The American legal profession is not generally known for adopting new technology, setting up open access to laws and legal procedures, or offering things for free.  Internet culture is the opposite: fervently experimental, open, and free/shared whenever possible.  Private intersections of the two have fallen on a continuum, from closed and expensive like Lexis/Westlaw, to open and free like the new Google Scholar (see our analysis of Google Scholar here).  One of the latest innovations in open access to previously closed legal information is RECAP, a project of Princeton’s Center for Information Technology Policy.  Created by computer scientists with a policy tilt—not J.D.s—RECAP takes aim at PACER, the online service for accessing federal court records.  RECAP threatens to unravel PACER’s paid-access system in the name of “hastening the day when court records would be freely available to the general public via the Internet.”

PACER

PACER, which stands for Public Access to Court Electronic Records, “is an electronic public access service that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts, and the U.S. Party/Case Index via the Internet.”   Started as a pilot program in 1989 (PACER chronology pdf), PACER allows registered parties to access public court documents from most federal courts, and is popular—even essential—for many attorneys litigating in federal court.  It is not a single database – each participating federal court operates its own document database, and PACER provides centralized registration, billing, and technical support.

PACER is funded by fees collected from users.  Users pay eight cents per page for records accessed through PACER—primarily pdfs of court papers, and also search results and document lists.  PACER’s fee structure is mandated by Congress, originally in 1988 and reapproved most recently in the E-Government Act of 2002.  There are exceptions to the eight cent charge; for example, “written opinions” by judges “that set … forth a reasoned explanation for a court’s decision” are available for free, and the maximum charge for any single document is capped at 30 pages ($2.10).  Additionally, courts may exempt users from paying fees “in order to avoid unreasonable burdens and to promote public access to such information.”  However, “exemption of PACER fees will only apply in the jurisdiction that issued the order,” so to receive a fee exemption applying to all documents accessible through PACER would necessitate petitioning each of the federal courts separately.

Though ahead of the internet-curve at the time of its inception, PACER has come under fire for its “cumbersome” interface and its continued use of fees in an age of increasingly free access to all sorts of information online.   Critics argue that in America’s common-law system, court documents and decisions form the substance of the law itself, and that PACER’s fees restrict access to what should be universally available for free.  Moreover, PACER collects more money in fees than are needed to run its servers and maintain the system—$150 million more, as of 2008—which undermines any claim that eliminating PACER’s fees would eliminate PACER itself.  There have been calls for legislative change to open up access to PACER (among other repositories of government data), but little movement toward actual change – especially since federal funding would have to replace the fees used to keep PACER operational.  Without any such changes, the information in PACER remains closed off—not all of its documents make it onto Westlaw or Lexis, and almost none of them will be caught in Google Scholar’s new legal net.  There have been efforts to pay for and share large sweeps of data from PACER, but they have been necessarily incomplete.

RECAP

Enter the technological, crowdsourced solution: RECAP.  A project from Princeton’s Center for Information Technology Policy, RECAP—with the motto “Turning PACER Around” explaining the backwards name—opens up access to the centralized documents by targeting users of the system instead of  exclusively pushing for legislative policy changes.  RECAP is a Firefox browser plugin that activates when a user logs into PACER.  It then has two functions: RECAP automatically detects any documents the user accesses and uploads copies to the Internet Archive, and it alerts the user if any of the documents listed on the current PACER screen are available in the archive.  RECAP also creates clickable links to the free, archived documents that appear on the page along with the PACER links.  Thus RECAP users collectively share the documents they access from PACER and each document need only be paid for once to be free for everyone thereafter.

Wait… are they allowed to do that?

Though RECAP’s copy-and-upload function might ring copyright infringement alarm bells, the system was designed to open access to legal documents without violating any laws.  With regard to copying and sharing documents written by the court, 17 U.S.C. 105 precludes material by the federal government from receiving copyright protection, saying “Copyright protection under this title is not available for any work of the United States Government.”  RECAP doesn’t only facilitate sharing government works, however; it also works on the briefs, motions, and exhibits submitted by litigation parties.  That material does not fall under 17 U.S.C. 105′s exemption, and thus is subject to copyright protection at its creation.  CITP suggests that RECAP should still be protected from liability under the doctrine of fair use, which allows uses of copyrighted works without permission for things like commentary, news reporting, and research.  However, this is far from a settled point of law—even the posting of briefs by traditional legal research companies Lexis and Westlaw has been called into question.

CITP acknowledges this, and says it would like to “establish [the] precedent” that “citizens . . . have the freedom to share public court documents” without copyright liability.  If challenged on copyright grounds, CITP’s fair use defense might not be so robust: though popularly championed among netizen activists, fair use as a doctrine has been weakened over the years, and it provides its strongest defense with regard to private, partial, transformative works.  RECAP provides public, total, and exact copies of the material in question, though its decidedly non-commercial nature would likely weigh in RECAP’s favor.  CITP’s better defense might be a claim of implied license—arguing that the act of submitting a brief or exhibit to a court implies permission for it to be copied into the public record and then further copied and distributed by commercial and non-commercial organizations as a means of disseminating the common law.

In addition to considering copyright law when designing RECAP, CITP also made sure use of RECAP would not violate PACER’s prohibition (PACER policy pdf) on “any attempt to collect data from PACER in a manner which avoids billing.”  To that end, CITP points out that “RECAP users pay for every document they download from PACER, just like any other user . . . RECAP simply gives users a second option: to easily share documents directly with one another.”  The Administrative Office of the U.S. Courts has tacitly endorsed this distinction in its Notice for Fee Exempt PACER Customers, in which it notified fee exempt users that they are not allowed to use RECAP because of additional restrictions on transfers of data by that class of users.  Ordinary, paying users are not subject to the limitation, which the Administrative Office has confirmed in response to direct inquiry.  RECAP may threaten PACER’s long-term fee collection model, but it is not likely to face any significant, unique legal challenges.

Turning PACER around

As part of a trend toward opening access to American common law, RECAP’s place at the heart or the periphery of the movement remains to be seen.   Like any crowdsourcing application, RECAP’s usefulness increases as more people use it.  Yet PACER’s prime users are large, bill-paying law firms, which tend to be wary about adopting new technology and have little incentive to contribute documents they paid for to a free database.

“Success” for RECAP may not be mainstream adoption, however.  Merely by creating the working plugin and calling attention to the problem of restricted access to court documents, CITP has advanced the cause of reforming and opening up access to PACER.  That alone is “Turning PACER around.”

By Rajiv Batra.