This is becoming more true than it was a few years ago, but traditionally PACER has served both functions: it's the primary federal repository for publishing court dockets, including actual decisions, injunctions, and written opinions. That function has been slowly diminishing as public access through other avenues improves, but I believe some district court decisions are still available only via PACER. Some of these newer public-facing websites are actually implemented as some kind of no-login wrapper on top of PACER, e.g.: http://pacer.ca4.uscourts.gov/opinions/opinion.htm
The court system does seem to have realized that public access to court opinions vs attorney access to court dockets are two fairly different use cases, and there are moves to either free up or even offload the opinion-repository function of PACER. Since 2002, all final written opinions are free of page charges when retrieved via PACER, and there is a special opinion-search function that doesn't charge you for the search results either. But you do still need an account and to give them a credit card, so it's easy to get charged for something else if you run the wrong kind of search, or click on the wrong document. On the other hand, wrappers like that 4th-district one above make some PACER documents accessible without an actual PACER account.
Recognizing that that's still rather suboptimal, the courts seem to be moving to using a new service of the Government Printing Office, FDSys, as the conduit for public access to opinions, so non-lawyers won't have to rely on PACER for opinions anymore: http://www.uscourts.gov/news/newsView/11-05-04/New_Pilot_Pro...
Mr. Foster takes the $6.5 billion number and makes it seem like some collusion to make Lexis and Westlaw gate keepers of what should be publicly available information.
In reality, the problem is far less sinister: outdated IT. The courts have been slow to evolve from putting a copy of the reporters in a public law library to the digital age. Is that a problem? Sure. Let's get them more funding and get these things digitized. But trying to work it into an anti-government, anti-business narrative just to send nerds into a frothy rage is stupid and counter-productive.
But Mr. Foster's email was not about whether, in principle, PACER documents should be free. It was an uneducated attack on Lexis and West, claiming that they were engaged in "rent seeking."
Wikipedia: "In economics, rent-seeking is an attempt to obtain economic rent by manipulating the social or political environment in which economic activities occur, rather than by creating new wealth. One example is spending money on political lobbying in order to be given a share of wealth that has already been created."
The implication was that Lexis and West were colluding with the courts to make Lexis-Nexis and Westlaw a for-profit gateway to public domain documents.
Second, whether or not Lexis and West are explicitly colluding with the courts is not really the issue.
The fact of the matter is that in many, many, many jurisdictions, Lexis and West are THE ONLY WAY to access public information. Take the Code of Maryland as an example...
http://www.lexisnexis.com/hottopics/mdcode/
...or the California Supreme Court...
http://www.lexisnexis.com/clients/CACourts/
On both of these official government pages, one must agree to terms and conditions of Lexis Nexis in order to access public information for which there is no other official source. One of those conditions (if I remember correctly) is that I may not access what they might consider to be too much public information.
This is outrageous.
Whether or not legal contracts or illegal collusion resulted in this setup is totally irrelevant. What matters is that this information's availability should not be subject to anyone's approval. And what I see is Lexis and West acting precisely as "a for-profit gateway to public domain documents."
This is the California Supreme Court's opinions page: http://www.courts.ca.gov/opinions.htm
Lexis takes the slip opinions, edits and indexes them, and hosts them (1850 - Present, which means they went back and digitized old opinions), and lets you access them free of charge with an explicit disclaimer of any copyright.
The court itself separately publishes the unedited slip opinions in both PDF and DOC format as they are rendered. What more do you want? Are you going to pay for the court to duplicate Lexis's effort so you don't have to agree to the terms and conditions?
There is a difference between freely releasing the information and undertaking the expenditure to aggregate and collect the information then making it available for no charge.
Who are these "powerful individuals" and what exactly are they keeping from you? Upgrading the court systems are not as easy as you make them out to be. We're not talking about one system here. We're talking about hundreds of separate systems, the result of the independent administration of hundreds of decentralized state and federal courts. It's a massive undertaking, meanwhile the court system is perpetually underfunded.
NB: As for the Maryland code, Lexis is not the only source. The University of Maryland provides links to several sources: http://lib.guides.umd.edu/content.php?pid=131120&sid=112.... E.g. http://mgaleg.maryland.gov/webmga/frmStatutes.aspx?pid=statp.... They're just PDFs: http://mgaleg.maryland.gov/Pubs/LegisLegal/2012rs-laws-maryl....
1. The California link you provided points to the California link I provided.
2. Yes, I want my tax dollars to pay for the court to be able to host, edit and index its own opinions without an intermediary.
3. "Powerful individuals" are the judges who run the Administrative Office of the Courts, and by extension, PACER. I would be surprised to hear anyone dispute that they are in a position of power.
4. I know roughly what it would take to upgrade PACER. I've spent the past year designing and implementing a similar system. For PACER, the "hundreds of systems" you reference are similar enough that they could and should be consolidated into one. State courts are a separate issue and not the focus of this particular initiative since most states that I know of allow costless access to court documents.
5. Lexis is the only OFFICIAL source of the Code of Maryland. (Note that I said above "for which there is no other official source.")
Yes, but it also points to the unedited slip opinions, which you conveniently left out.
> 2. Yes, I want my tax dollars to pay for the court to be able to host, edit and index its own opinions without an intermediary.
Then lobby for that. Don't indulge in conspiracy theories about how Lexis/West are blocking access to public documents.
> 3. "Powerful individuals" are the judges who run the Administrative Office of the Courts, and by extension, PACER. I would be surprised to hear anyone dispute that they are in a position of power.
Oh yes, the Administrative Office of the Courts, that powerful agency with a massive $50 million budget. :-/ If there is a less powerful agency in the federal government it doesn't come to mind.
> 4. I know roughly what it would take to upgrade PACER. I've spent the past year designing and implementing a similar system. For PACER, the "hundreds of systems" you reference are similar enough that they could and should be consolidated into one.
Do you know how many engineers have said to themselves: "I could totally replace this big complex mission-critical system in X amount of time with Y amount of money?" Where X and Y turned out to be ridiculous overoptimistic underestimates?
> 5. Lexis is the only OFFICIAL source of the Code of Maryland. (Note that I said above "for which there is no other official source.")
What do you mean by "official"? If you mean "authoritative" then the Code is not authoritative. The authoritative source of the law are the session laws.
"While the “Laws of Maryland” (Session Laws) constitute the official laws of the State, the Code is accepted as “evidence” of the law in all State courts and by all public offices and officials. However, in the event of a conflict between the Code and the Session Laws, the Session Laws prevail." (http://mgaleg.maryland.gov/webmga/frmStatutes.aspx?pid=statp...).
I will lobby and I will point out as much as possible that Lexis and West are part of a system, whether coordinated or not, that blocks access to public documents.
The Court's power comes from the Constitution, not its budget.
The Session Laws appear to be available only as PDFs, and I'm more interested in the Code in any event.
Lastly, the whole reason we are having this discussion is because of the death of Aaron Swartz. Aaron believed very strongly in open access to data. If you have a problem with that it's fine, but your arguments come across to me as A) strange, as though you have some connection to the entities you are defending (though you may not), and B) rather tone-deaf and insulting, whether or not you mean them to be. Aaron died for these principles.
And with that I think I've said enough.
Second, people are allowed to disagree with you, even after Aaron's tragic death, even when we can reasonably guess that Aaron would have taken your side in an argument, without being "tone-deaf" and "insulting". From what very little experience I had with Aaron, I feel confident that he would rather have had people debating him than become a card to be played by other people in arguments to shut people up.
Third, the trope of accusing people who disagree with you on HN of somehow being bought and paid for agents of some shadowy force would be offensive if it wasn't so stupid-sounding; so... for lack of any better word: lame. Really, Aaron? Rayiner is somehow connected to Westlaw? The evil forces of Lexis?
Finally, as I understand it, this story links directly to a service for which you collect money. Have I misread that somehow?
Who loses? The public.
The proceedings of the nation's government institutions should not be behind paywalls.
Lexis and West get copies of the slip opinions from the court clerks. Which anyone can do by physically going to a court house.
> The courts are happy to get the fees. Do you honestly think Lexis and West would be happier if the docs were free?
Would Lexis/West be happy if the government spent tax money aggregating these documents? I'm sure they wouldn't. Would Google be happy if the government spent tax money indexing the web? I'm sure they wouldn't. That doesn't amount to "rent seeking."
Lexis and West pay lots of money to track cases (though cheaper than a citizen pays) and then charges the government for the ability to track a docket.
http://www.prnewswire.com/news-releases/lexisnexis-us-awarde...
Lexis and West have no incentive to want these documents to be free.
And of course the government should spend money to organize the court documents. Unlike the web, these are government documents and the record of government in action.
Published cases themselves are in relatively good shape -- most of what you can find in the West National Reporter system over the last 50 years is available for free on Google Scholar.
In response to your, "These services do not charge you for access to the case law, which are in the public domain." Sure they do. It costs money to buy the West Federal Supplement or Tennessee Reports in print. It also costs money to access those reporters online, via Westlaw or Lexis-Nexis. Many of these old cases (despite being uncopyrighted) are only available by visiting a law library or a paid online service. You can't just download them for free.
My point is that you don't have to pay Lexis and West just to get copies cases that are published digitally. You may have to do more leg work, but you don't have to pay Lexis or West.
I think Mr. Foster's use of the term "rent seeking" makes it clear that he is the one who misunderstands the situation. It implies that through some collusion with the court system, Lexis and Westlaw have made themselves the sole source of getting public domain information. This is the sense in which I was using the "charge for access to cases" because this is the sense implied by the term "rent seeking."
But charging for their copy of a public document is not "rent seeking," nor is it "rent seeking" to build a value-added service on top of publicly available information. Indeed, that's pretty much Google's business model--to make money categorizing information they don't own. I don't think anyone would accuse Google of rent-seeking if they e.g. showed ads associated with cached copies of a page.
In the context of pre-digital cases, why should "freely available" be coincident with "download[able] for free?" Back then, "freely available" meant putting a paper copy in a public law library (of which there are many). Going back and digitizing those reports, then charging for access to the digital copies is a value-added service, not "rent seeking."
I'm inclined to agree. But perhaps "rent seeking" or not is not the right debate.
It's hard to tease out how much of the value of WL/Lexis/BL is in comprehensive access to cases and documents vs. how much comes from the kind of value added products/services that you mention.
An interesting question is just how valuable these value added services actually are. Whatever value they provide today might reasonably be discounted by their lack of defensibility going forward. As you noted, there is much room for technological disruption here. One could imagine dramatically better products (my thesis is that the right Silicon Valley startup can build them). If WL/Lexis/BL want to survive in the next 5-10 years, they are going to have to get away from publishing and push technology farther, either internally or by acquiring the very few startups who are doing interesting things in this space. What do you make of that thesis? It sounds to me like your thinking about their value add might be clarified by distinguishing between publishing and technology.
Providing comprehensive access to disparate publicly available information is itself a value-add. Should courts submit their opinions to some sort of centralized system instead of posting a link to the PDF on their website? Sure, you can make that argument. But it's hard to say that courts are remiss in not doing so, considering that they are dozens of independent entities. Moreover, someone has to pay to build that system. Categorizing information is not free--Google just makes us think it's free because it charges us by selling our privacy rather than simply asking for a fee. Now it's certainly something that could be done at the public expense, and maybe it should be. But until then, providing comprehensive access to these documents is a value-add.
> One could imagine dramatically better products (my thesis is that the right Silicon Valley startup can build them). If WL/Lexis/BL want to survive in the next 5-10 years, they are going to have to get away from publishing and push technology farther
I can imagine dramatically better products, but not in the next 5-10 years. If history tells us anything,[1] it's that AI is really hard and any technology that relies on advances in AI are further off than we imagine. Google's search engine, at the moment, can't even tell the difference between a real product review site and SEO-optimized, auto-generated garbage. It'll be a lot longer than 5-10 years before I trust some algorithm to tell me whether one case cites another in a positive or negative light.
See for example this open law data project in the UK, run by the National Archives: http://blog.okfn.org/2012/10/04/worlds-first-real-commercial...
With the entry of Google Scholar, the access and value-add businesses are divorced. The cost of the underlying access has reached zero. But the reason Westlaw and Lexis are still huge is because they do provide value-adds.
So this talk of opening up PACER is really missing the broader access point - the opinion access problem is largely solved via Google Scholar. PACER documents may be opened up, but they are not useful to lawyers in anything other than some basic docket scenarios.
Yes and no. Suppose I want to take a stab at automating Westlaw. Now I need to download all of the court opinions ever so that I can put them in my database and use them to train my machine learning algorithm. Can I actually get them for any reasonable price? All of them? And without doing something that will get me charged with unauthorized access to a computer like Aaron? Because if not, fixing that is a legitimate goal. (And if so, do post the link.)
So very close to "everything."[1] Why don't you ask Google to put up a torrent?
[1] Anything that isn't in there is probably on a library shelf somewhere, and you're welcome to do the same thing Lexis/Westlaw did and scan it in yourself.
Certainly it will be great to have free access to the data in bulk, and that day will come. But from a practical perspective, the barrier to entry as a businessperson in this space is not data. There is enough data at https://bulk.resource.org/courts.gov/ to experiment with. And if your experiments work, there are companies that will sell you access to all the data.
Heck, that's pretty much where Lexis and West came from so long ago, but now technology is offering the possibility (at least in theory) to democratize the process so that someone can screw around with the data over a weekend or three and see if they can create something worth following up before they go through the trouble of looking for funding in order to buy data.
I don't know if we're even particularly arguing about anything. Is there really an argument to be made that this data should not be freely available? If "that day will come" then I guess all I'm saying is that sooner is better than later.
My only point was that providing open access to cases so that individuals can learn the law is a solved problem via Google Scholar. Bulk access is not a problem for individuals. I say this as someone who has worked to create better legal research tools for nearly 5 years: the first 2 on a startup that failed, the next 1 at Scholar, and the last 1.5 on a new startup that I believe will finally succeed.
So while the desire to open up PACER - and the attention given to it - is great, I don't think it will have any effect on the future of individual access to law, or to the future of innovation and business in the legal space. I don't think lack of innovation today has anything to do with lack of bulk access today. I think the deficiencies are more a reflection of the fact that innovation in this space is really hard.
Basically: The opinion access problem is not "largely solved". If it was, Google wouldn't be one of the folks fighting to get access to opinions, and I wouldn't be funding folks like Carl Malamud to do things like scan federal reporters (https://yeswescan.org/index.court.html, #22).
If your interest is in getting and providing bulk access to cases, then yes, you have obstacles. But that is only a problem for a select few individuals/companies who care about this as a business or hobby. The end users you may be trying to service by offering access to the cases can already get access to the cases from Google for free.
EDIT: To be clear, I'm not intending to downplay or diminish the efforts of you and others to open up access to those older cases. I think that is great. All I am saying is that for the vast majority of people, the vast majority of the time, there really isn't a problem in finding cases online.
Opening up PACER really doesn't help in practice because the data is ridiculously dirty - crappy scanned PDFs which people then pay to have triple keyed.
Take for instance reporters. Say for instance I wanted to cover a court trial. If I want to see if there's a new filing, I have to login to PACER daily and pay ten cents to see a court docket.
Then if there is a filing, I have to pay more money just to see the filing (10 cents a page for the first 30 pages).
There's no way to "follow" a case. And following cases manually gets very expensive very quickly.
Say I was a legal scholar interested in patent cases in certain districts? How would I access those cases?
Or say I was just a citizen who wanted to stay on top of the Google vs. Oracle trial.
None of these use cases require any of the "value-add" from Lexis-Nexis and they are all democratic with a lower case d.
PACER is largely useless for any of these use cases, because it is regarded as a slush fund for the court system, which has NO incentive to do right by the public. $15 free per month would get you about 3 days of filings in the Google/Oracle case.
A publicly free PACER, one that's actually useful to the public, could e paid for by slightly higher fees for attorney submissions.
Would it eat into LEXIS or West profits? Probably a tiny bit in the short term. Long term, it presents a long-term existential threat as a much cheaper, more democratic indexing system could eventually supplant those two.
Regardless of those two, there are compelling reasons for this data to be public to anyone who wants and the technology to do so isn't that complicated anymore.
Which is to say, I love the RECAP project, but it shouldn't be necessary.
Mr. Foster drags Lexis/West into it so he can work the "$6.5 billion" + government conspiracy angle to build outrage, even though blaming Lexis/West for PACER's problems makes no sense, nor does it give any insight into how the system evolved to its present state.
Someone has to pay for the operation of the court system. Usage fees are an (until now) uncontroversial way to do that. They reflect a policy choice: do we want to completely subsidize a government service, or push some of the costs of running it onto the people who directly use it? Thus, you see usage fees in many different contexts: toll roads, subway fares, traffic tickets, parking meters, court filing fees, and access to public records. There are lots of kinds of public records that require paying a fee (you should price a FOIA request sometime).
Are usage fees a bad idea for court dockets? You're welcome to make that argument. But make that argument for what it is: a proposal to subsidize one kind of access to the court system by diverting revenues from elsewhere. Evaluate the costs and benefits of those proposals. E.g. are higher filing fees (for people appealing to the court system for justice) worthwhile in order to allow reporters, etc, cheaper access to dockets? These are practical, concrete, educated arguments. But don't clothe your argument in uneducated conspiracy theory bullshit.
Subsidize one kind of access? Public access is the only one that matters. And in actuality, there's no need to raise filing fees.
The courts get paid lots of money by Lexis and West. It builds them an IT slush fund. It builds Lexis and West a business moat.
That's not conspiracy bullshit. That's basic economics.
The part about federal courts is incorrect.
Maybe you meant "all federal appeals courts", which is almost true. However, at the federal district court level, a significant percentage of federal district courts only post opinions through PACER.
Here is a good example, our lovely friends in the eastern district of texas:
http://www.txed.uscourts.gov/page1.shtml?location=attorney
" Judicial Opinions The E-Government Act of 2002 requires that the court provide access to the substance of all written opinions issued by the court, regardless of whether such opinions are to be published in the official court reporter, in a text searchable format.Written Opinions are now searchable and available at no cost to CM/ECF and PACER users."
There is no other option
You've pointed out one particular district court that seems to have upgraded to solve that problem. Not all have.
So, unfortunately, until the courts themselves publish the final versions of their opinions online -- something they may need to negotiate into the next round of their publishing contracts -- the opinons swept into the RECAP project are just rough drafts of the law.
To be clear: I have done a fair amount of scraping state court websites for my own projects, and I'd love to see the federal PACER system opened up. I can think of some great cross-docket research projects that could expand our understanding of how the legal system really works. But even opening 100% of PACER would not achieve the goal of public access to the official appellate opinions that actually serve as controlling precedent (or even to reported district court opinions, which also are edited by the official reporters).
If the government pays for it, it comes via taxes (which are very difficult to adjust as needed), debt (which is undesirable in general), or by levying duties on those affected (which is essentially the PACER model).
The laws themselves can be found online (Gov't Printing Office, the Library of Congress's THOMAS, even the House of Representative has a legal code lookup website).
If you're referring to case law, there's already not a lot you can do without having a lawyer interpret what it means for you in your specific situation, and your lawyer should already have access to the case law.
I feel I should have the right to be able to drive my car as long as I prove I know the driving laws, but the government sure as shit made me pay for my updated driver's license last year. I pay for road maintenance every time I fill up my tank, but that gets washed into the whole transaction and so there's comparatively little outrage.
PACER often runs revenues near 100 million. I'd do it at-cost. They are supposed to be doing it at cost.
"The laws themselves can be found online (Gov't Printing Office, the Library of Congress's THOMAS, even the House of Representative has a legal code lookup website)."
THOMAS is often quite slow in publishing. Often slow enough to be useless if you wanted to get info about a current bill. Their XML format is missing useful info in a lot of cases, like "dates", despite it being in the schema (I even know why, but i'll save that for a Daily WTF episode some day).
For example, the floor amendments to "Obamacare" were not on THOMAS until many months after the bill had been passed.
GPO still wants to charge for a lot of the data.
FWIW: As someone who delves into these systems a lot: The whole lot of them are built to look, to a casual outsider, like they provide good, timely information.
To anyone who actually has tried to get this data from them: they don't.
Even govtrack, which is what people really use to get bill info because of the above, scrapes HTML pages and assembles data from multiple sources, because the single sources that are supposed to be providing it, don't.
If you want something you get rid of something else, and while I'm sure there's many things we could find to pay for PACER from appropriated funds, the problem is getting enough of Congress to agree on that, and getting Congress to take the issue up at all (because given that PACER is already funded, changing the funding source really isn't a very important issue for them).
As a former lawyer turned programmer I just want to say that court opinions posted to the docket are a source of law. Even unpublished opinions have some use, and while you can get some published opinons from court websites its far from comprehensive and not easy to search. Never mind what a great research source other attorney's briefs are.
> What other options are out there for accessing federal case law?
Mr. Foster seems confused. PACER is a system for accessing court dockets, not a repository of case law. You can think of court docket's as a court's "inbox." When the parties file a complaint, motion, or brief, or when the judge issues an interlocutory order or other memorandum, it goes in the docket. Court dockets are mostly concerned with the mechanics of a single case--they are not intended to be a source of law.
> Open government pioneer Carl Malamud says commercial ventures such as Lexis-Nexis, West Law, and Bloomberg Law compete for a $6.5 billion market built around extracting rents from this public commons:
Mr. Foster completely mischaracterizes what Lexis and West do. These services do not charge you for access to the case law, which are in the public domain. What they do is provide a value-added service on top of the publicly available case law. They have armies of legally-trained professionals who read cases as they come out and annotate them with "head notes" which give summaries of the case and index the case into Lexis's or West's legal ontology. E.g. if I'm thinking of using a case to support a proposition, I can log on to West Law and have it give me a report of all the cases that cite that one. The report not only gives me a simple "citation list" like you can get with Google scholar, but a summary of the contexts in which each case was cited, whether it was referenced in a positive or negative light, and how extensively it was discussed. They can do this because they have (expensive) human readers who go through the cases to generate this meta-data.[1]
This is not "extracting rents from the public commons." This is charging for the valuable service of organizing and summarizing publicly available information.
There are legitimate complaints about access to case law. While all federal courts that I'm aware of freely post their opinions on their websites (e.g. http://www.ca3.uscourts.gov/recentop/week/recprec.htm), the same isn't true for all state courts. But as a practical matter that's a state-by-state issue--the federal government doesn't have much say in the internal administration of the state courts. Going after PACAR while completely ignoring that much more pressing problem smacks of not understanding the underlying issue (to be charitable), or going after the federal system because it's guaranteed to generate more outrage on the internet (to be less charitable).
[1] Note that there is a ton of money to be made "disrupting" this industry through automation. To date, nobody has succeeded in building anything close to being as sophisticated as Lexis and Westlaw. Google Scholar is a pale imitation (to the point of not even being the same kind of product) that's only good for doing a bit of quick background research to save time and fees before you log onto Lexis or Westlaw.