We will soon find out if Judge Chhabria rules that the crime-fraud exception applies to attorney-client communications between Meta and Meta’s counsel regarding the downloading of the controversial LibGen dataset using torrenting.
The David Boies law firm, representing the Kadrey book authors, alleges that they just received additional documents from the tranche of 18,000 documents Meta’s e-discovery vendor “inadvertently sequestered.”
The plaintiffs call these documents “damning.” They point to one document as an example:
A heavily redacted WorkChat [REDACTED]
after Meta’s decision on April 7, 2023 to “pause” its efforts
to license copyrighted works and instead pirate massive quantities of copyrighted works
from LibGen. [REDACTED]
See Ex. H, Meta_Kadrey_00235448. That webpage starts: “You don’t get arrested for using Torrent. Torrent (or BitTorrent, to be more precise), is just a file copy protocol which very efficiently moves files around the Internet. You get arrested for downloading licensed content for which you do not have a license.” https://www.quora.com/What-is-the-probability-of-getting-arrested-for-using-torrents-inthe-USA (emphasis added). Yet Meta did it anyway, and to date has largely resisted discovery into the technical aspects of its torrenting methods, including the BitTorrent protocols it used, configurations it employed, and methods it used to conceal its massive piracy scheme.
The Kadrey plaintiffs assert: “The evidence is now overwhelming that the crime-fraud exception applies here. It is illegal to download a pirated song using a peer-to-peer network (“P2P network”). See A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 927 (N.D. Cal. 2000) (Napster “has contributed to illegal copying on a scale that is without precedent”). It is illegal to download a pirated movie using a P2P network. See Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020, 1025 (9th Cir. 2013) (P2P networks are “ideally suited for sharing large files, a feature that has led to their adoption by,
among others, those wanting access to pirated media, including music, movies, and television shows”). And it is certainly illegal to download tens of millions of pirated books using P2P networks like Meta did.”
“Plaintiffs request in camera review of the eight redacted documents identified in the
attached Appendix A (marked with an asterisk) for the same reasons the parties already briefed.”
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