ROSS Intelligence Inc. said in a Monday brief that Westlaw's headnotes are not copyrightable and that U.S. Circuit Judge Stephanos Bibas was wrong to grant Thomson Reuters summary judgment while sitting by designation in Delaware in February.
Judge Bibas denied Thomson Reuters' summary judgment motion on copyright infringement in 2023 and did not reject ROSS' fair use defense, yet he reversed his own ruling in February.
ROSS said Monday if that decision stands, it will have "sweeping consequences for innovation" in both legal research and artificial intelligence.
"The ROSS AI legal search engine rests on the same fundamental technology as any AI model, and that technology requires vast quantities of training data," the brief said. "The district court's decision siding with West [Publishing Corp.] over ROSS risks ending the American lead in AI development, a lead that is fundamental to economic success and national security."
ROSS said legal publications were foundational to the development of common law and trace back to the early days of the country when common law judges needed access to published judicial opinions. This led the U.S. Supreme Court to confront the question of whether anyone can "own the law," to which it has answered "no" multiple times, according to ROSS.
The AI company said West Publishing Corp., the Thomson Reuters unit that publishes Westlaw, has a long history of wielding copyright law to throw off competitors with litigation.
The headnotes are not original and only summarize uncopyrightable judicial opinions, thus defeating any possibility of originality, the brief said. West trains its editors to deviate from the judge's language as little as possible, and since the law cannot be copyrighted, nor can those summaries, ROSS said.
Since there is no commercial market for legal headnotes, ROSS' use of a small amount of them did not harm any market, it added.
Judge Bibas had defied precedent on the topic in his ruling, ROSS argued, as he recognized judicial opinions are not copyrightable yet then ruled headnotes can introduce creativity by distilling or explaining parts of an opinion, making them copyrightable. The judge had likened a headnote writer's editorial judgment to the creative judgment of a sculptor, but the sculptor analogy "undermines, rather than supports," the court's decision, the brief reads.
"The court stated that lawyers, like sculptors, choose 'what to cut away and what to leave in place' and consequently express an original 'idea about what the important point of law from an opinion is.' 'So all headnotes, even any that quote judicial opinions verbatim, have original value as individual works,'" ROSS said, quoting from Judge Bibas' opinion. "In essence, the court reasoned that a sentence is not copyrightable when included in an uncopyrightable judicial opinion, but is when isolated from that passage. This is wrong."
ROSS said it used only about 25,000 headnotes out of the 28 million that exist, illustrating their use was meant for the transformative purpose of training an AI legal search engine.
"We will continue to oppose ROSS' appeal of the decision of the district court, which affirmed that Westlaw's editorial content — created and maintained by our attorney editors — is protected by copyright, is not 'fair use' and cannot be used without our consent," a Thomson Reuters spokesperson said in a statement.
Thomson Reuters is represented by Jack Blumenfeld and Michael Flynn of Morris Nichols Arsht & Tunnell LLP and and Dale Cendali, Miranda Means and Joshua Simmons of Kirkland & Ellis LLP.
ROSS is represented by Mark Davies, Yar Chaikovsky, Andy LeGolvan, Anna Naydonov and Kufere Laing of White & Case LLP and Kayvan Ghaffari, Anne Voigts and Ranjini Acharya of Pillsbury Winthrop Shaw Pittman LLP.
The case is Thomson Reuters Enterprise Centre GmbH et al. v. Ross Intelligence Inc., case number 25-2153, in the U.S. Court of Appeals for the Third Circuit.
Corrections: An attorney's name was previously misstated and another attorney was listed at the wrong firm. The errors have been corrected.
--Additional reporting by Ivan Moreno. Editing by Philip Shea.
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