Features - Jurisline.com and Matthew Bender: Horns and Halos All 'Round

T. R. Halvorson is a lawyer in sole practice in Sidney, MT, President of Pastel Programming Co., a division of Synoptic Text Information Services, Inc., and author of Law of the Super Searchers:  the Online Secrets of Top Legal Researchers, How to Avoid Liability: The Information Professional's Guide to Negligence and Warranty Risks, and Legal Liability Problems in Cyberspace: Craters in the Information Highway.

Related Documents: 1) Press release from Jurisline 2) Copy of the Complaint Filed by Jurisline against Reed Elsevier - Part 1 & Part 2 3) Press release on this lawsuit from Reed Elsevier 4) Copy of the Complaint filed by Matthew Bender Against Jurisline

 

This Ain't Cattle Rustlin'

Reactions to the conduct and litigation between Jurisline.com, Matthew Bender, and Reed Elsevier are running strong.  Many librarians and independent database searchers disapprove of Jurisline.com taking data from the Lexis CD-ROMs.  Some express shock at the behavior and shock that they have gotten this far.  A number of database searchers have told me it seems "just wrong."  When I mention Jurisline.com's claim that the only data they are using is in the public domain, which does seem to have been settled in Matthew Bender and Hyperlaw v. Westlaw,  (S.D.N.Y., May 19, 1997), they say, "I know, but it's just wrong."  They repeat themselves.  When I ask them to explore their feelings, the root usually is the value they place on what database producers call "sweat equity."  It takes a lot of highly skilled work to collect, assemble, clean up, and render searchable the masses of data in legal databases.  "Okay, so it's not inspired, creative, or original, but it is such a lot of work."

Will you tolerate a bit of pop psychology from an unrefined farmer in Montana?  We sympathize with Matthew Bender and Reed because the sweat equity in what we do usually goes not only undervalued, but unnoticed.  We are a jury of ranchers trying Jurisline.com on the charge of cattle rustlin'.  That accusation carries within itself "all the proof we need."  We're ready to braid a rope.

I'm not putting down sweat equity.  Many of the emails and telephone calls I've received about the original article, "Jurisline.com: What You See...What You Don't See" and the first update, "Jurisline.com: Update", express marvel at the lengths to which I've gone to find information.  I tell people who marvel, "That's what librarians do.  When you get that neat little answer from your librarian, seldom did they just tap a few keys on their computer and out spilled everything tightly relevant to your subject.  Computers aren't toasters."  I'd like to spin up Aretha Franklin to some of those people -- "R-E-S-P-E-C-T.  Find out what it means to me." 

Yet as librarians and database searchers, we do understand that this is about, in part, copyright.  Copyright makes information private property not because of its labor value or its capital value (the monetary investment or the value added by, for example, computer hardware and software that automates what otherwise would have been done by labor).  It makes original information private property for a limited time for the sake of bringing creativity to the public.  Matthew Bender and Reed cannot be claiming that court opinions, the works-for-hire of judges who serve the public at taxpayer expense, are their original works of authorship.  Something might be wrong here, but it isn't copyright.  Notice, Matthew Bender's lawsuit against Jurisline.com does not claim a copyright infringement.  It claims fraud and breach of contract.  Fraud and breach of contract sound bad, but that ain't cattle rustlin'.  We should be able to take a dispassionate and circumspect look at this.  That's also what librarians do with information.

Reed and Matthew Bender:  "That Was then, This is now"

On July 29, 1985, West Publishing Co. filed a well-known copyright infringement case against Mead Data Central, Inc. on the basis of Mead's proposed introduction of "star pagination" keyed to West's reports.2  Mead filed a lesser-known suit against West in the United States District Court for the Southern District of Ohio, Western Division (Dayton).  That case reportedly was settled by a secret agreement so you won't find a ruling, but there are traces of the case online.  Before it was settled, West filed a motion to transfer venue of Mead's suit in Dayton to the court where its case against Mead was pending in Minnesota.  The decision denying that motion may be found in Mead Data Central, Inc. v. West Publishing Company, 679 F. Supp. 1455 (S.D.Ohio 1987), 10 Fed. R. Serv. 3d (Callaghan) 1179, 5 U.S.P.Q.2D (BNA) 1796, Copy. L. Rep. (CCH) P26,277, 1988-2 Trade Cas. (CCH) P68,146.  Hyperlaw presents what it purports to be a copy of Mead's complaint at its Web site.1   

There are interesting parallels between Mead's claims then and the current litigation involving Mead's successors, Reed and Matthew Bender.  As summarized by the court in Dayton:

MDC alleges that West has engaged in wrongful and willful acts which have resulted in the acquisition and maintenance of a wrongful monopoly, the exclusion of competition, and the denial of access to an "essential facility." MDC argues that West has engaged in a series of anti-competitive acts which are all part of a plan to monopolize and dominate the business of reporting the lower federal court and state court opinions, state statutes, and related legal research materials. MDC asserts that over the years West has systematically suppressed competition by acquiring competitors. MDC further asserts that West has consolidated its monopoly power and position by means of various restrictive and anti-competitive practices, including: refusals to deal, exclusive contracts, manipulation of copyright claims, and suppression of competition in the secondary market for legal materials. West has allegedly sought to insulate itself from competition by refusing competitors access to its publications.

* * *

* * *  The Complaint in the case at bar asserts that since MDC's introduction of Decision, West has engaged in ongoing efforts to maintain and enhance its monopoly position. West has allegedly sought new or extended exclusive contracts; dissuaded employees of the federal and state courts, government agencies, and private companies from cooperating with MDC * * *.

679 F.Supp. at 1460.

Jurisline.com's Amended Complaint claims that Lexis and Westlaw have combined or conspired in monopolizing the market for comprehensive computer-assisted legal research services in the United States.  Mead said Westlaw had such a monopoly.3  Can its successors, Reed and Matthew Bender, be heard to deny that now?  Mead filed an antitrust suit against West and came out of it with the case law data from West.  So, why not Jurisline.com?  Can Reed and Matthew Bender just say, "That was then, this is now," or the more open "That was us, this is them?"  Remember, too, that Matthew Bender was also a plaintiff in the Hyperlaw case against West. I don't know how that looks to people in the rest of the country, but where I am from, that looks inconsistent..

According to Hyperlaw, those cases were settled by a secret agreement that included a license allowing Lexis to obtain case law data from West.  Since it is secret, I don't know what is in the agreement, but I can see that Lexis got the case law data and did not have it before.  Does the agreement combine Westlaw and Lexis in monopolizing the market for comprehensive computer-assisted legal research services in the United States?  Jurisline.com's pleading does not base its antitrust claim on the agreement, but now I am curious to know what is in that agreement.  Mead said West had a monopoly.  Then Mead and West made an agreement.  Now both of them have the same core data.  You've heard of Wintel, and you've heard of Wexis, and you've heard of David Boies.  It is too early to count Jurisline.com LLC out of this contest.

Law librarians and database searchers give West and Lexis halos for gathering the data and cleaning it up.  West often saves judges from embarrassment by correcting poor and inaccurate writing.  We give them halos for normalizing the data and incorporating it into systems that allow us to do fast, comprehensive cross-file or targeted-file searching, for providing powerful Boolean language and natural language query processors, and scores of other wonderful features.  But while Matthew Bender complains that Lee Eichen acted fraudulently, which if true is the horn on which his halo is mounted, its own inconsistency mounts its halo on horns too.  

Jurisline.com:  "Meet the New Boss, Same as the Old Boss"

Like a lot of kids who grew up in the Sixties, I enjoyed political rock, even some that I did not agree with.  One of my favorites is "Won't Get Fooled Again" by The Who. Remember the lyrics:  "Meet the new boss, same as the old boss?"  I've mounted West's and Lexis' halos on horns, and I have given Jurisline.com a halo.  Theirs is on horns too.

The alleged duplicity of Jurisline.com in signing the subscription agreement perhaps without intent at the moment of signing to abide by it bothers me.  But the inconsistency that bothers me as much or more is the high moral tone of Jurisline.com's complaint against Reed Elsevier and disregard of their terms of use in juxtaposition to the terms of use on Jurisline.com.  It looks like Jurisline.com expects terms of use as restrictive or more so than Reed's to make private property of the same public domain data that Jurisline.com says Reed's terms cannot shield.

Jurisline Terms of Service Agreement

THIS WEB SITE IS OFFERED TO YOU CONDITIONED ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THE TERMS, CONDITIONS, AND NOTICES CONTAINED HEREIN (COLLECTIVELY, THE "TERMS OF SERVICE"). YOUR USE OF THIS WEB SITE CONSTITUTES YOUR AGREEMENT TO ALL SUCH TERMS OF SERVICE. As a condition of your use of this web site, you warrant to Jurisline that you will not use this web site for any purpose that is unlawful or prohibited by these Terms of Service. Jurisline may discontinue or alter any aspect of this web site, including, but not limited to, (i) restricting the time of availability, (ii) restricting the availability and/or scope of the web site for certain users, (iii) restricting the amount of use permitted, and (iv) restricting or terminating any user's right to use this web site, at Jurisline's sole discretion and without prior notice or liability. You acknowledge that this web site contains information, graphics and other material (collectively, "Content") that are protected by copyrights, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Content is copyrighted as a collective work under the U.S. copyright laws, and Jurisline owns a copyright in the selection, coordination, arrangement and enhancement of such Content. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Content, in whole or in part. You may not upload, post, reproduce or distribute Content protected by copyright, or other proprietary right, without obtaining permission of Jurisline. Jurisline and the Jurisline logo are trademarks of Jurisline. Except as set forth in this Agreement, reproduction, redistribution or retransmission of any information in the service without the written permission of Jurisline is strictly prohibited. You agree not to use or permit anyone to use the information provided through this web site for any unlawful or unauthorized purpose, or in any other manner not permitted in these Terms of Service.

Like I said, meet the new Boss, same as the old Boss.  This inconsistency exists in a general context that gives Jurisline.com a negative aura.  Jurisline.com LLC effaced from its site any meaningful identification of who is responsible for the service.  It failed to publish ordinary and complete contact information.  It holds registered domains that look like they might be trying to cybersquat on state bar associations or attract the "accidental tourist" who was looking for their state bar association.  They hold a registered domain that does the same with the American Association of Law Libraries.  AALL's Web site is called AALLNET at www.aallnet.org and Jurisline.com LLC or K&L Holdings or Lee Eichen or Kendrick Chow holds www.aallnet.com.  It does not sufficiently document the sources of its case law and statutory data.  I could go on but most of you have read about all of it in detail.

No Horse in This Race

The case brings together in unique combination two momentous principles of information law and policy.  The case has the makings of appeals through the federal circuit to the U. S. Supreme Court.  The first principle is that data which begins life in the public domain continues to live in the public domain no matter where you find it.  The second principle is whether state laws of contract can supplant the federal law of copyright.  If federal copyright law makes the core data that originates from the courts public property, can a state's law of contracts abrogate the public's rights via licenses?  Can licenses make what was public private?  It is nothing new for courts to refuse to enforce selected provisions of contracts that violate fundamental public policy.  Might Jurisline.com LLC have hit on just such unenforceable provisions?  Might it be raising vital issues of information policy that are of moment to the whole of information society?  At least to that last question, I say yes.  That's why I wish it were possible for me to have a horse in this race.  Although I credit all parties with halos, I see horns all 'round too.

Similar issues were involved in the semi-abandoned attempt by the National Conference of Commissioners on Uniform State Law to promulgate a new article of the Uniform Commercial Code.  That article would have become Article 2B titled "Licenses."  It was not just a software law.  It would have covered all transactions in all forms of information. It would have expanded licensing into the all-encompassing field of law governing rights in information and, in effect, would have displaced copyright as the basis of transactions in information.

The American Association of Law Libraries was among the opponents to that aspect of Article 2B.  AALL's copyright committee said in a letter to Professor Nimmer on March 27, 1997:

AALL believes that widespread licensing of information is likely to give creators and publishers far greater rights than Congress conferred upon them in the Copyright Act and, at the same time, limit the ability of libraries and their users to use information in the ways they have come to expect. In the Copyright Act of 1976, Congress created a careful balance of rights between creators and users of copyrighted works. Subsequent revisions to the Act, such as amendments to Section 109 which recognize library lending of software and sound recordings, attempted to preserve that balance. 

A regime of licenses for information has the potential to largely supplant copyright as the primary legal mechanism for the protection of intellectual property. Licenses may become the primary means by which information is protected and distributed. We believe that the balance so carefully woven into the Act should not be abrogated by the terms of the license, especially a unilateral license, which would have the practical effect of preempting the Act.

That effort is not just history.  Pieces of Article 2B are back under other names and are being submitted to legislatures.   One of them is the Uniform Computer Information Transactions Act (UCITA).  At the federal level, the Collections of Information Antipiracy Act, HB 354, is being considered by Congress.  It has some admirable principles, but will it privatize public data?  Will the supplanting of copyright by licensing entitle an info-aristocracy?  I have nothing personal against aristocrats, but the law is a unique kind of information that must belong to us all.  It's what makes this a republic.  When the Twelve Tables were engraved or painted with the codification of Roman law to which previously only the elite had access and were posted in the Forum, they became res publico, the "public thing" or the "public matter."  Plebeians eating sack lunches in the Forum for a week could know the law.  That was a vital prelude to Rome's transition from a monarchy to a republic, and the etymology of the word (though not the concept) in political science.  In the Information Age, access to the Decennial Digests is not access to the law.  American plebeians need the law electronically.

Hopes for Jurisline.com

If Jurisline.com would become my horse (like it matters to anyone but me), here is what it would need to do:

  • fully document who they are at the site
  • publish their contact information
  • publish at the site their privacy policy
  • come out to law librarians and other professional searchers, perhaps through listservs or professional associations, and initiate contacts for participation on their advisory board.  I do not include in this actions such as posting its press release on LAW-LIB.  That only looks like they are trying to sell us on their side of the litigation.  I'm talking about understanding and supporting the role of librarians and other professional database searchers.
  • keep the Scope of Coverage page current and accurate.  (To give credit where credit is due, since my conversation with Lee Eichen and Kendrick Chow, they've come a long way on this.)
  • be more specific about coverage dates.  (They've made headway on this too.)
  • abandon the registrations of domains that look like they are cyber squatting on state bar associations
  • abandon the registration of the domain www.aallnet.com that looks like they are seeking the "accidental tourist" to AALLNET, the Web site of the American Association of Law Libraries at www.aallnet.org
  • acknowledge at the site their sources of data

And here is the prime one:  provide access to the data by competitors who would redact only the public domain core data (including de minimus and non-creative enhancements such as attorney and date information), and revise the terms of use accordingly.  They are telling the court it is good for the goose.  What about the gander?

Footnotes

  1. I say "purports" because I cannot make sense of the dates in some of the reported chronologies of the several cases, and Hyperlaw's copy of the complaint is not clean.  It has obvious typographical errors.  Nevertheless, the opinion of the federal district court in Dayton does tie the cases together.  West's motion was for change of venue on the basis of its contention that the antitrust claim in the Ohio court was a compulsory counterclaim that should have been brought in the Minnesota court, and contentions about problems such as possible inconsistent outcomes.  There would be no worry about that if the first case had been finally decided or settled before the second one was filed.  Hyperlaw's rendition of Mead's complaint is generally confirmed by the court's discussion of its reasons for denying the motion for change of venue.  <back to text>
  2. West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986), affirming West Publishing Co. v. Mead Data Central, Inc., 616 F.Supp. 1571 (D.Minn. 1985).  <back to text>
  3. Claims about West's monopoly status and conduct by Hyperlaw and the Taxpayer Assets Project are well known (Their Information Policy Notes can be searched by year. Choose a year and search on "west publishing".) Some might discount those claims on the basis of bias, but you can also read about some of West's conduct in a special series of articles by a sizeable staff of researchers and writers at the Minneapolis Star Tribune. The articles are most easily accessed from the series index page where they are grouped under the topics "U.S. justices took trips from West Publishing," "Ethics and the law," "Who owns the law?," Profiles," and "Perspectives." <back to text>

 

Copyright © 2000 T. R. Halvorson.  All Rights Reserved.

 

 

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