Amici Back AI Company’s Third Circuit Appeal of Summary Judgment for Thomson Reuters

A number of amici have weighed in this week supporting ROSS Intelligence’s appeal to the U.S. Court of Appeals for the Third Circuit challenging the originality and fair use rulings of the District of Delaware in a copyright infringement case brought by global legal information company, Thomson Reuters.

ROSS’s petition for review was granted by the Third Circuit in June (making it the first appellate court to grant review of a copyright/ AI case) and asked the court to reconsider the district court’s determinations that Westlaw’s headnotes and Key Number System are original, and that ROSS’ use of those materials to train its AI model for legal research wasn’t transformative.

Circuit Judge Stephanos Bibas, sitting by designation in the District of Delaware, issued a ruling in February of this year updating a previous summary judgment decision that had dismissed copyright infringement allegations made by Westlaw legal research service provider Thomson Reuters against ROSS. Among the top reconsiderations in Judge Bibas’ February decision was his fair use analysis, which recognized the non-transformative nature of ROSS’ use of copyrighted headnotes that summarize legal decisions.

In his September 2023 decision, Judge Bibas issued a summary judgment ruling largely dismissing motions from both parties, concluding that most disputed issues had to be submitted to a jury. Among those issues was the breadth and validity of Thomson Reuters’ alleged copyright in its compilation registration for Westlaw headnotes, and ROSS’ fair use defense. Although liability was ultimately left undecided by Judge Bibas on summary judgment, his ruling indicated that ROSS’ use could be analogous to those from so-called “intermediate copying” case law, where copying of software source code was deemed transformative.

But in February 2025, after inviting new briefing from both parties and commenting that his first decision “had not gone far enough,” the revised ruling granted most of Thomson Reuters’ motion for partial summary judgment on copyright infringement and fair use, while also denying ROSS’ motion for summary judgment on fair use. “Wisdom does not always find me, so I try to embrace it when it does––even if it comes late, as it did here,” wrote Judge Bibas in the updated summary judgment ruling.

ROSS’s petition to the Third Circuit noted the standard on the originality required for copyright protection from Feist Publications v. Rural Telephone Service Company (1991), in which the Supreme Court wrote that “facts themselves do not become original through association” with original compilations of those facts, and argued that both of Judge Bibas’ summary judgment rulings erred in finding any potential copyrightability for Westlaw’s headnotes, “which parrot [uncopyrightable] judicial opinions as best they can.”

ROSS said that Westlaw’s headnotes share the same defects in originality that befell Westlaw’s case reports, which failed the originality standard in the Second Circuit’s 1998 decision in Matthew Bender & Co. v. West Publishing Co. In that case, the appellate court found that the case reports “lack[ed] a modicum of creativity,” only providing the kind of “garden variety” information that failed to result in copyright protection for the telephone directory at issue in Feist. ROSS contended that Westlaw’s headnotes are similarly dictated by industry conventions, and that editorial directions to follow the language of court opinions as closely as possible meant that it was legal error to consider those summaries original.

Among the many amici that have weighed in to support ROSS are the Electronic Frontier Foundation (EFF), the Authors Alliance, and a number of professors.

Professors Brian Frye of the University of Kentucky Rosenberg College of Law; Jess Miers of the University of Akron School of Law; and Matt Blaszczyk of the University of Michigan Law School argued in their brief that, while the question whether training AI models on copyrighted works infringes those copyrights is one of several “difficult and important questions” facing copyright law today, this case is not the right vehicle for deciding it. “West’s headnotes consist entirely of uncopyrightable facts about the judicial opinions they describe,” said the brief. Furthermore, the brief added, “the West Key Number System is in the public domain, because its copyright term has long since expired. And third, non-infringing uses of a work cannot be infringing, even if they affect the market for the work.”

Another brief filed by law professors Edward Lee of Santa Clara Law, Matthew Sag of Emory University, Pamela Samuelson of UC Berkeley School of Law, Christopher John Sprigman of New York University School of Law, and Rebecca Tushnet of Harvard Law School called Judge Bibas’ fair use analysis “unsound” and noted that Bibas ruled prior to two subsequent and key decisions on AI and fair use, Bartz v. Anthropic and Kadrey v. Meta Platforms, Inc. Both decisions found that “the use of in-copyright materials to train an AI model is a highly transformative fair use.” And especially here, where “ROSS’ tool provides a public benefit of the highest order in our democracy by fostering an informed citizenry with greater accessibility to judicial opinions,” the court should find that the use is fair.

The EFF brief was joined by the American Library Association, the Association of Research Libraries, the Internet Archive, Public Knowledge and Public.Resource.org in arguing that “[c]opyright law does not prohibit the use of judicial decisions to build useful legal research tools.” According to the EFF brief, the Westlaw headnotes are not copyrightable, or if they are, the copyright is “extraordinarily thin” and ROSS’s use should be considered a “non-infringing fair use.”

The Authors Alliance warned in its brief that “[t]he district court’s flawed reasoning, if adopted by this Court, could inhibit countless legitimate activities long protected by fair use, such as artists studying famous paintings through sketching; students translating passages for language practice; and researchers copying materials to extract and report on factual information or engage in scholarly analysis.” All of these uses, said the brief, are analogous to ROSS’s use of the Westlaw headnotes because they “involve copying for distinct purposes that serve the public interest without substituting for the original work’s market.”

Several of the amici, as well as ROSS in its September 22 brief for the appellant, pointed to Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 256 (2020), which declared, “no one can own the law.” ROSS’s September 22 brief also implored the Third Circuit to heed “the rapidly evolving national security interests at stake in the urgent race to innovate in AI.”