It’s useful to compare Judge Bibas’s fair use analysis of the purpose of the defendant ROSS’s use of Westlaw’s copyrighted headnotes for legal decisions.
Two things are apparent:
1. While Judge Bibas cautioned in 2023 about “over-reading” the Warhol decision, Judge Bibas in 2025 basically has read Warhol to apply in a way that eliminates the relevance of Google, another technology case, as being confined to computer programs.
2. While Judge Bibas in 2023 recognized a potential legitimate fair use purpose in developing a “wholly new” technology, even if competing to the plaintiff’s technology, Judge Bibas in 2025 has interpreted the scope of copyright to reach not just competing works of authorship, but “a competing legal research tool.” That is a very expansive view of what copyright can be used to control.
JUDGE BIBAS THEN
But Ross says its AI studied the headnotes and opinion quotes only to analyze language patterns, not to replicate Westlaw’s expression. So the translation was only a minor step in a broader, transformative use. See Sega, 977 F.2d at 1514–15, 1518– 19 (holding that, though programmers wrote down and translated Sega’s object code, these acts were a minor step towards a transformative use). If Ross’s characterization of its activities is accurate, it translated human language into something understandable by a computer as a step in the process of trying to develop a “wholly new” [quoting Google], albeit competing, product—a search tool that would produce highly relevant quotations from judicial opinions in response to natural language questions. This also means that Ross’s final product would not contain or output infringing material. Under Sega and Sony, this is transformative intermediate copying.
JUDGE BIBAS NOW
My prior opinion wrongly concluded that I had to send this factor to a jury. 694 F. Supp. 3d at 483–84. I based that conclusion on Sony and Sega. Since then, I have realized that the intermediate-copying cases (1) are computer-programming copying cases; and (2) depend in part on the need to copy to reach the underlying ideas. Neither is true here. Because of that, this case fits more neatly into the newer framework advanced by Warhol. I thus look to the broad purpose and character of Ross’s use. Ross took the headnotes to make it easier to develop a competing legal research tool. So Ross’s use is not transformative. Because the AI landscape is changing rapidly, I note for readers that only non-generative AI is before me today.
Download a PDF with clickable links to the 2 opinions:
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