• by Wendy Davis , 3 hours ago

Artificial intelligence company Ross Intelligence is pressing a federal appellate court to reverse a ruling that it infringed copyright by training its legal research service on material published by Thomson Reuters' Westlaw.

In papers filed last week with the 3rd Circuit Court of Appeals, Ross reiterates its main arguments -- including that it made fair use of Westlaw's "headnotes," which summarize key points in judicial opinions.

Ross writes that its use of the headnotes "facilitated radical technological advances by using deep learning techniques that trained its search engine to understand and answer a legal researcher’s question."

The new papers come in a legal fight that began in 2020, when Thomson Reuters sued Ross for copyright infringement. Thomson Reuters alleged 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.”

In February, Judge Stephanos Bibas in U.S. District Court in Delaware wided with Thomson Reuters, ruling that Ross 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 now appealing that ruling to the 3rd Circuit. The battle could result in the first major appellate ruling addressing whether artificial intelligence companies can legally train their platforms on other publishers' material.

The high-profile dispute has drawn interest from a wide range of outside groups. Tech organizations including NetChoice and digital rights groups including the Electronic Frontier Foundation filed friend-of-the-court briefs backing Ross.

The tech groups specifically argued that Ross's use of the headnotes was transformative -- a key factor courts consider when evaluating fair use -- because the headnotes helped Ross to create a new natural language search engine.

But the movie and music industry as well as book publishers, which weighed in on Thomson Reuters' side.

"As a shortcut in the process of creating a legal research product that would compete directly with plaintiffs’ Westlaw tool, defendant copied Westlaw headnotes and put them to a use indistinguishable from plaintiffs’ use," Disney and other studios argued in their friend-of-the-court brief.

Thomson Reuters last month urged the 3rd Circuit to uphold the finding against Ross, arguing that the artificial intelligence company used the headnotes to create a commercial service that hurts the markets for Westlaw.

"Ross may want to invoke 'artificial intelligence,' but that is not a talisman," Thomson Reuters argued in its written brief.

Ross counters in its new papers that Thomson Reuters is attempting to use copyright law to stifle competition.

Thomson Reuters' argument "threatens to transform copyright protection into business model protection," Ross argues.

Ross contends its system "produced judicial opinions, not headnotes, or Westlaw content," adding there is no evidence that its product was considered a substitute for Westlaw's headnotes

"Ross's model did not output headnotes," the company argues, elaborating that its service "is an entirely new product."

The artificial intelligence company adds that some of its customers also purchased Westlaw -- including that some customers needed Westlaw's headnotes.

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