Thomson-West claims that aggregate data would distort the AALL Price Index, because the company "structures individual pricing plans for each customer based on their print and online research needs." Thomson views the Index as a "one-size-fits-all" model, which aggregate data will not fit.
Thomson's customized pricing does not, however, prevent it from disclosing the annual average cost of supplementing each title. If Thomson has concerns about the distorting effect of averages, then it can provide medians instead, although the Index is based on average prices, and the Index would have to change its methodology.
Thomson-West may view such a flimsy rationale as better than none, but we can equally regard it as worse than none. The bottom line is that Thomson-West will not cooperate with the AALL Price Index Committee. The Guide to Fair Business Practice for Legal Publishers offers Thomson-West no incentive to cooperate. Far from encouraging Thomson-West to cooperate, Principle 2 of the Guide - the Disclosure Principle - encourages the company not to. We learn from Thomson-West that
"[d]isclosing the prices paid by individual customers would both violate contractual agreements and reveal proprietary information." The Disclosure Principle expressly exempts this kind of disclosure.
Scott Deleve believes that the AALL Price Index Committee - and perhaps also Ken Svengalis - have already compiled enough pricing information for each of us, individually, to reach suficiently informed decisions about Thomson-West purchases. If the "Disclosure Principle" has a flaw with respect to exempted disclosures, the flaw does not matter. Another conclusion is possible, however, and I recommend it to my colleagues.
The Disclosure Principle might make a much-needed difference if it banned, rather than sanctioned, confidentiality clauses in customers contracts, and if enough customers honored the ban. As a result of such compliance, the AALL Price Index Committee could, at a minimum, collect more representative pricing data for specific types of law libraries, as well as pricing data across the full spectrum of law libraries. We might also learn about the extent of likely pricing disparities among and within types of law libraries; whether the disparities have increased over time among and within the different types; and whether such data reveals excessive cost shifting to less profitable customers for specific categories of publications and online subscriptions. (The Price Index does not yet have information on online subscriptions; contractual confidentiality presents one of the obstacles to reliably compiling it.) Evidence of unfair cost shifting - whether in dollars or restricted contractual coverage - might alert u
s to a problem and spur AALL to seek a remedy. Of course, an effective ban may bring other collective benefits to law libraries. Suppose, for example, that Thomson-West and other legal publishers favor certain (say, highly profitable) customers over others with respect to the rate of price increases in supplemented publications and online subscriptions. They may ultimately find that practice untenable if, as a result of an effective ban on contractual confidentiality, evidence of the practice emerged.
If the contractual-confidentiality exemption of the Disclosure Principle does not have any benefit for law libraries, why was it included? It is hardly surprising that Thomson-West, among other legal publishers, helped draft the Guide. But their involvement raises at least a reasonable question: does the exemption reflect their direct or indirect influence? It would be outrageous to imply that there was anything like a quid pro quo. Influence can be subtle, and can often have more impact if it is. The Special Committee on Fair Business Practices, which drafted the Guide, may have been unaware of deference to legal publishers. Or the Committee may have, quite independently, found compelling reasons to include an exemption that happens to coincide with the exclusive interest of legal publishers.
My question about the origins of the exemption should be seen in context. Ken has already mentioned Guide 2 of the former FTC Guides for the Law Book Industry. Former FTC Guide 2 concerns "[d]isclosures relative to supplementation." To add the appropriate context, let us compare the current, voluntary Disclosure Principle and former FTC Guide 2, codified at 16 C.F.R. §256.2 until the FTC rescinded its Guides on January 19, 2000. If a legal publisher promoted a supplemented publication by direct mail or oral representation, the publisher was supposed to disclose in the promotion the "[m]inimum supplementation cost for each of the past 2 calendar years, or such shorter period in which the publication has been available." [16 C.F.R. §256.2(e)] Former FTC Guide 2 does not expressly exempt disclosure if disclosing price data would infringe confidentiality agreements or reveal what publishers consider proprietary information. According to the Disclosure Principle (Principle 2. Article 3, i, iv), publishers are t
o provide "where possible, historic data on the cost of supplementation for the product." Data for less than two years, or even less than a year, now qualifies as historic data, because "historic" has been left undefined. And the "where possible" exception, though also undefined, applies to at least one specific stipulation - that disclosures not violate contractual confidentialiy or reveal proprietary information.
Ken tells us that Thomson-West, unlike other publishers, does not provide the AALL Price Index Committee historic data on supplementation costs. But Thomson-West claims that its refusal to cooperate does not violate the Disclosure Principle. The claim is certainly plausible, given the difference between former FTC Guide 2 and the current Disclosure Principle. For Thomson-West contends that it is not "possible" to disclose historic supplementation data to the AALL Price Index Committee. Any form of the data, including averages or medians, would come from contracts with confidentiality clauses or from sources the company considers proprietary.
A Disclosure Principle that has this outcome deserves closer scrutiny, even if we disagree about whether it is significantly flawed and has had harmful consequences for all of us. If it is flawed, the flaw will have the unintended effect of collectively harming law libraries more and more over the long-term.
This communication represents just my own opinion as a law librarian and has no other affiliation.
-----Original Message-----
From: sdeleve@olemiss.edu [mailto:sdeleve@olemiss.edu]
Sent: Thursday, May 04, 2006 7:42 PM
To: Samuel E Trosow; Michael Ginsborg; law-lib@ucdavis.edu; marts@uchastings.edu
Subject: Re: Revising Principal 2 of the Guide to Fair Business Practices for Legal Publishers to ban confidentiality clauses in customer contracts?
With respect, the efficacy of the guidelines is irrelevant.
As it stands now, the information that we have is from Ken,
which indicates that West's annual price increases are
roughly twice the annual increases of other publishers.
If that's the information West wants us to use to formulate
buying decisions, they'll stay with their current policy.
(As far as that goes, each library can make its own
comparisons.)
If West isn't comfortable with the numbers Ken has provided
it's up to West to provide further information, regardless
of their current technical compliance with the guidelines.
Scott
> Suppose I'm a monopolist who is trying to engage in the
> worst sorts of rent-gouging behavior. I'll put something
> in my contract saying that my bad behavior is proprietary
> information, and even though you know about it, you can't
> say anything. I'll sue you if you do, (well not really, I
> might lose, but I'll threaten to and that's good enough
> because I'll bet you won't challenge me-- It's more
> trouble for your institution if you do, and I know as well
> as you do that you're probably constrained to state your
> views anyway). I know all about your institution because
> I'm already there teaching your students or attorneys
> legal research. You've already ceded that to me. You're
> probably just going to roll over so it's a good bet that
> you will not challenge me. Besides, I've captured your
> association. And of any of you don't go along with this
> state of affairs you will become marginalized. We own you.
>
> If a used care salesman tried an anti-consumer stunt like
> this, most thinking car-buyers would probably walk away,
> and would go to a place that claimed the actual and true
> sticker price is posted on every car. Honest and no
> exceptions. Do you really need all of these products? I
> don't think you do and it's certainly not censorship to
> talk about smart collection development policies where you
> lose expensive and redundant services.
>
> Whenever you get into legalisms such as the " insofar as
> allowed without violating contractual agreements or
> revealing proprietary information" clause, you've lost
> before you've started! Michael is raising some very useful
> points here, and I won' t try to repeat his excellent
> legal analysis.
>
> Say not to confidentiality clauses. Talk to other
> librarians about your pricing structure. This reminds me
> of landords who insist that the tenants not discuss their
> rents with each other. In the end, you get rent control
> and other reforms becuase people are tired of being played
> off against each other. And above all else, take back
> control over the process of transferring legal
> information. It's fairly obvious that the existing
> structures to protect us from predatory practices aren't
> working. AALL and its committees have failed in this
> regard and it is starting to appear to more observers that
> law librarians have compromised their integrity as an
> independant profession. It's only starting to come out
> now. Cancelling at least one subscription is certainly a
> good place to start. Pick one where you don't really
> limit anyone's access to needed info. You all know there
> are plenty of redundant products out there.
>
> Some recent posts (Susan and Michael and Christine to name
> just three) show there is indeed much hope for the
> enterprise of law librarianship. I suspect there are many
> out there who agree with them who are constrained from
> posting such to the list.
>
> Sam Trosow
> University of Western Ontario
>
>
> ----- Original Message -----
> From: Michael Ginsborg <mginsborg@howardrice.com>
> Date: Thursday, May 4, 2006 7:00 pm
> Subject: Revising Principal 2 of the Guide to Fair
> Business Practices for Legal Publishers to ban
> confidentiality clauses in customer contracts? To:
> marts@uchastings.edu, law-lib@ucdavis.edu,
> bounce-pll-sis-45746@aallnet.org,
> bounce-sccll-sis-48977@aallnet.org,
> bounce-all-sis-43097@aallnet.org, Anne.Ellis@thomson.com
>
> > Principle 2 of the Guide appears to support
> > Thomson-West's position. ("Principle 2: Disclosure.
> > Publishers should provide full disclosure about their
> > products, services, prices, and transactions insofar as
> allowed without violating contractual agreements or
> > revealing proprietary information.") Unless the
> > "contractual agreements" exemptionadmits of a
> > reasonable, alternative interpretation, the
> > underlyingpractice condoned - confidentiality clauses -
> > deserves express repudiation, or at least some other
> > equally debatable remedy, to answerthe concern that
> > Susan raises.
> > I do not know whether the issue was raised in comments
> > on the draft Guide
> >
> (http://www.aallnet.org/committee/criv/publisher_communica
> > tion/gram2002/ 061902.htm) or discussion at the 2002
> > Annual Meeting in Orlando. In its
> > series of explanations, the AALL Fair Business Practices
> > ImplementationTask Force did not consider the
> > implications or likely consequences of
> > the "contractual agreements" exemption. (See the January
> > 2004 explanation of Principle 2 at
> > http://lawlibrary.ucdavis.edu/lawlib/Jan04/att-0516/01-
> > AALL_Guide_emails_Part_4.pdf) Perhaps the Task Force
> > considered them elsewhere?
> >
> > I am representing just my opinion as a law librarian.
> > This communicationhas no other affiliation.
> >
> > -----Original Message-----
> > From: owner-law-lib@ucdavis.edu [mailto:owner-law-
> > lib@ucdavis.edu] On
> > Behalf Of Susan Nevelow Mart
> > Sent: Thursday, May 04, 2006 2:46 PM
> > To: law-lib@ucdavis.edu;
> > bounce-pll-sis-45746@aallnet.org;
> bounce-sccll-sis-48977@aallnet.org;
> > bounce-all-sis-43097@aallnet.org; Anne.Ellis@thomson.com
> > Subject: Re: A Message from Thomson West
> >
> > Since it is West that puts confidentiality agreements in
> > its contracts,
> > I find the response somewhat disingenuous.
> > Confidentiality clauses
> > should be negotiated out of contracts, as the
> > confidentiality clauses
> > clearly aren't benefiting the library community.
> >
> >
> > Dear Colleagues,
> >
> > On behalf of Thomson West, here is a message from Chip
> > Cater, Executive Vice President, Chief Marketing Officer
> > , West, in response
> > to recent listserv discussions:
> >
> > To our customers and partners in the librarian
> > community:
> >
> >
> > West appreciates efforts to provide clearer insights
> > into pricing and
> > collection management issues raised by librarians. We
> > know that these
> > are important issues for you, and would like to address
> > recent listserv discussions to provide more insight into
> > our policy and approach to the market.
> >
> >
> >
> > Q: Is West in violation of the Guide to Fair Business
> > Practices for Legal Publishers?
> >
> > A: We recognize that there has been a good deal of
> > discussion around
> > this point. We are in compliance with the Guide. The
> > Guide statesthat "publishers should provide full
> > disclosure about their products,
> > services, prices and transactions insofar as allowed
> > without violating contractual agreements or revealing
> > proprietary information." Disclosing the prices paid by
> > individual customers would both violate contractual
> > agreements and reveal proprietary information.
> >
> >
> > Q: Why doesn't West disclose detailed pricing
> > information for third-party reports?
> >
> > A: Third-party pricing reports or price indices purport
> > to give librarians an accurate view of book prices, and
> > help them plan budgets
> > for maintaining their print collections. It follows that
> > the value of
> > such a report or index hinges on the accuracy of the
> > information it presents. We provide new purchaser
> > pricing on our Web site. But West
> > does not view print pricing in isolation, and instead
> > structures individual pricing plans for each customer
> > based on their print and online research needs. Thus, a
> > "one size fits all" model simply does not provide an
> > accurate picture, as contract pricing will generally be
> > lower than new purchaser prices.
> >
> >
> >
> > We know pricing is an important issue for you. We've
> > developed a number of initiatives including a new
> > library maintenance program
> > that
> > provides predictable, year-to-year pricing and that many
> > of our customers are now using to better manage
> > collections, resources and
> > budgets, and control costs. This is part of our
> > commitment to provide
> > you with the best products, support and value.
> >
> >
> >
> > We are proud of our longstanding relationship with AALL
> > and the librarian community, and believe that open
> > communication and support
> > of professional programs is the best way to sustain and
> > strengthen this relationship. We're honored to support
> > scholarships, professional
> > development and networking programs, and are committed
> > to providing
> > the best Librarian Relations and Reference Attorney
> > programs in the industry to support the success of each
> > librarian who uses our products.
> >
> >
> >
> > We appreciate the opportunity to answer your questions,
> > and look forward to continuing this dialogue in a
> > productive manner.
> >
> >
> > Best regards,
> >
> >
> >
> > Charles B. Cater
> >
> > Executive Vice President, Chief Marketing Officer, West
> >
> >
> >
> >
> >
> > Anne V. Ellis
> > Senior Director, Librarian Relations
> > Thomson West
> > 610 Opperman Drive
> > D5-N104
> > Eagan, MN 55123
> > anne.ellis@thomson.com
> > 651-687-5019
> > 651-848-2737 (Fax)
> >
> >
> >
> > Susan Nevelow Mart
> > Reference Librarian
> > University of California - Hastings College of the Law
> > marts@uchastings.edu
> > 415.565.4759
> >
> >
> >
> > ____________________________________________
> >
> > This message and any files or text attached to it are
> > intended only for
> > the recipients named above, and contain information that
> > may be confidential or privileged. If you are not an
> > intended recipient, you
> > must not read, copy, use or disclose this communication.
> > Please also notify the sender by replying to this
> > message, and then delete all copies of it from your
> > system. Thank you.
> >
> >
>
Scott DeLeve
Public Services Law Librarian
University of Mississippi Law Library
P.O. Box 1848 / University, MS 38677
662/915-6834 / sdeleve@olemiss.edu
____________________________________________
This message and any files or text attached to it are intended only for
the recipients named above, and contain information that may be
confidential or privileged. If you are not an intended recipient, you
must not read, copy, use or disclose this communication. Please also
notify the sender by replying to this message, and then delete all
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