Now You See It, Now You Don't: Plan for Contingencies When Negotiating Legal Research Services Licenses That Include Distribution Agreements Involving Outside Publishers

It's been about a month since it was announced that PLI content was no longer available on Westlaw. Missing Westlaw's PLI content? Apparently PLI and Thomson Reuters were unable to reach an agreement for providing PLI materials on Westlaw. Was PLI asking for too much money? Was Thomson Reuters offering too little cash? Were other factors involved? Remember some PLI content is available on Lexis and Bloomberg Law (but for how long?). 

So if an institutional buyer killed all or most of its PLI print titles because "it was on Westlaw," deal with it. Content licensed from an outside publisher and distributed by way of one of our major vendors is not something one can depend upon. It is not necessarily a per se material breach of one's license for Westlaw, Lexis or BLaw unless an institutional subscriber makes it one.

Plan for contingencies by modifying boilerplate licenses. First. try to obtain a written assurance that all content licensed from an outside publisher that is redistributed by your search vendor will be accessible for the duration of your next license. If that doesn't fly, see where you get when licenses come up for renewal by insisting on a clause that stipulates that if X, Y or Z disappears, the subscriber has the option to cancel the license or to reduce its fixed costs by a certain amount for the duration of the research platform license.

Reduced costs by how much? The cost paid to the vendor or the replacement cost incurred by the buyer to acquire the content in print or electronic format? Start planning for contingencies. For example, how long do you think BNA will be available from anyone except BLaw-BNA? It just does not make sense to sell a competitive advantage to another research vendor by way of a distribution agreement.

What's going on here? The era of distributing expert secondary resources via Lexis and Westlaw to fill in the deficiencies of their commodized content is coming to a close. One or the other or BLaw but not "all or some of the above." In the No Sacred Cows era of legal research platforms, my hunch is distribution arrangements will become single vendor exclusive agreements that go to the highest bidder. And that bidder may change when the distribution agreement is up for renewal.

I'm not sure one can read the future by recent vendor eCommerce sites but clearly vendors like Lexis are already supplementing their in-house pBooks by offering expert print treatises published by other publishers (e.g., ALM) and professional and trade associations (just like BLaw is providing online). This is private sector demand-driven content sales and distribution in p- and e-formats. High quality speciality titles, something WEXIS lacks in quantity, are now "hot properties" in print and electronic formats for the supply chain.  Remember when Sears switched from just selling its own goods to becoming "Brand Central" a couple of decades ago?

Was BLaw's acquisition of BNA a wake-up call for WEXIS? [JH]