Anthropic just filed an Amended Answer to the complaint of Daniel Benjamin Gilbert, who opted out of the Bartz class settlement and who is the author of the book Hacking World of Warcraft.
A lot of Anthropic’s Answer is standard fare for all the copyright litigation against AI companies.
But I notice 2 significant differences from the standard fare answers in these cases:
First, Anthropic has raised a counterclaim against Mr. Gilbert for declaratory judgment of non-infringement based on fair use. To my knowledge, no other AI company has asserted such a counterclaim. Nanoble has raised counterclaims against Disney, Universal, and Warner studios for allegedly violating the terms of use and thereby being responsible to Nanoble for indemnity, discussed in the post below. The advantage of Nanoble’s counterclaims are easier to spot. If Nanoble prevails, Disney could end losing money if it prevails in its copyright suit against Nanoble. Yes, you read that right: Disney could lose money if it wins.
Granted, that possibility seems fanciful but the law firm Quinn Emanuel, which represents Nanoble, has succeeded in a somewhat analogous situation involving advancement of legal fees by JP Morgan to pay for the legal fees of criminal defendant Charlie Javice, who allegedly defrauded JP Morgan. (Yes, that, too, sounds hard to fathom.)
Second, Anthropic has raised a First Amendment defense or, in the alternative, the application of the canon of constitutional avoidance in deciding the copyright claims. The only other defendant to raise a First Amendment defense are Elon Musk, Tesla, and Warner Brothers Discovery for the use of a still image:
Here’s what Anthropic’s First Amendment defense states:
What do this counterclaim and defense mean?
At this early stage, it’s unclear how this new counterclaim and defense may play out in the litigation. They might not add much, if anything, to the litigation above and beyond the standard fare being litigated in the more than 125 plus copyright suits. Fair use will be decided no matter if as part of a defense to Gilbert’s claim or as a part of the counterclaim. (Any brief for summary judgment on fair use would not have to make separate arguments for each.) In terms of defenses, it’s routine for defendants to list all possible relevant defenses so they do not waive them. But this new strategy of Anthropic also might offer some strategic benefits to Anthropic as the litigation unfolds. We shall see.
One thing is for sure: we shall see lawyering at the highest level in these lawsuits.
One response to “Anthropic files amended Answer to Gilbert’s copyright complaint. Anthropic adds First Amendment defense & additional allegations for counterclaim of non-infringement based on fair use.”
[…] week after Anthropic raised a First Amendment defense in response to Daniel Benjamin Gilbert’s copyright suit, Perplexity has done the same in the […]