ROSS Intelligence filed a Rule 28(j) letter to inform the Third Circuit panel in its appeal in Thomson Reuters v. ROSS Intelligence of an important new Third Circuit decision on fair use (at the preliminary injunction stage) handed down on April 7.
That decision in American Society for Testing & Materials v. UpCodes, Inc. involves a for-profit, AI-native startup company‘s republication of building codes that some jurisdictions have adopted as law. The opinion is below.
The Third Circuit agreed with the district court that UpCodes is likely to prevail on its fair use defense in copying and then republishing the building codes to increase the public’s access to the them, which are a part of the law.
Here’s an excerpt from the Third Circuit’s opinion:
But it is pertinent in a case implicating public access to the law, which all citizens are “presumed to know.” Georgia, 590 U.S. at 265 (citation modified). We assess how likely public benefits balance against likely economic harm, paying special attention to implications for copyright’s core concern with “the creative production of new expression.” Google, 593 U.S. at 35. In ASTM II, the D.C. Circuit noted the “substantial public benefits of free and easy access to the law.” 82 F.4th at 1271. The District Court followed suit, noting that UpCodes’ copying would mitigate notice and accountability problems associated with incorporation by reference and provide “practical value” to journalists, union members, and legal organizations. JA36.
Third Circuit in American Society for Testing & Materials v. Upcodes, Inc.,
Enhanced public access to the law is a clear and significant public benefit. In this context, enhanced access benefits not only regulated entities that must comply with a building code, but also building residents protected by the code, government entities enforcing its requirements, press members reporting on such enforcement, and members of the public who wish to debate or change the law.
It’s hard to imagine a more helpful new authority in the very same circuit as ROSS Intelligence’s appeal. Like Upcodes, ROSS Intelligence is an AI startup seeking to increase the public’s access and understanding of the law. ROSS attempted to do so by providing AI search engine for people to find answers to legal questions with direct quotes of passages from judicial opinions.
Judicial opinions, like the building codes that are the law in UpCodes, are uncopyrightable. One of the questions in ROSS is whether it was fair use for it to use some West headnotes (typically a sentence of a discrete point) of judicial opinions to train ROSS’s model. See below for ROSS’s attorney’s explanation for how the Third Circuit’s decision in UpCodes supports a finding of fair use in ROSS’s case.
DOWNLOAD THE THIRD CIRCUIT DECISION
DOWNLOAD THE LETTER OF ROSS
Disclosure: I was part of a group of law professors who filed an amici brief in support of ROSS Intelligence.