{"id":110266,"date":"2025-03-12T01:06:32","date_gmt":"2025-03-12T09:06:32","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/03\/12\/sculpting-a-copyright-do-over\/"},"modified":"2025-03-12T01:06:32","modified_gmt":"2025-03-12T09:06:32","slug":"sculpting-a-copyright-do-over","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/03\/12\/sculpting-a-copyright-do-over\/","title":{"rendered":"Sculpting A Copyright Do-Over"},"content":{"rendered":"
\"\"
(Image via Getty)<\/figcaption><\/figure>\n

It is the rare judicial opinion, particularly in the IP arena, that starts with the court admitting that they got an earlier decision wrong. Penning the opinion? None other than the Third Circuit\u2019s Hon. Stephanos Bibas, sitting by designation in the District of Delaware. Widely (and rightly) hailed as one of the judiciary\u2019s most incisive and eloquent opinion authors, Bibas\u2019s February 11, 2025 opinion in Thomson Reuters v. Ross Intelligence<\/em> does not disappoint. Not only does it provide a rare glimpse into the thought process of a judge unafraid to revisit and revise a prior opinion, it does so in a case involving material very familiar to the legal community. As a bonus, the opinion answers some pressing questions on one of the hottest topics in copyright law today.\u00a0<\/p>\n

As at least some readers will realize, the plaintiff in the case is the owner of Westlaw, one of the leading legal research platforms. As part of its offerings, Westlaw takes published judicial opinions and organizes those opinions and its \u201ceditorial content and annotations,\u201d (e.g., headnotes, under its \u201cKey Number System, a numerical taxonomy\u201d). Nothing new here to any lawyer. For its part, the defendant Ross tried to license Westlaw\u2019s content to train its AI-search tool for its new legal research search engine. But Westlaw refused, leading Ross to train its AI using \u201cBulk Memos\u201d that it purchased from a company called LegalEase. How were the Bulk Memos created? By having lawyers create questions based on Westlaw headnotes! Unsurprisingly, Thomson Reuters was not pleased and filed against Ross for copyright infringement.<\/p>\n

After some years of litigation, Thomson Reuters moved for summary judgment on two grounds: copyright infringement and that Ross\u2019s fair-use defense failed as a matter of law. That original motion was denied in large part and the case progressed toward a trial date last summer. As the court prepared for trial, however, it \u201cstudied the case materials more closely and realized that my prior summary-judgment ruling had not gone far enough. So I continued the trial and invited the parties to renew their summary judgment briefing.\u201d Based on that renewed briefing, as well as the court\u2019s painstaking review of \u201cthe Bulk Memo questions, headnotes, and opinions side by side,\u201d a different result was reached.\u00a0<\/p>\n

Concerning copyright infringement, the Court had previously found that \u201ca jury would need to decide whether the headnotes and Key Number System were original enough\u201d to qualify as copyrighted material. Upon further reflection of the seminal Supreme Court decision in <\/em>Feist<\/em>,<\/a> however, the Court decided that there was \u201cno genuine dispute that the headnotes and Key Number System clear Feist\u2019s minimal threshold for originality.\u201d First, the Court found that the headnotes represented an original compilation, but even further each headnote qualified as an \u201cindividual, copyrightable work.\u201d To get there, the Court analogized uncopyrightable judicial opinions as a block of raw marble from which the headnote sculptor, i.e., Westlaw, could exercise \u201ceditorial expression\u201d and create copyrightable works of value. Second, the Court applied similar reasoning to find that Westlaw\u2019s Key Number System met the originality standard as a matter of law. With those reconsidered positions in tow, the Court then decided whether a batch of 2,830 headnotes identified by Thomson Reuters infringed.\u00a0<\/p>\n

To start, the Court pointed to a concession from Ross\u2019s expert that the \u201cBulk Memo questions for this batch closely resemble the headnotes\u2019 text and that the headnotes differ significantly from the text of the judicial opinions\u201d for a large percentage of the batch now under review for evidence of actual copying. Then, the court \u201ccompared how similar each of the 2,830 Bulk Memo questions, headnotes, and judicial opinions are, one by one\u201d to see whether there was \u201cstrong circumstantial evidence of actual copying\u201d by LegalEase when they created the Bulk Memos later sold to Ross. After an effort of \u201cslogging through all 2,830 headnotes\u201d the court found on summary judgment that there was \u201cactual copying of 2,243\u201d headnotes in the Bulk Memos. With that finding in hand, it was simple for the court to also grant summary judgment on substantial similarity for that same batch of copied headnotes, or those \u201cheadnotes whose language very closely tracks the language of the Bulk Memo question but not the language of the case opinion.\u201d Left for trial were all the other disputed headnotes, as well as the determination of which of the 2,243 headnotes deemed infringed represented unexpired copyrights.\u00a0<\/p>\n

Making matters worse for Ross, the court made quick work of various Ross defenses, such as innocent infringement and copyright misuse. The court also reconsidered its prior 2023 opinion on the question of fair use, based on \u201cnew information and understanding.\u201d Finding first that \u201cfair use is a question for the judge, not the jury,\u201d the court found that Thomson Reuters had the better argument on the two most important of the four fair use factors, \u201cand on the overall balancing.\u201d On factor one, the court found that Ross\u2019s use of the copyrighted material was commercial use and not transformative, \u201cbecause it does not have a \u2018further purpose or different character\u2019 from Thomson Reuters\u2019s.\u201d Relevant to that finding was that Ross\u2019s AI is not generative \u2014 creating new content \u2014 but just \u201cspits back relevant judicial opinions that have already been written,\u201d just like Westlaw\u2019s headnotes and key number system is used for. Still, the fact that Ross\u2019s use of the copyrighted material did \u201cnot appear as part of the final product that Ross put forward to consumers\u201d merited further attention. But after distinguishing Ross\u2019s cited cases on \u201cintermediate copying\u201d in the software code context, the court found no fair use because Ross\u2019s use of the copyrighted material was not necessary to launch its research product. Accordingly, the use by Ross was not transformative and no longer a question for the jury as the court had previously concluded.<\/p>\n

Similarly, the court found that it had been wrong to leave for the jury the question of whether Ross had created \u201ca brand-new research platform that serves a different purpose than Westlaw.\u201d In relevant part, the court found that \u201c[e]ven taking all facts in favor of Ross, it meant to compete with Westlaw by developing a market substitute.\u201d While the public has an interest in accessing the law, here, legal opinions were already \u201cfreely available.\u201d Because there was \u201cnothing that Thomson Reuters created that Ross could not have created for itself or hired LegalEase to create for it without infringing Thomson Reuters\u2019s copyrights,\u201d factor four also went against Ross. And since both of the more important factors, one and four, favored Thomson Reuters, the court entered summary judgment against Ross\u2019s fair use defense.<\/p>\n

Ultimately, this decision has relevance for the wide swath of courts considering use of copyrighted material to train generative AI models, even as Bibas made clear that he was not considering a generative AI model in dealing with the case before him. We are waiting to see how the current crop of cases dealing with those questions will come out. For now, at least, we have some indication of how a wise judge would begin to arrive at the answers.<\/p>\n

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub<\/a>. Any topic suggestions or thoughts are most welcome.<\/p>\n

\n

Gaston Kroub lives in Brooklyn and is a founding partner of <\/strong><\/em>Kroub, Silbersher & Kolmykov PLLC<\/em><\/strong><\/a>, an intellectual property litigation boutique, and\u00a0<\/strong><\/em>Markman Advisors LLC<\/em><\/strong><\/a>, a leading consultancy on patent issues for the investment community. Gaston\u2019s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at\u00a0<\/strong><\/em>gkroub@kskiplaw.com\u00a0<\/em><\/strong><\/a>or follow him on Twitter:\u00a0<\/strong><\/em>@gkroub<\/em><\/strong><\/a>.<\/strong><\/em><\/p>\n

The post Sculpting A Copyright Do-Over<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
(Image via Getty)<\/figcaption><\/figure>\n

It is the rare judicial opinion, particularly in the IP arena, that starts with the court admitting that they got an earlier decision wrong. Penning the opinion? None other than the Third Circuit\u2019s Hon. Stephanos Bibas, sitting by designation in the District of Delaware. Widely (and rightly) hailed as one of the judiciary\u2019s most incisive and eloquent opinion authors, Bibas\u2019s February 11, 2025 opinion in Thomson Reuters v. Ross Intelligence<\/em> does not disappoint. Not only does it provide a rare glimpse into the thought process of a judge unafraid to revisit and revise a prior opinion, it does so in a case involving material very familiar to the legal community. As a bonus, the opinion answers some pressing questions on one of the hottest topics in copyright law today.\u00a0<\/p>\n

As at least some readers will realize, the plaintiff in the case is the owner of Westlaw, one of the leading legal research platforms. As part of its offerings, Westlaw takes published judicial opinions and organizes those opinions and its \u201ceditorial content and annotations,\u201d (e.g., headnotes, under its \u201cKey Number System, a numerical taxonomy\u201d). Nothing new here to any lawyer. For its part, the defendant Ross tried to license Westlaw\u2019s content to train its AI-search tool for its new legal research search engine. But Westlaw refused, leading Ross to train its AI using \u201cBulk Memos\u201d that it purchased from a company called LegalEase. How were the Bulk Memos created? By having lawyers create questions based on Westlaw headnotes! Unsurprisingly, Thomson Reuters was not pleased and filed against Ross for copyright infringement.<\/p>\n

After some years of litigation, Thomson Reuters moved for summary judgment on two grounds: copyright infringement and that Ross\u2019s fair-use defense failed as a matter of law. That original motion was denied in large part and the case progressed toward a trial date last summer. As the court prepared for trial, however, it \u201cstudied the case materials more closely and realized that my prior summary-judgment ruling had not gone far enough. So I continued the trial and invited the parties to renew their summary judgment briefing.\u201d Based on that renewed briefing, as well as the court\u2019s painstaking review of \u201cthe Bulk Memo questions, headnotes, and opinions side by side,\u201d a different result was reached.\u00a0<\/p>\n

Concerning copyright infringement, the Court had previously found that \u201ca jury would need to decide whether the headnotes and Key Number System were original enough\u201d to qualify as copyrighted material. Upon further reflection of the seminal Supreme Court decision in <\/em>Feist<\/em>,<\/a> however, the Court decided that there was \u201cno genuine dispute that the headnotes and Key Number System clear Feist\u2019s minimal threshold for originality.\u201d First, the Court found that the headnotes represented an original compilation, but even further each headnote qualified as an \u201cindividual, copyrightable work.\u201d To get there, the Court analogized uncopyrightable judicial opinions as a block of raw marble from which the headnote sculptor, i.e., Westlaw, could exercise \u201ceditorial expression\u201d and create copyrightable works of value. Second, the Court applied similar reasoning to find that Westlaw\u2019s Key Number System met the originality standard as a matter of law. With those reconsidered positions in tow, the Court then decided whether a batch of 2,830 headnotes identified by Thomson Reuters infringed.\u00a0<\/p>\n

To start, the Court pointed to a concession from Ross\u2019s expert that the \u201cBulk Memo questions for this batch closely resemble the headnotes\u2019 text and that the headnotes differ significantly from the text of the judicial opinions\u201d for a large percentage of the batch now under review for evidence of actual copying. Then, the court \u201ccompared how similar each of the 2,830 Bulk Memo questions, headnotes, and judicial opinions are, one by one\u201d to see whether there was \u201cstrong circumstantial evidence of actual copying\u201d by LegalEase when they created the Bulk Memos later sold to Ross. After an effort of \u201cslogging through all 2,830 headnotes\u201d the court found on summary judgment that there was \u201cactual copying of 2,243\u201d headnotes in the Bulk Memos. With that finding in hand, it was simple for the court to also grant summary judgment on substantial similarity for that same batch of copied headnotes, or those \u201cheadnotes whose language very closely tracks the language of the Bulk Memo question but not the language of the case opinion.\u201d Left for trial were all the other disputed headnotes, as well as the determination of which of the 2,243 headnotes deemed infringed represented unexpired copyrights.\u00a0<\/p>\n

Making matters worse for Ross, the court made quick work of various Ross defenses, such as innocent infringement and copyright misuse. The court also reconsidered its prior 2023 opinion on the question of fair use, based on \u201cnew information and understanding.\u201d Finding first that \u201cfair use is a question for the judge, not the jury,\u201d the court found that Thomson Reuters had the better argument on the two most important of the four fair use factors, \u201cand on the overall balancing.\u201d On factor one, the court found that Ross\u2019s use of the copyrighted material was commercial use and not transformative, \u201cbecause it does not have a \u2018further purpose or different character\u2019 from Thomson Reuters\u2019s.\u201d Relevant to that finding was that Ross\u2019s AI is not generative \u2014 creating new content \u2014 but just \u201cspits back relevant judicial opinions that have already been written,\u201d just like Westlaw\u2019s headnotes and key number system is used for. Still, the fact that Ross\u2019s use of the copyrighted material did \u201cnot appear as part of the final product that Ross put forward to consumers\u201d merited further attention. But after distinguishing Ross\u2019s cited cases on \u201cintermediate copying\u201d in the software code context, the court found no fair use because Ross\u2019s use of the copyrighted material was not necessary to launch its research product. Accordingly, the use by Ross was not transformative and no longer a question for the jury as the court had previously concluded.<\/p>\n

Similarly, the court found that it had been wrong to leave for the jury the question of whether Ross had created \u201ca brand-new research platform that serves a different purpose than Westlaw.\u201d In relevant part, the court found that \u201c[e]ven taking all facts in favor of Ross, it meant to compete with Westlaw by developing a market substitute.\u201d While the public has an interest in accessing the law, here, legal opinions were already \u201cfreely available.\u201d Because there was \u201cnothing that Thomson Reuters created that Ross could not have created for itself or hired LegalEase to create for it without infringing Thomson Reuters\u2019s copyrights,\u201d factor four also went against Ross. And since both of the more important factors, one and four, favored Thomson Reuters, the court entered summary judgment against Ross\u2019s fair use defense.<\/p>\n

Ultimately, this decision has relevance for the wide swath of courts considering use of copyrighted material to train generative AI models, even as Bibas made clear that he was not considering a generative AI model in dealing with the case before him. We are waiting to see how the current crop of cases dealing with those questions will come out. For now, at least, we have some indication of how a wise judge would begin to arrive at the answers.<\/p>\n

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub<\/a>. Any topic suggestions or thoughts are most welcome.<\/p>\n

\n

Gaston Kroub lives in Brooklyn and is a founding partner of <\/strong><\/em>Kroub, Silbersher & Kolmykov PLLC<\/em><\/strong><\/a>, an intellectual property litigation boutique, and\u00a0<\/strong><\/em>Markman Advisors LLC<\/em><\/strong><\/a>, a leading consultancy on patent issues for the investment community. Gaston\u2019s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at\u00a0<\/strong><\/em>gkroub@kskiplaw.com\u00a0<\/em><\/strong><\/a>or follow him on Twitter:\u00a0<\/strong><\/em>@gkroub<\/em><\/strong><\/a>.<\/strong><\/em><\/p>\n

The post Sculpting A Copyright Do-Over<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

(Image via Getty) It is the rare judicial opinion, particularly in the IP arena, that starts with the court admitting that they got an earlier decision wrong. Penning the opinion? None other than the Third Circuit\u2019s Hon. Stephanos Bibas, sitting by designation in the District of Delaware. Widely (and rightly) hailed as one of the […]<\/p>\n","protected":false},"author":3,"featured_media":110234,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-110266","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/03\/intellectual-property-law-620x349-vKgVtf.jpeg?fit=620%2C349&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/110266","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=110266"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/110266\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/110234"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=110266"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=110266"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=110266"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}