Following the amici brief of Harvard Law Professor Rebecca Tushnet in support of Meta’s fair use defense, EFF filed its own amicus brief in support of the opposition against the Kadrey plaintiffs’ motion for partial summary judgment of infringement based on Meta’s torrenting / seeding of the controversial shadow or pirated books dataset(s). EFF takes the view there should be a trial on this important and novel issue of fair use. The brief also argues “the tail of Meta’s alleged BitTorrent use to wag the dog of the important legal questions this case presents,” and that Meta’s use of torrenting of the controversial books datasets should not weigh against fair use.
It’s unclear how much, if at all, EFF supports Meta’s fair use defense. The EFF brief is carefully worded. Its main point is to oppose the Kadrey plaintiffs’ motion for partial summary judgment. Although some of EFF’s arguments support Meta’s position on fair use (for example, on transformative intermediate use to develop technologies under Factor 1), the EFF brief stresses the question of fair use is an important issue of first impression deserving a trial.
Plus, EFF says in footnote 8: “Amicus expresses no opinion regarding Meta’s summary judgment motion.“
Plus, EFF says at the start: “This case raises an important issue of first impression: whether internal copying necessary to train a generative artificial intelligence system is a non-infringing fair use. Judicial resolution of this issue could determine the future of this powerful new technology, including its capabilities, its costs, and whether its evolution will be shaped by the democratizing forces of the open market or the whims of an oligopoly.”
Perhaps we shouldn’t read too much into the reference to “the whims of an oligopoly.” But it does sound like EFF is at least keeping its options open as to its ultimate position on Meta’s fair use defense. But the “whims of an oligopoly” sounds a bit ominous for Meta.
Expect the Kadrey plaintiffs to have lined up their own amici support now that Judge Chhabria has allowed them generally. Has the Kadrey case opened a Pandora’s box with other district court cases becoming hotbeds for amici activity? We shall see.
The only other case that I can recall amici briefs was Concord Music v. Athropic‘s motion for preliminary injunction, which fizzled out after a huge lag between the decision and when the motion was first filed in the Middle District of Tennessee before the case was transferred.
Section B is OMITTED Ed.
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