**Daniel Benjamin Gilbert, proceeding pro se in his suit against Anthropic, just upped the ante with a legal maneuver of his own. **
In response to Anthropic’s own maneuver of filing a counterclaim for a declaratory action of fair use against Gilbert above, Gilbert has unilaterally filed as an attachment to his answer to the counterclaim a “Covenant Not to Sue” Anthropic for any “** training copies**” and “** purchased copies**” of his book Hacking World of Warcraft .
But the definition of “training copies” in the Covenant excludes copies derived from alleged “pirate” sources even if used for training purposes.
On top of his Answer, Gilbert has also filed a motion to dismiss Anthropic’s counterclaim, to the extent it seeks a judgment “beyond the claims pleaded in the First Amended Complaint,” due to lack of an actual controversy between the parties (given the Covenant Not to Sue Anthropic) or, in the alternative, partial judgment on the pleadings.
The upshot is (as I understand it): Gilbert wants to sever, as alleged in Anthropic’s counterclaim, Anthropic’s fair use defense in AI training to the extent it used purchased copies of his books.
It’s an intriguing maneuver, but, at least at first blush, I doubt it will fly. One of the main controversies in both the lawsuit filed by Gilbert and the counterclaim filed by Anthropic is the fair use defense. And the fair use issue already involves a disagreement between the parties on how to characterize the specific use by Anthropic. The courts in Bartz and Kadrey disagreed on this issue as well, including whether acquiring copies from online sources is separate from or a part of the defendant’s overall purpose to train and develop AI models.
In other words, Gilbert cannot unilaterally attempt to decide that legal issue (acquisition is separate from training purpose or a part of training purpose) by filing a unilateral Covenant Not to Sue. He can argue they are separate, but Anthropic can argue they are a part of the same training purpose.
DOWNLOAD MOTION TO DISMISS:
MEMORANDUM IN SUPPORT:
DOWNLOAD ANSWER:
EXHIBIT A COVENANT NOT TO SUE ANTHROPIC: