The Third Circuit has affirmed a district court’s grant of partial summary judgment to Thomson Reuters, which had claimed legal artificial intelligence (AI) company ROSS Intelligence had infringed upon more than 2,000 copyrighted headnote summaries from Thomson Reuters’s Westlaw legal research platform.
As the court explains,
Artificial intelligence (“AI”) is a powerful machine learning technology that is poised to impact many facets of American life, including how we work, how we make art, and, critically for this case, how we study the law. In this case, the veteran creator of a legal staple, Thomson Reuters Enterprise Center GmbH (“Thomson Reuters”), charges a new competitor with copying its editorial materials to train an AI platform. The newcomer, ROSS Intelligence, Inc. (“ROSS”), counters that Thomson Reuters seeks to squelch innovative AI technology. But new technology is often at the forefront of our copyright cases. And when it is, we regularly apply “the principles underlying our venerable copyright laws.” … Stripped to its essence, this interlocutory appeal asks us to do just that.
The court noted that
this case appears to concern the future of AI legal technology. But appearances can be deceiving. In truth, this is no more than an ordinary copyright case…
The court explained that Thomson Reuters created Westlaw, “an online legal research platform that collects, organizes, annotates, and publishes legal content such as judicial opinions.”
Westlaw’s platform includes headnotes — annotations on opinions that explain “what the law is in the abstract or the result which it compels on the facts of the case.”
Westlaw owns a registered copyright in the headnotes.
ROSS (now defunct) was founded by three computer science students who wanted to train a computer program to answer legal research questions.
The court stressed that
ROSS’s AI was not a generative AI, meaning it would not create any new expression; it would only return text passages from preexisting judicial opinions.
The court explained that
For ROSS’s AI legal search engine to work, the AI program had to learn what made a judicial opinion responsive to a user’s legal question. To train its AI program to do so, ROSS enlisted a company called LegalEase Solutions (“LegalEase”) to create AI training memoranda. LegalEase wrote approximately 25,000 legal memos, each of which presented a legal question and four to six judicial opinion passages in response. Memo-drafters for LegalEasen … used thousands of Westlaw headnotes to create the memos’ legal questions, as the headnotes provided “an easy way [to] fram[e] questions.”
These memos were then used to train the ROSS AI program to identify patterns regarding which judicial opinion passages respond well to legal questions.
Upon learning of this, Thomson Reuters sued ROSS, alleging copyright infringement and tortious interference with contract.
The District Court granted partial summary judgment for Thomson Reuters, holding that ROSS’s use of 2,243 Westlaw headnotes infringed Thomson Reuters’s copyright and was not fair use.
On appeal, the Third Circuit noted that “Copyright protection subsists . . . in original works of authorship.” 17 U.S.C. § 102(a).
The US Supreme Court has held that to be “original,” works need only be “independently created” with a “modicum of creativity” and that such creativity is present when a work “possess[es] some creative spark.”
The court explained that
For each headnote, Thomson Reuters’s editors made creative decisions about which points of law were important enough to include in a headnote and how to word those points of law consistent with Westlaw’s drafting criteria.
The court decided that was enough to meet the “creativity” requirement.
The court then turned to the doctrine of “fair use” – a defense to a claim of infringement of a copyrighted work. 17 U.S.C. § 107.
As the court noted,
Fair use is an equitable doctrine that “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”
In determining whether a use is fair, courts must consider the following statutory factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
A related factor is whether a use of copyrighted material is transformative – in this case, “whether and to what extent” ROSS’s use of the headnotes “has a purpose or character different from” Thomson Reuters’s use.
The court found that
ROSS did not use the headnotes in precisely the same fashion as Thomson Reuters. ROSS took an intermediate step of using the headnotes to train an AI program, which arguably presents a slight degree of difference in use. But the undisputed evidence demonstrates that ROSS used the headnotes to train an AI program for the benefit of its legal-research platform.
The court found that ROSS’s use of the headnotes shared the same ultimate purpose as Thomson Reuters’s use, making ROSS’s use minimally transformative, at best.
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