- After Judge Alsup certified a class action of potentially several million works (precise number will be determined on Sept. 1 in a list submitted by plaintiffs), Anthropic is in a legal fight for its very existence.
- I analyzed various statutory damages scenarios a jury might award against Anthropric. They all are bad, and some, catastrophic. If the jury finds willful infringement (knowing the activity was illegal), many scenarios would surpass the total valuation of the company ($100 billion) — and put the company in an existential bind.
- Even if Anthropic could prevail on the eventual appeal in the 9th Circuit, it might not survive until then because typically an appellant must post bond in the amount of the damages award.
- Understanding the gravity of the situation, Anthropic immediately hired prominent trial attorney Daralyn Durie and a team of 6 other attorneys from Morrison Foerster to defend the company against the Bartz book authors. I expect Durie will now be the lead trial attorney.
- Anthropic didn’t stop there. Anthropic hired prominent trial attorney Louis Tompros and 5 other attorneys from WilmerHale to defend the company in the lawsuit filed by Concord Music. I expect Tompros will now be the lead trial attorney in this case.
- As the trial date of Dec. 1 nears in Bartz, we can expect more attorneys to be added to the defense.
It’s a code red at Anthropic. The company is fighting for its very existence now.
Within 24 hours of Judge Alsup’s certification of a class of potentially several million works, Anthropic hired two new law firms, with teams of 13 new trial attorneys total, including prominent trial attorneys Daralyn Durie of Morrison Foerster and Louis Tompros of WilmerHale in the lawsuits brought by the book authors Bartz and Concord Music publishers, respectively.
anthropic adds new attorneys to defense in bartz case
In Bartz v. Anthropic, which goes to trial in San Francisco on December 1, Anthropic added the following trial attorneys to its legal defense team, most of them partners with trial experience from Morrrison Foerster:
- Daralyn Durie
- Whitney Rose O’Byrne
- Ramsey W. Fisher
- Fitz B. Collings
- Mary Prendergast
- Aditya Vijay Kamdar (associate)
- Jack Lane (associate)
The MoFo lawyers join the team of lawyers from Arnold & Porter, Latham & Watkins, and Cooley already representing Anthropic. My guess would be that Durie will be the lead trial attorney for Anthropic.
Assuming the jury finds infringement (which seems a forgone conclusion as this point given that Judge Alsup has already ruled downloading and library building from shadow libraries was not fair use), Anthropic’s lawyers will try to persuade a jury in San Francisco that it was not willful (or was not done knowing it’s illegal because of a good faith belief in fair use) and that the jury should award statutory damages in the low end of the range of $750 to $30,000 per work. (The list of works will be submitted by Bartz on Sept. 1, before trial, but it’s unclear whether Anthropic can contest the works falling within the class at trial to try to whittle the number of works down. Presumably yes without a joint stipulation pre-trial.)
The best case scenario would be something on the low end in this table:
| Works Infringed | $750/work | $1,000/ work | $10,000/ work | $20,000/ work | $30,000/ work |
| 10,000 | $7.5M | $10M | $100M | $200M | $300M |
| 100,000 | $75M | $100M | $1B | $2B | $3B |
| 250,000 | $187.5M | $250M | $2.5B | $5B | $7.5B |
| 500,000 | $375M | $500M | $5B | $10B | $15B |
| 750,000 | $562.5M | $750M | $7.5B | $15B | $22.5B |
| 1,000,000 | $750M | $1B | $10B | $20B | $30B |
| 1,500,000 | $1.125B | $1.5B | $15B | $30B | $45B |
| 2,000,000 | $1.5B | $2B | $20B | $40B | $60B |
| 3,000,000 | $2.25B | $3B | $30B | $60B | $90B |
| 4,000,000 | $3B | $4B | $40B | $80B | $120B |
| 5,000,000 | $3.75B | $5B | $50B | $100B | $150B |
| 6,000,000 | $4.5B | $6B | $60B | $120B | $180B |
But, if the jury finds willful infringement, then Anthropic could face catastrophic awards:
| Works infringed | $50K/work | $75K/work | $100K/work | $125K/work | $150K/work |
| 10,000 | $500M | $750M | $1B | $1.25B | $1.5B |
| 100,000 | $5B | $7.5B | $10B | $12.5B | $15B |
| 250,000 | $12.5B | $18.75B | $25B | $31.25B | $37.5B |
| 500,000 | $25B | $37.5B | $50B | $62.5B | $75B |
| 750,000 | $37.5B | $56.25B | $75B | $93.75B | $112.5B |
| 1,000,000 | $50B | $75B | $100B | $125B | $150B |
| 1,500,000 | $75B | $112.5B | $150B | $187.5B | $225B |
| 2,000,000 | $100B | $150B | $200B | $250B | $300B |
| 3,000,000 | $150B | $225B | $300B | $375B | $450B |
| 4,000,000 | $200B | $300B | $400B | $500B | $600B |
| 5,000,000 | $250B | $375B | $500B | $625B | $750B |
| 6,000,000 | $300B | $450B | $600B | $750B | $900B |
anthropic adds new attorneys to defense in concord music case
In Concord Music v. Anthropic, Anthropic wasted no time in adding a new law firm led by the prominent trial attorney Louis Tompros to its defense team consisting of lawyers from Latham.
The new attorneys added from WilmerHale are:
- Louis Tompros
- Sonal Mehta
- Ari Holtzblatt
- Joseph Taylor Gooch
- Robin C. Burrell (counsel)
- Allison Bingxue Que (counsel)
I expect Louis Tompros will be the lead trial attorney for Anthropic in this case.
the code red for anthropic
What we just witnessed on Friday is the legal equivalent of a code red. Anthropic understands now, if it didn’t before, that the two copyright lawsuits it faces are not simply about copyright, but also about its very existence.
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One response to “Code Red: Facing potential business-ending liability, Anthropic adds trial attorney Daralyn Durie & 6 attorneys from MoFo to defense team in Bartz. Plus, adds trial attorney Louis Tompros & 5 attorneys from Wilmer to defense v. Concord Music.”
Do you personally think the chances of willful infringement results are higher than non willful? I mean, it is hard to believe even with 2 new teams of lawyers that that did not know it was not willful since so many factors point out they knew it was (e.g. storing pirated copies of works in their database and, of course, training their models on all these pirated copies that still yielded non-transformative results (at least it was proven in the Concord case Claude would reply with identitical copies of lyrics)).