Westlaw Must Face Antitrust Claims in a Case That Could Boost Competitive Compatibility
peter.suber's bookmarks 2022-06-22
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 s
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