Westlaw, the world’s largest legal research service, is very likely to face antitrust liability. A federal court has ruled that ROSS Intelligence, a tiny rival offering new research tools (which Westlaw forced out of business with a copyright infringement suit) could proceed with claims that Westlaw uses exclusionary and anticompetitive practices to maintain its monopoly over the legal research market.
The ruling is a significant step in an antitrust case about Westlaw’s conduct as an entrenched incumbent. The company controls 80 percent of the market for legal research tools and maintains a massive, impossible-to-duplicate database of public case law built over decades. It faces few major competitors. Westlaw doesn’t license access to its database, which means that it’s difficult for another company to offer new and innovative online tools for searching case law or other follow-on products and services.
The potential ramifications of this case are huge. The outcome could boost the case for competitive compatibility (comcom), the ability of challengers to build on the work of entrenched players like Westlaw to create innovative and useful new products. More prosaically, it could improve public access to court records.
The U.S. District Court for the District of Delaware in April refused to dismiss an antitrust claim against Westlaw by the now-defunct legal research company ROSS Intelligence. ROSS developed a new online legal research tool using artificial intelligence (AI), contracting with an outside company for a database of legal cases sourced from Westlaw. Westlaw sued ROSS for copyright infringement, accusing it of using AI to mine the Westlaw database as source material for its new tool. Though the database is mainly composed of judicial opinions, which can’t be copyrighted, Westlaw long maintained that it holds copyrights to the page numbers and other organizational features. ROSS went out of business less than a year after Westlaw filed suit.
Despite going out of business, ROSS pressed ahead with a countersuit, claiming Westlaw and its parent company, Thomson Reuters Corporation, violate antitrust law by requiring customers to buy their online search tool to access its database of public domain case law, unlawfully tying the tool to the database to maintain dominance in the overall market for legal search platforms.
The dispute is more than an example of David v. Goliath: Lawyers, students, and academics all over the world rely on online access to court records for scholarship, research, education, and case work. Westlaw controls access to the largest database of public court records, judge’s opinions, statutes, and regulations. Those who need this information have little choice but to do business with Westlaw, on Westlaw’s terms. The work of compiling it took decades, and effectively can’t be duplicated, but no amount of effort alone gives Westlaw ownership over judges’ opinions. Copyrights are not based on effort, but rather on original, creative work. The mere fact that Westlaw worked hard to build its database doesn’t mean the public domain records of the U.S. legal system become its copyrighted material.
No single company should gatekeep public access to our laws and public information. Companies should be able to build on non-copyrighted work, especially the non-copyrighted work of a massive incumbent with enormous market power. This is especially important in categories such as legal research tools, because these are necessary if the public is to participate in governance and lawmaking in an informed manner.
ROSS had made other antitrust claims against Westlaw, saying it violated the Sherman Antitrust Act by refusing to license its database and engaging in sham litigation to block competitors from its industry. The court dismissed those claims. But the court let the claim of tying stand, siding with ROSS and finding that Westlaw’s database—which existed in the form of printed books for many decades before the internet—can be a separate product from its legal search tool, even though the tool does not work on any other database.
ROSS has “adequately and plausibly alleged separate product markets for public law databases and legal search tools,” the court said, while noting that the Supreme Court has “often found that arrangements involving functionally linked products, at least one of which is useless without the other, to be prohibited tying devices.”
ROSS will now be entitled to investigate Westlaw’s business practices to try to prove illegal tying. That will be no small feat. But it’s still important because it shows that entities like ROSS can use antitrust law to argue that companies with market power should allow others to build on their work. Westlaw will now have to explain how it benefits users to refuse to license its case law database to competing search tools, which could yield new insights into the law.
The lack of competitive compatibility is what holds back many new internet products and services. Many big tech companies used comcom when they were first starting out, but now that they are entrenched, powerful companies, they don’t want to make it easy for anyone to build on what they have. When they were upstarts, the products and services of big firms were fair game. Now that they’re entrenched, they don’t want upstarts challenging their dominance.
We need comcom to make better and more innovative products for tech users. This is particularly crucial with the products and services at the heart of this case. Companies like Westlaw/Thomson Reuters should not be able to monopolize online access to the law and limit the ways that people can engage with it. We will keep a close eye on this case.
Civil society organisations reject attempts to silence and criminalise social movements in the context of protests in Ecuador and demand that human rights are respected
The undersigned organisations and activists firmly reject the violent repression, arbitrary arrests and use of surveillance technologies to intimidate, harass, persecute and silence defenders of human rights and nature in Ecuador in the context of the protests that started on 13 June 2022.
iOS 14.2で追加されたゴキブリの絵文字がリアルすぎてアップデートに拒否反応を出す人も 2020年11月13日
Unicode 14.0、リリース時期を6か月先送り 2020年04月12日
ATOK 2008発表、プラグインでWebと連携へ 2007年12月13日
Copyright law cannot be used as a shortcut around the First Amendment’s strong protections for anonymous internet users, a federal trial court ruled on Tuesday.
The decision by a judge in the United States District Court for the Northern District of California confirms that copyright holders issuing subpoenas under the Digital Millennium Copyright Act must still meet the Constitution’s test before identifying anonymous speakers.
The case is an effort to unmask an anonymous Twitter user (@CallMeMoneyBags) who posted photos and content that implied a private equity billionaire named Brian Sheth was romantically involved with the woman who appeared in the photographs. Bayside Advisory LLC holds the copyright on those images, and used the DMCA to demand that Twitter take down the photos, which it did.
Bayside also sent Twitter a DMCA subpoena to identify the user. Twitter refused and asked a federal magistrate judge to quash Bayside’s subpoena. The magistrate ruled late last year that Twitter must disclose the identity of the user because the user failed to show up in court to argue that they were engaged in fair use when they tweeted Bayside’s photos.
When Twitter asked a district court judge to overrule the magistrate’s decision, EFF and the ACLU Foundation of Northern California filed an amicus brief in the case, arguing that the magistrate’s ruling sidestepped the First Amendment when it focused solely on whether the user’s tweets constituted fair use of the copyrighted works.
In granting Twitter’s motion to quash the subpoena, the district court agreed with EFF and ACLU that the First Amendment’s protections for anonymous speech are designed to protect a speaker beyond the content of any particular statement that is alleged to infringe copyright. So the First Amendment requires courts to analyze DMCA subpoenas under the traditional anonymous speech tests courts have adopted.
“But while it may be true that the fair use analysis wholly encompasses free expression concerns in some cases, that is not true in all cases—and it is not true in a case like this,” the court wrote. “That is because it is possible for a speaker’s interest in anonymity to extend beyond the alleged infringement.”
The district court then applied the traditional two-step test used to determine when a litigant can unmask an anonymous internet user. The first step requires a proponent of unmasking to show that their claims have legal merit. The second step requires courts to balance the harm to the anonymous speaker against the proponent of unmasking’s need to identify the user.
The district court ruled that Bayside failed on both steps.
First, the court ruled that Bayside had not shown that its copyright claims had merit, finding that the tweets at issue constituted fair use, largely because they were transformative.
“Rather, by placing the pictures in the context of comments about Sheth, MoneyBags gave the photos a new meaning—an expression of the author’s apparent distaste for the lifestyle and moral compass of one-percenters,” the court wrote.
Second, the court ruled that there were significant First Amendment issues at stake because the tweets constituted “vaguely satirical commentary criticizing the opulent lifestyle of wealthy investors generally (and Brian Sheth, specifically).” The court ruled that identifying “MoneyBags thus risks exposing him to ‘economic or official retaliation’ by Sheth or his associates.”
In contrast, the court ruled, Bayside failed to show that it needed the information, particularly given that Twitter had already removed the copyrighted images from the tweets. Further, the court was suspicious that Bayside may have been using its DMCA subpoena as a proxy for Sheth, which the court described as a “puzzling set of facts” that Bayside had never fully explained.
In upholding the user’s First Amendment rights to speak anonymously, the district court also rejected the argument that because the user never showed in court to fight the subpoena, Twitter could not raise constitutional arguments on its users’ behalf. EFF and ACLU’s brief called on the court to ensure that online services like Twitter can always stand in their users’ shoes when they seek to protect their rights in court.
The court agreed:
There are many reasons why an anonymous speaker may fail to participate in litigation over their right to remain anonymous. In some cases, it may be difficult (or impossible) to contact the speaker or confirm they received notice of the dispute. Even where a speaker is alerted to the case, hiring a lawyer to move to quash a subpoena or litigate a copyright claim can be very expensive. The speaker may opt to stop speaking, rather than assert their right to do so anonymously. Indeed, there is some evidence that this is what happened here: MoneyBags has not tweeted since Twitter was ordered to notify him of this dispute.
EFF is pleased with the district court’s decision, which ensures that DMCA subpoenas cannot be used as a loophole to the First Amendment’s protections. The reality is that copyright law is often misused to silence lawful speech or retaliate against speakers. For example, in 2019 EFF successfully represented an anonymous Reddit user that the Watchtower Bible and Tract Society sought to unmask via a DMCA subpoena, claiming that they posted Watchtower’s copyrighted material.
We are also grateful that Twitter stood up for its user’s First Amendment rights in court.