“Groundbreaking Ruling: How a Landmark Case is Redefining Copyright in the Age of AI”
In finding that factor two, the nature of the work, favored Ross, the Court noted “Westlaw’s material has more than the minimal spark of originality required for copyright validity. But the material is not that creative.” Likewise, factor three (substantiality of the amount copied) favored Ross largely because the copied works were not in the output. I disagree with the Court on this one for what it’s worth. Ross copied entire works for training.
Copyright lawyers know the most important factor is factor 4, “market harm.” Here, Ross was destroyed. First, it intended to create a competing product. Second, the Court noted that it ‘must consider not only current markets but also potential derivative ones “that creators of original works would in general develop or license others to develop.’” The burden of proof was on Ross to show that there was no licensing market, and it failed to do so. With new agreements regularly announced between AI firms and publishers, and with AI rights being made available under collective licenses, this burden will become harder for defendants.
