Thomson Reuters submitted its reply to ROSS Intelligence’s 28(j) letter of supplemental authority based on the Third Circuit’s recent fair use decision in American Society for Testing & Materials v. UpCodes, Inc. involving a for-profit, AI-native startup company‘s republication of building codes that some jurisdictions have adopted as law.
Despite some salient factual similarities, Thomson Reuters argues that UpCodes is distinguishable from the facts in ROSS:
We will have to see what the Third Circuit thinks, with the oral argument scheduled for June 11.
My own take: the Third Circuit has had relatively few fair use cases to speak of. That it just had a new fair use case involving an AI-native startup whose platform enhances the public’s access to the law (here, in the form of building codes, including non-mandatory commentary) is fortuitous for ROSS Intelligence, an AI-native startup whose AI search engine enhances the public’s access to the law (there, in the form of judicial decisions).
Of all the potential fair use decisions to come down, UpCodes has to involve one of the more similar fact patterns to ROSS. Fair use cases in legal research tools are probably rare. That the Third Circuit will be deciding two in that category within the same year is almost unbelievable, probably a million to one chances.
Disclosure: I was part of a group of law professors who filed an amici brief in support of ROSS Intelligence.
DOWNLOAD THOMSON REUTERS’ LETTER
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