- Judge Alsup denied Anthropic’s request to stay the case, pending its seeking of Rule23(f) interlocutory appeal of his class certification.
- This was no surprise, given the impending December 1 trial date and Judge Alsup’s indication he would rule on the papers. (Anthropic can ask the 9th Circuit for a stay as well.)
- Judge Alsup’s order in denying the stay gave him an opportunity to further support his fair use analysis and treatment of Anthropic’s downloading of pirated books to build a library as a use of copyrighted works separate from the later training of its AI models. The judge obliged.
- Judge Alsup also responded to Anthropic’s reliance on the “death knell” doctrine for class certification: “But if Anthropic loses big it will be because what it did wrong was also big.”
Judge Alsup denied Anthropic’s request to stay the case, pending its seeking of Rule23(f) interlocutory appeal. Anthropic will likely ask the 9th Circuit for a stay as permitted under Rule 23(f). Judge Alsup’s denial of a stay was no surprise. He’s been steadfast in maintaining the December 1 trial date, plus he indicated he would rule on the papers without a hearing.
Anthropic’s motion to stay gave Judge Alsup an opportunity to further justify his fair use decision. He did so. Be careful what you wish for comes partly to mind here. Judge Alsup bolstered his fair use analysis with further analysis in denying a stay, as summarized below with excerpts of the relevant parts of the opinion.
The key part of Judge Alsup’s fair use decision was his treatment of Anthropic’s downloading of pirated books to build a library as a use of copyrighted work separate from the later training of its AI models.(This issue emanates from the Supreme Court’s discussion of fair use in a use-by-use manner in Andy Warhol Foundation v. Goldsmith). Anthropic raised various arguments on why this separate treatment was wrong both as a matter of law and on the facts of the case.
1. Judge Alsup: “Which works in its collection were actually used to train LLMs, which were not, and why were all retained? Anthropic has refused to come clean on this, even now, and for all we know, most were never used (or not solely used) to train LLMs.”
Above, Judge Alsup points to Factor 3 of fair use–the amount and substantiality of the portion used in relation to the copyrighted work as a whole–to support his approach in analyzing what Anthropic did with the pirated copies it downloaded.
2. Judge Alsup even quoted Anthropic’s own attorney’s argument at the summary judgment hearing to support his fair use ruling related to retention of copies (beyond the fair use purpose for which they were intended):
3. Judge Alsup rejects Anthropic’s characterization that he sua sponte came up with the library building framing of the facts:
4. Judge Alsup rejects Anthropic’s argument he has already decided that it committed infringement in library building when certifying the class:
Judge Alsup clarifies above: “And, the district court’s orders have maintained that Anthropic will have every opportunity to perfect its affirmative defense at trial, presenting evidence for the jury to find the underlying facts needed for the judge to decide fair use in its favor (or not) (e.g., Fair Use Order 31–32; CC Order 26, 28).”
Presumably, Judge Alsup means that Anthropic can establish at trial that it didn’t library build or its library building was for “solely” the fair use purpose of training its AI model (notwithstanding the evidence he cites that seems to cut against both).
Moreover, the dicta in his fair use order suggesting that downloading pirated copies is “irredeemably infringing” may make a tough road for Anthropic to justify that initial acquisition of pirated copies without persuading Judge Alsup that the suggestion is wrong (and he should follow the approach of Judge Chhabria in Kadrey v. Meta, for example). I infer from this passage that Judge Alsup will rule on fair use at trial with factual findings made by the jury: “And, the district court’s orders have maintained that Anthropic will have every opportunity to perfect its affirmative defense at trial, presenting evidence for the jury to find the underlying facts needed for the judge to decide fair use in its favor (or not) (e.g., Fair Use Order 31–32; CC Order 26, 28).”
5. Judge Alsup denies that he’s “rushing this case” before his expected retirement:
Judge William Alsup
But if Anthropic loses big it will be because what it did wrong was also big.
6. Judge Alsup rejects the death knell concern. “If Anthropic loses big it will be because what it did was also big.“
Related stories
Download Judge Alsup’s order denying Anthropic motion to stay case