Context: Anthropic, which has received strategic investments from Amazon and Google, is facing a class action brought in the Northern District of California on behalf of book authors (April 19, 2025 ai fray article). Last week, Judge William H. Alsup held a hearing on the motion for class certification, and yesterday, one day sooner than originally planned, on Anthropic’s motion for summary judgment on fair use.
What’s new: Today, Judge Alsup entered an order that invites the parties to settle the case, and sooner rather than later.
Direct impact: Taken together with the concerns he reportedly expressed at yesterday’s hearing with respect to Anthropic’s use of pirated material, this order suggests that the case may very well go to trial in December as planned. That is bad news for Anthropic as it means that the judge believes the case is sufficiently likely to succeed that the deep-pocketed defendant should pay up rather than roll the dice at a jury trial.
Wider ramifications: No single judge can resolve for the entire United States the question of whether the ingestion of pirated material rules out a finding of fair use, and most AI copyright actions are pending in a different circuit (New York is in the Second Circuit while California is in the Ninth). That question will ultimately have to be adjudicated by the Supreme Court. But Judge Alsup, famous for having presided over Oracle v. Google, has never been suspected of being overly sympathetic to copyright holders. This case, Bartz v. Anthropic, could become the first AI copyright lawsuit to settle. At least it is the first one in which the court has publicly urged settlement.
Here’s Judge Alsup’s latest order:
The order does not reference a motion or joint stipulation by the parties, nor is there anything to that effect on the docket or in any of the reports on yesterday’s summary judgment hearing. It appears that Judge Alsup, after reflecting upon the two motion hearings, decided to take this initiative (also called sua sponte).
It is very unusual for a court to authorize settlement negotiations involving a plaintiff class that has yet to be certified. At minimum, it suggests that class certification is (at this stage) fairly likely, and that the case is less likely to be thrown out in its entirety on fair use grounds.
As Bloomberg Law reported yesterday, Judge Alsup expressed a current inclination (as always, subject to change) to see a copyright violation in the basis on which Anthropic originally obtained the material: by downloading a notorious digital library full of pirated material. He leans toward considering the subsequent use of the material to constitute fair use. Should his summary judgment ruling be materially consistent with those views, the case would go to trial in December.
Today’s order mentions that he plans to effectively retire by the end of the year. “Inactive status” means that he could return to the bench, but unlike his current “senior status” (which means a reduced workload at best), it means that he will no longer preside over cases. He may have mentioned that because it creates some uncertainty for both parties as to how certain decisions might be made in his court after the trial scheduled to take place toward the end of the year.
The circumstances of the order are unusual. Anything can still happen. But Anthropic knows that Judge Alsup believes it should make a payment (the amount of which is, of course, the big question) rather than go to trial. In the event of the trial going forward, some of the evidence that has already been discovered and was discussed in open court yesterday could complicate matters for Anthropic. For example, an Anthropic document shows that the copyrighted books were used “for good writing” (i.e., Anthropic considered them key to teach Claude AI a good writing style, which has copyright implications as it involves the expressive elements of the relevant material).
Anthropic partners Amazon and Google have their own strategic interests. They may not want to take their chances of Judge Alsup creating persuasive authority for other litigations with respect to the illegality of feeding pirated material into large language models.
Counsel
The book authors’ lead counsel is Susman Godfrey’s Justin Nelson. He argued class certification last week, but yesterday his partner Rohit Nath filled in because Mr. Nelson had to appear in New York where Judge Sidney Stein insisted on lead counsel in a consolidated multi-district litigation being present at a case management conference.
Anthropic’s lead counsel at yesterday’s hearing was Arnold & Porter’s Joe Farris.