Law Librarian Blog

Every Picture Does Not Tell a Story If One Can't See the Graphic

On Nota Bene, Matthew Mantel reports on test driving Ravel [LLB post]. He concludes his The Picture of Legal Research – Ravel with the following statement:

In a world where the big players, Westlaw Next, Lexis Advance, and Bloomberg Law, all trumpet their powerful search algorithms, I don’t think that graphics will be enough to make Ravel a real player in the long term. I hope that this ambitious law school project spurs the big boys to add the option of using more graphics in their products. While I am too practical to assume that there exists the “Platonic Ideal” of an electronic legal research platform, Ravel is a nice step forward.

Call me old school but I've never been excited about the roll-out of graphic displays being added to vendor search platforms. I would prefer that our very expensive legal search vendors enhanced their editorial content instead of merely applying data visualization techniques to their existing e-content inventory. There is, however, an issue that goes beyond personal preferences. What happens if, more likely when, search vendors add graphics for data displays that provide unique information, not merely alternatives to text-based displays, that are not 508 complaint for the visually impaired?

Like Mantel, there is nothing wrong with our major commercial vendors adding more graphics to their online services. I believe he would agree with my one qualification, namely, as long as the graphic displays are properly coded so that screen readers can interpret them. Technological innovation should be an enabling, not disabling, development for all. [JH]

Analyzing the Fine Print: Changes in Terms of Boilerplate Consumer Software License Agreements

From the abstract of Florencia Marotta-Wurgler and Robert Taylor's recent NYU Law Review article, Set in Stone? Change and Innovation in Consumer Standard-Form Contracts:

This Article studies the rate, direction, and determinants of change in consumer standard-form contracting. We examine what changed between 2003 and 2010 in the terms of 264 mass-market consumer software license agreements. Thirty-nine percent of contracts materially changed at least one term, and some changed as many as fourteen terms. The average contract became more pro-seller as well as several hundred words longer. The increase in length is not due to the use of simpler language. Contract readability has been constant: The average contract is as readable as an article in a scientific journal. The variance of contract length has grown, as has the variance in overall pro-seller bias, resulting in reduced contract standardization over time. Firms that were younger, larger, or growing, as well as firms with inhouse counsel, were more likely to change existing terms and to introduce new terms to take advantage of technological and market developments. Contracts appear to respond to litigation outcomes: Terms that were increasingly enforced by courts were more frequently used in contracts, and vice-versa. The results indicate that software license agreements are relatively dynamic and shaped by multiple factors over time. We discuss potential consumer protection implications as a result of the increased length and complexity of contracts over time.

[JH]

NASCIO's State Mobile Apps Catalog

On May 13, 2013, the National Association of State Chief Information Officers announced the launch of its State Mobile Apps Catalog, "a collection of over 160 state and territory native mobile apps that users can browse and download for smart phones and tablets. The apps are searchable by state/territory, by category and through an overall browse function." The catalog includes, for example, public safety, health and wellness, public assistance, employee assistance, state portal, traffic/road conditions, parks and recreation apps.

Hat tip to Nota Bene. [JH]

Current Awareness Service Focused on Legal News and Developments: There's an app for that

And a website version. Launched on May 21, 2013, it is called Legal Ratchet. [Press Release] As always, Bob Ambrogi is on top of this latest service. He writes "Law Ratchet is essentially an RSS reader, similar in function to Google Reader. Unlike other RSS readers, however, Law Ratchet is preconfigured with news feeds and categories." See Bob's review at Law Ratchet Debuts: Like Google Reader for Legal News. See also his follow-up LawSites post, Does Law Ratchet Infringe Bloggers’ Copyrights? [JH]

Law Firm Adoption of eBooks

In April 2013, Bess Reynolds, Technical Services Manager, Library & Knowledge Management Dept., Debevoise & Plimpton LLP, conducted a survey on law firm eBook issues. 135 law firms participated. Bess presented and commented on the survey findings at the CALL/ACBD 2013 Annual Conference on May 8, 2013.

According to the survey findings, 26.9% (36 law firms) reported buying eBooks for firm attorneys in 2012. 43% (55 law firms) indicated having plans to buy eBooks in 2013. In response to the survey question "If you bought any eBooks, which vendors have you purchased from?" 48 law firms provided the following answers:

Vendor	Response Percent	Response Count
LexisNexis	45.8%	22
Thomson Reuters	22.9%	11
Wolters Kluwer	14.6%	7
CALI	0.0%	0
Other legal publisher	33.3%	16
Non-legal publisher	14.6%	7
Retail such as Amazon or Barnes & Noble	14.6%	7
Aggregator such as OverDrive or EBL	8.3%	4
Source: April 2013 law firm survey conducted by Bess Reynolds

I am very hesitant to conclude that LexisNexis is really leading the vendor pack in law firm eBook purchasing because it is unclear (to me, at least) whether some, many, most(?) of the 22 law firms that listed LexisNexis as a vendor did so because of the Company's problematic "free" eBook companion program for their print deskbooks. What is interesting, however, is that only four firm libraries are using an aggregator such as OverDrive which is the Lexis eLending platform for their eBooks. Do note that in a separate question, the survey found that 22.2% (30 law firms) have access to eBooks through another library.

The number of eBook titles, quantity of eBook copies, and/or actual or budgeted total costs for eBooks acquired by law firms was not asked in this survey. Hopefully, that will be addressed in a follow-up survey someday. At the moment, I doubt that data would be all that informative because the one takeaway from this survey is that our legal vendors' most important market segment, private sector law firms, find far too much wrong with current Law eBook schemes.

Bess' CALL/ACBD presentation, Land of Confusion: eBooks' Licensing Demystified, identifies a number of damn good reasons why law firms have not jumped on the Commercial Law eBook adoption bandwagon yet. Highly recommended. Her Law Librarian Manifesto for eBooks at slide 23 should be required reading for all commercial legal vendors attempting to sell eBooks to law firms. [JH]

The Big Whoop-de-do of Current Services: Why vendors should not forget that the Google Generation is also the YouTube Generation

"In a presentation to advertisers this week Google Executive Chairman Eric Schmidt declined to forecast that Internet video would replace television, Schmidt said, 'That’s already happened, the future is now for YouTube,'" wrote Kevin O'Keefe in his May 4th, 2013 post titled Google’s Schmidt: YouTube has replaced TV. What’s it mean for law firms?

Referring to YouTube both as a specific delivery platform as well as a metaphor for electronic video content generally, I believe the interesting question is what does that mean for our commercial legal publishers, professional legal services, legal solutions (whatever) vendor? If the focused user population is the so-called Google generation and it certainly is, this user population is also the "YouTube" generation now. This applies not only to webinars but to vendor search platforms, productivity platforms, specific practice-centric offerings, "news and developments" coverage, and enhanced eBooks' current status quo.

BLaw's video productions -- easily do-able because the tech infrastructure was already in place -- has resulted in other vendors scrambling to catch up in some areas. Any vendor which might be resistant to the idea that multimedia is not going to be an essential add-on component in all their law-related inventory of e-content is in denial.

But I am not refering to training webinars! Nor am I merely referring to just enhancing legal research and eBook platforms. Today's Google-YouTube generation will also want to incorporate official video proceedings (problematic due to the source's encoding formats) and their own in-house produced videos in work product using licensed "legal solutions."

The big whoop-de-do of "shared folders," etc. is so last century to our vendor's targeted demographic market that it borders on absurdity. I can hear our vendors say "but our focus groups aren't asking for that!" Well, the grim reaper of innovation is making decisions based on focus groups. [JH]

"So What": Dealing with Format Switcheroos

What if hosting eShifted Lexis periodicals as a method for archiving and accessing the PDF issues means hosting them on a local directory at C://... on one workstation? Based on Michael Ginsborg's close reading of the LexisNexis Electronic Publications Master Agreement in his LexisNexis eShift or eShaft? analysis, my web server hosting suggestion sounds like a violation of the Company's Master Agreement, even if the PDFs were hosted on an internal closed intranet. My bad. As Michael correctly observed, the basis of my post was the Lexis eShift Notice tech processing staff were finding in the shipments of the last print periodical issues their law libraries would receive.

Well, I doubt anyone has commenced following my April 8th suggestion at this time. Why? Because attentive serials check-in staff are still catching the ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION notice. Apparently the list of known affected titles appears to be growing. What point is there in taking any systematic in-house problem-solving action until institutional subscribers know how extensive the Lexis eShift's impact to their libraries will be unless, of course, one's collection development policy has become to cancel the periodicals.

It is clear that once again Lexis is in customer service damage control mode; the scramble is on. Apparently nothing much was learned from the "free" eBook substitution for CDs that commenced in November of 2012, nothing that is except maybe someone in Dayton or New York City mentioned "we're going to have to answer to CRIV again". And indeed, Lexis will. But despite CRIVs very best efforts I seriously doubt the forthcoming periodical e-migration response will be any more enlightening than the Company's response to CRIV's first go-around with the eBook substitution.

CRIV can only go so far. Based on the recently approved Vendor Relations Policy by AALL's Executive Board, CRIV cannot do much more than ask Lexis to please consult with and please provide reasonable and detailed advance notice when Lexis or any other vendor for that matter considers or decides to change a title's format (from one print to another print format, from one electronic to another electronic format or from one print to an electronic format).

No doubt Thomson Reuters is enjoying this second round of WTF-ing from law libraries about Lexis. Usually Thomson Reuters is at the center of these sorts of kerfuffles with their invoice-paying institutional buyers. Joined by Lexis now, we highlight typical WEXIS responses in the form of three rhetorical questions.

1. What if a vendor's response to an on-going format change is to merely indicate that there are a couple of hundred of titles which are candidates for being changed?
2. What if a vendor's response is to tell the institutional buying community to contact their individual rep?
3. What if a vendor's response is to claim that advance notice is being provided to customers by way of an updated list of titles hosted on their eCommerce site?

Acceptable? Anyone with any print manufacturing experience knows that a vendor does not wake up one morning and says "OK, we are executing and distributing this title's format change today". Scheduling is involved; in some instances print manufacturing scheduling extends out 12-18 months in advance. In some, such as periodicals, perhaps only a couple of months. Anyone with any electronic manufacturing experience also knows that a fair amount of coding work is involved to test and then implement a format change from one eFormat to another eFormat before production is executed.

Why should buyers law libraries with standing orders, subscriptions and/or multi-year "price-discounted" contracts have to contact their reps to find out if and/or when a title will been shifted to a new print or electronic format? Do the reps know? If so, why not just inform customers of the schedule in advance. But publish that information by what means? By way of a growing, updated list of affected titles on the vendor's eCommerce site -- why should customers have to check a vendor's website daily, weekly, monthly?

Dear WEXIS

Based on past practice, it appears to be too much to ask you to consult with institutional buyers about possible format changes, etc. However, it is the 21st century. Since you can and you do flood our email in-boxes with advertising, I'm thinking you can figure out a way to send emails in advance of format changes to invoice-paying law librarians.

Just a thought...

Of course, each and every invoice-paying law librarian is responsible for dealing with vendor issues. Voluntary timely contributions to the law library community by individual librarians such as Michael's LexisNexis eShift or eShaft? can be very helpful. Collective action by AALL, no matter how well-meaning, is too constrained by official AALL policies, procedures and practices to contribute much more than calling attention to the consequences of vendor decisions with the hope that the vendor will provide some useful information.

Should we just assume that WEXIS has little knowledge about internal library operations? If that's the case, then CRIV performs a valuable function. However, I think WEXIS knows what they are doing. Our user populations, not law libraries, are their customers.

My hunch is that if at some vendor meeting, someone mentions "we're going to have to answer to CRIV again," a vendor senior executive's response would be "so what." Under AALL's Guide to Fair Business Practices for Legal Publishers (2012), "so what" is an acceptable response to law libraries. [JH]

What Other Courts Have Said About This Case: Applying Negative Treatment Analytics to Court Opinion Data by way of Fastcase's Bad Law Bot

Mindful of the forthright caveats expressed in the below video, Fastcase's Bad Law Bot sounds like a very interesting programming experiment using a dataset of files that are not enhanced with court treatment metadata. Hopefully someone will produce a comparative study of Fastcase's Authority Check, now including Bad Law Bot, with BLaw, Lexis and West citation services for negative treatment results. Signal confirmation by actually reading cited opinions will be required, as it always should be.

Remember when KeyCite was still indicating that Michigan v. Jackson, 475 U.S. 625 (1986) was good law some two weeks after being overruled by SCOTUS in Montejo v. Louisiana? See Maybe Westlaw thinks Scalia was wrong, but… (LLB, June 12, 2009). Shepard's got it right almost immediately. Would Fastcase's Bad Law Bot have?

For details about Bad Law Bot, see this Fastcase Blog post. See also, Greg Lambert's Fastcase's Bad Law Bot: "Big Data Applications For Legal Research" on 3 Geeks (and the comments to that post) and Jason Wilson's Building a citator through indirect crowdsourcing: Fastcase’s Bad Law Bot.

From the YouTube description:

Bad Law Bot is an enhancement to Fastcase's Authority Check feature that helps you determine whether your case is still good law. Fastcase CEO Ed Walters discusses the new feature and how to use it.

Bad Law Bot algorithmically scans citations in judicial opinions -- where a citation shows that a case has been overturned, Bad Law Bot plants a red flag to tell you so.

[JH]

An Update on Developments About the Lexis eShift for Periodical Subscriptions

Since initial receipts of the "ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION" Lexis eShift Notices (republished here) in early April (March?, earlier?) of this year by institutional subscribers, additional information has become available. Most of the information comes from a series of email exchanges between Caroline Walters, Collection Development Librarian for U.S. and the Materials Budget, Harvard Law Library, and Lexis representatives.

From the context of the exchanges, Lexis understood that the Company's responses to Caroline's questions would be made available to a wider audience. The provided information was republished inside AALL's walled garden of web communications on the Consumer Advocacy Caucus community message board by Betsy McKenzie, Director of the Moakley Law Library and Professor of Law, Suffolk University Law School and Caucus Chair. Highly recommended.

Without intending to speak for either Caroline or Betsy, I view this, my opinion and only my opinion, as:

1. Caroline was not representing either the Caucus specifically or AALL generally. All she has been attempting to do is acquire information from Lexis about the periodical eShift to perform her day job duties for Harvard Law School Library; and
2. While Betsy is Caucus Chair, I believe she was simply posting those exchanges on the Consumer Advocacy Caucus web community message board for FYI purposes about a pressing work-related issue. Furthermore some Caucus web community messages were posted by other law library representatives to help answer day job related questions that had been asked.

Of course, one also may view the Caucus message board activity as an appropriate means for gathering concrete information so that the Caucus can make recommendations to the Executive Board.

BTW, all AALL members -- law library and vendor representatives -- may join and contribute to Consumer Advocacy Caucus web community message board. Again, only speaking for myself, I believe that anything which advances prompt responses to and understanding of time-sensitive issues involving institutional buyers and their vendors can be productive. I may be wrong but I believe buyer and vendor representatives can post to the Consumer Advocacy Caucus web community without being members of the Caucus.

End note. Last week CRIV conducted a conference call with Lexis representatives "to further discuss the change in format to eBooks/eNewsletters and invoicing." According to this April 19, 2013 CRIV Blog post, "LexisNexis will be posting an official response to the questions covered during this call, and we will post the response to the CRIV Blog as well as sending it out through our listserv liaisons." See also this CRIV Blog post dated April 19, 2013, What is the LexisNexis eShift? ("Note: Our serials coordinator alerted me to the following letter included with our copy of Benedict’s Maritime Bulletin.") (Includes the text of the "ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION" eShift Notice). [JH]

LexisNexis eShift or eShaft? Part Four In A Four-Part Series

Needed Guidance Left Unstated In AALL Consumer Policies

Michael Ginsborg

In Part 3, we considered LexisNexis’ (LN) license restrictions on a library’s eShifted titles. If your library has such titles, do these license restrictions strike you as reasonable for your library, especially if or as Lexis adds more print titles to the eShift program? Or are they sufficiently unmanageable to create at least the appearance of a “bait-and-switch” maneuver to sell multiple-use licenses through the LexisNexis Digital Library? Not surprisingly, LN advertises the Digital Library as “more efficient compared to each individual eBook user purchasing and managing his or her own digital content.” We might have preferred a higher bar for "efficiency." At any rate, LN disingenuously states, “you are welcome to consider other solutions” if your library can not pay for a Digital Library.

Under Principle 18 of AALL’s Principles For Licensing Electronic Resources (PLER), library licensees should not have “enforcement obligations” that impose an “unreasonable burden.” If a revised LexisNexis Master Agreement(LNMA) followed PLER Principles 13 and 14, it would mitigate unreasonable burdens of library compliance. At least library licensees would not be held liable for unauthorized uses if, by “reasonable and appropriate methods,” they notify users of the restrictions (Principle 13). And they would have opportunity to investigate and correct LNMA violations as circumstances warrant (Principle 14).

Notwithstanding availability of a Digital Library option, the LNMA  also can be understood to violate PLER Principle 17, a recommendation to “allow for routine remote access to [library-]licensed electronic information resources.” Finally, the LNMA has no provision for use of alternative dispute resolution, in possible violation of PLER Principle 33.

CRIV may yet intervene, as it has a phone conference scheduled this week with LN. LN seems unlikely to lift any of the  license restrictions for libraries. Otherwise, LN could have foreseen that our libraries would object to the consequences, and would not have offered such a restrictive license agreement to libraries in the first place. Worse still, CRIV may not have standing to intervene. Neither FBPG nor PLER offer specific guidance on one of the most important library issues of our time - the issue of how publishers transition print subscriptions of libraries to e-formats. Therefore, it is far from clear that these guidelines support (or undermine) my interpretation that LNMA violates them.

Indeed, with one important exception, both FBPG and PLER might reasonably be interpreted to apply in this instance to new purchases, and not to “e-migrating” subscriptions. None of FBPG’s “change-in-format” principles has bearing, except for Principle 3.1(e), on advance notice to customers. PLER appears to have straightforward application, but the appearance is deceptive, because library customers have an alternative. Indeed, with respect to the Digital Library, LNMA may generally satisfy FBPG and PLER. Nothing in either guideline speaks to the “bait-and-switch” maneuver that arguably is at issue.

At any rate, LexisNexis need not modify its Master Agreement and disclosures in any way to satisfy FBPG and (by extension) PLER. AALL recognizes that "the publisher is in the best position to fully implement the guidelines in a manner suitable to its business plan." (FBPG Introduction item 4). LexisNexis can claim that it has fully implemented the guidelines in a manner suitable to its business plan, especially if the company has a business plan to increase licensed-product market share among law libraries. The claim would not be specious.

AALL’s consumer policies depend for their effectiveness on a self-regulatory model of “publisher partnerships.” eShift represents the cusp of a sweeping change for law libraries from owners to licensees of publications. eShift tests the adequacy this model. While our Association’s guidelines remain essential as minimal standards, the partnership model does not adequately protect law libraries facing “e-migration” of their holdings.

Editor's Note: Prior posts in the LexisNexis eShift or eShaft? four-part series:

Part 1: Introduction - eShift and LexisNexis Licensing.

Part 2: The LexisNexis Electronic Publications Master Agreement, Problems of Disclosure, and Restrictions on Library Licensees

Part 3: Burdens of Licensing Compliance - Added Costs, But No Commensurate Benefits

LexisNexis eShift or eShaft? Part Three In A Four-Part Series

Burdens of Licensing Compliance - Added Costs, But No Commensurate Benefits

Michael Ginsborg

Imagine that yours is a 108(a)(2) library with more than one of the eShifted newsletters.  You can reasonably expect LexisNexis to add other print titles to the eShift program, perhaps even treatises, such as those now available for eBook purchase. But suppose as well that you do not request a multiple-user license for these subscriptions through the LexisNexis Digital Library - an option, oddly enough, not described in the eShift letter. Under the LexisNexis copyright policy, you can print (and route) a single copy of a newsletter title issue, but your Library will now bear the expense of preparing printouts for routing and shelving.  (What if the printer jams, or runs out of paper, producing an incomplete single copy?)

So eShift incurs a cost for printing to route or shelve the designated newsletters, and other serial publication that LexisNexis may designate for eShift’s pdf format. If or when eShift starts to include treatise subscriptions, treatises will be available in an eShift format other than pdf.

Does the digital format confer any substantial benefits? No. It confers just three marginal benefits. First, a single user in a library may search the digital content of “archived” newsletters, but how often is that likely to happen, given the license restrictions? Second, according to its eShift letter, LexisNexis states that the eBook format will “increase the timeliness and currency of your newsletter.” By the time newsletters are published, the events they cover already tend to represent dated news. Faster distribution makes little or no difference to attorneys if routed to more than two. If at some point treatises join the eShift program, neither of these benefits will matter (to the extent available for specific treatises), and for similar reasons.

Finally, as LexisNexis advertises, users will be able to “highlight, make notes, print and bookmark” content. But library patrons can not print more than  an “insubstantial portion” and can not save any highlighted language, except as needed to print insubstantial portions. As computers used must not be “borrowed or removed from the premises,”  each single user could not save the highlights or bookmarks without at least distracting the next user. Thus  the license restrictions make the advertised benefit practically unavailable to library licensees. Because the advertisement misleads, it can be understood to violate Principle 1.2 of AALL’s Fair Business Practices Guide (FBPG), on accurate marketing and communication.

The license would add the following burdens of compliance to current and future print titles targeted for eShift. As the restrictions effectively demonstrate, the license has been designed for single buyer-users, not libraries. You can download all of your library’s eShifted newsletter issues, or all of your other print eShift titles, on one computer. Or you can download each title on its own computer. Regardless, you must maintain “exclusive control” over the computer or computers used. If you use just one computer for all eShifted titles, only one patron at a time will have access to any of them. You must, for each computer used, ensure that no patron “transfers” content except to print “an insubstantial portion." You must ensure that copied content does not end up in emails or Word documents, even if you disconnect the device from a network. You must keep patrons from taking the computer used off “the premises”;  you and your colleagues must maintain “exclusive control” over it. That condition applies no matter how many patrons might use the designated computer for eShifted title access, or whether you or your colleagues are available to exercise “exclusive control.” You must also have every patron “agree” to posted licensing restrictions - a requirement best met in writing. Of course, interlibrary loans are not allowed.

Tomorrow, in the last part of this series, I will consider how these restrictions can be interpreted to violate AALL’s consumer advocacy guidelines. But that interpretation remains open to question, so I will suggest how the guidelines fall short of the consumer protections our libraries need in the “e-migration” era.

Editor's Note: Prior posts in the LexisNexis eShift or eShaft? series:

Part 1: Introduction - eShift and LexisNexis Licensing.

Part 2: The LexisNexis Electronic Publications Master Agreement, Problems of Disclosure, and Restrictions on Library Licensees

LexisNexis eShift or eShaft? Part Two In A Four-Part Series

The LexisNexis Electronic Publications Master Agreement, Problems of Disclosure, and Restrictions on Library Licensees

Michael Ginsborg

eShift customers would not have learned about the LexisNexis Master Agreement (LNMA) from the “eShift letter,” the communication that the company sent them about the change. (You can find the letter in this post by Joe Hodnicki, who appears to have based his comments on the letter.) The letter's omission, of course, presents a problem: it can be understood to violate Fair Business Practice Guide (FBPG) Principle 2.2(h), or the recommendation that legal publishers disclose license restrictions in customer communications. It also can be understood to violate FBPG Principle 2.4. Under this principle, where legal publishers advertise or market products both online and in print, they should not limit material statements to either just the print or online formats. However, a material statement appears in the just eShift letter mailed to customers, and not also the eBooks website. It concerns an important statement about “reuse rights” of eShift subscribers to the new pdf formats.

Another problem concerns liability of a library licensee under LNMA for unlicensed uses of LN’s electronic publications. LNMA specifies a library licensee as any library “described in 17 U.S.C. 108 (a) (2)” - a category that typically applies to law firm, academic, and public law libraries. License restrictions resemble some that apply to CD products. (See, for example, terms and conditions for Matthew Bender CD-ROMs.)

Under LNMA Section 1.3, a library licensee must do more than post a required notice of restrictions on any computer providing access. A library licensee “shall require” patrons to agree to the terms of restriction. The library licensee must also “not allow” any patron to (1) remove the electronic publication “from the premises”; (2) have “remote access” to it, whether by telephone, Internet, “or other means”; and (3) copy any but an “insubstantial portion” of content for printouts used in legal research. Restrictions (1) and (3) do not apply to individual purchasers of electronic publications. Thus individual purchasers using an eBook reader can obviously take an LN electronic publication home. They may also include an “insubstantial” portion in work product (Section 1.1.3).

Moreover, a library licensee must maintain “exclusive control” over the affected eReader or other computer, and must ensure that only one user at a time can have access. Finally, rather than take reasonable corrective steps, the library licensee must notify LN of unauthorized uses and “cooperate fully” with LN in “any resulting legal action.” It is hard to know what meaningful rights library licensees could expect to retain or defend in a “resulting legal action.” LNMA has no provision for arbitration of disputes.

Library subscribers to eShifted titles will find that their subscriptions have become far more costly and only marginally more useful. Tomorrow, in Part 3, I will describe the burdens of compliance for library licensees that do not buy access to a LexisNexis Digital Library, and related, possible violations of AALL’s Principles For Licensing Electronic Resources.

Editor's Note: For Part 1 in this series, see Introduction - eShift and LexisNexis Licensing.

LexisNexis eShift or eShaft? Part One In A Four-Part Series

Introduction - eShift and LexisNexis Licensing

Michael Ginsborg

AALL members recently had questions about LexisNexis eBooks and the “eShift” from print-to-electronic subscriptions, a change that currently affects 20 print newsletters and 24 handbooks and manuals (here and here) on CDs. (See also the company’s “Migration Efforts” and related posts by Joe Hodnicki here and here.) As a result of eShift, print newsletter subscribers will have to use an eBook (pdf) format to continue the subscriptions; handbook/manual subscribers will have to do likewise. The eShift list of print and CD-ROM titles appears likely to grow, and at some point may include treatises, like those already available for purchase.

CRIV quite helpfully enlisted LexisNexis to respond to many of our questions. Of course, LexisNexis deserves credit for responding, and for providing helpful information at its eBook website, even if serious concerns remain over the eShift program. On April 12th, CRIV announced that it “has a phone conference scheduled with Lexis next week” about outstanding issues. In this series, I will focus on just the newsletters and all other eShift print candidates, as relatively few law libraries continue to buy titles on CD-ROM.

A paramount concern involves licensing. In its response, LexisNexis stated that “you may find answers to your questions in the terms and conditions (the “Electronic Publications Master Agreement”) related to eBooks (as well as CDs, DVDs, PDFs, flash drives or other offline publications distributed electronically by LN) located at http://lexisnexis.com/terms/bender/masteragreement/.” A LexisNexis representative has just confirmed that the "eshift titles are governed by any terms and conditions within the product itself, the Master Agreement ... referenced, and any contract terms that [the customer] may have entered into on purchase." What tentative conclusions can we reach about the Lexis Nexis Master Agreement (LNMA), if we consider the consequences of compliance for "eShifted" newsletters and other (future candidate) print titles, and if we rely on our association’s consumer policies - the Guide to Fair Business Practices (FBPG) and Principles For Licensing Electronic Resources (PLER)

Tomorrow, in Part 2 of this series, I will describe a problem of disclosure and the nature of LNMA restrictions. In Part 3, I will describe the burdens they impose on library licensees and possible violations of FBPG and PLER. In Part 4, I will suggest that AALLs consumer policies, while essential, still fall far short of needed consumer protections for our libraries, given dramatic changes of the kind eShift represents.

Does WestlawNext Cost Almost Twice as Much as Classic Westlaw?

According to Emily Marcum's findings, the answer is "yes." Her article, The Quest for Client Savings in Online Research: WestlawNext v. Westlaw Classic, is now available from Legal Reference Services Quarterly. Here's the abstract:

The cost to the client of Westlaw versus WestlawNext was assessed using two research methodologies. One methodology reflected real-world questions over time across categories. The other methodology had artificially generated questions broken down by category and evenly numbered across platforms. In both experiments, WestlawNext cost the client roughly double the cost of Westlaw Classic. Simplified pricing plans were cheaper for primary law and expert materials but were more expensive for other categories.

Highly recommended. [JH]

Obla di, obla da, life goes on: "ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION" because one of AALL's "vendor partners" is at it again

We strive to obtain the maximum value for our institution's fiscal resources, while at the same time making judicious, analytical and rational use of our institution's information resources. -- AALL Ethical Principles (1999)

ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION Dear LexisNexis® Subscriber: The next release of this publication will be delivered in eBook format via the LexisNexis® Download Center. You will no longer receive the printed version of this publication. Electronic delivery via the LexisNexis Download Center will increase the timeliness and currency of your newsletter subscription, in addition to reducing our impact on the environment. What do you need to do to ensure your subscription continues? Visit www.lexisnexis.com/eShift and complete the eBook processing form. This information will be used to transfer your subscription to eBook and enable access to the LexisNexis Download Center. You will then receive an initial email with your username, temporary password and a link to the LexisNexis Download Center. When you arrive at the Download Center for the first time, you will be asked to create a security question. After completing the security question, you will be logged into the Download Center and able to download material. What should you expect going forward? After providing an email address for your account, you will receive an email alert from LexisNexis when a new release of the publication becomes available. This email alert will include a link to the LexisNexis Download Center, where you may access the latest edition. To access the PDF, you will need to download Adobe Reader to your computer if you do not already have this program. Only the latest newsletter issue will be available on the LexisNexis Download Center. You will need to save and archive each edition for quick reference to previous issues. If you miss downloading an earlier release, you may contact Customer Support and ask that a copy be sent to you. Thank you for choosing LexisNexis products and services. If you have any questions about your subscription, please call us at 800.833.9844, email customer.support@lexisnexis.com or visit www.lexisnexis.com/printcdsc. Note Regarding Reuse Rights: The subscriber to this publication in .pdf form may create a single printout from the delivered .pdf. For additional permissions, please see www.lexisnexis.com/terms/copyright-permission-info.aspx. If you would like to purchase additional copies within your subscription, please contact Customer Support.

Without advance notice to invoice-paying law librarians, attentive serials check-in staff are spotting a form letter (sidebar right) inserted in the shipment of the last print copies of newsletter, bulletin and journal issues stating that their periodicals will no longer be published in print by Lexis.

Under the banner heading "ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION", the "Dear LexisNexis® Subscriber" Notice states in its lead paragraph:

The next release of this publication will be delivered in eBook format via the LexisNexis® Download Center. You will no longer receive the printed version of this publication.

(Emphasis in the original.)

Further on, the Notice states:

Only the latest newsletter issue will be available on the LexisNexis Download Center. You will need to save and archive each edition for quick reference to previous issues. If you miss downloading an earlier release, you may contact Customer Support and ask that a copy be sent to you.

Note well, the Notice does not even identify the title of the publication. Also, it is not an eBook. Each forthcoming issue will be a PDF copy that the subscriber is permitted to print out once.

So the first action required... is to ask your serials check-in staff to write down the damn title on the Notice that has been eShift-ed by Lexis. To get started, here's the list of Lexis periodical titles Harvard Law School Library has be able to identify. It's only current as of the middle of last week:

• Environmental Law
• CA Family Law Monthly
• Commercial Damages Reporter
• CA Criminal Defense Reporter
• CA Environmental Law Reporter
• Business Crime
• Benders Health Care Law
• FL Family Law Reporter
• CA Real Estate Reporter
• TX Family Law Reporter
• TX Torts Update
• Warren Heaton Case Digest
• Benders CA Labor & Employment
• Construction Law Digest
• Benders Labor Employment Bulletin
• CA WCAB Noteworthy Panel Decisions
• Michies 4th Circuit Criminal Reporter
• MA Family Law Journal
• MN Family Law Journal
• TX Oil & Gas Law Journal

Do note that according to one librarian's exchange with a Lexis rep, sometime this summer Lexis will have online an archive of PDF-ed issues in case you have missed this eShift for an affected periodical. Until then, call your pBook-eBook rep before he or she is laid off in Albany. They are the best equipped to help with these pesky account management issues. In the alternative, just cancel the damn periodicals and demand a refund from your Lexis rep. Quoting from the Notice:

Thank you for choosing LexisNexis products and services.

Lexis claims "Electronic delivery via the LexisNexis Download Center will increase the timeliness and currency of your newsletter subscription, in addition to reducing our impact on the environment." Well, it will not increase timeliness and currency of the so-called "newsletter" (read "periodical") subscription until institutional buyers figure out how to archive and deliver to their user populations all forthcoming ePeriodical PDF issues. And that certainly will have an impact on libraries' tech services, IT, and user services environment unless what one only does is print out a single PDF copy and pretends the affected periodical is still published in print.

"Making judicious, analytical and rational use of our institution's information resources." How are libraries supposed to preserve and make accessible issues of titles affected? According to Lexis, download every damn PDF issue and host the ePeriodical's issues on your local server. How circa late-1990s web hosting is that! So get ready to have this conversation with your IT staff.

First we need a dummy email account. Something like "serial(dot)checkin@" will do. Then the library needs separate dark subdirectories on our web server for Environmental Law, CA Family Law Monthly, Commercial Damages Reporter, etc. After that, under each title's web page, we need "<ul><li></li><li></li>[and on and on until]</ul>."

You need to give our serials check-in staff permission to access the server so we can upload PDFs and insert identifier text with embedded links within each "<li></li>" segment. Or your department's staff needs to do this promptly so we can provide access each time an issue has been downloaded and emailed to your department.

For each subdirectory's web page the library also will need an RSS feed so we have a way to subscribe those members of our user population who want to know when an issue has been received and processed. Hopefully no one makes mistakes to the web page otherwise false update messages will be generated.

Yes, each ePeriodical title really must have its our subdirectory.The library needs a unique URL to include in our OPAC's bibliographic record by title to this dark archive when we update our bib records with an eShift note. Hey, I don't want to do this either but I'm not calling the technical processing shots, Lexis is. I'm just trying to deal with the consequences.

Yup, that's a "great" way for making "judicious, analytical and rational use of our institution's information resources." Of course, one also can ask the IT staff to start creating an in-house database or elending solution tied to a library's serials check-in and circulation modules but since no library yet knows how many and when their Lexis periodicals are being eShifted, it might be wise to just start with some basic HTML coded web pages for now.

ePeriodicals, no problem. Dumping this on institutional subscribers with no thought of how this migration is supposed to be efficiently executed by subscribers (in-house economics alert), just like the "free" eBook substitution for CDs, by Lexis, yes, problem.

"To obtain maximum value for our institution's fiscal resources." I understand that Harvard Law School Library has informed CRIV of this latest eFormat switcheroo executed by Lexis. It is unclear to me if the Executive Board knows what the hell is going on because the communication to CRIV was made right around the time E-Board members were traveling to and attending their Spring Meeting in Chicago. (Can you say "live and archived webcast of the proceedings if AALL really wants to be transparent in conducting our, not their, business?")

The meeting's agenda included approval of AALL's The Code of Best Practices for Licensing Electronic Resources. See Tab 14 of the Spring Meeting Board Book behind AALL's walled garden for the text. Assuming The Code was approved, apply it and AALL's Guide to Fair Business Practices (2012) to this latest eFormat substitution by Lexis.

Frankly I believe that exercise would just be a waste of time. By allowing vendors to be AALL members (full, associate, whatever), one of our association's so-called "Business Relationships" ethical principles, quoted above, is vacuous. Worse than that -- this ethical imperative only protects vendor members because their business plans trump library business plans according to the Fair Business Practices Guide.

It certainly is time to queue up this music video. [JH]

Reminder: Registration for AALL's eBook Webinar Due by March 21

Sue Polanka is presenting an AALL sponsored webinar on eBooks. Note well that registration is due by Thursday, March 21st.

E-books: Opportunities, Obstacles, and Trends
Date: Wednesday, March, 27, 2013
Time: 11 A.M. (Central Time)
Fee: AALL Members - $30; Non-AALL Members - $60;
Site Registration (one per physical location) $150
Register by March 21
 
E-books are a moving target, presenting many opportunities – and obstacles. Wherever you are in the e-books evolution, do you know how to move forward? Are there best practices for the future? Please join e-books expert Sue Polanka, a 2011 Library Journal Mover and Shaker, award-winning e-books blogger, and columnist for a discussion on the growth, challenges, and trends of the e-book industry. Topics to be discussed include licensing and managing content across locations, business models and their impact on access and budgets, locally hosting versus proprietary platforms, and managing content in a mobile environment. Get a jump start (and a leap ahead) into the ever-changing world of e-books.
 
Program participants will:
 
• Explore different business models and degrees of accessibility
• Examine budgeting for collection building versus access-only materials
• Compare locally hosted content with content on proprietary platforms
• Determine criteria for evaluating e-book vendors
• Gain tips and ideas for moving forward with your own e-book offerings

[JH]

One, Use Google Reader? Two, Think the Company Cares? Three, Want to Sign Change.org's Keep Google Reader Running Petition?

1. I don't. 2. I have my doubts. 3. I did sign Change.org's Keep Google Reader Running Petition which has over 120,000 supporters.

Here's the text:

Dear Google:
 
A few years ago -- years, wow -- Google Reader was one of my go-to social networks. It was an accidental one. I was using it for its intended purpose -- aggregating and reading a lot of web content in one place -- but it turns out, a lot of other people were doing the same thing. A lot. Many of which shared interests and when you added the amazing (amazing!) share and comment features, Google Reader blossomed into a wonderful experience for many of us, core to our day-to-day consumption of content online.
 
Unfortunately, you decided to kill those "extra" functions. I'm not here to ask you to reverse that (you should, though). In doing so, Google Reader's day-to-day value declined, and I, like many, ended up using it less often. Instead of hitting the bookmarklet I have on my Chrome install three, four times a day, it's now a once a day (okay, once every other day more often, recently) experience.
 
But it's still a core part of my Internet use. And of the many, many others who are signed below.
 
Our confidence in Google's other products -- Gmail, YouTube, and yes, even Plus -- requires that we trust you in respecting how and why we use your other products. This isn't just about our data in Reader. This is about us using your product because we love it, because it makes our lives better, and because we trust you not to nuke it.
 
Oh.
 
So, please don't destroy that trust. You're a huge corporation, with a market cap which rivals the GDP of nations. You're able to dedicate 20% of your time to products which may never seen the light of day. You experiment in self-driving cars and really cool eyewear which we trust (trust!) you'll use in a manner respectful to our needs, interests, etc.
 
Show us you care.
 
Don't kill Google Reader.

Official Google Blog posts about killing off Google Reader: A second spring of cleaning and Powering Down Google Reader.

In addition to links provided in Mark's post:

For commentary, see also Rupert Goodwins' Killing Google Reader is like killing the bees: we'll all be worse off (The Guardian's Technology Blog) He observes that while Google Reader's user population may have been on the low side, many professionals in the content creation business relied on it for current awareness. Web journalist Laura Hazard Owen is one of them, Google Reader, please don’t go — I need you to do my job (paidContent).

For Google Reader alternations, see also Christina Warren's post on Mashable. Do note her words of caution:

Our only fear with recommending some of these services is the long-term viability of these platforms. ... After being burned by Google Reader, it's hard to trust that these other services will be around for the long haul.

[JH]

The Challenges of eBooks in Law Libraries (and one very interesting real world solution)

On Jan. 24, 2013, Ellyssa Kroski, Manager of Information Systems, New York Law Institute, and Bess Reynolds, Technical Services Manager, Debevoise & Plimpton LLP, presented "Going Digital – The Challenges of eBooks in Law Libraries" in a LLAGNY professional education and development program. They reviewed publishing industry, vendors and aggregators current offerings, licensing restrictions and pricing models (oops, AALL trouble maker alert -- too late for our professional association to censor an event that mentions pricing models a/k/a "pricing structures" this time). Ellyssa Kroski and Bess Reynolds also "tackled the current challenges and obstacles to be overcome by both private and academic law libraries interested in implementing an eBooks program" and "discussed what law libraries are doing to make eBooks available to their attorneys and patrons." Their presentation stacks can be viewed at On Firmer Ground. Highly recommended.

While not news to the NYC law library community, one very interesting development is that the New York Law Institute have made its collection of 56,000 eBooks available to NYLI members free of charge. Debevoise & Plimpton is the Institute's first eBook client to integrate the NYLI catalog module into the firm's OPAC. Any law library that uses EOS and is a NYLI member now can make the Institute's substantial collection of eBooks available to their library's users.

Also highly recommended. I don't know about you but one little Ohio county law library that uses EOS will be looking into the ways and means of becoming an institutional member of the New York Law Institute to access this collection -- and this despite many notable legal publishing houses being missing from the Institute's eBook collection publishers list because they either deny law libraries the ability to circulate eBooks or try to limit lending to non-integrated, not institutional-centric platforms. [JH]

Imitation is the Best Form of Flattery

Or perhaps it is indicative of something else.

The color palette is an important factor in marketing a corporate brand. Shades of red as the predominate color is one of the most commonly used unless the corporate entity is in the medical services industry because red = blood; green = money is better. Blue also is very common. Orange, less so. But orange is used by Thomson Reuters (e.g., TRI's shower drain logo) and Bloomberg Law. Is that the reason why Thomson Reuters recently rolled out a "Legal Solutions" design display that imitates Bloomberg Law's color scheme?

Perhaps, but it may not be the most important reason. Quoting Jason Wilson from this post:

TR pages are getting dangerously close to the same color scheme of Bloomberg Law, and it makes me wonder why they are trying so hard to compete with something that hasn’t seen widespread adoption?

Could it be because BLaw is recognized as a competitive threat by the folks in the Land of 10,000 Invoices despite BLaw's currently low BigLaw firm-wide adoption rate in the No Sacred Cows Era of commoditized online core content and search? For screen shot comparisons (and a hat tip for Jason's quote), see Greg Lambert's post Why Is Thomson Reuters' Legal Solutions Mimicking Bloomberg Law's Design?? on 3 Geeks (also orange chromed)

Frankly, I think content delivery comparisons are more significant in determining if imitation is the best form of flattery. Jason Wilson's above-linked post, Current Awareness Trend Continues (or ends): WestlawNext’s “Practitioner Insights” & Alerts Center, makes for much more interesting reading than just colors used for corporate branding because of the post's comparison of the Thomson Reuters-Wolters Kluwer collaboration known as "Practitioner Insights" via WLN with BLaw-BNA's speciality-centric resource centers.

By way of acquisitions and content collaborations because in-house editorial staff just isn't qualified, WEXIS is mimicking the current awareness services business model established decades ago by BNA and CCH to retain as much of their practitioner market share as possible. One can only wonder if one day we will be hearing that Thomson Reuters has acquired Wolters Kluwer's US Legal and Regulatory operating unit. Talk about imitation being the best form of flattery... . [JH]

OMG-ing About Content No Longer Being King

An interesting coincidence is occurring tomorrow. On the very same day, in very different locations, the nation’s two leading legal publishers are both staging day-long summit meetings, to which they have invited a variety of legal bloggers, journalists, industry analysts and "influencers". -- Bob Ambrogi in his LawSites post published the day before the January 16, 2013 events.

Indeed, very interesting. Bob does an excellent job reporting about the Thomson Reuters event at Thomson Reuters Unveils New Tools for Litigators, Corporate Counsel and Small Firms. LTN's technology editor, Sean Doherty, does the same for the LexisNexis event at LexisNexis Overture for LegalTech New York. Neither account was "influenced" as questioned in Kevin O'Keefe's Theatrical of the Absurd post about both events at Who's Influencing Who. (Kevin, if you ever do get invited to one of these events someday and decide to attend, note well they can be an "uninfluenced" grind unless you consider being "influenced" to make the go-to decision because you are desperately seeking a real hot pastrami sandwich or want to visit Diamond Jim's the night before or after the day-long event.)

One statement at the Thomson Reuters meeting struck a cord (update oops -- I meant to write nerve) with some. Quoting from Bob's post:

"We have decided that our long-term vision is not information, it is software tools, solutions, ways to enable attorneys to practice in a more cogent way," Mike Suchsland, president of Thomson Reuters Legal

Jean O'Grady found that to be jaw-dropping. See Thomson Reuters Legal Announces New Strategic Direction: Content no Longer King, Shift to Client Centric Platform. Blogging with tongue-in-cheek, one may reasonably conclude that Jason Wilson was "OMG-ing" this "revelation" at Legal publishing is dead! Long live software solutions! See also Jason's follow-up post, The Cupcake: A new editorial paradigm for legal publishing? because he asked and Mike Suchsland responded to Jason's follow-up request for clarification.

The same long-term vision statement could have been made at the LexisNexis event too. It is nothing more than recognizing what have been WEXIS strategic objectives for a fairly long time now. As Outsell's David Curle said many years ago, our major vendors view themselves as being players in the professional legal services marketplace. They do not and have not for quite sometime self-identified as "legal publishers" in the 21st century "New Normal".

So why the OMG-ing shock? Core legal content and online search have been commodized. The WEXIS research platforms (i.e., WestlawNext and Lexis Advance) next current gen user interfaces and user experiences are so similar that a user population can be switched from one platform to another with relative ease -- meaning the Rx has turned from a brand name to a generic equivalent.

When "new" features are added to today's platforms, some in-house corporate prophets confuse that with "innovations." They are nothing more than tweaks. And some of those tweaks are nothing more than decades old wine being poured into new bottles. Hell, those software architects who have been around longer than their corporate prophets know that -- let's just call it in-house "reverse" software engineering.

About the only real difference between WEXIS is that one vendor has built its platform for the ground up in-house and the other's platform has not -- meaning one vendor's platform development cost is higher (and more costly to the subscriber base) than the other.

"Long live software solutions!" I feel Jason Wilson's professional pain. That's because he is not in the "professional legal services" business, Jones-McClure is a legal publisher that produces high editorial content in the form of annotated federal and some state code deskbooks. Hell, I buy Jones-McClure's federal code titles for our little county law library instead of TR Legal ones and would buy them even if they cost more than TR Legal's over-priced titles. Frankly, I just wish there were more annotated topical code deskbooks to buy from Jones-McClure including Ohio-specific titles because I would cancel all my WEXIS annotated (read regurgitated analytical content) Ohio code handbooks (with or without "free" eBook companions).

However whether WEXIS explicitly states or implicitly demonstrates by roll-outs that productivity and business-of-law solutions is their primary business plan focus, that is not "news." What once were just upsell opportunities for sales reps from the law library institutional buyer perspective simply is maturing at WEXIS to the point of consolidating their already-on-the-market many tools offerings with the addition of new tools. This will eventually lead to suites of solutions as being the primary focus of the professional legal services vendors once known many years ago as "legal publishers".

Here about the only current difference between WEXIS is one vendor's next current gen user interface for productivity solutions is a familiar screen display. Whether or not that is an important selling point for end users remains to be seen. Eventually WEXIS users will launch into their WEXIS suites from a "My WEXIS" integrated solutions interface which links to desktop and mobile vendor-specific licensed productivity, business-of-law, database search and eBooks products and services based on user population, practice-centric specific plans acquired by institutional buyers.

What about law library institution buyers? Both LexisNexis and Thomson Reuters are following the same game plan. Core legal content and online search are commodities. Their platforms are generic. Commoditized "Content+Search" is just one among many "solutions" and no longer is the most important one while some offered productivity solutions do embed "content+search" inside them.

The indoctrination model is and increasingly will be addicting law school students to productivity solutions some that to repeat and repeat again and again offer commoditized  "Content+Search" embedded within them. That's because legal skills training is "hot" in the legal academy now and WEXIS has (finally) realized that is the case.

The traditional "stuff" of law librarianship in this regard is not and has not been "king" because it is and has been nothing more than a pawn for years. That makes law librarians nothing more than pawns too. So where does all this leave those law librarians and their professional association who are in denial about this? In the dustbin of history unless law librarians and AALL decide they don't want to be watching the game from the bench.

End Note. I seriously doubt Jean O'Grady is a law librarian in denial. Her post, however, does speak to not being influenced by Thomson Reuters, Kevin. It's not like any of the Land of 10,000 Invoices or Garden of Eden Big Apple attendees have either the Shower Drain or Knowledge Bubble Burst corporate logos tattooed on their butts. Well, at least none of non-WEXIS employed ones. [JH]