Key copyright and AI ruling with broad implications for UK lawyers ...
The Thomson Reuters v ROSS Intelligence decision is worth a read for anyone interested in copyright and AI. It’s a US decision from a Federal Judge, which is important because Federal Courts often set precedents that can influence subsequent legal interpretations and decisions across the whole US. We are not US lawyers, but our thoughts from a UK perspective are below.
Thomson Reuters v ROSS Intelligence
In this case, Thomson Reuters sued a start-up AI competitor, ROSS Intelligence. ROSS had been developing a non-generative legal research AI tool. It sought a license from Thomson Reuters to use Westlaw, a legal research tool developed by Thomson Reuters. Thomson Reuters refused, and ROSS instead engaged LegalEase, who provided “Bulk Memos”. These memos had been created using headnotes from Westlaw. Thomson Reuters thought that these memos infringed and commenced proceedings against ROSS for copyright infringement of Westlaw’s 21,787 headnotes, 500 editorial decisions in various judicial opinions, and its Key Numbering System.
Both parties originally sought summary judgment in 2023. At that time, Judge Bibas refused it; he held that many critical facts still remained in dispute. However, this year, he revised that decision and held that ROSS was liable for direct copyright infringement in respect of 2,243 of those headnotes, and that its “fair use” defense failed. In his revised opinion, he held that the headnotes were protected by copyright and noted that the originality test for copyright subsistence in the US is an “extremely low” threshold.
Copyright subsistence in the UK and EU
In the UK and EU, copyright subsistence is also a low hurdle. The test, from Infopaq, is whether the work is a product of the author’s own intellectual creation. If that test is passed, the work is protected by copyright.
In the UK, Lord Justice Arnold summarized the test in THJ Systems Limited: it is a question of whether the author was able to make free and creative choices in the production of the work, “so as to stamp the work with their personal touch”.
Thomson Reuters v ROSS Intelligence judgment
The Federal Judge in the Reuters case reserved judgment on whether there had been direct copyright infringement of the Key Numbering System, the editorial decisions, and those headnotes that quoted judicial opinion verbatim (or near verbatim) for reasons of factual dispute. As for the remaining headnotes, Judge Bibas examined more than 3,000 of them and granted a partial summary judgment in favor of Reuters in respect of 2,243. He found that ROSS had actually copied those headnotes to such an extent that no reasonable jury could find otherwise.
Fair use defense
The most interesting part of the case from a UK perspective is the fair use defense. The UK does not have a fair use defense that would allow commercial text and data mining. It is, however, a key part of the defense to a lot of US actions.
In the Reuters case, Judge Bibas considered four factors relevant to whether the fair use defense applies:
- The use’s purpose and character
- The copyrighted work’s nature
- How much of the work was used and how substantial a part it was relative to the copyrighted work’s whole
- How Ross’s use affected the copyrighted work’s value or potential market
The law in this area is interesting because the policy considerations are difficult. Of course, rightsholders should be compensated appropriately; but it is also clear that everyone wants to be able to reap the benefits of generative AI. The emotive responses to the UK IPO’s recent AI and copyright consultation show how complex and difficult this area is. Finding the right balance is an ongoing challenge, but this case is interesting in articulating some key considerations that the US courts are examining.
