IP Law Daily, COPYRIGHT—D. Del.: In unexpected reversal, court grants summary judgment to Thomson Reuters over legal search platform’s use of Westlaw headnotes, (Feb 11, 2025)

By Deirdre Kennedy, J.D.

Contrary to its prior decision, the court found that Westlaw’s case headnotes were sufficiently original for copyright protection and that Ross Intelligence unlawfully copied some of the headnotes in training its AI research software.

In revising a 2023 summary judgment opinion and order in a case brought by Thomson Reuters over legal start-up Ross Intelligence’s copying of Westlaw’s copyrighted case headnotes and key numbering system in training its artificial intelligence research platform, the federal district court in Wilmington, Delaware, has granted partial summary judgment to Thomson Reuters. The court determined that Westlaw’s headnotes were original enough to be copyrightable, that Ross as a matter of law unlawfully copied some of the headnotes, and that Ross’s fair use and other defenses were unavailing. A jury would have to decide the remining issues in the case (Thomson Reuters Enterprise Centre GmbH v. Ross Intelligence Inc., No. 1:20-cv-00613-SB (D. Del. Feb. 11, 2025)).

Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. own and operate Westlaw, a legal search platform. In addition to containing compilations of case law, statutes, and other government documents, Westlaw contains content authored by West employees that includes, among other things, Westlaw headnotes that summarize issues discussed in cases and the Westlaw Key Number System (WKNS) that organizes and classifies the law into topics and key numbers.

Ross Intelligence is a legal-research industry upstart. It sought to create a “natural language search engine” using machine learning and artificial intelligence. It wanted to “avoid human intermediated materials.” Users would enter questions and its search engine would spit out quotations from judicial opinions. To leverage machine learning, Ross needed legal material to train the machine. Ross turned to a third-party legal-research company, LegalEase Solutions. The resulting “Bulk Memo Project” produced about 25,000 question-and-answer sets. Ross says it converted the LegalEase memos into usable machine-learning training data. Thomson Reuters filed suit against Ross in 2020, asserting claims for direct, contributory, and vicarious copyright infringement and tortious interference with contractual relations. The court entered its original summary judgment opinion on September 25, 2023. Though Thomson Reuters contends that all 25,000 are copies, it moved for summary judgment on just 2,830. Both sides moved for summary judgment on Ross’s fair-use defense.

Direct copyright infringement. Thomson Reuters alleged that Ross directly infringed its copyrights. To show that, Thomson Reuters had to show ownership of a valid copyright and that Ross copied protectable elements of the copyrighted work. The second element requires showing both that Ross actually copied the work and that its copy was substantially similar to the protected work.

Thomson Reuters showed that it owned a valid compilation copyright. But even if Thomson Reuters was entitled to a presumption of validity because of the copyright registrations, Ross could rebut the presumption by showing that the works were not original. The court previously thought that originality “depended on how much the headnotes overlapped with the uncopyrightable text of opinions.” Upon reconsideration, the court explained that the originality threshold is “extremely low,” requiring only “some minimal degree of creativity …. some creative spark.” The key question, then, became whether the work was original, not how much effort went into developing it.

Accordingly, the court now found no genuine dispute that the Westlaw headnotes and Key Number System cleared the minimal threshold for originality. A headnote can introduce creativity by distilling, synthesizing, or explaining part of an opinion, and thus be copyrightable. (This is in contrast to the court’s 2023 summary judgment opinion in which it viewed the degree of overlap between the headnote text and the case opinion text as dispositive of originality).

The court further found that there was no genuine issue of material fact about the Key Number System’s originality. Even if “most of the organization decisions are made by a rote computer program and the high-level topics largely track common doctrinal topics taught as law school courses,” as alleged by Ross, it still has the minimum “spark” of originality. Therefore, the court granted summary judgment for Thomson Reuters on whether the headnotes and the Key Number System were original enough to prevent Ross from rebutting any presumption of validity.

Copying of original elements. In considering whether there was “copying of constituent elements of the work that are original,” the court turned to whether Thomson Reuters proved both (a) actual copying and (b) substantial similarity. The court considered only the batch of 2,830 headnotes identified by Thomson Reuters, leaving the other 5,367 for trial. Having slogged through all 2,830 headnotes, the court granted summary judgment to Thomson Reuters on actual copying, finding actual copying of 2,243. The court granted summary judgment only on the headnotes for which actual copying was so obvious that no reasonable jury could find otherwise, and only on the headnotes whose language very closely tracked the language of the Bulk Memo question but not the language of the case opinion. The rest of the headnotes must go to trial on the issue of copying. The court did not grant summary judgment to Ross on any headnotes because there were none for which it was confident that a reasonable jury could not find infringement.

Ross’s defenses to copyright infringement fail. The court found none of Ross’s possible defenses to hold water, and therefore rejected them all. The court explained that innocent infringement does not limit liability, just damages. But the limit does not apply when the infringed work bears a copyright notice, as Westlaw’s headnotes do.

Copyright misuse does not apply either, the court held. Ross claimed that Thomson Reuters misused its copyright, which is a defense when a copyright holder weaponizes the copyright against the public interest, typically for “anti-competitive behavior.” But Ross did not show that Thomson Reuters misused its copyrights to stifle competition.

The court also found Ross’ merger defense to be inapt, and that the scenes à faire defense did not fit.

Fair-use defense. In the court’s 2023 decision, it denied summary judgment on fair use, but with new information and understanding, the court now vacated those sections of the order and its accompanying opinion addressing fair use. Fair use is an affirmative defense, so Ross bore the burden of proof.

First, the court considered the purpose and character of Ross’s use, looking mainly at whether it was commercial and whether it was transformative. Ross admits that it’s use of the copyrighted material was commercial, and the court found that its use is not transformative because it did not have a “further purpose or different character” from Thomson Reuters.

Second, the court asked about the nature of the original work, including the degree of creativity inherent to the work. The court noted that while Westlaw’s material had more than the minimal spark of originality required for copyright validity, that creativity was less than that of a novelist or artist drafting a work from scratch. Further, the Key Number System was a factual compilation, so its creativity was limited.

Third, the court addressed how much of the work was used and how substantial a part it was relative to the whole. The court’s 2023 opinion did not decide this factor but suggested that it leaned towards Ross. The opinion focused on Ross’s claim that its output to an end user was a judicial opinion, not a Westlaw headnote, so it “communicates little sense of the original.” Standing by that reasoning, the court decided this factor in favor of Ross, noting that what matters is not “the amount and substantiality of the portion used in making a copy, but rather the amount and substantiality of what is thereby made accessible to a public for which it may serve as a competing substitute.”

The fourth factor and most important element of fair use is the likely effect of Ross’s copying on the market for the original. The 2023 opinion left this factor for the jury but the court now found that Ross meant to compete with Westlaw by developing a market substitute. It did not matter whether Thomson Reuters had used the data to train its own legal search tools; the effect on a potential market for AI training data was enough, and Ross did not put forward enough facts to show that these markets did not exist and would not be affected.

Balancing these factors, the court granted summary judgment for Thomson Reuters on fair use. The court also granted partial summary judgment to Thomson Reuters on direct copyright infringement for some of the headnotes. Finally, the court granted summary judgment to Thomson Reuters against Ross’s defenses of innocent infringement, copyright misuse, merger, scenes à faire, and fair use.

The Case is No. 1:20-cv-00613-SB.

Judge: Bibas, S.

Attorneys: Jack B. Blumenfeld (Morris, Nichols, Arsht & Tunnell LLP) for Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. David Ellis Moore (Potter Anderson & Corroon, LLP) for Ross Intelligence Inc.

Companies: Thomson Reuters Enterprise Centre GmbH; West Publishing Corp.; Ross Intelligence Inc.

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