Update: the same day I posted this article Bartz and Anthropic announced that they had settled the case. The terms are as yet unknown, and the settlement will need to be approved by the judge. However, this topic is not moot – it could easily arise in one of the many genAI copyright cases still pending.
The eyes of the artificial intelligence community are laser-focused on the upcoming class action damages trial in Bartz v. Anthropic, scheduled for December 1, 2025. This will be the first GenAI copyright case to go to trial, and commentators have observed that the damages could exceed $1 billion. With dozens of similar cases pending this trial could foretell the future of many of those cases.
In the meantime, as the parties engage in the pre-trial struggle for advantages, a key issue has arisen: did Anthropic impliedly waive attorney-client privilege?
Background
On June 23, 2025 Judge William Alsup ruled that Anthropic’s use of copyright works to train its large language models (LLMs) is fair use. However, he also ruled that its downloading of protected works from so-called “shadow libraries” was not – those downloads were copyright infringement. Three weeks later he issued an order certifying a class of plaintiffs and scheduling a jury trial on statutory damages to begin on December 1, 2025. The class includes all owners of copyright-registered books in LibGen or PiLiMi, a number that could be in the millions. How many of the books downloaded were in-copyright and registered before Anthropic’s infringement commenced is an open question.
However, there will not be millions of trials – there will be one trial and the jury’s decision on statutory damages will apply to all members of the class. If the jury finds that Anthropic’s infringement was “willful” it could award damages as high as $150,000 per work infringed. If the jury finds the infringement was “innocent” damages could be as low as $200 per work. This measure of damages would apply to every member of the class – that is, to the owners of every book that was downloaded and which qualifies as a class member. If there is a dispute over a particular work (such as ownership, registration or whether the copyright has expired), it will be resolved by a Special Master appointedby the judge.
How the Attorney-Client Privilege Issue Arose
Like many defendants in copyright cases, early in the case Anthropic pleaded “innocent infringement” as an affirmative defense, reserving the right to argue that any infringement was in good faith and therefore deserving of minimal damages. On July 24, 2025 Judge Alsup, focused on this defense and issued an order requiring Anthropic to “show cause why its affirmative defense of innocent infringement should not be stricken unless it produces all evidence of advice of counsel.”
This order kicked off an as-yet unresolved battle over Anthropic’s right to argue innocent infringement while preserving attorney-client privilege.
Why It Matters
As noted above, the privilege fight goes directly to the amount of money the jury could award. In copyright cases, juries can award as little as $200 per work for “innocent” infringement or as much as $150,000 per work for “willful” infringement. What tips the scale is the infringer’s state of mind. If Anthropic’s lawyers warned that downloading from shadow libraries was unlawful and the company went ahead anyway, that looks like willful infringement and pushes damages toward the high end. If, on the other hand, counsel advised the practice was likely fair use, Anthropic can argue it acted on legal advice, and argue for damages at the bottom of the range. The plaintiffs want to pierce privilege because they suspect the hidden legal advice undermines Anthropic’s innocence claim; Anthropic is resisting because disclosure could hand plaintiffs exactly what they need to prove willfulness.
The Arguments on Each Side
Anthropic responded to the judge’s show cause order by stating that it has not invoked an “advice of counsel” defense and has no intention of doing so. It relies on Ninth Circuit precedent for the proposition that implied waiver occurs “only when the client tenders an issue touching directly upon the substance of an attorney-client communication.” In Anthropic’s telling, its witnesses will testify based on their industry experience and objective evidence – not on what the lawyers told them. Privilege, the company argues, doesn’t vanish just because lawyers were consulted along the way. Anthropic points to the testimony of its co-founder, Benjamin Mann, who has testified that, based on his prior experience at OpenAI, he believed that downloading from a shadow library (specifically, LibGen) for LLM training was fair use.
The book-author class plaintiffs responded that if Anthropic intends to assert that its infringement was “innocent,” shouldn’t the jury hear what Anthropic’s lawyers told it? The author-plaintiffs argue that Anthropic’s assertion of “innocent infringement” and its denial of willfulness puts its lawyers’ advice squarely in issue.
Plaintiffs note that Anthropic’s witnesses, when asked about the legality of downloading books from shadow libraries, repeatedly invoked privilege. That, plaintiffs say, shows that counsel’s advice played “a significant role in formulating [their] subjective beliefs”. Having chosen to defend its conduct as “innocent,” plaintiffs argue, Anthropic cannot now shield the very communications that shaped its beliefs.
Who Has The Better Argument?
Based on the arguments of both parties and the cases cited, I give the edge to Anthropic. Anthropic says it won’t rely on advice of counsel and will ground “innocent infringement” in industry practice/experience, not lawyer communications. That fits the dominant Ninth Circuit approach that implied waiver requires affirmative reliance on privileged advice, not mere relevance of state of mind. Although Judge Alsup raised the issue, I think it’s likely that he will back off and rule in favor of Anthropic on the implied waiver issue.
However, Anthropic will need to exercise extreme care at trial – the advantage can flip fast if a witness “opens the door” to a privileged communication (for example, testifies that “legal cleared it”) or if plaintiffs develop a clear link between subjective belief and counsel’s advice. If that happens, expect Judge Alsup to either compel production, preclude the “innocent” narrative, or strike the defense altogether on fairness grounds.
What To Watch Next
Judge Alsup now faces the question of whether Anthropic can walk the tightrope – denying willfulness and pressing an innocent infringement defense while keeping its lawyers’ advice behind the curtain of privilege. A hearing on this issue is scheduled for August 28, 2025. If the court rules against Anthropic, it may be forced to choose between disclosing lawyer communications or dropping the innocence defense, in which case the judge is likely to instruct the jury that the floor for damages is $750 per work (the floor for non-innocent or “ordinary” infringement), rather than $200. And, of course, without an innocence defense damages could climb much higher – as high as $150,000 per work infringed.
In the meantime, this case could come to a sudden halt: Anthropic has filed an emergency motion with the Ninth Circuit, asking it to stay the case pending its appeal of Judge Alsup’s class certification order.
Stay tuned.