As we wrote in May, Elsevier is suing Meta over use of copyrighted works for training Meta’s AI models. It has a set of claims very similar to those in Kadrey v. Meta, but with a different purported class that includes authors and publishers who own copyright in academic journal articles and other academic works.
Along with two small updates in this case, we thought that now is a good moment to highlight and revisit some of the challenges of massive, class-action suits such as this to resolve copyright disputes.
The two updates:
First, on June 26, Meta filed a motion and supporting memorandum of law to transfer the case to the Northern District of California. We think Meta makes a strong case for transfer, given the overlap with Kadrey and the related litigation already pending in that district.
Second, on May 29, attorneys for Dr. Kenneth Saladin, professor emeritus of biology at Georgia College & State University, requested leave to intervene in the suit, with a proposed complaint, “to protect the distinct interests of textbook authors whose copyrighted educational works are included within the putative class alleged in this action.” (Proposed Complaint at 1.). The court quickly rejected that effort, but indicated that the request could be renewed once the court got to the question of class certification. Rather than wait, Dr. Saladin and several other textbook authors filed their own separate class action suit (in the Northern District of California), proposing a class that would include all textbook authors with a book used by Meta to train its models.
The transfer motion is fundamentally a battle for control over the litigation, albeit a minor one. The plaintiffs made a strategic decision to file in the Southern District of New York. Beyond the obvious convenience of their home forum, this choice had the added benefit of raising Meta’s costs. Meta, seeking more control, lower costs, and a court it has already been navigating in the Kadrey litigation, clearly prefers its chances in California.
The request to intervene is similarly about control, this time in terms of which law firms shepherd these cases and plaintiffs, who shapes the litigation, and who stands to profit from these class actions. These cases are big business for class action plaintiff law firms and they will not be shy about intervening or filing additional lawsuits, perhaps with an eye toward consolidation with suits already in motion.
The textbook authors’ efforts to carve out their own control over the Meta AI litigation gives a window into the possible conflicts of interest between some publishers and many authors, a problem we have long been interested in. To pull just one example from the proposed complaint:
“In Bartz, one of the major educational publishers sent a mass email to its textbook authors during the class opt-out period, which asserted that in many instances the authors should claim entitlement to only the sales royalty rate (e.g., 10%) of the proceeds, while warning authors against seeking third-party assistance and instructing authors to agree swiftly to ‘avoid delays.’” (Proposed Complaint at 17).
We must wait to see whether the new suit will simply be combined with the existing litigation in the Northern District of California (Meta would have good arguments for doing so, to avoid duplicative litigation) or whether the class issues in the Elsevier suit will be resurrected. But the issues raised by the textbook authors about how their interests diverge from their publishers in the outcome of the litigation are significant, and are symptoms of a larger problem that ought to be addressed in current and future class actions—many of these issues were present in the Anthropic v. Bartz litigation and remain unresolved.
Compounding the class action problems the Bartz class action left unresolved: who gets to sue on behalf of whom?
As copyright and AI litigation continues to wind its way through the courts (at least 125 active cases as of this month), we’ve noted that plaintiffs essentially have over a hundred legal laboratories running, to test which litigation strategies are most effective and which may be dead ends.
The most significant development of the last few years of AI copyright litigation is that we’ve seen the class action mechanism used to multiply damage claims, thereby increasing leverage for plaintiffs and putting intense pressure on defendants to find ways to avoid massive damage awards, potentially in the billions of dollars. Prior to 2023, the number of copyright class actions was minuscule in comparison, with very few cases approaching the scale of the current batch of AI copyright class actions in terms of numbers of class members.
Because Bartz v. Anthropic led to such a large settlement for plaintiffs, it provides a pattern that many would-be plaintiffs will want to follow. It deserves equally close study from those of us who are skeptical of where all of this is headed, particularly when one small group of plaintiffs claims to be able to represent the interests of millions of others.
We were concerned enough with class certification in Bartz that we filed an amicus brief asking the Ninth Circuit to review. Our brief was filed on August 7, 2025; the parties announced their settlement less than a month later, and the questions we raised were never resolved.
At the time, we said:
“Had the district court conducted such an analysis, it would have uncovered decades of research, multiple bills in Congress, and numerous studies from the U.S. Copyright Office attempting to address the challenges of determining rights across a vast number of books. It would have revealed how the complexity of years of publishing contracts makes ownership determinations fraught and prone to conflict. It also would have shown that rightsholders have genuine and significant differences of opinion about the legality of AI and the specific uses Anthropic has engaged in.”
Our concerns are just as valid today. The textbook-author intervention we note above is symptomatic of precisely the differences of opinion that went unresolved in Bartz and that linger in many of the cases currently moving toward their own resolutions, often with class certification as a step along the way. In Bartz, we’ve seen small glimpses of what this means at the end of the day for authors, both from an under-inclusion and over-inclusion standpoint. For example, many authors complained that they were entirely excluded from the class due to reasons of expediency and administrative ease (e.g., because their books weren’t registered or do not have an ISBN) and were actually prevented from formally objecting because of this). Others highlighted problems caused by over-inclusion, (e.g., by including in one class rightsholders such as publishers who have an interest in minimizing the claims of authors).
Questions that need answers if authors interests’ are to be protected in class action copyright suits
Building on our concerns in Bartz and with a purported class of journal authors and publishers in mind, here are some of the questions we would ask any court to consider. We begin with a top level question that we have come to believe was a glaring omission in Bartz:
- What audit and transparency mechanisms will be put in place that will permit authors (including authors excluded from the class, perhaps unfairly), interested in the fair distribution of settlement funds, to examine precisely how funds are distributed to claimants?
One of the key weaknesses of the Bartz settlement is that there is no public-facing transparency mechanism in place to permit us to understand precisely how the settlement funds are ultimately distributed. There will be no open books to audit, no independent third party to spot check or otherwise verify that the more than one billion dollars in settlement funds is being apportioned to actual rights holders (not merely groups or publishers representing themselves as rights holders).
Yes, there is a settlement administrator and yes, the court can monitor the settlement. But the only people with real oversight of the process also have an interest in closing the book on the whole affair as promptly as possible. For the plaintiffs’ attorneys, who should be fully aligned with the interests of the authors they represent, thorough and exacting management of the process only eats into their bottom line. These are significant problems that Bartz failed to address.
For the sake of a clean number, let’s say the number of claimed works in Bartz is 440,000. If administering and verifying the allocation of funds for one claim took a modest 30 minutes (quite low for works where rights are contested), that would be 13.2 million minutes – 220,000 hours – or more than a century of full-time work!
- Will the court address the tough in-the-weeds-details of rights allocations that matter for appropriately dividing settlement funds among class members?
In the Bartz settlement, we saw high level default presumptions and 50-50 splits, with a “we’ll figure this out” wave of the hand from plaintiffs’ attorneys, that left a host of questions unanswered. Will this be the norm for other class actions, or will judges in future cases pay more attention to the actual details of how rights are allocated? How will the settlement treat articles published under a Creative Commons license? What happens when the publishing contract doesn’t contemplate a settlement related to use in AI training, as most would not? In a complex mix of possible rights holders, publishers, authors, authors’ heirs, and authors’ employers, who is entitled to participate in the settlement? And how are uncertainties and nuanced questions resolved?
In Bartz, neither the plaintiffs’ attorneys nor the defendant had much interest in slogging through these details. Plaintiffs would aim for maximum class size to maximize payout, and the defendants (especially after negotiating a fixed payout sum) would want to maximize the size of the class to get the broadest possible liability release. With these priorities, how the money is precisely distributed becomes more of an afterthought.
- Will the courts apply copyright law’s normal demands on litigation, or will class actions get a special pass?
To bring a copyright lawsuit for a US work, one must have first registered it with the US Copyright Office. This is copyright litigation 101. In most adversarial proceedings, defendants will typically vigorously scrutinize the registration of a work, whether it is valid, and whether it applies to the work at issue. The details matter a great deal.
In class action settlements, if Bartz is any indication, these details may receive more assembly line-level scrutiny and less heightened, high stakes crucible-level dispute.
But the details really do matter. To focus on one example: Group registration of serials is governed by 37 C.F.R. § 202.4. The regulation lets a publisher register multiple issues of a periodical at once, with the registration covering each issue as a copyrightable compilation. As to the individual works inside each issue, the regulation is more limited; it covers the authorship in the individual articles, photographs, illustrations, or other contributions appearing within each issue, but only “if they were first published in those issues and if they are fully owned by the author/claimant when the application is filed.” For a suit like Elsevier v. Meta, whether the articles at issue are actually covered by the proffered registrations could become a big deal.
Academic publishing has for at least two decades involved a sequence of distributions that precede the journal issue. Authors post preprints to SSRN, arXiv, bioRxiv, SocArXiv, and discipline-specific repositories before peer review. After acceptance, they often deposit author-accepted manuscripts in institutional repositories under their green open access rights. These distributions are usually unrestricted, indexed by Google Scholar, and consistently treated by academic readers as the operative version of the article. In many cases, these activities may constitute “first publication.”
To put it mildly, this is a fact intensive inquiry that will not be resolved easily and cannot be left simply to representations from plaintiff publishers. Put another way, in a great many cases, journal registrations will simply not extend to the individual articles within them.
Working out who is actually in the class is therefore not a matter of consulting the registration database for the issue. It requires, for each article, identifying whether the article was previously published, comparing those dates to the registration record for the issue, and assessing whether and when the article (as distinct from the issue) was timely registered. That kind of article-level inquiry is exactly what class certification’s predominance and manageability requirements are designed to scrutinize.
Where this leaves us
The Elsevier suit, like the others queued up around and behind it, will present a temptation to follow the trail Bartz blazed: certify a class, negotiate a settlement, distribute the money, close the book. Every step in that sequence embeds the questions above, and these questions don’t get easier when the works at issue are journal articles with preprint histories, layered contracts, and a tangle of possible claimants.
So, for whom is Elsevier suing? Right now, nobody can say with confidence. Unless a court insists on real answers about class composition and real transparency about distribution, nobody ever will. Until then, “the class” remains a convenient abstraction: precise enough to settle a case, but far too vague to truly represent the people whose rights justify the lawsuit. We will be watching, and where we can, we will keep pressing courts to ask these questions before pushing things forward.
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