Thomson Reuters, ROSS Intelligence duel over fair use of legal headnotes for training AI
2023 IPDBRF 0029
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By Patrick H.J. Hughes
WESTLAW Intellectual Property Daily Briefing
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February 28, 2023
(February 28, 2023) - Thomson Reuters and its West Publishing affiliate have filed numerous briefs supporting their position against ROSS Intelligence Inc., a firm they say impermissibly reproduced swaths of text from the Westlaw database to build an artificial intelligence platform.
But ROSS on Feb. 24 fired back, revealing briefs — albeit heavily redacted ones — in support of its position, including an argument that the AI firm's copying was permitted under copyright law's fair-use doctrine.
Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. said in one of many briefs dated Feb. 23 that the fair-use defense "makes no sense," but ROSS says their stance "ignores the long history of fair use" in which competitors have often copied legal headnotes for commercial purposes.
Market substitution, other fair-use factors
Thomson Reuters and West sued ROSS in May 2020 in the U.S. District Court for the District of Delaware.
They claim that ROSS paid a third party with a Westlaw subscription to provide it with content, making it liable not only for copyright infringement but also for tortious interference with contract.
Afterward, Thomson Reuters and West asked for partial summary judgment for copyright infringement and to rule out ROSS' fair-use defense, among other motions.
They argue, for instance, that ROSS "ignores its burden to establish the affirmative defense," which consists of four requirements described in Section 107 of the Copyright Act, 17 U.S.C.A. § 107.
While proving that all four requirements are met is not mandatory for the defense to apply, Thomson Reuters and West argue that ROSS has met none, saying the AI firm copied a commercial product in a way that could not be considered transformative.
It copied the content because it wanted to create a product that could substitute for Westlaw in the legal database market and because "it was cheaper for ROSS to free ride on plaintiffs' creativity than develop its own," one of the plaintiffs' briefs says. "This is not fair use."
In its brief supporting summary judgment over fair use, ROSS counters by citing several high-profile fair-use cases, including Sega Enterprises Ltd. v. Accolade Inc., 977 F.2d 1510 (9th Cir. 1992), a case in which the reverse engineering of a commercial product was considered a fair use.
Like the disputes it cites, ROSS says its use was indeed transformative, as using content for its AI platform "involved generating only unprotectable statistical ideas and facts and such cannot define plaintiffs' market."
"ROSS's use does not supplant any actual or potential valid copyright use by plaintiffs," the defendant concludes.
West Publishing operates the Westlaw legal research service. Thomson Reuters publishes Westlaw Journals and Westlaw Daily Briefings.
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