Judge Bibas just issued an order providing guidance for the fair use and other issues to be discussed on December 5 at the hearing for summary judgment motions.
ORDER:
ORAL ORDER: The summary judgment hearing will be held beginning at 10 a.m. EST on December 5, 2024, in the James A. Byrne U.S. Courthouse, Courtroom 10-B, in Philadelphia, PA. I advise counsel that argument will focus on
(1) the first fair use factor, ‘the purpose and character of the use’;
(2) the fourth fair use factor, “the effect of the use upon the potential market for or value of the copyrighted work”;
(3) the type of copyright (compilation, derivative, creative) that Thomson Reuters holds in each disputed part of Westlaw (headnotes, Key Number System) and any implications for the strength of copyright protection;
(4) whether each headnote must be evaluated individually, or whether findings about individual or groups of headnotes can be extrapolated to the full set of headnotes;
(5) the circumstances, with citations to caselaw, under which it is appropriate for a judge to resolve substantial similarity at summary judgment rather than leaving it to a jury;
(6) record citations showing either no dispute of material fact or a genuine dispute of material fact as to actual copying, for each category of headnotes mentioned in the briefing, and including each alleged step in the chain (alleged copying by LegalEase, placement of the copied material into the Bulk Memos, use of the Bulk Memos by Ross); and
(7) the relationship, if any, between Fed. R. Civ. P. 54(b) and the law of the case doctrine, as the Court is considering the extent to rely upon or revisit its prior summary judgment opinion.
On each topic, Thomson Reuters will go first, followed by Ross. Counsel should come prepared with three minutes of material on each of these topics, after which counsel should be prepared to answer questions. Additional topics may also be covered. Counsel should also come prepared to discuss their availability for potential trial in 2025. D.I. 722 . Ordered by Judge Stephanos Bibas on 11/22/2024.
