Robert Ambrogi Blog
For decades, one product, Thomson Reuters Westlaw, has dominated the legal research market. A core foundation of that dominance has been Westlaw’s claims of copyright in several elements of its legal research service, particularly its headnotes and Key Number System.
The validity of those copyrights will be a central issue later this month when the long-running lawsuit between that legal research goliath that is Westlaw and the legal research startup it helped drive out of business, ROSS Intelligence, finally reaches trial after four years of pretrial wrangling and discovery.
The trial is scheduled to begin Aug. 23 in the U.S. District Court in Delaware in the copyright lawsuit that Thomson Reuters first filed in 2020 against the now-shuttered legal research startup ROSS.
Find all of my coverage of this lawsuit since its inception at this link.
In its lawsuit, TR alleged that ROSS stole content from Westlaw to build its own competing legal research product. ROSS did this, TR alleged, by “intentionally and knowingly” inducing the legal research and writing company LegalEase Solutions to use its Westlaw account to deliver Westlaw data to ROSS en masse.
The lawsuit forced ROSS to decide to shut down its operations, which it did effective Jan. 31, 2021. But ROSS vowed at the time to continue fighting the lawsuit, which it characterized as a bullying tactic by TR to shut down a potential rival, and, thanks to insurance coverage footing the litigation bill, it has held true to that vow.
Not only has ROSS continued to defend itself against TR’s copyright claims, but it upped the ante in the litigation when it filed a counterclaim asserting that TR is violating federal antitrust law by maintaining monopolistic and anticompetitive control over the legal research market.
Those antitrust claims will not be part of this month’s jury trial. The judge presiding over the case, 3rd U.S. Circuit Court of Appeals Judge Stephanos Bibas, sitting by designation in the District Court, found that the antitrust claims raise no questions of fact to be decided by a jury. Instead, he has set a separate date, Sept. 18, for the parties to present oral arguments on the antitrust issues, on which both parties are seeking summary judgment in their favor.
With regard to the claims of copyright infringement, Bibas last year issued a memorandum substantially denying both parties’ motions for summary judgment and sending the case to trial for the contested copyright issues to be decided by a jury.
However, on one central issue, Bibas ruled in favor of Thomson Reuters, finding “as a matter of law” that Ross actually copied Westlaw headnotes and other TR copyrighted content.
TR presented both direct and circumstantial evidence that Ross, working in conjunction with the legal research company LegalEase, copied TR’s content, the judge found, noting, among other things, that LegalEase admitted to directly copying the headnotes.
But on other elements of establishing a claim of copyright infringement, he said the case is a “factual mess” that needed to be sorted out by a jury after trial, not by a judge on summary judgment.
That includes questions of whether TR can claim copyrights in its key numbers and headnotes, which Ross argues are mere compilations unprotected by the law or restatements of judicial opinions that cannot be copyright.
Since that ruling last year, the parties have been engaged in extensive discovery, including depositions of potential expert witnesses on both sides of the case.
In recent months, both parties have filed several motions to exclude certain experts from testifying at trial. Just last week, Judge Bibas issued a memorandum ruling on several of the parties’ challenges of experts.
Much of the pretrial wrangling has been closed to public view through sealed and redacted documents. Among these redacted filings are a response filed recently by ROSS to Judge Bibas’s order to submit a list of Westlaw headnotes it believes are verbatim quotations from judicial opinions. ROSS has argued that one reason TR is not entitled to copyright in its headnotes is that they often are taken verbatim from court opinions.
Lists of individuals the parties intend to call as witnesses are sealed. But the trial is likely to include testimony from many notable names from the worlds of legal research and legal academia.
One clue to who might testify is the list of people who have been scheduled to be deposed by the parties leading up to the trial. That 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; and various employees of both Thomson Reuters and ROSS, along with employees of LegalEase, Fastcase, and the former Casetext, which TR now owns.
Among the people who were expected to testify, Karl Branting, chief scientist at MITRE, died last month at the age of 71.