Thomson Reuters, which owns Westlaw, a legal research platform, sought to recover from an AI startup, Ross, by alleging that Ross trained its AI on copies of Westlaw headnotes. Ross contracted with LegalEase, a legal-research company to conduct a Bulk Memo project that produced 25,000 question-and-answer sets with assistance of a text-scraping bot that accessed Westlaw. The LegalEase memos were then converted into training data by Ross. Thomson Reuters argued that the questions portions of Bulk Memo were essentially copies of headnotes.

On September 25, 2023, Judge Stephanos Bibas denied summary judgment and ruled the case to proceed to trial. Judge Bibas rejected Ross’s theory that its use of a portion of the large compilation was not enough to be infringing. Whether the headnotes themselves met the originality threshold to merit copyright protection is a factual issue left to the jury to determine. This issue on protected expressions will shape the theories of infringement liability.

In finding that the fair use determination should go to a jury, Judge Bibas declined to overread a recent fair use rulings in Andy Warhol Foundation v. Goldsmith, in which the Supreme Court heavily weighed commercial use to rule against fair use. Instead, he emphasized transformativeness and suggested that Ross may prevail in its fair use defense if factual determination supported that its use was transformative intermediate copying. Furthermore, he noted that the nature of Westlaw’s Key Number System and headnotes gravitate away from the core of copyright protection and may favor fair use, but the decisions on each factor will have to wait until trial.