JIS Data Dissemination Committee

November 19, 2004

MINUTES

JIS Data Dissemination Committee

AOC SeaTac Office 

Members Present: 

Judge Kenneth Grosse, Chair, Division I Court of Appeals (by speakerphone)

Judge Glenna Hall, King County Superior Court

Judge James Heller, Pierce County District Court

Judge Kip Stilz, Thurston County District Court

Siri Woods, Chelan County Superior Court Clerk

Judge Thomas Wynne, Snohomish County Superior Court

Guests: 

Scott Wetzel – LexisNexis

Dave Michie – LexisNexis

Ed Spaeth – LexisNexis – via speakerphone

Don Horowitz

Rowland Thompson

AOC Staff:

Brian Backus

John Bell

Call to Order 

Judge Grosse opened the meeting, introductions were made, and the 1/30/04 minutes were approved.

LexisNexis 

LexisNexis requested to change a provision in the standard data dissemination contract that is used between AOC and third party vendors.  Ed Spaeth, General Counsel of LexisNexis, addressed the data dissemination committee by speakerphone. 

Mr. Spaeth stated that one section of the data dissemination contract caused his company concern.  This was section 13.1 which stated:

The Licensee shall at all times be obligated to ensure its subscribers comply with all provisions of the law regarding the use of information provided to the Licensee under this Agreement.

Mr. Spaeth believes this provision imposes a “commercially impracticable burden” on LexisNexis in that LexisNexis is being asked to do something outside its control.  He views this as an “onerous burden.”

Mr. Spaeth asked the committee to agree to substitute the above language with the following:

If the Licensee has actual knowledge of any unauthorized use of any of the Licensee’s subscribers, the Licensee shall, as soon as reasonably practicable in the ordinary course of the Licensee’s business, (i) terminate such subscriber’s access to the data licensed to Licensee pursuant to the Agreement; or (ii) establish to the Licensee’s reasonable satisfaction that such unauthorized use has been terminated.  An “unauthorized use” is a use, by a subscriber to Licensee’s LexisNexis Courtlink service, of the data licensed to Licensee pursuant to this Agreement, which use is not expressly authorized under such subscriber’s written subscriber agreement with the Licensee.

Judge Grosse stated the language needed to indicate that LexisNexis needs to take active steps to know what its users are doing.  Judge Grosse suggested inserting the word “constructive” so the above provision would begin:  “If the Licensee has actual or constructive knowledge of any unauthorized use….”  Mr. Spaeth indicated this language was agreeable.  Judge Wynne stated the standard data dissemination contract should be changed to reflect this new language. The committee agreed that the data dissemination contract should be changed to include the above language with the addition of the word “constructive.” 

Mr. Spaeth also asked whether a subscriber “written certification” that is required in the data dissemination contract could be in the form of an electronic “Click Through Agreement.”  Judge Grosse indicated this was not a problem. 

GR 31 Follow-up  

The committee began discussing disclaimers and bulk distribution, but no decisions were made.  It was agreed to continue the discussion at the next meeting where the committee would discuss and decide the mandates of GR 31 regarding disclaimers, data dissemination contracts, and essential elements of data dissemination contracts.