I'll quote a longer portion of the transcript about generative AI, because I think it makes the opposite of your point:
Ross’s use is not transformative. Transformativeness is about the purpose of the
use. “If an original work and a secondary use share the same or highly similar purposes, and the second use is of a commercial nature, the first factor is likely to weigh
against fair use, absent some other justification for copying.” Warhol, 598 U.S. at
532–33. It weighs against fair use here. Ross’s use is not transformative because it does
not have a “further purpose or different character” from Thomson Reuters’s. Id. at 529.
Ross was using Thomson Reuters’s headnotes as AI data to create a legal research
tool to compete with Westlaw. It is undisputed that Ross’s AI is not generative AI (AI
that writes new content itself). Rather, when a user enters a legal question, Ross spits
back relevant judicial opinions that have already been written. D.I. 723 at 5. That
process resembles how Westlaw uses headnotes and key numbers to return a list of
cases with fitting headnotes.
I think it's quite relevant that this was not generative AI: the reason that mattered is that "transformative" use biases towards Fair Use exemptions from copyright. However, this wasn't creating new content or giving people a new way to understand the data: it was just used in a search engine, much like Westlaw provided a legal search engine. The judge is pointing out that the exact implementation details of a search engine don't grant Fair Use.
This doesn't make a ruling about generative AI, but I think it's a pretty meaningful distinction: writing new content seems much more "transformative" (in a literal sense: the old content is being used to create new content) than simply writing a similar search engine, albeit one with a better search algorithm.
They were doing semantic search using embeddings/rerankers.
The point that reading both decisions together compounds is that if they had trained a model on the Bulk Memos and generated novel text instead of doing direct searches, there likely would have been enough indirection introduced to prevent a summary judgement and this would have gone to a jury as the September decision states.
In other words, from their comment:
> But I'm not sure "generative" is that meaningful a distinction here.
Ross’s use is not transformative. Transformativeness is about the purpose of the use. “If an original work and a secondary use share the same or highly similar purposes, and the second use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.” Warhol, 598 U.S. at 532–33. It weighs against fair use here. Ross’s use is not transformative because it does not have a “further purpose or different character” from Thomson Reuters’s. Id. at 529.
Ross was using Thomson Reuters’s headnotes as AI data to create a legal research tool to compete with Westlaw. It is undisputed that Ross’s AI is not generative AI (AI that writes new content itself). Rather, when a user enters a legal question, Ross spits back relevant judicial opinions that have already been written. D.I. 723 at 5. That process resembles how Westlaw uses headnotes and key numbers to return a list of cases with fitting headnotes.
I think it's quite relevant that this was not generative AI: the reason that mattered is that "transformative" use biases towards Fair Use exemptions from copyright. However, this wasn't creating new content or giving people a new way to understand the data: it was just used in a search engine, much like Westlaw provided a legal search engine. The judge is pointing out that the exact implementation details of a search engine don't grant Fair Use.
This doesn't make a ruling about generative AI, but I think it's a pretty meaningful distinction: writing new content seems much more "transformative" (in a literal sense: the old content is being used to create new content) than simply writing a similar search engine, albeit one with a better search algorithm.