- Judge Alsup granted Anthropic’s request to file a reply in support of its position in response to the Judge’s order to show cause why they have not waived their attorney-client privilege in raising an innocent infringer defense.
Here’s what the docket states: ORDER APPROVING 290 ANTHROPIC PBC’S REQUEST FOR LEAVE TO FILE REPLY IN SUPPORT OF RESPONSE TO ORDER TO SHOW CAUSE RE AFFIRMATIVE DEFENSES, AS AMENDED. Signed by Judge Alsup. (whalc2, COURT STAFF) (Filed on 8/8/2025) (Entered: 08/08/2025).
This controversy is interesting in that Judge Alsup sua sponte raised it. Part of the controversy stems from Anthropic’s affirmative defense of innocent infringement, which, if successful, would allow Judge Alsup, at his discretion, to allow the jury to consider the low end of statutory damages to start at $250 per work infringed, instead of the general starting point of $750 per work.
Section 504(c) states in part:
In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.
In its initial response, Anthropic has maintained that it didn’t rely on advice of counsel in making the relevant decisions regarding acquisition of unauthorized copies of works used to train its AI model. And it doesn’t plan on arguing any such reliance at trial. Therefore, its attorney-client confidentiality is not waived.
From Anthropic’s initial response: “As to innocent infringement, Anthropic’s witnesses will testify that, based on their general experience, including in their prior employment, they believed that downloading books from the internet was fair because they were not reading or distributing the books and were using them for a different purpose. They will not testify that they relied on advice of counsel.”
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