5 ms·

This is an interesting opinion, but there are aspects of it that I doubt will stand the test of time. One aspect is the court’s ruling that West’s headnotes ar

This is an interesting opinion, but there are aspects of it that I doubt will stand the test of time. One aspect is the court’s ruling that West’s headnotes are copyrightable even when they merely quote a court opinion verbatim, because the editorial decision to quote the material itself shows a “creative spark”. It really isn’t workable — in law specifically - for copyright to attach to the mere selection of a quote from a case to represent that case’s holding on an issue. After all, we would expect many lawyers analyzing the case independently to converge on the same quotes! The key fact underlying all of this, I think, is that when Ross paid human annotators to write their own versions of the headnotes, they really did crib from West’s wholesale rather than doing their own independent analysis. Source text was paraphrased using curiously similar language to West’s paraphrasing. That, plus the fact that Ross was a directly competing product, is what I see as really driving this decision. The case has very little to say about the more commonly posed question of whether copyright is infringed in large-scale language modeling.

zozbot234 2y ago
If close paraphrase can be detected, this ought to be proof enough that some non-trivial element of creativity was involved in the original text. Because purely functional and necessary elements are not protected by copyright, even when they would otherwise be creative (this is technically known as the 'scenes à faire' case) - and surely a "quote" which is unavoidable because it factually and unquestionably is the core of the ruling would have to fall under that.
- DrScientist 2y ago
  Isn't the argument that the act of selecting the right quote is the real work - and the work the copier avoided in the act of copying? You could argue that all the words are already in the dictionary - so none of them are new, you are just quoting from the dictionary in a particular order...... The reason you have people, rather than computers interpreting the law, is you can make judgements that make sense. Fundamentally these laws are there to protect work being unfairly ripped off. What was clearly done in this case was a rip-off which damaged the original creator - everything else is dancing on the head of a pin.
  - zozbot234 2y ago
    Copyright does not protect work ("sweat of the brow"), it only protects expression and creativity. Thus, whenever there is only one right expression or even a bare handful in any given context, copyright does not apply to that particular choice. By analogy, arranging words in some semi-arbitrary order can be an expressive choice, whereas using what's effectively a fixed phrase is not, even though the two might look similar and involve a comparable amount of "work".
    - DrScientist 2y ago
      The intention of copyright is to protect useful work. The detail of how to do that in fair way that doesn't block other people is complex[1] - you can never cover all possibilities in a written law - that's why you have people interpreting them and making judgements. All I'm saying is the guiding light in that interpretation is copyright is there to protect the justifiable work of people in a fair way. Somebody taking those law notes and trivially copying them to directly compete is clearly not 'fair use'. If those notes could have been created mechanically directly from the original source - why didn't the copier do that - rather than use the competitors work? [1] given the endless creativity of humans to game systems.
      - zozbot234 2y ago
        > The intention of copyright is ..."to promote the progress of science and useful arts". I don't see anything in there about rewarding 'work' irrespective of whether that work involves any kind of creativity. > If those notes could have been created mechanically directly from the original source - why didn't the copier do that That's actually a very good question. In practice, I do absolutely agree that the notes involve plenty of originality and creativity.
        DrScientist 2y ago
        The intention of copyright is ..."to promote the progress of science and useful arts". I don't see anything in there about rewarding 'work' irrespective of whether that work involves any kind of creativity. Not sure where you got that quote from, but I'd say the work aspect is implicit in the "promote the progress" - ie progress requires that people are able to get paid in their work to progress science or the useful arts. If the progress was trivial and required no work then it wouldn't need protection or promotion. And sure it's phrased that way to get the balance between fair use and protection - but if there was no need of protection then copyright wouldn't need to exist - as free reuse is the default.
fncypants 2y ago
I think this is the best takeaway. This case and its outcome is restricted to its facts. Most of the LLM activity today is very different than what happened here.
AnthonyMouse 2y ago
> That, plus the fact that Ross was a directly competing product, is what I see as really driving this decision. The "competing product" thing is probably the most extreme part of this opinion. The most important fair use factor is if the use competes with the original work, but this is generally implied to be directly competes, i.e. if you translate someone else's book from English to French and want to sell the translation, the translation is going to be in direct competition for sales to people who speak both English and French. The customer is going to use the copy claiming fair use as a direct substitute for the original work, instead of buying it. This court is trying to extend that to anything downstream from it, which seems crazy. For example, "multiple copies for classroom use" is one of the explicit examples of fair use from the copyright statute, but schools are obviously teaching people intending to go into competition with the original author, and in general the idea that you can't read something if you ever intend to write something to sell in competition with it seems absurd and in contradiction to the common practices in reverse engineering. But this is also a district court opinion that isn't even binding on other courts, so we'll see what happens if it gets appealed.
- mountainb 2y ago
  No that is not an extreme interpretation of the fair use factors. This is a routinely emphasized factor in fair use analyses for both copyright and trademark. School fair use is different because that defense is written into the statute directly in 17 U.S.C. § 107. Also, § 108 provides extensive protections for libraries and archives that go beyond fair use doctrines. The idea that the schools are encouraging the students to compete with the original authors of works taught in the classroom is fanciful by the meaning that courts usually apply to competition. Your example is different from this case in which Ross wanted to compete in the same market against West offering a similar service at a lower price. Another reason that the schools get a carveout is because it would make most education impractical without each school obtaining special licenses for public performance for every work referenced in the classroom. But maybe that also provokes the question as to if schools really deserve that kind of sweetheart treatment (a massive indirect subsidy), or does it over-privileges formal schools relative to the commons at large?
  - 2y ago
6stringmerc 2y ago
The crux is Fair Use and until lobbyists change the four factor test, AI training has an uphill battle in court. It’s a very disliked observation in this forum, but I stand by my principles on this one because the courts see it my way. Derivative works, especially by artificial means, simply fail the test miserably and that’s the truth.
deleted 2y ago
[deleted]
greggyb 2y ago
Collections of essays or poems are considered copyrightable. This seems analogous enough to me.
fsckboy 2y ago
>the court’s ruling that West’s headnotes are copyrightable even when they merely quote a court opinion verbatim, because the editorial decision to quote the material itself shows a “creative spark” ... when Ross paid human annotators to write their own versions of the headnotes, they really did crib from West’s wholesale rather than doing their own independent analysis ... so it follows that it was then Ross's annotators showing the creative spark
pigbearpig 2y ago
" court’s ruling that West’s headnotes are copyrightable even when they merely quote a court opinion verbatim" That is the opposite of the ruling. The judge said the ones that summarize and pick out the important parts are copyrightable and specifically excludes the headnotes that quote court opinion verbatim. The judge: "But I am still not granting summary judgment on any headnotes that are verbatim copies of the case opinion (for reasons that I explain below)"
- anon373839 2y ago
  You're right as far as the MSJ is concerned, and I should've been more precise. I was focusing on the dictum in the preceding paragraph (because we're discussing the broader implications of the order rather than the nuts-and-bolts of the instant motion). In that paragraph, the judge wrote: > More than that, each headnote is an individual, copyrightable work. That became clear to me once I analogized the lawyer’s editorial judgment to that of a sculptor. A block of raw marble, like a judicial opinion, is not copyrightable. Yet a sculptor creates a sculpture by choosing what to cut away and what to leave in place. That sculpture is copyrightable. 17 U.S.C. §102(a)(5). So too, even a headnote taken verbatim from an opinion is a carefully chosen fraction of the whole. Identifying which words matter and chiseling away the surrounding mass expresses the editor’s idea about what the important point of law from the opinion is. That editorial expression has enough “creative spark” to be original. ... So all headnotes, even any that quote judicial opinions verbatim, have original value as individual works. I personally don't think this sculpture metaphor works for verbatim quotes from judicial opinions.
  - Matticus_Rex 2y ago
    Yeah, I'm willing to bet that metaphor gets called out as ludicrous by a higher court, as it has broader implications across types of editorial expression that break down when examined. The marble from which a sculpture is carved is not itself a copyrighted work, and if we imagine it as having copyright protection, to the extent it's recognizable after editorial expression it'd have to qualify as fair use itself.
    - 2y ago
bee_rider 2y ago
> It really isn’t workable — in law specifically - for copyright to attach to the mere selection of a quote from a case to represent that case’s holding on an issue. After all, we would expect many lawyers analyzing the case independently to converge on the same quotes! I guess it depends on how long the source is, and how long the collection of quotes is, if we’d expect multiple lawyers to converge on the same solution. I don’t think it is totally obvious, though… I’m also not sure if that’s a generally good test. It seems great for, like, painting. But I wouldn’t be surprised if we could come up with a photography scene where most professionals would converge on the same shot…
singleshot_ 2y ago
My experience using Westlaw Keycites at work is that they’re not primarily created by fishing a quote out of a holding, but instead by synthesizing a rule. If I want a summary, I read the Keycite; if I want a money quote, I root around in the case linked to the Keycite. Have you seen different? I’m curious what area of law you practice and in what state, for comparison’s sake.
- anon373839 2y ago
  Yeah, I'd agree that most are synthesized. But I do frequently see headnotes that are verbatim or nearly verbatim slices from the text. Just grabbing a case at random: Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006). The 4th headnote reads: > The federal system contemplates that individual states may adopt distinct policies to protect their own residents and generally may apply those policies to businesses that choose to conduct business within that state. And the opinion reads: > [T]he federal system contemplates that individual states may adopt distinct policies to protect their own residents and generally may apply those policies to businesses that choose to conduct business within that state.

zozbot234 2y ago

If close paraphrase can be detected, this ought to be proof enough that some non-trivial element of creativity was involved in the original text. Because purely functional and necessary elements are not protected by copyright, even when they would otherwise be creative (this is technically known as the 'scenes à faire' case) - and surely a "quote" which is unavoidable because it factually and unquestionably is the core of the ruling would have to fall under that.

DrScientist 2y ago
Isn't the argument that the act of selecting the right quote is the real work - and the work the copier avoided in the act of copying? You could argue that all the words are already in the dictionary - so none of them are new, you are just quoting from the dictionary in a particular order...... The reason you have people, rather than computers interpreting the law, is you can make judgements that make sense. Fundamentally these laws are there to protect work being unfairly ripped off. What was clearly done in this case was a rip-off which damaged the original creator - everything else is dancing on the head of a pin.
- zozbot234 2y ago
  Copyright does not protect work ("sweat of the brow"), it only protects expression and creativity. Thus, whenever there is only one right expression or even a bare handful in any given context, copyright does not apply to that particular choice. By analogy, arranging words in some semi-arbitrary order can be an expressive choice, whereas using what's effectively a fixed phrase is not, even though the two might look similar and involve a comparable amount of "work".
  - DrScientist 2y ago
    The intention of copyright is to protect useful work. The detail of how to do that in fair way that doesn't block other people is complex[1] - you can never cover all possibilities in a written law - that's why you have people interpreting them and making judgements. All I'm saying is the guiding light in that interpretation is copyright is there to protect the justifiable work of people in a fair way. Somebody taking those law notes and trivially copying them to directly compete is clearly not 'fair use'. If those notes could have been created mechanically directly from the original source - why didn't the copier do that - rather than use the competitors work? [1] given the endless creativity of humans to game systems.
    - zozbot234 2y ago
      > The intention of copyright is ..."to promote the progress of science and useful arts". I don't see anything in there about rewarding 'work' irrespective of whether that work involves any kind of creativity. > If those notes could have been created mechanically directly from the original source - why didn't the copier do that That's actually a very good question. In practice, I do absolutely agree that the notes involve plenty of originality and creativity.
      - DrScientist 2y ago
        The intention of copyright is ..."to promote the progress of science and useful arts". I don't see anything in there about rewarding 'work' irrespective of whether that work involves any kind of creativity. Not sure where you got that quote from, but I'd say the work aspect is implicit in the "promote the progress" - ie progress requires that people are able to get paid in their work to progress science or the useful arts. If the progress was trivial and required no work then it wouldn't need protection or promotion. And sure it's phrased that way to get the balance between fair use and protection - but if there was no need of protection then copyright wouldn't need to exist - as free reuse is the default.

fncypants 2y ago

I think this is the best takeaway. This case and its outcome is restricted to its facts. Most of the LLM activity today is very different than what happened here.

AnthonyMouse 2y ago

> That, plus the fact that Ross was a directly competing product, is what I see as really driving this decision. The "competing product" thing is probably the most extreme part of this opinion. The most important fair use factor is if the use competes with the original work, but this is generally implied to be directly competes, i.e. if you translate someone else's book from English to French and want to sell the translation, the translation is going to be in direct competition for sales to people who speak both English and French. The customer is going to use the copy claiming fair use as a direct substitute for the original work, instead of buying it. This court is trying to extend that to anything downstream from it, which seems crazy. For example, "multiple copies for classroom use" is one of the explicit examples of fair use from the copyright statute, but schools are obviously teaching people intending to go into competition with the original author, and in general the idea that you can't read something if you ever intend to write something to sell in competition with it seems absurd and in contradiction to the common practices in reverse engineering. But this is also a district court opinion that isn't even binding on other courts, so we'll see what happens if it gets appealed.

mountainb 2y ago
No that is not an extreme interpretation of the fair use factors. This is a routinely emphasized factor in fair use analyses for both copyright and trademark. School fair use is different because that defense is written into the statute directly in 17 U.S.C. § 107. Also, § 108 provides extensive protections for libraries and archives that go beyond fair use doctrines. The idea that the schools are encouraging the students to compete with the original authors of works taught in the classroom is fanciful by the meaning that courts usually apply to competition. Your example is different from this case in which Ross wanted to compete in the same market against West offering a similar service at a lower price. Another reason that the schools get a carveout is because it would make most education impractical without each school obtaining special licenses for public performance for every work referenced in the classroom. But maybe that also provokes the question as to if schools really deserve that kind of sweetheart treatment (a massive indirect subsidy), or does it over-privileges formal schools relative to the commons at large?
- 2y ago

6stringmerc 2y ago

The crux is Fair Use and until lobbyists change the four factor test, AI training has an uphill battle in court. It’s a very disliked observation in this forum, but I stand by my principles on this one because the courts see it my way. Derivative works, especially by artificial means, simply fail the test miserably and that’s the truth.

deleted 2y ago

[deleted]

greggyb 2y ago

Collections of essays or poems are considered copyrightable. This seems analogous enough to me.

fsckboy 2y ago

>the court’s ruling that West’s headnotes are copyrightable even when they merely quote a court opinion verbatim, because the editorial decision to quote the material itself shows a “creative spark” ... when Ross paid human annotators to write their own versions of the headnotes, they really did crib from West’s wholesale rather than doing their own independent analysis ... so it follows that it was then Ross's annotators showing the creative spark

pigbearpig 2y ago

" court’s ruling that West’s headnotes are copyrightable even when they merely quote a court opinion verbatim" That is the opposite of the ruling. The judge said the ones that summarize and pick out the important parts are copyrightable and specifically excludes the headnotes that quote court opinion verbatim. The judge: "But I am still not granting summary judgment on any headnotes that are verbatim copies of the case opinion (for reasons that I explain below)"

anon373839 2y ago
You're right as far as the MSJ is concerned, and I should've been more precise. I was focusing on the dictum in the preceding paragraph (because we're discussing the broader implications of the order rather than the nuts-and-bolts of the instant motion). In that paragraph, the judge wrote: > More than that, each headnote is an individual, copyrightable work. That became clear to me once I analogized the lawyer’s editorial judgment to that of a sculptor. A block of raw marble, like a judicial opinion, is not copyrightable. Yet a sculptor creates a sculpture by choosing what to cut away and what to leave in place. That sculpture is copyrightable. 17 U.S.C. §102(a)(5). So too, even a headnote taken verbatim from an opinion is a carefully chosen fraction of the whole. Identifying which words matter and chiseling away the surrounding mass expresses the editor’s idea about what the important point of law from the opinion is. That editorial expression has enough “creative spark” to be original. ... So all headnotes, even any that quote judicial opinions verbatim, have original value as individual works. I personally don't think this sculpture metaphor works for verbatim quotes from judicial opinions.
- Matticus_Rex 2y ago
  Yeah, I'm willing to bet that metaphor gets called out as ludicrous by a higher court, as it has broader implications across types of editorial expression that break down when examined. The marble from which a sculpture is carved is not itself a copyrighted work, and if we imagine it as having copyright protection, to the extent it's recognizable after editorial expression it'd have to qualify as fair use itself.
  - 2y ago

bee_rider 2y ago

> It really isn’t workable — in law specifically - for copyright to attach to the mere selection of a quote from a case to represent that case’s holding on an issue. After all, we would expect many lawyers analyzing the case independently to converge on the same quotes! I guess it depends on how long the source is, and how long the collection of quotes is, if we’d expect multiple lawyers to converge on the same solution. I don’t think it is totally obvious, though… I’m also not sure if that’s a generally good test. It seems great for, like, painting. But I wouldn’t be surprised if we could come up with a photography scene where most professionals would converge on the same shot…

singleshot_ 2y ago

My experience using Westlaw Keycites at work is that they’re not primarily created by fishing a quote out of a holding, but instead by synthesizing a rule. If I want a summary, I read the Keycite; if I want a money quote, I root around in the case linked to the Keycite. Have you seen different? I’m curious what area of law you practice and in what state, for comparison’s sake.

anon373839 2y ago
Yeah, I'd agree that most are synthesized. But I do frequently see headnotes that are verbatim or nearly verbatim slices from the text. Just grabbing a case at random: Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006). The 4th headnote reads: > The federal system contemplates that individual states may adopt distinct policies to protect their own residents and generally may apply those policies to businesses that choose to conduct business within that state. And the opinion reads: > [T]he federal system contemplates that individual states may adopt distinct policies to protect their own residents and generally may apply those policies to businesses that choose to conduct business within that state.