Judge Bibas: "Wisdom does not always find me, so I try to embrace it when it does—even if it comes late, as it did here"

Judge Bibas, sitting by designation in the District of Delaware, revises his prior summary judgment opinion.

There is a long-running dispute between Thompson-Reuters and Ross. TR alleges that Ross used the Westlaw headnotes to train a competing AI product. In 2023, Judge Bibas largely ruled against TR. But on the eve of trial, the case was stayed. Today, Judge Bibas issued a revised opinion. In short, he changed his mind.

The opinion begins:

A smart man knows when he is right; a wise man knows when he is wrong. Wisdom does not always find me, so I try to embrace it when it does––even if it comes late, as it did here. I thus revise my 2023 summary judgment opinion and order in this case.

Felix Frankfurter  wrote in a dissent, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." However, Frankfurter almost certainly did not make this quote up. Sir Arthur Conan Doyle wrote in a Holmes short story, "but it is better to learn wisdom late than never to learn it at all." And I'm certain others said it before him. Judge Bibas channels that higher power.

Bibas explains his new thinking on headnotes:

A headnote is a short, key point of law chiseled out of a lengthy judicial opinion. The text of judicial opinions is not copyrightable. Banks v. Manchester, 128 U.S. 244, 253–54 (1888). And even if it were, Thomson Reuters would not get that copyright because it did not write the opinions. But a headnote can introduce creativity by distilling, synthesizing, or explaining part of an opinion, and thus be copyrightable. That is why I have changed my mind.

Kudos to Judge Bibas. People should always be open to revising their thinking. And even better, they should explain why they changed their minds. This opinion demonstrates that virtue.