The Kadrey v. Meta AI copyright lawsuit has more twists and turns than Odysseus faced in Homer’s epic.
Act 1 Plaintiffs botch discovery
In the first part of the litigation, the plaintiffs were thrown on the defensive (no oxymoron intended). Judge Chhabria chastised Joseph Saveri, the lawyer who filed the lawsuit, for failing to prosecute the case as the close of fact discovery neared. Judge Chhabria point-blank told him that his firm would not be appointed lead counsel. That led to a quick change in the lead attorney to none other than David Boies and other seasoned lawyers from his firm.
Act 2 Boies firm puts Meta on its heels
Then, in the next part of the case, the Boies attorneys seemed to soon gain the upper hand. Not only did they discover evidence that Meta engaged in “seeding” of files of books in the process of torrenting the controversial Library Genesis dataset and Meta’s removal of copyright management information from some dataset(s), they also convinced Judge Chhabria that Meta may have engaged in criminal copryight infringement to warrant his in-camera review of Meta’s attorney-client privileged communications for possible loss of the privilege due to the atttorneys’ participation in that crime. Judge Chhabria also reprimanded Meta’s attorney for making “preposterous” requests to seal discover-related documents simply because they were damaging to Meta.
To make matters worse, Meta belatedly discovered that their e-discovery contractor, Lighthouse, inadvertently sequestered 18,000 Meta documents. Meta’s outside attorneys apparently worked round the clock to have all 18,000 documents reviewed and then the relevant ones produced to plaintiffs, in short order.
Meta was on the defensive. Things looked ominous for Meta.
Act 3 Meta staves off crime-fraud disaster
But, yesterday, the case took another 180 degree turn.
Judge Chhabria rejected the Plaintiffs’ argument for applying the crime-fraud exception after his in-camera review of the attorney-client privileged communications.
As reported by Aruni Soni of Bloomberg Law, Judge Chhabria ruled:
“I’ll take this opportunity to say that I’ve reviewed all of the documents submitted in camera, and I did not see any evidence of Meta using its lawyers to facilitate a crime. So the crime-fraud issue is over.”
Judge Chhabria
To make matters worse for the Plaintiffs, Judge Chhabria admonished the Boies partner, Maxwell Pritt, for his over-the-top rhetoric he used during the oral argument.
“The rhetoric that you’ve [the Plaintiffs’ attorney] been using in these hearings and in the letters are, on a scale of one to ten, they are an eleven. You need to dial it back to like a three, because you’re you’re going to lose your credibility very quick, to the extent you haven’t already.”
Judge Chhabria
Although Judge Chhabria appeared ready to reject Meta’s motion to dismiss the new DMCA CMI claim, he sounded skeptical that the Plaintiffs would prove that claim and said he can deal with it on summary judgment.
Meta isn’t out of the copyright woods just yet, but it is out of the crime-fraud woodshed.
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