To help train AI models, Meta and other tech companies have downloaded and shared pirated books via BitTorrent from Anna's Archive and other shadow libraries. In an ongoing lawsuit, Meta now argues that uploading pirated books to strangers via BitTorrent qualifies as fair use. The company also stresses that the data helped establish U.S. global leadership in AI.
In the race to build the most capable LLM models, several tech companies sourced copyrighted content for use as training data, without obtaining permission from content owners.
Meta, the parent company of Facebook and Instagram, was one of the companies to get sued. In 2023, well-known book authors, including Richard Kadrey, Sarah Silverman, and Christopher Golden, filed a class-action lawsuit against the company.
Meta’s Bittersweet Victory
Last summer, Meta scored a key victory in this case, as the court concluded that using pirated books to train its Llama LLM qualified as fair use, based on the arguments presented in this case. This was a bittersweet victory, however, as Meta remained on the hook for downloading and sharing the books via BitTorrent.
By downloading books from shadow libraries such as Anna’s Archive, Meta relied on BitTorrent transfers. In addition to downloading content, these typically upload data to others as well. According to the authors, this means that Meta was engaged in widespread and direct copyright infringement.
In recent months, the lawsuit continued based on this remaining direct copyright infringement claim. While both parties collected additional evidence through the discovery process, it remained unclear what defense Meta would use. Until now.
Seeding Pirated Books is Fair Use
Last week, Meta served a supplemental interrogatory response at the California federal court, which marks a new direction in its defense. For the first time, the company argued that uploading pirated books to other BitTorrent users during the torrent download process also qualifies as fair use.
Meta’s reasoning is straightforward. Anyone who uses BitTorrent to transfer files automatically uploads content to other people, as it is inherent to the protocol. In other words, the uploading wasn’t a choice, it was simply how the technology works.
Meta also argued that the BitTorrent sharing was a necessity to get the valuable (but pirated) data. In the case of Anna’s Archive, Meta said, the datasets were only available in bulk through torrent downloads, making BitTorrent the only practical option.
“Meta used BitTorrent because it was a more efficient and reliable means of obtaining the datasets, and in the case of Anna’s Archive, those datasets were only available in bulk through torrent downloads,” Meta’s attorney writes.
“Accordingly, to the extent Plaintiffs can come forth with evidence that their works or portions thereof were theoretically ‘made available’ to others on the BitTorrent network during the torrent download process, this was part-and-parcel of the download of Plaintiffs’ works in furtherance of Meta’s transformative fair use purpose.”