LexisNexis and Westlaw violating copyright?

Interesting story in today’s Daily Journal:

California Courts Come Under Fire for Giving Legal Briefs to For-Profit Firms

Lawyers Challenge to State Supreme Court Practice Says Lexis, Westlaw Are Infringing on Copyright

By Amy Yarbrough and Laura Ernde
Daily Journal Staff Writers

. . .

. . . Several months ago, . . .  Irvine attorney[Ed Connor] learned the California Supreme Court had given his 143-page brief to the legal information service LexisNexis, which was making it available online for a fee. . . .

. . .

“It’s something that we just worked really hard on, and I didn’t give permission to Lexis to put it up there,” Connor said.

. . .
Last week, Connor wrote a letter to Chief Justice Ronald M. George and William Vickrey, who heads the Administrative Office of the Courts, suggesting the practice is opening the court up to legal challenges based on copyright law.

Connor said his first reaction was to file a class action lawsuit for copyright infringement against LexisNexis and Westlaw, . . .

. . .

Santa Clara University Law School professor Eric Goldman said there are legitimate legal questions about whether briefs can be copyrighted, who owns that copyright and whether the documents are free to be distributed under the Fair Use Doctrine.

. . .

On Not Joining the West 600 Club

Today’s mail brought four new West supplements, each costing more than $ 600.00.

The first, just 3/4 of an inch thick, is Biotechnology and the Law, Update 7.  Its cost is $ 601.43.  Before I pay this invoice, I want to know:  Who wrote this supplement?  Was it the same team of people who wrote the supplement to Pennsylvania Criminal Procedure?  No, check that:  There’s no way I’m paying for this supplement.  No way; no how.

The next item is a 2 1/2 inch supplement to McCarthy on Trademarks and Unfair Competition, 4th.  Its price is $ 608.52.  Talk about “unfair.”

Next up is a 4 1/2 inch supplement to West Federal Forms, priced at $ 605.27.

Last, but hardly least at $ 967.42, is 8 inches of material — pocket parts and supplements to West’s Uniformed Laws Annotated.

The timing of the arrival of this material — with its grand total of $ 2,782.64 — really couldn’t be worse.   In times like these, how can publishers do this to us?

Happy Days No More

In the not too distance past, say back when Happy Days was a popular TV show, the annual song and dance between publisher, library director and dean went something like this:

Legal publishers would post annual price increases with an average of 11% – 15%.

The library director would then tell his or her dean, “Gosh, Look at this:  Law books are going up by 11% – 15%.”

The dean would then take out his or her checkbook and tell the director, “Outrageous.  Here’s your library’s annual 15% budget increase.”

Those days are over.  So over.  So, so over.

Today when I tell the dean that a certain publication is going up by a double-digit price increase, his reply is quick and unequivocal:  “That’s easy,” he says, “cancel it.”

Many of us — myself included — still have not received next year’s library budget.  But there is no doubt in my mind that a sea change in library collections will be forced by changing budgets and starting next year (by next year, I mean next “fiscal year,” which for us begins on September 1, 2009 – so next year is right around the summer corner).  I anticipate a reduction of at least 15%.  Further, my book funds — i.e., funds used for monographs — are entirely endowment based; I shudder to think what will happen there.

Let’s take a few examples of how the law library landscape might change.

We subscribe to both United States Code Annotated (USCA) and United States Code Service(USCS).  Last year here’s what we paid for each:

We paid $1,645 for USCS (a Lexis product); and we paid a total of $5,376 to West for their USCA in 2008, including all bound volumes and pocket parts.

Each set is a complete annotated version of the United States Code.  The quality on both is extremely good.  There is absolutely no doubt in my mind that any student, professor or practitioner can perform adequate legal research with just one or the other — no one needs both.  So faced with that fact and the budget reality, which one will the dean say “that’s easy” — the one that costs $ 1,645 or the one that costs $ 5,376?

Depending upon how my budget situation shakes out, we may even face the rather drastic step of cancelling some online databases.  There are three gigantic legal online commercial databases, each with its own benefits and features, but each also a complete online law library.  Here’s what they are costing us:

Bloomberg Law:  Free

LexisNexis:  $ 68.00 per FTE, with minimum of $ 15,000 and maximum of $ 50,850

Westlaw:  $ 73.27 per FTE, with minimum of $ 15,878 and maximum of $ 64,206

Looking back over the past few years helps show pricing patterns, which could aid in the decision making:

LexisNexis:

2008:  $ 34,980 (6% increase over previous year)
2007:  $ 33,000 (5%)
2006:  $ 31,497 (5%)

I should note that this year LexisNexis “gets it” and are holding next year’s price to the same amount as last year’s.  We’ll be adding them to our Good Guys list (see also this item).

Westlaw:

2008:  $ 39,951 (7% increase over previous year)
2007:  $ 37,338 (7%)
2006:  $ 34,773 (14%)

Some things will have to go.  Over the rest of the summer I and my colleagues will be making some tough decisions.  Redundancy is nice, but may not be affordable.

What Price, Captain?

Yesterday I saw, and thoroughly enjoyed, the new Star Trek movie.  It’s fun, and funny with some terrific lines.   But one of my favorite all-time movie lines comes from the 1987 film Spaceballs:

          Prepare ship for ludicrous speed!

It was spoken by Colonel Sandurz, following this dialog:

Colonel Sandurz: Prepare ship for light speed.
Dark Helmet: No, no, no, light speed is too slow.
Colonel Sandurz: Light speed, too slow?
Dark Helmet: Yes, we’re gonna have to go right to ludicrous speed.

An earlier post here,“Lawsuit alleges Chadbourne overcharged for computerized legal research,”cited Westlaw’s per-minute charge of $ 13.86 for its ALLSATES database.  I was citing from a 2006 Westlaw price list.  I have since found a more recent (April 2009) price list and, not surprisingly, the cost of this access is now higher.  Today the per-minute charge for using this database is $17.48.

Listed below are some of the prices for Westlaw database access as listed in the Pricing Guide for Private Price Plans (April 2009) brochure:

Per Minute Charges
All Federal and State Cases     $20.98
All Federal Cases       $17.48
All U.S. Supreme Court Cases    $8.95
U.S. Courts of Appeals Cases    $17.48
U.S. District Courts Cases      $17.48
All State Cases         $17.48
Individual State Cases  $8.95
United States Code Annotated    $10.50
Individual State Statutes Annotated     $10.50
Code of Federal Regulations     $8.95
Texts and Periodicals   $23.87
American Law Reports    $20.98
American Jurisprudence 2d       $17.48
Federal Practice and Procedure  $13.75
Journals and Law Reviews        $17.48
All News        $17.48

Remember that that’s per minute.  Multiple some of those numbers by 60 to see what an hour fishing online would cost.

The other billing method listed in the brochure by “Transactional Charges.”  A “transaction,” as I understand it, is a “search” – i.e., once in a database, entering a query and then pressing the “Search” button — ka-ching.  Here are some of these costs:

Transactional Charges
 
(no connect time or communications charges)

All Federal and State Cases     $194.00
All Federal Cases       $120.00
U.S. Supreme Court Cases        $61.00
U.S. Courts of Appeals Cases    $73.00
U.S. District Courts Cases      $73.00
All State Cases         $120.00
Individual State Cases  $61.00
State and Federal Cases         $120.00
United States Code Annotated   $73.00
Individual State Statutes Annotated    $73.00
Code of Federal Regulations     $66.00
Texts and Periodicals   $244.00
American Law Reports     $120.00
American Jurisprudence 2d       $90.00
Federal Practice and Procedure         $104.00
Journals and Law Reviews        $120.00
All News        $120

The price list also identifies “Per Minute Billing Classifications” which includes Specialty databases ($ 12.45/minute), Premium databases ($ 13.75 per minute), Allfile databases ($ 17.48 per minute), Super Allfile databases ($ 20.98 per minutes), Select databases ($ 23.87 per minute), Super Premium databases ($ 26.17 per minute), Super Select databases ($ 30.97 per minutes), Super-Duper Select databases (if you have to ask you can’t afford it), and Super-Duper Blow-my-Mind databases (priceless).  Okay, I made those last two up.

Westlaw has a terrific feature called ResultsPlus, which suggests additional resources based upon the research queries — often to valuable resources not considered by the researcher.  It’s impressive, and it has its own set of costs:  ResultsPlus Standard ($ 11.42 per minute), ResultsPlus Premium ($ 17.68 per minute), ResultsPlus Allfiles ($ 22.57 per minute), ResultsPlus Super Allfiles ($ 27.75 per minute), ResultsPlus Select ($ 30.98 per minute) and ResultsPlus Super Premium ($ 34.02 per minute).

All of the above charges are to find and view documents.  Printing and/or downloading has its own sets of associated fees.  Under “Line Pricing,” identified in the brochure as the default, “[c]harges to print and download documents range from $0.045 to $0.65 per line.”  Under “Per-Document Pricing (Flat Rate Per Document),” [c]harges to print and download documents range from $5.00 to $50.00 per document.

The brochure also lists separate fees for viewing some images, fees for clipping services, fees for KeyCite Alert, Docket Alert, Transactional Citation Research Charges, Per Minute Citation Research Charges, and Charges for Previewing Documents in the Link Viewer.

I do not mean to focus only on Westlaw.  LexisNexis pricing is similar — I just don’t have a pricing list handy for LexisNexis.  And these are great resources — one reason why I’ll never retire is that I could not give up my personal LexisNexis and Westlaw accounts.  And we law schools do not pay the above prices — we pay a flat rate, for unlimited academic use.  My only beef with West (and other legal publishers) is their annual price increases that far outpace our budget increases (For United States Code and Congressional News, for example, published by West, we’re being billed $ 568.44, a 24% increase over the $ 459 that we paid last year).

Time is money, and both LexisNexis and Westlaw are attorney time time-savers.  Saving an hour of an associate’s time could save the client somewhere around $ 300.00 or more.  But still:  When we share this pricing information with our students, their eyes do grow very wide.

But most law firms, I’m told, have negotiated flat-rate contracts for much of their LexisNexis and/or Westlaw access.

And in my opinion, one cannot perform fully adequate legal research today without access to LexisNexis or Westlaw (or possibly Bloomberg Law).  That’s today anyway.  Tomorrow remains to be seen.

Complaint in CALR billing case posted

In regards to our earlier post, “Lawsuit alleges Chadbourne overcharged for computerized legal research,” we have posted a copy of the complaint:

J. Virgil Waggoner, on behalf of himself and all others similarly situated

v.

Chadbourne & Parke, LLP, and Doe Defendants 1-100

Lawsuit alleges Chadbourne overcharged for computerized legal research

Everything is negotiable.  Most law firms have flat rate contracts with LexisNexis and/or Westlaw.  The databases also have transactional or hourly (more accurately:  minutely) charging.  For example, according to the March 2006 Westlaw Plan 1 Price Guide, to search the ALLSTATES database costs $ 13.86 a minute.  Some firms charge their clients these per minute rates, even if they are paying for the service under a flat rate contract.  If this is not done with the client’s knowledge, it can lead to a dispute, as this story in the National Law Journal reports:

Lawsuit alleges Chadbourne overcharged for computerized legal research

Tresa Baldas

 

. . .

Consumer protection attorney Patricia Meyer filed a suit against New York’s Chadbourne & Parke on March 2 for allegedly overcharging J. Virgil Waggoner, a Texas businessman, by several thousands of dollars for computerized legal research. His bill was roughly $20,000 for the research, she said, but it should have been closer to $5,000. Waggoner v. Chadbourne & Parke, No. BC408693 (Los Angeles Co., Calif., Super. Ct.).Meyer of San Diego’s Patricia Meyer & Associates said that many similar lawsuits are in the pipeline, noting that she has amassed evidence that shows at least a dozen other law firms are overcharging clients for legal research, but not telling them.

. . .

“This appears to be more widespread than you would think,” Meyer said. “Basically what we’re finding is that certain law firms are using Westlaw and Lexis as profit centers, as compared to simply passing along their actual costs to their client….Quite candidly, what we’re finding is the clients really have no idea that this is going on.”

And the prices go up, up, up

While our budgets go down, down, down.

The only option?  Cancellations left and right.

 

In the April issue of Library Journal there is a periodicals price survey. It’s an interesting read. Here’s the full article:
http://www.libraryjournal.com/article/CA6651248.html?q=periodicals+price+survey

The pertinent numbers for law:

Law

Average Cost Per Title 2005   $223
Average Cost Per Title 2006   $246
% of Change   10
Average Cost Per Title 2007   $273
% of Change    11
Average Cost Per Title 2008   $292
% of Change    7
Average Cost Per Title 2009   $322
% of Change    10

So, in a 5-year period, journal prices have risen an average of $99 per tile, or 44%.  Ouch.

Westlaw rises to legal publishing fame by selling free information

From the Minneapolis City PagesWestlaw rises to legal publishing fame by selling free information,” by Erin Carlyle.

West makes its money by selling free, public information — specifically, court documents — to lawyers. On this simple model, the company raked in $3.5 billion in revenue last year, placing it on a par, sales-wise, with retail giant Abercrombie and Fitch. But its operating profit margin really impresses: At a whopping 32.1 percent, West outpaces that of tech giants like Google (19.4 percent), Amazon (3.4 percent), and eBay (20.8 percent). Westlaw excels at one simple task: saving lawyers time by making legal information more readily accessible. The company charges a firm of six to ten lawyers as much as $30,000 a year to access its state and federal databases. But since attorneys’ time is worth a lot of money, the service pays for itself. After all, the more work they can do, the more money they can make.

How did it do this?  According to the story, by following these eight rules:

Rule 1: Find a niche with growth potential

Rule 2: Organize information to make it useful

Rule 3: The internet is a distribution channel — not a product

Rule 4: Turn words into math

Rule 5: Separate the signal from the noise

Rule 6: Computers can’t do everything

Rule 7: Treat content like patented material

Rule 8: Print’s not dead, it just needs online help

Cancelling LexisNexis and Westlaw

 

I was reading the New York Law Journal.  The April 6, 2009 issue has a front-page story, “Cash-Strapped Lawyers Strive to Slash Costs,” part of their “Hard Times” series, a “series of occasional articles about efforts by solo practitioners and mid-sized firms to weather the recession.”  The April 6 article, by Vesselin Mitev, profiles a number of attorneys, including Manhattan entertainment lawyer Theodore Blumberg, which includes this information:

” . . . Mr. Blumberg said he keeps a watchful eye on costs.  He has gotten rid of his Westlaw and Lexis accounts and switched to a cheaper service.”