As Thomson Reuters v. Ross Intelligence heads to the appellate court, we wanted to re-up Re:Create Executive Director Brandon Butler’s op-ed on the mistakes in the lower court’s opinion. Following U.S. Circuit Judge Stephanos Bibas’ February 2025 ruling in the first major AI fair use case, Butler authored an op-ed in Law360 criticizing the opinion, highlighting its potential impact on the future of fair use and creative expression.
Butler detailed how the ruling misapplies fair use principles by overlooking intermediate copying. Additionally, he argues that the court incorrectly compares Ross’ use of Thomson Reuters’ headnotes with direct market substitution and ignores the transformative nature of Ross’ AI tool.
Butler writes,
“Taken together, these mistakes make the ROSS opinion a poor bellwether for what’s to come in AI fair use litigation. If Judge Bibas had engaged with the full body of intermediate copying cases and laid out a persuasive case for distinguishing AI training, the outlook for AI companies litigating other cases would be darker today.
Similarly, if Judge Bibas had connected ROSS’ use to actual market substitution, rather than the broader, more amorphous concept of market competition, the opinion would cast a longer shadow. As it stands, however, this first judicial walk through the AI fair use labyrinth has hit a dead end.”
Ahead of the U.S. Circuit of Appeals’ review of the case, Butler emphasizes how Judge Bibas’ opinion in this case could hinder innovation and creativity in the U.S.
If you would like to speak with Re:Create Executive Director Brandon Butler about the Thomson Reuters v. Ross Intelligence case, please contact press@recreatecoalition.com