- Kadrey plaintiffs lost their argument on summary judgment that Meta’s use of copies from shadow libraries constituted a separate act of infringement apart from AI training.
- But Kadrey’s still-live distribution claim for Meta’s alleged torrenting of copies that simultaneously allowed distribution to third parties has given them a second chance to raise a claim not tied to Meta’s training.
- In so arguing, Kadrey is angling to become Bartz II.
The Plaintiffs in Kadrey v. Meta are seeking to file a Fourth Amended Complaint. Meta opposes it, not surprisingly.
Kadrey is seeking to become Bartz II, which resulted in the largest copyright settlement in U.S. history at $1.5 billion. In Bartz, although AI training was a highly transformative fair use, building a permanent library of copies from shadow libraries was not. The Bartz plaintiffs succeeded in advancing a theory of infringement based on Anthropic’s use of shadow libraries separate from AI training, which defeated Anthropic’s fair use defense in that acquisition.
The irony is that Kadrey was the first plaintiff to advance, in a summary judgment motion, a separate theory of copyright infringement based on the initial acquisition of copies from shadow libraries aka alleged “piracy.”
In other words, Kadrey beat Bartz to the piracy strategy.
But Kadrey wasn’t as lucky as Bartz so far because Judge Chhabria disagreed with Judge Alsup’s treatment of the initial acquisition of copies from shadow libraries.
In Bartz, Judge Alsup ruled that such initial acquisition was both (1) separate from AI training and (2) not a fair use because Anthropic stored the copies in a general permanent library, which wasn’t solely for training. Later, Judge Alsup indicated that Anthropic could raise the fair use defense again at trial because, as he said in his fair use order, “Nothing is foreclosed as to any other copies flowing from library copies for uses other than for training LLMs.” But, for the purposes of summary judgment, Anthropic’s library-building was not a fair use. That led Anthropic to settle the case because their exposure to statutory damages was enormous — and potentially the same total amount to what they would have been exposed to if Judge Alsup had ruled training was not fair use. The fair use ruling in AI training did not reduce the potential statutory damages in play, one bit.
By contrast, in Kadrey, Judge Chhabria ruled that Meta’s initial acquisition of copies was for the further purpose of training its LLM models. Kadrey, at p. 21-22 (“But all of the downloads the plaintiffs identify had the ultimate purpose of LLM training.”) (Chhabria, J.).
These rulings in Kadrey and Bartz may well be consistent, given the differences in evidence on summary judgment in the respective cases. Meta fell behind the state of the art LLMs, so it was playing catching up to OpenAI and others (potentially Anthropic) when Meta downloaded datasets from shadow libraries. The books datasets were believed by Meta engineers, as indicated by some internal emails, to be crucial to matching the state of the art because books were judged as higher quality data for LLMs. The record amply supports Judge Chhabria’s conclusion that Meta downloaded these datasets for the specific purpose of its trainings its LLMs. Kadrey, at p. 21-22. Indeed, that was Meta’s raison dêtre.
Kadrey wants to become Bartz II in advancing a successful theory that is separate from AI training
Now Kadrey wants to advance a “non-training” theory of infringement. If successful, this theory would be similar to how Bartz prevailed in defeating summary judgment on the “non-training” or separate library-building. Kadrey refers several times to Meta’s “non-training uses” of copyrighted works in a recently filed Joint Statement:
Meanwhile, Meta pushes back on Kadrey’s assertion of “non-training uses” other than the distribution claim related to the torrenting that is still live:
Obviously, an issue related to so-called “non-training uses” by Meta is whether they were fair uses as well, whether as a part of the training purpose or separate. The parties dance around fair use in their Joint Case Management Statement below:
The Kadrey Class Wants a Definition Similar to Bartz
Kadrey has also proposed changing the definition of the class to incorporate a copyright registration requirement, a key limitation of the class in Bartz:
DOWNLOAD THE JOINT CASE MANAGEMENT STATEMENT IN KADREY V. META