I think Emerson is apposite here: "When you strike at a king, you must kill him.”
Attacking an entrenched monopoly or cartel is pretty hard to bootstrap. When you are small you can make progress as you are invisible to the big guys. Once you start to ve visible they will reach out and crush you long before you can pose a threat.
Legal efforts like NoLo have survived because they don't threaten the kinds, but merely replace small lawyers.
The only paths I've seen work (and they are very hard) against the cartels are 1 - to slowly build a movement, so by the time it is visible it is actually already too big to crush. This requires recruiting all sorts of allies, like (in this case) some significant law firms, which means figuring out for them what's in it for them. Or 2 - get a bit of traction and then raise so much money that you can in fact stand up to the big guys. But you need a business model that pays the investors back. Also not easy.
As a former lawyer, one thing that really gets me worked up is how absurdly expensive it is to hire a lawyer (and for litigation in particular).
A company should never need to shut down because it can’t afford to defend itself. If this happens, it means our governing framework has seriously failed somewhere, and we should focus on fixing it.
Completely agree and the most preposterous part is that across the Western world elected officials are by far comprised of former legal professionals and those with law degrees. Feigning ignorance is not an option.
I have zero familiarity with practice in the USA, so someone else is probably better placed to comment.
That being said, I suspect the absence of "loser-pays-costs" does make things worse in the USA. This mitigates most of the potential downside to litigation, capping your exposure to a known (controllable) quantity.
But even then, it's still a huge problem in Commonwealth countries. I'm more interested to know if it's less of an issue in civil law jurisdictions like Germany.
The US is something like 65 separate legal jurisdictions - many of them do have "loser-pays-costs" for certain types of litigation, however this suit is likely in a federal court where no such law exists.
The thing is that the company has litigation insurance. So actually the lawsuit will still be fought and the company will stay alive doing so. The problem is that they can’t raise another round to fund operations because they can’t find investors while the lawsuit is ongoing.
As others have noted loser-pays doesn’t provide any protection. The problem is that lawyers write the rules for the system they operate in (either directly as legislators or indirectly through fundraising, influence, and lobbyists). Regardless of the outcome of a case the lawyers arguing it are fine. I wonder what would happen if you suddenly made the lawyers somehow financially vested in civil suits too and strengthen scenarios where lawyers become financially liable (ie bad faith arguments, shenanigans by lawyers that might be de facto legal but are judged to be bad faith, etc).
As a non lawyer, what really gets me annoyed is the fact that lawyers never seemed to be punished for bringing totally frivolous claims. Rarely do the plaintiffs, but I don't think the lawyers ever do. I think that would push said lawyers to make sure they have the full info before they actually take a case to court, and in tern reduce the number of frivolous litigation and the cost on the public system.
I have personally been sued frivolously. After 6 months of stress during which the plaintiff decided to fire a lawyer and started to harass my attorney and expect them to spend time explaining the law (time for which I eventually was billed), we decided to settle. The plaintiff was supposed to pay me $6000, but decided to reduce that amount to roughly half. I just didn't have any energy to go to small claims court arguing that she still owed me the rest of it.
Had their initial lawyer been on the hook for a frivolous lawsuit, the whole thing would probably have never happened. Rather than getting all of the info, they were more than happy to only get one side of the story (truncated email threads, not preparing them to answer to a discovery packet and so on) and to get their money, only to find a way to bailed once they realized it was not going to be worth it.
Another thing that I found absurd is the fact that "reasonable attorney fee" doesn't seem to cover more than half the reasonable fees. My lawyer suggested filing motions to compel and/or motions for sanctions, but also warned me that it would cost me more than what the judge would award me for the fees. And of course, nothing for my time...
Not a lawyer, but is there a way to try to institute more stringent legal ethics at the bar level? It seems unethical for an individual lawyer to bring spurious lawsuits as a matter of practice.
If my elderly grandfather goes to a doctor and says “here’s $100k please chop of my leg because I want to” the doctor won’t do that. If they did they may lose their license.
Seems like similar issues would exist for a company saying “here’s $1M please file lawsuits to block a company’s funding rounds.”
While it’s legally allowed, it seems like professional ethics should prevent it.
Of course it’s really hard to show what’s spurious.
For lawyers the incentives are even worse, every time a unethical lawyer sends out frivolous claims someone has to pay a "good" lawyer to defend against them.
Perhaps the Bar could set it up so that if a lawsuit is determined frivolous then the Bad pays the defending attorney’s fee.
I’m trying to think of an incentive to counteract the viscious cycle of frivolous lawsuits providing benefits for “good” lawyers. I think it’s hard to fix a problem if the problem makes money for the good guys.
So optimally good lawyers wouldn’t make money but wouldn’t want to avoid defending people against these suits. Maybe the Bar can have all firms contribute time from their best performers to serve and not bill, but I can expect that frivolous lawsuits aren’t apparent until after the suit is complete.
The bar associations around the country almost always focus on financial improprieties - think comingling or mishandling client money, all the way to straight up swindling. The most reliable way to get disbarred isn't being an incompetent lawyer but to simply screw with your firm's finances. That's because financial misdealings are at least more or less objective and can be recorded and traced. There really isn't a good way to measure a lawyer's actual competency, considering that some of the best lawyers I know lose most of their cases and get the most bar complaints - because they are county public defenders in a system that is massively tilted against them. In fact I would hesitate to judge the frivolity of any particular case without all of the facts and evidence being presented, by nature of the work, and ultimately the courts, not the bar association, are the more responsive gatekeeper here, with the power to act as such if necessary (https://www.law.cornell.edu/rules/frcp/rule_11). The reason they don't do it more is because courts tend to recognize that lawyers ultimately aren't independent actors but rather driven by their client's interests, which they ethically must zealously represent.
Onus is really on the clients bringing the suit. Anti-SLAPP laws have at least been somewhat effective on an individual level in states that enacted them, so laws can disincentivize client intentions in some cases at least. I have no idea what would actually work in the case at hand though.
It may not help actually. Some jurisdictions don't allow you to represent yourself if you are a business. If someone files a claim in a jurisdiction you aren't licenced to operate, you would need to hire a lawyer anyway. (This happened to me)
I agree with you but that wasn't the issue here. According to the blog post they are insured to cover the litigation cost and will continue to pursue it.
The problem is that they need more funding t operate and no-one will touch them with the litigation hanging over them.
So the issue isn't so much the cost of litigating. It's the potential cost of losing.
I have a half-baked idea where if you want to spend over a certain, very low threshhold on lawyers, you have to also give the amount over the threshhold to your opponent. This way, there is no imbalance when a huge entity sues or otherwise entangles a small entity.
It's not a bad idea but it would be hard to prove. For example, if a lawyer works on contingency, how much should be paid?
Additionally, the firm will likely farm out more of the work on to paralegals, private investigators, forensic accountants etc. to get around the cap wherever possible.
Yeah, probably the worst type of profession to attempt to regulate in this way. It's just ridiculous to me that the justice system is pay to play. Seems to contradict the stated purpose of the system by definition.
> Attacking an entrenched monopoly or cartel is pretty hard to bootstrap.
But that doesn't mean you can 'scrape' a monopoly's content and hope to get away with it (or pay for someone to create data that relies on scraping content). I'm not a lawyer but if Ross technology/product was built using Westlaw content there seems to be a case to answer there. However groundbreaking their tech or product was.
> To substantiate this, ROSS released emails that it says show that when LegalEase did once send unsolicited Westlaw content, ROSS immediately told them not to send such proprietary information.
The first email is from the ROSS engineer who discovered the data, alerting the project lead. He said, “they [LegalEase] include a lot of what seems to be Westlaw headnotes, footnotes, and other stuff. If it’s possible for them to send us cases without that it would be much better as that is added noise.”
Yes, but I'm sure westlaws argument is that if you scrape them and strip off the headers and footers, it's still their content (ie. Collected, filtered, arranged by them).
27.404-3(a)(2): Generally, a contracting officer should grant the contractor's request [to assert copyright] when copyright protection will enhance the appropriate dissemination or use of the data unless the -
(iii): Data are of the type that the agency itself distributes to the public under an agency program; (ed: court cases are distributed to the public via Pacer)
Reading the e-mail from above, it would seem more likely that the request to remove head- and footnotes wasn't followed, or at least not with the care necessary to remove most infringing content. Alternatively, they could allege some sort of TOS violation. Even if the scraping was done by a third party, Ross probably has an account with them and would be bound by their terms.
There is no "database" copyright in the US. (The EU has it, among others). So they couldn't assert copyright on the raw "collection". If they are smart/devious, they may have modified these documents in such a way that it does not change the legal meaning, but clears the barrier for a derivative work. Adding cartoons would be my idea, but it's too easy to remove. Adding some fancy formatting might do the trick, or changing the citation style.
as a general rule you should be able to use the case with the proprietary footnotes etc. removed. However I am not sure how many rights one has in the U.S to publish court cases, it might depend on jurisdiction (as so many things do in the U.S)
In Denmark some cases need to be anonymized before being made available through a service like WestLaw, and perhaps the same might apply to some American cases - if so not only the footer and headers and notes would be WestLaw proprietary but perhaps also the anonymized form of the case (arguable)
So they knew that Westlaw data was there, but only asked for headnotes and footnotes and other 'noise' to be removed, not for the Westlaw data as a whole to be removed. That supports the lawsuit.
Westlaw’s individual bits of core content are largely not owned by Westlaw and unprotected by its copyrights. It should be possible to carefully extract that in a manner that does not violate copyright law.
Is this not legal? I would have thought this would be illegal if they republished their content, but if they use it to train an ML system is this not transformative? Google Books vs the Authors Guild seems to suggest so [1].
> Since then, we’ve created a product that legal researchers love. We’ve worked with amazing partners to make legal research tasks more efficient and delightful.
Slightly off-topic, but this sounds like the strange kind of marketing that is common around startups. Why would they still use it while announcing shutting down?
TR as a company operates like a sociopath. The individual people are all very nice though. It is quite odd. Buy your small company just to eliminate it, but with a smile and a nice severance package.
Yes, because no investors will invest with this looming over the company. I suspect this is actually a Hail Mary, where they’re hoping that someone will step forward and invest. Best of luck to them, it seems like a great idea.
If Thomson Reuters is smart, they should try to acquihire the 3 founders so they can at least return their investors’ capital and make a bit of money themselves. Then they should turn the tech into a feature of their legal research service. There is obviously a lot of promise in using ML techniques to assist lawyers in finding relevant cases, and it would probably be hard for them to recruit good entrepreneurial people in a stuffy old company like that. And as part of the company they could have unfettered access to all the Westlaw content they could want to train their system better.
If I were the ROSS intelligence guys, I would've instead open sourced it, and donated the tech to EFF or GNU or another
non-profit foundation. That way ROSS would have a continuing impact, on a global scale.
You can't slay a king alone, you'll need help for that.
48 comments
[ 4.2 ms ] story [ 50.5 ms ] threadI think Emerson is apposite here: "When you strike at a king, you must kill him.”
Attacking an entrenched monopoly or cartel is pretty hard to bootstrap. When you are small you can make progress as you are invisible to the big guys. Once you start to ve visible they will reach out and crush you long before you can pose a threat.
Legal efforts like NoLo have survived because they don't threaten the kinds, but merely replace small lawyers.
The only paths I've seen work (and they are very hard) against the cartels are 1 - to slowly build a movement, so by the time it is visible it is actually already too big to crush. This requires recruiting all sorts of allies, like (in this case) some significant law firms, which means figuring out for them what's in it for them. Or 2 - get a bit of traction and then raise so much money that you can in fact stand up to the big guys. But you need a business model that pays the investors back. Also not easy.
A company should never need to shut down because it can’t afford to defend itself. If this happens, it means our governing framework has seriously failed somewhere, and we should focus on fixing it.
Not really a vote-winner, but that’s no excuse.
Completely agree and the most preposterous part is that across the Western world elected officials are by far comprised of former legal professionals and those with law degrees. Feigning ignorance is not an option.
That being said, I suspect the absence of "loser-pays-costs" does make things worse in the USA. This mitigates most of the potential downside to litigation, capping your exposure to a known (controllable) quantity.
But even then, it's still a huge problem in Commonwealth countries. I'm more interested to know if it's less of an issue in civil law jurisdictions like Germany.
As others have noted loser-pays doesn’t provide any protection. The problem is that lawyers write the rules for the system they operate in (either directly as legislators or indirectly through fundraising, influence, and lobbyists). Regardless of the outcome of a case the lawyers arguing it are fine. I wonder what would happen if you suddenly made the lawyers somehow financially vested in civil suits too and strengthen scenarios where lawyers become financially liable (ie bad faith arguments, shenanigans by lawyers that might be de facto legal but are judged to be bad faith, etc).
I have personally been sued frivolously. After 6 months of stress during which the plaintiff decided to fire a lawyer and started to harass my attorney and expect them to spend time explaining the law (time for which I eventually was billed), we decided to settle. The plaintiff was supposed to pay me $6000, but decided to reduce that amount to roughly half. I just didn't have any energy to go to small claims court arguing that she still owed me the rest of it.
Had their initial lawyer been on the hook for a frivolous lawsuit, the whole thing would probably have never happened. Rather than getting all of the info, they were more than happy to only get one side of the story (truncated email threads, not preparing them to answer to a discovery packet and so on) and to get their money, only to find a way to bailed once they realized it was not going to be worth it.
Another thing that I found absurd is the fact that "reasonable attorney fee" doesn't seem to cover more than half the reasonable fees. My lawyer suggested filing motions to compel and/or motions for sanctions, but also warned me that it would cost me more than what the judge would award me for the fees. And of course, nothing for my time...
If my elderly grandfather goes to a doctor and says “here’s $100k please chop of my leg because I want to” the doctor won’t do that. If they did they may lose their license.
Seems like similar issues would exist for a company saying “here’s $1M please file lawsuits to block a company’s funding rounds.”
While it’s legally allowed, it seems like professional ethics should prevent it.
Of course it’s really hard to show what’s spurious.
Sure, the same way you get the teachers union to help fire bad teachers or the police union to punish bad apple officers.
Which is to say: not gonna happen.
I’m trying to think of an incentive to counteract the viscious cycle of frivolous lawsuits providing benefits for “good” lawyers. I think it’s hard to fix a problem if the problem makes money for the good guys.
So optimally good lawyers wouldn’t make money but wouldn’t want to avoid defending people against these suits. Maybe the Bar can have all firms contribute time from their best performers to serve and not bill, but I can expect that frivolous lawsuits aren’t apparent until after the suit is complete.
Onus is really on the clients bringing the suit. Anti-SLAPP laws have at least been somewhat effective on an individual level in states that enacted them, so laws can disincentivize client intentions in some cases at least. I have no idea what would actually work in the case at hand though.
The inability to defend yourself without deep pockets is terrifying.
The problem is that they need more funding t operate and no-one will touch them with the litigation hanging over them.
So the issue isn't so much the cost of litigating. It's the potential cost of losing.
Additionally, the firm will likely farm out more of the work on to paralegals, private investigators, forensic accountants etc. to get around the cap wherever possible.
But that doesn't mean you can 'scrape' a monopoly's content and hope to get away with it (or pay for someone to create data that relies on scraping content). I'm not a lawyer but if Ross technology/product was built using Westlaw content there seems to be a case to answer there. However groundbreaking their tech or product was.
Those memos link cases to bits of law they rely on.
The third party did that by scraping Thompson Reuters Westlaw.
Now Ross is upset they have a lawsuit on their hands...
> To substantiate this, ROSS released emails that it says show that when LegalEase did once send unsolicited Westlaw content, ROSS immediately told them not to send such proprietary information.
The first email is from the ROSS engineer who discovered the data, alerting the project lead. He said, “they [LegalEase] include a lot of what seems to be Westlaw headnotes, footnotes, and other stuff. If it’s possible for them to send us cases without that it would be much better as that is added noise.”
27.404-3(a)(2): Generally, a contracting officer should grant the contractor's request [to assert copyright] when copyright protection will enhance the appropriate dissemination or use of the data unless the -
(iii): Data are of the type that the agency itself distributes to the public under an agency program; (ed: court cases are distributed to the public via Pacer)
ref: https://www.law.cornell.edu/cfr/text/48/27.404-3
There is no "database" copyright in the US. (The EU has it, among others). So they couldn't assert copyright on the raw "collection". If they are smart/devious, they may have modified these documents in such a way that it does not change the legal meaning, but clears the barrier for a derivative work. Adding cartoons would be my idea, but it's too easy to remove. Adding some fancy formatting might do the trick, or changing the citation style.
In Denmark some cases need to be anonymized before being made available through a service like WestLaw, and perhaps the same might apply to some American cases - if so not only the footer and headers and notes would be WestLaw proprietary but perhaps also the anonymized form of the case (arguable)
https://towardsdatascience.com/the-most-important-supreme-co...
please complete your argument, if that's the case.
from where i am standing, I see no wrongdoing of any kind.
Slightly off-topic, but this sounds like the strange kind of marketing that is common around startups. Why would they still use it while announcing shutting down?
https://www.forbes.com/profile/david-thomson/?sh=7d653665628...
You can't slay a king alone, you'll need help for that.
Seriously. Fight the beast.