Today, ROSS Intelligence announced it will seek Supreme Court review of the Third Circuit’s decision rejecting fair use in ROSS’s training of its AI model using memos containing Westlaw headnotes. This is no surprise. All eyes will be on the position of the U.S. Solicitor General.
In its opinion issued this week, the Third Circuit made note of the fact that the United States did not file a Statement of Interest in this case but did so in the OpenAI MDL Litigation: “In any event, the DOJ’s filing in In re: OpenAI demonstrates that the DOJ is tracking these issues and knows how to assert its interests, but the DOJ notably did not do so here.” Op. p. 17. Given that Thomson Reuters v. ROSS Intelligence will be the Supreme Court’s first encounter in any copyright case involving AI training, it seems highly probable that the Solicitor General will be asked by the Supreme Court (in what’s called CSVG) to provide the view of the United States or the SG will do so on its own initiative. But it’s too hard to predict what the SG’s view is.
A big issue no doubt will be whether the SG agrees with the Third Circuit’s distinguishing of generative AI models such as in Bartz, Kadrey, and OpenAI from the model involved in this case, where the outputs of the AI search tool was not new text (but instead quotes from judicial opinions). Op. p. 17, n.17 (“The concerns raised in that separate case do not apply here. The DOJ relied on Bartz v. Anthropic PBC, 787 F. Supp. 3d 1007, 1014 (N.D. Cal. 2025) to contend that training an AI large language model, which can “generate original responses,” is a transformative use. DOJ Statement at 10; see also Kadrey v. Meta Platforms, Inc., 788 F. Supp. 3d 1026, 1034 (N.D. Cal. 2025) (exploring whether generative AI programs transformatively use training materials). Unlike the AI models in Bartz and In re: OpenAI, ROSS’s AI platform cannot generate original expression, and the evidence here supports the opposite conclusion about transformativeness. The DOJ also argued that the large language model training in OpenAI did not result in “substitutive competition.” DOJ Statement at 13 (citation modified).”).
Here’s ROSS Intelligence’s statement today:
We intend to seek review by the Supreme Court to obtain much-needed clarity on these issues, which carry significant implications for innovation and the development of AI technologies.
Yar Chaikovsky, partner at white and case, on behalf of ROSS Intelligence
Related Story:
