By now I imagine most writers have heard about the Anthropic settlement made public last Friday (details). The record-setting $1.5 billion award plus interest is to be equally split among the rightsholders of all books included in the class after lawyers’ fees and expenses are paid.
Before I continue, I must remind everyone (including myself) this is a settlement related only to the piracy of titles by Anthropic. If the settlement goes through, Anthropic is released from the sin of using pirated materials. The training itself, as far as this case, was ruled to be fair use (legal and not infringing). That said, the settlement preserves the ability of rightsholders to pursue claims related to the outputs of Anthropic’s AI models and any future infringing conduct that might arise. This settlement has no bearing on the outcome of other infringement lawsuits against AI companies, such as the Authors Guild and New York Times case. It may be that other judges find that AI model training is not fair use.
The shocking news this week for plaintiffs: The judge in the Anthropic case, Judge Alsup, is highly critical of the initial plan for a $1.5 billion settlement, worrying it will be forced “down the throat of authors.” He has asked for more information about who is in the class and how the claims process will work before granting preliminary approval. Another hearing is set for Sept. 25. (Read the judge’s order.)
Writers have been asking all along: How do I know if I’m in the class? But no official list of class members has been brought forth. The judge has given the plaintiffs until Sept. 15 to provide it, which many in the publishing industry find an unreasonable timeline. If the judge wants to ensure a just outcome, they say, why rush?
Later this fall, authors should be able to check a database to see if they’re part of the class. If the author has granted the publisher an exclusive right to publish their book, both the publisher and author are considered owners under copyright law; both are part of the class. If the book has gone out of print and the rights have reverted to the author, then the author becomes the sole and legal owner.
If authors and publishers disagree about the settlement terms or payment split, what happens? In an exchange on Bluesky, Publishers Lunch said, “The question of splits may or may not be determined by the court. The judge is looking for a notification and resolution process for works with multiple claimants, while also indicating actual disputes would get sent to state courts to resolve.”
Publishers Lunch also indicated an author’s existing contract may guide the amount of the split. This confused me initially, because the Authors Guild has maintained that AI training is not covered under standard publishing agreements or subsidiary rights—which means no pre-determined split. But the damages in this case are for piracy, or standard copyright infringement, not AI training. Most publishing agreements specify splits for recoveries made in infringement cases.
Having worked for a mid-size publisher, I can’t even begin to imagine the administrative nightmare involved for publishers in looking up or confirming the splits in every single contract over thousands of titles. Maybe it’s remarkably consistent information, immediately accessible, and not an issue for some publishers, but wouldn’t it be a relief—wouldn’t it be practical—to set the same split for all titles included in this case?
Moreover, imagine what happens if authors receive vastly different amounts based on their contract and/or publisher. Will they be satisfied they got their fair share? I don’t know if the judge is concerned about that, but he has asked for a revised settlement process by Sept. 22, with another hearing scheduled for Sept. 25. He wants to see processes for notification, allocation, distribution, disputes, and what happens when a work has multiple claimants, especially when claimants disagree about opting in to the case. The judge also worries that the Authors Guild and the Association of American Publishers may strong-arm their communities into accepting this deal.
In a statement I find darkly amusing, Maria A. Pallante, president and CEO of the Association of American Publishers (AAP), said that the court “demonstrated a lack of understanding of how the publishing industry works,” adding that the court “sees a world with collateral litigation between authors and publishers for years to come.” I do think this case and settlement will inevitably upset some author-publisher relationships, and it already has, given that publishers have not been diligent about filing for copyright on behalf of their authors. Even if the judge doesn’t understand publishing, I’d say he definitely understands authors or, better yet, human nature.
The judge also criticized plaintiffs for hiring an “army” of additional outside attorneys, including from the Authors Guild and AAP, for the class settlement. He said attorneys recently enlisted won’t be paid out of the settlement funds. (The initial settlement says lawyer’s fees will not exceed 25 percent of the settlement.)
The Authors Guild released a statement after the hearing, stating, “Throughout [the case], we have acted with complete transparency toward the author community, and we will continue to do so. Our mission is to protect all authors and the profession of writing generally. We are a not-for-profit organization, and we do not stand to receive any money from the settlement for our efforts. We are devoting time and resources to this process solely to ensure that authors are paid fairly and accurately. The only return we expect is to fulfill our mission.”
A reminder of what titles are eligible for this class action: Any books that Anthropic illegally downloaded that had an ISBN or ASIN and that were registered with the United States Copyright Office. Some authors have unfortunately discovered their works were not registered by publishers as they should have been. The US Copyright Act provides statutory (court-set) damages only if the book was registered within three months of publication or within five years of publication before Anthropic’s download dates, which occurred in June 2021 and July 2022.
At least one publisher, Macmillan/Tor, has stated they will pay settlement compensation to their authors where copyright registration was not properly filed. Hopefully other publishers will follow suit. It’s easy to envision collective legal action by authors over this failure, given the significant settlement amounts involved, but I hope publishers do the right thing without being threatened.
Bottom line: Is this settlement a good deal for Anthropic, if it goes through? It depends on whom you ask. Authors tend to say it is not punitive enough and no amount of money will ever be sufficient. Others, especially those who argue AI training is fair use, say authors and publishers have hit the jackpot and that little or no market harm has been done. I expect one of these AI training lawsuits will end up before the Supreme Court at some point.
Will the judge ultimately approve the settlement if his timeline is met? I’m not so sure. According to the Associated Press, during the Sept. 8 hearing, he said, “We’ll see if I can hold my nose and approve it.” If he doesn’t, the trial is scheduled for December.
For further coverage, read about the Sept. 8 hearing at Bloomberg Law. Or read Publishers Weekly’s article, which includes extended statements from the AAP.
- Meanwhile: Authors have filed a class-action lawsuit against Apple for AI model training using pirated books. Learn more.
Jane Friedman has spent her entire career working in the publishing industry, with a focus on business reporting and author education. Established in 2015, her newsletter The Bottom Line provides nuanced market intelligence to thousands of authors and industry professionals; in 2023, she was named Publishing Commentator of the Year by Digital Book World.
Jane’s expertise regularly features in major media outlets such as The New York Times, The Atlantic, NPR, The Today Show, Wired, The Guardian, Fox News, and BBC. Her book, The Business of Being a Writer, Second Edition (The University of Chicago Press), is used as a classroom text by many writing and publishing degree programs. She reaches thousands through speaking engagements and workshops at diverse venues worldwide, including NYU’s Advanced Publishing Institute, Frankfurt Book Fair, and numerous MFA programs.
