Copyright Infringement vs. Fair Use in the Wake of Artificial Intelligence

Thomson Reuters prevailed in its lawsuit against Ross Intelligence over artificial intelligence and copyright infringement. This ruling marks the first case to apply the four-factor fair use test to find copyright infringement by an AI model. 

Attribution

© Michael Barera, CC-BY-SA 4.0, via Wikimedia Commons

This case, Thomas Reuters Enterprise Centre and West Publishing v. Ross Intelligence, sets initial precedent to establish when an artificial intelligence platform engages in copyright infringement. This case was litigated in the District of Delaware while other cases across the nation engage in ongoing litigation. 

The court granted partial summary judgment to Thomson Reuters for copyright infringement and held Ross Intelligence infringed on the plaintiff’s copyrighted headnotes on Westlaw. The court also ruled “innocent, infringement, copyright misuse, merger, scenes à faire, and fair use” are not defensible to copyright infringement. Thus, the court denied Ross’s motion for summary judgment.

The court found in favor of Thomson Reuters by analyzing the standard four factor test for determining fair use. First, the court evaluated the purpose and character of the material. Second, the nature of the work. Third, how much of the copyrighted material was used and if it was substantial and forth the impacts on the value and market. 

The court sided with Thomson Reuters for the first point in favor of copyright infringement: stating that the use was commercial and not transformative. However, the court sided with Ross Intelligence for the second prong. 

Judge Bibas wrote, “The headnotes required editorial creativity and judgment, that creativity is less than that of a novelist or artist drafting a work from scratch.... there is no factual dispute that the headnotes have creative elements but are far from the most creative works.” 

The court continued to agree with Ross Intelligence for the third point. The court acknowledged that Ross Intelligence did benefit from creating a competitive substitute for the headnotes but did not directly copy the Westlaw headnotes. 

The court returned to Thomson Reuter’s favor for factor four and upheld precedent that this factor is the “single most important element of fair use.” Previously, the court left this factor to be decided by a jury but reversed that stance and determined there was significant public and market impact. 

“Copyright encourages people to develop things that help society, like good legal-research tools. Their builders earn the right to be paid accordingly,” wrote Judge Bibas.  

This ruling is an important first step toward laying a foundation for copyright and artificial intelligence litigation. While there is already extensive case law involving copyright and technology, this case assists the legal landscape in catching up to the growing influence of artificial intelligence. 

Fair Use vs. Copyright Infringement Precedent 

In 2015, the United States Court of Appeals for the Second Circuit found in favor of Google Inc. when Authors Guild filed suit for copyright infringement over the major technology company scanning over 20 million books without author’s or publisher’s permission for library access and to enhance electronic search functions on the company’s search engine.     

The court found that Google’s use of the written material fell under the doctrine of fair use due to it being, “unlikely that Google’s use could ‘provide a significant substitute for the purchase of the author’s book.”’ 

In Andy Warhol Foundation for the Visual Arts v. Goldsmith, The Supreme Court, ruled in favor of copyright infringement against the Foundation for the artist’s use of a photograph taken in 1981 by Lynn Goldsmith, citing in part the artist’s use of the photograph for “commercial nature”.