A lawsuit involving media company Thomson Reuters and AI start-up Ross Intelligence (Ross) must go to jury trial, a judge in a Delaware district court has ruled.

Thomson Reuters alleges that San Francisco-based Ross copied content from its well known legal research platform Westlaw, in particular its “headnotes” – short summaries of points of law that appear in the opinion, to help train its competing AI-based training platform.

In a district court in Delaware on 25 September, Circuit Judge Stephanos Bibas denied both Ross’s and Thomson Reuters’ motions for summary judgment (with small exceptions). He said it was “not my role at summary judgment to sort through the evidence and tidy these factual messes. It is the jury’s role at trial.”

This is one of a number of infringement lawsuits stemming from the use of copyrighted material to train AI data sets. Recently many authors and performers including Sarah Silverman, Game of Thrones author George R R  Martin and crime writer John Grisham have filed similar suits against Facebook owner Meta and ChatGPT creator OpenAI.

Ross had tried to get a licence to use Westlaw, but Thomson Reuters does not allow users to use Westlaw to develop a competing platform. Ross then hired LegalEase as a third party. Thomson Reuters alleges that Ross copied protected aspects of Westlaw, both directly and indirectly through LegalEase.

Judge Bibas noted that the core of the suit stemmed from the ‘bulk memo project’. The memo was based on legal questions and answers. Thomson Reuters says the questions were essentially headnotes with question marks at the end. The questions, Ross said, were meant to be those “that a lawyer would ask”, and the answers were direct quotations from legal opinions. The bulk memo project produced about 25,000 question and answer sets.

Thomson Reuters contends that all 25,000 are copies and has accused Ross of copyright infringement on 2,830 of them. It says LegalEase’s copying of those 2,830 is undisputed because Ross’s own expert admitted it.

In his opinion, the judge addresses five summary judgment motions. Thomson Reuters had moved for summary judgment on its copyright infringement claim (limited to the 2,830 memos mentioned), and both sides had moved for summary judgment on Ross’s fair use defence. Thomson Reuters has also moved for summary judgment on its tortious-interference-with-contract claim, and Ross had counter-moved on its preemption defence to that claim.

Westlaw has a registered copyright on its “original and revised text and compilation of legal material”, which includes its headnotes and key number system.

The judge said that Ross “bets a good chunk of its infringement defence on Westlaw’s being registered as a compilation”. Ross’s theory is this: because Westlaw has just one copyright registration, comprising hundreds of thousands of headnotes and key numbers, copying a mere few thousand is not enough for infringement. 

“Ross’s gamble does not pay off. A copyright in a compilation extends to the copyrightable pieces of that compilation,” he said.

In terms of Ross’ fair use defence and the factors to consider, the judge said that Ross’s uses were undoubtedly commercial and one of its goals was to compete with Westlaw. Thomson Reuters contends that this commercial use weighs heavily against finding fair use.

Ross also contends it transformed the Westlaw headnotes beyond recognition. But Thomson believed Ross used the untransformed text of headnotes to get its AI to replicate and reproduce the creative drafting done by Westlaw’s attorney-editors. The judge believes these questions need to be considered by a jury trial.

Finally, “we must take into account the public benefits the copying will likely produce”, Judge Bibas noted.

“Deciding whether the public’s interest is better served by protecting a creator or a copier is perilous, and an uncomfortable position for a court,” he added.

Bibas also said he could not decide whether a ruling for Ross or Thomson Reuters would best serve the public interest. “Here, we run into a hotly debated question: Is it in the public benefit to allow AI to be trained with copyrighted material?”

Ultimately the questions will be considered by a jury trial, with the date as yet undecided.

Tim Wright, a technology partner at UK law firm Fladgate, pointed out that even though Ross said it shut down its platform in January 2021, accusing Thomson Reuters of using litigation as a weapon against it, the start-up now faces a jury trial in the Delaware court. 

He continued: “Although a US case, which will be determined on its own unique facts and will not be binding in other jurisdictions, the case may prove to be important as the first such AI copyright case to be heard before the courts, and will help determine the extent to which the proprietor of information in a database, protected behind a firewall, can commercialise that information to the exclusion of others.”

Beatriz San Martin, IP partner at Arnold & Porter in London, commented: “It may be that this case – concerning a natural language search engine – becomes a leading decision for the approach to be adopted by US courts when considering whether and how copyright may be infringed by AI systems.”

She added: “The scope of copyright fair use defences in the US are broader than defences or exceptions to copyright infringement under English law – although the recent Andy Warhol Supreme Court decision has called into question the scope of the US fair use defence for transformative works where the use is of commercial nature.” 

Thomson Reuters is represented by Jack Blumenfeld and Michael Flynn of Morris Nichols Arsht & Tunnell (Delaware) and Dale Cendali, Eric Loverro and Joshua Simmons of Kirkland & Ellis (New York).

Ross Intelligence is represented by David Moore, Bindu Palapura and Andrew Brown of Potter Anderson & Corroon (Delaware); Gabriel Ramsey, Warrington Parker, Joachim Steinberg, Jacob Canter, Christopher Banks, Shira Liu, Margaux Poueymirou and Anna Saber of Crowell & Moring (San Francisco); and Mark Klapow, Lisa Kimmel and Crinesha Berry of Crowell & Moring (Washington DC).