Judge allows Meta to amend copyright claim but has biting criticism for Boies Schiller

U.S. District Judge Vince Chhabria sided with plaintiffs on a motion to amend their complaint Wednesday in a copyright infringement lawsuit against Meta over its AI training data. But you'd be forgiven if, halfway through the order, you couldn't tell.

"By now, the reader might be thinking, 'Wait a minute, you started off saying that the motion to amend the complaint was difficult. It seems like an easy deny to me,'" Chhabria wrote three pages into the order. Kadrey et al v. Meta Platforms, Inc., 3:23-cv-03417 (N.D. Cal., filed July 7, 2023).

Chhabria will let plaintiffs add a contributory infringement claim to the lawsuit. But the judge said plaintiffs' Boies Schiller Flexner LLP attorneys should have included the claim in their previous version of the complaint.

The contributory infringement claim revolved around the same set of facts as an allegation they added in the third amended complaint -- that Meta pirated plaintiffs' copyrighted works from a platform that creates a copy of a work every time it's torrented.

"At that time, the plaintiffs moved to add a 'distribution' claim--that is, a claim that when Meta was downloading copyrighted works from shadow libraries using BitTorrent, it simultaneously uploaded those works onto the torrenting network in a way that constituted direct" infringement, Chhabria wrote. "In other words, the plaintiffs seek now to add a new legal claim based on factual allegations they already added the last time around."

The judge speculated that the plaintiffs only thought to add the contributory infringement claim -- that Meta contributed to other parties' improper use of the copyright works when the copies were created -- after seeing a similar lawsuit include the claim.

"The lawyers for the named plaintiffs have no excuse for neglecting to add a contributory infringement claim based on these allegations back in November 2024," Chhabria wrote. "But it apparently didn't dawn on them to do so until they saw a new-but-related lawsuit against Meta by Entrepreneur Media, Inc."

But Chhabria's strongest criticisms were reserved for the lawyers' response to their supposed error, not the late claim itself.

"Counsel's failure to think of this issue back in November 2024 is bad enough. What makes it worse is the excuse counsel offers for waiting until now,'" Chhabria wrote.

Chhabria said that, rather than take responsibility for their mistake, the plaintiffs blamed Meta's lawyers, a team led by Cooley LLP.

"Counsel's lame excuse for failing to add the contributory infringement claim in November 2024 is part of an ongoing pattern," Chhabria wrote. "It appears that counsel's strategy throughout this litigation (and particularly since the Boies Schiller firm came in and took the lead) has been to distract from its own mistakes (and there have been many) by bashing Meta."

Wednesday's ruling wasn't the first time a firm representing the plaintiffs in this case has drawn Chhabria's ire. In September 2024, Chhabria told the Saveri Law Firm, plaintiffs' lead counsel at the time, that he wouldn't certify a class unless a new group of attorneys took over the case on the plaintiffs' side. Boies Schiller took over as lead counsel after Chhabria's comments.

But for all of Chhabria's criticisms, the judge went on to say that he has a responsibility to look out for the interests of the class members. Should the case survive the summary judgment phase, plaintiffs could conceivably go to trial with the existing claims and lose, Chhabria wrote, before granting the motion.

"If the above-described series of events occurred, there is a serious concern that the interests of the absent class members would be harmed, through no fault of their own. Having lost on the distribution claim, there is a possibility that they would be precluded from bringing a contributory infringement claim in subsequent litigation," Chhabria.

Chhabria ruled in favor of Meta at the summary judgment phase in June 2025, saying that training an AI model was a fair use of a copyrighted work since the plaintiffs failed to show how it caused them harm.

Around that time, now-retired U.S. District Judge William H. Alsup ruled that Anthropic couldn't assert a fair use defense in a similar lawsuit since it torrented the copyrighted works in question. The case settled for $2.5 billion.