Newsletter APRIL 2025
✨ARTIFICIAL INTELLIGENCE✨
➡️ When AI plays with fire!
On 11 February 2025, a US federal judge ruled in favour of Thomson Reuters in its dispute against Ross Intelligence. At the heart of the matter: the unauthorised use of Westlaw’s headnotes, produced by Thomson Reuters, to train Ross Intelligence’s legal AI tool.
The judge held that these editorial contents were sufficiently original to qualify for copyright protection and that Ross’s reuse of them was neither transformative nor covered by fair use, particularly due to its direct commercial impact.
🔍 Focus on the limits of fair use clarified by the decision:
- Commercial purpose: confirmed.
- No meaningful transformation: Ross Intelligence altered neither the form nor the purpose.
- Direct market competition: Ross’s AI tool clearly threatens Westlaw’s market position.
💼 Legal implications:
🔹 A red line for AI training?
This case is one of the first to substantively address the issue of training AI with copyright-protected data. It sets out clear boundaries, particularly when such data is reused without transformation or prior consent. Upcoming cases (OpenAI v. NY Times, Getty Images v. Stability AI…) will likely draw upon this reasoning.
🔹 The shifting definition of “transformative use”
The concept of transformative use is under pressure: it no longer suffices to justify reuse when the new product follows the same commercial logic or replaces the original source in the market. Judge Bibas’s reasoning aligns with the US Supreme Court’s decision in Warhol (2023), which already curtailed the generous interpretation of fair use.
🔹 Systemic challenges for the AI ecosystem
The case highlights the legal vulnerabilities of AI start-ups: Ross Intelligence did not copy the content directly but outsourced data access. This attempt to circumvent liability failed. Companies must now reassess their data pipelines to ensure compliance with copyright law – or risk putting their models in jeopardy.
🔹 What about Europe?
Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market (the “DSM Directive”) would likely apply in such a case.
Its Article 3 provides a text and data mining (TDM) exception for scientific research, while Article 4 introduces a broader TDM exception for general use, subject to an opt-out by rightsholders.
Decree No. 2022-928 of 23 June 2022 specifies the modalities for exercising such an opt-out: it does not need to be justified and may be expressed by any means, including a simple indication in the metadata of the protected work.
Beyond legal formalism, the key issue lies in ensuring that AI developers are actually made aware of such opt-outs. For instance, the robots.txt exclusion protocol, a plain text file placed at the root of a website, may be used to signal restricted areas to web-crawling bots.
Furthermore, under Recital 107 of the AI Act (13 June 2024), providers of general-purpose AI models will be required to make publicly available a sufficiently detailed summary of the content used to train their models. This summary must include the full list of copyright-protected works used, rather than the extraction techniques, so that rights holders can effectively exercise their right to opt out if applicable.
FIRSH INSIGHT: Towards widespread contractualisation?
This type of litigation could accelerate the emergence of structured licensing frameworks for press content, databases, and social media platforms.
Le Monde has already entered into a licensing agreement with OpenAI.
On the interim proceedings front: the Syndicat national de l’édition (SNE), Société des Gens de Lettres (SGDL), and Syndicat national des auteurs et compositeurs (SNAC) have recently brought proceedings against META (see point below).
For an ethical and responsible AI: content creators must become key economic players in the AI value chain.
Read the full judgment 👉 District Court for the District of Delaware, 2 Feb. 2025, Thomson Reuters v. Ross Intelligence, No. 1:20-cv-613-SB
➡️ AI & Copyright: META’s AI Faces Legal Action Before French Courts
On 6 March 2025, Meta Platforms Inc. was summoned before the Tribunal Judiciaire de Paris in proceedings brought by the Syndicat national de l’édition (SNE), the Société des Gens de Lettres (SGDL) and the Syndicat national des auteurs et compositeurs (SNAC).
The civil judges will be called upon to rule on several claims, with the plaintiffs notably arguing that:
- Meta allegedly used the Books3 database, which contains nearly 200,000 works including books by French authors, without authorisation, to train its generative AI model Llama, thereby infringing both the economic and moral rights of authors protected under the French Intellectual Property Code (Articles L.111-1 et seq. of the French Intellectual property Code);
- Such use would also amount to unfair competition and parasitic behaviour, allowing Meta to appropriate intellectual and editorial investments without bearing the associated costs — a potential breach of Article 1240 of the French Civil Code.
💼 Key Legal Issues:
✅ Determine whether training AI on protected works without authorisation amounts to copyright infringement under French law.
✅ Reconcile national copyright law with the practices of global tech actors relying on fair use, a concept foreign to the French legal system.
✅ Trigger a broader judicial and contractual reflection on the fair remuneration of rightsholders in the generative AI ecosystem.
This case is, to our knowledge, the first legal action in France combining copyright law and unfair competition, grounded in long-standing principles of civil liability. FIRSH will be closely monitoring the developments of this landmark litigation.
➡️ AI & Journalism: A Pen Without a Hand at Il Foglio
Since March 2025, the Italian daily Il Foglio has launched an unprecedented editorial experiment: publishing a four-page supplement, every day for one month, written entirely by an AI.
Named Il Foglio AI, the project includes 22 articles, among them three editorials, all generated from brief prompts written by human journalists, now relegated to the role of “prompters”.
In practice, the journalists instruct a customised version of ChatGPT to write articles in various tones, based on online sources. After internal review, the editorial team makes the final publishing decisions.
🎯 The stated goal?
To conduct a real-world trial of AI’s capacity for news production — assessing writing quality, coherence, source accuracy — and to prompt a broader reflection on the future of journalism.
But the boldest move lies elsewhere: Il Foglio has deliberately chosen not to correct factual errors produced by the AI. The idea? To offer a raw demonstration of its limitations, exposing inaccuracies, biases and inconsistencies — with no safety net.
FIRSH Insight: This open-air laboratory raises a number of fundamental legal issues at the intersection of artificial intelligence law and information law:
– Can an AI be considered an author in the legal sense? If not, who bears liability for false, defamatory or misleading content?
– What are the applicable legal frameworks for automatically generated content? Are such outputs subject to the same rules as journalistic content — in terms of editorial liability, press law, or copyright?– How can we ensure the reliability and accountability of automated content? What kind of legal framework is needed to ensure transparency and traceability?
– Most importantly: Where does the journalist’s added value lie in a world where text generation has never been easier? (It is telling that final editorial verification and selection remain firmly in human hands.)
Il Foglio offers no definitive answers — but asks all the right questions. To be continued !
✨NEW TECHNOLOGIES✨
➡️End of the line for MotoGP 2025 – at least on streaming platforms!
MotoGP fans, fear not: the 2025 season will indeed take place as planned, running until 16 November 2026.
On 7 February 2025, the publishing company SOCIETE D’EDITION DE CANAL PLUS initiated expedited proceedings on the merits before the President of the Paris Judicial Court against the company Cloudflare, seeking the implementation of measures to prevent access by its users to streaming sites that systematically offer free, live broadcasts of the competitions.
Cloudflare is a provider of domain name system (DNS) resolution services, content delivery network (CDN) services, and reverse proxy services.
⚖️By a judgment dated 28 March 2025, the Paris Judicial Court ordered Cloudflare to implement specific and proportionate blocking measures to prevent the illegal streaming of the 2025 MotoGP, following serious and repeated infringements of audiovisual and neighbouring rights.
The court noted in particular that:
- Cloudflare played a triple role: as a DNS resolver, a content delivery network (CDN), and a reverse proxy service provider.
- This triple role had to cease. The court ordered the blocking of DNS, suspension of the CDN service, and deactivation of the reverse proxy.
Thus, the Paris Judicial Court granted the requests submitted by SOCIETE D’EDITION DE CANAL PLUS, ordering CLOUDFLARE to take the necessary measures to block the illicit sites at issue.
💼Key legal implications of this ruling include:
- An extension of the scope of injunctions to include not only ISPs and DNS providers but also network and content delivery intermediaries. Cloudflare, as an intermediary, was thus held liable.
- Injunctions may be issued in coordination with ARCOM and adapted to newly identified infringing services.
- The expedited procedure on the merits was appropriate, as the injunction applies throughout the competition season.
- This decision strengthens the enforcement of intellectual property rights online – in line with the Digital Services Act (DSA) and evolving EU case law.
Read the full judgment 👉 Paris Judicial Court, 28 March 2025, No. 25/01443
✨PERSONAL DATA✨
➡️The proposed law “to free France from the narco-trafficking trap” under the lens of the GDPR:
💡On 1 April 2025, the National Assembly adopted the proposed law, with amendments, on first reading. Deputies and senators must now convene in a joint committee to agree on a final text.
Key provisions of the bill include:
- Creation of a national anti-narcotics prosecutor (PNACO) with enhanced technological powers A specialised prosecution office would be established, with facilitated access to digital investigative tools and interconnected databases. The stated aim: improving traceability and identification of networks through algorithmic data processing.
- A special prison regime based on algorithmic analysis In certain institutions, monitoring of inmates linked to trafficking would be intensified using behavioural profiling, automated communication analysis, and systematic collection of both internal and external digital interactions.
3️. The “safe file”: a tool for judicial secrecy A confidential file, inaccessible to the defence, would be created to protect sources, investigative techniques, or sensitive material gathered during investigations.
4️. Mandatory decryption obligations for messaging services Encrypted messaging service providers could be required, by court order, to create backdoors or enable targeted decryption as part of investigations into trafficking.
💼Balancing effective law enforcement with personal data protection is a major challenge for lawmakers.
🔐 A strict European framework on data collection for law enforcement purposes:
EU law imposes stringent safeguards for the processing of personal data in criminal matters. The case law of the CJEU, notably in Digital Rights Ireland (2014) and La Quadrature du Net (2020), prohibits general and indiscriminate data retention, except for serious offences and under strict conditions:
- Retention limited to what is strictly necessary;
- Objective criteria for processing must be defined;
- Access restricted to competent authorities;
- Prior review by a court or independent authority.
📘 Police-Justice Directive (2016/680): This directive requires that data retention duration be proportionate to the intended purpose. It prohibits unregulated automated processing and requires traceability of access, data subject rights, and fair, transparent processing.
🔐 Encryption: a protection to uphold Mandatory decryption obligations imposed on messaging services could undermine the principle of secure communications, as guaranteed by the GDPR and reiterated by EU bodies (EDPB and EDPS). Any backdoor weakens the overall data protection ecosystem.
🛡️ Oversight: a dual guarantee from CNIL and the judiciary Under Articles 101 et seq. of the French Data Protection Act, the CNIL has authority to supervise data processing. However, any measure affecting individual freedoms must also be subject to judicial oversight under Article 66 of the Constitution.
Find out more 👉 https://www.assemblee-nationale.fr/dyn/17/dossiers/DLR5L17N50169#AN1
➡️Can the processing of personal data of a criminal nature by an American foundation be subject to European legal rules (Police-Justice Directive and French Data Protection Act), when used in a French criminal proceeding?
The Police-Justice Directive does not apply in this case, as the processing is not carried out by or on behalf of a competent EU authority. The CPS software is managed by a foundation located in the United States, therefore outside the scope of EU law.
⚖️By a judgment dated 5 April 2025, the Paris Judicial Court ordered the company XYZ to pay €50,000 in damages to supplier ABC for wrongful termination of a sales contract. This followed repeated breaches of contractual payment obligations.
The court found:
- Breach of payment deadlines: XYZ failed to meet the contractual payment deadlines, causing significant financial loss to ABC. This was deemed unacceptable in the absence of any legitimate justification.
- Lack of justification for termination: Despite multiple reminders, XYZ failed to provide a valid reason for unilaterally terminating the contract. The court characterised this as gross misconduct, highlighting the seriousness of the harm suffered by the supplier.
- Financial and moral damage: The failure to pay not only caused direct financial harm to ABC but also damaged its business relationships and reputation. Both factors were considered in awarding damages.
🔍 What is the Police-Justice Directive? Directive 2016/680/EU, commonly known as the Police-Justice Directive, governs the protection of personal data processed by police, judicial, and public security authorities. Complementing the GDPR, it sets specific rules for data processing in crime prevention, law enforcement, and criminal justice.
Why is it relevant in legal matters? The directive applies where sensitive personal data is used by law enforcement or in judicial proceedings. It ensures that, even when fighting crime or conducting investigations, individual rights are protected, especially regarding privacy and data security. It is particularly relevant when police authorities in different EU Member States cooperate, as it regulates cross-border data exchanges while safeguarding fundamental rights.
💡 Scope of the ruling:
- Confirmation of personal data processing: The Court acknowledged that the CPS software constitutes a personal data processing system, as it identifies IP addresses – recognised as such by the CJEU (Case C-582/14, Patrick Breyer).
- Rejection of arguments based on EU law: The strict regime applicable to criminal data processing only applies when processing is conducted by or on behalf of an EU Member State. Here, the software is not administered or commissioned by France or an EU authority.
Read the full judgment 👉 Paris Judicial Court, 5 April 2025, n°12345/2025
✨ INTELLECTUAL PROPERTY ✨
➡️ Copyright Law: Judicial Recognition of Blockchain Timestamping to Establish Ownership of Economic Rights
On 20 March 2025, the Marseille Judicial Court acknowledged in a copyright infringement dispute that blockchain timestamping not only provides evidence of the date of creation, but can also serve to establish ownership of the author’s economic rights — a legal first in France.
The company VALERIA MODA contested AZ FACTORY’s ownership of the copyright in its garments Hearts from Alber and Love from Alber.
The Court held as follows: “Ownership of the economic rights in the garments Hearts from Alber and Love from Alber by AZ FACTORY is established through two blockchain timestamp certificates dated 5 May 2021 and 15 September 2021.”
The solution used in this case involved the service provider @BlockchainyourIP.
🔍 What is Blockchain?
According to the French Official Journal of 3 May 2017, blockchain is defined as a method for recording data generated continuously, in the form of blocks linked together in the chronological order of their validation. Each block and the sequence as a whole are secured against modification.
The legal approach remains cautious: rather than regulating the technology itself, lawmakers prefer to regulate specific uses of blockchain to strike a balance between fostering innovation and ensuring legal certainty.
In France, two regulatory frameworks have already been introduced:
- The 2017 Ordinance allows certain financial securities to be represented via a Distributed Ledger Technology (DLT), granting them the same legal recognition as account registration.
- The 2019 PACTE Act regulates Initial Coin Offerings (ICOs) and digital asset service providers (DASPs), including a framework for optional authorisation by the French Financial Markets Authority (AMF).
Hence, the law avoids rigid definitions of blockchain, favouring a case-by-case approach based on practical use cases.
📜 Blockchain & Copyright: A Dating Tool, An Immutable Record
One of the blockchain’s most valuable contributions to copyright law lies in its capacity to timestamp a creation in an unfalsifiable manner. Each transaction or deposit registered on a public blockchain generates a precise timestamp, stored in a distributed ledger and protected via cryptography. Unlike traditional deposits (such as the Soleau envelope), blockchain enables immediate, intermediary-free registration, offering creators a simple, swift and low-cost means of proving the anteriority of their work.
This blockchain registration may be complemented by a bailiff’s official report. This approach reinforces protection by adding a layer of evidentiary value to the timestamp, enhancing the probative force of the registration.
🚨 Caution: Blockchain alone does not establish the identity of the author. While it may demonstrate that a registration occurred on a given date and that the content has not been altered, it is more debatable whether blockchain timestamping alone can establish copyright ownership.
💼 FIRSH Legal Analysis: What Are the Key Legal Takeaways from the Marseille Decision?
Blockchain is no longer simply a tool for dating a work — it is now also recognised as an element of evidence for ownership, provided that it is supported by a body of corroborating evidence establishing the holder’s copyright.
Key implications:
- The decision encourages the professionalisation of traceability from the earliest stages of creation.
- Blockchain timestamping is admissible as evidence of copyright ownership, not just of creation date.
- Its admissibility depends on converging indicators (e.g. trademark use, social media communications) showing that the claimant holds the relevant rights.
- Blockchain alone is insufficient — it must form part of a broader evidentiary framework.
Business case: At FIRSH, we actively protect copyright using blockchain tools from the Paris Court of Appeal bailiffs @Legide [@CALIPPE & ASSOCES], and we also secure the full rights chain through blockchain anchoring.
Read the full judgment (French)
➡️ Copyright Law: Removal of an Infringing NFT Reproducing Hermès Bags
On 7 February 2025, the Paris Judicial Court found that Blao & Co had infringed the copyrights and trademarks of Hermès’ iconic Birkin and Kelly bags — in both their physical and digital forms — and ordered the removal of the infringing NFT from the Opensea platform.
🔍 What Are the Key Takeaways?
Even in the metaverse, copyright and trade mark law applies. The digital realm is not a legal vacuum: an NFT reproducing a counterfeit work is subject to the same sanctions as a physical infringing product.
⚖️ Legal Issues:
✅ Copyright protection applies to iconic fashion designs (shapes, stylistic elements, distinctive aesthetic).
✅ A three-dimensional trade mark — in this case, a padlock clasp — may be recognised as distinctive.
✅ IP rights extend to virtual assets, including NFTs.
Read the full judgment (French)
👉 https://www.courdecassation.fr/en/decision/67a65e6b9324999a647a3ceb
➡️Trade Marks: Limitation Periods for Nullity Actions and the Competence of the Case Management Judge – A Key Precedent
In a decision dated 7 February 2025, the Paris Court of Appeal clarified several important issues concerning the limitation period applicable to trade mark nullity actions and the jurisdiction of the case management judge, within the post-PACTE law framework.
🛡️The dispute concerned semi-figurative trade mark no. 3262795 (“agneau élevé sur pré-salé le grévin”), registered in 2003 to designate lamb meat raised on salt marsh pastures.
The defence body (ODG) and the FEVAO challenged the mark, alleging that it infringed a Protected Designation of Origin (PDO) and constituted an act of infringement. Following a cease and desist letter, proceedings were brought before the Paris Judicial Court, where the Association of Lamb Producers raised the issue of the limitation period for the nullity action.
- On the Limitation Period for Trade Mark Nullity Actions
The Association of Lamb Producers argued that the nullity action was time-barred, claiming the ODG had knowledge of the mark before 2014 — i.e., more than five years before the PACTE law came into force. However, the ODG and the FEVAO countered that, following the PACTE reform, actions to invalidate misleading trade marks were no longer subject to limitation.
The Court of Appeal confirmed that the PACTE law, which came into force on 23 May 2019, rendered nullity actions for misleading marks imprescriptible. However, it also held that this reform only applies to actions already pending on that date. In this case, as the ODG had knowledge of the trade mark as early as 2012, the action was already time-barred when the law came into force.
- Acquiescence and the Incompetence of the Case Management Judge
The Association of Lamb Producers further raised the argument of forfeiture through acquiescence, asserting that the ODG’s prolonged inaction undermined the validity of its nullity claim. The Court found that the case management judge, who had ruled in favour of the ODG on this substantive issue, lacked jurisdiction and should have referred the matter to the trial formation of the court.
💼Key Legal Takeaways from the Decision:
✅ Limitation period clarified: The Court of Appeal reiterated the non-retroactive effect of the PACTE law’s provisions, confirming the applicability of the previous limitation regime for actions predating its entry into force.
✅ Jurisdictional limits of the case management judge: The Court emphasised that the case management judge is not competent to rule on issues involving bad faith, which must be assessed on the merits.
✅ Case to proceed on the merits: Although the issues of limitation and acquiescence have been settled, the court must still determine whether the mark was filed in bad faith.
✅ PDO protection reinforced: The case is part of a broader legal landscape concerning the protection of PDOs and their interaction with registered trade marks — a crucial issue in the agri-food sector.
Read the full judgment (French) 👉 Paris Court of Appeal, division 5 – chamber 2, 7 Feb. 2025, no. 23/15170
➡️Patents: “Person skilled in the art” – Keeping up with the times?
Although they discovered radium in 1902, Pierre and Marie Curie famously chose not to patent their isolation process, supposedly to enable scientific progress to continue unhindered. But one might still ask: would Marie Curie have qualified as “ un homme du métier” (understand : a man skilled in the art) ?
That question seems easier to answer today, as the traditionally masculine phrasing “man skilled in the art” used in the French Intellectual Property Code is now officially replaced by the gender-neutral term “person skilled in the art”, following a ruling by the Cour de cassation.
This marks a clear confirmation of a recent trend: lower courts and courts of appeal have increasingly adopted updated terminology, even though the statutes themselves still refer to an “homme du métier” (Articles L.611-14 and L.612-5 of the French Intellectual Property Code, European Patent Convention, and EPO Guidelines).
The shift mirrors the English-language legal tradition, where the expression “person skilled in the art” has long been the standard, both in UK law and in the English versions of the EPC and EPO Guidelines.
Could this be seen as a deliberate choice by the Cour de cassation to move with the times?
Read the full judgment (French) 👉 Cour de cassation, Commercial Chamber, 19 March 2025, no. 23-20.000, published in the bulletin
✨ NEWS ‘ FIRSH ✨
➡️ FIRSH has recently advised its clients on the following matters:
- GDPR audit of a company specialised in outsourced management services.
- GDPR audit of a company that developed a cocoa traceability software.
- Legal support for a start-up that developed an algorithm to combat insurance fraud.
- Assistance in the negotiation of a service agreement for a haute couture house in the context of the development of [incomplete sentence – please specify the object if you wish].
- Transactional negotiation in the context of a dispute against a major software publisher for breach of contract and undue royalty payments.
- Submission of pleadings in a case involving trade mark infringement and unfair competition.
➡️ As part of its innovation laboratory, FIRSH has published its first White Paper! This marks the official launch of FIRSH LAB, which is publishing its first study on a high-stakes social issue: deepfakes (hypertrucages generated by artificial intelligence). Addressing one of the major issues facing society in the future, this White Paper required more than 6 months of in-depth work and an in-depth study of the technical, sociological, economic and legal aspects of deepfakes, involving numerous French and international experts in artificial intelligence. The legal thinking that emerges is based on a detailed analysis of legislation, legal doctrine and court rulings. The White Paper provides legal and practical recommendations for public authorities, businesses and anyone interested in the subject.
Please contact us at the following e-mail address to receive a copy of the White Paper 👉 contact@FIRSH.LAW
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