- The Dec. 1 trial date looms large in Bartz v. Anthropic.
- The main issue will be how much copyright statutory damages the jury should award to the class of book authors for Anthropic’s unauthorized copying of their books.
- We won’t know the total of works in the class until Sept. 1 when plaintiffs must submit a list.
- If the number of works is high, something in the hundreds of thousands or more than a million, the probability that Anthropic faces business-ending liability increases greatly.
- Running thousands of simulations with the Monte Carlo method on both ChatGPT and Claude give a 95% probability the jury award will be $1 billion or more. Both give a decent probability (9.68% and 14.23%, respectively) of an award of $100 billion or more.
- To put these numbers in perspective, the single largest award of statutory damages was $1 billion against Cox Communications based on a relatively low number of 10,000 or so works — an award that might be overturned if the Supreme Court overturns the contributory infringement decision.
- Anthropic is now asking Judge Alsup to stay the case (including the trial) on two grounds: (1) it will seek interlocutory appeal of the class certification as permitted under Federal Rule of Civil Procedure 23(f) and (2) it has already petitioned Judge Alsup to grant leave to file an interlocutory appeal of his decision regarding the use of the pirated books libraries.
- Anthropic does not need permission from Judge Alsup to file (1) under Rule 23(f). But it would need permission for leave to file (2).
- Upon receiving Anthropic’s motion, Judge Alsup issued a short schedule: Monday, July 28, noon, Plaintiffs must file their response and Wednesday, July 30, noon, Anthropic must file its reply. The Judge said he will rule on the papers, despite Anthropic requesting a motion hearing on Aug. 28.
Anthropic filed a motion to stay the class action lawsuit filed by Bartz book authors. Judge Alsup immediately set a briefing schedule:
- Monday, July 28, noon, Plaintiffs must file their response
- Wednesday, July 30, noon, Anthropic must file its reply
Although Anthropic cannot bank on Judge Alsup granting a stay of the case, with a trial date of Dec. 1, Anthropic will be able to file an interlocutory appeal under Federal Rule Civil Procedure 23(f) of Judge Alsup’s class certification. And, if Judge Alsup denies the motion for a stay, Anthropic can also seek a stay from the Ninth Circuit.
Here’s what Rule 23(f) says: “(f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule, but not from an order under Rule 23(e)(1). A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered or within 45 days after the order is entered if any party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States’ behalf. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.”
Excerpt from Anthropic’s brief
JUDGE ALSUP’S ORDER
DOWNLOAD ANTHROPIC’S MOTION TO STAY