Editing Openai/6924739c-2300-800e-9743-65c152c213f1 (section)

=== Assistant: Short version: CCH is a double-edged sword for Thomson Reuters. ===
Short version: CCH is a double-edged sword for Thomson Reuters. The parts that help them (copyright in headnotes and law reports) come bundled with a very user-friendly, research-protective fair-dealing framework and strong rhetoric about access to legal information—exactly the kind of thing ROSS would love to put in front of a U.S. court. Given U.S. norms about foreign law and basic appellate-strategy constraints, it’s pretty rational to leave CCH on the cutting-room floor.

Here’s a more structured breakdown.

==== 1. U.S. norms about foreign decisions ====

===== a. Foreign cases are, at best, weak persuasive authority =====

In U.S. federal courts:
* Binding: U.S. Supreme Court, relevant circuit, and sometimes state courts on state law.
* Persuasive: other circuits, district courts, and then way down the ladder foreign courts.

So if you’re TR, you already have:
* Feist and its progeny on originality;
* U.S. cases recognizing copyright in headnotes / editorial material;
* A robust U.S. fair-use framework you can try to shape in your favor.

Adding CCH doesn’t change the binding law; it just gives the court extra reading and a chance to say “Canadian law is interesting but not controlling.” That’s a poor use of limited brief space unless the foreign case gives you something you can’t get from U.S. law.

===== b. Skepticism about foreign law, especially outside specialized areas =====

Some U.S. judges are openly wary of foreign citations except where international/foreign law is inherently at issue (e.g., treaties, international arbitration, maritime, choice-of-law questions).

Here you’re in a straight U.S. copyright / fair use case. Citing a Canadian Supreme Court decision could:
* Invite a “why are you bringing me Canadian law?” reaction.
* Signal (fairly or unfairly) that you don’t have enough domestic support.
* Distract from what you want to hammer: U.S. statutory language and U.S. Supreme Court precedent.

For a big commercial plaintiff like TR, playing it doctrinally orthodox (U.S. sources only) is often safer.

==== 2. CCH is substantively mixed for TR ====

CCH is not just a “yay publishers” decision. It’s a carefully balanced, user-friendly opinion. TR would not control which parts the court focuses on.

===== a. Yes, CCH helps on originality in law reports =====

Good for TR:
* CCH recognizes that headnotes, case digests, indices, and other editorial enhancements are original works and protected by copyright.
* It rejects pure “sweat of the brow” but still finds sufficient “skill and judgment” in law-report editing.

That dovetails nicely with TR’s claim that Westlaw’s headnotes, key numbers, and editorial content are protectable, even though the underlying judicial opinions are public domain.

But…

===== b. CCH strongly emphasises user rights and research uses =====

Bad (or at least risky) for TR:
* CCH characterizes fair dealing as a “user’s right”, not merely a defence.
* It interprets “research” very broadly and analogizes fair dealing to a constitutional-style balancing of access and protection.
* It ultimately finds that the Law Society’s custom photocopy service for legal research was fair dealing, despite systematic copying.

That is a narrative ROSS would happily import:
* “Just as CCH treated the law library’s copying as user-oriented research, this AI system enables legal research; the real beneficiaries are lawyers and the public.”
* “CCH shows that even substantial copying of law-report material can be fair when it serves research and access-to-law purposes.”

Once CCH is on the table, the court will read the whole thing, not just the paragraph TR likes. TR may decide that the upside (more support for originality) is outweighed by the downside (comparative support for expansive research exceptions).

===== c. CCH’s originality standard can cut both ways =====

CCH adopts a “skill and judgment” standard for originality, which is consciously similar to what Feist actually requires in U.S. law.

From TR’s perspective:
* They already must confront Feist and argue: “Our headnotes and key-number system aren’t mere facts or mechanical edits; they reflect judgment and creativity.”
* CCH emphasises that not everything a law reporter does is protectable—there has to be intellectual effort beyond the inevitable and commonplace.

ROSS could seize on that:
* “Even Canada’s apex court, while recognizing some editorial copyright, warns against over-protecting routine editorial work that would lock up access to law.”
* “Under a Feist-like standard, much of the classification work is not protectable expression.”

So CCH may not give TR more originality mileage than they already get from U.S. cases, but it does give ROSS extra language about limiting protection.

==== 3. Fair dealing vs fair use: TR may not want that comparison ====

Although fair dealing (Canada) and fair use (U.S.) overlap, there are important structural and rhetorical differences.

===== a. CCH builds a structured, user-friendly fair-dealing test =====

CCH sets out:
* Enumerated purposes (research, private study, etc.) interpreted broadly;
* A multi-factor fairness analysis with strong pro-user framing.

ROSS would argue:
* “Look—another common-law high court has adopted a structured, liberal, research-protective framework for analyzing informational uses. The U.S. should interpret fair use in a similar, research-friendly way, especially for legal information.”

TR does not want to invite that comparison. Their ideal framing:
* Treat fair use as a narrow, fact-bound exception, not a user-right.
* Focus on commerciality, market substitution, and the scale of copying.
* Keep the debate centered on U.S. four-factor case law that can be argued to cut against large-scale, commercial training on valuable proprietary databases.

Bringing in CCH risks encouraging the court to import user-rights rhetoric into U.S. fair-use analysis.

==== 4. Litigation-strategy and briefing constraints ====

Even if CCH were modestly helpful, there are mundane but real strategic reasons to drop it.

===== a. Word limits and focus =====

Federal appellate briefs are constrained by strict word limits. Good appellate writing is about relentless prioritization:
* Lead with binding Supreme Court and circuit authority.
* Use persuasive authority sparingly.
* Avoid side-roads that force the court to learn a foreign doctrinal system.

A Canadian Supreme Court case that:
* Isn’t binding,
* Has mixed pro-publisher and pro-user language,
* Uses a different statutory scheme and doctrinal framing,

is exactly the kind of thing that can be cut in favor of doubling down on U.S. authorities (e.g., Google v. Oracle, Authors Guild v. Google, circuit decisions on databases and compilations, etc.).

===== b. Avoid giving the other side easy ammo =====

The moment TR cites CCH, they give ROSS:
* License to quote all of CCH’s user-rights, access-to-law, and research-friendly language back at the same court;
* A justification to bring in other foreign authorities (EU, India, Japan) on text and data mining and AI training, many of which are more sympathetic to training-based uses.

From TR’s perspective:
* They’d rather argue: “This case can be cleanly resolved under U.S. law; you don’t need to open the door to a global policy debate about AI training.”
* They know ROSS would happily say: “Once we’re doing comparative law, let’s talk about EU TDM exceptions and Japan’s AI-friendly statutes.”

So strategically, keeping the playground fenced to U.S. law is advantageous for TR.

===== c. Perception of cherry-picking foreign law =====

If you cite CCH only for “headnotes are copyright” and stay silent on its fair-dealing and access-to-law parts, you risk:
* A judge or clerk reading the rest and concluding you’re cherry-picking.
* Undermining your credibility on other citations.

Many experienced litigators are cautious about inviting that kind of “I read the whole case and you did not give me the full story” reaction—especially when the case is foreign and the court doesn’t know it already.

==== 5. Similar legal system ≠ automatic relevance ====

You specifically mentioned that Canada is a similar legal system. That’s true (same common-law heritage), but from a U.S. appellate perspective:
* Similarity helps with intelligibility (judges can read and understand the reasoning).
* It does not change the fact that Canadian law is non-binding and built on a different statute, with different policy choices baked in.

A U.S. court might find CCH interesting in an academic sense. But TR’s job is not to educate the court on comparative copyright; it is to win under U.S. law with a focused, tightly-argued brief.

Given that:
* The “similar system” argument is more useful to ROSS (to say “look, other common-law jurisdictions are pro-research / pro-TDM”), and
* TR already has enough domestic material to make the originality point,

it’s unsurprising they’d decide not to go there.

==== 6. Putting it all together ====

If you fold in U.S. jurisprudential norms and hard-nosed litigation tactics, TR might rationally conclude:
# Marginal doctrinal gain CCH gives them only incremental support on originality and protection of headnotes—support they can already ground in U.S. cases and Feist-compatible arguments.
# Significant strategic downside CCH simultaneously strengthens the narrative that copying legal materials for research and access to law can be lawful, user-protective, and socially valuable, which aligns more with ROSS’s framing than TR’s.
# Risk of foreign-law distractions Citing it invites comparative law discussion, potential judicial skepticism, and an open door for ROSS to bring in foreign pro-AI/TDM authorities.
# Brief economy and credibility With limited words and the need to appear grounded in U.S. doctrine, a foreign case with a mixed message is an easy candidate to cut.

So, even though CCH comes from a respected apex court in a similar legal tradition, from TR’s standpoint it’s a strategic minefield: too much rhetorical upside for ROSS and not enough doctrinal upside for TR to justify the risk.