In the race to create the most capable LLM models, many technology companies obtained copyrighted material for use as training data, without obtaining permission from the content owners.
Meta, the parent company of Facebook and Instagram, was one of the companies that filed the lawsuit. In 2023, famous book authors including Richard Cordray, Sarah Silverman, and Christopher Golden filed a class-action lawsuit against the company.
Meta’s bittersweet victory
Last summer, Meta won a significant victory in this case, as the court concluded that pirated books were used to train Based on the arguments presented in this case, its Lama LLM qualifies as fair use. However, it was a bittersweet victory, as Meta remained on the hook for downloading and sharing books via BitTorrent.
By downloading books from shadow libraries such as the Anna Archive, Meta relied on BitTorrent transfers. In addition to downloading content, they typically also upload data to others. According to the authors, this means that Meta was engaged in widespread and direct copyright infringement.
In recent months, litigation based on this remaining direct copyright infringement claim continued. Although both sides collected additional evidence through the discovery process, it remained unclear which defense Meta would use. So far.
Seeding pirated books is fair use
Last week, Meta filed a supplemental interrogatory response in California federal court, marking a new direction in his 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 logic is simple. Anyone who uses BitTorrent to transfer files automatically uploads the content to other people, because it is built into the protocol. In other words, uploading wasn’t a choice, it was just how the technology worked.
Meta also argued that BitTorrent sharing was a necessity to obtain 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’s lawyers write, “Meta used BitTorrent because it was a more efficient and reliable means of obtaining datasets, and in the case of Anna’s Archive, those datasets were only available in bulk through torrent downloads.”
“Accordingly, to the extent that Plaintiffs may come forward with evidence that their works or portions thereof were theoretically made ‘available’ to others on the BitTorrent network during the torrent download process, the download of Plaintiffs’ works was in part in furtherance of Meta’s transformative fair use purpose.”
In other words, obtaining the millions of books required to attend its LLM’s fair use training requires direct downloading, which ultimately serves the same fair use purpose.
Authors and meta disagree on timing of appropriate use
The author was not pleased with the presentation and the new defense late Friday night last week. On Monday morning, his lawyers filed a letter with Judge Vince Chhabria, calling the late-night filing an inappropriate end to the discovery deadline.
They point out that Meta was aware of the uploading claims since November 2024, but it never raised this fair use defense in the past, even when the court asked about it.
The letter specifically mentions that Meta has a “continued duty” to supplement discovery under Rule 26(e), but that the rule does not create a “loophole” allowing a party to add new defenses to its benefit after the court deadline has passed.
“Meta has (for understandable reasons) never suggested that it would assert a fair use defense for uploading-based claims, including after this Court took issue with Meta last November,” the lawyers write.
Meta’s legal team responded by filing its letter before Judge Chhabria the next day. This paper points out that the fair use argument for direct copyright infringement claims is not at all new.
Meta pointed to the parties’ joint December 2025 case management statement, in which it had clearly identified the defense as the culprit, and noted that the author’s own lawyer had addressed it at a court hearing a few days later.
“In short, Plaintiffs’ claim that Meta ‘never suggested that it would assert the fair use defense for uploading-based claims, including at the November 2025 hearing, is false,’ Meta’s lawyers wrote in the letter.
The author believes that no harm, no infringing result
In the meantime, it’s worth noting that Meta’s inquiry response also cites testimony from the authors themselves, using their own words to strengthen their fair use defense.
The company notes that each named author has acknowledged that they are unaware of any meta model output that mimics the content of their books. When Sarah Silverman was asked whether it made a difference that Meta’s models never extracted language from her book, she testified that “it doesn’t matter.”
Meta argues that these admissions undermine any theory of market harm. If the authors themselves can’t point to infringing output or lost sales, the lawsuit is less about protecting their books and more about challenging the training process, which the court had already ruled was fair use.
These admissions were central to Meta’s defense of fair use on training claims, which Meta won last summer. Whether they have equal weight in the remaining BitTorrent distribution controversy has yet to be seen.
‘US AI leadership at stake’
In its response to the inquiry, Meta added value by emphasizing that its investments in AI have helped the US establish US global leadership, giving the country an edge over geopolitical competitors. It indirectly suggested that it was a valuable asset worth preserving.
As the case progresses, Judge Chhabria will have to decide whether to allow this “fair use by technical necessity” defense. Needless to say, this will be extremely important for this and many other AI lawsuits where the use of shadow libraries is at stake.
For now, the BitTorrent distribution claims remain the last surviving part of the lawsuit filed in 2023. Whether Judge Chhabria will allow Meta’s new defense to move forward remains to be seen.
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A copy of Meta’s supplemental inquiry response is available here (PDF). The author’s letter to Justice Chhabria can be found here (PDF). Meta’s response to that letter is available here (PDF).
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