Context: In 2020, ThomsonReuters sued artificial intelligence (AI) developer Ross Intelligence over alleged copyright infringement and tortious interference with contract. Following a trial in December 2024, Third Circuit Judge (and Trump appointee) Stephanos Bibas (who was sitting on the United States District Court for the District of Delaware by designation for the purpose of presiding over this landmark case) held that he could decide originality and fair use as a matter of law, ruling in ThomsonReuters’s favor (February 11, 2025 ai fray article). At the time, this decision constituted the most important victory of a copyright holder over an AI provider. In March, Ross moved for interlocutory appeal under 28 U.S.C. § 1292(b) and to stay the trial pending this Court’s review.
What’s new: Ross has filed a petition for the certification of its interlocutory appeal in the U.S. Court of Appeals for the Third Circuit. Though he was “confident” in his February opinion, Judge Bibas recognized that there “are substantial grounds for a difference of opinion on controlling legal issues in this case.” Because these “issues have the potential to change the shape of [the] trial,” he promptly granted Ross’s motion on April 4, 2025. Ross has asked the Third Circuit to reconsider Judge Bibas’s conclusions by addressing two questions (April 14, 2025 petition (PDF)):
- Do the headnotes fail the Copyright Act’s originality requirement because the notes lack “creative spark”?
- Was Ross’s use of the headnotes transformative, or otherwise fair?
Direct impact: The outcome of this appeal will have a major impact on the overall case. Ross has argued that, should the court grant an interlocutory appeal, this will materially advance the dispute because the trial would be “simplified by the elimination of complex issues”. Additionally, it has argued that resolving these “critically important” questions on originality and fair use would serve the public interest.
Wider ramifications: This copyright enforcement case is just one of hundreds against AI providers across the world (January 8, 2025 ai fray article). In the U.S. (January 24, 2024 ai fray article) and Canada (December 3, 2024 ai fray article), the “fair use” (or, as known under Canada’s Copyright Act “, fair dealing”) defense is particularly key, so many will be keen to see the outcome of this appeal.
After ThomsonReuters filed its suit in 2020, Ross was forced to shut down its operations (not an injunction, but it could not get funded or acquired). It then filed a counterclaim requesting declaratory judgments on copyright invalidity, non-infringement, and no tortious interference with contract. In its original arguments, the company stated that its business had one goal:
“To reduce the cost of legal research and increase the accessibility of the law by directing the public straight to the language contained in judicial opinions, not to lists of cases or secondary sources.”
Ross provides an AI search engine in which a user can ask it a question, the system searches across millions of judicial opinions (purchased from Casemaker), and then the user is shown a list of passages from relevant judicial opinions. ThomsonReuters alleged that Ross’s AI system was provided with ThomsonReuters-owned Westlaw headnotes and content, as well as its Key Number System to create this list.
In its petition for interlocutory review on Monday, Ross argued that the district court got the underlying order wrong, but it had been correct in recognizing that this case satisfies all of the following requirements on each of the two questions:
- The originality and fair use questions present controlling questions of law.
- There are substantial grounds for differences of opinion on the originality and fair use questions: in particular, Ross argued, the district court’s opinion in September, 2023 and its second opinion in February, 2024 vehemently disagree over whether Ross’s use is transformative. While the first opinion credited Ross’s use of AI to translate “human language into something understandable by a computer as a step in the process of trying to develop a ‘wholly new,’ albeit competing, product”, the second opinion disclaimed any possibility of transformative intermediate copying.
- The court’s resolution of the novel copyright issues (originality, fair use), materially advances the litigation: in its decision in February, the district court asked a jury to resolve myriad copyright issues that are necessary only if Westlaw’s headnotes are original and Ross’s use of the headnotes is unfair. However, if the court reverses on either ground, then jury selection, listening to days of testimony, hours (maybe days) of deliberation, and calculating damages are “wasted”.
- Resolving these critically important questions would serve the public interest: Ross claims that the question of how copyright law applies to AI innovations is “one of the most, if not the most, fundamental legal question of today”:
“The relationship between AI and national security currently commands the Executive Branch’s attention. That is why it has recently invited public comment on the development of an Artificial Intelligence Action Plan. Some commenters have also shown that applying the “fair use doctrine to AI” is a “matter of national security.”
Ross added:
“Though this court’s signoff is necessary to protect its docket from becoming overcrowded with piecemeal or minor litigation, the certified questions are of unique importance that raise issues of fundamental importance about artificial intelligence, copyright, and national security that are likely to arise time and again.”
Counsel
Ross Intelligence is being represented by White & Case’s Mark S. Davies, Anna B. Naydonov, Kufere J. Laing, Yar R. Chaikovsky, and Andy LeGolvan, as well as Crowell & Moring LLP’s Warrington S. Parker III, and Jacob Canter, and Pillsbury Winthrop Shaw Pittman LLP’s Anne M. Voigts, Ranjini Acharya, and Kayvan Ghaffari.
Meanwhile, a team at Morris, Nichols, Arsht & Tunnell LLP – Jack B. Blumenfeld and Michael J. Flynn – are joined by a team at Kirkland & Ellis LLP – Dale M. Cendali, Joshua L. Simmons, Yungmoon Chang and Miranda D. Means – in representing ThomsonReuters.