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.
Published February 3, 2000
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 article is an update to “Jurisline.com: What You See…What You Don’t See” published January 17, 2000, which was previously updated in “Jurisline.com: Update” published January 24, 2000. In this article you will learn:
- what Kendrick Chow and Lee Eichen of Jurisline.com LLC said in an hour-long interview this week.
- about the suit filed by Jurisline.com LLC against Reed Elsevier, Inc.
- about the suit filed by Matthew Bender & Company, Inc. against Jurisline.com LLC and Lee Eichen.
Interview of Kendrick Chow and Lee Eichen
In the original article and in the January 24, 2000 update I reported the efforts made to contact Jurisline.com and how those efforts were frustrating. Since then I’ve continued to pursue contact with Jurisline.com. Finally, on February 2, 2000, I was able to interview both Kendrick Chow and Lee Eichen by telephone for just over an hour. Both of them spoke openly and answered all of my questions except one.
Chow and Eichen acknowledged to me that some of the content on Jurisline.com is from Lexis Law On Disc™ CD-ROMs. I asked whether they cared to acknowledge other sources besides Lexis CD-ROMs and the courts. That was the one question they declined to answer, citing the pending litigation as their reason. They said they were advised by legal counsel “before we embarked on this journey that there was no protectible copyright interest” in the core text of opinions issued by the courts or statutes enacted by the legislatures. It was their understanding that Matthew Bender and Hyperlaw v. Westlaw, (S.D.N.Y., May 19, 1997) “would have put that issue to bed.” They said they have no unpublished opinions, no head notes, and no value-added product from any legal publisher.
Chow and Eichen denied that the site is harvesting registration information. I asked them a number of questions about their business model. They believe that if they can maintain sufficient traffic to the site, they can successfully support the service through advertising revenue.
Jurisline.com LLC is not a publicly traded company. Chow and Eichen say they have filed a certificate of formation of a limited liability company with the State of Delaware.
Jurisline.com LLC v. Reed Elsevier, Inc.
On December 8, 1999, Jurisline.com LLC filed suit against Reed Elsevier Inc. in the United States District Court for the Southern District of New York in Case No. 99 Civ. 11860. Documents filed include an original Complaint dated December 8, 1999 and an Amended Complaint dated January 27, 2000. I obtained a copy of the original Complaint that shows what looks like regular filing stamps for reception, case number, and the judge assigned, Judge Rakoff. The original Complaint is 57 pages, sets forth 15 claims for declaratory judgment, and bases the claims on a number of legal theories and arguments. Stated very simply, Jurisline.com LLC claims that:
- the core data provided on the Lexis Law On Disc™ CD-ROMs is in the public domain as having been created by government at taxpayer expense, and
- the restrictions on use of that data imposed by licenses are unenforceable because federal copyright law preempts the state law of contracts.
The Amended Complaint is 82 pages and sets forth 19 claims. Added are claims of violation of the Sherman Act and the Clayton Act. Stated very simply, Jurisline.com LLC claims that:
- Lexis and Westlaw have combined or conspired in monopolizing the market for comprehensive computer-assisted legal research services in the United States.
It claims that Lexis and West have used monopoly power to artificially restrict supply in that market and that Lexis has artificially inflated fees for their services. Jurisline.com LLC seeks declaratory relief that there is no protectible copyright in the core data, that Jurisline.com LLC has not violated copyright nor the Lanham Act, and that Reed Elsevier not be allowed to enforce specified provisions of its license agreement. The Amended Complaint also asks for treble damages under the anti-trust laws.
These pleadings admit that Jurisline.com LLC obtained copies of the Lexis CD-ROMs and used the core text from them after redacting all editorial enhancements made by Lexis other than de minimus and non-creative enhancements such as attorney and date information. It claims that what it provides through its Web-based legal research service is thus only public domain data.
Matthew Bender & Company, Inc. v. Jurisline.com LLC and Lee Eichen
On January 28, 2000, Matthew Bender & Company, Inc., a subsidiary of Reed Elsevier PLC and the current owner of Lexis Law On Disc™, filed suit against Jurisline.com LLC and Lee Eichen in the Supreme Court of New York, County of New York in Index No. 600369/00. Stated very simply, Matthew Bender claims that Jurisline.com LLC and Eichen:
- committed fraud when they subscribed to Lexis Law On Disc™ representing that Eichen was purchasing the service as a sole legal practitioner, that no other attorneys would have access to the data, that the data would not be available on a network, and that they would abide by the terms of the license
- breached the contract governing the use of Lexis Law On Disc™.
As reported in the original article, stock email from Jurisline.com on December 10, 1999 said “Jurisline.com is a privately-held internet company based in New York which was formed by attorneys in 1998.” According to that statement, Jurisline.com LLC already was formed by the time Lee Eichen subscribed to Lexis Law On Disc™. The subscription agreement attached to Matthew Bender’s complaint shows that Lee Eichen ordered Lexis Law On Disc™ on March 24 and March 30, 1999. The subscription agreement shows Eichen’s initials on certifications just below Section 8 which provides:
8. NATURE OF SUBSCRIBER’S BUSINESS. Subscribing to CD-ROM Systems under the terms of this Amendment will be limited to law firms, corporate legal departments, and the legal units of government agencies engaged in the traditional practice of law and will not be available to law firms, research firms or other organizations performing research or other services for law firms or legal practitioners.
Just below Section 8, in the space for “Holder’s Names,” the name “Lee Eichen” is hand written, and next to that in the space for “Holder’s Title/Position” the title or position “sole practitioner” is hand written. On the face of this information, it might look like Eichen made those certifications and representations knowing them to be false when he made them. The terms of the subscription agreements and the Master Agreement, which he was given on April 7, 1999, make it plain enough that had Lexis known what Eichen and Jurisline.com LLC were going to do with the data, it would not have sold the service to Eichen. Matthew Bender alleges that Eichen did not disclose that he was acting on behalf of Jurisline.com LLC and that Lexis did not know he was doing so.
Matthew Bender is represented by Proskauer Rose LLP, and particularly Charles S. Sims, Stephen Rackow Kaye, Jon A. Baumgarten, and Michael T. Mervis. Jurisline.com LLC is represented by Boies & Schiller LLP, and particularly David Boies, Robert Silver, and Ted Normand. Boies, remember, was the Justice Department’s Lead Attorney in the Microsoft anti-trust case. He also tried United States v. IBM, another antitrust case.
Boies also represents PowerAgent, Inc., a pioneer in targeted Internet marketing. PowerAgent is suing its former investor and technology partner, Electronic Data Systems Corp. It complains that EDS purposely let PowerAgent become defunct so EDS could snatch its technology. As Adam Lashinsky, staff writer for the San Jose Mercury News expressed it on February 25, 1999:
PowerAgent makes the somewhat preposterous claim that if EDS hadn’t torpedoed it, it easily would have gone public and been worth billions of dollars, just like Yahoo Inc. (Nasdaq, YHOO) or Netscape Communications Corp. (Nasdaq, NSCP), its contemporaneous Internet peers. Its case is strong enough, however, to have convinced a well-known lawyer to take it up on a contingency basis.
“Boies took it on because he saw merit in the case,” says David Carlick, the veteran Silicon Valley marketeer who was PowerAgent’s president.
Boies may not have been famous in non-legal circles before his extended moment in Microsoft’s spotlight, but he’s no stranger to EDS. He has successfully litigated for and against the Texas company.
In the Market for Data
Undoubtedly Matthew Bender will not be sending Jurisline.com LLC any update CD-ROMs. One wonders where Jurisline.com can turn for data. But barring an injunction, they’ve solved a large part of the problem: they have back file. Getting the new cases from the courts or from the Web might be a hassle, but it also might be possible.
Copyright © 2000 T. R. Halvorson. All Rights Reserved.