After legal research goliath Thomson Reuters sued legal research startup ROSS Intelligence on May 6, alleging that it stole content from Westlaw, ROSS responded with a vow to fight the lawsuit, denying it did anything wrong and portraying the lawsuit as an anticompetitive tactic by TR to squelch an up-and-coming competitor.
Today, ROSS filed its first formal response to the lawsuit, filing a motion to dismiss in the U.S. District Court in Delaware in which it made good on its vow to fight.
The brief in support of the motion calls into question TR’s claims of copyright in case headnotes and its key number system, claiming that neither has the requisite originality or creativity required to be protected by copyright, that they are unnecessary to the modern practice of law, and that TR is inappropriately using them to exert monopoly control over public law.
“Plaintiffs’ business model … is based on the improper control and monetization of key public legal texts on which our democracy is based,” the motion asserts. “Knowing full well that judicial opinions are in the public domain, Plaintiffs developed a roundabout method to attempt to copyright those public texts through headnotes and a key number system.”
By contrast, the motion says, ROSS is a modern legal research company that need not rely on headnotes and keynotes.
“By training its AI system solely based on public legal text, ROSS provides a modern, state-of-the-art search experience that makes the law available to the public in plain English – at a fraction of the cost of Westlaw,” the motion says.
As to TR’s allegations that ROSS stole proprietary data from Westlaw, ROSS denies this. It contends that TR’s complaint does not allege any facts evidencing that ROSS copied Westlaw headnotes or the key number system. In fact, ROSS argues, it would have no need for such data, given the nature of its technology.
“Indeed, to do otherwise would be antithetical to ROSS’s technical strategy,” the motion says. “ROSS deliberately chose to avoid methods requiring continuous and significant human labor, such as classification systems like Westlaw’s number system or headnotes. The ROSS system seeks to find the natural language that courts use in their opinions, not some abstracted legal concepts or any content other than the opinions themselves.”
In its complaint, TR alleged that ROSS “intentionally and knowingly” induced the legal research and writing company LegalEase Solutions to use its Westlaw account to reproduce Westlaw data and deliver it to ROSS en masse.
“ROSS did so, not for the purposes of legal research, but to rush out a competing product without having to spend the resources, creative energy, and time to create it itself,” the complaint alleged. “The net result is that Plaintiffs are now being put in the unfair position of having to compete with a product that they unknowingly helped create.”
Two days before using ROSS, TR settled litigation against LegalEase based on similar facts, with the two parties agreeing to entry of a consent judgment and stipulated permanent injunction (D. Minn. 18-cv-01445 dckt 000119_000 filed 2020-05-05) in the U.S. District Court in Minnesota.
But in its motion to dismiss, ROSS argues that TR brought the lawsuit solely because it sees ROSS as a threat to its monopoly over access to public legal texts.
“Obviously threatened, Plaintiffs have moved aggressively to destroy ROSS before it gains further traction,” the motion says. “Further illustrative of this anticompetitive purpose, Plaintiffs reveal in their Complaint that their standard license prohibits anyone who merely reads public legal text on Westlaw from competing with Westlaw. This is not just wrong; it is dangerous.”
‘Hand-Waving and Bluster’
“One crux of the problem is that everything over which Westlaw claims dominion in fact belongs to the public,” the cofounders write. “Their anti-competitive strategy entails asserting an interminable and illegitimate copyright over uncopyrightable subject matter, all to improperly control and monetize key public writings underpinning our democracy.”
While denying that they inappropriately copied anything from Westlaw, they say TR’s tactics amount to “hand-waving and bluster,” noting that TR’s complaint “provides no particulars on what ROSS is alleged to have copied and does not even identify what in ROSS’s product is purportedly infringing.
Taking Aim at Westlaw’s Copyright
While ROSS’s motion raises several arguments in support of its position that the lawsuit should be dismissed, the one that will perhaps be of most interest to copyright lawyers is that TR cannot claim copyright in its headnotes and Key Number System because neither is original or creative, as required by copyright law.
With regard to Westlaw headnotes, ROSS argues that they are merely “recitations of rules and concepts copied from judicial opinions.” Likewise, the order of the headnotes “simply corresponds to the order of quotations and ideas in the opinion itself.”
“[F]or the same reasons that public domain demarcations in a map are not protectable, it would be improper to permit Plaintiffs to monopolize the conceptual, public domain ‘contours’ of legal rules and opinions,” the motion contends.
With regard to Westlaw’s Key Number System, ROSS similarly argues that the “overall arrangement and structure of the topics in the number system is not creative,” but rather are arranged in alphabetical order with the numbers assigned sequentially to the topics and subtopics in order of their appearance.
Neither is the structure of the system creative, ROSS contends. Rather, the structure “reflects a traditional mode of legal analysis and reasoning, dictated by underlying legal texts, in varying levels of depth, organized alphabetically.”
In fact, says ROSS, this structure reflects “the utter absence of originality and creativity.”
“[T]he topics, subtopics and the alleged structure, sequence and organization of the number system are so dictated by external factors and age-old analytical and judicial practices that they do not (and simply cannot) possess requisite originality or creativity,” ROSS argues.
Denies Other Claims
ROSS also seeks dismissal of TR’s claim for tortious interference, brought under California law. ROSS alleges that the statute of limitations has expired on any such claim and that TR has failed to allege that ROSS knew of the contractual terms at issue or acted with intent to induce breach.
Representing ROSS in this litigation are attorneys Gabriel M. Ramsey, Kayvan M. Ghaffari, Mark A. Klapow and Joshua M. Rychlinski from the law firm Crowell & Moring LLP in San Francisco and Washington, D.C., and David E. Moore, Stephanie E. O’Byrne and Tracey E. Timlin from the law firm Potter Anderson & Corroon LLP in Wilmington, Del.