Magistrate Judge Susan van Keulen issued two major rulings on discovery in the Concord Music v. Anthropic case. On balance, this is a huge victory for Anthropic.
(1) Anthropic CEO Dario Amodei must sit for 2.5 hours of deposition, potentially via Zoom.
(2) But Anthropic gets discovery related to the prompts used on Anthropic’s Claude, both successfully and unsuccessfully, by Concord Music’s investigators for the lawsuit, to generate allegedly infringing outputs of lyrics after the lawsuit was filed:
“In sum, Publishers have placed this topic and investigation at issue and the need for effective cross-examination defines how far the waiver extends. Given the representations that Publishers have now made, the Court GRANTS Anthropic’s request for the production of all (i.e., negative as well as positive) prompts and outputs submitted by investigators and client-witnesses during the post-suit investigation. This includes prompts that were originally drafted by attorneys and then given to investigators or client-witnesses to use in their investigations.”
Anthropic also gets discovery of the total number of prompts used by Concord Music’s investigators from their pre-suit and post-suit investigations, as well as for the 5 million record sample:
Why this ruling is correct
I agree with Magistrate Judge van Keulen’s analysis. As the UK court recognized in the Getty Images v. Stability AI case, the probative value of (1) investigatory evidence of infringement versus (2) evidence of infringement by users in the real world (or “in the wild”) differs. The latter evidence of what users in fact did may have greater probative value than what an investigator did, potentially using extraordinary methods.
In the key passage below, Judge van Keulen pinpoints that the methods used by Concord Music’s investigators to generate infringing outputs (or not) is relevant to the effectiveness of Claude’s guardrails as well as whether the investigatory evidence is probative to the typical or normal use of Clause (Slip op. at p.4):
So, imagine that an investigator was successful in generating allegedly infringing lyrics by only 1% of the prompts versus 100% of the prompts. Judge van Keulen is correct that knowing the denominator of tries is important for evaluating the probative value of the evidence. Anthropic should be allow to impeach the investigator and investigation just as much as Concord Music is allowed to impeach Anthropic employees in their training methods.
Magistrate Judge van Keulen ruling that Dario Amodei must sit for 2.5 hours deposition
DOWNLOAD MAGISTRATE JUDGE VAN KEULEN’S RULING ON CONCORD MUSIC’S PROMPTS