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AI Just Hit a Copyright Wall and Authors Should Pay Attention
Something important happened in the argument over AI and copyright this week and writers should pay attention.
The US Court of Appeals for the Third Circuit upheld Thomson Reuters’ copyright victory against ROSS Intelligence, a legal-research company that used thousands of Westlaw headnotes in material used to train an AI-powered search system. The court concluded that the headnotes were copyrightable and that ROSS’s use was not fair use.
Why this matters
This is significant because it is the first US federal appellate decision to address fair use in the context of AI training. That does not mean every AI training dispute has suddenly been settled. Far from it. The ROSS system was a legal search tool rather than a modern generative AI model, and the facts of the case were unusually specific.
But one part of the judgment should make the creative industries sit up. The court did not accept the idea that putting copyrighted material into an AI-related training process automatically makes the use transformative. ROSS was developing a product that could compete in the same legal-research market as Westlaw, and that commercial relationship mattered.
For authors, the argument is changing
For several years, writers have been told that AI training sits in a legal grey area. In many respects it still does. Different cases involve different technologies, different source material and different uses. But the blanket assumption that training an AI makes copying fair is looking increasingly difficult to defend.
That distinction matters enormously to authors. A novel is not merely a pile of words. It represents choices character, structure, voice, rhythm, description, dialogue and thousands of small creative decisions. The ROSS judgment turned partly on the fact that Westlaw’s editors had exercised creative judgment when producing the headnotes. That principle should sound familiar to anyone who writes for a living.
AI is not the enemy here
I use AI in my own creative workflow, so I have little interest in pretending the technology is going away. Used properly, it can be a remarkable research, development and productivity tool for writers.
The real question is not whether authors should use AI. It is whether the AI economy can mature without treating human creative work as an unlimited free resource.
Those are two very different arguments.
What should writers take from this?
First, copyright still matters in the AI age. New technology does not automatically erase old rights. Second, the purpose of copying matters. Courts can look at whether an AI product competes with the people or businesses whose work helped build it. Third, provenance is becoming more important. Writers should increasingly think about retaining drafts, notes, revision histories and other evidence of their creative process.
And finally, authors should resist being pushed into a false choice between being pro-AI and pro-creator. We can be both.
The bigger shift
The most interesting thing about this case may not be what it decides, but what it represents. We are moving out of the first chaotic phase of generative AI, when almost everything happened faster than law, publishing and professional practice could react.
The boundaries are beginning to be tested properly now.
For writers, that is potentially good news. AI can become part of the creative ecosystem without replacing the basic proposition that creative work has value and that the people who produce it deserve a meaningful say in how it is used.
About Rob Frankson
Rob Frankson is the author behind 121 Minutes and the Near Galaxy Saga, writing original science fiction while exploring how emerging technology is changing the practical business of being an author. About Rob Frankson
AI & Editorial Transparency
AI & The Author is edited and published by Rob Frankson. Artificial intelligence is used to assist with news research, initial drafting, content organisation and supporting imagery. All articles are reviewed and, where necessary, edited by Rob Frankson before publication. The opinions, editorial position and final decision to publish remain the author's.
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