This is an excerpt from my earlier analysis of Magistrate Judge Wang’s decision holding that OpenAI waived its attorney-client privilege in part because willful infringement has been alleged, thereby putting OpenAI’s state of mind “at issue.”
For all of my analysis, see Related Stories below.
Deletion Is Not Infringement
And, even if OpenAI employees relied on in-house attorneys’ advice in deleting Books 1 and 2 in 2022, such deletion of copies is not copyright infringement, much less willful infringement. Deletion is the antithesis of reproduction. Indeed, destruction is often a remedy sought for infringing reproductions. Cf. 17 U.S.C. s. 503(b) (“As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.”).
For example, in the class settlement in Bartz v. Anthropic, Class Counsel touted as a victory for the class that Anthropic agreed to destroy datasets from shadow libraries: “Class Counsel also secured valuable non-monetary relief. The Settlement requires Anthropic to ‘destroy all the original files of works torrented/downloaded from Library Genesis or Pirate Library Mirror, and any copies that originate from the torrented copies,” subject to certain legal preservation obligations. Dkt. 363-3 ¶2.2. This destruction is an enormous victory for victims of Anthropic’s piracy, given Anthropic’s intent to retain the pirated works “forever.” Dkt. 244 at 3. Another important benefit is Anthropic’s certification that “neither the LibGen or PiLiMi datasets, nor any portions of those datasets, were in the training corpus of any of its commercially released” LLMs. Dkt. 363-3 ¶3.1.” Plaintiffs’ Notice of Motion and Motion for Attorneys’ Fees, Bartz v. Anthropic (filed Dec. 3, 2025), at p. 12.
If anything, the deletion of datasets helps an AI company avoid infringement that may arise from building a permanent library of copies, whether used for training or not. See Bartz v. Anthropic, 787 F. Supp. 3d 1007, 1026 (N.D. Cal. 2025) (holding that “[p]irating copies to build a research library without paying for it, and to retain copies should they prove useful for one thing or another, was its own use — and not a transformative one“) (emphasis added); see also my analysis.
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