Judge Vince Chhabria did not hold back his displeasure at the plaintiffs’ lawyers for book author Kadrey in the copyright suit against Meta.
In one of the more sternly worded judicial decision you will read, Judge Chhabria said that Kadrey’s lawyers from Boies Schiller could have filed their requested contributory infringement claim related to Meta’s torrenting of works back in November 2024 when they added a direct copyright infringement claim.
But that’s not all. Judge Chhabria took exception to what he called a “pattern” of Kadrey’s lawyers blaming Meta for their own lapses in litigating the case.
Counsel’s lame excuse for failing to add the contributory infringement claim in November 2024 is part of an ongoing pattern. It appears that counsel’s strategy throughout this litigation (and particularly since the Boies Schiller firm came in and took the lead) has been to distract from its own mistakes (and there have been many) by bashing Meta.
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Take, for example, one of the arguments counsel makes in support of the motion to amend. Counsel invokes Meta’s recent assertion of a “fair use” defense to the distribution claim as a reason to add the contributory infringement claim. Counsel asserts that since the plaintiffs added their distribution claim in November 2024, Meta “never once suggested it would assert a fair use defense to the [distribution] claims . . . . Indeed, even in its supplemental brief regarding the remaining case schedule, Meta failed to mention, much less assert, a fair-use defense . . . . Yet, at 10:49 p.m. this past Friday, February 27, Meta served a supplemental interrogatory response on its fair use defense.” Supplemental Letter (Dkt. No. 690) at 1. In truth, Meta disclosed several months ago— to plaintiffs’ counsel and to the Court—that it was considering asserting a fair use defense based on its current understanding of the plaintiffs’ distribution allegations.
The issue of when Meta disclosed that it would assert a fair use defense to the distribution
claim is irrelevant to whether the plaintiffs should be allowed to add a contributory infringement claim. So there was no need for plaintiffs’ counsel to complain about Meta’s handling of this issue, much less to make false statements about it.
But the lawyers for the plaintiffs (again, particularly the lawyers from Boies Schiller) seem unable to help themselves. They seem so intent on bashing Meta that they are unable to exercise proper judgment about how to represent the interests of their clients and the proposed class members.
Yet, nonetheless, Judge Chhabria “reluctantly” granted Kadrey leave to file the 4th Amended Complaint. Why? Because there has been no ruling on the distribution claim or issue related to allegations about Meta’s torrenting of works from shadow libraries. So, absent class members might by unduly prejudiced: “If the above-described series of events occurred, there is a serious concern that the interests of the absent class members would be harmed, through no fault of their own. Having lost on the distribution claim, there is a possibility that they would be precluded from bringing a contributory infringement claim in subsequent litigation.”
Plus, the schedule is already being delayed to accommodate the related case, Entrepreneur Media v. Meta suit. “Meta has requested that the schedule in this case be pushed back so that expert discovery can proceed on the same schedule as in the Entrepreneur Media case. That request is granted. And of course, in the Entrepreneur Media case, there is already a contributory infringement claim. Moreover, this Court has already ruled that discovery in the two cases will be shared. The upshot is that, regardless of whether the plaintiffs are allowed to add the contributory infringement claim here, Meta will be required to litigate the contributory infringement claim, and on the schedule that has already been set. Which means that plaintiffs’ counsel has lucked into a situation where Meta will not be meaningfully prejudiced by the failure to add a contributory infringement claim back in November 2024.”
Judge Chhabria denied plaintiffs’ related motion to open class discovery. “Plaintiffs’ counsel already has enough to focus on. Class discovery will be opened if the named plaintiffs can get past summary judgment on the distribution and contributory infringement claims.”
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