Careers

Diversity

With 17 offices, from New York to Los Angeles and Seattle to Orlando, we live and work in communities all over the U.S., collaborating across locations, disciplines and even borders. Our experienced, highly ranked lawyers serve businesses wherever they are and wherever they want to go.

Offices

About Us

Pages

Professionals

Thought leadership: blogs, podcasts, videos, publications, events and news

Insights

Services

Pro Bono

Through the ADventures in Law Blog, BakerHostetler’s Advertising, Marketing and Digital Media team provides updates and analysis on issues and trends in the advertising and marketing industry.

Please visit our <a href="https://www.adventures-in-law.com/" target="_blank" rel="noopener">ADventures in Law Blog</a> site for more and to subscribe!

ADventures in Law

The Antitrust Advocate blog provides insights and commentary surrounding complex antitrust litigation and trade regulation. It’s presented by members of BakerHostetler’s Antitrust and Competition Team.

Please visit our <a href="https://www.antitrustadvocate.com/">Antitrust Advocate</a> blog site for more and to subscribe!

Antitrust Advocate

BakerHostetler’s Blockchain Monitor is a weekly blog curated and written by members of our Web3 and Digital Assets team. Published every Monday, the blog is dedicated to providing our clients, friends and industry contacts with a concise weekly update of key developments in the fast-paced blockchain industry. By subscribing below you will receive the blog in your email inbox every Monday afternoon.

Please visit our <a href="https://www.theblockchainmonitor.com/">Blockchain Monitor</a> blog site for more and to subscribe!

Blockchain Monitor

BakerHostetler successfully defends class actions around the country. Our team consists of seasoned class action litigators who have represented clients in state and federal courts and in multidistrict litigation in areas such as consumer fraud, securities, antitrust, ERISA, RICO, insurance and data breach.

Please visit our <a href="https://www.classactionlawsuitdefense.com/">Class Action Lawsuit Defense</a> blog site for more and to subscribe!

Class Action Lawsuit Defense

Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation.

Please visit our <a href="https://www.bakerdatacounsel.com/">Data Counsel</a> blog site for more and to subscribe!

Data Counsel

The Discovery Advocate blog is presented by members of BakerHostetler’s E-Discovery Advocacy and Management Team (EDAM).  Today’s modern discovery practice requires a practical approach backed by specialized expertise; Discovery Advocate examines the developments and trends that impact today’s litigants in the trenches of litigation and beyond.

Please visit our <a href="https://www.discoveryadvocate.com/">Discovery Advocate</a> blog site for more and to subscribe!

Discovery Advocate

BakerHostetler represents employers in a wide array of class action disputes. This blog is written by members of its Labor and Employment Group.

Please visit our <a href="https://www.employmentclassactionreport.com/">Employment Class Action</a> blog site for more and to subscribe!

Employment Class Action Blog

The Employment Law Spotlight blog is written by attorneys of our national Labor and Employment Group, with an eye toward helping employers avoid litigation.

Please visit our <a href="https://www.employmentlawspotlight.com/">Employment Law Spotlight</a> blog site for more and to subscribe!

Employment Law Spotlight

BakerHostetler is at the forefront of national law firms providing clients involved in every facet of healthcare delivery across the country with comprehensive legal counsel of remarkable responsiveness, creativity, quality and value.

Please visit our <a href="https://www.healthlawupdate.com/">Health Law Update</a> blog site for more and to subscribe!

Health Law Update

In today’s global economy, patents, trademarks, copyrights, trade secrets, domain names and other intellectual property (IP) are among the most valuable assets of market leaders and rising businesses.

Please visit our <a href="https://www.ipintelligencereport.com/">IP Intelligence Report</a> blog site for more and to subscribe!

IP Intelligence Report

Updates from Capitol Hill.

Please visit our <a href="https://www.ohioclock.com/">Ohio Clock</a> blog site for more and to subscribe!

Ohio Clock

Covering energy and environmental law, Pillar and Post will be your “catalog of record” for legal issues as law and policy careen back and forth under the influence of new ideas and enthusiasms.

Please visit our <a href="https://www.bakerenergylaw.com/">Pillar and Post</a> blog site for more and to subscribe!

Pillar and Post

The Bargaining Table blog is written by attorneys of BakerHostetler’s Labor Relations team, with an eye toward helping employers manage their unionized workforces.

Please visit our <a href="https://www.thebargainingtableblog.com/">Bargaining Table</a> blog site for more and to subscribe!

The Bargaining Table

Am Law 100 firm with practices in Business, Digital Assets and Data Management, Intellectual Property, Labor & Employment, Litigation and Tax.

Home | BakerHostetler

2024 BHIPP - BakerHostetler IP Perspective

2024 DSIR Report Deeper Dive

32nd Annual Legislative Seminar Series

33rd Annual Legislative Seminar Series

AD Nauseam

AD-ttorneys@law

The use of noncompetes is now shifting across the country. Many states are limiting the use of noncompetes. Several states have enacted or are considering prohibitions on noncompetes. Nationally, the Federal Trade Commission is engaging in a rulemaking that could ban noncompete agreements between employers and employees. What does all of this mean for your business? Are there alternatives to noncompetes that can protect your business?

To help bring all this into focus, we’ve created a three-part series called “Alternatives to Noncompetes.”

Alternatives to Noncompetes

BakerHostetler Blockchain University

BakerHosts

Celebrating Black Voices at BakerHostetler

Since the recent Dobbs decision, which overturned Roe v. Wade, companies have been impacted nationwide and have several new legal angles to consider as it relates to their employees and their businesses. With that in mind, we’ve created a new podcast series, Dobbs on Demand, designed to help you navigate this new and evolving landscape.

Dobbs on Demand

DSIR Report Deeper Dive - 2022

DSIR Report Deeper Dive - 2023

Estate and Tax Planning for Globally Mobile Clients

MDLephant: What's Big in MDL Litigation?

Promoting the Progress of Science

Rev Up!

Technology from the Top: AI, Data and the Future of Business with Today’s CIOs

The Cloakroom podcast series brings you inside Capitol Hill with insightful interviews and discussions with leading lawmakers, both Republicans and Democrats from the House and Senate. Hosted by former Congressman Peter Roskam, who leads BakerHostetler’s Federal Policy team, you’ll hear firsthand about the latest policy debates on taxes, healthcare, energy, financial services and more.
Subscribe to The Cloakroom
<a href="https://podcasts.apple.com/us/podcast/the-cloakroom-with-peter-roskam-bakerhosts/id1759425935" target="_blank" rel="noopener">Apple Podcast</a> | <a href="https://www.amazon.com/music/player/podcasts/bdb139af-518d-469a-998b-ea9b49fafd93/the-cloakroom-with-peter-roskam---bakerhosts" target="_blank" rel="noopener">Amazon Music</a> | <a href="https://open.spotify.com/show/7LfpZdBC0OA2jyVjgVXNFF?si=de8f473382704494" target="_blank" rel="noopener">Spotify</a>

The Cloakroom with Peter Roskam

The Data Economy and You

The Emerging New Era for Noncompetes and Trade Secrets

The Now and Next in International Trade

The State Tax Show

Case Tracker: Artificial Intelligence, Copyrights and Class Actions

core/button

core/buttons

core/heading

Several large music publishers sued Anthropic for direct and secondary copyright infringement and DMCA § 1202(b) violations, alleging that Anthropic improperly (1) created and used unauthorized copies of copyrighted lyrics to train Claude, its generative AI product; and (2) copied, distributed, and publicly displayed those lyrics through Claude’s outputs without their copyright management information (CMI).

core/paragraph

Plaintiffs also filed a motion for a preliminary injunction that would require Anthropic to implement effective guardrails in its Claude AI models to prevent outputs that infringe plaintiffs’ copyrighted lyrics and preclude Anthropic from creating or using unauthorized copies of those lyrics to train future AI models.

The parties are briefing plaintiffs’ preliminary injunction motion [179] and Anthropic’s motion to dismiss [205].

The hearing on both motions is currently set for October 10, 2024.

Case Background

Caption: Concord Music Group, Inc. v. Anthropic PBC, No. 5:24-cv-03811&nbsp;

Court: U.S. District Court for the Northern District of California

Judge Eumi K. Lee and Magistrate Judge Susan van Keulen&nbsp;

Parties: Plaintiffs – Concord Music Group, Inc.; Universal Music Publishing Group (including Capitol CMG, Inc., Universal Music Corp., Songs of Universal, Inc., Universal Music-MGB NA LLC, Polygram Publishing, Inc., Universal Music-Z Tunes LLC); and ABKCO Music, Inc., represented by Riley &amp; Jacobson, PLC, Oppenheim + Zebrak LLP, and Cowan, Liebowitz, &amp; Latman, P.C.&nbsp;

Defendant – Anthropic PBC, represented by Neal &amp; Harwell, PLC and Latham &amp; Watkins, LLP&nbsp;

contentpilot/accordion

Status Updates

Sept. 12, 2024 – Plaintiffs filed reply ISO motion for preliminary injunction

Plaintiffs filed a reply in support of their motion for preliminary injunction [179], stating that Anthropic’s opposition is strictly an attempt to “prolong its theft of [plaintiffs’] lyrics and delay answering for its infringing behavior.” Plaintiffs argued that Anthropic advances a series of false narratives in its complaint; Plaintiffs argued that, (1) Anthropic wrongly contends that plaintiffs “delayed” in seeking relief; (2) Anthropic baselessly claims its new “guardrails”—adopted as a litigation strategy after this suit was filed—moot plaintiffs’ motion and cure their injuries, rendering an injunction unnecessary; (3) Anthropic tries to diminish its mass theft of plaintiffs’ lyrics by claiming that its “[t]ypical” users do not seek lyrics from its AI models and that infringing outputs are a “‘bug,’ not a ‘feature;’” and (4) Anthropic misstates the preliminary injunction&nbsp;sought by plaintiffs and exaggerates the burden of compliance. &nbsp;

Plaintiffs argued that Anthropic’s new guardrails, although they may prevent certain infringing output, are hardly the perfect solution because they do not prevent all output copying plaintiffs’ lyrics nor do they stop Anthropic’s reproduction of lyrics to train its models.  

Plaintiffs reiterated that their request is for a narrow injunction, which only requires that Anthropic (1) maintain its already-implemented guardrails, and (2) refrain from copying plaintiffs’ lyrics to train future AI models. Plaintiffs characterize their motion for preliminary injunction as a means of preserving the status quo and limiting further Plaintiffs reiterated that their request is for a narrow injunction, which only requires that Anthropic (1) maintain its already-implemented guardrails, and (2) refrain from copying plaintiffs’ lyrics to train future AI models. Plaintiffs characterize their motion for preliminary injunction as a means of preserving the status quo and limiting further

Sept. 5, 2024 – Plaintiffs filed opposition to motion to dismiss

Plaintiffs filed a reply in opposition to Anthropic’s motion to dismiss, claiming the motion is “rife with misdirection.” Plaintiffs acknowledge Anthropic’s failure to challenge the sufficiency of plaintiffs’ direct copyright infringement claims as a confirmation that the facts of Anthropic’s underlying infringement are largely undisputed. Plaintiffs argue that Anthropic’s arguments for dismissal of plaintiffs’ claims of contributory copyright infringement, vicarious copyright infringement, and removal or alteration of copyright management information fail because there is overwhelming evidence of infringing and harmful output generated by Anthropic’s AI models in response to user prompts. 

Aug. 27, 2024 – Plaintiffs filed administrative motion to relate

Plaintiffs request that the Court relate the current action with Bartz et al. v. Anthropic PBC, 24- cv-05417-WHA (N.D. Cal.).

Aug. 22, 2024 – Anthropic opposed plaintiffs’ preliminary injunction motion

Anthropic filed an opposition to plaintiffs’ “dilatory” and “overreach[ing]” preliminary injunction motion [179], emphasizing the effectiveness of its current safeguards in preventing the regurgitation of copyrighted works from its training data and the lack of irreparable harm suffered by plaintiffs.&nbsp;&nbsp;

With respect to irreparable harm, Anthropic argued that plaintiffs’ delay in pursuing a preliminary injunction, caused in part by filing the lawsuit in an inappropriate forum, belied their claims that they suffered irreparable harm. Further, it explained there was no “reasonable expectation” that the harm plaintiffs alleged was likely to recur, as “nothing in the record shows that Claude’s outputs are currently infringing or are likely to infringe [p]laintiffs’ song lyrics going forward.” Anthropic also asserted that plaintiffs had “effectively concede[d] the efficacy” of its guardrails designed to prevent display of the copyrighted lyrics at issue and pointed to a lack of evidence that any user had ever prompted Claude to generate outputs in a manner similar to plaintiffs.&nbsp;

Anthropic also contended that plaintiffs’ alleged harms were speculative and/or could be remedied by monetary relief. It challenged the alleged harm to the value of and licensing market for plaintiffs’ lyrics, pointing to the lack of evidence that license fees for plaintiffs’ lyrics had decreased since Claude was introduced or that Claude was likely to cause such a decrease in the future. Further, Anthropic argued that any such harm could be remedied by monetary damages, relying on plaintiffs’ admission that “there is a well-established market” for licensing their lyrics.&nbsp;

Anthropic also argued that plaintiffs could not demonstrate a likelihood of success on the merits of either their training-based or output-based infringement claims. On the training-based claim, Anthropic argued that its inclusion of plaintiffs’ lyrics within Claude’s training datasets and any intermediate copying constituted fair use. It explained that its use was transformative under the first factor because “[t]he lyrics are literally transformed, in that they are broken down into small tokens used to derive statistical weights,” and its use “was for an entirely new end: creating a dataset to teach a neural network how human language works so that it can generate ... language-based responses to human queries.”&nbsp;&nbsp;

Anthropic argued the second and third factors together likewise weighed in favor of fair use, emphasizing that Anthropic’s use did not “appropriate the song’s creative elements” and any verbatim reproductions were justifiable in light of its transformative purpose of training a LLM, for which massive amounts of textual training data was required. Under the fourth factor, Anthropic argued that its use of plaintiffs’ lyrics as training data had no “substantially adverse impact” on a “legitimate market” for those lyrics, disputing plaintiffs’ claim that there was a “rapidly growing market” for lyrics as AI training data.&nbsp;

On the output-based infringement claim, Anthropic argued that plaintiffs were unlikely to establish that Anthropic, as opposed to plaintiffs, engaged in the requisite volitional conduct. It explained that “[c]opies generated by [p]laintiffs and their agents, and distributed or displayed only to them, do not violate the Copyright Act at all,” and argued that no other user had ever prompted Claude to generate outputs substantially similar to their copyrighted lyrics.&nbsp;

Finally, Anthropic argued that the balance of equities and public interest weighed against the requested injunction, which would “dramatically disrupt[ ]” Anthropic’s “product development and competitive standing” and “subvert the public interest” by hampering the public’s access to Claude.&nbsp;

August 15, 2024 – Anthropic moved to dismiss plaintiffs’ secondary liability and DMCA claims

Anthropic filed a motion to dismiss plaintiffs’ contributory infringement, vicarious infringement, and DMCA claims under Rule 12(b)(6). Regarding the contributory and vicarious infringement claims, Anthropic argued that plaintiffs “fail to allege even one predicate act of infringement by a third party” using Claude, explaining that “the only specific examples provided in the Complaint reflect [p]laintiffs’ attempts to generate alleged copies of their own lyrics.”

Additionally, Anthropic contended that plaintiffs’ contributory infringement claim was also insufficient in that it failed to allege Anthropic had “actual knowledge that specific infringing material is available” using Claude. It explained that plaintiffs relied on a conclusory allegation rather than identifying specific infringing lyrics which Anthropic knew were available through Claude or specific instances of third-party users prompting Claude to generate infringing lyrics. Anthropic also noted the absence of any claim that it was willfully blind to any such infringement.

And with respect to the vicarious infringement claim, Anthropic argued that plaintiffs failed to sufficiently allege that it had a direct financial interest in any infringement by Claude users. It explained that “the mere fact that Anthropic offers its service for a fee and earns revenue from the use of the service does not suffice as a direct financial benefit for purposes of establishing vicarious infringement” in the absence of allegations that “users paid to access the service in order to” infringe. Anthropic also pointed out that plaintiffs “pleaded no facts to plausibly support their allegation that their lyrics, in particular, drew users to Claude,” and that such allegation was “implausible” in light of their lyrics being made available for free on numerous websites. And Anthropic challenged plaintiffs’ claim that Anthropic “saved a substantial amount of money by failing to properly pay licensing fees” to plaintiffs because, even if a license was required, that claim sounds in direct infringement by Anthropic.

Finally, Anthropic contended that plaintiffs’ allegations in support of its § 1202(b) claims failed to satisfy the DMCA’s double-scienter requirement. Regarding plaintiffs’ claim that Anthropic violated § 1202(b)(1) by intentionally removing CMI when training Claude, Anthropic explained that plaintiffs’ purported examples of infringing outputs “actually undercut” this theory because such outputs would be impossible if Anthropic intentionally removed all references to CMI before using plaintiffs’ lyrics to train Claude. Further, Anthropic argued that plaintiffs had failed to plausibly establish its knowledge that removal of CMI from Claude’s training data would facilitate or conceal infringement because Anthropic never made such training data available to the public.

Anthropic also challenged plaintiffs’ § 1202(b) claim based on Claude’s outputs, arguing they failed to plausibly allege that the omission of CMI in Claude’s outputs “was anything other than an unintended byproduct of an automatic process” or that Anthropic had knowledge that such omission would facilitate or conceal infringement.

August 1, 2024 – Plaintiffs moved for a preliminary injunction against Anthropic

Plaintiffs filed a motion for a preliminary injunction against Anthropic, asking the court to order Anthropic to (1) maintain its already-implemented guardrails to prevent Claude from generating outputs containing plaintiffs’ lyrics and (2) refrain from using unauthorized copies of those lyrics to train future AI models. Plaintiffs argued that “[i]f the Court waits until this litigation ends to curtail Anthropic’s unauthorized exploitation of [their] copyrighted works, the damage will be done,” explaining that “Anthropic has already usurped [plaintiffs’] control over the use of their works, denied them credit, and jeopardized their reputations.”

Under the likelihood of success on the merits factor, plaintiffs argued that “Anthropic unlawfully reproduces [their lyrics] when it creates copies … during the training process, including in creating datasets, cleaning the text, and tokenizing the text,” and “unlawfully reproduces, distributes, displays, and creates derivatives of [their lyrics] when Claude generates responses that are substantially similar to [those lyrics].” As for substantial similarity, plaintiffs argued their examples established striking similarity by showing that “Claude generated identical or near-identical copies of [their lyrics], reproducing their expressive elements in full and sometimes explicitly identifying the [song] by name.” Further, they contended these strikingly similar outputs showed that Anthropic “copied and stored those lyrics” during the training process. And regarding volitional conduct, they explained that Anthropic chose their lyrics to train its AI models and fine-tuned those models to respond to prompts requesting such lyrics, and that Anthropic’s guardrails show that it “decides whether and how to limit Claude’s output.”

Plaintiffs also disputed that Anthropic’s exploitation of their lyrics was fair use. Plaintiffs argued the first factor weighed against fair use because Anthropic’s use of their lyrics was commercial and non-transformative under the Supreme Court’s opinion in Andy Warhol Foundation v. Goldsmith, as Anthropic’s purpose in using their lyrics to train its AI models was “highly similar” to plaintiffs’ purpose in licensing those lyrics—“to provide the lyrics online, on demand.” Further, they emphasized that Claude “appears trained to compete with licensed lyric sources—and, to the extent it is successful, supplant them.” They also argued that their lyrics were “unquestionably expressive texts” that were copied by Anthropic in full and that such wholesale copying was unnecessary to achieve its purpose, such that the second and third factors should also weigh against fair use. And under the fourth factor, plaintiffs contended that Anthropic’s unauthorized use of their lyrics “evades direct payment of licensing fees” to them, “erodes their value and reduces [plaintiffs’] revenue from licenses,” and risks “shrink[ing] the lyrics licensing market,” including for use as AI training data.

Regarding irreparable harm, plaintiffs argued that Anthropic’s alleged infringement harms both plaintiffs and their songwriters “in immeasurable ways,” including by denying them credit and control over their works, combining their lyrics in unauthorized mashups with other lyrics, undercutting the licensing market for their lyrics, diminishing their livelihoods, and damaging their reputations.

Plaintiffs also argued that the balance of equities favored them because the “narrow[ ]” preliminary injunction they sought would not harm Anthropic in any way comparable to the irreparable damage they faced to their “core business, relationships, and critical emerging licensing markets.” They emphasized that Anthropic had no right to continue copying and using their lyrics, as it had never licensed them from plaintiffs in the first place. Finally, plaintiffs argued that a preliminary injunction would serve the public interest by protecting their copyright interests and thereby preserving their economic incentive to continue creating new lyrics.

June 24, 2024 – Court granted Anthropic’s motion to transfer the case to the Northern District of California

The court issued an order granting in part Anthropic’s motion to dismiss [54 &amp; 55] for lack of personal jurisdiction and improper venue or, in the alternative, transfer, and transferred the case to the Northern District of California.

Personal Jurisdiction. The court held that it could not exercise personal jurisdiction over Anthropic because doing so would violate the Due Process Clause. It found that the purposeful availment prong of the Sixth Circuit’s three-part test was not satisfied because plaintiffs had not sufficiently alleged that Anthropic’s copyright infringement was “expressly aimed at the forum state.” Although plaintiffs had alleged that Anthropic (1) conducted business via three remote employees in Tennessee, (2) licensed Claude for use by three Tennessee businesses, (3) reached Tennessee users via its highly interactive website, and (4) infringed plaintiffs’ copyrights in Tennessee, the court found these alleged contacts were insufficient. It emphasized that Anthropic did not purposefully avail itself of Tennessee “merely because users can access Claude in Tennessee and Claude can output content related to Tennessee upon request.”

Venue. Because the court found that it lacked personal jurisdiction over Anthropic, it denied as moot Anthropic’s alternative request to dismiss the case for improper venue.

Transfer. Relying on its power to transfer the case sua sponte under 28 U.S.C. § 1631, the court concluded that the case could have been brought in the Northern District of California, where the exercise of personal jurisdiction and venue was proper because Anthropic’s principal place of business was in San Francisco. Further, the court found that transfer was in the interest of justice in light of the “time-sensitive nature” of plaintiffs’ motion for preliminary injunction and the fact that jurisdiction and venue were not disputed in the Northern District of California.

May 10, 2024 – Parties submitted joint case resolution status report

The parties filed a joint status report on their case resolution discussions. While they are willing to revisit settlement discussions in the future, their current positions are “currently too far apart to have a productive discussion at this time.”&nbsp;

Feb. 14, 2024 – Anthropic filed reply in support of its motion to dismiss

In response to plaintiffs’ opposition [79], Anthropic urged the court to “reject plaintiffs’ forum shopping” and find that the court lacked personal jurisdiction. Anthropic argued that it did not purposefully avail itself of Tennessee by employing three employees who voluntarily chose to work remotely from the state, by making isolated sales to Tennessee businesses “unrelated to the alleged copying,” or through Claude’s “baseline interactivity” with users residing in the state. Further, it emphasized that the “training, development, and maintenance” of Claude did not occur in Tennessee and plaintiffs failed to identify specific allegedly infringing outputs generated by residents in the state.

Feb. 14, 2024 – Plaintiffs filed reply in support of their motion for preliminary injunction

In response to Anthropic’s opposition [67], plaintiffs argued they were likely to succeed on the merits of their copyright infringement claims because Anthropic’s three defenses failed. First, plaintiffs challenged Anthropic’s claim that its new guardrails mooted the motion for a preliminary injunction because “the new guardrails, like those before them, are porous” and “allow all forms of infringing outputs.” And even if they were effective, plaintiffs noted that Anthropic could abandon its new guardrails once their motion was resolved.

Second, plaintiffs disputed Anthropic’s assertion that the plaintiffs themselves were the volitional actors because, while Claude users enter prompts, Anthropic controlled the inclusion of their lyrics in its training data and controlled the output through fine-tuning and guardrails to restrict certain outputs, and Anthropic’s fine-tuned dataset showed that prompts seeking infringing outputs “were the sort [Anthropic] expected from ‘normal’ users.” They relied on a Supreme Court opinion which “discounted the importance of who pushes the button or ‘click[s] on a website [to] activate[ ]’ infringement” in the volitional conduct analysis. Am. Broad. Cos. v. Aereo, Inc., 573 U.S. 431, 443–44 (2014).

Third, plaintiffs argued that Anthropic’s “massive copying” of their lyrics “falls far short” of fair use. Plaintiffs argued the first factor weighed heavily against fair use because Anthropic’s commercial use to “build an AI model that could respond to lyrics requests,” was not “transformative.” Plaintiffs argued that Anthropic’s use to create a competing substitute for accessing lyrics from legitimate sources, “preclud[ed] a finding” of transformativeness.

Plaintiffs argued that the last three fair use factors also weighed against a finding of fair use. Plaintiffs argued their lyrics were creative “and thus far less susceptible to fair use,” and that Anthropic’s wholesale copying was excessive in relation to its alleged purpose of training a neural network on how to understand the human language. And under the fourth factor, plaintiffs argued that Claude “functions precisely like” the lyrics aggregators and search engines to whom plaintiffs license their lyrics, thus causing substantial harm to their licensing market.

Plaintiffs reiterated the irreparable harm they suffered due to the alleged infringement, including a lack of control over their works, harm to their reputation, erosion of their licensing market, and harm to their relationships with songwriters. Finally, plaintiffs argued the balance of equities and public interest favored an injunction, emphasizing that Anthropic had already added new guardrails on its own and that its request for Anthropic to refrain from exploiting their lyrics during model training would only apply to future training.

Jan. 22, 2024 – Plaintiffs filed opposition to Anthropic’s motion to dismiss

Plaintiffs opposed Anthropic’s motion to dismiss (or, in the alternative, transfer) for lack of personal jurisdiction and improper venue, arguing that Anthropic is incorrect in arguing that “it is subject to jurisdiction only in its Silicon Valley backyard,” in light of the “the nationwide scope of its business.”

Plaintiffs argued that Anthropic has established sufficient contacts with Tennessee and that their copyright infringement claims relate to such contacts sufficient to confer the Middle District of Tennessee personal jurisdiction over Anthropic. Plaintiffs argued that Anthropic infringed plaintiffs’ copyrighted lyrics by offering Claude to Tennessee users through its “highly interactive website,” and that “operating such a website more than suffices to establish personal jurisdiction” under controlling law. Moreover, plaintiffs argued that Anthropic has “other deep ties” to Tennessee, including maintaining key employees in the state, entering into long-term contracts to provide Claude Pro to Tennessee businesses, and licensing Claude to individual subscribers who reside in Tennessee.

As for Anthropic’s argument that the lawsuit was filed in an improper venue, plaintiffs responded that venue was proper in the Middle District of Tennessee because Anthropic’s agents reside in the district and Anthropic is subject to personal jurisdiction there. Finally, plaintiffs argued that transfer to the Northern District of California was not required by the forum-selection clause in Anthropic’s terms of service, which “does not encompass” plaintiffs’ copyright claims. Plaintiffs further claimed that transfer would “unfairly shift the burden of distant litigation” to plaintiffs, “needlessly inconvenience” non-party witnesses, deny plaintiffs their reasonable choice of forum, and undermine the local interest in deciding the lawsuit.

Jan. 16, 2024 - Anthropic filed opposition to plaintiffs’ motion for preliminary injunction

Opposing plaintiffs’ motion for a preliminary injunction, Anthropic argued there was no basis for the requested injunction for the reasons stated in its motion to dismiss and because plaintiffs could not show a likelihood of success on the merits of its copyright infringement claims. With respect to plaintiffs’ claim that Claude’s outputs infringed their copyrighted lyrics, Anthropic argued that plaintiffs’ request for an injunction requiring it to implement effective guardrails to prevent Claude from generating infringing outputs was moot because it “has always had [such] guardrails in place,” and past failures of those guardrails were a “bug,” not a “feature,” of Claude. It pointed out that plaintiffs’ use of “attack” prompts inducing Claude to generate their lyrics is the only evidence of Claude generating outputs that infringe copyrighted lyrics.

Moreover, Anthropic argued that it was plaintiffs who had engaged in the requisite volitional conduct for a direct infringement claim by submitting the “attack” prompts that led to Claude generating outputs that included their copyrighted lyrics.

As for plaintiffs’ claim that Claude was improperly trained on their copyrighted lyrics, Anthropic argued that any such infringement was fair use. Under the first factor, Anthropic argued that its use of plaintiffs’ lyrics was transformative because it served a different purpose than plaintiffs’ use of the originals—“creating a dataset to teach a neural network how human language works”—which outweighs the commercial nature of such use. It also explained that the lyrics are “literally transformed” from text into tokens used to derive statistical weights.

Anthropic downplayed the role of the second factor in this context and argued that its wholesale copying was “practically necessary” to train Claude under the third factor. And under the fourth factor, Anthropic argued that its copying had “no substantially adverse impact on a legitimate market” for plaintiffs’ lyrics. It urged the court to find that the “burgeoning market” for lyrics as AI training data does not yet exist and is unlikely to be developed in the future because “[i]f licenses were required to train LLMs on copyrighted content, today’s general-purpose AI tools simply could not exist.”

Finally, Anthropic argued that plaintiffs cannot establish irreparable harm because any lost licensing fees could be remedied by monetary compensation and that plaintiffs’ requested injunction would subvert the public interest by hampering access to Claude.

Nov. 22, 2023 – Anthropic filed motion to dismiss for lack of personal jurisdiction

Anthropic moved to dismiss plaintiffs’ complaint for lack of personal jurisdiction and improper venue, calling the lawsuit “a negotiating tactic” to extract a lucrative licensing agreement “disguised as a federal court complaint.” In the alternative, plaintiffs sought to transfer venue to the Northern District of California.

Anthropic argued that it is neither subject to general nor specific personal jurisdiction in the Middle District of Tennessee. It explained that, as a Delaware corporation with its principal place of business in San Francisco, it is not “at home” in Tennessee, precluding the court’s exercise of general jurisdiction. Moreover, Anthropic argued that it did not have sufficient “minimum contacts” with Tennessee for the court to exercise specific jurisdiction. It explained that its Claude AI models were “created, trained, and developed … in San Francisco,” and while it makes them available nationwide through its website and API, it never targeted Tennessee for any part of its business. Anthropic further argued that none of plaintiffs’ claims arose out of contacts it did have in Tennessee.

Alternatively, Anthropic argued that venue should be transferred to the Northern District of California, relying on a forum selection provision in its terms of service.

Nov. 16, 2023 – Plaintiffs filed motion for a preliminary injunction

Plaintiff music publishers filed a motion for a preliminary injunction that would require Anthropic to implement effective guardrails in its Claude AI models to prevent outputs that infringe plaintiffs’ copyrighted lyrics and preclude Anthropic from creating or using unauthorized copies of those lyrics to train future AI models.

Plaintiffs first argued they are likely to succeed on the merits of their direct infringement claim. Plaintiffs argued that such infringement was not fair use because (1) Anthropic’s use was non-transformative and commercial, (2) the lyrics are creative works “within the core of copyright protection,” (3) Anthropic uses either all or nearly all of the copyrighted lyrics when training its Claude AI models to generate infringing outputs (including “the most recognizable elements”), and (4) Anthropic’s unrestrained use would harm the licensing market by creating a substitute for access to the originals (and derivative works).

On the issue of transformativeness, plaintiffs asserted that the AI outputs use their copyrighted lyrics for the same purpose as plaintiffs do—to provide the lyrics’ original expression on demand. Plaintiffs also argued that using lyrics as training data was similarly non-transformative because such wholesale copying was not justified by a need to comment on, criticize, or provide information about the originals.

Plaintiffs argued that Anthropic’s infringement irreparably harms plaintiffs and their songwriters by denying them control over their copyrighted lyrics, denying them credit in Anthropic’s AI model outputs, and undercutting the licensing markets for those lyrics. Plaintiffs argued that the balance of equities favors an injunction because Anthropic’s infringement threatens irreparable harm to plaintiffs’ core business and relationships with songwriters and licensees, while a limited injunction would not cognizably harm Anthropic because it had no rights to the copyrighted lyrics in the first place. Finally, Plaintiffs argue that a preliminary injunction would serve the public interest by protecting copyright owners’ marketable exclusive rights in their copyrighted works.

Oct. 18, 2023 – Concord Music Group, Inc. and other large music publishers filed complaint

In their complaint, plaintiff music publishers alleged that Anthropic infringed a significant number of copyrighted musical compositions (specifically, protected lyrics) in the development of Claude, Anthropic’s generative AI technology. The complaint alleges four causes of action:

core/list

Select Court Documents

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/01/ECF-1-Complaint-2.pdf" target="_blank" rel="noreferrer noopener">Oct. 18, 2023 – ECF 1 Complaint</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/01/ECF-40-41-Plaintiffs-Motion-for-Preliminary-Injunction-Memorandum-of-Law.pdf" target="_blank" rel="noreferrer noopener">Nov. 16, 2023 – ECF 40 &amp; 41 Plaintiffs’ Motion for Preliminary Injunction &amp; Memorandum of Law</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/01/ECF-54-55-Anthropics-Motion-to-Dismiss-Memorandum-of-Law.pdf" target="_blank" rel="noreferrer noopener">Nov. 22, 2023 – ECF 54 &amp; 55 Anthropic’s Motion to Dismiss &amp; Memorandum of Law</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/01/ECF-67-Anthropics-Opposition-to-Plaintiffs-Motion-for-Preliminary-Injunction.pdf" target="_blank" rel="noreferrer noopener">Jan. 16, 2024 – ECF 67 Anthropic’s Opposition to Plaintiffs’ Motion for Preliminary Injunction</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/02/ECF-79-Plaintiffs-Opposition-to-Anthropics-Motion-to-Dismiss.pdf" target="_blank" rel="noreferrer noopener">Jan. 22, 2024 – ECF 79 Plaintiffs’ Opposition to Anthropic’s Motion to Dismiss</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/02/ECF-92-Plaintiffs-Reply-in-Support-of-Motion-for-Preliminary-Injuction.pdf" target="_blank" rel="noreferrer noopener">Feb. 14, 2024 – ECF 92 Plaintiffs’ Reply ISO Preliminary Injunction Motion [40]</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/02/ECF-89-Anthropics-Reply-in-Support-of-Motion-to-Dismiss.pdf" target="_blank" rel="noreferrer noopener">Feb. 14, 2024 – ECF 89 Anthropic’s Reply ISO Motion to Dismiss [54]</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/06/ECF-122-Joint-Case-Resolution-Status-Report.pdf" target="_blank" rel="noreferrer noopener">May 10, 2024 – ECF 122 Joint Case Resolution Status Report</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/06/ECF-124-125-Order-Transferring-Venue.pdf" target="_blank" rel="noreferrer noopener">June 24, 2024 – ECF 123 &amp; 124 Order Granting Anthropic’s Motion to Transfer</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/08/ECF-179-Plaintiffs-Motion-for-Preliminary-Injunction.pdf" target="_blank" rel="noreferrer noopener">August 1, 2024 – ECF 179 Plaintiffs’ Preliminary Injunction Motion</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/08/ECF-205-Anthropics-Motion-to-Dismiss.pdf" target="_blank" rel="noreferrer noopener">August 15, 2024 – ECF 205 Anthropic’s Motion to Dismiss</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/09/ECF-207-Anthropics-Opposition-to-Plaintiffs-Preliminary-Injunction-Motion.pdf" target="_blank" rel="noreferrer noopener">Aug. 22, 2024 – ECF 207 Anthropic’s Opposition to Plaintiffs’ Preliminary Injunction Motion </a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/09/ECF-215-Motion-to-Relate.pdf" target="_blank" rel="noreferrer noopener">Aug. 27, 2024 – ECF 215 Motion to Relate</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/09/ECF-222-Opposition-to-Motion-to-Dismiss-205.pdf" target="_blank" rel="noreferrer noopener">Sept. 5, 2024 – ECF 222 Opposition to Motion to Dismiss [205]</a>

<a href="https://admin.bakerlaw.com/wp-content/uploads/2024/09/ECF-225-Reply-ISO-Motion-for-Preliminary-Injunction.pdf" target="_blank" rel="noreferrer noopener">Sept. 12, 2024 – ECF 225 Reply ISO Motion for Preliminary Injunction</a>