With the first trial in an AI copyright lawsuit set only 2 weeks away (on Monday, Aug. 26), Judge Bibas issued some major pretrial rulings.
Jury to determine copyrightability of headnotes
First, he denied ROSS Intelligence’s request to have the court filter out allegedly uncopyrightable headnotes of West added to their case reports. Judge Bibas explained that the combination of various headnotes might be a copyrightable selection and arrangement (if original), and that ROSS’s proffered list included some headnotes that could be copyrightable in the jury’s view. Therefore, the court “cannot filter out the group of headnotes Ross listed.”
Judge Bibas explained: “At this time, I will not filter out any headnotes as uncopyrightable for two separate reasons. First, there is the possibility that a jury could find sufficient creativity in Plaintiffs’ selection and arrangement of the headnotes to establish a valid copyright. Second, even if the only consideration for copyrightability is whether the headnote text is the same as judicial opinion text, Ross’s list of headnotes included some headnotes that sufficiently differ from the text of judicial opinions that a reasonable jury could find meaningful change and creativity sufficient to establish a valid copyright. So I cannot filter out the group of headnotes Ross listed.”
The first point seems reason enough to allow the entirety of headnotes to go before the jury. One case might have, for example, 10% uncopyrightable headnotes and 90% copyrightable headnotes, and, as Judge Bibas suggests, a jury could find some originality in the selection and arrangement of the entire set of them for a case.
ROSS Intelligence allowed to present evidence related to the public benefit of generative AI, but must explain if different from its own technology and how relevant
The bigger ruling was Judge Bibas’s allowance of ROSS Intelligence to present evidence at trial related to the public benefit of generative AI.
Judge Bibas ruled: “(1) I DENY Thomson Reuters’s motion to exclude testimony, evidence, or argument concerning the public benefit of generative artificial intelligence. D.I. 619 -14-1. But if Ross chooses to mention generative artificial intelligence, I require it to clarify the extent to which its technology differs from generative AI and then explain why generative AI is relevant.”
The public benefit of a technology (or the defendant’s use of a work for the development of a technology) is relevant to fair use (Factor 4), as explained by Justice Breyer in Google v. Oracle (“[W]e must take into account the public benefits the copying will likely produce. Are those benefits, for example, related to copyright’s concern for the creative production of new expression? Are they comparatively important, or unimportant, when compared with dollar amounts likely lost (taking into account as well the nature of the source of the loss)? Cf. MCA, INC. v. Wilson, 677
F. 2d 180, 183 (CA2 1981) (calling for a balancing of public benefits and losses to copyright owner under this factor).”).
This is an important ruling. It may be the most important pre-trial ruling so far.
In a recent paper, my co-author Andrew Moshirnia and I strongly recommend that courts allow evidence of the potential public benefit of technology, which is not only relevant to Factor 4 of fair use as Justice Breyer explained, but also a possible way to minimize people’s own personal bias against AI. Cognitive science research has shown that people’s implicit biases may be reduced after they are exposed to counter examples that are contrary to their implicit bias.
Other rulings
Judge Bibas made other rulings:
” (2) I GRANT IN PART and DENY IN PART Thomson Reuters’s motion to exclude testimony, evidence, or argument regarding or referencing Ross’s antitrust counterclaims. D.I. 619 -14-2. Ross may not mention the fact that it has filed antitrust counterclaims against Thomson Reuters. But Ross is permitted to mention Thomson Reuterss market position to the extent relevant to any of the copyright-specific issues at this trial. (3) I GRANT Thomson Reuters’s motion to exclude testimony, evidence, or argument regarding Ross purportedly ceasing operations due to this lawsuit. D.I. 619 -14-3. But I do not prevent Ross from discussing its past financial health if Thomson Reuters opens that door by maligning Ross’s financial success. (4) I DENY Rosss motion to exclude any reference to Westlaw selling AI training data. D.I. 619 -15-1. (5) I DENY Ross’s motion to exclude evidence or testimony regarding Charles von Simson. D.I. 619 -15-2. (6) I DENY Rosss motion to exclude evidence or testimony regarding Jonathan Krein’s undisclosed opinions.”