Two things happened in the last 48 hours that will each get cited for years. On Tuesday the Third Circuit became the first federal appeals court to decide whether training an AI system on copyrighted material is fair use, and said no, at least for a non-generative system built to compete with the source. The opinion, unsealed Wednesday, goes out of its way to confine the computer-code intermediate-copying cases to situations where copying was necessary, and to say in a footnote that generative models are a different question. On Thursday Siemens shut down OpenRadioss, the AGPL-3.0 crash solver that Altair opened in 2022, deleted the GitHub repository rather than archiving it, and offered a “Shared Source” program in its place. The Rocky Enterprise Software Foundation had a fork up the same day. The license did exactly what it says it does; the repository, as usual, was the single point of failure. Also in the window: California enacted SB 1000, which replaced a license-revocation mandate that no open source license can satisfy with a notice-and-report scheme, and WP Engine v. Automattic produced unsealed deposition excerpts, a request from Automattic’s new lawyers to push summary judgment into 2027, and a correction to Wednesday’s edition. The sanctions hearing I said was happening on September 30 is now set for October 7.

Top stories

Siemens closes OpenRadioss and deletes the repository; the RESF forks it as OpenCourant

On October 1 openradioss.org began redirecting to a Siemens transition page, and github.com/OpenRadioss/OpenRadioss started returning a 404. The page says Siemens is “consolidating our efforts” after “four years of successful community-driven research,” and offers two paths: the commercial Simcenter Radioss, or the Simcenter Radioss R&D Program, “a managed ‘Shared Source’ environment for academic and industrial partners” with access to source code and a private HPC environment through “approved co-development projects.” Phoronix quotes the FAQ text that the page’s accordion hides from a plain fetch: “The OpenRadioss website is being retired and visitors are being redirected to this transition page.”

What Siemens cannot do is pull back the code already distributed. COPYRIGHT.md in the last public tree reads “Copyright (C) 2026 SISW Siemens Industry Software Inc.” and licenses the work under AGPL-3.0-or-later; Section 2 of that license makes the grant “irrevocable provided the stated conditions are met.” The Rocky Enterprise Software Foundation announced OpenCourant the same day, continuing from “the last available OpenRadioss open-source code base” under the same license and with a vendor-neutral governance pitch (“no single vendor should be able to take this code away again”). A separate community snapshot preserves the tree as of September 29 with 5,151 commits of history. The name change is the trademark part of the story: OpenCourant’s footer notes that “Radioss is a trademark of its respective owner,” and the project is named for the Courant–Friedrichs–Lewy condition instead.

Two points for anyone whose own project looks like this. First, Siemens owns the whole copyright because contributors signed a CLA; CONTRIBUTING.md says “We will ask you to sign a Contributor License Agreement (CLA).” That is what lets a steward take the next version proprietary without asking anyone, and it is the only reason the “Shared Source” option exists at all. The AGPL protects the past; the CLA decides the future. Second, deleting rather than archiving a repository with hundreds of forks does nothing to the code and a great deal to the issue tracker, the discussions, the CI history, and the pull requests, none of which are covered by the license. If your project’s continuity plan is “someone will have a clone,” the clone will not include any of that.

Primary: Siemens transition page; COPYRIGHT.md and LICENSE.md from the preserved tree; OpenCourant announcement. Secondary: Phoronix; Hacker News thread, which is where the surviving clones were catalogued.

Third Circuit: training on Westlaw headnotes is not fair use, and “ease is not a justification for copying”

In Thomson Reuters v. ROSS Intelligence, No. 25-2153, a panel of Judges Restrepo, Montgomery-Reeves, and Bove affirmed Judge Bibas’s February 2025 partial summary judgment. The opinion was filed under seal September 29 and released September 30. It holds that 2,243 Westlaw headnotes are original (the merger doctrine does not apply because “there are many ways to express points of law from judicial opinions”), and that ROSS’s use of them to build training memos for a competing legal search tool was not fair. Factor one weighs against ROSS because the use was commercial and “minimally transformative, at best”; factor three because ROSS copied entire headnotes when the underlying opinions were freely available; factor four because ROSS competed in Westlaw’s market and because “the market for licensing headnotes as text to train AI is rapidly developing.” Only factor two favored ROSS.

The part that matters for code is the panel’s treatment of Google v. Oracle, Sega v. Accolade, and Sony v. Connectix. ROSS argued those intermediate-copying cases controlled. The court read them narrowly: “In each of these cases, computer code was copied to enable users to make their software operable with an existing computer system. These uses were transformative because, in each case, copying was necessary to access the unprotected functional aspects of computer code.” ROSS “does not need to copy Thomson Reuters’s headnotes to access the underlying unprotected information,” so “[u]nlike necessity, ease is not a justification for copying.” A footnote adds that Oracle also turned on declaring code being “inherently bound together with uncopyrightable ideas.” Anyone planning to defend training on copyleft code as an intermediate step should expect this passage quoted back at them. The court also accepted a potential market for licensing training data as a cognizable derivative market; its answer to the circularity objection is a citation to Castle Rock for the proposition that a market the author has not yet exploited is still a market.

The court bounded its own holding. Footnote 7 discusses the DOJ’s September 1 statement of interest in In re OpenAI (S.D.N.Y.), which relied on Bartz v. Anthropic to argue that LLM training is transformative, and distinguishes it: “Unlike the AI models in Bartz and In re: OpenAI, ROSS’s AI platform cannot generate original expression, and the evidence here supports the opposite conclusion about transformativeness.” So the holding is: non-generative system, direct substitute, copying for convenience. That is not Doe v. GitHub, where the surviving claims are contract and license claims rather than copyright, and the Ninth Circuit’s September 16 DMCA ruling in that case is unaffected. It is, however, the first appellate fair-use ruling on AI training, and the amici list is worth a look: Heather Meeker and EFF filed on ROSS’s side. ROSS’s counsel told Courthouse News they intend to seek Supreme Court review.

Primary: opinion (Document 214, 32 pages). Secondary: Courthouse News; Copyright Lately, written while the opinion was still sealed, which lists the questions to check against the released text.

WP Engine v. Automattic: depositions unsealed, Automattic asks for two more months, sanctions hearing moves to October 7

First the correction. Wednesday’s edition said the spoliation sanctions hearing before Magistrate Judge Krishnan was happening that day. The Repository reports it is now set for October 7. The docket as read by webhosting.today on September 29 still showed September 30 with no vacating order, so the move appears to have come within a day of the hearing; I could not pull the docket entry myself.

The substance. On September 30 long excerpts of the Mullenweg and Abrahamson depositions became public. Automattic CTO Barry Abrahamson described “Mission Control,” a password-protected dashboard at mc.wordpress.org fed by the anonymized, aggregated update-check data that WordPress sites send to WordPress.org by default about every 12 hours. WP Engine’s lawyers showed him printouts from it graphing active installs of ACF Pro over time, a plugin WordPress.org does not host. An August 15, 2024 Slack message from Mullenweg, five weeks before his WordCamp US keynote, reads: “It’s feeling like we’re about to go full nuclear with WPE, with a possibility of a partnerships/merger/M&A as an exit, but in general there will be a realignment.” He testified he did not recall writing it. Shown his own September 2010 blog post announcing the transfer of the WordPress trademark to the Foundation (“now fully independent from any company”), Mullenweg testified: “I am neither confirming nor denying my recollection at the time of the exact providence of every sentence.” Given that the court held last week that Automattic and Mullenweg cannot assert the trademark counterclaims in their own right because they are “neither owners nor registrants of the marks,” the 2010 post is now evidence on both sides.

The same day, Susman Godfrey, which replaced Gibson Dunn on September 22 (“due to a conflict of interest,” per a sworn declaration that does not say what the conflict was), asked Judge Martínez-Olguín to move the close of expert discovery from November 17 to January 14, 2027 and summary judgment motions from November 20 to January 19, 2027, calling the catch-up “a herculean one under the existing schedule.” The October 19, 2027 trial date would not move, though the motion says “a modest continuance” would not unduly prejudice WP Engine. WP Engine’s lead counsel called the request “a non-starter.” The expert lists filed with the motion put Heather Meeker on Automattic’s side and Frank Nagle, now Microsoft’s chief AI economist and formerly the Linux Foundation’s advising chief economist, on WP Engine’s.

One more thing, from the September 24 order itself, which I have now read. WP Engine argued that the GPL gave it a “preexisting right” to WordPress.org access, so that Automattic’s licensing demand was extortion under the CFAA. The court rejected that: “Despite WPEngine’s claims that it was entitled to continued access under a general public license or pursuant to industry custom,” the demand was hard bargaining over something with “objective value,” not extortion. The GPL covers the code. It has never covered the plugin directory, and the court was not going to be the first to say otherwise.

Primary: order on motions to dismiss (Dkt. 410, filed September 24; this settles the date question from Wednesday). Secondary: The Repository, October 1 for the depositions and extension motion, with its usual disclosure that both WP Engine and Automattic-owned Pressable sponsor it; webhosting.today, September 29 for a careful read of the order.

California enacts SB 1000, dropping the license-revocation mandate that open source licenses could not satisfy

Governor Newsom signed SB 1000 (Becker) on September 30; it is Chapter 861, Statutes of 2026, an urgency statute in effect immediately. It rewrites the California AI Transparency Act. The open source story is the third-party licensee provision. CATA as enacted in 2024, and SB 1000 as drafted through the summer, required a GenAI provider to revoke a downstream licensee’s license if the licensee modified the system out of compliance. Open source licenses give the licensor no revocation right, so an open-weight or open source model provider in California could not have complied without changing licenses. A June 23 coalition letter from GitHub, Hugging Face, Mozilla, and Black Forest Labs asked for the EU Transparency Code of Practice approach instead. They got most of it. Per Morrison Foerster’s summary, a provider that knows an identifiable licensee has modified the system out of compliance now has 72 hours to either terminate the licensee’s authorization or notify it; the licensee then has 96 hours to fix or cease and report back; a licensee that fails to report gets referred to the Attorney General; and providers “are not required to monitor, investigate, or otherwise inquire into” licensees’ modifications. Notice is a real alternative to termination, which is the whole point.

Two things to watch. SB 1000 also deletes the one-million-monthly-user threshold from “covered provider,” so on MoFo’s reading the law now reaches anyone who creates, codes, or otherwise produces a GenAI system that is publicly accessible in California, whatever its size. Whether publishing weights that someone else hosts makes you a provider of a “publicly accessible” system is not a question the summaries answer, and I have not read the chaptered text (the legislature’s site would not serve it to me). And the companion bill AB 2713 was signed the same day without the definitional fix GitHub wanted; its September 29 policy post says the existing definitions of “large online platform” and “GenAI hosting platform” “could be interpreted to include developer infrastructure like code repositories.” Those obligations take effect January 1, 2027.

Primary: Governor’s signing list; bill status. Secondary: MoFo client alert (October 1); GitHub coalition post (June 23) for the original objection.

Continuing

  • Doe v. GitHub: nothing new since the September 16 Ninth Circuit opinion. The Third Circuit ruling above does not touch the surviving contract claims.
  • ThingsBoard: nothing new since the September 29 BUSL announcement. I found no announced fork of CE 4.3.
  • OSI license-review: silent since Nick Vidal’s message of September 28, 12:47 UTC. There is no October archive yet. OpenMDW-1.1, ModelGo, and PSF-2.0 are where they were.
  • SFC: nothing since August 31. Its August 27 DMCA §1201 renewal submissions, which cover the existing exemption for investigating license violations, are in the current triennial docket (COLC-2026-0100); GitHub’s September 29 post lists “FOSS license-compliance investigations” among the petitions it is following.

Worth reading

  • Third Circuit opinion in Thomson Reuters v. ROSS. Pages 19 to 21 (the intermediate-copying discussion) and footnote 7 are the parts to read if you read nothing else.
  • Signed, Sealed, Affirmed (Aaron Moss, September 29). Written before the opinion was public; the three questions it poses (sculptor analogy, potential AI-licensing market, scope of intermediate copying) are a good checklist for reading the real thing. Answers: dodged, yes, and confined to necessity.
  • Developer policy update (GitHub, September 29). State age-assurance laws that sweep in open source operating systems, the CATA definitions problem, and the §1201 petitions, in one place.
  • OpenCourant announcement (RESF, October 1). Short, and a clean statement of why a foundation fork beats a hero fork.
  • Automattic Is Not an Owner of the WordPress Marks (webhosting.today, September 29). A hosting-industry reading of the September 24 order with pin cites, and an unusually explicit “About the Data” section.

Calendar

  • October 7: WP Engine v. Automattic sanctions hearing (Magistrate Judge Krishnan), per The Repository.
  • October 17: cBioPortal AGPL-to-Apache comment period closes; go/no-go the same day.
  • November 17 / November 20: WP Engine v. Automattic expert discovery closes / summary judgment motions due, unless the court grants Automattic’s request to move them to January 14 and January 19, 2027.
  • SFC v. Vizio: ruling not expected before roughly November.
  • Late December: a ROSS certiorari petition would be due roughly 90 days after the September 29 judgment, absent a rehearing petition.
  • January 1, 2027: CATA obligations for large online platforms and GenAI hosting platforms (AB 853) take effect.
  • July 20, 2027: ThingsBoard CE 4.3 LTS security support ends; Community Grant registration closes.
  • October 19, 2027: WP Engine v. Automattic jury trial.
  • December 11, 2027: CRA Article 24 steward obligations begin.