Judge Bibas rejects fair use defense of ROSS Intelligence and grants summary judgment on infringement (partially) to Thomson Reuters.
Stunning change from his prior opinion in 2023. In the prior opinion, Judge Bibas recognized a distinction between transformative intermediate copying to learn how to produce judicial opinion quotes versus copying to recreate Westlaw’s creative drafting:
“So whether the intermediate copying caselaw tells us that Ross’s use was transformative depends on the precise nature of Ross’s actions. It was transformative intermediate copying if Ross’s AI only studied the language patterns in the headnotes to learn how to produce judicial opinion quotes. But if Thomson Reuters is right that Ross used the untransformed text of headnotes to get its AI to replicate and reproduce the creative drafting done by Westlaw’s attorney-editors, then Ross’s comparisons to cases like Sega and Sony are not apt. Again, this is a material question of fact that the jury needs to decide.”
In today’s opinion, Judge Bibas rescinded this part of the prior opinion and found that intermediate copying didn’t apply here due to (i) lack of necessity in using (ii) computer code: “Here, though, there is no computer code whose underlying ideas can be reached only by copying their expression. The “copying is [not] reasonably necessary to achieve the user’s new purpose.” Warhol, 598 U.S. at 532.”
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[…] Circuit Judge Stephanos Bibas, sitting by designation in the District of Delaware, issued a ruling updating a previous summary judgment decision dismissing copyright infringement allegations made by […]