This week’s biggest decision in the AI copyright lawsuits was from Judge Lee in Concord Music v. Anthropic.
Judge Lee denied Concord Music’s motion for leave to file a Second Amended Complaint to add new allegations related to Anthropic’s alleged bittorrenting from shadow libraries (that were revealed in the unrelated case, Bartz v. Anthropic).
Anthropic called Concord Music’s motion an attempt to create a “Bartz II” lawsuit.
Does claim preclusion stop Concord Music from ever filing a claim based on Anthropic’s bittorrenting from shadow libraries?
Now that we know there will be no “Bartz II” lawsuit, the question is whether Concord Music can ever file a Bartz II lawsuit against Anthropic.
Caveat: I wasn’t at the hearing so do not know if Judge Lee qualified her ruling in any way that might bear on this issue. The Judge issued only a minute order “for the reasons stated on the record.”
At least by the reporting of the hearing by Bloomberg Law, it appears what Concord Music sought to add to the complaint can be viewed as a part of the same cause of action, but as a different theory of copyright infringement: “Amendment is inappropriate because the publishers failed to diligently investigate the theory of liability based on Anthropic’s downloading of works, Judge Eumi K. Lee said Wednesday at a hearing in San Jose.” (And the reporting does not indicate that the Judge suggested that Concord Music could bring its bittorrenting claim in a separate lawsuit.)
Of course, after the case is over, Concord Music can appeal Judge Lee’s determination that it lacked reasonable diligence to investigate the bittorrenting theory of liability. But, presumably, the standard of review is quite deferential to the trial judge.
And, if our analysis is correct, Concord Music very likely faces claim preclusion on its bittorrenting theory if this case results in a final judgment.
Claim preclusion “bars all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties … on the same cause of action, if the prior suit concluded in a final judgment on the merits rendered by a court of competent jurisdiction” Ross v. Int’l Bhd. of Elec. Workers, 634 F.2d 453, 457 (9th Cir. 1980).
Given that Concord Music’s First Amended Complaint already includes general allegations about how Anthropic acquired copies used for its training of its models, Concord Music’s “cause of action” appears to encompass the initial acquisition of copies–meaning the same facts related to Anthropic’s bittorenting (or acquisition) from shadow libraries.
And, if claim preclusion forecloses Concord Music from filing a lawsuit on Anthropic’s bittorrenting, Anthropic’s victory this week was colossal.
Part of Concord Music’s First Amended Complaint
