engineers ‘filtered . . . copyright lines‘ and other data out of LibGen to prepare a CMI-stripped version of it to train Llama,”
(4) Mark Zuckerberg allegedly approved Meta’s use of the LibGen dataset notwithstanding concerns within Meta’s AI executive team,
(5) “when asked [at his deposition] about the type of piracy described in the TACC [Third Amended Consolidated Copmlaint], Mr. Zuckerberg testified that such activity would raise ‘lots of red flags’ and ‘seems like a bad thing.’”
In their opening brief, the plaintiffs also allege they uncovered evidence of Meta engaging in the “seeding“—meaning “uploading … pirated files containing Plaintiffs’ works on ‘torrent sites.“
Indeed, that uploading occurred notwithstanding serious legality doubts from the very person who did the downloading. Stein Decl., Ex. 7, Meta_Kadrey_00089791 at 00089856 (Bashlykov: “using torrents would entail ‘seeding’ the files – i.e. sharing the content outside, this could be legally not OK”).
But senior executives such as Meta’s head of Generative AI, Ahmad Ah-Dahle, nonetheless “cleared the path,” Stein Decl., Ex. 8, Meta_Kadrey_00048149 at 00048152, for Meta to use LibGen and other illicit sources, so that’s what Meta did.
This torrenting activity turned Meta itself into a distributor of the very same pirated copyrighted material that it was also downloading for use in its commercially available AI models. Recently produced documents tell the same story. See, e.g., Stein Decl., Ex. 9, Meta_Kadrey_00101679 (produced 11/9/2024) (Meta employees Xiaolan Wang and Bashlykov discussing how to share “torrent files for the downloading jobs,”with Bashlykov stating, “I think I took the torrent jobs from the libgen webpage”).
So, just how damaging to Meta are these bits of evidence, assuming the plaintiffs’ briefs have accurately portrayed them? They do seem damaging on first impression, but just how damaging is unclear.
For the seeding of BitTorrent sharing, we need more information about what was actually shared by Meta–and whether it involved any of the plaintiffs’ works. If it didn’t (though plaintiffs appear to assert it did above), then it doesn’t seem damaging at all. But, if it did, that would be very damaging to Meta.
For the issue of Meta’s alleged knowing use of pirated copies in LibGen, it would be helpful to know what Zuckerberg said specifically on that issue–and why he allegedly approved the use of LibGen. The brief of the plaintiffs provides only a glimpse of what he said.
But, as we expect Judge Chhabria will grant leave for plaintiffs to file their Third Amended Complaint, we shall soon find out a lot more about what Zuckerberg said and approved. Stay tuned.
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UPDATE: This was a disastrous week for Meta and Mark Zuckerberg. We can explain why here.
REPLY BRIEF OF PLAINTIFFS
OPENING BRIEF OF PLAINTIFFS
One response to “Here’s what Mark Zuckerberg said and did that the Boies firm thinks are smoking guns. Just how bad are they for Meta?”
Plaintiff counsel was absolutely giddy when they understood that a torrent might have been used; if they can’t pin anything else on Meta, then at least they have a good chance of pinning distribution of copyrighted materials without permission to go for. That’s why they were hammering on the ‘seeding’ issue.
It’s honestly surprising that any engineer at Meta would be using torrents without a VPN (concerns about it becoming known that a Meta computer was used, but if they had then that would just become ammo instead “they used a VPN to HIDE their crimes!”), and without locking down uploads – but Meta did mention in the hearing yesterday that they believe steps were taken to prevent seeding.