Law Librarian Blog

Are Legal Information Consumers Too Information Savvy to Make Purchasing Decisions Based on Corporate Brands?

"[F]or a sense of how customers feel about the corporate brands of multinational legal publishers, one need only attend the annual meetings of the Canadian Association of Law Libraries to get a sense of the disconnect that exists in the market between the providers and consumers of legal information on issues relating to updating and pricing in particular. It is not a pretty picture." -- Gary P. Rodrigues

In a recent Slaw post, Gary Rodrigues writes:

In my experience, corporate surveys are frequently constructed to reach a foreordained conclusion, be it the personal view of the CEO or the professional business strategist, who all too frequently has little or [no] knowledge of the industry in which he or she is employed. The benefit of an independent survey, by someone without a vested interest in the outcome of the study, is that it should provide a fresh perspective on the issue being studied.

The post sets out Rodrigues' response to and further reflections on his answers to questions asked in a survey by a student working on his or her MA dissertation on corporate branding in the publishing industry.

Question 1: Would you agree or disagree that strategic exploitation of brands is a method of making a product or service stand out over the competition?

Question 2: In an age of seemingly infinite consumer choice, will branding play a more important or a less important role in selling content?

Question 3: Which is the first publishing brand that comes to your mind (aside from the company at which you are currently employed or have been employed, if they publish any content)?

Question 4: Do you regard branding as a critical factor in the publishing sector, at present and in the future?

Question 5: As published content changes format (from print to digital formats, games, apps, etc.), could publishers use or try to use strategic brand exploitation to make what they publish stand out among others (self-publications, other publishing houses)?

Question 6: “Cross-media publishing: a combination of content, distribution and technology”. Would you say this title is a peek into the future or a vain hope? It has been said that the strategic exploitation of a brand could make it possible. Would you agree or disagree? How?

"My answers," writes Rodriques, "were based on my personal experience in the legal publishing industry. They do not reflect any particular 'corporate' point of view and undoubtedly include some politically incorrect views that are not shared by many marketing professionals. So be it." For his answers and further reflections on the matter Publishing Becomes an Academic Discipline is highly recommended. [JH]

Calloway on Ten Improved Fastcase Tools

About his recent Oklahoma Bar Journal article, Ten Improved Fastcase Tools, Jim Calloway writes in his Law Practice Tips blog post, "I will confess that Ed Walters, the CEO of Fastcase, gave me a fair amount of assistance in the preparation of this article." Calloway's bar journal article is highly recommended for its summary of Fastcase's track record of continuing to enhance its online legal research service. Of course, you can also check out the enhancements at the Fastcase booth in Seattle next month. Highly recommended. [JH]

A More Customer-Friendly Future for Wolters Kluwer Law & Business?

During the nonsense that was speculation about Reed Elsevier selling off LexisNexis, the question most frequently asked by investment house analysts to me was "who is going to buy Wolters Kluwer's US legal publishing business"? Good question and one that was routinely posed in the context of BLaw's entrance into the legal vendor marketplace, perhaps because investment analysts who asked the question knew Bloomberg by being users of and paying for Bloomberg financial information services.

It has been obvious to informed buyers of legal resources that WK has neglected the US legal market for years. In addition to it customer-unfriendly policies and pricing practices, the very premature roll out of the IntelliConnect platform didn't help the situation. It was such a fiasco that some once loyal subscribers migrated to BNA. So ponder that speculative sell-off question for a moment or two. In the Bloomberg Law-BNA era of competition for BigLaw and BigGov markets, both Thomson Reuters and LexisNexis could benefit from acquiring CCH for its current awareness services. TR has some less massive than Matthew Bender, more narrow focused, albeit largely neglected speciality treatises it can bring back from the graveyard of past acquisitions so LexisNexis, more than Thomson Reuters, could benefit from acquiring the catalog of Apsen-branded treatises.

Instead, WK have entered into a data distribution agreement with TR for some current awareness content. That's a "win-win" for both companies. Revenue flows into WK Legal while Thomson Reuters doesn't have to hire editorial staff who actually know something about the law to compete in the legal news and developments market.

Meanwhile LexisNexis has acquired OUP legal titles and the publishing brands and businesses of Sheshunoff and A.S. Pratt from the Thompson Media Group to beef up its analytical content inventory for several reasons, one important one in my opinion being to improve its topical Lexis Practice Advisor series because without this new content, the series' secondary offerings look almost as sparse as IntelliConnect's embedded Apsen titles if viewed without CCH content. Relying solely on Matthew Bender titles for Lexis Practice Advisor just isn't going to be good enough to compete with BLaw's BNA titles and treatises licensed from other high quality publishers such as PLI.

From this perspective, I hope that the announcement of Robert Lemmond's appointment as the new CEO for Wolters Kluwer Law & Business is a "good thing" to increase competitiveness in the high-end marketplace for specialist legal resources by focusing on consumer needs. Jean O'Grady explains why she thinks Lemmond's appointment is good news for WK and law libraries in this Dewey B Strategic post. Highly recommended. [JH]

Price Pointer for WEXIS eBooks and pBooks: A note on S&H

So the list price for Lexis bundled eBook-pBooks looks like it is a couple of dollars more that buying just the eBook alone and for some titles one cannot acquire an unbundled pBook. Of late, it appears that Thomson Reuters Legal is pricing their eBooks at or around the same price of their pBook editions (except when law pBooks but not their eBook editions are discounted). No bundled-only yet. No big deal right?

Well, remember "shipping" is "free" for TR pBooks, meaning, of course, that the cost of shipping and handling is already rolled into TR's pBook and eBook pricing. On the other hand, Lexis charges shipping and handling costs and that add-on expense is not identified in its pBook-eBook bundled pricing. Based on recent invoices for one volume bundled deskbooks, Lexis S&H appears to have increased to the $24 range these days.

So who has rolled in more profit margin for their eBook-only sales? And whose pBook annual price inflation appears to be lower because it omits increased S&H charges? [JH]

Apple e-Book Trial Update

CNET News is reporting on publisher testimony at the Apple e-book trial.  David Shanks, of Penguin, and Carolyn Reidy of Simon & Schuster testified that the price matching clause in their contracts with Apple forced them to move all other retailers to the agency model.  They couldn’t afford the financial hit they would take given Apple’s 30% cut on sales.  Read more here.  Meanwhile paidContent is reporting that PricewaterhouseCoopers is saying the trade e-book market will surpass print in 2017.  Read about that here.  [MG]

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]

Apple e-Book Trial Begins

The Apple e-book trial started on Monday with each side presenting its opening statements.  The Government laid out its case through a 91 screen PowerPoint.  It’s available as a PDF from the Department of Justice web site, here.  The Government has produced emails and other documents entered into evidence that seem to show a context where the publishers regularly talk to each other at the executive level about market conditions other matters independently of Apple. This kind of information appeared in earlier filings. 

The Government’s case attempts to show Apple as taking advantage of the publishers’ unhappiness with Amazon and negotiating with them individually and somewhat collectively to establish the agency model and the MFN clause that protected Apple from price fluctuations.  Other emails imply each individual publisher would tailor its actions with assurances by Apple that competitors were in line with each other’s terms.

paidContent contains an article that gives some details about Apple’s arguments.  Apple states that the Government never presented direct evidence of a conspiracy and that Apple was not interested in starting a business that would lose money.  Moreover, Apple and the publishers were not aligned.  The negotiations were far from cozy.  Apple attorney Orin Snyder’s description suggests the negotiations were highly contentious.

Fortune’s take on the proceedings is that the DOJ is arguing the facts while Apple is arguing the law.  Apple argues that the Most-Favored Nation clause in the contracts is widely used and has never been held illegal; antitrust case law the Government uses to support its claim is inapposite; and that no case in the history of antitrust laws has imposed liability of a new entrant facing a dominant player, especially when that entry seems to have pro-competitive effects, among other arguments.  Fortune suggests that Apple is building a record for appeal with these arguments.  That’s understandable with this comment by Judge Cote earlier in the pre-trial proceedings:

"I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that."

Apple, of course, did not care for that view.  Judge Cote defended her statement by telling Snyder "The deck is not stacked against Apple unless the evidence is stacked against Apple."  We’ll see how the trial proceeds. 

Ars Technica has an article about the opening day as well.  The comments attached to the text are relatively heated and are worth reading if one wants to see how much passion this case can generate.  [MG]

A Guide for the Perplexed: Big Six Publishers and Library eBook Licensing

Check out Rob Maier's DCWG Big Six Matrix for Ebook License Comparisons on ALA's E-content blog and his table (PDF file) "which shows what is available to libraries from each of the Big Six, under what terms, at what price, and from which library vendor(s). A new focus is on whether the publisher and vendor offers their ebooks to library consortia as well as to individual libraries." Recommended. [JH]

AALL's Price Index Ventures into Electronic Format Pricing

And that's not a bad thing in my opinion at this stage in the hoped-for evolution of the Price Index's expanded coverage to include 21st century publishing mediums. The Electronic Format Index in the 2012 AALL Price Index for Legal Publications (member login required) reports on pricing based on electronic-only subcriptions. "When multiple pricing options were provided, the lowest cost was used for each title." For e-pricing information, the Committee's instructions to vendors were:

"Unbundled price" refers to the cost to access one title only and excludes prices that combine the title with other titles or content. "Single user price" refers to the cost for access by one simultaneous user only and excludes prices that allow simultaneous access by more than one user. "Institutional Subscription List Price" refers to costs paid by entities, such as law schools, law firms, and public libraries that generally meet information needs of more than one user over time.

Year	Titles	Total Price	Average Price	Percentage Change	Price Index
2010	94	$105,394.51	$1,121.22	--	100.00
2011	101	$111,468.41	$1,103.65	-1.57%	98.43
2012	113	$120,753.50	$1,068.62	-3.17%	95.31

What conclusions can be reached? Unfortunately, not all that many, if any, because the small sample size is heavily weighted towards commercial periodicals. The electronic format pricing category includings 30 looseleaf services, 18 newsletters, 3 academic periodicals and 62 commercial periodicals. Each product line needs to be broken out into its own separate category just like the Price Index's print pricing index does and needs to sample substantially more titles in each product line to provide sufficient information to reach some baseline conclusions.

Let's add to the market basket of electronic titles... eBook treatises and handbooks that are updated or republished at least once a year for unbunded and single or institutional user subscription list price. Remember, "approximately 450" single and multi-volume pocket part or looseleaf updated Thomson Reuters' titles are candidates for conversion to serial print pamphlets editions according to TR's response to CRIV. Why? It's a manufacturing "solution" to convert the titles into marketable eBooks.

Then there is Lexis' "free eBook" substitution for CD companions to print books. Affected titles, a work in progress, are now only being sold as either bundled pBook with eBook or eBook only. No longer free, the bundled price costs a few dollars more at buy-new prices. See for example, Anderson's 2013-1 Ohio Criminal Law Handbook on LN's eCommerce site. For background, see this LLB post about an earlier edition of the same title and then track down Lexis' two responses about this issue published by CRIV.

While we are at it, there is no reason why institutional list prices for reporters, statutory codes, citators, and legal encyclopedias cannot be added as separate product lines to an index for electronic pricing.

Taking the next logical step... So the 2012 AALL Price Index has ventured into electronic format pricing. However, it remains primarily focused on print. Electronic formats are becoming, if not already are, the primary formats of the print price indexed product lines acquired by institutional buyers. For some background, see Has Any Law Library's Print Collection Budget Increased 20 Percent Since 2010?

Under the leadership of the Price Index Editor, Carol Avery Nicholson, the 2012 Price Index is a substantial improvement over past indexes. I'm hopeful that forthcoming editions will finally bring the AALL Price Index into the 21st century by reporting more specifically on e-format pricing in addition to traditional p-format pricing. [JH]

Some Developments in the Apple e-Book Case

There were two developments in the Apple e-book case recently.  The first is a settlement between Penguin and the states with Penguin paying $75 million.  This represents the largest amount paid by one of the five publishers in the litigation.  Penguin has an incentive to get this off its plate as it pursuing a merger with Random House.  All publishers have now settled with the Justice Department and the states leaving Apple as the only defendant contesting the antitrust allegations.  Details are in paidContent.

The second development is the fight over redacting information generated by Amazon that Apple wants to introduce at trial in its defense.  Apple claims that some of it will embarrass Amazon, such as showing the company’s own view of the Kindle as being inferior to the iPad.  Other parts of the documents will show that Amazon attempted to engage in the same conduct for which Apple is now on trial.  There are emails from Amazon executives, for example, that indicate that Amazon was independently considering the agency model with the publishers.  Here is a quote from a different story in paidContent:

”I guess what we never figured in was the idea that five publishers would band together and insist on receiving worse terms,” the email said. “And then Amzn would be ‘cornered’ into accepting them.”

“Hysterical, isn’t it?” the Amazon executive replied. “Jedi Mind Tricks here in Seattle.”

Simply working off this one snippet does not necessarily lead to a conclusion that Amazon’s conduct favors Apple’s defense, at least taken out of context as it is presented.  I’m not sure characterizing what Amazon was thinking compares to what Apple allegedly did.  We’ll see whether the Justice Department proves its case.  Apple and the publishers have been trying to make Amazon the issue at trial as a way of justifying their own pricing actions.  Judge Cote has decided to keep the information redacted for the time being.  The trial is slated to begin on June 3^rd.  [MG]  

ARL Describes Preferred Licensing Terms for Academic e-Books

The Association of Research Libraries (ARL) has published an article called E-Book Licensing and Research Libraries—Negotiating Principles and Price in an Emerging Market in Research Library Issues Number 280 (September 2012).  It describes the negotiated terms between the Association’s agent, LYRASIS and the content available through the University Press Content Consortium (UPCC) Book Collections on Project MUSE.  The article describes some of the key terms in the negotiated agreements.  They include:

• No DRM
• Perpetual use, archiving, and authorized uses under the copyright laws
• ADA compliance in software and hardware requirements
• Device neutrality
• The ability to download and share content within the academic community
• Use of the material for course reserve, whether in paper or electronic form
• Interlibrary loan of the material
• The ability to analyze the material via word search or other electronic indexing

 All in all, the terms as described in detail seem to favor academics and academic libraries.  I guess university presses are not nearly as paranoid about their content as commercial publishers seem to be.  [MG]

Has Any Law Library's Print Collection Budget Increased 20 Percent Since 2010?

According to the 2012 AALL Price Index for Legal Publications (member login required)(Carol Avery Nicholson, Price Index Editor), the subscription list price inflation for serials (academic and commercial periodicals, court reporters, citators, codes, digests, legal encyclopedias, newsletters, looseleaf services, and supplemented legal treatises) for 888 sampled titles using 2010 as the base year increased 20.29% by 2012 and 21.64% if periodicals are excluded.

Subscription list price is not buy-new pricing. Quoting from the 2012 Price Index's instructions to vendors:

The price index reflects continuation costs and should be quoted at full retail, non-discounted rates. Please do not quote prices pertaining to new subscribers. "Subscription List Price" includes the cost of all supplementation, new or replacement volumes, recompiled sets, and all other continuation costs, for the stated 12-month period.

(Emphasis added).

Subscription list price inflation since 2010. Federal and regional reporters increased a whopping 71.42% (13 titles). State and federal codes increased 22.93% (61 titles). For traditional research and reference tools, state, regional and federal digests increased 22.93% (58 titles), legal encyclopedias (9 federal and state titles) increased 22.42% and Shepard's citators (30 federal, regional, state and subject specific) only increased 4.59%

For traditional secondary analytical sources, supplemented treatises increased 13.99% (257 titles). Followed by looseleaf services (a 12.30% increase for 61 titles).

Got $$$? While percent rate increases are helpful, average pricing dollar amounts can be more telling for specific product lines. 

Primary Sources
Reporters
	2010	2012
Average Price	$4,192.07	$7,186.19
Codes
	2010	2012
Average Price	$1,600.65	$1,967.72
Traditional Research & Reference Tools
Digests
	2010	2012
Average Price	$2,876.20	$3,845.59
Citators
	2010	2012
Average Price	$2,145.87	$2,244.33
Legal Encyclopedias
	2010	2012
Average Price	$4,315.94	5,283.83
Traditional Secondary Analytical Sources
Looseleaf Services
	2010	2012
Average Price	$1,818.23	$2,041.88
Supplemented Treatises
	2010	2012
Average Price	$1,179.81	$1,344,86

The Substitution Effect? If we had retrospective data going further back in time to a pre-2010 base year for the current and much improved market basket of titles, I believe an empirical analysis would conclude that reported price inflation represents the consequences of the Shed West era of print cancellation, most notably in reporters, codes, digests and legal encyclopedias published by WEXIS. Intuitively one can argue that cancellations of print subscriptions due to substitution by online access is producing substantially higher print prices in some market and product line segments.

Some basis for this intuition can be found in AALL's Biennial Salary Survey and Organizational Characteristics reports. According to the 2011 survey findings (member login required),  total estimated information materials budgets (of reporting academic, private and government law libraries combined) declined 21.7% in 2011 compared to 2009 data. The percentage of the total information budgets for electronic information in all market sectors continued its upward trend, meaning of course, that the percentage spent for print resources also is declining.

Without intending to criticize the work of this year's Price Index Committee or its editor, if the data for primary sources and traditional research and reference tools (my, not the Committee's, characterization) had identified average list pricing for each product type in two subcategories -- federal only and combined state -- in addition to the summary data reported above, my hunch is average state list pricing would be much higher. For example, the buy-new list price for Ohio Jurisprudence, 3d  is $13,955. Since I killed both of our copies of that title years ago, pick your own percent-based continuation cost estimate. $10K if 75%? Certainly not $5K (37%) as reported for average pricing of the nine federal and state legal encyclopedia titles sampled. The same sort of differential may be the case for state-level reporters, codes, digests and citators.

The Shed West era for state print resources is reducing the subscriber base at state levels which in turn is increasing the buy-new pricing and the percentage based cost for continuations. Law libraries are already seeing such incremental increases in state practitioner "deskbook" titles -- annotated statutory code and reg regurgitations and analyical sources -- acquired for their collections. [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]

India Publisher Threatens $1B Lawsuit Against Colorado Librarian

Here we go again.  This time it’s a publisher out of India that is threatening to sue Jeffrey Beall, a librarian at the University of Colorado over characterizations he’s made on his Scholarly Open Access Blog.  That blog identifies, in Beall’s opinion, publishers that take advantage of academics needing a publisher for their papers.  Beall recently received a letter from representatives of OMICS Publishing Group threatening a lawsuit seeking $1 billion (not a mistake) in damages and possibly up to 3 years of prison time in India for violations of Section 66A of India’s Information Technology Act.  The Act makes it a crime by its terms to use a computer to publish any information that is grossly offensive or has menacing character.

An article in the Chronicle of Higher Education (this one is not behind a pay wall) offers some details of the letter:

The rambling, six-page letter argues that Mr. Beall's blog is "ridiculous, baseless, impertinent," and "smacks of literal unprofessionalism and arrogance." The letter also accuses Mr. Beall of racial discrimination and attempting to "strangle the culture of open access publications."

"All the allegation that you have mentioned in your blog are nothing more than fantastic figment of your imagination by you and the purpose of writing this blog seems to be a deliberate attempt to defame our client," the letter reads. "Our client perceive the blog as mindless rattle of a incoherent person and please be assured that our client has taken a very serious note of the language, tone, and tenure adopted by you as well as the criminal acts of putting the same on the Internet."

I did a search in WorldCat on OMICS as a publisher.  There were 334 records in the database.  305 of these were Internet links, 10 were serials, and only 2 were books.  The Edwin Mellen Press in contrast was better represented in worldwide library holdings.  Readers may remember that the EMP was one of the first publishers to take legal offense at how its business model was characterized by a librarian.  See LLB posts here, here, here, and here for coverage. 

The CHE article also posits potential results of any lawsuit based on whether a suit is brought in India or the United States.  A favorable outcome for Beall is likely in U.S. courts and uncertain in India’s courts.  There are issues as to whether a judgment in India against Beall could be enforced in the United States.  The numerous comments to the article speculate on that.

I have to believe these kinds of threats will do little to change any impression of OMICS and more likely draw attention to their publications and practices.  I can’t comment on whether or not they are respectable publisher.  As with the Mellen Press, I had never heard of the publisher until it threatened suit.  I know who OMNICS is now.  I’ll be following this one as the situation develops.  [MG]

DOJ Files New Details In Apple e-Book Case

The Justice Department filed multiple documents on Tuesday in the Apple e-book case.  The most interesting of these are the Plaintiffs’ Proposed Findings of Fact and Conclusions of Law and Plaintiffs' Pretrial Memorandum of Law.  The documents are dated April 26, 2013 on the Department’s web site but were made public yesterday.  The lengthy documents describe the back and forth between Apple and the publishers where Apple acted as a conduit for information between each publisher in addition to the direct contacts the publishers made with each other over how to manage e-book pricing in the market.  It’s pretty substantial stuff.  Here’s an example from the Proposed Finding of Facts:

54. Publisher Defendants communicated to one another their plans to window specific titles, which they believed would pressure Amazon to raise its retail e-book prices. For example, in an August 14, 2009 e-mail to Hachette Livre CEO Arnaud Nourry, Hachette Book Group CEO David Young writes: “Completely confidentially, [Simon & Schuster CEO] Carolyn [Reidy] has told me that they are delaying the new Stephen King, with his full support, but will not be announcing this until after Labor Day . . . .” PX-0274.

55. In the same e-mail, Mr. Young criticized Random House CEO Markus Dohle as an “appeaser” for his refusal to window Dan Brown’s The Lost Symbol: “You should know that I have been told by a reliable source that the [internal Random House] publishers voted for the Dan Brown to be delayed but they were over-ruled by Markus who is apparently ‘obsessed’ by his desire to meet Jeff Bezos: why this should matter to him and what he thinks he would gain from such a meeting is beyond me. He appears to be an appeaser which is not good with them being the market leader. . . .” Id. Mr. Young’s “reliable source” was a senior Random House executive who subsequently joined Macmillan in the fall of 2009.

56. Mr. Young concluded this e-mail containing confidential information about Hachette’s competitors’ business plans by advising Mr. Nourry that he should permanently destroy the message: “I think it would be prudent for you to double delete this from your email files when you return to your office.” Id.

The document would be a good basis for a book or a movie.  The publishers were pretty open with each other about their antipathy to Amazon and its pricing practices.  They tried various strategies such as windowing titles to get Amazon to raise its prices, but mostly failed.  Apple came along and expressed a desire to not compete on price (Proposed Finding of Facts par. 107) with Apple pushing the agency model as a way to accomplish everyone’s goals.  It’s not merely a quote from Steve Jobs’ biography at issue here. 

These are interesting documents chock full of direct quotes from emails and depositions.  I’m sure Apple’s attorneys are smart enough to create a context that challenges the inferences from the filings.  One lesson stands out, and it’s an old one:  if one’s conduct is going to be legally questioned, one should try and minimize the documentation for that conduct.  Redundant back-up systems for email and other corporate documents sometimes may be our friend and sometimes be our enemy.  There’s a lot of electronic evidence in this case.  I hope we might see more of the documents at issue than merely those quoted by the Justice Department.  [MG]

Should Legal Vendors Provide More Information on How They Protect End User Privacy?

Jean O'Grady reports that Bloomberg reporters have had no access to BLaw usage data. This was confirmed on the heels of the news about long-term monitoring of subscribers Bloomberg Financial Services access. She added:

Law firm research queries are a treasure trove of leads... pretty innocuous standing alone - but probably an interesting "data map"  of law firm client support activity if  viewed in the aggregate. In 30 years I have never ever heard of a breach  or misuse of this kind of data at LexisNexis Westlaw, Wolters Kluwer or Bloomberg but I think it is time that these companies provide more information to customers about how they protect law firms and their clients from the threats of a "big data" hack.

We know that usage data is monitored internally by WEXIS and presumably BLaw. In some cases, it has to be for out-of-plan charges. However, each time one logs into a online search service, usage data is being recorded. We have even heard that Classic Westlaw use data was used to develop West Search for WLN. And what about our vendors' online news, analysis, commentary and research practice-centric services, workflow productivity and matter applications?

I think O'Grady has a point about our vendors providing us with information about how our user populations privacy is protected. I doubt Daniel L. Doctoroff's, CEO and President, Bloomberg L.P., Safeguarding Customer Data statement and/or Holding Ourselves Accountable by Matthew Winkler, editor-in-chief of Bloomberg News, is sufficient. Both statements were reactions to the public disclosures about Bloomberg reporters past practices.

For much more, see O'Grady's Dewey B Strategic post, Bloomberg Law Not Impacted By Bloomberg Terminal Privacy Breach. But Can We Ever Stop Worrying About a "Big Data" Hack of a Legal Research Provider? [JH]

Got to "Spend" Money to Make Money: Extending Law Student WEXIS User Accounts Over the Summer and Beyond

Graduates who extend their password will receive access to WestlawNext and Westlaw Classic through November 2013 instead of just through July. The exact number of monthly access hours is not available, but is at least 40 hours per month. -- Quoting from Extended Westlaw Access for May 2013 Grads published by USF's Dorraine Zief Law Library.

"I'm wonder[ing] who will be the first grad to put on his or her resume that 'if you hire me, I'll have 40 hours of free Westlaw searching I can bring with me'??" wrote 3 Geekster Greg Lambert at Even Westlaw Knows It's a Tough Market – Law Graduates Can Keep Access Through November. He added "Please, don't be that person!!"

Hell, since the USF Law Library announcement doesn't say being an unemployed Class of 2013 grad is a requirement, I'm wondering if the extension does not also benefit Thomson Reuters by exposing Class of 2013 grad employers to its research platforms, etc. Who knows. However, it is unclear to me that Class of 2013 grads really can use their school's Westlaw account in all employment settings. Usually that is not the case. See Cleveland-Marshall's announcement at Bloomberg Law, Lexis, & Westlaw: Student Summer 2013 Access.

BLaw does allow all law school students to use their school user accounts for performing research during summer employment with no restrictions on for-profit work-related use. I'm thinking WEXIS should follow that example. It's a good idea for marketing purposes. Got to "spend" money to make money in today's market for online legal search. [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]

Bloomberg News Reporters Have Been Snooping on Subscribers' Use of Bloomberg Financial Services for Years

With the "Terminal" found in most every banking and trading company as well as industry regulators, shock waves rippled through the financial services industry on May 10th when the New York Post's Mark DeCambre broke the story that Bloomberg's financial journalists were extracting subscribers' private usage data at Goldman Sachs employees concerned Bloomberg news reporters are using terminals to snoop. The New York Times' Amy Chozick and Ben Protess reported on how widespread the monitoring activity was within the industry by Bloomberg News reporters at Privacy Breach on Bloomberg’s Data Terminals. 

Reportedly Bloomberg News staff could not see trading activities but the available extracted information about when and how the Company's terminals were used by subscribers provided enough clues to aid its financial journalists for news reports. See also Zachary M. Seward's What Bloomberg employees can see when they snoop on customers.

Bloomberg confirmed that several hundred reporters have been monitoring subscriber usage of various Bloomberg financial services functions for years. The Company also announced that the system functions its reporters had been using were disabled.

First question: Et tu BLaw? [JH]

Half-assed B2B Electronic Transactions: Just make up a PIN for eSigning a Thomson Reuters transaction

As reported earlier, based on the initial response CRIV received from Thomson Reuters about requiring the last four digits of a SSN number to execute an electronic B2B transaction, CRIV decided to make a follow-up request "to see if a more concrete explanation on this topic is available." And here is Thomson Reuters "solution":

Should individuals placing orders prefer not to enter the last four digits of their Social Security number, they are encouraged to create a unique, four-digit personal identification number (PIN) to serve as part of their electronic signature. This PIN will serve as a method of verification for the individual placing an order. Customers can make this change when placing an order.

Ah, OK. Let's just be clear that WestMart is targeting the individual consumer for eCommerce transactions, not institutional buyers, by following Amazon's example. LexisNexis hasn't gone quite as far yet but there is no doubt in my mind that the forthcoming closure and mass layoff of sales and customer support employees in Albany indicates that LN will be more fully institutionalizing the Amazon eCommerce model for "efficiency" (read reducing labor costs) purposes.

If WEXIS wants to conduct B2B electronic commerce, both vendors also should mimic the Amazon model for B2B eTransactions. WEXIS should follow what Amazon does by way of establishing an institutional buyer's credit line for eTransactions. Of course, WEXIS also should follow Amazon's very easy online method for returning stuff ordered with credits made to the institutional buyer's credit line account.

If our major vendors are going to follow Amazon's example, don't just do it half-assed for B2B eCommerce. Is that too much to ask? [JH]