IP Law Daily, COPYRIGHT—D. Del.: Motion for interlocutory appeal granted by district court in Westlaw headnotes infringement suit, (May 27, 2025)

By Linda O’Brien, J.D., LL.M.

Ross Intelligence was alleged to have used copyrighted Westlaw headnotes in training data for its AI-assisted legal research tool.

In a copyright infringement suit brought against a technology startup company by the owners and operators of the legal research database Westlaw, interlocutory appellate review of the key issues in the case was appropriate, the federal district court in Wilmington, Delaware has ruled in an opinion setting forth the reasoning in support of a previous bench ruling. The originality and fair use questions involved controlling issues of law on which there were substantial grounds for differences of opinion and an interlocutory appeal would materially advance the litigation. Thus, the defendant’s motion for interlocutory appeal and stay pending appeal was granted (Thomson Reuters Enterprise Centre Gmbh v. Ross Intelligence Inc., No. 1:20-cv-00613-SB (D. Del. May 23, 2025)).

Legal publishing and research company West Publishing Corporation and its parent company, Thomson Reuters Enterprise Centre GmbH (“Thomson”) created “Westlaw,” which has a comprehensive database of public law and includes the features of West Key Number System and West Headnotes. In May 2020, Thomson filed suit against technology startup Ross Intelligence Inc. for copyright infringement and tortious interference with contract. Thomson asserted that Ross sought to create a “natural language search engine” using machine learning and artificial intelligence and converted Thomson’s copyrighted content to train its AI.

After discovery, both parties moved for summary judgment. The court, in September 2023, denied both motions, finding there were too many open questions in the record about the originality of Westlaw’s headnotes and Ross’s fair use defense to grant summary judgment. However, in a unexpected reversal, the court granted summary judgment to Thomson Reuters in February 2025, reasoning the Westlaw headnotes were original as a matter of law and the use by Ross of the headnotes as AI data to create a legal research tool to compete with Westlaw was not transformative. In March 2025, Ross filed a motion for interlocutory appeal in the U.S. Court of Appeals for the Third Circuit under 28 U.S.C. § 1292(b) and for stay pending appeal.

Interlocutory appeal. The legal issues in the case—whether the Westlaw headnotes and West Key Number System were original as a matter of law and whether the alleged use of the headnotes by Ross was fair use—warranted interlocutory appeal, the court found. Interlocutory appeal may be certified if there is a controlling question of law that presents a substantial ground for a difference of opinion about the right answer so that an immediate appeal under 1292(b) would materially advance the ultimate end of the litigation. The issue of originality qualified as a controlling question since, if the determination that both the West headnotes and West Key Number system were original, then the summary judgment opinion would be reversible on appeal as Thomson’s copyright claims could not proceed without a showing of originality. Similarly, if the determination that Ross did not have a fair use defense, that decision would be reversible on appeal.

In addition, there was a substantial ground for a difference of opinion, which means “doubt as to the correct legal standard, such as confliction precedent or the absence of controlling law.” The controlling law was unclear as the Third Circuit has not yet ruled on this “novel and difficult question of first impression.” Further, a resolution of these questions on appeal would “materially advance the ultimate termination of the litigation.” If the determinations on originality and fair use were incorrect, a trial would be unnecessary. The legal questions about copyright and non-generative AI tools were at the heart of the case and addressing the questions would speed up the resolution of the case and benefit the public, the court explained.

Stay pending appeal. A stay to allow resolution of the legal questions by the appellate court would streamline the litigation and possibly avoid an unnecessary copyright trial was appropriate. Although neither party requested a consideration of the traditional factors for a stay, the court noted that Ross had a reasonable chance or probability of winning on the merits, Ross was more likely than not to sustain irreparable injury without a stay, any harm Thomson would suffer from the stay did not match the potential harm to Ross without a stay, and the public does not benefit from wasting court resources on a potentially needless trial. Given the growing importance of AI, the public would benefit from having the appellate court promptly weigh in on AI’s copyright implications. Although the reasoning and decision in the summary judgment opinion was correct in its view, the certification of the copyrightability and fair use questions would resolve the litigation more efficiently and a stay of the case was a reasonable balance of the equities, the court concluded.

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

Judge: Bibas, S.

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

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

Cases: AINews Copyright TechnologyInternet DelawareNews