Disastrous. That’s the word that comes to mind to describe the setbacks that Meta faced this week in its defense against the proposed class action brought by the Kadrey book authors.
Judge Chhabria publicly rebuked Meta for its proposed redactions of briefing related to the plaintiffs’ motion for leave to file a Third Amended Complaint, calling them “preposterous.” The Judge also warned Meta against engaging in discovery abuses–even citing his prior, unrelated decision in which the Judge imposed sanctions against Facebook for such abuses. Today, citing Judge Chhabria, Magistrate Judge Hixson also criticized Meta for proposed redactions to an order.
But briefing redactions were the least of Meta’s problem.
Everything came to a head yesterday at the hearing before Judge Chhabria to consider the plaintiffs’ motion for leave to file a Third Amended Complaint. By all indications, Judge Chhabria will grant that request and allow the filing of a Third Amended Consolidated Complaint, which will re-add a claim for alleged violation by Meta of the DMCA Section 1202 for intentional removal of CMI (copyright management information), plus potentially a new claim under the California Comprehensive Computer Data Access and Fraud Act (CDAFA) Section 502.
Why? In short order, the Boies firm has uncovered in discovery what appears to be potentially damaging testimony from Mark Zuckerberg and other Meta executives or employees, as well as damaging documents.
Of course, as Judge Chhabria noted at the hearing, these references are made without the full context, so one shouldn’t accept them wholesale. But, as we summarized in a prior post, the testimony and documents the Boies firm obtained at least suggests the following, as the plaintiffs allege:
Did meta engage in “seeding” of Copyrighted works via torrents?
In their opening brief, the plaintiffs allege they uncovered evidence of Meta engaging in the “seeding“—meaning “uploading … pirated files containing Plaintiffs’ works on ‘torrent sites.“
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 in the quote), then it doesn’t seem damaging at all. But, if it did, that would be very damaging to Meta. Indeed, it could be disastrous to their defense, at least for any plaintiffs’ works that were shared through Meta’s seeding of torrents. At yesterday’s hearing, the word “seeding” was mentioned numerous times by both sides’ lawyers. Rest assured, seeding will be a big issue in this lawsuit.
did meta knowingly use pirated copies of books in libgen dataset, with mark zuckerberg’s approval?
But, even putting aside the seeding side of the case, the plaintiffs allege they have evidence that Meta knowingly used pirated copies of books in the LibGen dataset, attempted to strip the copyright information from some of the copies, recognized that using the LibGen could be legally problematic, and nonetheless Mark Zuckerberg allegedly approved the use of LibGen to train at least some version of their AI model Llama. Plus, to make matters worse, “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.’”
This turn of events is stunning.
From a case whose original plaintiffs’ attorneys were publicly rebuked by Judge Chhabria for failure to prosecute their case during discovery, the entire complexion of the litigation has changed. Now, under the new lead counsel of David Boies and other seasoned lawyers from his law firm, the plaintiffs are aggressively pursuing their claims in the lawsuit.
Indeed, at the hearing yesterday, one of the plaintiffs’ lawyer, Maxwell Pritt, described the case as one involving “staggering computer crimes” involving “tens of millions of copyrighted literary works” orchestrated by “one of the world’s largest companies.”
The histrionics were shut down by Judge Chhabria, who reminded the lawyer that there was no jury at the hearing. But, if the case goes to trial, a jury will be there. And, before a jury, one can easily imagine such histrionics resonating against Big Tech.