In its counterclaim, ROSS said its "use of LegalEase researcher-chosen quotes of case law directly from raw judicial opinions constitutes a fair use under 17 U.S.C.A. § 107."

ROSS Intelligence may rely on an April U.S. Supreme Court decision, Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020), which held that annotations to the State of Georgia's legal code were not eligible for copyright protection. In upholding the appellate court reversal of the trial judge's decision, the U.S. Supreme Court held that the annotations amended to the state of Georgia's legal code were "ineligible for copyright protection" under the "government edicts doctrine."

"That decision could be at least tangentially relevant to the arguments that were offered" by ROSS, says Lovrics.

While "fair use" is an American concept, in Canadian law the "fair dealing" exception sets out possible defenses against an action for infringement of an exclusive right of copyright. "From a Canadian perspective, … one of the issues with fair dealing that's not totally settled is whether or not you have to have lawful access to something in order to fairly deal with it, and if you don't have lawful access, does that take you out of the fair dealing bucket?"

In this case, ROSS Intelligence has been accused of having unlawful access to Westlaw data, since, as a direct competitor, it was not permitted to subscribe to the service.

Regardless, and while not necessarily specific to this litigation, the case underscores "the importance of clearance when you're compiling a database," says Lovrics, in particular because of the ease with which one can use bots and crawlers to extract data. ROSS Intelligence was "celebrated" within the Toronto legal community, she says, and so seeing it shutting down its operations is sobering.

"My understanding is that ROSS amended its pleadings so that Thomson couldn't simply walk away," she adds; "I think that they do want this case to go forward for the sake of setting a precedent."

Current U.S. copyright laws had also not anticipated all the ways it could be used in the digital age, says Gray from her California office, pointing out that the U.S. Copyright Act's current iteration is from 1976. "When the internet became widely used, it raised a myriad of questions unsettled under the law." With new technologies came untested questions regarding the application of those technologies, and "how it fits within the existing legislation." There has been talk, "certainly among practitioners, of the desire to update the Copyright Act," she adds, though Congress has not announced plans for a comprehensive overhaul of the Act.