Thomson Reuters' AI copyright win blows a hole in AI industry’s fair use defense 

As Wired notes, the judgment blows a hole in the AI industry’s fair use defense. The industry has used fair use (the same parody laws that birthed “Dumb Starbucks“) to claim that what they do, e.g., scraping original information from the internet and spitting out a summary, is legal. However, the judge found that it was not substantially transformative, meaning it had no “further purpose or different character” from its commercial competitor, Westlaw.

“There is nothing that Thomson Reuters created that Ross could not have created for itself,” Bibas continues, “or hired LegalEase to create for it without infringing Thomson Reuters’s copyrights.”

The case mostly came down to “headnotes,” which summarize and organize key points of law through its Key Number System. Judicial opinions aren’t copyrighted, but people made Westlaw’s headnotes. Ross created a search engine using AI and asked Westlaw to license content to train the system. When Westlaw refused, Ross went to another competitor, LegalEase, for training data. LegalEase gave the lawyers doing the training “a guide explaining how to create training data using Westlaw headnotes” while telling them not to copy and paste the information. The judge found that Ross infringed thousands of headnotes. Likening the situation to a sculpture, Judge Bibas writes that “a block of raw marble […] is not copyrightable.” However, a sculptor chiseling the marble into a sculpture is. A headnote “is a carefully chosen fraction of the whole. Identifying which words matter and chiseling away the surrounding mass express the editor’s idea” about what’s important. “Editorial expression has enough ‘creative spark’ to be original.”

The case is likely the first significant blow to the AI industry’s legal war against copyright because the fair use defense would be useless. There are dozens of such cases in the U.S. and around the world at the moment. For its part, Ross Intelligence shut down in 2021 because of litigation costs. Unfortunately, the other companies currently trying to get users to use unreliable, hallucinating computer programs have all the money in the world and seemingly control the U.S. government.