ROSS Intelligence alleges monopolistic, anticompetitive control over legal research market
The latest salvo has been fired south of the border in the copyright litigation between Thomson Reuters and ROSS Intelligence.
On Monday, ROSS filed an amended answer and counterclaim alleging anticompetitive behaviour in response to Thomson Reuters’ claim of copyright infringement and tortious interference with a contract.
“I do think there are a variety of areas in which the interplay between antitrust and copyright is open for exploration,” says Naomi Jane Gray, a principal in the law firm Shades of Gray Law Group, P.C., based in Mill Valley, California, and current president of the non-profit Copyright Society of the U.S.A. “They don’t come up every day.”
In May, multinational mass media and information firm Thomson Reuters filed suit against ROSS Intelligence, an artificial intelligence start-up for the legal industry headquartered in San Francisco, in the U.S. District Court for the District of Delaware, where ROSS is incorporated.
Thomson Reuters’ lawsuit claimed that starting in 2017, third party LegalEase Solutions, a Thomson Reuters Westlaw customer, had used a bot to download and store Westlaw data in bulk, which it then passed on to ROSS Intelligence in violation of its own service agreement with Westlaw, and that ROSS then contracted with LegalEase to obtain this data to assist in building its own legal research platform.
“ROSS is attempting to create a business by taking for itself critical features of Westlaw, without permission from or compensation to Plaintiffs,” Thomson Reuters’ suit alleged, in which it claimed a research monopoly. The lawsuit against ROSS was filed just two days after Thomson Reuters ended a related lawsuit against LegalEase.
In December, ROSS filed a counterclaim against Thomson Reuters; it also declared it would be shuttering its operations because of the financial impact of the lawsuit. On Monday the start-up amended its claim and raised a new counterclaim, asserting that Thomson Reuters is violating federal antitrust law by maintaining monopolistic and anticompetitive control over the legal research market.
“Presumably what’s in the Thomson Reuters database is accessible through other means, and could have been compiled using direct sources,” says Catherine Lovrics, an IP lawyer and partner in Marks & Clerk Canada in Toronto. Thomson Reuters’ allegation is, “’we denied you a licence to our platform, you then went to the third party LegalEase, you had them run scripts and pull all our data.’ The meat of the issue is, can you go to a competitor and shortcut, based on what they’ve done to compile [data], or do you need to go to original sources? And do ROSS’s actions constitute fair dealing, or fair use in the U.S.?”
From Thomson Reuters’ standpoint, says Lovrics, the company has spent years and made a large investment in building the Westlaw database, “and while some of what’s in the database, judicial judgments and the like, may not themselves be subject to Thomson’s own copyright, the skill and judgement — using language from a Canadian perspective — that goes into populating or selecting, arranging, compiling that database is significant; there is a layer of copyright protection in the database.”
“At the crux of the issue is whether or not and to what extent somebody that puts together a database and puts it behind a firewall [using] a subscription-based model, to what extent that is protectable.”
‘Fair use’ and ‘fair dealing’
In its counterclaim, ROSS said its “use of LegalEase researcher-chosen quotes of case law directly from raw judicial opinions constitutes a fair use under 17 U.S.C. § 107.”
ROSS Intelligence may rely on an April U.S. Supreme Court decision, Georgia v. Public.Resource.Org, Inc., which held that annotations added to the State of Georgia’s legal code were not eligible for copyright protection. In upholding the appellate court reversal of the trial judge’s decision, the U.S. Supreme Court held that the annotations amended to the state of Georgia’s legal code were “ineligible for copyright protection” under the “government edicts doctrine.”
“That decision could be at least tangentially relevant to the arguments that were offered” by ROSS, says Lovrics.
While “fair use” is an American concept, in Canadian law the “fair dealing” exception sets out possible defences against an action for infringement of an exclusive right of copyright. “From a Canadian perspective, … one of the issues with fair dealing that's not totally settled is whether or not you have to have lawful access to something in order to fairly deal with it, and if you don't have lawful access, does that take you out of the fair dealing bucket?”
In this case, ROSS Intelligence has been accused of having unlawful access to Westlaw data, since, as a direct competitor, it was not permitted to subscribe to the service.
Regardless, and while not necessarily specific to this litigation, the case underscores “the importance of clearance when you’re compiling a database,” says Lovrics, in particular because of the ease with which one can use bots and crawlers to extract data. ROSS Intelligence was “celebrated” within the Toronto legal community, she says, and so seeing it shutting down its operations is sobering.
“My understanding is that ROSS amended its pleadings so that Thomson couldn't simply walk away," she adds; “I think that they do want this case to go forward for the sake of setting a precedent.”
Current U.S. copyright laws had also not anticipated all the ways it could be used in the digital age, says Gray from her California office, pointing out that the U.S. Copyright Act’s current iteration is from 1976. “When the internet became widely used, it raised a myriad of questions unsettled under the law.” With new technologies came untested questions regarding the application of those technologies, and “how it fits within the existing legislation.” There has been talk, “certainly among practitioners, of the desire to update the Copyright Act,” she adds, though Congress has not announced plans for a comprehensive overhaul of the Act.