- Adding to its woes, Anthropic is desperately trying to stave off a waiver of its attorney-client privilege based on its assertion of a defense of innocent infringement (which could, at Judge Alsup’s discretion, reduce the minimum of statutory damages from $750 to $250 per work) and of volitional conduct.
- In an 8-page reply, Anthropic argues that the 9th Circuit case law (minus two conflicting district court decisions “out of step with the overwhelming majority of district court decisions within the Ninth Circuit”) all support its position that is has not waived its attorney-client privilege when it has never asserted that Anthropic’s employees’ belief that using copies of works from shadow libraries to train their models was infringing was based on advice of counsel.
- Moreover, to the extent that Anthropic relied on advice of counsel in deciding to stop engaging in such conduct (and switching to scanning physical books a la Google Books), “stopping training is not the subject of Plaintiffs’ claims or Anthropic’s innocent infringement defense.”
Anthropic filed its reply to support its position that it has not waived its attorney-client privilege for any communications containing advice regarding the legality of downloading copies from shadow libraries. What seems apparent is that Anthropic switched from downloading from shadow libraries to scanning copies of books it purchased (a la Google Books project) based at least in part on advice of counsel. What’s unclear is whether Anthropic employees during 2021 and 2022 even received any legal advice about this issue.
Sua sponte, Judge Alsup raised this issue. And, now, Anthropic is fighting to stave off a waiver of its attorney-client communications related to this issue.
Let’s assume for the sake of argument Anthropic loses this issue. I’m not sure if there’s anything preventing them from simply dropping the innocent infringement defense, which hasn’t even been argued yet. In other words, if the ruling goes against Anthropic based on the assertion of an innocent infringement defense, it seems that Anthropic could just abandon the defense and preserve attorney-client privilege.
Of course, that means they give up the chance of getting a jury instruction allowing a minimum award of $250 per work infringed. But ultimately whether to do so is entrusted to the discretion of the district court judge. And, here, Judge Alsup has been quite stern in criticizing Anthropic’s downloading of pirated books.
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