Case 1:20-cv-00613-LPS Document 31 Filed 03/29/21 Page 1 of 15 PageID #: 959
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`I’
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`Thomson Reuters Enterprise Centre
`GmbI-I and West Publishing Corp.,
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`Plaintiffs,
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`v.
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`ROSS Intelligence Inc.,
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`Defendant.
`
`CA. No. 20-613-LPS
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`
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`.
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`
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`Jack B. Blumenfeld, Michael J. Flynn, MORRIS, NICHOLS, ARSHT & TUNNELL LLP,
`Wilmington, DE
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`Dale M. Cendali, Joshua L. Simmons, Eric A. Loverro, KIRKLAND & ELLIS LLP, New York
`NY
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`Attorneys for Plaintiffs
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`David E. Moore, Stephanie E. O’Byrne, Tracey E. Timlin, POTTER ANDERSON &
`CORROON LLP, Wilmington, DE
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`Gabriel M. Ramsey, Kayvan M. Ghaffari, CROWEL & MORING LLP, San Francisco, CA
`
`Mark A. Klapow, Joshua M. Rychlinski, CROWELL & MORING LLP, Washington, DC
`
`Attorneys for Defendant
`
`
`MEMORANDUM OPINION
`
`MaI‘Ch 29, 2021
`Wilmington, Delaware
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`

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`Case 1:20-cv-00613-LPS Document 31 Filed 03/29/21 Page 2 of 15 PageID #: 960
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`not {Lg
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`STA
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`, U.S. District Judge:
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`Plaintiffs Thomson Reuters Enterprise Centre GmbH (“Thomson Reuters”) and West
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`Publishing Corp. (“West”) (collectively, “Plaintiffs”) have sued Defendant ROSS Intelligence
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`Inc. (“ROSS” or “‘Defendant”) for copyright infringement and tortious interference with contract.
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`(Di. 1) in general, this dispute concerns whether Defendant improperly accessed and infringed
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`Plaintiffs’ purported copyrights to certain Westlaw material through a third party to develop
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`Defendant’s own artificial intelligence-based legal search product. Pending before the Court is
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`Defendant’s Rule 12(b)(6) motion to dismiss. (D1. 11) For the reasons that follow, the Court
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`will deny the motion.
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`1.
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`BACKGROUND‘
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`A.
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`Westlaw
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`Thomson Reuters is a Swiss limited liability company having its principal place of
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`business in Switzerland. (DI. l 11 6) West is an entity incorporated and headquartered in
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`Minnesota.
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`(Id. 11 7)
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`Plaintiffs own and operate Westlaw, a Widely-known search platform used throughout the
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`legal industry, including by judges, law clerks, practicing lawyers, and law students. The
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`platform started in books and is now available online. Subscribers to Westlaw have access to a
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`comprehensive collection of legal information that is searchable through keywords, natural
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`language, and/or Boolean inquiries.
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`(Id. 11 11) According to Plaintiffs, “Westlaw includes access
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`to volumes of proprietary material (such as West Headnotes, case summaries, and other
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`Westlaw—created content), databases, and compilations of case law, state and federal statutes,
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`(13.1. I ;
`1 The following facts are taken from Plaintiffs’ complaint and the parties’ papers.
`see also D.l. 12, 15, 17) At this stage of the case, the Court takes as true all well-pled factual
`allegations in the complaint.
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`

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`Case 1:20-cv-00613-LPS Document 31 Filed 03/29/21 Page 3 of 15 PageID #: 961
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`state and federal regulations, law journals, treatises, and other resources — all organized and
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`curated by West’s editorial team.” (Id. 11 15)
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`Particularly relevant to this dispute are Westlaw’s Headnotes and the Westlaw Key
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`Number System (“WKNS”) (collectively referred to by Plaintiffs as “Westlaw Content”), both of
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`which are developed through a “rigorous editorial process” by attorney—editors.
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`(Id. 1111 1, 11)
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`The WKNS is a “complex hierarchy” that organizes the law into numerous topis, and then
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`subclassifies them into key numbers for legal issues and points of law.
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`(Id. 11 13) (providing
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`exemplary discussion of “Abandoned and Lost Property” topic) Plaintiffs allege that the
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`development of the WKNS “has been and continues to be the result of Plaintiffs’ numerous
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`creative choices about how to organize cases and which cases to place in that classification,
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`requiring substantial investments of time, technological and human resources, and money over
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`the course of decades.” (Id. 11 12) In addition to the WKNS, Headnotes summarize concepts
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`discussed in cases and are created by attorney-editors as judges issue their opinions. (Id. '11 14)
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`Attorney—editors integrate Headnotes into the WKNS ~ which are regularly edited and revised —
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`“so subscribers can easily find the latest decisions on any given topic or issue.” (Id)
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`Plaintiffs contend that they own valuable copyrights in Westlaw. (See id. 1111 20-23)
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`Plaintiffs allege that the attorney-editors” “sole responsibility is to review decisions, create
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`original and creative West Headnotes summarizing key points of law, and organizing those cases
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`and West Headnotes in the WKNS.” (Id. 11 20) Plaintiffs further allege that “[c]ases, areas of
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`law, legal topics, legal issues, subtopics, and subissues can all be summarized and organized in a
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`variety of different ways — the structure, sequence, and organization of WKNS is not something
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`that has been achieved by accident or necessity; rather, it is the result of decades of human
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`creativity and choices.” (Id. 11 21)
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`Case 1:20-cv-00613-LPS Document 31 Filed 03/29/21 Page 4 of 15 PageID #: 962
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`“To protect Westlaw, Thomson Reuters registers the database with the United States
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`Copyright Office every three months.” (Id. 11 22 & Ex. A) (“[C]ertif1cates of registration issued
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`by the Copyright Office and other documents reflecting Westlaw’s registrations”) Thomson
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`Reuters owns the alleged copyrights in the Westlaw Content, while West allegedly “creates and
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`
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`authors” Westlaw Content.
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`(Id. W 6-7)
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`To access and use Westlaw, subscribers agree to West’s Subscriber Agreements laying
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`out, among other things, what they are and are not allowed to do with Westlaw’s content.
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`(Id.
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`ll 18 (identifying specific provisions); see also D.I. 16) One provision states that a subscriber
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`“may not sell, sublicense, distribute, display, store or transfer [West’s] products or any data in
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`[its] products in bulk or in any wa},r that could be used to replace or substitute for [its] products in
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`whole or in part or as a component of any material offered for sale, license or distribution to third
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`parties.” (D.I. 1 atfil 18) (alterations in original) Thus, according to Plaintiffs, subscribers are
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`“expressly prohibited from using Westlaw Content to create a competitive product or to sell the
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`Plaintiffs’ proprietary content to others.” (Id. 1] 19) West “constantly monitor[s] user activity for
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`behavior that would breach the terms of its subscriber agreement.” (Id)
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`B.
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`ROSS
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`ROSS is an entity incorporated in Delaware and headquartered in San Francisco,
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`California.
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`(Id. 118)
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`Defendant was founded in 2015 and is engaged in the business of offering and providing
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`legal research services through its ROSS platform. (See id. ll 24) Rather than searching with
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`Boolean terms or keywords, ROSS users are able to search for relevant law by posing a question
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`in natural language.
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`(Id. 11 26) The ROSS platform provides users with cases summaries and
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`treatments, and it allows a user to “use the initial search results as a jumping—off point to find
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`additional cases with similar facts and/or procedural postures.” (Id. ll 27) ROSS states that it
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`3
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`leverages a natural search engine based on artificial intelligence to generate results from public
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`information, such as “case law, statutes, and regulations across various practice areas.” (DJ. 12
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`at 2, 4)
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`C.
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`ROSS And LegalEase
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`LegalEase Solutions, LLC (“LegalEase”) is a legal research and writing support services
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`company; it is not a legal research platform like West or ROSS. (DJ. 1 1] 29) Starting in 2008,
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`LegalEase obtained a limited license to use Westlaw to conduct legal research for customers.
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`(Id) According to Plaintiffs, the “Service Agreement between LegalEase and West prohibited
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`LegalEase from running or installing any computer software on West’s products or network, as
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`well as selling, sublicensing, distributing, displaying, storing, or transferring Westlaw
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`information in bulk to third parties.” (Id.) Plaintiffs allege that LegalEase started to breach these
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`terms by July 2017. (Id. 1] 30)
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`In July 2017, LegalEase stated in an interview that it was working with a machine
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`learning research firm (later revealed to be ROSS) to help create a legal research platform, and
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`that LegalEase was feeding that firm with “tons and tons of legal research.” (Id. ii 33) Around
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`this time, Plaintiffs observed a nearly 40-fold increase over LegalEase’s historical usage pattern,
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`i.e., from approximately 6,000 Westlaw transactions per month to a maximum of about 23 6,000
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`transactions per month (a usage rate nearly five times greater than the average monthly usage
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`rate of the top 100 law firms, as ranked by “The American Lawyer”).
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`(Id. 'H 31) According to
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`Plaintiffs, their investigation revealed that the users of certain Westlaw credentials assigned to
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`LegalEase were exhibiting bot-like behavior and that content from Westiaw was being
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`downloaded and stored in bulk by computer software.
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`(Id. ‘H 32)
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`Plaintiffs allege, on information and belief, that “ROSS paid LegalEase to copy Westlaw
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`Content from Westlaw to build ROSS’s competing platform, thereby knowingly and deliberately
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`4
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`instructing LegalEase to breach its Service Agreement with West” and that the two companies
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`have been working together since at least October 2015.
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`(Id. 1] 34) Plaintiffs further allege, on
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`information and belief, that LegalEase copied the Westlaw Content and distributed it to ROSS,
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`and then ROSS “copied that content and used it to create its platform.” (Id. fil 35; see also id. 11 3
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`(“ROSS intentionally and knowingly induced .
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`.
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`. LegalEase .
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`.
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`. to breach its contract with West
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`by engaging in the unlawful reproduction of Plaintiffs’ copyrighted content and distribution of
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`that content en masse to ROSS.”))
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`West subsequently terminated its agreement with LegalEase in January 2018.
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`(Id. 11 36)
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`It appears that West then sued LegalEase for breach of contract. (See D.I. 12 at 5) (citing West
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`Publ ’g Corp. v. LegalEase 8015., LLC, No. IS-cv—Ol445—DSD (D. Minn. May 25, 2018) (“the
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`LegalEase Case”)) Defendant states that, in that litigation, it “produced nearly 40,000
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`documents concerning LegalEase and ROSS’s development of its legal research algorithms and
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`platform” and that a subpoena and motion to compel further production by ROSS were filed.
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`(Id) On May 5, 2020, a consent judgment ended the LegalEase Case. (Id)
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`1).
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`Procedural History
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`On May 6, 2020 (the day after the LegalEase Case closed), Plaintiffs filed the above—
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`captioned matter against Defendant, alleging infringement of the Westlaw copyrights (see D.I. 1
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`{[11 40—48) and tortious interference with West’s contract with LegalEase (id. W 49—53). Plaintiffs
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`seek various forms of relief, including removal and destruction of Westlaw Content from
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`ROSS’S legal search product, injunctive relief, and monetary damages. (See id. 111i A-M)
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`On July 13, 2020, Defendant filed the pending motion to dismiss, pursuant to Federal
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`Rule of Civil Procedure 12(b)(6). (DJ. 11) The motion is directed to both the copyright
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`infringement and tortious interference claims. (See id. ; see also 13.1. 12 at 3) The motion is fully
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`briefed. (See D.I. 12, 15—17) The Court held telephonic oral argument on October 30, 2020.
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`5
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`, Case 1:20-cv-00613-LPS Document 31 Filed 03/29/21 Page 7 of 15 PageID #: 965
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`(13.1. 20) (“TL”)
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`II.
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`LEGAL STANDARDS
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`Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires
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`the Court to accept as true all material allegations of the complaint. See Spruill v. Gillie, 372
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`F.3d 218, 223 (3d Cir. 2004). “The issue is not whether a plaintiff will ultimately prevail but
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`whether the claimant is entitled to offer evidence to support the claims.” In re Burlington Coat
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`Factory Sec. Ling, 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted).
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`Thus, the Court may grant such a motion to dismiss only if, after “accepting all well-pleaded
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`allegations in the complaint as true, and viewing them in the light most favorable to plaintiff,
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`plaintiff is not entitled to relief.” Maio v. Aetna, Inc. , 221 F.3d 472, 481—82 (3d Cir. 2000)
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`(internal quotation marks omitted).
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`However, “[t]o survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a
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`right to relief above the speculative level on the assumption that the allegations in the complaint
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`are true (even if doubtful in fact).”’ Victaulic Co. v. Tlemon, 499 F.3d 227, 234 (3d Cir. 2007)
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`(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible
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`“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
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`that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009). At bottom, “[t]he complaint must state enough facts to raise a reasonable expectation
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`that discovery will reveal evidence of [each} necessary element” of a plaintiff’s claim.
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`Wilkerson v. New Media Tech. Charter Sch. Inc, 522 F.3d 315, 321 (3d Cir. 2008) (internal
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`quotation marks omitted).
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`The Court is not obligated to accept as true “bald assertions,” Morse v. Lower Merion
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`Sch. Dist, 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), “unsupported
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`conclusions and unwarranted inferences,” Schuylkill Energy Res, Inc. v. Pa. Power & Light Co,
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`6
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`113 F.3d 405, 417 (3d Cir. 1997), or allegations that are “self-evidently false,” Nomi v. Fauver,
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`82 F.3d 63, 69 (3d Cir. 1996).
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`111.
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`DISCUSSION
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`Plaintiffs have sued ROSS for copyright infringement under 17 U.S.C. § 101 et seq.
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`(Count I) and for tortious interference of contract (Count II). As discussed below, the Court will
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`deny ROSS’S motion to dismiss these claims.
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`A.
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`Copyright Infringement
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`The Constitution authorizes Congress to grant exclusive copyrights for a limited duration
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`of time “[t]o promote the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8.
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`Acting on that power, Congress codified federal copyright protections in various statutes,
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`including the Copyright Act of 1976. See 17 U.S.C. § 101 et seq. The Copyright Act provides a
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`cause of action for copyright infringement. Id. § 501(b).
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`To establish a claim for copyright infringement, the plaintiff must prove “(1) ownership
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`of a valid copyright, and (2) copying of constituent elements of the work that are origina .” Fez'st
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`Publ ’ns, Inc. v Rural Tel. Serv. Co, 499 U.S. 340, 361 (1991); see also Brownstein v. Lindsay,
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`742 F.3d 55, 77 n.16 (3d Cir. 2014). In Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166
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`
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`(2010), the Supreme Court held that 17 U.S.C. § 441(a) “imposes a [registration] precondition”
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`to filing a copyright infringement claim. See also Fourth Estate Pub. Benefit Corp. v. Wall—
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`Sz‘reet. com, LLC, 139 S. Ct. 881, 892 (2019). Therefore, courts within the Third Circuit have
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`developed a four-factor test for “identifying whether the Feisz‘ and Reed Elsevier requirements
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`can potentially be fulfilled through discovery.” Greenberg v. Scholastic, Inc, 2018 WL
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`6268411, at *3 (ED. Pa. Nov. 30, 2018). That is, “[t]o survive a motion to dismiss, a claim must
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`allege: ‘(1) which specific original works are the subject of the copyright claim; (2) ownership of
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`Case 1:20-cv-00613-LPS Document 31 Filed 03/29/21 Page 9 of 15 PageID #: 967
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`the copyrights in those works; (3) registration of the works in question with the Copyright Office
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`in accordance with 17 U.S.C. §§ 101, et seq; and (4) by what acts the defendant infringed the
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`copyright?” Micro Focus (US), Inc. v. Ins. Servs. OfiT, Inc, 125 F. Supp. 3d 497, 501 (D. Del.
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`2015) (quoting Key Consol. 2000, Inc. v. Troost, 432 F. Supp. 2d 484, 488 (MB. Pa. 2006)).2
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`The Court addresses these considerations below.
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`1.
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`The Complaint Alleges Specific Original
`Works That Are Subject To Plaintiff’s Copyright Claim
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`Section 102(a) of the Copyright Act grants protection for “original works of authorship,”
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`while Section 102(b) provides that copyright protection extends only to expressions of ideas, not
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`ideas themselves. “The sine qua non of copyright is originality.” Feist, 499 U.S. at 345. What
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`constitutes “original” work is left undefined in the Copyright Act. The Supreme Court, however,
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`has explained that “[o}riginal .
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`.
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`. means only that the work was independently created by the
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`author (as opposed to copied from other works), and that it possesses at least some minimal
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`degree of creativity.” Id. (citing 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990)).
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`“[T]he requisite level of creativity is extremely low; even a slight amount will suffice.” Id.
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`Pursuant to 17 U.S.C. § 410(c), in judicial proceedings, “the certificate of a registration
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`made before or within five years after first publication of the work shall constitute prima facie
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`evidence of the validity of the copyright,” as well as evidence of originality, authorship,
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`compliance with statutory formalities, and ownership. See Broadcast Music, Inc. v. Moor-Law,
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`Inc, 484 F. Supp. 357, 362-63 (D. Del. 1980).
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`The complaint alleges that Thomson Reuters registers the Westlaw database with the
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`2 Neither party here relies on the four-factor test outlined in Micro Focus. Rather, each
`party generally relies on the two-pronged test articulated in Feist. The Court would reach the
`same conclusion under either rubric.
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`Copyright Office every three months (13.1. 1, ‘11 11) and attaches over 300 pages of registration
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`certificates, spanning from 1981 through 2020 (id, Ex. A). These allegations satisfy the
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`requirement to allege which specific original works are the subject of the copyright claim and
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`are, therefore, “sufficient to meet the first prong of the [Feisr] analysis” at the pleading stage.
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`PDS Pathology Data Sys. Ltd. v. Zoetis Inc, 2018 WL 5033751, at *2 (D.N.J. Oct. 17, 2018).
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`Accordingly, the complaint passes the first hurdle of the four—factor test.
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`Defendant largely avoids the legal implications of copyright registration, instead arguing
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`that Westlaw Content is not copyrightable under the government edicts doctrine, and fiirther that
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`the WKNS is an unprotectable system and method of operation comprising elements that are
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`allegedly not original or creative. (D1. 12 at 9—14; see also Tr. at 19-22) These are important
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`and interesting questions that will, almost certainly, be confronted at some stage of this case.
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`They do not, however, provide a basis for granting Defendant’s motion, as they do not support a
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`conclusion that Plaintiffs have failed to state a claim for copyright infringement. See generally
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`Robinson 12. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002) (explaining that Federal Rule of Civil
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`Procedure 8(0) requires defendant to plead affirmative defense in answer, not in motion to
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`dismiss).3
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`
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`3 Defendant’s reliance on Riordan v. HJ. Heinz Co, 2009 U.S. Dist. LEXIS 114165
`(WD. Pa. Dec. 8, 2009), is unpersuasive.
`(See DI. 12 at 7-8; Tr. at 21) In that case, a motion to
`dismiss a copyright claim was granted at the pleadings stage on the basis that plaintiff’s “‘idea’
`for an tip—side down bottle [was] not copyrightable subject matter,” and furthermore, because no
`copyright registration had been obtained. Riordan, 2009 U.S. Dist. LEXIS 114165, at *37-42.
`Here, Plaintiffs have alleged and attached copyright registrations, giving rise to a rebuttable
`presumption of originality that Defendant has not rebutted. See 17 U.S.C. § 41 0(0).
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`Moreover, the Court is persuaded that Plaintiffs have, on the face of the complaint,
`plausibly alleged originality in certain Westlaw materials. (See, e.3., Di. 1, 11 14 (alleging that
`attorney-editors “carefully review [decisions] and create originai West Headnotes to describe
`the key concepts discussed” in the decisions) (emphasis added); id. 11 12 (alleging attorney-
`editors make “numerous creative choices about how to organize cases and which cases to place
`in that classification, requiring substantial investments of time, technological and human
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`9
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`Defendant also argues that the complaint does not identify the specific works that are
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`subject to the copyright claim. Although a more particularized identification of the specific
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`material that Plaintiffs contend is copyrighted will be necessary as this case proceeds, the
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`complaint satisfies Rule 8’s requirement of a short and plain statement giving Defendant notice
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`of Plaintiffs’ claims.
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`(See, e. g, DJ. 1, 11'“ 11-19 (section titled “Plaintiffs and the Creativity of
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`Westlaw,” focusing on allegedly creative and original work by attorney-editors); id. , EX. A at
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`326-27 (registration certificate of August 2019 stating author created “original and revised text
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`and compilation of legal materia ” including new “daily updates,” and expressly excluding
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`“government edicts .
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`.
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`. including legislative enactments, judicial decisions .
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`.
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`. or similar types of
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`official legal materials”)).4
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`2.
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`The Complaint Alleges Ownership
`Of The Copyrights in Those Works
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`The complaint alleges that West creates and authors Westlaw Content, while Thomson
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`Reuters is the owner of the copyrights to the Westlaw Content. (D.I. l, W 6—7) It is further
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`alleged that “Thomson Reuters is the sole owner and proprietor of all right, title, and interest in
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`resources, and money over the course of decades”)) When these allegations are accepted as true,
`Plaintiffs’ works are plausibly within the gambit of copyrightable subject matter. See generally
`Georgia v. PublicResourceOrg, Inc., 140 S. Ct. 1498, 1507 (2020) (stating that “authorship”
`rule underlying government edicts doctrine applies to “non-binding works (such as headnotes
`and syllabi)” but not to “works created by .
`.
`. private partiesfl who lack the authority to make or
`interpret the law, such as court reporters”); Callaghan v. Myers, 128 US. 617, 645-47 (1888)
`(upholding reporter’s copyright interest in explanatory material that reporter had created,
`including headnotes, syllabi, and table of contents); Am. Dental Ass ’n v. Delta Dental Plans
`Ass ’n, 126 F.3d 977, 979-81 (7th Cir. 1997) (“Classification is a creative endeavor.”); West
`Publ ’g Co. v. Mead Data Cent, Inc, 799 F.2d 1219, 1226-27 (8th Cir. 1986) (“[T]he
`arrangement West produces through [its reporting process] is the result of considerable labor,
`talent, and judgment”). But see Matthew Bender & Co. v. West Publ ’3 Ca, 158 F.3d 693, 699-
`700 (2d Cir. 1998) (rejecting originality of internal pagination of West’s case reporters).
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`4 The parties should consider including in the proposed schedule that they will submit for
`the Court’s consideration a requirement that Plaintiffs disclose and perhaps refine their
`contentions at appropriate points as the case develops. (See Tr. at 70-71)
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`10
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`and to the copyrights in Westlaw.” (Id 11 23) These allegations are sufficient to plausibly state
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`ownership in the alleged copyrighted works and meet the second prong of the analysis.5
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`3.
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`The Complaint Alleges Registration Of The Work In Question
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`The complaint alleges that “Thomson Reuters registers the database with the United
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`States Copyright Office every three months,” and Plaintiffs attach numerous certificates of
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`registration.
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`(Id. 1122) Thus, the third prong of the four-factor test is satisfied.
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`4.
`
`The Complaint Alleges Acts By
`Which Defendant Infringed The Copyright
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`ROSS contends that the complaint does not allege any copying by a specific accused
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`product. (D1. 12 at 7-9; see Tr. at 62-65) The Court disagrees. Paragraphs 24 to 39 of the
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`complaint allege that ROSS gained access to LegalEase’s Westlaw subscription and downloaded
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`significant amounts of allegedly copyrighted material that ROSS was not granted access to via a
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`subscriber agreement.
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`(See, e.g., D1. 1, 1111 31-32) (describing 40-fold increase in LegalEase’s
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`Westlaw usage rate supposedly indicative of bot~like behavior) ROSS is alleged to have
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`leveraged the Westlaw information obtained via LegalEase “to develop its platform.” (Id. 11 29;
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`see also id. 1111 26—35) To be sure, Plaintiffs’ allegations are mostly made “upon information and
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`belief,” which is permitted “when the facts at issue are peculiarly within the defendant’s
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`possession.” See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 107 n.31 (3d Cir. 2015).
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`The Court does not agree with Defendant that Plaintiffs were required to have conducted
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`5 Defendant contends that any alleged copyright in the WKNS has expired because the
`complaint alleges that the WKNS has existed since West’s inception in 1879, thereby extending
`beyond the 95-year term of protection. (D.I. 12 at 6-7) (citing D1. 1, 11 1) This position, which
`Defendant appears to have abandoned on reply (see D.I. 17), runs contrary to Section 103(1)) of
`the Copyright Act, which permits copyrights independent of preexisting material. In View of the
`allegation that the WKNS is “regularly edit[ed] and revise[d]” (D.I. 1, 11 14), and the attached
`copyright registration certificates filed every three months (id. 11 22), ROSS’s argument does not
`provide a basis to dismiss the complaint.
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`11
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`Case 1:20-cv-00613-LPS Document 31 Filed 03/29/21 Page 13 of 15 PageID #: 971
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`more fact finding before pleading, such as reverse engineering the ROSS platform.6 Plaintiffs
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`explain that “[o]ne cannot tell from using ROSS’s platform how it was created or what materials
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`were copied. That information [would be] solely in ROSS’S possession.” (D1. 15 at 11; see also
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`Malibu Media, LLC v. Doe, 2014 WL 7188822, at *3-4 (D. Md. Dec. 16, 2014) (finding
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`allegations of copyright infringement based upon information and belief plausible)) Considering
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`the totality of the allegations made against Defendant, accepting them as true, and drawing all
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`reasonable inferences in favor of Plaintiffs, the complaint plausibly alleges acts of infringement —
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`namely that Defendants have engaged in mass, illicit downloading of copyrighted Westlaw
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`material through LegalEase, which material was then used to develop the ROSS platform.
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`Therefore, the complaint satisfies the fourth prong of the analysis.
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`As all four prongs of the four-factor test have been met, the Court concludes that the
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`complaint adequately states a claim for direct copyright infringement. Accordingly, the Court
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`will deny ROSS’S motion to dismiss Count I. 7
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`B.
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`Tortious Interference With Contract
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`Count II of the complaint alleges tortious interference with contract, but the claim is not
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`asserted under any particular state’s law.
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`(See El. 1, 1111 49—53) ROSS moves to dismiss Count
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`
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`‘5 Defendant’s analogy to cases, including patent infringement cases that have not
`required pre~suit reverse engineering in order to state a claim, is unpersuasive. (See Tr. at 11,
`63—64, 69-70; see also id. at 34; Network Managing Sela, LLC v. AT&TInc., 2017 WL 472080,
`at *1 (D. Del. Feb. 3, 2017) (finding allegations based on information and belief sufficient where
`defendants kept “information about their .
`.
`. technology secret and .
`.
`. [did] not offer some
`public product that can be reverse engineered”))
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`7 It follows that, to the extent Defendant also intended its motion to challenge Plaintiffs’
`pleading of indirect infringement based on the lack of adequate allegations of direct infringement
`(see Tr. at 67-68; see also id. at 64 (“It’s the same [failingl as the direct infringement claim”) — a
`matter on which the parties disagree, and which the Court need not decide (see BI. 15 at 2 n. 1;
`D1. 17 at 6 n.5, Tr. at 15m18, 41, 64-65) —- that portion of the motion is also denied.
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`Case 1:20-cv-00613-LPS Document 31 Filed 03/29/21 Page 14 of 15 PageID #: 972
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`II, reasoning that, under Delaware’s borrowing statute for statutes of limitations, 10 Del. C.
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`§ 8121, California’s two—year statute applies, and therefore, the claim must be dismissed as
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`untimely. (D1. 12 at 14-19)8 ROSS also argues that elements of tortious interference have not
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`been adequately pled. (Id)
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`Plaintiffs counter that the claim arises under Minnesota law, which has a six-year statute
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`of limitations. Therefore, in Plaintiffs” View, application of Delaware’s borrowing statute means
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`that Delaware’s three~year time bar applies, making Count II timely. (DI. 15 at 16-19)
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`In the Third Circuit, statute of limitations defenses do not provide a basis for dismissal on
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`a Rule 12(b)(6) motion unless the bar is apparent on the face of the complaint. See Schmidt 12.
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`Skolas, 770 F.3d 241, 249 (3d Cir. 2014). That standard is not met here. To the contrary, the
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`parties have identified factual disputes — such as where the alleged injury occurred — which will
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`require further proceedings before the Court is in a position to resolve the statute of limitations
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`defense. To determine where a cause of action “arises” for purposes of the borrowing statute,
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`Delaware’s choice of law rules ask which state has the most significant relationship to the claim
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`and to the parties. See Johnson v. Warner Bros. Ent, Inc, 2017 WL 588714, at * 3 (D. Del. Feb.
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`14, 2017). In the circumstances presented here, that determination cannot be made on the face of
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`the complaint. See generally Benihana of Tokyo, Inc. v. Benihana, Inc, 828 F. Supp. 2d 720,
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`725 (D. Del. 2011) (identifying four factors, pursuant to Section 145 of Restatement (Second) of
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`8 “Traditionally, statutes of limitations are governed by forum law; however, Delaware’s
`borrowing statute has modified the traditional rule.” Grynberg v. Total Compagm'e Frangaise
`des Pétroles, 891 F. Supp. 2d 663, 678 (D. Del. 2012), vacated in part on other grounds, 2013
`WL 5459913 (D. Del. 2013). When a non~resident plaintiff files an action in Delaware for a
`claim arising outside of the state, the Delaware borrowing statute applies: “Where a cause of
`action arises outside of this State, an action cannot be brought in a court of this State to enforce
`such cause of action after the expiration of whichever is shorter, the time limited by the law of
`this State, or the time limited by the law of that state or country where the cause of action arose,
`for bringing an action upon such cause of action.” 10 Del. C. § 8121.
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`Case 1:20-cv-00613-LPS Document 31 Filed 03/29/21 Page 15 of 15 PagelD #: 973
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`Conflict of Laws, for assessing most significant relationship: (a) place where injury incurred; (b)
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`place where conduct causing injury occurred; (0) domicile, residence, nationality, place of
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`incorporation, and place of business of parties; and (d) place where relationship, if any, between
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`parties is centered).
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`Nor is the Court persuaded at this stage that the complaint fails to adequately allege the
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`elements of tortious interference with contract. As an initial matter, the parties dispute whether
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`the claim is governed by Minnesota law, as Plaintiffs contend, or California law, as Defendant
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`argues. Without deciding the choice—ofulaw question at this point, the Court concludes that the
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`claim is sufficiently pled either way.9 The complaint alleges that LegalEase had a contract with
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`West, which ROSS knew, and that ROSS nonetheless pursued LegalEase “to acquire access to
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`and copy Plaintiffs’ valuable content” while “knowing that it violated the terms of LegalEase’s
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`contract with West.” (Di. 1, M 1, 3, 51) The complaint further alleges that ROSS’S activities
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`were without justification, particularly in view of the allegation that ROSS had been denied
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`access to Westlaw (see id. W 1, 3, 30-31, 51) — an issue on which, in any event, Defendant may
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`have the burden. See Telluride Asset Mgmt., LLC v. Bridgewater Assocs., Inc, 2005 WL
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`1719204, at *3 (D. Minn. July 11, 2005).
`
`Accordingly, the Court concludes that the complaint adequately states a claim for tortious
`
`interference with contract.
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`III.
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`Conclusion
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`Defendant’s motion to dismiss will be denied. An appropriate Order follows.
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`9 See Kallok v. Medtronic, Inc, 573 N.W.2d 356, 362 (Minn. 1998) (stating claim for
`tortious interference requires allegations of (l) existence of contract, (2) alleged wrongdoer’s
`knowledge of contract, (3) intentional procurement of its breach, (4) without justification, and (5)
`damages); see also D.I. 12 at 19-20 (Defendant analyzing claim under California law).
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`14
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