We Need to Talk about ROSS
This is not an article about what is sure to be the most annoying part of the upcoming “Friends” reunion. It is, first and foremost, about ROSS AI.
Back in October, I wrote about my experience using the legal research Chrome extension from ROSS AI. It was meant to be the first in a regular series of features about other Free Law tools available to you out in the world. And we’ll get back to that next time. Meanwhile, something has happened; and you need to hear about it.
ROSS went out of business. That’s the short version.
The longer version is that Thomson Reuters (TR), owners of Westlaw, had sued ROSS earlier in 2020. The complaint alleges, in short, that ROSS had obtained in bulk from a third party copyright-protected Westlaw content (such as headnotes, Key Numbers, and other organizational/editorial content added to the cases by Westlaw editors) and used that material in developing its AI-assisted platform.
Predictably, ROSS immediately issued a press release denying the allegations, stating that any copyright-eligible material from Westlaw it obtained through its third-party partner “would have been useless to ROSS.”
The litigation proceeded apace. Briefing on a motion to dismiss was completed (but the motion not yet heard) by the time I wrote my review of the Chrome extension. (The court would subsequently deny the motion in an order dated March 29, 2021.)
In December of 2020, ROSS announced that it would cease all operations by the end of January, 2021 and concentrate solely on fighting the TR lawsuit. ROSS’s founder wrote, “With our company ensnared by this legal battle, we have been unable to raise another round of funding to fuel our development and marketing efforts.”
Before we go any further, it’s important to say that I do not know whether or not the allegations in TRs complaint have merit or will be borne out by the evidence. Also, I understand just how common this is, and that many of the lawyers among our subscriber base have seen similar stories of young companies driven to extinction by the direct and indirect costs of defending themselves against allegations of intellectual property infringement or theft brought by very companies they are seeking to usurp. I’m also aware that some of us in the bar have worked for those large and well-resourced companies. And, at the risk of being redundant, I also understand that sometimes these allegations prove to be true and actionable.
In any event, ROSS subsequently filed an amended answer, including nine counterclaims attacking not only Westlaw’s claims of copyright, but also alleging antitrust violations. (Thomson Reuters has moved to dismiss the antitrust counterclaims.) In a concurrently-posted statement on its website, ROSS wrote:
America is a country based on laws. The law belongs to all of us. It governs us, protects us, and forms the basis of our great democracy. Our highest ideal is justice for all. This depends on the people—all people—having access to the law. But for Westlaw, the public law is nothing but a commodity to be bought and purchased and a fiefdom to be protected at all costs.
It’s quite a coincidence that the case I was researching when I first wrote about ROSS was the Supreme Court’s recent clarification of copyright law’s Government Edicts Doctrine, Georgia v. Public Resource.Org. Will that opinion have any impact on this case? It could directly impact what the court ultimately determines to be the validity or the scope of the copyright TR claims.
Beyond this particular litigation, the Georgia v. PRO case could indirectly impact the for-profit legal publishing industry by changing the perceived incentives for companies like TR to enter into contracts to be the original publishers of statutes, regulations, or case law.
And Georgia v. PRO is not the Court’s most recent word on copyright. Earlier this month, it decided Google v. Oracle. In that case, the Court articulated what many believe to be an expanded understanding of the doctrine of Fair Use. Will ROSS be able to use that opinion to support the declaratory judgment it seeks that any alleged copying was fair use?
There is much more to say about the intersection of the Government Edicts Doctrine, Fair Use, and publishing the law–whether for profit or not. As our team and others explore these topics, we’ll be sure to share the best parts with you.