Today, ROSS Intelligence announced it will seek Supreme Court review of the Third Circuit’s decision rejecting fair use in ROSS’s training of its AI model using memos containing Westlaw headnotes. This is no surprise. All eyes will be on the position of the U.S. Solicitor General.
In its opinion, the Third Circuit made note of the fact that the United States did not file a Statement of Interest in this case but did so in the OpenAI MDL Litigation: “In any event, the DOJ’s filing in In re: OpenAI demonstrates that the DOJ is tracking these issues and knows how to assert its interests, but the DOJ notably did not do so here.” Op. p. 17. Given that Thomson Reuters v. ROSS Intelligence will be the Supreme Court’s first encounter in any copyright case involving AI training, it seems highly probable that the Solicitor General will be asked by the Supreme Court (in what’s called CSVG) to provide the view of the United States or the SG will do so on its own initiative. But it’s too hard to predict what the SG’s view is.
A big issue no doubt will be whether the SG agrees with the Third Circuit’s distinguishing of generative AI models such as in Bartz, Kadrey, and OpenAI from the model involved in this case, where the outputs of the AI search tool was not new text (but instead quotes from judicial opinions).
Here’s ROSS Intelligence’s statement today: