The legal research market has long been dominated by Thomson Reuters Westlaw. A fundamental aspect of this market control stems from Westlaw’s assertion of copyright protection over specific features of its service, particularly its headnotes and the Key Number System.
The validity of these copyrights will be a core issue as the protracted lawsuit between Thomson Reuters and the startup ROSS Intelligence finally proceeds to trial. The litigation, initiated by Thomson Reuters in 2020 against the now defunct legal research startup, reaches a critical stage after four years of extensive pretrial activity and discovery. The trial is scheduled to commence later this month in the U.S. District Court in Delaware.
Allegations of Copyright Infringement
In its complaint, Thomson Reuters alleged that ROSS stole content from Westlaw to construct a competing legal research product. Thomson Reuters claimed that ROSS “intentionally and knowingly” induced the legal research and writing company LegalEase Solutions to utilize its Westlaw account to deliver Westlaw data to ROSS en masse.
The filing of the lawsuit ultimately compelled ROSS to cease its operations, which occurred on January 31, 2021. Despite this shutdown, ROSS pledged to continue its defense against the lawsuit, characterizing the action as a bullying tactic by a market incumbent seeking to eliminate a potential rival. Backed by insurance coverage for the litigation costs, ROSS has maintained its vigorous defense.
The Antitrust Counterclaim
Beyond defending against the copyright claims, ROSS amplified the litigation by filing a counterclaim asserting that Thomson Reuters is violating federal antitrust law. This counterclaim alleges that Thomson Reuters maintains monopolistic and anticompetitive control over the legal research market.
The antitrust claims, however, will not be considered by the jury in this month’s trial. The presiding judge, 3rd U.S. Circuit Court of Appeals Judge Stephanos Bibas, sitting by designation in the District Court, determined that the antitrust issues do not present questions of fact for a jury to decide. Instead, Judge Bibas has scheduled a separate date, September 18, for the parties to present oral arguments on the antitrust matters, as both parties are seeking summary judgment in their favor.
Summary Judgment and the Path to Trial
Regarding the core claims of copyright infringement, Judge Bibas issued a memorandum last year that largely denied both parties’ motions for summary judgment, sending the contested copyright issues forward for a jury decision at trial.
Nonetheless, on one pivotal point, Judge Bibas ruled in favor of Thomson Reuters, finding “as a matter of law” that ROSS indeed copied Westlaw headnotes and other copyrighted content. The judge concluded that Thomson Reuters presented both direct and circumstantial evidence of copying, noting that LegalEase admitted to directly copying the headnotes while working with ROSS.
However, Judge Bibas characterized other necessary elements for establishing a claim of copyright infringement as a “factual mess,” requiring resolution by a jury following a trial, not by a judge on summary judgment.
Central Copyright Disputes
These unresolved factual questions include whether Thomson Reuters can legitimately claim copyright protection in its key numbers and headnotes. ROSS argues that these elements are merely unprotected compilations or restatements of judicial opinions that cannot be copyrighted. ROSS has notably contended that one reason the headnotes are ineligible for copyright is that they frequently consist of verbatim quotations taken directly from court opinions.
Since the summary judgment ruling, the parties have undertaken extensive discovery, including depositions of potential expert witnesses for both sides. The judge recently ruled on several motions filed by the parties to exclude certain experts from testifying at trial. Much of the pretrial maneuvering, including a recent ROSS response to the judge’s order to list Westlaw headnotes verbatim from opinions, has been shielded from public view through sealed and redacted filings. Readers can find comprehensive coverage of this significant litigation on Human&Legal.
Key Trial Witnesses
While lists of individuals the parties intend to call as witnesses are sealed, the trial is expected to feature testimony from notable figures in legal research and legal academia.
Indications of who might testify can be drawn from the list of people deposed in the lead up to the trial. This list includes:
- Legal scholar and AI expert Gillian Hadfield
- Legal Information Institute cofounder Peter Martin
- Westlaw head Mike Dahn
- ROSS cofounders Andrew Arruda, Pargles Dall`Oglio, and Jimoh Ovbiagele
- The now retired former global head of Thomson Reuters legal products Andy Martens
- Various employees of both Thomson Reuters and ROSS, as well as employees of LegalEase, Fastcase, and the former Casetext, which Thomson Reuters now owns.
It is worth noting that Karl Branting, chief scientist at MITRE, who was among those expected to testify, passed away last month at the age of 71.
