West Law v. Ross AI Major AI copyright ruling – The Delaware District Court’s decision in Thomson Reuters v. Ross AI could have huge implications for AI training and copyright law. On this episode of The Briefing, Weintraub attorneys Scott Hervey and Andy Tan break down the case, its impact on the AI industry, and what it means for content creators.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Scott:
This February, the Delaware District Court, in the case of Thompson Reuters versus Ross AI, issued a decision that will have, in all likelihood, profound ramifications on all pending AI copyright infringement cases. I’m Scott Herbie, a partner at the law firm of Weintraub Tobin, and I’m joined today by my colleague, Andy Tan. We’re going to walk through the court’s decision in Thompson Reuters versus Ross AI and discuss how this case will impact the other AI training, copyright infringement cases currently pending. We’ll also talk about what this case could mean, both for the AI industry and the creators of content on this installment of “The Briefing.” Andy, welcome to “The Briefing.” This is your first time on “The Briefing”, so thanks for doing this.

Andy:

Thanks, Scott. It’s an honor to be part of it. I’ve been a long-time fan and watcher, so it’s great to be on now.

Scott

Well, we’re glad to have you. This case is right up your alley. You do a lot of deals in the AI space, so I thought this one would be appropriate for you to do with me.

Andy

Yeah, it’s definitely coming up, and AI is the hot topic in the legal world for the foreseeable future, I think.

Scott

Yeah, that’s for sure. Well, let’s start. Why don’t we start with the facts of the case because this case, it’s got some interesting twist and turns. Andy, can you take us through the basic facts of the case?

Andy

Yeah, I would be happy to. I’ll run through the basic facts of the case. If you want a more in-depth discussion, you should check out the November 9, 2023, episode of The Briefing, where Scott and our colleague Tara go over it in detail. I’ll just go over the facts Again. But so, who are the players? Reuters owns West Law. It’s one of the primary legal research tools. Ross was a legal research AI startup. I say was because Ross AI closed down as an operating company in 2020. They said it was due to the Thompson Reuters lawsuit, but its insurance coverage probably allowed it to continue to defend the Thompson Reuters lawsuit, so we’re not sure that’s the reason. Ross hired a subcontractor to create memos memos with legal questions and answers. Now, these questions were meant to be those that a lawyer would ask, and the answers were direct quotations from legal opinions. They used these memos to train Ross’s AI legal research tool so that when a user asks a legal question, Ross’s tool responds with relevant judicial opinions, which Reuters is saying is similar to Westlaw’s headnotes. Reuters, the provider of the Westlaw Service, contended that these questions were essentially Westlaw case notes, and the court found, as a matter of law, that Ross copied portions of the Westlaw headnotes.

Andy

Ross challenged Reuters’ copyright in the headnotes and raised a fair use defense.

Scott

That’s right. This case is particularly interesting because it features something rare in federal courts: a judge reversing his own prior summary judgment ruling. Let’s start with the procedural history because that It’s unique. This case, as you said, began in 2020 when Thompson Reuters sued Ross in Delaware district Court. In 2023, Judge Bibas issued a summary judgment opinion that largely denied Thompson Reuters’ motions on copyright infringement and fair use. But then something unusual happened. As the case was heading towards trial that was scheduled for August 2024, Judge Bibas took a closer look at the materials and had what you might say is a judicial epiphany. The judge continued the trial date and invited the parties to renew their summary judgment briefings.

Andy

That’s pretty remarkable. From what we’ve seen, it’s rare for a judge to admit that they might have gotten something wrong.

Scott

That’s right. But if a judge is going to make a mistake or have second thoughts about something, there’s no better topic than the evolving world of AI. The judge actually said, A smart man knows when he’s right, and a wise man knows when he’s wrong. Wisdom does not always find me, so I try to embrace it when it does, even if it comes late as it did here. That’s pretty self-deprecating and funny for this judge. The judge does a complete reversal, and let’s dig into the legal analysis. First, there was the question of copyright validity. As part of the court’s original decision, the court initially said that it was going to leave this to the jury to determine whether Westlaw’s headnotes and its key number system had enough originality to be protected by copyright. Initially, Judge Bibas thought that originality depended on how much the headnotes overlap with the underlying court opinions. Now, this analysis was relevant because in doing an infringement analysis, you need to separate the non-protectable elements from what is protectable, and then you analyze the protectable elements and their similarities. In the recent opinion, the judge said he didn’t think this was the right approach.

Scott

The key insight was that even if a head note quotes from an opinion verbatim, the very act of selecting which portion to excerpt involves creative judgment. The judge drew from the Seminal Supreme Court case of Feist. That’s the telephone bookcase that we all learn about in law school, which held that factual compilations are original works of authorship, protectable under copyright if the compiled makes choices as to selection and arrangement using just a minimal degree of creativity. Based on that, the court found that the notes and key number system were original enough to be protected by copyright.

Andy

That’s right. As for the infringement aspect, the court handled that quickly. They noted that while they slogged through all the headnotes and determined that out of 2,830 headnotes, the court granted summary judgment findings of actual copying of 2,243 of the headnotes. They made this determination only where copying was so obvious that they said no reasonable jury could find otherwise.

Scott

That’s right. The court found infringement even after acknowledging that West law had a higher burden of similarities to meet due to the fact that the headnotes contained less protectable expression.

Andy

Let’s talk about fair use because this is the part that could have huge implications on other AI infringement cases. Let’s break down the four fair use factors. For factor one, the purpose and character of use, the court found Ross’s use was commercial and not transformative, even though the headnotes didn’t appear in the final product.

Scott

Right. Let’s dig into the court’s finding that Ross’s use was not transformative because, essentially, this was the basis on which the court found fair use in 2023 based on transformative intermediate copying. Ross argued that its copying of the headnotes is part of a building of a search engine that avoids human intermediated materials. Ross said that its AI studied the headnotes and opinion quotes only to find language patterns that would allow Ross to develop a search tool that would produce highly relevant quotations from judicial opinions in response to natural language questions and not to replicate Westlaw’s expression.

Andy

The court’s 2023 finding relied heavily on cases like Google v. Oracle and Sony v. Connectix. In those cases, the court found that copying computer code as an intermediate step was fair use. But now, Judge Bibas found those cases inapplicable for two reasons.

Scott

Right. That’s right, Andy. First, the judge said that those cases dealt specifically with computer code, which courts tend to treat differently from other copyrighted works because of its functional nature. Second, in those cases, the copying was necessary to innovate and achieve interoperability. You had to copy the code to make the programs work together. The court found that this wasn’t true here. The court said that Ross didn’t need to copy Westlaw’s headnotes to create a legal research tool. Ross could have created their own summaries of court opinions. The court said that Ross’s use was not transformative because it didnR...