• by Wendy Davis , Yesterday

Thomson Reuters is urging an appeals court to leave in place a ruling that artificial intelligence company Ross Intelligence infringed copyright by training its legal research service on material published by Westlaw.

"Copying protectable expression to create a competing substitute isn’t innovation: it’s theft," Thomson Reuters argues in papers filed Wednesday with the 3rd Circuit Court of Appeals.

"This basic principle is as true in the AI context as it is in any other," the Westlaw owner adds.

The new paper comes in a battle dating to 2020, when Thomson Reuters sued Ross for allegedly training its legal research platform on Westlaw "headnotes" -- summaries of key points in judicial opinions.

The dispute could result in the first major appellate ruling addressing whether artificial intelligence companies are entitled to train their platforms on other publishers' material.

Thomson Reuters alleged in its complaint, filed in U.S. District Court in Delaware, that Ross “surreptitiously” obtained Westlaw's headnotes from a licensee, then drew on them to “rush out a competing product without having to spend the resources, creative energy, and time to create it itself.”

Ross argued the matter should be dismissed for several reasons. Among others, the company said it made fair use of the material.

In February, Judge Stephanos Bibas sided against Ross, ruling that the company wasn't protected by fair use principles because it used Westlaw's headnotes for the same purpose as Thomson Reuters, and aimed to compete with it.

Ross is appealing that ruling to the 3rd Circuit, and tech organizations as well as digital rights groups are backing the artificial intelligence company.

NetChoice and other tech groups argued in a friend-of-the-court brief that Ross's use of the headnotes was transformative because the headnotes enabled Ross to create a new natural language legal search engine.

The Electronic Frontier Foundation and others added that a ruling against Ross would go against the goals of copyright law.

"Prohibiting the use of paraphrased judicial holdings to build a new legal research tool is inconsistent with the central aim of copyright: promoting the creation of useful works for the public’s benefit," the digital rights groups argued.

Thomson Reuters counters that Ross used the headnotes in order to create "a commercial service that helps researchers find relevant law," adding that it "hurt the existing and potential markets for Westlaw in the process."

"Ross may want to invoke 'artificial intelligence,' but that is not a talisman," Thomson Reuters argues. "The district court rightfully dismissed Ross's fair use defense; it cannot apply in this scenario."

The 3rd Circuit hasn't yet set a date for oral arguments.