Anthropic Asks Judge Alsup’s Permission to File Interlocutory Appeal of Fair Use Order

Following a June order of the U.S. District Court for the Northern District of California on fair use in a case brought against generative AI company Anthropic by a group of authors, Anthropic has now requested permission to file an interlocutory appeal.

The underlying lawsuit was filed by journalists and book authors Andrea Bartz, Charles Graeber and Kirk Wallace Johnson in August 2024 against Anthropic on behalf of a class of plaintiffs, alleging widespread copyright infringement of “hundreds of thousands of copyrighted books.” The suit challenged only the inputs of the LLMs, not the outputs.

Anthropic’s core product is the AI ChatBot, Claude, which the complaint claimed was fed “known pirated versions of Plaintiffs’ works” in order to train the Chatbot to generate human-like responses. “An essential component of Anthropic’s business model—and its flagship ‘Claude’ family of large language models (or “LLMs”)—is the largescale theft of copyrighted works,” said the complaint.

Far from compensating the plaintiffs for their works, Anthropic “has taken multiple steps to hide the full extent of its copyright theft,” it continued.

In June, Judge William Alsup issued an order on fair use that ultimately granted summary judgment for Anthropic that its use of the works at issue for training was a fair use and that its scanning of certain works from print-to-digital format was a fair use, but denied summary judgment for Anthropic that certain pirated library copies of the relevant works must be treated as training copies and ordered a trial with respect to the pirated copies to determine damages, including potentially for willfulness.

In its motion filed this week, Anthropic is asking Judge Alsup to certify an order for interlocutory appeal or, alternatively, leave to file a motion for reconsideration of the Order. Anthropic cited a ruling issued just days after Alsup’s order in which Judge Vince Chhabria said  a number of well-known authors failed to successfully argue that the market for their works was significantly harmed by Meta’s use of the works to train its generative AI tool, Llama. In view of this split, said Anthropic in its motion, “[t]his Court should obtain guidance from the Ninth Circuit on the issue now instead of holding a trial that may need to be redone under a different legal framework—or may not be necessary at all.”

Anthropic noted that Judge Chhabria “concluded that Meta’s unauthorized downloading of ‘books from shadow libraries’—including, again, some of the same Internet sources that Anthropic drew from—did not undermine Meta’s fair use defense because ‘the whole point of fair use analysis is to determine whether a given act of copying was unlawful.’” This is in contrast to Alsup’s finding that he “doubts that any accused infringer could ever meet its burden of explaining why downloading source copies from pirate sites that it could have purchased or otherwise accessed lawfully was itself reasonably necessary to any subsequent fair use.”

“It is important that the Ninth Circuit resolve this disagreement now so that the correct legal framework governs pending and future copyright challenges to generative AI technology,” wrote Anthropic.

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