A US District Court has ruled that Ross Intelligence infringed Thomson Reuters Westlaw’s copyright in training its search engine, in a decision that is likely to be pored over by lawyers acting in the circa 30 ongoing AI copyright cases currently being litigated.
The summary judgment from US Circuit Court of Appeals Judge Stephanos Bibas, sitting in the U.S. District Court in Delaware, finds that Ross copied a significant number of Westlaw’s headnotes; that the headnotes constitute “original work” (which is central to copyright claims); and that Ross used the headnotes to create a directly competing product.
The judge, revising much of a prior opinion from 2023, found that while a judicial opinion is not copyrightable, Westlaw’s headnotes – “chiselled out of a lengthy judicial opinion” introduce creativity and can be copyrightable. He compared the headnote to a sculpture that is carved out from a block of marble, observing “an opinion is a carefully chosen fraction of the whole.”
Judge Bibas also found that Westlaw’s key number system is original, dismissing Ross’s argument, in effect, that it simply mirrors the legal buckets that any first-year law student would recognise. Judge Bibas said: “There are many possible, logical way to organise legal topics by level of granularity. It is enough that Thomson Reuters chose a particular one.”
In terms of whether Ross copied constituent elements of the work that are original, Judge Bibas did not come to a decision on the Key Number System, where he said there are still factual disputes and it must go to trial. He also did not come to any decision on all of the headnotes. However, with regard to a batch of 2,830 headnotes, he found actual copying took place, on the basis that the defendant had access to it and produced something substantially similar in its Bulk Memos.
Addressing Ross’s defenses, the judge said: “None of Ross’s possible defenses holds water. I reject them all.”
The reasons are:
- Innocent infringement does not apply when an infringed work bears a copyright notice
- Copyright misuse doesn’t apply – it is a defense when a copyright holder weaponizes the copyright in anti-competitive behaviour, and Ross was not able to make that case here
- The merger defense that when there are only a few ways of expressing an idea you can’t protect the expression, does not apply
- The ‘scenes a faire’ defense, which says that forms of expression needed to express an idea can’t be copyrighted, doesn’t fit .
Judge Bibas substantially rejected Ross’s Fair Use defense, which permits limited use of copyrighted material without having to acquire permission. The judge said:
- Ross’s use is commercial and it stands to profit from exploitation of the copyrighted material;
- Ross’s use of the material is not “transformative” aka substantially different to Thomson Reuters’ – it was using the headnotes as AI data to create a legal research tool to compete with Westlaw;
- The likely effect of Ross’s copying on the Westlaw market is that it directly competed/created a market substitute. “[Ross] has not put forward enough facts to show that these markets do not exist and would not be affected,” the judge said.
The judge notably observed: “Because the AI landscape is changing rapidly, I note for readers that only non-generative AI is before me today.”
There remain some factual issues, including whether copyrights are valid and in force, that will go to trial.
Commenting on the ruling, Matthew Sag, a professor at Emery University School of Law, said: “One district court opinion that barely engages with the relevant caselaw will not change U.S. fair use law overnight, but it will certainly be welcome news for the plaintiffs in the more than 30 ongoing AI copyright cases currently being litigated.”
Professor Sag says that there no obvious way to distinguish this case from cases involving search engines and plagiarism detection software apart from that Ross used Westlaw’s product to create a directly competing product.
“Looking at the case this way, the decision might actually be good for the generative AI defendants, in cases like NYT v OpenAI, because there isn’t the same direct competition,” he observed.
A spokesperson for Thomson Reuters said: “We are pleased that the court granted summary judgment in our favor and concluded that Westlaw’s editorial content created and maintained by our attorney editors, is protected by copyright and cannot be used without our consent. The copying of our content was not “fair use.”
Ross Intelligence, founded by Andrew Aruda, shut down in January 2021, citing this lawsuit as the reason. We have reached out to Ross for comment.