In September, a US Circuit Judge in Delaware laid the groundwork for what could be the first trial centered on the authorized or unauthorized use of data to train AI systems. The legal battle is between Thomson Reuters (the company that owns Westlaw and Casetext) and ROSS Intelligence, a small AI-powered legal research platform that no longer exists due in part to this lawsuit. Let’s dig into the details.

Context

In May 2020, Thomson Reuters sued ROSS Intelligence for copyright infringement in the US District Court for the District of Delaware. In the complaint, Reuters alleged that ROSS stole “critical features” of the Westlaw legal research platform to develop its own research platform. Reuters accused ROSS of using a Westlaw licensee to access and copy valuable content not for legal research but to train its own AI model and create a competing product.

In December 2020, ROSS announced it was shutting down operations because of the lawsuit. ROSS Intelligence said, “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.” ROSS committed to the fight against Reuters and called the lawsuit “an attempt to use litigation to stifle a competitor.” The alleged tactic worked because ROSS announced as of January 31, 2020, that their platform would no longer be available.

In September 2023, US Circuit Judge Stephanos Bibos decided that a jury must determine the outcome of this lawsuit and whether ROSS unlawfully copied content from Westlaw to train its AI-based platform. In the decision, the judge contemplated motions for summary judgment filed by both parties. According to the decision, ROSS Intelligence used a company called LegalEase Solutions to draft memos into usable machine-learning training data –data it obtained from Westlaw. Reuters argued that the memo questions were essentially its company’s headnotes with question marks at the end and were therefore copyright-protected. ROSS admitted the Westlaw headnotes influenced its memo questions but insisted lawyers drafted the memos and did not copy them directly from Westlaw.

The judge addressed five summary-judgment motions, finding that the nature of the copyrighted work “favors fair use, but factual questions remain” and that the judge “cannot yet determine the effect of the use upon the market for the work.” Ultimately, the judge concluded that though Reuters alleged ROSS copied protected aspects of Westlaw through LegalEase Solutions, and ROSS disputes “almost all of Thomson Reuter’s story,” it is not his role at the summary judgment stage to “sort through the evidence and tidy these factual messes.” The judge concluded it is a jury’s role at trial to determine and sort out the disputed facts. As such, he denied both parties’ motions for summary judgment.

The case between Reuters and ROSS goes to trial next year, and the stakes could not be higher for the AI community and the future of AI model development.

What’s at Stake?

Using any AI tool is only as good as the data it is trained on. Machine learning is the process of feeding data into computer algorithms so that the answers the model spits out become more refined and sophisticated over time. The more accurate the data set, the more precise the search results will be.

There’s no question that AI development has become a transformative and lucrative industry. With technological advancement comes necessary changes to laws and regulations. We are at an inflection point in history regarding AI development. Copyright laws need to be adjusted to encompass AI technology and machine learning. Currently, AI models are developed by being trained on vast amounts of data scraped from the internet. The programs ingest the data and, from that data, give answers to prompted questions.

Many companies do not pay for the data their machines learn from, but a series of lawsuits have been filed in the last couple of years over this exact issue, especially in the artistic industry. Check out this blog post for a deeper dive into copyright infringement and this post for a current AI-related lawsuit.

The Reuters v. ROSS litigation concerns the unauthorized use of a company’s data for AI machine learning. The debate centers on fair use versus copyright infringement. While judicial opinions and legislative materials are not protected under copyright, we are now in an era where AI companies want to protect their written works from being fed to machines to train them, and creators want to be compensated if their works are used to train AI models. “Copyright challenges pose a near-existential threat to existing AI models if the way they’re being trained isn’t aboveboard. If they can’t ingest mountains of data—which until now they’ve largely done without paying for that data—they won’t work.”

The outcome of the Reuters lawsuit will lay the groundwork for new precedents governing how AI engines are trained and whether tech companies must provide compensation if their chatbot’s content output reproduces part or all of a copyrighted work. Further, what constitutes copyrighted material as opposed to fair use will be redefined as AI technology advances.

What Makes Trellis Different?

Navigating AI technology can be tricky as there are many AI platforms to choose from. If you are a legal professional thinking about incorporating AI into your practice to save time, consider Trellis Law.

Trellis is an AI-driven, state-civil trial court research and analytics platform that has democratized access to state laws and regulations by making the fragmented United States state trial court system searchable through a single interface. Trellis takes thousands of county courts and millions of documents and structures them into an immense, searchable, and organized dataset.

Users get a broader perspective and more comprehensive insight by aggregating data from various county courts. Structured data allows lawyers and legal professionals to search for specific cases, precedents, or motions, allowing them to expedite their research process. Because our data is pulled directly from court dockets, our users can access actual court documents, trusting that the information provided is accurate. Contact us today for a demo.

Sources:

https://www.reuters.com/legal/thomson-reuters-ai-copyright-dispute-must-go-trial-judge-says-2023-09-26/

https://fingfx.thomsonreuters.com/gfx/legaldocs/zgvoraqlnpd/THOMSON%20REUTERS%20ROSS%20LAWSUIT%20sjruling.pdf

https://fingfx.thomsonreuters.com/gfx/legaldocs/zgvoraqlnpd/THOMSON%20REUTERS%20ROSS%20LAWSUIT%20sjruling.pdf

https://news.bloomberglaw.com/ip-law/thomson-reuters-will-head-to-trial-in-ai-model-copyright-battle

https://slate.com/technology/2023/10/artificial-intelligence-copyright-thomson-reuters-ross-intelligence-westlaw-lawsuit.html https://money.usnews.com/investing/news/articles/2023-09-25/thomson-reuters-ai-copyright-dispute-must-go-to-trial-judge-says

On November 22, 2023, the lawsuit against Lizzo by three of her previous backup dancers had its first court hearing. Lawyers for both parties battled it out over allegations centered on whether Lizzo created a hostile work environment while on tour, and if she subjected the three dancers to workplace harassment and discrimination. Let’s get into the details.

Background

On August 1, 2023, three former backup dancers for Lizzo, Arianna Davis, Crystal Williams, and Noelle Rodriguez, filed a complaint against Lizzo, her production company, Big Grrrl Big Touring Inc. (BGBT), and dance captain, Shirlene Quigley. The complaint alleges nine causes of action, including hostile work environment, racial and religious harassment, disability discrimination, and failure to prevent or remedy hostile work environment, to name a few.

Plaintiffs alleged that while on tour with Lizzo, they were subjected to a series of inappropriate and discriminatory behaviors and were forced to partake in crude activities at a club in Amsterdam. The lawsuit further alleges the dancers were mistreated by Lizzo and BGBT, that they were subjected to racial and religious discrimination, body-shaming, and an uncomfortable, “sexually charged environment.” Check out the full complaint here.

Los Angeles County Superior Court Judge Mark H. Epstein presides over the case. Let’s dig into more details about him.

Judge Mark H. Epstein

The Hon. Mark H. Epstein is a judge for the Los Angeles County Superior Court in California. He was appointed to the bench in 2016 by former governor Jerry Brown. He is a registered Democrat, and before joining the bench, he was a partner at the law firm Munger, Tolles, and Olson, where he practiced complex business litigation.

Check out his judge analytics page to get a sense of how Judge Epstein rules on cases he’s presiding over and become familiar with the kinds of cases he typically hears.

In the Lizzo lawsuit, Judge Epstein has declined to issue an immediate ruling on Lizzo’s motion to strike the complaint based on free speech protection. In this motion, filed on October 27^th, she was hoping to have the lawsuit against her and BGBT dismissed. The tentative ruling denying the motion was issued on November 3.

Then, on November 22, 2023, Judge Epstein issued another tentative ruling, which included a series of questions that suggest he plans to uphold at least some of the nine causes of actions filed against Lizzo in the August complaint. Let’s break down what the judge had to say and what happened at the hearing.

Judge Epstein’s tentative ruling raised more than several pivotal legal questions, a general summary of which is as follows:

1. Does Lizzo claim her celebrity status makes any action she takes a matter of public interest, and to what extent does constitutional protection for expressive conduct cover her actions, including any alleged false imprisonment or assault at social events with her dance crew?
2. The court queries whether participation in a voluntary, religion-based event, like a prayer circle, could constitute a condition of employment or form the basis of a Fair Employment and Housing Act (FEHA) claim.
3. In relation to a “soft hold,” the court asks if plaintiffs regard it as inherently illegal and whether they can cite any specific job opportunities missed due to the soft hold beyond the instance mentioned by Rodriguez.
4. The court queries whether the severity of alleged misconduct’s effects can prompt a summary judgment before any discovery is conducted, and what evidence, besides subjective testimony, could suffice at this proceedings stage to decide in line with due process.
5. The court seeks discussion on sexual harassment laws under FEHA, referencing Lyle v. Warner Brothers Television Productions, questioning whether a FEHA claim can stand if there is no evidence of gender-based differential treatment, and how plaintiffs might overcome the precedent set by Lyle regarding harassment directed at all employees regardless of gender.
6. The weight to be given to statements made after a plaintiff’s termination or resignation is questioned, along with what constitutes the strongest evidence of harassment and discrimination (sexual, racial, religious, disability) and how it could lead to a hostile work environment. Additionally, the importance of whether plaintiffs approached management about the alleged misconduct is considered.

These inquiries seem to reflect the court’s focus on understanding the bounds of free speech, the specific legal frameworks of employment and discrimination law, and the evidentiary requirements for moving forward with legal claims. The court emphasizes that these are not the only issues for consideration, inviting parties to address these and any other relevant matters at the hearing.

Hearing

As reported by Rolling Stone Magazine this past Thursday, during the hearing, Lizzo’s lawyer, Melissa Lerner, argued that the outings in Amsterdam were protected by the First Amendment “because they furthered Lizzo’s ‘explicit and expressed creative purposes,’ meaning her artistic free speech.” Her lawyer argued the plaintiffs were aware that Lizzo believed the dancer’s performances were lagging and that Lizzo took the dancers to the club to foster creativity and inspiration. Lerner argued that the outing was a protected activity for team bonding.

To this, the judge asked, “Is there any limit to this? So basically, anything that happens while they’re on tour that takes place with more than one person could be viewed as teambuilding?” He said, “We’re not dealing with an accounting firm…I just want to know, are there any limits, and if so, what are they.” Lizzo’s attorney responded that there very well could be limits but that “everything enumerated in the complaint should be covered by the singer-songwriter’s right to free expression.”

The judge disagreed. Sources say he “audibly groaned” in the courtroom, firing back that the plaintiff’s allegation is not that they “had to watch it,” the allegation is they “were pressured into participating.”

Lawyer for the plaintiffs, Ronald Zambrano, asked the court, “How is Lizzo forcing Arianna Davis to touch a person’s breast in furtherance of making a show?” He went on to argue that “there has to be a line. There has to be a functional connection between the act and the furtherance of free speech.”

The back and forth between the lawyers and Judge Epstein’s questions indicate this lawsuit centers on how far First Amendment protections protect controversial behavior. Is Lizzo liable for subjecting her dancers to discriminatory and degrading conduct? Or did everything that happened on tour fall under a protected activity in furtherance of her creative process? The judge indicates that not everything can be covered under free speech in the name of creative purpose, especially when certain activities cross a line into discriminatory conduct.

This hearing provided an inside look into the battle between Lizzo and her former backup dancers. Follow the case on Trellis and get notified of updates on every step in the litigation process.

Interested in Staying a Step Head in Your Legal Practice?

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Sources:

https://trellis.law/case/23smcv03553/arianna-davis-et-al-vs-big-grrrl-big-touring-inc-a-delaware-corporation-et-al#

https://www.rollingstone.com/music/music-news/lizzo-dancer-lawsuit-lawyers-spar-court-1234893997/amp/

https://www.rollingstone.com/music/music-news/lizzo-dancers-sexual-harassment-lawsuit-fabricated-dismissed-1234864708/

https://www.vulture.com/article/lizzo-dancers-lawsuit.html

As jurists, law firms, legal professionals, and the public struggle to keep pace with the swift advancement of artificial intelligence, it is no surprise that courts are beginning to draft and enact rules for using these tools in legal proceedings. Just last week, before the Thanksgiving break, the Fifth Circuit Court of Appeals opened the comment period for its draft of a proposed amendment to certification rules for both lawyers and pro se litigants. The proposed new text calls on parties to “certify that, to the extent an AI program was used to generate a filing, citations and legal analysis were reviewed for accuracy.”

The Fifth Circuit has jurisdiction over Louisiana, Mississippi, and Texas courts. Fifth Circuit Rule 32.3 governs the form of filings, including typeface, word count, and type-style. The amendment includes the following proposed paragraph:

“Additionally, counsel and unrepresented filers must further certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human.”

The rule calls for the striking of documents and sanctions for noncompliance or misrepresentation concerning failure to acknowledge the use of AI.

Legal Professionals Transformed into Supervisors of AI

The proposed requirements are nothing new. In June of this year, U.S. District Judge Brantley Starr of the Northern District of Texas implemented a rule where attorneys must attest to personally overseeing the preparation of their documents, explicitly confirming accuracy where AI is used. Does this signal the end of painstaking work of law clerks, paralegals, legal secretaries, or law librarians who often spend hours, if not days, scouring the internet and shelves for sources? Are legal professionals becoming the supervisors and spot checkers for accuracy of AI? Perhaps this is the dawn of an entirely new profession, legal prompt engineering, whereby the attestation to accuracy and review by a human is all it takes to accept the new Artificial Legal Professional’s work.

In any case, what is increasing clear is that while AI has immense potential to
revolutionize the legal sector, caution must be exercised. Professionals need to be educated about where data comes from, how AI models work and their limitations, and when to rely on AI versus when to lean on human judgment. Proper implementation, transparency, and continuous learning are key. This is especially important in the application of law. Indeed, to this point, Judge Starr is reported to have declared his refusal to use AI, stating, “I don’t want anyone to think that there’s an algorithm out there that is deciding their case…” This comment highlights the different concerns various legal professionals might consider in their implementation of these tools.

Hallucinations and Trust

One of the biggest challenges when it comes to the use of AI in the legal profession, is trust. The prospect of an AI model hallucinating results into a document is an all too real scenario. Back in May of this year, a lawyer who had used ChatGPT for citations in a legal brief found himself on the receiving end of sanctions, precisely because the brief cited six non-existent court decisions.

The escalating reliance on artificial intelligence in the legal domain underscores the paramount importance of ensuring its quality, accuracy, ethical integrity, and trustworthiness in user interactions. This necessity becomes starkly apparent when considering the possibility of an AI system’s erroneous interpretation of legal precedents or the hallucination of non-existing cases.  These examples amplify the urgency for implementing  standards and codes of conduct, potentially reinforced by legal penalties, to guarantee that AI applications in legal proceedings align with the profession’s exacting requirements. This approach is critical for fostering a deep-rooted trust in this transformative technology, which is reshaping both the legal landscape and global society.

Interested in Incorporating AI into your Workflow?

Check out Trellis! Trellis is an AI-driven state trial court research and analytics platform. We
make the fragmented US state trial court system searchable through a single interface by
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Sources:

https://www.reuters.com/legal/transactional/us-appeals-court-proposes-lawyers-certify-review-ai-use-filings-2023-11-22/

https://fingfx.thomsonreuters.com/gfx/legaldocs/mopajaxmava/11222023ai_5th.pdf

https://www.reuters.com/legal/transactional/lawyer-used-chatgpt-cite-bogus-cases-what-are-ethics-2023-05-30/