- Sua sponte, Judge Alsup asked if Anthropic had raised or waived a defense based on advice of counsel, or whether the scheduling order addressed when such a defense must be raised.
- The parties submitting their letters. Plaintiffs indicated that Anthropic raised two defenses in its answer, volition and innocent infringement, that may relate to the advice of counsel. In a short paragraph, Anthropic said it had not raised the defense and didn’t think the scheduling order set a date for raising it.
- Judge Alsup then set a deadline of July 31 for Anthropic to raise a defense of advice of counsel, accompanied by documents, pro and con, bearing on the advice and reliance thereon.
- Plus, Judge Alsup issued to Anthropic a SHOW CAUSE to why its affirmative defenses of volition and innocent infringement should not be stricken unless it produces all evidence of advice of counsel.
It looks like Anthropic is stuck again between a rock and a hard place. Parties typically are reluctant to waive attorney-client privilege in any context. But, asserting a defense of reliance on advice of counsel would waive the privilege to the relevant advice.
But Judge Alsup goes even further and instructs Anthropic to show cause why attorney-client communications should not be produced for its affirmative defense of innocent infringement (which, if established, would allow Judge Alsup, in his discretion, to reduce lowest range of statutory damages to as low as $200 per work infringed).
The entire line of inquiry relates to what Anthropic’s attorneys advised regarding the use of pirated copies from shadow libraries. As far as I can tell, Anthropic has maintained the attorney-client privilege and hasn’t revealed anything related to that. But we do know, at some point, Anthropic switched from using the shadow library copies to doing its own scanning of used books like the process for building Google Books (Anthropic even hired a former Google employee who worked on Google Books). We can only speculate but it’s hard to imagine that legal counsel wasn’t involved in that major switch in some way.
I doubt Anthropic will be asserting any defense that waives its attorney-client privilege. It will be most interesting to hear its response to Judge Alsup’s show cause.
