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Legally Speaking — Antitrust

by | Sep 30, 2022 | 0 comments

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Column Editor:  Ashley Krenelka Chase  (Assistant Professor of Law, Stetson University College of Law) 

Against the Grain v34#4

Editor’s Note:  ATG is pleased to welcome a new column editor for “Legally Speaking!”  Ashley Krenelka Chase is currently an Assistant Professor of Law at Stetson University College of Law, where she teaches legal research and writing.  Previously, Ashley was the associate director of the Dolly & Homer Hand Law Library and the Coordinator of Legal Practice Technology at Stetson, where she worked with faculty to identify technology competencies for incoming and outgoing students and to ensure student success during law school and in the practice of law.  Ashley’s scholarship focuses on the intersection of research, technology, and access to justice for incarcerated litigants.  She has attended and presented at the Charleston Conference many times, and is a long-time reader of ATG.  She lives with her family in Gulfport, Florida.  Welcome, Ashley! — KS

Antitrust is not something we, as librarians, are particularly accustomed to thinking about.  When it was first passed by Congress, antitrust laws were drafted “to preserve free and unfettered competition.”  Today, antitrust laws continue to have the same goal:  “to protect the process of competition for the benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.”1  Typically when we hear about antitrust laws in the news or online, it is with regard to anti-competitive conduct like monopolization.  Monopolies come to exist when a single market force (like Meta) tries to take over an entire industry and erase all competition.  Antitrust is arguably one of the most interesting areas of the law (or perhaps that’s just me), but cases rarely move forward; there’s too much money in maintaining the status quo.  The United States does like to allow mega corporations to maintain their chokehold on individual industries, and libraries are not immune.  Instead, we see companies merging with very little outcry from either the public or regulatory agencies.  In libraries, these acquisitions often happen without any forewarning.  When I worked as a librarian, I received the notification that Innovative Interfaces was acquired by ProQuest.  While I was not surprised by that acquisition, I was surprised when ProQuest was quickly acquired by Clarivate, leaving my (and many other librarians’) head spinning.  RELX, the corporate giant that owns the Lexis legal research platform, routinely purchases small legal research or analytics start-ups that threaten the market (LexMachina and Ravel come immediately to mind). 

Recently, however, a small research platform has successfully moved forward with an antitrust claim that seems to have momentum, and it all started as a copyright case.  In 2020, Thomson Reuters (parent company of Westlaw) filed a suit against ROSS Intelligence for copyright infringement (Thomson Reuters Enter. Ctr. GmbH v. ROSS Intelligence, Inc., 20-cv-00613).  Thomson Reuters alleged that ROSS obtained copyrighted legal content from two types of parties, a business with whom Westlaw contracted and current law students who accessed their academic Westlaw research accounts while in the employ of ROSS Intelligence;  Thomson Reuters alleged that ROSS Intelligence used copyrighted content acquired from those two types of parties to build their own legal research product.  Thomson Reuters made additional claims about unlawful interference with contracts and business dealings (similar to those claims made in the OCLC/Clarivate suit) and those claims are moving forward, as well, but we will save all discussion of business torts for a future column.

As is often the case in this type of litigation, ROSS filed a motion to dismiss Thomson Reuters’ copyright claims.  In addition to the motion to dismiss, ROSS countersued using claims based on the Sherman Anti-Trust Act, alleging that Thomson Reuters unlawfully tied two unrelated products together and required customers to license both.  This case is one to watch because, while ROSS failed to have Thomson Reuters’s copyright claims against them dismissed, they have thus far been successful in arguing that Westlaw’s legal search tool is unlawfully tied to their public law database.  ROSS argues that the coupling of the research function and the legal content it searches has led to Westlaw’s dominance in the legal research marketplace, which amounts to anticompetitive conduct.  Antitrust is not usually an area where we see a lot of movement, and ROSS being allowed to move forward with these claims may have noteworthy implications for libraries.

Tying is an interesting concept in antitrust and it is particularly interesting when it is considered alongside the way our research platforms operate.  Under a tying arrangement, consumers looking to buy a product may only do so if they purchase a different product they don’t want from the same seller.  The tying of the two products, in and of itself, is not enough for a valid claim; as with any consumer-related claim, the tying has to have a substantial effect on trade or commerce.  Because of the requirement that trade or commerce be effected, these cases typically only move forward against large sellers with substantial power in the market, and only when cases are brought by parties who have a large market share, themselves.  As an example, if you want to buy a book from me, but I won’t allow you to buy the book from me unless you also by a DVD from me, that is likely not unlawful tying.  I am, after all, a lowly individual trying to make a buck and, on my own, have no ability to significantly impact the book and/or DVD market.  But if a vendor like EBSCO tells the New York Public Library it can buy access to a religion database that the library requests, but only if they buy a science database that they don’t want and has no value to your library, that is likely tying that would be prohibited by the Sherman Anti-Trust Act.2

Here, the tying concept is even more interesting because it’s not two completely distinct products being tied together, at least not in the eyes of an average user who is accustomed to researching online.  In Thomson Reuters v. ROSS Intelligence the tying being alleged is, essentially, between a search bar and the Internet;  imagine if you had to pay for Google and alleging that Google is unlawfully tying use of its search bar to the rest of the Internet!  Seems crazy, right?  

Based on the filings in this case, though, it doesn’t seem so crazy.  Thomson Reuters attempted to argue that their legal research tool hasn’t ever been sold separately from the database of public law it searches;  they argued that the products, therefore, are the same.  The trick, however, is that for decades the database of law upon which the legal research tool relies was published in print!  Without an electronic search tool!  And other companies have successfully sold databases of law products without a related search tool. 

ROSS Intelligence also alleged that Thomson Reuters’ licensing agreements with customers is restrictive because the research tool and the collection can’t be unbundled.  That, they said, also amounts to tying, and the judge agreed that claim could move forward, as well. 

But lest we assume ROSS was going to be able to move forward with all their counterclaims, it’s important to note that ROSS brought an additional claim, alleging that the initial copyright infringement suit brought by Thomson Reuters against ROSS was “shame litigation” brought exclusively for anti-competitive purposes.  As a librarian (who regularly uses Westlaw), it sure looked like shame litigation to me, but the shame litigation claim was quickly dismissed, because ROSS couldn’t show Thomson Reuters had improper intent to have filed the copyright suit in the first place.  

This case, filed in the United States District Court for the District of Delaware, is one to watch for librarians and vendors.  When you look at the landscape of the databases libraries provide for our patrons, many of them are providing a research tool that interacts with a database of information that was previously available only in print.  Some vendors do offer the option of uncoupling the information from the search mechanism.  In those situations, you often need to purchase separate MARC records and direct patrons to a designated workstation to access the information, but if budgets are tight it may be worth asking vendors if the database of information can be purchased separately from the search tool to make large databases significantly more affordable.

These conversations are also important to increase transparency between libraries and vendors.  As resources become significantly more expensive and contracts between parties become more complicated, transparency in not only pricing but functionality can improve relationships between parties in any negotiation, but will certainly benefit the library/vendor relationship.  And vendors and publishers shouldn’t shy away from these conversations;  research providers who are open to sharing information, unbundling resources, and making things affordable for libraries and their patrons are often more appealing partners for libraries because they are open to conversations about what will best meet the needs of the library and its users. 

None of this is to say that separating research functionality from collections is the right move.  Depending on your library, its collection, staffing, and patron-base, this may sound like the most ridiculous approach to collections possible.  But this litigation between Thomson Reuters and ROSS Intelligence opens the very real possibility that courts may consider “searches” and “results” to stem from two separate products that can’t be required to be sold together by major vendors.  If that’s the case, everyone working in libraries right now should start considering how much they’re willing to pay to license not only content, but the search functionality, and negotiate accordingly.  

Endnotes

1. https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws

2. This is an example.  I have no reason to believe Ebsco operates this way, nor do I have any reason to believe the NYPL has ever been forced to buy additional products based on the questionable business practices of any of their vendors.

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