Using Westlaw headnotes to train competing AI legal research program isn't fair use, judge rules
An appeals judge has changed his mind and partly ruled for Thomson Reuters in its lawsuit claiming that a legal research startup committed copyright infringement by training its artificial intelligence program using Westlaw headnotes. (Image from Shutterstock)
An appeals judge sitting by designation changed his mind Tuesday and partly ruled for Thomson Reuters in its lawsuit claiming that a legal research startup committed copyright infringement by training its artificial intelligence program using Westlaw headnotes.
In a Feb. 11 opinion, U.S. Circuit Judge Stephanos Bibas of the 3rd U.S. Circuit Court of Appeals at Philadelphia ruled that Ross Intelligence’s use of 2,243 headnotes constituted direct copyright infringement, and the copying did not constitute fair use. Bibas was sitting by designation in the federal court for the District of Delaware.
“A smart man knows when he is right; a wise man knows when he is wrong,” Bibas wrote. “Wisdom does not always find me, so I try to embrace it when it does—even if it comes late, as it did here. I thus revise my 2023 summary judgment opinion and order in this case.”
Publications covering the decision include Law.com, LawSites, Law360 and Reuters. The Volokh Conspiracy noted the opinion.
Westlaw had refused to license its headnotes to Ross Intelligence because it was a competitor. Ross Intelligence then made a deal with another company to license its “Bulk Memos” for training, which were written using Westlaw headnotes.
In the 2023 opinion, Bibas said, he “largely denied” Thomson Reuters’ motions for summary judgment on infringement and fair use. In the new opinion, Bibas found infringement for 2,243 headnotes out of 21,787 for which Thomson Reuters claimed infringement.
“The rest of the headnotes must go to trial,” he wrote.
On the fair use question, Bibas weighed four factors and concluded that the most important ones—Ross Intelligence’s commercial use of the material and its intent to compete with Westlaw—favor Thomson Reuters.
In his 2023 opinion, Bibas said the degree of overlap between headnotes and the case opinion determines whether they are entitled to copyright protection. But Bibas said he now thinks that a headnote can “introduce creativity by distilling, synthesizing or explaining part of an opinion and thus be copyrightable.”
Bibas said he reached that conclusion when he analogized the headnote writer’s editorial judgment “to that of a sculptor.”
“A block of raw marble, like a judicial opinion, is not copyrightable. Yet a sculptor creates a sculpture by choosing what to cut away and what to leave in place. That sculpture is copyrightable,” Bibas wrote.
“So, too, even a headnote taken verbatim from an opinion is a carefully chosen fraction of the whole. Identifying which words matter and chiseling away the surrounding mass expresses the editor’s idea about what the important point of law from the opinion is. That editorial expression has enough ‘creative spark’ to be original.”
Some issues remain to be decided at trial, LawSites reports. One issue is whether some of Thomson Reuters’ copyrights have expired or were “untimely created,” Bibas said. Another is whether Ross Intelligence used Westlaw’s key number system and how.
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