TechLaw

Illinois Attorney Discipline Commission Web Site Forbids Datamining

To gather detailed and often hard-to-find information on attorneys, Avvo scoured state courts, bar associations and lawyers' websites to collect information on lawyers' experience, practice areas, professional achievements and disciplinary sanctions.

Avvo press release, June 5, 2007

In Illinois at least, Avvo's scouring days are over. Not only did the Illinois Attorney Registration & Disciplinary Commission succeed in blocking lawyer marketing site Avvo's request for the master list of state-licensed attorneys, the ARDC earlier this month also changed the terms of use on its Web site to forbid datamining.

It seems that ARDC officials were more than a little miffed at Avvo general counsel Josh King's June 11 boast about Avvo's data mining prowess ("Of course, we've got a little internet and data mining expertise here at Avvo, so we were able to access most of the attorney records in the ARDC site ...."), which he made at the same time Avvo was negotiating for official release of the ARDC's master roll. A few week's later, the ARDC added the following paragraph to its Web site terms of use:

5. NOTICE AND TERMS OF USE: You are not authorized to access or query our database through the use of high-volume, automated, electronic processes or for the purpose or purposes of using the data in any manner that violates these terms of use. The Data in the ARDC database is provided by ARDC for information purposes only, and to assist persons in obtaining information about or related to the registration and discipline of lawyers licensed to practice in Illinois. ARDC does not guarantee its accuracy. By submitting a query, you agree to abide by the following terms of use: You agree that you may use this Data only for lawful purposes and that under no circumstances will you use this Data for commercial purposes or to: (1) allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via direct mail, e-mail, telephone, or facsimile; or (2) enable high volume, automated, electronic processes that apply to ARDC (or its computer systems). The compilation, repackaging, dissemination or other use of this Data is expressly prohibited without the prior written consent of ARDC. You agree not to use high-volume, automated, electronic processes to access or query the ARDC database. ARDC reserves all rights and remedies it now has or may have in the future, including, but not limited to, the right to terminate your access to the ARDC database in its sole discretion, for any violations by you of these terms of use, including without limitation, for excessive querying of the ARDC database or for failure to otherwise abide by these terms of use. ARDC reserves the right to modify these terms at any time.

Illinois court rules forbid the use of the master roll of state-licensed attorneys for commercial uses except continuing legal education programs. Avvo argued, unsuccessfully, that the use it was making of the attorney records (basically a name and address used to create a skeleton Web page) was not a commercial use. Reading the ARDC's submission to the Illinois Supreme Court, I came away with the impression that the commission was peeved that Avvo had been helping itself to attorney registration information without permission. And not very impressed with the use Avvo was making of this information.

As far as I can tell, Illinois is the only jurisdiction to forbid datamining/spidering of their attorney registration data.

Most of the attorney registration Web sites I looked at contain no limitation whatsoever on use or automated access to their data. Looking at Web sites such as the California Bar Association, the Georgia Bar Association, the Massachusetts Board of Overseers, the State Bar of Michigan, the Pennsylvania Supreme Court Disciplinary Board, and the Washington State Bar Association, it is easy to see how a large database of attorney names and addresses could be quickly amassed. On nearly all of the Web sites I checked, querying the Web site with the character "S" in the last name field returned all attorneys whose last name begins with "S." A good Web spidering program ought to be even more efficient.

Online Print-On-Demand Publisher Not Liable for Defamatory Material in Book

A federal district court in Maine held last week that Amazon.com's print-on-demand subsidiary, Booksurge LLC, was not liable for defamatory material contained in a book it printed for a customer. In essence, the court decided that BookSurge is similar to contract printer which, according to several courts, has no duty to inspect the materials it prints for defamatory content.

One of the defendants, BookSurge, is an online self-publishing service provider. Authors upload a PDF-formatted copy of their work to the BookSurge Web site. For a fee, BookSurge then publishes the work in ink-on-paper and delivers the printed materials back to the author. The plaintiff is a high school girl who alleged she was defamed in a BookSurge-printed title written by the family of another high school girl. The details of the book aren't important, though it appears from the court's opinion to involve a setting-the-record-straight effort about high school cheerleaders, boys, and ethnic slurs.

The key passage in the opinion: "BookSurge, as an independent company that transforms PDF documents into books with no editorial control and no communal process with the author, can only be found liable if it knew or had reason to know of the alleged defamation."

The court rejected the plaintiff's argument that printing-plus-marketing the author's work is sufficient to treat BookSurge as the "publisher" of the disputed work.

BookSurge contended that the First Amendment bars holding BookSurge liable for defamatory material in the books it prints on any standard more demanding than a "knew or should have known" basis. This argument relied in part on Cubby v. Compuserve Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), in which the court held that holding electronic news vendor CompuServe to a duty more rigorous than the one imposed on traditional news distributors would "impose an undue burden on the free flow of information." BookSurge's riff on Compuserve went like this:

Adopting Ms. Sandler's theory that BookSurge has a duty to read and fact-check the hundreds of thousands of books that it prints each year would restrict severely the dissemination of constitutionally protected books printed by BookSurge and other P.O.D. companies. At a minimum, BookSurge and other P.O.D. companies would be required to increase substantially their rates in order to provide the review and fact checking proposed by Ms. Sandler. Far more likely, companies like BookSurge would cease to exist, because self-publishing authors would be unable to afford the cost entailed in the review and fact checking necessary to protect P.O.D. companies from Ms. Sandler's newfound theory of liability.

The court's opinion, however, didn't pick up this argument. No First Amendment discussion, no mention of Compuserve, and no mention of the Communications Decency Act's Section 230 (which, I guess, is not applicable to this dispute because the alleged defamation was ink-on-paper). Nevertheless, the court reached the same destination via the non-constitutional, non-CDA route. BookSurge, a mere printer with no other involvement in the creation of the book, is not liable unless it knew or should have known of the defamatory character of the work, the court concluded.

Web 2.0 Tidbit. The court, in tossing out the plaintiff's tort claim for publication of private facts, observed that the publication of the fact that the plaintiff had decided to seek psychological counseling did not involve a private fact, because the plaintiff had already disclosed this information on her MySpace.com page. Publication of this information on MySpace also undermined another aspect of the publication of private facts tort, which is that the private fact published must be highly offensive to a reasonable person. "The Plaintiff's choice to reveal to the public that she sought psychological help shows that she did not believe the disclosure of this fact to be highly offensive," the court wrote.

The case is Sandler v. Calcagni, No. 07-cv-29 (D. Maine July 16, 2008).