• April 16, 2015

DataYou might not want a compilation of every ______ between the ages of ____ and _____, of ______ethnic origin, who suffers from _________.

But many people and many businesses want “slices” of potential customer groups like this and they will pay a lot of money for these slices because they will make a lot more money with them. Many businesses (Facebook, Google, to name a couple) traffic in human data like that in the billions of dollars.

But if you collected and sold databases like that, how would you be able to tell whether a competing data merchant is stealing and re-selling your compilations?

You would take a page from the playbook of old school data sellers (dictionaries, encyclopedias, maps, and directories) – “fictitious entries,” also known as fake entries, Mountweazels, ghost words or nihil articles – deliberately incorrect entries or articles.  It is also known as “seed data” these days, apparently.

What, though, you might ask, does this have to do with Minnesota Litigator’s mandate, to provide its readers with “news and commentary about Minnesota civil litigation”?

Knock it off. Who asked you? If you don’t find it interesting, stop reading. But, to answer your question: nothing. I just think it is interesting.

And there is this (watch me grasp for a straw): nestled deep inside this interesting recently reported case out of the U.S. District Court for the District of Nebraska, is a note about a possible “Circuit split” that could, I suppose, come up in your practice (see footnote 13) since Minnesota and Nebraska are both within the Eighth Circuit of the U.S. Court of Appeals.

Defendant DatabaseUSA boasted that its data compilations were “verified.” Plaintiff Infogroup suggested that this had to be a false statement. How could Defendant’s compilations be verified if they included Infogroup’s Mountweazels seed data???

Infogroup’s instances of inaccurate data—and it doesn’t present very many—do little to prove that DatabaseUSA’s data is not generally ‘verified,’ or that any particular ‘verified’ listing hasn’t been verified to some degree. Infogroup’s argument asks the Court to make a very hasty generalization.

Plus, U.S. District Court Judge John M. Gerrard (D. Neb.) pointed out, data merchants sell to sales people, a savvy group. “Such an audience is unlikely to be confused by such advertising techniques” such as a vague claim of “verified” data. So the plaintiff might have a hard time proving that the alleged deception was “material,” i.e., that it likely influenced the purchasing decision.

This is where the potential circuit split comes up. Apparently, a Fifth Circuit decision “elided the distinction” (that is, failed to make the distinction) between whether a consumer “is likely to be deceived by a falsehood” and whether that deception “makes a difference to the consumer.” Other circuits have held otherwise. The Eighth Circuit has not weighed in.

Photo credit: Jana M. Cisar / USFWS

Photo credit: Jana M. Cisar / USFWS

I suppose buyers might think they are free from Mountweazels if the data-set they bought is said to have been “verified” but, on the other hand, those same buyers might fully appreciate that there is no such thing as a perfectly clean data set and a few dozen varmints in the huge data sets are immaterial…


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