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Monday, April 20, 2015

Ind. Gov't. - Decision in an Illinois federal court on access to county records dispute

On Dec. 10, 2014, the ILB had a post headed "In Spencer County, more than $200,000 worth of public records were copied without payment." This was followed on Dec. 16, 2014 by this followup post. On Dec. 18th there was a third post, this one headed "Marshall County to Join Lawsuit over Theft of Documents." A quote:

Representatives of LPS Real Estate Data Solutions reportedly went in and took data out of the recorder’s office without going through the proper channels to pay for the data wanted. A civil action will be filed against LPS to recover damages for the stolen data and punitive damages.
The Dec. 10th post quoted a St Louis RFT (Riverfront Times) story stating:
Franklin County Recorder of Deeds Sharon Birkman ... claims 87,000 property records were copied from the county's servers and likely sold at profit by LPS Real Estate Data Solutions.

"This company is stealing tax payers' information," says Birkman. She tells Daily RFT that she was deposed three weeks ago by lawyers from Fidlar Technologies, the software company that runs Franklin County's online data access program. Fidlar first informed her of the alleged theft back in March 2013, but she says she didn't know the exact number of documents taken until her deposition.

"They called me, and told me they were certain that LPS was 'scraping my data without paying for it'," says Birkman, whose office oversees millions of digitized deed records going back to the 1800s.

"[LPS] signed an agreement that agreement stating that they will not sell to a third party," says Birkman. LPS apparently broke that agreement with Franklin County, as well as dozens of others across the U.S..

So what is data scraping? According to a lawsuit filed [in 2013] in U.S. District Court in Illinois, LPS is accused of improperly accessing recorders' office servers by way of a "web harvester," which allowed LPS to potentially copy millions of documents without paying a cent. According to the lawsuit, LPS's business model involves collecting massive amounts of public property data, combining it with third-party information and then licencing the resulting package to its customers. The collection is done "on a vast scale," as LPS has arraignments with 2,600 recorders' offices.

Much of that access goes through a digital middle man contracted by the recorders' offices. Birkman says 24 Missouri counties use Fidlar's "Laredo" program, which charges users to view, download and print various land-related records. Users can only view documents one at a time and cannot download the files without paying the county a printing fee.

As for Fidlar, they take a cut of the $400-per-month subscription fee charged to companies like LPS.

That process was apparently too slow (and expensive) for LPS. Fidlar's suit alleges that LPS dug into the Loredo's server protocols to create the web harvester, which allowed LPS to "scrape" the documents in bulk, right from the source. An audit by Fidlar found that LPS used this technique in approximately 74 counties in Illinois, Indiana, Minnesota, Missouri, and Wisconsin.

ILB: The ILB this weekend received a copy of a recent, 25-page (March 5th) summary judgment order from the Central District of Illinois awarding judgment in favor of LPS on all claims in the related litigation that the software vendor (Fidlar) pursued unsuccessfully against LPS. Here is a quote from p. 22:
From the mere fact that the counties made money from Fidlar’s product—obvious to LPS, presumably, since LPS paid the counties for access—it does not follow that LPS knew or should have known that it was depriving the counties of money, or even that it did deprive them of money. As described above, it was never LPS’s aim to print documents, the process which by which Fidlar claims the counties were deprived of money; it was LPS’s aim to copy and aggregate certain data from the land records it downloaded, which its client provided a means of doing. See McCabe 30(b)(6) Dep. 40:16–41:16. LPS could have done this by slower means than the one it eventually developed, including one that did not involve bypassing the intentionally restrictive Fidlar client interface (copying by hand, for instance).

The contention that LPS deprived counties of money rests on the assumption, unstated but everywhere present in Fidlar’s briefing, that any act of copying the digital land records entitled the counties to a fee. Fidlar may wish this were so; indeed, Fidlar may have marketed its products to counties by endorsing just this kind of sweeping commodification of public land records. Be that as it may, Fidlar points to no information in the record that could give rise to the inference the LPS knew or should have known that this was the case, or that it was the case with respect to any individual contract. The evidence provided by Fidlar merely suggests that some counties charged a print fee, and that LPS never made a practice of printing and incurring the fee and never sought to. LPS’s use of its own client to aggregate data from the documents does not suggest that it would have, or was contractually obligated to, print any of the associated documents and pay the counties for that printing.

Posted by Marcia Oddi on April 20, 2015 10:57 AM
Posted to Indiana Government