Rohit Nath is a litigator at Susman Godfrey who reached a tentative $1.5 billion settlement in the Bartz versus Anthropic copyright class action, which would be the largest copyright settlement on record if the court approves it. We talk about how a band of pre-1972 recording artists led him to the front line of AI copyright law years later. He explains why he reads the same Supreme Court opinion dozens of times, how a second look at the Napster decision reframed the whole case, and what he gives up by staying a generalist instead of becoming the copyright specialist everyone now expects him to be.
Top Insights
- His edge in the AI cases came from a combination almost nobody had: deep class action experience plus copyright experience, which he stresses was more luck than a deliberate plan to merge the two.
- The piracy theory was the bet that mattered. He could picture standing in court and arguing that downloading troves of books from a pirated site is the same thing a high schooler would be liable for in their garage, and that it is not fair use.
- He reads a controlling case like the Warhol Foundation opinion over a hundred times, and notices new things each pass; a single line about Goldsmith charging a customary licensing fee became central only after he had steeped himself in the piracy arguments.
- A second reading of the Ninth Circuit's Napster decision flipped his view: the infringers were the end users downloading for free, an argument the other side was not prepared for at the first status conference in front of Judge Alsup.
- Susman Godfrey vets every case by firm-wide vote on Wednesdays, where a lawyer writes a memo and takes oral-argument-style questioning, so Rohit puts his own credibility on the line each time he champions a matter.
- He keeps sharp by listening to Supreme Court arguments on Spotify during walks and runs, picking up policy concerns and turns of phrase that never make it into the written opinions.
- His advice for lawyers who want to work at the frontier is to start small: take the case with a thorny, interesting issue, win it, and use that win to earn the bigger one.
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Full Transcript
Khurram Naik: Rohit, I am pumped to have you on the podcast.
Rohit Nath: Likewise, I'm really glad to be here. I've watched everything that you've been doing over the last few years, and it's really cool, and I'm excited to have this conversation.
Khurram Naik: Well, the feeling is mutual, because you have some very busy, headline-making cases.
Rohit Nath: It's been a busy year for sure. It's been a busy year, particularly in the copyright space.
Khurram Naik: So I think it'll be helpful to talk a little about your genesis and path to the work that you're doing. The litigation itself is very interesting, and I'm sure we'll have space to talk about that, recognizing that, of course, it's ongoing. But I'm really curious about how you came to this corner of copyright. I think some of the background is some of the IP work you did, and I think some of the background for the IP work is how you got it through your relationships. Something you noted early on was, in connection with what you've seen from some of the episodes, previous guests, was something maybe a little bit different about your approach to business development. So I wonder if you can share what that system has been.
Rohit Nath: Yeah. So I'll start with how I got into this. Over the last two or three years, I've been really focused and spending a lot of time on representing rights holders in copyright cases against large technology companies over artificial intelligence. The way I got into this was, I'd always been interested in copyright. I took copyright in law school. I really enjoyed it. When I was an associate, my first copyright case was representing a band called the Turtles against Sirius XM and Pandora. It was a rare copyright case under state law, because it was about sound recordings prior to 1972, pre-1972 sound recordings. It was a super interesting case. We had some mixed results, but out of that, as a fairly young lawyer, I got my first Ninth Circuit argument. I got a ton of court time in a fairly high-profile case that I never would have gotten. And I loved the substance of it. There were some fair use issues hanging in the background in that case, and now fair use is front and center in all the AI copyright cases. So that's how I originally came in contact with the actual copyright work and practice.
After that, when I became partner, ChatGPT was released, and our law firm had just gotten a lot of inquiries from writers and creators who thought there was something there. One of my partners, Justin, had been talking to a lot of writers and creators who wanted to do something about it. That's how we ultimately came into these cases. The reason I got involved was because I had had some copyright experience in the past. We ultimately decided to bring the cases as a class action, and I had a lot of class action experience on the plaintiff's side. So that's how I ultimately started on the case.
The first case we filed was against OpenAI and Microsoft. It's still going. It's very much in the thick of litigation right now. We've closed out fact discovery, and they're in the middle of expert discovery in the case. From there, once we filed, we got a lot more phone calls from other people, including our current class representatives and clients in the Bartz versus Anthropic case. That led to other cases. We filed the case against Anthropic. That case was filed in 2024 and moved way faster than anyone was expecting. When we filed that case, usually you file a case, even in the Northern District of California where things move pretty fast, you expect discovery to last at least a year and a half, and nothing very significant to happen until much later. But we were assigned to Judge Alsup, and he was very interested in the case. He was really interested in learning the technology, and so within a couple of months we had a tech tutorial and we were briefing class certification. Within the span of a year and change, all of the really important stuff in the litigation already happened: summary judgment, class certification, discovery. And finally we reached a tentative settlement for one and a half billion dollars that is still subject to court approval. But if it's approved, it'll be the largest copyright settlement of all time.
Khurram Naik: What I'm saying is, the interesting part about this litigation, for why you were so well suited for it, was that you had copyright experience plus class action experience. Sitting here now, do you see that as a formula? Okay, how do I mix and match? Like, what if I map this skill set onto this other skill set, this domain expertise to my expertise? Is that a form of that prospectively you're interested in using?
Rohit Nath: I think so. It was helpful here, having both the combined class action experience and the intellectual property experience. There aren't a lot of intellectual property class actions, period, out there. They're exploding now, just because of the size and scale of the use of intellectual property, and the fact that there are so many, that being aware that talking about large language models or any sort of artificial intelligence research, you just need so many works or so much data at the same time. I wouldn't say that it was a deliberate choice, that I wanted to just find a way to combine class action skills or intellectual property skills. To some extent, it was luck. It happened to be that I had spent a lot of time working on class actions as a young lawyer, and that was helpful, and I was on a really cool, interesting copyright case. I had asked to get some copyright experience when I was an associate. Our firm had done, at that point, a decent amount of copyright work, but not a ton. So in that sense it was deliberate, but I wasn't trying to necessarily merge the two skills deliberately at that time in the hope that it would play out to be a bigger asset, to have the two pair as an asset later on. It didn't end up happening that way.
I remember at the time when I was working on the Turtles cases, which they were awesome clients, really fun to work with, I thought, I'd like to do more of this. I want to find a way to do more copyright work. As a practical matter, you were a patent lawyer, there's a lot more big-firm, high-dollar work in the patent space, at least at that time, than there was in the copyright space. Big copyright cases were fairly rare. But then artificial intelligence came along, and that changed the game.
Khurram Naik: I think this is something that I've seen becoming a pattern, where I interviewed Louis Tompros, who's on the opposite side of some of the Anthropic litigation. For him, I think some of the foundation came from taking on much smaller copyright matters. He took on a matter for Pepe the Frog, the copyright holder there, and got the settlement. So I see a pattern where taking a foothold in something small can unexpectedly lead to big things. Is there anything like that you're doing today? Is there anything small? Is your principle now, let me continue to make small bets proportional to the types of matters that you can take on? Or do you say, hey, I took a swing, it turned out to be large, you know, maybe just maybe it's turned out better than expected, let's say, and that suggests that there are more opportunities of this scale, maybe I want to pursue those primarily? How are you thinking about that now?
Rohit Nath: So that is definitely something I'm not doing now, but it was something I was doing, I would say, two, three, four, five years ago. One thing about Susman Godfrey is you're encouraged to do a lot of business development at an early age, including as an associate. When I was an associate in particular, I was on the lookout for smaller cases where I could develop a client relationship, that I could bring into the firm and be able to have the experience of running the case as the primary person interfacing with the client. I did have a case like that. It wasn't a copyright case, but it was a small breach of contract case. I brought it in as a third-year associate. It was an hourly case. We don't usually do hourly work, but the firm is very flexible when it comes to young lawyers bringing in business, to let them get a chance to actually have that experience. That was a hugely formative experience for me, because it was the first time that it was, I don't want to say my client, but it was the client that I had brought in. So I felt immensely responsible for everything that went on in that litigation in a way that I hadn't before. That was a situation where it was exactly that, it was a small case that was a formative experience. It did get me a set of contacts that have been helpful. This was a case that was adjacent to a patent case, and I got contacts between our co-counsel and opposing counsel and the client. It actually did help me increase my contacts for future copyright cases and soft IP cases. So that is exactly what I think you were just talking about, looking for smaller matters to get a foothold, build up your contacts, and build up your reputation.
At this point, it's actually the opposite, because of all of the large AI cases, both Bartz, OpenAI, and the cases against NVIDIA, I'm finding that I have to do the opposite and be much more selective about what cases I work on. I definitely don't rule out smaller cases. If it's the right opportunity, sometimes smaller cases present a super interesting question of law, and those are the types of cases that I might get involved in. But in general, at this stage, I've found that I have to be much more selective, and I don't have as much flexibility actually to take on smaller matters as I did a couple of years ago.
Khurram Naik: At the stage where you got that patent matter, as I recall, that came from your approach to business development, which was very network-driven, but most specifically with outside counsel, largely, as I recall. That's something unusual, because of course the number one thing people think of is, oh, clients are people at corporates or that sort of thing. So how did you come to that approach? What was the impetus to take that approach versus, you know, you were in LA, you could have said, hey, there's a ton of companies here, I can just go directly to the company. What made you take that approach?
Rohit Nath: The original reason I took that approach was something someone told me in law school. He was a partner in another litigation boutique in Chicago. He said, the best thing you can do is just keep in touch with lawyers that you think are very smart and are going to be doing something interesting, because you never know what anyone's going to be doing in five to ten years. His thought was, look, that person may be a judge, that person may be the general counsel of a company, they may be at another law firm who refer you business. That was the idea. His advice was, especially when you're younger, keep in very close touch, make sure you keep a wide network, just meet people, take people out to dinner every time you travel for work, take other lawyers out to dinner. It's easiest to do, often, with other people at law firms or in private practice, because, especially when you come out of law school, the overwhelming majority of all of your contacts are going to be people in private practice, because almost everyone goes to a big firm. So that was originally why I did it.
When I started at Susman, after I clerked and spent a very brief period at the Justice Department, Steve Susman used to say a ton of our cases come as referrals. The reason for that is because we're a firm that often doesn't have as many conflicts. If someone has a client at a big firm, and it's a big company, and they have a case against another big company that might be a client of the big firm, that's a reason we get referrals. The other reason is oftentimes people will get cases where they're looking for some sort of alternative fee arrangement, particularly if they're looking for someone to take a case on contingency, then we're a good candidate. A lot of the big firms are not situated to do so. So his advice was always, do your absolute best work, which you should be doing for the client anyway, but oftentimes that will lead to referrals from opposing counsel, and keep in touch with other lawyers in private practice. That's why one of his genius ideas is, Susman throws this big party every year for all of our contacts. We do it in the city where each of our offices are located, and the idea is we just want to keep in touch with the legal community, because a lot of our business is referral-based. Not all of it is. We have quite a few institutional clients, but a lot of our business is referral-based.
Khurram Naik: What then has changed now? So now you've had Bartz, you've had OpenAI litigation, and as you say, your filter for what you take on has changed. How has that changed this relational approach to your network, to business development?
Rohit Nath: It hasn't changed the relational approach. I would say my network has grown, and the people who I'm going out to dinner and lunch with, many of them are the same, but there are a lot of new people who are, more particularly, in the copyright space. The one thing that's changed about business development is that there are a lot more incoming inquiries than I ever had before. When I was an associate, and the first-year partner, I just didn't get a lot. You'd get them and they'd be very exciting, and you'd look into it immediately. Now I still do that, and it's still very exciting, but you just get a lot more of them. And unfortunately, a lot more of them I just have to very quickly decline, because I've seen the pattern before, and it may be a good case, it's just not a case that our firm is going to be able to take on.
Khurram Naik: What in that judgment has changed? Let's say you were a first-year partner. Are there patterns behind the cases you're saying no to now that you might have said yes to as a first-year?
Rohit Nath: I think often the biggest thing, particularly if someone is coming to us with a contingency case, is the amount in controversy, right? That's often the first thing that you look to, because if it's not a large enough case, it just doesn't make sense for us to invest our time, to take a bet with our time and sometimes even our own capital, to prosecute the case. There are a lot of firms out there, a lot of amazing lawyers, who have a firm that's leaner than ours or less overhead, and they're really well positioned to take an eight-to-twelve-million-dollar case or something like that. The second thing that is the biggest is just the merits. Oftentimes I get a lot of copyright inquiries, and I can pretty quickly tell nowadays, especially having seen so many of them, whether there's a major merits issue in a case that someone's writing to us about. Our firm has a pretty unique process of accepting cases. Every single lawyer at the firm gets to vote on whether we take a case. We have these meetings every Wednesday, and you have to write a memo, and you basically have to present an oral argument to the entire firm and get peppered with questions about why you think it's a good case and a good bet of the firm's time, and that includes vetting the fee deal, etc. So the merits is the other thing I have to be really confident in, because I'll be putting my own credibility on the line in front of my partners and all of my other co-workers on whether I think it's a good case.
Khurram Naik: Can you talk about the merits aspect? What is it in the merits, what are patterns you're looking for? What is it in your judgment or experience that leads you to certain conclusions on the merits of some of these matters that, I suppose, reasonable minds could disagree on?
Rohit Nath: I think oftentimes there are two types of cases, I would say, or two types of merits situations. Sometimes it's something very obvious, right? Like you lack standing. A copyright owner comes to us and says, none of my copyrights are registered, or I have this relationship to the copyrights but I actually haven't, there's an ownership issue or something like that. Those are the types of things that it's very easy to say no to. The tougher issues, which I think is what you're getting at, are the situations where reasonable minds could differ about the outcome, and there is a very difficult either legal or factual issue, where it's hard to tell exactly what the right outcome is going to be. Those are cases, oftentimes when there's a big amount in controversy, that we like to take a bet on. Those are the toughest ones. The real question that I ask myself in those situations is, if I sit down and we're writing the opposition to summary judgment, or writing the opening statement at trial, or arguing jury instructions, or whatever it may be, can I make a persuasive case to myself that I would feel comfortable presenting to a court, and think that I would feel excited about it, and think that I have a really good chance of winning? If I can put myself in that mindset of being in court and feeling like, I know that feeling of having the confidence that I have a really good chance of winning something, if I can convince the judge of the arguments that I think are right, then I want to take a bet on the case.
Khurram Naik: You reference the underwriting process. I suppose another answer could have been, oh, I just wonder what it would be like to go to my partners on this and what their responses might be. So that could be an approach somebody else might use, but I wonder, in that way, do you feel like you're looking for layups? Is that what you're looking to show your partners? Or do you feel like you're trying to show, hey, this is an opportunity for us to do something hard, and that's the virtue, because, hey, we, at Susman, when we do hard things... How do you balance those two motivations, because I can see either being valuable to Susman?
Rohit Nath: Look, if it's a case, if a case is a layup, it's rare that a case that comes to us is a total layup, right? If a client has a total layup, they're not going to want us to do it on contingency, generally, if it's just an absolute layup. But obviously the better the merits are, the more likely it is that people are going to want to take the case. At the same time, I think the firm recognizes that the way that we do really well is handling the toughest cases, and the way that we generate more business is showing that we can win the toughest cases. Sometimes the toughest cases are on the defense side, in which case it's usually not a contingency arrangement, and oftentimes the very difficult cases are on the plaintiff side, and the point there is to show that we really think we can win this. I think Bartz versus Anthropic is a really good example of that, where it's, I think anyone would say it's a risky case, right? And I think if you were to have that conversation in 2024 before we filed, everyone would say it's a much riskier case than we think it is now, after seeing how things played out. So that's a really good example where the firm is willing to take big bets on cases where we think that we can really, I don't mean this to sound arrogant, where we can bet on ourselves to increase the value of the case and get a good outcome, where maybe other lawyers might not be able to.
Khurram Naik: At the outset of Bartz, at the memo stage, the filing stage, what was the number one bet that you were making? Or was there, hey, you know, I really believe in the merits, I have a lot of confidence, you know, discovery reveals something potent? What was the number one bet you were making at that stage?
Rohit Nath: So personally, I would say I felt, and this is not just Bartz, this is the practice area in general, I really felt strongly that we were on the right side of history, and I really wanted to take the case, because I felt like if we were successful, I would feel good about the win for years and years to come. So that was part of the importance for me. In terms of the economics of taking the bet, I think it was exactly what I just said before, which was, I thought through, ultimately we were successful on this piracy theory, and I remember thinking through, before we filed the case, that it's going to be really hard, this is sort of flown under the radar, but it's going to be very hard for them to respond to that. I could imagine myself in court, as I was, less than a year later, making the arguments for why downloading troves of material from a pirated website, doing exactly what, if a high schooler did it in their garage, they would be committing copyright infringement, is not fair use. I felt confident. In some ways, you're kind of visualizing exactly what you would say to the judge and what you would write in a brief, and if you feel good about that, considering the strongest arguments on the other side, then I like the bet.
Khurram Naik: You mentioned the feeling of being on the right side of history and the gratification. Can you translate that, either now the gratification you're feeling, or, you mentioned looking back on this, let's say three years from now looking back at this phase, what do you think it's going to feel like to feel gratification? What does it feel like, the work you did for copyright holders, what's the gratification?
Rohit Nath: I think there are two things. The first is the gratification that I think we did something really good, for copyright holders, for writers. The one thing that I think I'm always going to remember is my conversations with class members, not just our clients, but also a lot of class members. I've had the opportunity to speak to a lot of class members over the last several months about the settlement and the case and what it means, and also leaders of major rights holders organizations and membership orgs like the Authors Guild and organizations like that. I think that feels good, just the positive reaction to the settlement, the general sense that it's, knock on wood, from my perspective, that it's the beginning of a trend. So hopefully three years from now I'll be able to look back on this and think, okay, this was the start, it was a good start, and many things happened after that, in part because we were able to reach this result in this case.
The second thing, I'm thinking back to other cases. Picking one case in particular, it was a life insurance case. The subject matter was much less sexy than I think Bartz, but it was a case that I worked on for six years, and much like Bartz, it felt like my baby. I'd taken a ton of the depositions, I'd reviewed a ton of the documents, and was the primary associate on the case. I still think back to all the little milestones, like how great it felt to get a really amazing admission in a deposition, how great it felt to put together our summary judgment briefing, and how great it felt when we won on class certification and then won on summary judgment. Those little wins are extremely satisfying, and it's the best part of being a lawyer. So independent of the good of what we've done, I think I'll always remember being up in front of Judge Alsup during the summary judgment hearing, and feeling confident in my arguments, and feeling like I did a good job, and feeling that we had a really good chance of winning that case, and same when we succeeded on class certification. Those will always stick with me.
Khurram Naik: You mentioned talking to a number of class members beyond the representatives. How did you exercise judgment, because there are lots of constraints on your time? How did you exercise your judgment for how many to talk to, and what did you learn from the second half that you didn't learn from the first half?
Rohit Nath: I think the answer to how did I exercise judgment is, I didn't. I literally tried to, when possible, just answer as many calls as I could get. We would get inquiries directly to our email addresses sometimes, because people would see your name in a pleading and click on your email address. Sometimes you'd get inquiries forwarded from our generic email addresses to our listservs, and sometimes it would be forwarded from the claims administrator. Really, anytime I had time, and oftentimes this would be Saturdays and Sundays during the claims period, and even now, I would just pick up the phone when I could. I would use my cell phone, and so there are tons of class members who have my cell phone number, and sometimes I get calls from them. It was great, because honestly, I especially remember a ton of these calls over the Christmas New Year's period in 2025, and I wanted to hear what people thought about the settlement. I wanted to hear what they were thinking, whether they were having issues filing their claims, whether they had anxieties about what the settlement meant. There were a lot of people who were concerned that the settlement meant they were going to release their claims and Anthropic was going to be able to do whatever they wanted to do with their works for the rest of time, and that wasn't the case. So I didn't exercise judgment. I spent a ton of time talking to people, honestly probably more time than I should have, but I'm glad I did it.
Khurram Naik: And what surprised you the most from those conversations?
Rohit Nath: In terms of surprise, I think what surprised me the most was, I did not expect this settlement to generate as much interest as it did, and I was a little taken aback by that. When it was first announced and it was in the New York Times, I was like, okay, that, I guess that makes sense, it's the first AI copyright settlement, it's a big number. And then when the calls just started pouring in, and people were asking questions, they were really interested. There were so many class members who said, AI has caused me so much anxiety about what the future looks like, that they were really excited about the settlement, and they were really excited about what it meant. I just, I'd never had a case like this that meant so much to so many people, and it was really cool to see. Obviously they ended up being reflected in the claims rate. There was just a massive amount of participation overall from the class, which is not typical of class actions, where people actually have to go forward and file a claim to be able to participate.
Khurram Naik: Where does the judgment come from for what's a reasonable settlement, a settlement that's going to satisfy all the stakeholders? How do you exercise the judgment that goes into that?
Rohit Nath: That's a very similar judgment to what you would make in any case, or when you're about to take a case. I think it's really an assessment of, okay, what's a reasonable amount that we could recover at trial, and then you've got to discount that for all of the risks. In this case, immediately after the class got certified, basically, Anthropic brought in two more big law firms into the case, for a total of four. There was a petition for an interlocutory appeal pending in the Ninth Circuit on the class certification order. They had a motion for reconsideration on the summary judgment order. We had a trial on December 1st. Obviously there were these heavily disputed questions of fair use that presented an appellate risk. So you have to kind of take all that into account. To some extent it's more art than science. There are some hard numbers to calculate. In copyright cases, there's been some empirical research that we were able to look at about, okay, what are the most common jury verdicts in copyright cases? There isn't a lot of precedent on class action copyright cases, because, as far as I know, I don't think there has been a class action copyright case to go to trial. But we were able to see some empirical research on statutory damages awards and the like, and all of that we were able to put together. But you have to just exercise your lawyer's judgment and your gut from past cases about what's a reasonable recovery given the risks, and what's a good recovery. And, candidly, I think this is an incredible recovery given the risks we ultimately faced going forward in the case.
Khurram Naik: Speaking of sizing up risks, then, I'm interested in the underwriting process that got you here. So you partner with Justin Nelson, very experienced lawyer. The two aspects I'm interested in are how you underwrote the merits of the matter itself, and then how you positioned it for the firm to say this is appealing to the firm. So I wonder if you can talk about, maybe working backwards, how you positioned it for the firm. You're a relatively new partner, so of course you've got intuition about the firm and what the firm is interested in, and maybe working with Justin, more experienced lawyer at the firm, he had more experience in understanding institutionally what the firm would be looking for. Can you talk about that dimension? Of course, any number of aspects may be very specific to Susman, but I think it might be useful to people generally thinking about how do you align a firm, economics, etc., to get everyone on board and build something that aligns people.
Rohit Nath: Yeah. When we first were making the decision about whether to get into these cases, the first thing I'll say is, it was a long process, right? These are really difficult cases. I made partner at the end of 2022, and I first started thinking about these, Justin reached out to me because of my past copyright experience, and we first started thinking about them, say, like, March, April of 2023. We didn't file our first case, the OpenAI case, until, I want to say, October, it was either October or November 2023. So it was a long period of time where we were studying. There were a few other cases out there. We were thinking through the fair use questions. We were thinking through whether it made sense as a class action or some other way. But very quickly, I think we knew, I had had the benefit of seeing the firm's process for many years, and Justin had the benefit of seeing the firm's process for many more years and actually litigating big cases as a partner. He had just settled the Dominion Voting Systems versus Fox News case that year, and was thinking about, I think he was thinking, right, what's my next big thing? And I think he very quickly had a strong instinct that this was a really important issue, and that he wanted to be on the right side of, and he really wanted to figure out a way for us to bring in a case and to represent rights holders and writers, and find a way to do it. As a young partner, I would say I was much more risk-averse, and wanted to really think through things, and I did get the benefit of doing that, because of the difficulty of the case. It's hard to think about right now, but back then there were way fewer benchmarks, and there was way less guidance about what these cases should look like, what even the arguments would be on the other side, frankly. So there were a few law review articles that we would look at, and it was a lot of thinking. We talked to some experts. I think usually we make decisions pretty quickly. In this case it took a long time, and a lot of work, to ultimately make the decision that we wanted to get involved, and to present it to the firm. We weren't going to present something to the firm that we didn't think was a case that we felt confident that we had a path to victory.
Khurram Naik: Was there anything that Justin did to translate the value to the firm that had occurred to you, or was different, or, you know, was there something he did that translated the value of this case to the firm that was novel value?
Rohit Nath: I think, and this is something that he taught me as we were evaluating the case, and I think of it less of him communicating it to the firm, the one thing that he taught me, and it just came from his experience looking at cases and deciding when to take a bet, was just the strong instinct that if you yourself can confidently think of a path to victory, and it's a big case, and it's something that you want to work on, right, that's one thing. We have the luxury of being able, in many ways, to choose our cases, right? We don't have to take every case that comes in the door. If all of those things align, then it sounds like it's a very good use of your time. When I was a young partner, I didn't really think about opportunity cost as much I do now. He thinks very much in terms of opportunity cost. It's, you know, I have a limited number of hours in a day, kids, and is this something that I want to be really spending my time on? When it came to AI and copyright, his answer was absolutely yes, because I feel like I'm on the right side of things here, and we had figured out internally what our path to victory was, and we ended up being able to pursue that to the right outcome in Bartz.
Khurram Naik: At any point in this process did you consider representing AI companies?
Rohit Nath: Did we consider it? Not that I'm aware of.
Khurram Naik: Now, I meant, like, did you...
Rohit Nath: Oh, no, no.
Khurram Naik: Okay. You mentioned talking to experts. What kind of experts, and how did you find them?
Rohit Nath: These are just technical experts that, at that time, it was kind of hard to find, but there were a limited number of people who had either written about artificial intelligence and maybe expressed skepticism from the copyright angle. There are several computer science professors who had done a little work about the impact of artificial intelligence on creative work. So it was just using Google to find people, and sometimes you'd find someone and they would recommend you to the right person.
Khurram Naik: Got it. And then in that period of time it took you to get comfortable with the topic and proceed, looking back now in hindsight, 2020, but as a tool for going forward, is there anything that you think you could have done to shorten that timeline, to get to decisiveness faster?
Rohit Nath: In hindsight, no, I don't think I would have shortened that timeline. I actually think that, look, during that time it wasn't six months of intense work thinking through everything. It was over the course of six months, with other press of business, I'd spend a fairly significant time thinking through issues, reading cases, sometimes returning back to reading the exact same case. One thing I've learned is that, when you're preparing for oral argument or going in front of a court, the second, third, and fourth time you read a case, you're always going to learn something, find something new. So it was actually helpful to have that time, sometimes, to put the case evaluation away for two or three weeks, come back to it with a new perspective. So I don't think so, and I think in a case this big and this risky and this difficult, I think that amount of time was good and it was necessary.
Khurram Naik: Can you give an example of that, like a case that you came back to again and again that you saw something different in?
Rohit Nath: Yes. The Warhol Foundation case, there's a Supreme Court case about fair use. It's the most recent Supreme Court articulation of fair use, and deals with the first fair use factor. It's an opinion by Justice Sotomayor, and there's a lot going on in that case. I remember, well, I've read it, I would say I've read it over a hundred times at this point, between when I was first reading it as we were evaluating the cases, and then later on when we were preparing for summary judgment briefing, or just thinking through what summary judgment briefing would look like in the case, and then reading it over and over and over again as I was preparing for the summary judgment argument in Bartz versus Anthropic. That's a case where every single time I've noticed something different. I remember the third or fourth time I read it, I noticed that there was a lot of this language about the importance of the fact that, that case involved, are you familiar with the case?
Khurram Naik: I'm not.
Rohit Nath: So, basically, Goldsmith, who was the plaintiff, she had taken this photograph of Prince, and then Andy Warhol turned it into a silkscreen, which is a pretty famous silkscreen. You can see it, it's actually in the opinion, you can see an image of it. That silkscreen was used, and the Warhol Foundation got paid for it. It was about one use of it in a magazine, and Goldsmith sued, and Warhol said, no, this is a transformative use of your photograph, and so I don't actually have to pay you anything for this. There are a ton of things in the opinion, I don't want to say that this is the most important thing, but one thing that stuck out to me as I was reading it, I would say maybe the third or fourth time, it might have been like the fifteenth or sixteenth time, but the importance of the fact that Goldsmith went out and charged basically a customary fee, there was a market for a customary fee, a licensing fee, for the use of her photograph in a magazine. That language stuck out to me when I was reading it again at some point, and I remember thinking to myself, I didn't really notice this the first time, I kind of glossed over it, but it was because I was reading it after thinking through a lot of the arguments about piracy and how Anthropic and these other AI companies had avoided paying what would have been customary fees out on the open market to purchase a lot of these books that they used. I realized, oh, that's an important line in the opinion. There are a bunch of other things in that opinion, and many others, that you just notice the second, third, or fourth time you read them. It's also true, I think, of documents in a case. I like to go back and read through our chronology of hot documents in any case many times, because I always notice something new.
Khurram Naik: To spell out the obvious, the significance of going back to a Supreme Court decision is that, hey, that's a controlling precedent, and that's going to be binding on anyone, so if you own the interpretation of that decision for the judge, this is the significance of this. So this will get you on the right side of, let's say this goes to the Supreme Court, this gets you on the right side of that. Is that the significance of honing in on that language?
Rohit Nath: Yeah, I think so. I also think that sometimes you get your best ideas in the shower, sometimes you get your best ideas in unexpected places, and my general philosophy is, the reason why you have those ideas is because, before that, you've immersed yourself in all of the important stuff ahead of time. So sometimes rereading it with a fresh perspective will, either in that moment or a week later, come up with a new idea for how to frame a case, or a new idea for how to present a certain set of facts. I'll give you another example. In general, the first time I read the Napster decision in the Ninth Circuit, I didn't think it had that much relevance to this case, and then I read it a second time, and I was like, wait a second, I'm looking at this case wrong. Napster was a contributory infringement claim against Napster, and the end users were the infringers, because they were downloading copyrighted works. I think most people, especially if you look at the literature from 2023, most people who had dealt with the Napster decision said this explains why artificial intelligence companies' use of copyrighted works is fair use, because these types of cases are in a different category, because they involve, you know, Napster being responsible ultimately for distributing works to other people, and the OpenAIs, the Anthropics of the world are not, they're not doing that, they're taking them, they're using them for some purpose, but they're not actually distributing the works. The first time I read it, I was like, yeah, I can see the argument for why this is not relevant. And then at some point I read it again, and I was like, wait a second, I'm looking at the wrong people. The infringers here are the end users, and I was looking at this case all wrong. The infringers, the end users, were downloading these works for free without paying for a copy, and there's actually a line that basically says that. That was kind of a shower-idea-type moment. I don't remember exactly where we were, but it was many of us on the team that were brainstorming and ultimately realized, this is going to be a very hard argument to run away from. And the first time we actually articulated that theory and used Napster in that way was at the initial status conference in front of Judge Alsup, and the other side was not prepared for it.
Khurram Naik: I wonder, do you think it'd be possible to invert the technique? Let's say you read, there's an interesting Supreme Court decision, Ninth Circuit decision, whatever, take an interesting decision that you just find interesting. Do you think if you read it a hundred times, that might lead you somewhere interesting, that might lead you to say, I have a theory for a new kind of claim to bring, or some sort of productive insight from that?
Rohit Nath: I think so. You find an interesting Supreme Court decision, you read it a hundred times. I think the key thing is, you read it, you step away from it for a while, and then you read it again. I think that's a good way to practice, because it's really important to step away from your work, especially as a lawyer, it's easy to get just kind of laser-focused and task-oriented. But at the end of the day, we do really well when we come up with creative ideas, and that's why, especially if you're at a big firm or you're a firm that's trying to pitch yourself as handling the toughest cases, that's how we win cases, because we're not handling easy problems.
Khurram Naik: You mentioned brainstorming as a team. What was the most productive approach or technique that you use for team brainstorming?
Rohit Nath: I'm a big fan, not all the time, but I'm a big fan of the fairly regular all-hands meeting where everybody's face to face and you're actually in the same place discussing things. In advance, someone is responsible for putting together some sort of document that summarizes all the really important things in the case. What I like to do is think through, what are the, the number is not important, but three to five most difficult questions in the case that we need to answer in advance of the meeting? Sometimes just having the in-person meeting helps crystallize deadlines and make sure that everyone, we need to put together our outline of proof for all of our factual evidence, clean up any legal research that we've done, and then just sit through and talk about it as a group, think through what the best ideas are for how to push the case forward. I really think, there's something, I don't know how to put my finger on it, but there's something about just being in a room with the other people thinking through the most difficult questions that I find productive. And then you just need to make sure that you memorialize everything that comes out of the meeting. It's especially helpful, I think, because we incorporate our most junior lawyers in those meetings, and it helps to get their perspective. Oftentimes they have a very fresh perspective on the case. They've just come out of a clerkship, and they're not as steeped and, I would say, dogmatic, maybe, in their views about how the case should come out, and so they give us a fresh perspective. And then they hear from the more senior lawyers about what we need to do next in discovery. The way we're structured, associates are a huge part of our cases. They get to do a ton of substantive work, they help run the case every day, and so it's helpful to have these all-hands meetings where we can all take stock together about, all right, over the next six months, what needs to be done, what discovery requests need to be served, what depositions need to be taken, etc.
Khurram Naik: Earlier you referenced the concept of opportunity cost and how that's become more acute for you now. So post-Bartz, post-opinion, your inbox is flooded with people, any number of copyright holders who are curious if you can help them, and maybe they raise novel claims, theories, etc., and then otherwise, as we just talked about before, people reaching out to you about hard things, like, now that they've seen you take on something hard, it's, okay, well, here's this other hard thing, and you're capable of handling that. So I wonder if you can speak to, there are a couple of different paths, and of course you can take a blended approach. One approach is, we hit a gold mine, a vein, whatever you want to say, now we're in the gold mine, let's keep on digging, because there's work to be done here. You talked about the gratification felt for vindicating copyright holders. You can continue to see that gratification here in this domain and become the domain expert in this in the coming years, and that's not permanent. You can say, you know, there are any number of experienced litigators you can look ahead to, to say, oh, well, they took on this form of litigation, there were part of this frontier litigation, then they moved on into some other adjacent space, or something completely different. You're not bound to this forever. So you could take the approach of, okay, I am going to immerse myself in all things AI, all things copyright, that's what I'm doing now. Or you say, hey, my real wheelhouse is doing hard things. So, if you can talk about that decision, how did you come to that decision?
Rohit Nath: That has been a bit of a longer process, and I'm not sure that I've even fully formed an idea of how to deal with opportunity cost. I would say one thing, the thing I like about my practice the most, and I would say I'm having a ton of fun in my job, like, a ton of fun, the thing I've loved about my practice the most is that it's never boring, that there's always something interesting on the horizon, and I'm dealing with very difficult questions where the outcome could be one way or another. When I think about opportunity cost, I want to make sure that that continues to be the case. So I love copyright work, I think I will continue to do copyright work, and obviously we have many other AI copyright cases that we're handling, and I'd like to, and spending a ton of time on that, and I love that. I also, like you said, I want to make sure that I'm also continuing to take hard cases, and I never want to be in a situation, I'm in a rare position where I actually can be a bit of a generalist, and I never want to be in a situation where I'm basically doing the same type of case over and over again, and that's all I'm doing. I think one of the more interesting parts of what I've been able to do is that I've had a lot of difficult questions. Bartz has been the most high-profile case I've ever had, but I've done cases in the insurance space. In 2025, I was handling a defense-side property dispute where I was in Kern County Superior Court every other week, and it was a ton of fun, because I was having to dust off my knowledge of property law, and look at all these old property treatises, and I would actually go and dig through the public records to try and figure things out. That was so different from what I'd done before, and that's what made it interesting and fun.
Khurram Naik: Well, the concept of opportunity cost, okay, so you like doing the different things, the fun things, sure. What are you giving up in not being the AI copyright, however you want to frame that, person?
Rohit Nath: Yeah, I guess I wouldn't say that we're not pursuing the AI copyright path, right? We have a ton of these cases, it's been enormous, it's been great to be able to get a lot of rights holders reaching out to us, and every single one of these cases is a little bit different, and that's what makes them really fun, especially right now, which is that each one of these cases has a slightly different set of facts, technical issues, and postures. So each one of them is a little bit different. I would say that the alternative path is that you could take this opportunity and become a full specialist, right, and that has an enormous amount of benefits, because, let's say I were to become a copyright specialist after this and basically exclusively do that, ten, fifteen years down the line, I think I'd probably have to do a lot less work on a day-to-day basis to manage my practice. A lot of it, at a certain point, would be keeping up with the latest copyright law, but relying on a lot of the instincts and knowledge that I've built over time. Whereas when you're getting into a new case or a new area of law, that is an enormous lift, and a ton of new information that you have to process. Oftentimes we also rely on and consult, when you're in a new area of law, someone who is a subject matter expert, to make sure that we haven't missed something that's very deep in the weeds, that you might not find in a treatise or something like that. So I think that's what you're giving up, actually, is the sort of ease of administering a practice many years down the line, if you take the path of becoming purely the subject matter expert.
Khurram Naik: Like, limiting your practice to a certain type of case. How do you allocate your time, on, let's say, a weekly or monthly time horizon, to learning new subject matter, to explore these edge cases? How does the process you use today differ from the process you used to get into Bartz?
Rohit Nath: My process for that type of thing is a lot like my approach to business development. I do the stuff that I generally would like to do, I wouldn't say free time, because I don't spend all my free time on the law, but that I would like to do kind of on the side, alongside my practice. So one of the things I do is I listen to a lot of Supreme Court arguments, mainly because they're all available on Spotify, and I like them, particularly focused on the civil cases. It gives me ideas for potential new cases, it keeps me up on areas of the law that I don't usually necessarily practice in or have an active case in, and it's also a really nice inspiration for how you want to do an oral argument later, right? I'm in court a lot, and so it's nice to just kind of regularly hear great advocates before the court, because you take turns of phrase or a different approach to answering a difficult question. I get a lot of inspiration from just listening to that. The other thing I do is I like to read, I keep an eye, particularly in the Ninth Circuit, on opinions that come out, and particularly if it's a class action, anything related to intellectual property or some sort of subject matter I'm interested in, then I'll read it to get an idea of what's going on. I don't know how much time I spend on that, but it's a decent amount, at least several hours a week that I spend digesting materials, whether it's a case that was decided recently or a Supreme Court argument that is completely not really related to any active case that I have. It's really just partly because I enjoy doing it, but it also has the ancillary benefit of keeping me up on what's going on in the world.
Khurram Naik: What do you learn from the Supreme Court arguments that you wouldn't have learned from reading decisions themselves or the briefs?
Rohit Nath: I think, well, let me put it this way, it's a lot easier to listen to a Supreme Court argument when you're sitting on a plane or you're going on a walk or run or whatever, than it is to sit and actually read the opinion. And oftentimes, I think when you're listening to the argument, you get a sense of a lot of the policy concerns, not legal concerns, that the justices would have, that don't necessarily make it into the opinion. So I would say probably those two things. And then the third thing is just, it's a great example of what an oral argument looks like, and so it's nice to just, I think one of the best ways to get better at your craft is watching other people do it. So from these arguments, the other thing I do is sometimes I'll actually watch trials that are recorded and available, and I do that for the same reason. It's nice to see how other people try cases. When we have folks at our firm trying a case in LA, we try to make sure that people are out there watching it, because it's a great way for professional development. When it's not your case, you get to show up with a different perspective, and you just kind of take in, sometimes I'll write it down, sometimes I won't, but just take in ideas of how to deliver an argument. Anytime I'm about to go into court, if I have a major argument, two to three days before the argument, when I want to take a break from the materials that I'm actually using to prep, I almost always am listening to oral arguments in other cases.
Khurram Naik: So what is something that you have changed your mind about, how to approach oral arguments, that you've brought to listening to these?
Rohit Nath: I would not say that I've necessarily changed my mind about anything listening to them. I have taken in, I mean, the one thing I remember, before my very first argument I remember listening to a Supreme Court argument, I don't even remember which one it was, but the lawyer for the petitioner was just not answering the question, was recognizing that it was a difficult question for his case, recognizing that the justice was conveying a concern about the case, but not answering the question. And then when the respondent got up there, and also got a hard question, that was a different question, here she said, yes, that's true, but, and then explained the reason why it didn't matter for the case. That was an example of, very early on, you're listening to that, and you can see in real time how effective one style is and how ineffective another style is, how you can really frustrate a judge. I think the other thing you get from just listening to a lot of oral arguments is, it's easy, when it's not your case, to pretend that you're in the position of the judge, and look at the oral argument from the perspective of the judge, and then evaluate the quality of the argument based on that. That's very helpful, because then you can incorporate the same thing in your own practice, in your own arguments.
Khurram Naik: You mentioned that you can also identify potential new claims, interesting edge issues, from these arguments. Can you give an example of something that you've noticed?
Rohit Nath: So I would say, I don't have a great example of a new claim that I read a Supreme Court decision and said, okay, this is the case that we could bring. But what I do have, I'll keep it generic so I'm not naming particular clients or work product, what has happened many times is, I will read a case in an area that's completely irrelevant to what I'm doing, let's say I'm reading a case about ERISA, and my current docket is obviously mostly copyright, but I'll see an issue that can be very well analogized to something I'm working on, right? And, you know, maybe it's, this happens a lot in statutory interpretation.
Khurram Naik: Yeah, that's the first thing I thought.
Rohit Nath: Yeah. And so you're reading something totally different, but then you realize, okay, this can actually help me with my current slate of cases. And then you might also see, I don't think I've directly developed a case immediately related to something, but you see cases related to ERISA, there are a lot of Supreme Court cases decided about ERISA, it's very interesting, I like to read those, I think most people find them really dry, but it's super technical, and I find that interesting, because they're really difficult questions that pop up. So that's the type of thing that I might read and say, okay, I'll keep an eye on ERISA cases to see if there's an interesting case that might pop up at some point.
Khurram Naik: Yeah, when I was a patent lawyer, my office neighbor was a commercial litigator, and there was a chance to work on a litigation, but I was new to the firm, so it's like, let me just focus on patents, and I saw on her desk a really obscure book on personal finance, and I found it really interesting, and I was like, how did you come to that book? And she's like, it's a book written by one of the experts. And I was like, oh my god, this is the kind of stuff I could be doing. So I think it's good to notice the dry things that you find interesting. Maybe in another world I would be an ERISA litigator. But so, is that itself a form of opportunity, is noticing the things other people find dry and then running with that? Is that inherently a reason to pursue something, a signal?
Rohit Nath: Absolutely. I mean, I love finding, some of my favorite cases have been completely under-the-radar things that I think most people would find super boring, and they're interesting because I really enjoy the process of putting together the puzzle, figuring something out that might be difficult to figure out, but the only reason you were able to figure it out is because you learned all the technical subject matter, or learned all of the facts of the case, and you were able to spot an issue or something that didn't quite fit that can really help your client. A lot of those cases don't grab headlines, but when you're in the heat of litigation, you're not thinking about how high-profile your case is. I mean, sometimes you are, because you have to think about how it's playing out in the press, etc., but when you're really, you're in court, when you're taking a deposition, when you're in trial, you're not thinking about that, you're focusing on how to win your case. I really love the nuts and bolts of litigation, and so oftentimes, if it's a super technical case that most people find boring, oftentimes that'll be the case for me.
Khurram Naik: You mentioned this principle of statutory interpretation and harmonizing different case law, and I think that's rhetorically persuasive. Are there any techniques or types of legal arguments you think are particularly persuasive, particularly underrated types of legal arguments? Like, marshaling, statutory interpretation, marshaling evidence from some other domain, I think that's, any number of lawyers might overlook that and say, I'm just going to focus squarely on this domain, the body of case law that reads on this substantive trial issue. Do you find that to be an underrated technique, or are there other underrated techniques that you find yourself drawn to?
Rohit Nath: Yeah, I think the example that you picked up on is actually great. So often, when we're thinking about a difficult statutory interpretation question, there's a formula of just looking at all of the legislative history materials about that particular statute. You tend to have this laser focus on the particular statute. But it's really good to broaden your lens, to take a look, what else is similar, whether it's in this area of law or not, what else out there might be analogized to this, and maybe you'll find something that presents similar policy issues that you can analogize to, whether it's directly going to impact your argument, or it'll provide inspiration for how to frame your argument. I think it's really important.
Khurram Naik: Something that, I look for meta-narratives across lawyers' careers, and by the way, just quick on the statutory interpretation, I also mentioned that in the episode with Louis Tompros, he also mentioned getting into other domains, like patents and copyright, there's an instance where he made a statutory interpretation based on his experience in a copyright case, bringing that into patent law. So there are these reciprocal relationships between adjacent practices that create these nonlinear benefits from venturing out a little bit, and, like you're saying, zoom out and see the big picture. I wonder, for you, a meta-narrative across episodes is the relationship between being strategic and opportunistic, and how that's unfolded over time for you. When it comes to the relationship-driven strategy that you used, particularly early in your career, you can apply a label of strategic or opportunistic, I'll let you be the author to speak to that, but I wonder if one of those two constructs, in as much as in strategic or opportunistic, resonates with you now?
Rohit Nath: Yeah, I think I would say probably closer to strategic, and what I would modify it as is sort of, I would say almost strategic-light, in a way. Particularly when I'm talking about business development, it's very easy, I think, to make the business development part of this job take over your life. It's possible that it would completely swamp, because the work itself is quite a bit, it takes up a lot of your time. I think for a lot of people, it's not true of my firm necessarily, but for a lot of people, that's all they really have to do, right? If you do good work, you have a large institutional client, you continue to get work from them, and that's the business development part of it. For me, and I think a lot of other people, it's very easy to, I'm not taking people out to dinner five days a week, I'm not constantly on the hustle looking for new business. A lot of that's a lifestyle choice, right? I have a kid, I have a family, and I need to set some boundaries there. So that's why I kind of say I'd like to say strategic-light, because I'm good at calibrating, I try to make sure that my business development is something that I like to do, right, it's people I like to spend my time with, generally lawyers that I find interesting, I find their careers or the work they do interesting. There's an element of it calibrated towards folks that I might be able to work with or might get me a referral at some point, but I try to make sure that it's a mix, and there's not too much of it.
Khurram Naik: You mentioned observing other lawyers, lawyers that you're close to or otherwise, and you talked about how much you enjoy living at the edge, living in the frontier. Are there lawyers that you're close to, or lawyers just out in the field, in the industry, that you admire, that you think are good at operating at the frontier?
Rohit Nath: Yes. At my firm, I would say Justin Nelson, Kalpana Srinivasan of Austin, who's been on this podcast, I mean, she's done a ton of work, basically, as technology changes and the law hasn't, and that's a lot of what she does. Outside my firm, there are a number of folks that I would think of that do a great job operating on the frontier. My co-clerk, he's opposite me in almost every case, but my co-clerk, Sam Rydecker at Latham & Watkins, is also like that, and he's a Supreme Court lawyer, so pretty much everything they do is on the frontier, because they're almost always doing appellate work. Those are some names that come to mind.
Khurram Naik: Let's take your partners, Justin and Kalpana. What specifically do you think they're doing that's very effective for operating at the edge?
Rohit Nath: This is a little bit of a cop-out, but I think it, and sometimes it's a chicken-and-egg problem, but I think for Kalpana, she had a couple of massive victories in big trade secret and patent cases that were jury verdicts, and that enabled her to pitch herself as someone who handles your toughest cases, and that's how that came to be. And obviously she's very good at it, but so much of our job is doing a really good job in the cases you have, and that's, you know, she's the perfect example of that. For Justin, it's a little bit of the same thing. He got a big patent jury verdict when I was an associate, I don't think that was his first major victory, but that has helped him generate a ton of business. The other thing that he's done is he's always been very interested in public policy. He ran for attorney general of Texas, and has done a lot of pro bono work related to, in the lead-up to the 2020 election, and so that pro bono work, that stuff that's not actually paying work, has put him on the frontier of a lot of public policy issues. So when there are legal issues that raise major public policy questions or intersect with major public policy questions, he's someone who comes to mind for a lot of people, for who to handle all of that.
Khurram Naik: On that note, you mentioned, I wonder if this is similar, so you mentioned Justin had friends in the Writers Guild, you did too. How did you two come to have, it seems very specific, how did you come to have friends in that space? And I'm curious about how much, you mentioned public policy is just being an inherent interest in it, but can drive litigation when that becomes ripe. I wonder if that was not the explicit goal, but that's sort of how this came to be, it's just both you happened to have the relationships. But to begin with, I'm curious about how you both came to have relationships in that space.
Rohit Nath: So originally, when it comes to entertainment, and both screenwriting and just writing and writing books and journalism, in journalism I had a few contacts from college who were in that space. And then also my co-clerk, she was not officially in the Writers Guild at the time, but one of my co-clerks actually decided, she was at Kellogg Hansen, and decided that she wanted to become a screenwriter, and so she quit the law, moved to Los Angeles, and is now in the writers' room on Vince Gilligan's latest show. She worked with Vince and the other co-creator of Breaking Bad for a really long time, and worked on Better Call Saul for a long time. So I've watched her journey, and it's an amazing journey, right? You just, you walk away from this profession, she saved up a ton of money, and had experienced enormous early success, right? She got a great clerkship, she went to Yale, she was at Kellogg for a while, and just decided one day, I'd rather do something else, and in a really short time, in an industry that is extremely difficult to break into, she's managed to do that.
Khurram Naik: So it seems like that was an interest of yours outside of the space that just happened to have this incidental benefit. You mentioned before managing media, and so I wonder what you learned from managing media responses, because this litigation's been very high-profile. What does this case, can you talk about managing media coverage and the relationship there?
Rohit Nath: My general instinct has always, with respect to media, has always been to be conservative, let your court filings do the talking, and not to spend a ton of time talking to reporters. I do think, over the course of this case, I've learned to understand the value of giving a quote in the appropriate circumstance, and providing some background context in the appropriate circumstance. Those have been the main lessons in this case. But still, I think, particularly in cases like this, particularly in class actions, my instincts are pretty conservative when it comes to the media, just be very clear in our court filings, and let that do the talking.
Khurram Naik: Did it seem that, structurally, you were set up for success here, because if you're representing copyright holders, that aligns you with media companies, because media owns copyrights, and so, all things considered, they're looking for a scoop, so they're interested in stories, period, but your story is very favorable for their industry and benefit. You're aligned in that way, in terms of success. Did that strike you, did that really, did that seem to play out at all?
Rohit Nath: I don't really think so, because so much of this was covered by legal media too, and I don't know that they have necessarily, their coverage is stacked one way or another on the question of copyright. So I don't know that that played out a lot. And there's also a lot of media coverage in publications that are kind of more tech-focused too. And not all of it was even media coverage, like organizations that are very prominent, like, for example, the Authors Alliance, that submitted an amicus brief in opposition to our, in opposition to class certification, or things like that. So I don't think that really necessarily played out. We got a lot of just general coverage across the board, and I think a big reason why it was positive coverage was, I'd like to think that the deal was just really good, and I think unexpected, frankly. I don't think anyone expected a deal to come out this early. I think our case had sort of flown under the radar for a while, and then all of a sudden it came out, and then the number was, I think, a lot higher than people expected.
Khurram Naik: So, I think there are any number of lawyers who are interested in having a practice more like yours. It seems that you're very aligned with a firm that encourages business development, the firm encourages frontier issues. It definitely doesn't mean that other firms are not as aligned in the structure of their firm. So it's going to take a little more uphill work to do that, and recognizing this is the firm that you practice at, you haven't practiced at, let's say, a large firm that does typically defense-side litigation. But what is your proposal for how lawyers, whether at those kinds of firms or maybe small firms that are structured more similar to yours, what's your advice for lawyers who want to start to operate at the edge? What is something they can do in a week, in a month, that'll move them in the right direction?
Rohit Nath: This is where I would go back to what we discussed earlier, which is that, that is where trying to start with small cases with really interesting issues is the way to go. There are so many potential clients out there. You give the Pepe the Frog example, right? I doubt that, I don't know if that was pro bono, I doubt that was a huge fee-generating matter for the firm, but, and it doesn't have to be pro bono, there are so many people out there with really interesting issues. If you're talking about copyright fair use questions that raise difficult legal questions, you read them all the time in Law360 about, oh, this is a really interesting case, it's a small case, but it presents a really interesting issue that people want to read about. I think that's the way to do it, right, is to go out and pitch yourself on the smaller cases where there is a really difficult or thorny, whether it's a legal question or a new factual scenario or a new technology. That's the best way to get into that space, because if you can do really well in that case and get that win, then you have something, when you're looking for the bigger case, you have that to show for the work you've done in the past.
Khurram Naik: And would you say that curiosity plays as much of a role today as it did three years ago in your practice? More important, less important, about the same?
Rohit Nath: I think it's about the same. I just think that curiosity is two things. One is it keeps me invested in doing what I do, and interested, and happy doing what I do. But also, you know, Bartz is resolved, we've got a bunch of other AI cases, but now the defendants have, to some extent, seen our playbook, right, and so we've got to constantly be thinking of new ways to evolve, new ways to, we have to think several steps ahead, and be curious about what other ways to pitch our arguments, to make sure that we can keep up with the other side. So I think it's as much, now I have more people on my team working on it, but ultimately at the end of the day, curiosity, pulling on every thread, thinking through every issue, is really important, because the moment, I think, you get into a template, that's a recipe for disaster, because you might be missing something really different about the other case that you might not notice that didn't exist in Bartz or OpenAI or something like that.
Khurram Naik: What about your relationship with risk? How is your relationship with risk changed now, post-Bartz?
Rohit Nath: More than I did before, I think about opportunity cost, because it's very obvious to me that there are only so many hours in the day, there are only so many days in a year, and so I think the big thing is, I consider opportunity cost when I'm assessing risk. I don't want to necessarily say I have a higher appetite for risk, but I assess risk a little bit differently, because I am, I think I'm less afraid of taking on a case where I know that, okay, it could go either way, as long as I feel confident that I have a legal argument that I can present persuasively to a judge, in a jurisdiction where we have a chance of winning. So I think, in that sense, I guess the way to put it is, I do have a higher appetite for risk, in that sense, in that I'm going to be less afraid, when I'm confident in our legal arguments, or I'm confident that we can put together the factual case, then I'm much more willing to take a case than I was a couple of years ago.
Khurram Naik: You mentioned this last year was the hardest you've ever worked, but it's the most fun you've had. What are you most excited about in the next three months?
Rohit Nath: Next three months, so we've got depositions kicking off in one of my cases, it's another AI copyright case against a large technology company, I think that's going to be a lot of fun. And then I've got some summary judgment briefing kicking off in two of my cases, they're AI cases, over the next six months, and I think that's going to be really fun. It's going to be our second round of addressing these fair use questions, and both of those cases present different wrinkles, and so it's not exactly the same, and I think that's going to be a lot of fun.
Khurram Naik: You've had this win, and of course there were some issues of fair use that were challenges for you, but heading into this, what feels different heading into, yeah, you've got a win in your belt for sure, but again there are different aspects of fair use out there to be resolved, different factual issues presented in these different matters. But what sort of preparation, what sort of mindset, what feels different this time around, heading into this phase of these disputes?
Rohit Nath: I think anytime, when we started, we were going into Anthropic class certification and summary judgment so soon after we filed the cases, it was moving so fast, which is a great thing, but the question mark was so much bigger of, is there a path forward here? And that question mark is still there, right, every case is new, there's not any kind of circuit precedent that totally decides these cases, but you walk in with a lot more confidence, because we've had success in a case in the past. So I think that's the big difference. It definitely feels different, but, you know, it's the most fun part about being a litigator, you really can, like, every case is a little bit different, we don't have any sort of template, and so, while that question mark is still there, I think our confidence level is a lot higher.
Khurram Naik: Well, I'll be following along, appreciate it.
Rohit Nath: Yeah, it'll be interesting.
Khurram Naik: Rohit, this is a fascinating episode. I have lots of notes on techniques I can think about. I love your Supreme Court arguments principle. There are lots of things that you do that I like, and I'd like to start applying, whether I do exactly the things you're doing, like listen to court arguments, but more gently holding on, the principles here, I think there's a ton of interesting ideas here that I'll revisit, I'm sure, and it'll be interesting for the lawyers.
Rohit Nath: Awesome, I appreciate it. Thanks for having me on, and I had a ton of fun today.