Wasting no time, the book author plaintiffs in the two copyright lawsuits with summary judgment motions on fair use pending, Kadrey v. Meta and Bartz v. Anthropic, have now cited the Pre-Publication version of the U.S. Copyright Office’s Report on AI training and fair use as Supplemental Authority. The Kadrey plaintiffs even cite to another case with the assertion of deference to the Copyright Office: See Fox Television Stations, Inc v. Aereokiller, LLC, 851 F.3d 1002, 1013 (9th Cir. 2017) (“it is clear the Copyright Office is entitled to at least Skidmore deference”). The filings are not surprising given how the Pre-Publication Report is favorable to the plaintiffs on most, if not all, of the issues of fair use, including novel questions of law, the Copyright Office gave an opinion on, often in dispositive fashion.
These filings as Supplemental Authority come despite the non-final status of the Pre-Publication version of the Report, which even though a notation indicates no substantive changes are expected, has not been officially published. Adding to the uncertainty, President Trump terminated the Register of Copyrights Shira Perlmutter less than 24 hours after the Pre-Publication version’s release. It is unclear now who has the authority to give the final approval for the Report. It is possible the new Register of Copyrights takes an entirely different view or even rescinds the Report.
Regardless, expect Judge Chhabria and Judge Alsup to read the more than 100-page Pre-Publication version of the Report.
It will be interesting to see if the defendants Meta and Anthropic file any response on the status of the Pre-Publication Version of the Report and its use as Supplemental Authority, or if the judges in the cases ask for supplemental briefing.
UPDATE: Anthropic filed a brief response to state: “Plaintiffs submitted the May 9, 2025
pre-publication version of a report from the United States Copyright Office on Generative AI
Training entitled ‘Copyright and Artificial Intelligence Part 3: Generative AI Training’ and
“particularly direct[ed] the Court’s attention to [pages] 46-52, 62-70, 73-74.” Should the Court opt
to consider the interim report, Anthropic requests that the Court review the entire section on Fair
Use that spans pages 32 to 74—not solely Plaintiffs’ limited excerpts.”
DOWNLOAD PLAINTIFFS’ NOTICES
Related Stories