Judge Alsup has asked the parties in Bartz v. Anthropic to address 5 hypothetical cases. These questions appear to be testing whether the fair use analysis is affected if the source of the work used by the defendant is a pirated source, in Judge Alsup’s Case 2, the “notorious counterfeiter knowns as Books ‘R” Cheap.
In the various AI cases being litigated, so-called “shadow” libraries have been criticized for including “pirated” copies of books. The Bartz plaintiffs have alleged in their complaint:
- Though Anthropic has been particularly secretive about the sources of its training
corpus for Claude, Anthropic has admitted to using a dataset called The Pile.
- The Pile is an 800 GB+ open-source dataset created for large language model
training. The Pile was hosted and made publicly available online by a nonprofit called EleutherAI. As described by its creators, “The Pile is constructed from 22 diverse high-quality subsets . . . many of which derive from academic and professional sources. . . . [M]odels trained on the Pile improve significantly over both Raw CC and CC-100 on all components of the Pile, while improving performance on downstream evaluations.” - One of The Pile’s architects is an independent developer named Shawn Presser.
Presser created a dataset included in The Pile called “Books3,” which is a trove of pirated books.
Here’s what Judge Alsup instructs the parties to address:
Somewhere in the briefing on summary judgment each side shall please explain the extent to which each of the following cases does or does not violate the copyright laws:
Case 1. An e-book is purchased at full price and read over five days by the purchaser. Each day he reloads the entire e-book.
Case 2. Same as Case 1 but he buys the e-book for one cent from a notorious counterfeiter known as Books ‘R’ Cheap.
Case 3. Same as Case 2 but his purpose throughout is to write a transformative parody of the work (and he does).
Case 4. Same as Case 3 but his purpose further includes to write the parody with co- writers, so he buys one e-book and copies it for all co-writers (they jointly write the parody).
Case 5. Someone buys a copy of the e-book at full price and then gives it to a writer who uses it to write a transformative parody of the work.
Variant. For any case relevant (or for all at once), briefly explain to what extent it makes any difference for the copyright laws whether the work is purchased as an e-book or instead in print and converted by the purchaser immediately into a digital format before the next step.
DOWNLOAD THE ORDER BELOW:
One response to “Judge Alsup ask parties to address 5 hypothetical cases probing whether fair use analysis is affected by pirated book”
What a strange selection of scenarios by Judge Alsup.
Not only do these seem easily addressed without particular reasoning provided real world scenarios, but the lack of specificity means the answer becomes “it depends” for the vast majority of them, and on top of that they seem rather disconnected from the scenario that purportedly played out as alleged.