Interessante provvedimento dell’appello del 3° circuito, Thomson Reuters contro Ross Intelligence, 29.09.2026, nr 25-2153. Il caso tratta dell’utilizzo non autorizzato delle headnotes della banca dati giuridica Westlaw come allenamento (training) dell’applicazione AI creata da Ross, sempre nel settore dell’ausilio alle ricerce giuridiche.
Questa la condotta di Ross censurata:
<<ROSS then created an AI legal search engine that would respond to plain-language legal questions with relevant pas-sages of text from judicial opinions. ROSS had access to a bank of approximately ten million uncopyrighted judicial opin-ions from which it could respond with an excerpt relevant to a user’s query. ROSS’s AI was not a generative AI, meaning it would not create any new expression; it would only return text passages from preexisting judicial opinions.
For ROSS’s AI legal search engine to work, the AI program had to learn what made a judicial opinion responsive to a user’s legal question. To train its AI program to do so, ROSS enlisted a company called LegalEase Solutions (“LegalEase”) to create AI training memoranda. LegalEase wrote approximately 25,000 legal memos, each of which presented a legal question and four to six judicial opinion passages in response. Memo-drafters for LegalEase, and its subcontractor Morae Global, used thousands of Westlaw headnotes to create the memos’ legal questions, as the headnotes provided “an easy way [to] fram[e] questions.” App. 8545. The memos’ responses to the legal questions needed to include at least one great, good, top-ical, and irrelevant judicial opinion passage, labeled as such. A great passage was completely responsive; a good passage was mostly responsive; a topical passage was somewhat re-sponsive; and an irrelevant passage was not responsive. The “[g]reat” passages were “[m]ost frequently” the judicial opin-ion passages that Westlaw linked to the headnote that ROSS used as the memo’s legal question.2 App. 4837–39. These memos were then converted into a machine-readable format and used to train the ROSS AI program to identify patterns re-garding which judicial opinion passages respond well to legal questions.
ROSS did not hide its intention that this for-profit AI plat-form compete with Westlaw. ROSS ran ads directly compar-ing its platform to Westlaw at prices “in line with” Westlaw. App. 4519. ROSS executives hoped ROSS would serve as a substitute for Westlaw, and some law firms switched from us-ing Westlaw to ROSS.>>
Potrebbe essere interessante anche il fatto che le headnotes siano ritenute proteggibili: dico “potrebbe”, perché bisognerebbe prima esaminarle in dettaglio, ma sono quasi sconosciute in Italia (tranne che nei maggiori studi legali in Roma e Milano , forse)
Anche negli Stati Uniti la protezione viene concessa con una soglia minima di originalità, si desume dalla opinion.
Più interessante è il fair use, che viene negato a Ross, e in particolare il quarto fattore, cioè quello del market effect, originario e derivato (a valle).
E il market effect è giudicato a favore di Thomson Reuters: spt. interessa il mercato a valle del licensing dell’uso delle headnotes.
<<We begin with the original market. The parties dispute which is the relevant original market. ROSS argues that the relevant original market is the market for headnotes as a standalone product, which ROSS claims does not exist. Even assuming this is the relevant market, ROSS’s argument ignores the effect of ROSS’s use on the value of Thomson Reuters’s headnotes. Our Court rejected a similar argument in Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191, 202 (3d Cir. 2003), abrogated in part on other grounds by TD Bank N.A., 928 F.3d at 278. There, a website that published trailers and clips of Disney movies argued that no market existed for movie trailers because no one “ever paid or will ever pay any money merely to see trailers.” Id. at 202. We rejected that argument, stating that “[t]he [fair use] statute directs us to consider the effect of the use upon the . . value of the copyrighted work, not only the effect upon the market, however narrowly that term is defined.” Id. (emphasis in orig-inal) (citation modified). Video Pipeline’s publishing of the trailers damaged the trailers’ value in drawing users to Dis-ney’s website, where Disney could induce purchases or cross-market other products; it made no difference that no standalone trailer market existed. Id. The same is true here. While there may be no standalone market for headnotes, Thomson Reuters touts the headnotes as a feature to attract users to buy a Westlaw subscription. By copying the headnotes and using them to build its own competing legal-research platform, ROSS appropriated the headnotes’ value for finding and ana-lyzing judicial opinions and diminished their value as a draw for users to Thomson Reuters’s legal-research platform. So, Video Pipeline supports the conclusion that ROSS’s copying harmed the value of Thomson Reuters’s headnotes.
Thomson Reuters argues that the legal-research platform market is the relevant original market. ROSS offers no con-vincing reason to ignore this market, so we consider it. The undisputed evidence here reveals that ROSS copied the head-notes to create a competing legal-research platform in the same market as Westlaw. “[U]nrestricted and widespread” copying of Thomson Reuters’s headnotes to develop substitute legal-research tools, like ROSS did, would harm Westlaw’s position in that original market. Andy Warhol, 598 U.S. at 524 n.3 (quoting Campbell, 510 U.S. at 590). ROSS offers no evidence to rebut the alleged harm in this market.
We turn now to potential derivative markets for Thomson Reuters’s headnotes. The parties dispute the relevant potential derivative market. ROSS argues it did not harm any potential derivative market because no derivative market for headnotes exists. Thomson Reuters argues that ROSS harmed its position in the potential derivative market for licensing headnotes as AI training data. “The market for potential derivative uses in-cludes only those that creators of original works would in gen-eral develop or license others to develop.” Campbell, 510 U.S. at 592. But a potential derivative market is not illusory just because an author “has evidenced little if any interest in ex-ploiting this market for derivative works.” Castle Rock Ent., Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 145–46 (2d Cir. 1998).
Here, the evidence shows that the market for licensing headnotes as text to train AI is rapidly developing. Addition-ally, Thomson Reuters presented evidence that it is using its headnotes as training data for its own AI search products. ROSS offers no evidence to disprove this. That Thomson Reu-ters did not license its headnotes to others does not disprove that a market exists to do so. Additionally, ROSS’s copying harmed Thomson Reuters in this market. By copying the head-notes for use as training data without Thomson Reuters’s au-thorization, ROSS usurped Thomson Reuters’s opportunity to enter that derivative market and license its headnotes for that purpose. The market harm caused by ROSS’s use weighs against fair use.
In particolare Ross dice che il market di Thomson è il market delle headnotes, come standalone product. E secondo Ross non esiste. Invece Thomson Reuters dice che il relevant original market è il legal research platform e qui la corte accoglie.