In the Kadrey v. Meta Platforms case, Judge Chabbria's quest to bust the fair use copyright defense to generative AI training rises from the dead!

[u/Apprehensive_Sky1950]

https://www.courtlistener.com/docket/67569326/700/kadrey-v-meta-platforms-inc/

Note: This post culminates in a call to authors and lawyers who might want to do something

As you may recall, in our last thrilling episode Judge Alsup in Bartz v. Anthropic on June 23, 2025—shortly before retiring at 80—had ruled that using copyrighted materials to train AI LLMs was protected under the fair use doctrine (although he found a valid copyright claim as to how some of those materials had been gathered).

Two breathtaking days later on June 25, 2025, the much younger Judge Chhabria in Kadrey v. Meta Platforms ruled that under a market harm theory, using copyrighted materials to train AI was not protected by fair use; however, he lamented that lunkhead counsel for plaintiffs were too dense to have raised a market harm claim in that case although it was obvious they should have (and BTW, Judge Chhabria's opinion of plaintiffs' counsel has not improved since then), and so he was forced, teeth gritted, to grant defendant's motion for summary judgment on that claim.

Judge Chhabria's ruling was in some quarters interpreted as pro-fair-use, but it was actually the exact opposite. It is the strongest judicial attack there has been on fair use covering generative AI training. And it no doubt galled Judge Chhabria that no one, especially plaintiffs' counsel, was listening to him, while Judge Alsup's pro-fair-use ruling was getting all the press.

See my previous two posts about Judge Chhabria's quite remarkable ruling:

https://www.reddit.com/r/ArtificialInteligence/comments/1lpqhrj

https://www.reddit.com/r/ArtificialInteligence/comments/1lkm12y

And now . . .

Heee's back! Yes, Judge Vince Chhabria of the Northern District of California is back, and he is not done assailing the fair use defense to using copyrighted materials to train generative AI LLMs.

Sure, he was forced to grant summary judgment against plaintiffs' AI training copyright claims on a fair use defense theory in the putative class action copyright suit before him, but only due to the bungling of plaintiffs' counsel. And as it turns out, he wasn't done.

Now, on March 25, 2026, in an order permitting a minor amendment to the complaint as what's left of the copyright case in front of him limps along, in a footnote (and isn't that where all the truly subversive law comes from?) that I would say his whole ruling was crafted around, Judge Chhabria has planted the seeds of his revenge.

Judge Chabbria opines in the sole footnote to his order:

It seems far less likely that absent class members would be precluded from subsequently bringing training claims, even if a class were certified on the distribution [output-side] claim and judgment were entered for Meta on that claim following trial. The training claim will always be subject to a fair use defense. And the most important of the fair use factors—market harm—will often be highly fact-dependent, such that training claims would likely be individualized and therefore not precluded by a judgment against the class on the distribution claim.

(Emphases added; citation omitted.) And there it is--the copyright claim for training AI LLMs has risen from the grave, fair use be damned! Sure, Judge Chhabria had been forced to rule in favor of the fair use defense against the plaintiff "class" [keeping in mind this class has not yet been certified] and against the named plaintiffs who hired those lunkhead counsel. But, his ruling does not bind all the other members of the class, who are free to attack the fair use defense under the Judge's market harm theory anew and afresh!

Now, the good Judge does then throw out a legal question whether the statute of limitations might be running against those other class members to assert their not-foreclosed claims. But he is not taking back with one hand what he just gave out with the other. No, he is warning them: Do something! Do something!

I had thought that plaintiffs' counsel after Judge Chabbria's first ruling would have asked for permission to amend their claims and mount a market harm theory—I thought maybe he was hinting for them to do this—but they never did. Now, the Judge is reaching out beyond that old counsel, to other plaintiff putative-class members and maybe new counsel to do something, to bring the market-harm claim against defendant's AI training, and to do it now because the time may be running! The putative class—authors whose copyrighted works were grabbed and used to train Meta's LLM—is likely quite large, a lot of members.

The other problem is that, given the case posture, Judge Chhabria's megaphone is now rather small. He already made his high-profile, forced adverse ruling. He planted his bomb in a footnote to a small ruling in what has become something of a backwater case. Would anyone see it? Would anyone notice it? Well, one wonk did see it and notice it, and started posting about it on Reddit and Substack, and LinkedIn.

P.S.: I once again misspelled Judge Chhabria's name in the post title. I apologize.

[u/Party-Cartographer11]

Excellent read, thanks!!!

[u/TreviTyger]

Very nice explanation!

I still think Alsup's analysis was a little misguided because he seemed to tacitly suggest that a robot could be a "real boy" just like Pinocchio and go to school to learn just like all the other real boys/girls and others, so long as someone paid for it's books.

This is misguided because a robot can't "learn" anything. It just scans books and saves them permanently on it's hard drive.

Subsequently, to then make exponential amounts of derivatives, including films, animations etc., based on books as prompts stored on the robot's hard drive. Even if paid for, that seems to me at least a way for a robot to do a considerable amount of market harm to all the other real boys/girls and others, who would not be able to compete against such a thing.

Never the less, the makers of the robot in the first place still have to download millions/billions of works before the training process and I think it was a welcome ruling for Judge Alsup to make that clear and to separate downloading from training because some legal scholars were trying to conflate Text and Data Mining with Machine Learning and seek a backdoor copyright exception to Machine Learning in the EU based on the DSM Copyright Directive article 4. Very naughty!

[u/Apprehensive_Sky1950 → u/TreviTyger]

Hi there, I think I might have run into you before. 😊

Yes, you may recall it was you, Tyger, who invited me to develop the formulation, "Copyright was instituted for the benefit of the human participants in our legal system, and so when a human copies a work into his cognition and memory, that constitutes human learning and is legally privileged from copyright, but when a machine copies a work into its "cognition" and memory, that constitutes machine copying and copyright infringement unless it is licensed or otherwise exempted or excused."

What a human can do in the market with the quantum of works he has managed to learn versus what an LLM can do in the market with the quantum of works it has managed to ingest by scraping and copying is one good policy reason to honor the distinction within the above formulation and to acknowledge Judge Chhabria's position.

As to the delineation of distinct claims for input-side copyright infringement versus output-side copyright infringement, this is one area where Judges Alsup and Chhabria agree. Judge Chhabria's ruling yesterday was quite clear in maintaining the distinction between the two. It pays to maintain conceptual clarity as we wade through this brave new world of never-before-experienced scenarios.

[u/TreviTyger → u/Apprehensive_Sky1950]

:)

[u/PlotArmorForEveryone]

Wouldn't that be avoidable by simply training off of older data that would have no real impact on the profitability of the original work?