October 13, 2026
By Emily Poler
One thing I find sooooo satisfying is a copyright case where the judge starts by saying, “hey, yeah, the litigants are asking us to figure out infringement related to new technology, but no matter the fancy-sounding jargon you’re throwing at me and what you claim are the earth-shattering stakes, this is JUST a copyright case. And I’m going to apply copyright law the same as I would if you brought a copyright case involving an old-fashioned book.”
Ok, it’s not a direct quote, but it’s the gist. So why does this get me so excited? Regardless of what I think of the outcome of a case, and as much as I like diving into new tech, for me, what I really love about being a lawyer and a litigator is reasoning by analogy. And, in the Third Circuit’s recent decision in Thomson Reuters Enterprise Centre GmbH v. ROSS Intelligence, Inc., (which I first wrote about here) the Third Circuit gave me what I love. “Under ROSS’s framing, this case appears to concern the future of AI legal technology. But appearances can be deceiving. In truth, this is no more than an ordinary copyright case,” said Judge Tamika Montgomery-Reeves.
For those of you who aren’t lawyers, we use a Thomson Reuters product called Westlaw for legal research. One of the things that, IMHO, makes Westlaw so useful is its West Key Number System, which is more or less like the Dewey Decimal System (without, at least as far as I know, the racism and misogyny of Melvil Dewey). The system organizes United States law into a structure of topics and key numbers that lawyers use to find cases relevant to specific legal issues and look for other cases that address the same issues. Most cases on Westlaw include a short summary called a headnote, which are generated by Westlaw editors.
ROSS Intelligence was (it no longer exists) a Westlaw competitor that “created an AI legal search engine that would respond to plain-language legal questions with relevant passages of text from judicial opinions.” To build this, ROSS hired a company to create training data for its AI, which consisted of questions and answers called “Bulk Memos.” Those Bulk Memos were based on — and quoted directly from — Westlaw’s headnotes. ROSS clearly intended its product to be a substitute for Westlaw; it even ran ads comparing its product to the Thomson Reuters database.
Not surprisingly, Thomson Reuters was none too happy about all this and sued ROSS. In response, ROSS claimed that Westlaw’s headnotes were not subject to copyright protection. It also argued its use of headnotes was an “intermediate” step and referenced a line of cases finding copying of computer code at an intermediate step to be fair use, where such copying was necessary to access purely functional elements of a computer program.
After some back and forth, the District Court found that headnotes were sufficiently original to be copyrighted. It also denied ROSS’s claim of fair use, noting that ROSS was not copying computer code. Late last month, the Third Circuit affirmed this holding.
It’s something of a landmark decision, since by my count it is the first case involving an AI platform to be decided by a Federal Appellate Court. And there are a couple of things especially noteworthy about the Court’s conclusions.
First, since ROSS’s end use — to assist with legal research — was the same as Westlaw’s, the Third Circuit found that ROSS’s use wasn’t particularly transformative, which weighed against a finding of fair use. The Court was also not particularly impressed with ROSS’s reliance on precedent that “intermediate” copying of computer code was fair use because, in contrast to those previous cases, ROSS didn’t NEED to copy the materials. ROSS simply chose to do it because it was the easiest way to train its AI. In addition, ROSS copied headnotes and not computer code.
The Third Circuit also found that, even though Thomson Reuters hadn’t yet licensed its headnotes, ROSS’s conduct could harm the potential market for Thomson Reuters to do so. (When considering fair use courts look at the impact on the potential market for the work being infringed.) This is interesting because earlier this year, the judge in the Meta copyright case found that this factor weighed in favor of fair use because the plaintiffs (authors, in that case) hadn’t presented evidence of harm to the licensing market. Obviously, the Third Circuit saw things differently.
What does Thomson Reuters’ victory mean for other AI-related copyright cases going forward? In my view, its impact may be limited because the use at issue here is so specific, and ROSS’s product was clearly directly competitive with Westlaw. In contrast, the LLMs at issue in cases involving Meta and Anthropic can be used for a wider range of tasks. For example, if an author’s novel is ingested into an LLM that is used to create materials that are not novels — say, an email to opposing counsel — the new use is less clearly competitive. Nonetheless, the ROSS case represents another step in the ongoing journey of AI through the courts, the epic saga of our legal (and cultural) times that we will continue to watch with bated breath.
September 29, 2026
By Emily Poler
Most copyright disputes you hear about — and most that I write about — question whether a work has been infringed or whether an infringement constitutes fair use. But that’s not every case! There are pretty interesting and obscure provisions in the Copyright Act that sometimes come into play, like that at the crux of a current lawsuit brought by old-school hip-hop artists Salt-N-Pepa against the record label that owns the music from their golden age as the First Ladies of Rap.
This provision, section 203 of the Copyright Act, allows artists to reclaim their copyrights and/or sound recordings from an entity to whom they transferred ownership after 35 years. The thinking behind it is that throughout the history of pop music, artists often got screwed when they signed their first contracts because they had less bargaining power than they eventually gained after becoming successful (and having the wherewithal and cash to hire attorneys). Imagine the difference, say, in Dolly Parton’s ability to favorably negotiate her first record deal when she was an unknown teenager from eastern Tennessee versus the imperial powers the Queen of Country wielded at the time of her death (RIP Dolly 😢).
That said, this right of reclamation only exists where there was (a) a grant of a transfer or license of copyright, and (b) that grant was executed by the author. Notably, the statute specifically says this right to terminate a transfer or license does not apply to works for hire. This makes sense because when someone creates something as a work for hire, that person isn’t legally the author of the work; the company they work for is.
And all that is the problem for Salt-N-Pepa. In 1986, the group’s members, which include Cheryl James (Salt) and Sandra Denton (Pepa), entered into a couple of agreements with Noise in the Attic Productions, Inc. (NITA), a company owned by their producer and manager Hurby Azor. (As an aside, shout-out to the third member of the group, Deidra Roper a/k/a Spinderella, their DJ, who is not involved in the case. But we should never forget Spinderella.) That contract names NITA as the “sole and exclusive owner” of the master recordings and all copyrights. Azor subsequently assigned those rights to the Next Plateau Records label in an agreement that James and Denton were not signatories to (the pair only signed an attached “inducement letter”). The years went by, record labels were bought and sold, the industry consolidated and today, the rights to the four albums Salt-n-Pepa recorded between 1986 and 1993 are owned by entertainment behemoth Universal Music Group (UMG).
James and Denton now say that those agreements are subject to termination under the Copyright Act. In keeping with this, in 2022 they served UMG with notices of termination. UMG responded saying the 1986 agreements did not amount to a transfer of copyright based on how those original agreements were structured, and that Salt-N-Pepa’s recordings for NITA were also works for hire. Either way, says UMG, James and Denton weren’t eligible to get their copyrights back.
As will surprise no one who reads this blog, James and Denton filed suit. However, the District Court judge agreed with UMG and dismissed the case. In her dismissal, the judge wrote “the 1986 agreements do not indicate that Plaintiffs ever owned the copyrights to the sound recordings or that they granted a transfer of those rights to anyone else.” Basically, the judge determined that the only assignment of ownership was NITA’s transfer to Next Plateau and no contract James and Denton executed indicated otherwise. Crucially, the judge said that James and Denton had failed to expressly assert copyright ownership in their original agreement with NITA. Thus, according to the judge, James and Denton never held any copyrights in the work they created. While the judge didn’t issue a decision on whether the recordings were works for hire, she did note that the original copyright registrations described NITA as “employer for hire.”
Last week, the Second Circuit heard the appeal of this matter. Salt-n-Pepa’s attorneys argued that the 1986 agreements they signed with their producer transferred rights that are subject to the Copyright Act’s termination section. They also argued that the District Court judge erred by insisting that artists expressly assert copyright ownership in their contracts. According to Salt-n-Pepa’s attorneys, by doing so the judge invented a “new requirement out of whole cloth” where the Copyright Act has no such rule.
UMG, for its part, said that the 1986 agreements were clear that Salt-n-Pepa hadn’t granted or licensed their copyrights to their producer. Therefore, according to Universal, there was no agreement to be terminated under Section 203 of the Copyright Act.
As with all things litigation, we’ll have to wait and see where the Second Circuit comes out. If I had to guess, I’d say that there’s a chance the Second Circuit reverses the District Court’s opinion, but not because the District Court’s conclusion was necessarily wrong. Rather, I think the Second Circuit may find that the 1986 contracts are a bit of a mess and, therefore, the case shouldn’t have been dismissed at a very preliminary stage.
While this gets sorted, we can all kick back and bop down memory lane to Salt-N-Pepa classics like Push It, Shoop, Whatta Man, or Let’s Talk About Sex, right? NOPE! UMG has removed the old albums from streaming platforms, claiming the question of who could license the music was unresolved; James and Denton allege the action is retaliation against their efforts to reclaim their work. So if you want to hear the original hits, you’ll have to dig out your old CDs. Assuming you still have something to play them on; if not, ask your kid, because apparently CD players are back in vogue among Gens Z and A.
September 15, 2026
By Emily Poler
Labor Day has come and gone, commercials for Starbucks Pumpkin Spice Latté (blech) are flooding the streaming platforms, and all those fresh-faced (for now) first-year associate attorneys are marching off to their new lives. Which puts me in mind of my early days in the legal arena, and specifically, the first trial I ever participated in. Well really, it was an arbitration hearing in a conference room, not a courtroom, but close enough to the real thing for young me. I was a super junior lawyer, a year or so out of law school, and it was just me and one of my firm’s partners representing our side. A lot of what went down was well above my pay grade, but I could work a photocopier and put papers into folders, so that was pretty much my role. Nonetheless, there were a bunch of things that day that have stuck with me.
Our client’s only witness was a woman. As the hearing went on, every time my colleague was concerned about what she might say or how well she was prepared to testify on a particular topic, he would send me and her to the ladies room. Why? Because we were literally the only two people using it so there was absolutely zero risk of anyone overhearing our potentially privileged conversations. Cone of silence! I suppose nowadays some might cry sexism (“they made you act like girls at a nightclub going to fix your makeup together!”), but it made sense at the time and worked perfectly.
More to the point of this post, however, I was amazed by the way my colleague just absolutely badgered the other side’s lead witness. At one moment the witness even swiveled his chair, turning his back for a temporary respite from the brutal cross-examination. (The arbitrator in the room exercised absolutely no control over the proceedings; he definitely dozed more than once during the hearing.) The other side must have had counsel, but I remember absolutely nothing about him or her and have no recollection of any effort to try to stop our side’s super aggressive questioning.
At the time, I was shocked at my colleague’s performance (and it was most assuredly a performance). I also remember thinking that, particularly as a young woman, there was absolutely no way in a million years I would ever be able to treat a witness like that.
Such lawyerly steamrolling comes to mind as a result of some recent dealings I’ve had with opposing counsel. In one case, the attorney was insistent that we have discussions on the phone, with the clients joining. I agreed to it — once. On that first call it immediately became clear that what opposing counsel really wanted was to go around me and speak directly to my client. That call ended VERY quickly. Since then, all calls have been without clients and I’ve been very careful to send him notes in follow-up emails. My reward? He has made it clear he thinks I’m out of my mind for refusing to have our clients talk to him, and for daring to memorialize our discussions in writing. Fine, he can be as aggressive as he likes, such behavior has no effect on me anymore. I’m doing what I know is right for my clients and myself.
Flipping the situation, in another case the opposing firm has, for better or worse, put the proceedings in the hands of a very, VERY junior lawyer without much of a clue. Now, I could be an absolute jerk to her because she would have no idea of how to respond. An easy win and power move for me, right? But obviously I’m not going to beat her down because that’s not my game. I know I can get what I need for my client without torturing opposing counsel, nor do I need to fuel my ego by performing like a gladiator — a need that seems to drive too many in my profession.
All these thoughts boil down to the simple tenet that just because your opposing counsel is doing something in a particular way, you don’t have to do it that way. Nor should a client expect — or want — their attorney to be overly antagonistic when it does nothing to advance the cause (even if it can make for entertaining theater).
September 1, 2026
By Laura Trachtman
I was listening to some Disney songs over the weekend, you know, like a normal 45 year old litigator does, and I caught “Poor, Unfortunate Souls” from the Little Mermaid. Every other time I’ve listened to this song, I’ve just enjoyed Ursula’s Lawful Evil tendencies, but this time, something caught my attention, and I wondered: “Is this a real contract?”
A contract needs six elements to be valid (an offer, acceptance, awareness, consideration, capacity, and legality), so let’s review seriatim. There’s an offer: Ursula’s terms are simple: “Now, here’s the deal: I will make you a potion that will turn you into a human for three days. Got that? Three days. Now listen, this is important: before the sun sets on the third day, you’ve got to get dear ol’ princey to fall in love with you, that is, he’s got to kiss you; not just any kiss, the kiss of True Love. If he does kiss you before the sun sets on the third day, you’ll remain human permanently! But, if he doesn’t, you turn back into a mermaid and… you belong to me!”
There’s acceptance; we’ve all seen the part where Ariel hides her face and signs the contract.
There’s awareness, which means mutual assent: Both parties understand the agreement and enter into it voluntarily, meaning there is no fraud, coercion, duress, or undue influence. I think this point deserves a little more analysis, in fairness to Ursula. There’s no fraud here, as Ursula clearly sets forth her conditions. There’s no coercion, as Ariel is in love with Prince Eric and desperately wants to become a human to win his heart so Ursula clearly isn’t making Ariel do anything she doesn’t want to do. And there’s no undue influence, as no one appears to like or trust Ursula, except for her eels, Flotsam and Jetsam. And while I have a disagreement with an expert on The Little Mermaid on whether Ariel signed under duress, I personally don’t think that this situation constitutes duress, as there’s no threat of physical harm, imprisonment, or financial ruin.
There’s consideration: both parties exchange something of value, as Ursula uses magic to transform Ariel into a human, and Ariel gives Ursula her voice.
Here we run into our first snag: we may not have capacity, depending upon the age of consent in the Kingdom under the Sea. Elsewhere in the movie, King Triton remonstrates with his daughter for her conduct and calls her out as being 16 years old. If the age of consent in that jurisdiction is 16, she’s able to legally enter into contracts, but if it’s 18 or older, then she’s unable to do so without the consent of her legal guardian, King Triton.
The final element is legality. Here again, there’s a snag: again, depending upon the jurisdiction, you can’t give yourself to another person to own legally. Unfortunately, there are two indications that selling oneself into slavery is legal in the Kingdom under the Sea: the plethora of Poor, Unfortunate Souls in the garden in Ursula’s cave, and the fact that King Triton allowed himself to become a slave to Ursula to save Ariel.
I think we can all recognize that Ursula engaged in all manner of improper conduct after the contract was signed transforming herself into an Ariel doppelganger and using Ariel’s voice to bewitch Prince Eric is clearly a violation of the covenant of good faith and fair dealing. However, at the point where Ariel signs the contract, assuming that capacity and legality don’t act as bars to the contract, we’re all good.
And that, Dear Reader, is why you should never enter into a contract with a Sea Witch. Up next: Was the Beast falsely imprisoning Belle? (kidding.)
August 25, 2026
By Laura Trachtman
At first blush, an action for an accounting and an action demanding inspection of a business entity’s books and records might seem like the same thing. After all, both involve basically reviewing information pertinent to the entity, right? Actually, the two causes of action are grounded in entirely different aspects of law. Let’s start off in alphabetical order:
A for Accounting!
So first: What is an accounting? It’s a report, formal or otherwise, which details all transactions, assets, income, expenses and distributions related to an estate, a trust, or a business. In other words, it’s a mechanism to ensure transparency and accountability when a person manages money or assets belonging to another. Usually this is demanded, informally at first, when partners/members/etc. think that an individual with access to money/resources is engaging in self-dealing or fiscal malfeasance.
Not everyone can demand an accounting. “Under New York law, an accounting is an equitable remedy (Barry v. Clermont York Assoc. LLC, 144 A.D.3d 607, 608, 42 N.Y.S.3d 123 [1st Dept. 2016]), “premised upon the existence of a fiduciary relationship” (Castellotti v. Free, 138 A.D.3d 198, 210, 27 N.Y.S.3d 507 [1st Dept. 2016] ).” Est. of Calderwood v. ACE Grp. Int’l LLC, 157 AD3d 190, 199 (1st Dept 2017). So, in other words, the person who demands the accounting must have a fiduciary relationship with the person of whom the accounting is demanded. However, once you’ve demanded an accounting, you should be able to get a fairly clear understanding of the finances of an entity, and whether there’s been some funny business going on. This isn’t restricted only to the banking records, but also credit card transactions.
Finally, wrongdoing must be established for a demand for an accounting to be granted but only in certain jurisdictions. For example, the First Department does not require wrongdoing to be established to grant an accounting, only that a fiduciary relationship be established. However, in an action for accounting, as in all equitable actions, one must demonstrate that there is no adequate relief available in law.
B for Books and Records!
What is an action for books and records? It’s a common law-cum-statutory right of inspection available to shareholders/partners of a business entity. The statutory part is codified in Business Corporations Law § 624, but the common-law right, which existed first in time and which was supplemented by the statute, is broader. Matter of Crane Co. v Anaconda Co., 39 NY2d 14, 19-20 (1976); Matter of Steinway, 159 NY 250, 263-265 (1899), quoted by Retirement Plan for Gen. Empls. of the City of N. Miami Beach v McGraw-Hill Cos., Inc., 120 AD3d 1052 (1st Dept 2014). (Sidenote: I’m unsure why the State Legislature would feel the need to pass legislation which was narrower than a well-established common law right, but this is why I do not participate in politics.) As set forth in Retirement Plan for Gen. Empls. of the City of N. Miami Beach v McGraw-Hill Cos., Inc., 120 AD3d 1052, supra, a qualified person can demand more than simply financial information: they can request minutes of the Board, records of shareholders and their contact information, and additional information related to the oversight and management of the Board, as well as the Board’s independence (Board members therein were alleged to be self-interested and thus conflicted).
Unlike in an accounting, a demand for books and records does not require wrongdoing to be first established; however, should a shareholder make such a demand for inspection, the shareholder may be required to make some demonstration. The First Department in Pomerance v. McGrath, 143 AD3d 443, 444 (1st Dept 2016) shed light on the limits of this action: “While inspection rights permit shareholders to examine records that are relevant and necessary for a valid purpose, they do not grant shareholders a right to be involved in day to day management. Whether a shareholder asserts statutory or common-law inspection rights, the shareholder may be required to demonstrate good faith and a valid purpose, and inspection may be limited to the scope of records relevant and necessary for such purpose [internal citations omitted].”
C for Conclusion!
Why are we even talking about these two actions? It’s important for anyone involved in a business entity to know what their rights are. When I first spoke with my brilliant partner Emily about an action for books and records last year, I’d never even heard of it, and wondered aloud how it was different from an accounting. And now, Dear Reader, we all know.
