Judge Alsup has asked the parties to let him know by 5 pm today whether Anthropic has given up the potential defense of reliance an advice of counsel.
Great question. Presumably, this advice of counsel defense would relate to Anthropic’s conduct in downloading copies of pirated books from shadow libraries online — and help to explain Anthropic employees’ reasonable belief such conduct could be justified under the law.
Here the law intersects with fair use. Something similar arose in Kadrey v. Meta, in which Judge Chhabria considered attorney-client communications between Meta attorneys and Meta executives on the legality of using shadow libraries. Luckily for Meta, after an in-camera review of those comunications, Judge Chhabria ruled that Meta lawyers were not engaged in crime or fraud as the plaintiffs had alleged.
Given this issue in Kadrey v. Meta, where it was quite clear due to the briefing that Meta lawyers got involved in advising the company, including Mark Zuckerberg, I have wondered what kind of legal advice Anthropic received before or during the downloading of copies from shadow libraries.
We will have to wait until 5 pm if Anthropic contends that the advice of counsel defense has not been waived.