Recap The Law: Getting Public Legal Data Back To The Public

from the about-time dept

Fri, Aug 14th 2009 3:44am — Mike Masnick

There's been a push by people both inside and outside the government to get public court documents out to the public. As it stands now, most court documents can be found via PACER, the court system's own online service, which charges $0.08 per page. PACER notes that it's charging for the documents to cover its own costs of managing its system, but this still bothers many who don't like the fact that important public domain case law is so costly. There are some private services, like Justia trying to fill the void, and Carl Malamud is pushing hard to get the government to put public documents up for the public to read.

Now there's a new service that has an interesting tactic to try to help bring these documents to the public domain. Ed Felten's Center for Information Technology Policy at Princeton University is announcing a service and a Firefox extension called RECAP (it's PACER backwards), with the tagline: "turning PACER around." It's a bit ingenious. Basically, if you're a PACER user, you install the Firefox extension, and any documents you access via your PACER account automatically get uploaded to a public archive (hosted by the Internet Archive folks). If the document has already been uploaded, the extension alerts you to that fact in PACER, so you can access the open archived one.

While the folks at PACER might not like this, it's all perfectly legal. The documents are public domain, and people can do whatever they want with the documents once they have them. Creating a public archive is one option -- and a rather useful one at that. The real question is how many PACER users will actually participate in the program in order to make this a truly useful resource. At launch time, this public database has already been seeded with about a million documents, but the question is how quickly will it grow? No matter what, conceptually, this is a fantastic idea that hopefully will help to open up public domain court information that has been locked behind PACER's paywalls for too long.

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Filed Under: legal documents, pacer, public domain, recap

42 Comments

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Anonymous Coward, 14 Aug 2009 @ 4:04am

They are walking in to a legal black hole here.

I think the most important is going to be the imcomplete and out of date nature of RECAP. Basically, if you are using RECAP to make a search, you have no way to know if you have all the documents. If you take action based on the material on RECAP, and it turns out you are missing something, who is to blame?

RECAP could be like getting legal advice from a lawyer who forgets every other word.

The second is this: "If the document has already been uploaded, the extension alerts you to that fact in PACER, so you can access the open archived one. " - potentially, this may be interference in a business transaction, no different from standing in Starbucks and telling each person who orders a coffee not to pay, and giving them a bus ride to Mickey Ds.

It really looks like these people are opening themselves up for all sorts of liablity.
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- Mike Masnick (profile), 14 Aug 2009 @ 5:12am
  
  Re:
  I think the most important is going to be the imcomplete and out of date nature of RECAP. Basically, if you are using RECAP to make a search, you have no way to know if you have all the documents. If you take action based on the material on RECAP, and it turns out you are missing something, who is to blame?
  
  You don't use RECAP to make a search. It works within PACER. So that's not an issue at all. You see all the PACER results, and then an indication if they've available via RECAP.
  
  potentially, this may be interference in a business transaction,
  
  I'd love to see the Federal gov't make that argument over its own public domain documents. They would not get very far.
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  - Anonymous Coward, 14 Aug 2009 @ 5:34am
    
    Re: Re:
    "I'd love to see the Federal gov't make that argument over its own public domain documents. They would not get very far."
    
    Mike, you are making what I consider a pretty big mistake here.
    
    There is no claim of copyright - there is only a claim of a business transaction. McDonalds doesn't have a copyright on hamburgers, but you can be sure as hell certain there would be a huge lawsuit if the burger king guys were standing next to the Mcdonald cash registers giving away free burger coupons and giving people rides to the free stuff.
    
    You are correct - the documents are public domain, but that doesn't give anyone a right to get into the middle of a legal business transaction. Is PACER illegal? How?
    
    "public domain" doesn't mean "you can't charge".
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    - Steven (profile), 14 Aug 2009 @ 6:56am
      
      Re: Re: Re:
      You seem really confused. There is no law against getting 'into the middle of a legal business transaction'. You're right that there would be legal trouble if BK folks were standing next to McD's registers handing out coupons for free burgers, but that's called trespassing. If they stand right outside on a public sidewalk there is nothing McD's can do about it.
      
      I don't see how creating an alternative somehow makes the original illegal. Do you somehow think that all things are illegal unless specifically allowed by the government and there can only be one?
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    - Anonymous Coward, 14 Aug 2009 @ 8:42am
      
      Re: Re: Re:
      "There is no claim of copyright - there is only a claim of a business transaction. McDonalds doesn't have a copyright on hamburgers, but you can be sure as hell certain there would be a huge lawsuit if the burger king guys were standing next to the Mcdonald cash registers giving away free burger coupons and giving people rides to the free stuff."
      
      You go to the mall and there are a bunch of restaurants right next to each other (McDonald, Burget King, Carl's Jr). No lawsuits.
      
      Secondly, he is not standing at the cash register. If he was standing at the cash register that would be analogous to him hacking the website and putting up a link to another database. What he did was open up a new store, like a retail store, and give customers two similar products from different companies. Customers can still go to the original website/store/fast food restaurant and buy stuff or they can go to the competition that orders stuff from the original or they can choose to get the alternative from the competition.
      
      ""public domain" doesn't mean "you can't charge"."
      
      It means you can't force people to pay otherwise it wouldn't be public domain. If someone wants to start another archive that's free they have every right to. Others can choose where they want to get their information.
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- Anonymous Coward, 14 Aug 2009 @ 5:14am
  
  Re:
  What an utter nonsensical comment.
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- Danny, 14 Aug 2009 @ 6:00am
  
  Re:
  The second is this: "If the document has already been uploaded, the extension alerts you to that fact in PACER, so you can access the open archived one. " - potentially, this may be interference in a business transaction, no different from standing in Starbucks and telling each person who orders a coffee not to pay, and giving them a bus ride to Mickey Ds.
  Actually it would be different. Those court documents are a public recource whereas the coffe at Starbucks is not.
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- Anonymous Coward, 14 Aug 2009 @ 8:24am
  
  Re:
  What a hilarious comment. Ignoring the fact that this isn't a buisness transaction at all the the $0.08 per page is used to pay for the bandwidth consumption for the pages you are viewing.
  
  By that logic having someone else make sure the government systems are not heavily taxed (pun not intended) by having tons of users view pages of text and instead kept on a non government machine we are actually helping the government!
  
  Your analogy is easily short circuited by the fact the government is not selling you public domain documents, they are offering it for free and charging you the upkeep related to viewing the documents at a price that is quite steep. The $0.08 would most definitely cover the expenses of the site. Considering a web hosts will offer Unlimited Space and Transfer for $15 a month you only need to have 187.5 pages downloaded a month to cover your costs.
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  - Anonymous Coward, 14 Aug 2009 @ 12:02pm
    
    Re: Re:
    "Considering a web hosts will offer Unlimited Space and Transfer for $15 a month you only need to have 187.5 pages downloaded a month to cover your costs."
    
    You know, there is so much wrong in a single sentence that it is beyond understanding. Let's start with webhosting, it's unlimited until you actually try to use more than a few pages a day, then you are a "shared hosting abuser" and banned from the service. I won't even start to discuss how PACER likely doesn't run on a single shared server.
    
    Beyond that, the inforamtion doesn't just jump onto pacer. They have employees and staff to take care of the network, make sure everything works, etc. So it isn't like it's free.
    
    You must be from Masnick Inc, where everything is magically produced for nothing, and computers, bandwidth, and staff are free.
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    - Anonymous Coward, 14 Aug 2009 @ 12:33pm
      
      Re: Re: Re:
      No one said that everything should be free, just that we should let the free market, and not government sanctioned artificial scarcity, determine the price of things.
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PaulT (profile), 14 Aug 2009 @ 4:23am

"If you take action based on the material on RECAP, and it turns out you are missing something, who is to blame?"

The idiotic lawyer who's too cheap to pay the fee for the up-to-date copy before attempting legal action.

I'd have to assume that the most likely use for RECAP is for ordinary people interested in law to be able to research and/or investigate archived cases without having to pay ridiculous amounts of money to do so. Any new action would require a lawyer's advice (if the plaintiff has any sense), and thus presumably payment being exchanged for said services.

If a working lawyer being paid to take fresh legal action doesn't want to bill his client for PACER fees, it's on his own back if things go wrong because of this.

As for your second point, I'm not sure how that would interfere with any business dealings - surely, the new copy would need to have been requested before the extension kicks in? Either way, the RECAP message simply informs the customer that there's a free alternative available - it's up to the user whether or not they want to get the public copy or pay for a new one. If you want an analogy, this would be like telling someone that a copy of the book they're thinking of buying is available in the local library.
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- Anonymous Coward, 14 Aug 2009 @ 4:29am
  
  Re:
  "If you want an analogy, this would be like telling someone that a copy of the book they're thinking of buying is available in the local library."
  
  Yes, and could imagine the uproar if every book in a bookstore suddenly had a label slapped on it to that effect? every time you picked up a book, someone tapped you on the shoulder and reminded you that you can read it at the library for free?
  
  "Any new action would require a lawyer's advice (if the plaintiff has any sense)"
  
  So what you are saying is that this would be a service that is no service to the intended PACER market, and might only lead to uninformed "morons in a hurry"? Sounds like a lawsuit waiting to happen.
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  - DanC (profile), 14 Aug 2009 @ 8:08am
    
    Re: Re:
    Yes, and could imagine the uproar if every book in a bookstore suddenly had a label slapped on it to that effect? every time you picked up a book, someone tapped you on the shoulder and reminded you that you can read it at the library for free?
    
    Except that in order for any of this to come about, someone has to install the extension - it's a user choice to install and use it, and since it's accessing public domain material, I'm not really sure where you're seeing a lawsuit.
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Bernard Gilroy (profile), 14 Aug 2009 @ 4:28am

No, it's not like that at all.
no different from standing in Starbucks and telling each person who orders a coffee not to pay, and giving them a bus ride to Mickey Ds.
No, it's more like someone putting a coupon in the phone book near the "fast food" section. You only see it when you're looking for it, it describes an alternative service, and all of this takes place in your
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Richard Ahlquist (profile), 14 Aug 2009 @ 5:33am

Ok so they are public domain but...
Is there a license agreement? Could it restrict this?

The internet archive idea is a good one. Another approach to something like this could be a good use of Peer to Peer technology. If a set of documents is scattered across several systems (with parity so that partial sets could be reconstructed like in a RAID drive array) then it could eliminate the single point of failure here for the archived copies.
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fat Tony, 14 Aug 2009 @ 5:34am

From a layman's perspective, it does sound like a worthy cause. As far as having out of date resources at hand: I can only imagine that once completed the VAST majority of case material is either not visited, not altered, or just not needed. If you have a case that is based on previous actions you will reference a case, but not change it.

I would think more useful would be a US Code Wiki with comprehensive breakdown referencing a parallel court records wiki. There seems to be a US law wiki...but it's usability is dubious. A true law only wiki with access to a complete casefile archive could potentially be very helpful to a portion of Americans. You know, if implemented well...
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duane (profile), 14 Aug 2009 @ 5:44am

No need for PACER-hatin'
It is important to understand that PACER is actually a reaction to something and not just some crazy scheme dreamed up by the government to make our lives more difficult.
1. Any information available in PACER is available for free if you go down to your courthouse. Yes you have to pay for copies, but where is that not the case? Also, just to look at documents is free.
2. PACER was developed as a reaction to the complaints of lawyers who were tired of paying people to go down to the courthouse and research stuff. This used to be a thriving small business for some. Now PACER lets the lawyers do it online and the charge is negligible when compared to the old way.
3. The price for PACER might seem high but if you spend less than $10 a year, they don't even charge you.
4. They've capped the prices at 30 pages max, so, for example, if you want a 30 page document it is $2.40. If you want a 50 page document it is $2.40.
5. Attorneys of record and parties in a case can get one free electronic copy of all documents filed electronically, in most cases.
6. Individual researchers associated with educational institutions and section 501(c)(3) not-for-profit organizations, among others, can be exempted from these fees.
7. Congress directed the judiciary to charge for the service and sets the fees.

What all this means is that the system actually tries really hard to do what it is supposed to -- make it easy for people who need the information to get it while making it hard for those who don't. Those who don't include data miners and crazy people with stalking (or worse) in mind. That is not groundless scare-mongering. My wife works in the bankruptcy court system and has seen instances of both.
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- Rich Kulawiec, 14 Aug 2009 @ 8:43am
  
  Re: No need for PACER-hatin'
  And much of what you say made some logistical and economic sense.
  But not any more. The cost of maintaining websites with static content (and all of this is -- that it, it's not active content with scripting) is plummeting by the day. Disk space is dirt cheap (note in passing that documents like this will compress amazingly well) and it takes very little CPU to serve them up.
  So a far better model for this service now would be for PACER central to maintain a non-publicly-accessible but privately-rsync-able master site, and then let 10 or 20 or 30 interested sites keep publicly-accessible mirror copies. Obviously the Internet Archive would do so; I'd imagine that some major law schools might do so as well. Maybe some law firms or state governments or public interest groups would as well. Anybody with a spare server and a chunk of disk laying around (as well as adequate bandwidth, note that requirement shrinks as number of mirrors expands) could do it.
  And dispense with the billing, because this model would shrink operational costs to the point where it just wouldn't be worth the overhead. (Not to zero, of course, but it's a one-person job to maintain a single master server and coordinate mirrors.)
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  - Anonymous Coward, 14 Aug 2009 @ 8:59am
    
    Re: Re: No need for PACER-hatin'
    Do you honestly believe the government has enough common sense to coordinate anything, no matter how simple?
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    - Anonymous Coward, 14 Aug 2009 @ 9:05am
      
      Re: Re: Re: No need for PACER-hatin'
      Do you honestly believe your attitude towards government will help things move in the slightest? Do you honestly believe that if you never hold anything up to a higher standard that it will one day assume a higher standard? Do you honestly believe anything you say?
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      - Anonymous Coward, 14 Aug 2009 @ 9:29am
        
        Re: Re: Re: Re: No need for PACER-hatin'
        Yes, because we all know the government is the most competent entity on earth. They always do everything with such effectiveness and efficiency and they always manage to surpass expectations by leaps and bounds.
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    - Rich Kulawiec, 14 Aug 2009 @ 9:44am
      
      Re: Re: Re: No need for PACER-hatin'
      Yes. Having recently worked (as a consultant) on very large government project that happens to involve facilitating public access to legislative, judicial, and executive branch data, I do. Is it being done perfectly, and completely efficiently, and at minimum cost? No. But it's being done reasonably well, and the results are quite impressive even to a cynic like me. I see no reason why a model like the one I've proposed or similar ones couldn't be handled in the same fashion.
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      - Anonymous Coward, 14 Aug 2009 @ 9:53am
        
        Re: Re: Re: Re: No need for PACER-hatin'
        "I see no reason why a model like the one I've proposed or similar ones couldn't be handled in the same fashion."
        
        It's not a bad model at all, but don't overestimate our government. If the government was competent enough to execute your model they would have done so by now. Lets see if it ever gets done and how long it would take for them to do anything. They're not competent enough, it won't be done. Propose it to them and it'll go well over their head, they won't get it done. If you think they're competent enough to do it then why not tell them about it, encourage them to do it, why are you telling us at techdirt. You're telling us, and not them, because you know that if you told them they won't do it, they're to incompetent and it'll fly over their heads. So you want to tell us so that we can try to encourage more government competency, the competency they currently lack.
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        Rich Kulawiec, 14 Aug 2009 @ 10:23am
        
        Re: Re: Re: Re: Re: No need for PACER-hatin'
        You're telling us, and not them, because you know [...]
        Please don't take the liberty of speaking for me; in case you cannot tell, I'm quite capable of speaking for myself, and have not authorized you (or anyone else) to do so on my behalf.
        You're telling us, and not them [...]
        I have already forwarded a link to this discussion, along with my own suggestion (augmented with some additional material) to the appropriate people -- in the government.
        
        Perhaps something useful will come of that; perhaps not. But I felt that was a better course of action than endlessly lamenting that government can't accomplish anything and failing to do my part -- as a citizen, and thus someone who is co-responsible along with all my fellow citizens -- to help government accomplish something.
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        Anonymous Coward, 14 Aug 2009 @ 10:28am
        
        Re: Re: Re: Re: Re: Re: No need for PACER-hatin'
        "I have already forwarded a link to this discussion, along with my own suggestion (augmented with some additional material) to the appropriate people -- in the government."
        
        Good, now lets see how long before something gets done. If the government is competent they will take your idea and do something with it. If they're incompetent (as I predict) they will either give you the run around, send you an E - Mail back with a caned response and ignore you and get nothing done, or they will simply ignore you.
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        Anonymous Coward, 14 Aug 2009 @ 10:31am
        
        Re: Re: Re: Re: Re: Re: Re: No need for PACER-hatin'
        So now we have an experiment. Is the government competent enough to take your idea and do something with it or are they going to either screw it up or not do anything with your idea and send you back a bunch of worthless e - mails.
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        Rich Kulawiec, 14 Aug 2009 @ 12:05pm
        
        Re: Re: Re: Re: Re: Re: Re: No need for PACER-hatin'
        It's also possible that my idea is a bad one. I don't think so (but of course I wouldn't), but it's still possible that there are any number of serious flaws in it that would turn up after due consideration. In that case, the best decision would be to try something else, of course.
        Incidentally, since the same people I'm corresponding with have already implemented some of my ideas (while rejecting others), I do expect to get back a cogent, focused response. It might or might not be one I like. But it certainly seems a more productive use of my time than (a) ranting about how government can't do anything while (b) failing to take any personal action to address the situation.
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        Anonymous Coward, 14 Aug 2009 @ 10:36am
        
        Re: Re: Re: Re: Re: Re: No need for PACER-hatin'
        Oh, and update us on your progress. Start a blog or something and give us the link, I'll even bookmark it.
        
        I can imagine what your blog will look like.
        
        _____
        August 2020.
        
        I'm still trying to get the government to do something and so far they have done nothing. But I haven't lost hope, I will prove their competency one day.
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        Rich Kulawiec, 14 Aug 2009 @ 12:10pm
        
        Re: Re: Re: Re: Re: Re: Re: No need for PACER-hatin'
        As I have already pointed out (in the comments above) I have not authorized you to speak for me. I haven't authorized you to write for me, either. And "fabricating deliberately weak positions for one's opponent in order to make it easier to critique them" is rather transparently disingenuous.
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        Anonymous Coward, 14 Aug 2009 @ 12:32pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: No need for PACER-hatin'
        It's called sarcasm. No one is pretending to be you.
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      - Anonymous Coward, 14 Aug 2009 @ 9:57am
        
        Re: Re: Re: Re: No need for PACER-hatin'
        So you proposed the idea Aug 14th, 2009 @ 8:43am. Lets see how long before it gets done. A year from now and it still won't get done. Why? They're too incompetent. Go propose the idea to the government. If you can't find the means to get their attention within a reasonable time, that's a product of their incompetency further proving my point. If you do get their attention they will probably give you a canned response in the form of an E - Mail and then ignore your idea because they are incompetent. Two years from now it still won't get done because they're too incompetent. Even if they manage to read your message and someone takes you seriously they will end up screwing it up somehow, almost guaranteed. We all know this.
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      - Anonymous Coward, 14 Aug 2009 @ 10:01am
        
        Re: Re: Re: Re: No need for PACER-hatin'
        I mean, your idea is nothing new. Everyone knows how to host websites and databases, it's not like you came up with some revolutionary idea that no one has ever thought of. It's been done for quite some time now. The only reason the government hasn't done it is exactly because they are too incompetent. That's exactly why two years from now it probably still won't be done no matter how much you encourage them (if you can even find the right person to tell because they have an incompetent bureaucracy that would simply give you the run around).
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        Anonymous Coward, 24 Jan 2013 @ 11:36am
        
        Re: Re: Re: Re: Re: No need for PACER-hatin'
        now, now, let's not get ahead of ourselves...
        
        there is no doubt that 'the gummint' in toto *can* be incompetent, but to reword a famous aphorism:
        do not ascribe to incompetence that which can be explained by greed and power-grabbing fictitious legal entities we call korporations (MORE important than mere human beings!)...
        
        *apparent* incompetence is THE number one strategy 'our' (sic) gummint can use to HIDE their corruption and perfidy...
        
        based on a true story...
        
        art guerrilla
        aka ann archy
        eof
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NullOp, 14 Aug 2009 @ 6:12am

Public records...
I applaud RECAP for putting public records in the hands of the public. Say what you want but we, as taxpayers, fund our government and all its many organs to the tune of billions of dollars a year. And then PACER comes along and resells the free info? And you think that's a good business model? Our public documents belong in the hands of the public not a private company selling you what you already own!
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Anonymous Coward, 14 Aug 2009 @ 6:14am

doh!
Got to love the terms of service given that the whole thing is based on the fact that court documents are p.d.:

CITP or its licensors own all right, title and interest in and to the RECAP Materials, including without limitation, all intellectual property rights.

https://www.recapthelaw.org/install/

I know it's just standard legalese, but you'd figure a bunch of smart guys from Princeton running a project like this could do better.
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- Tim Lee, 14 Aug 2009 @ 6:44am
  
  Re: doh!
  If you read more carefully, you'll see that "the RECAP Materials" means our software and website, not the public documents in the archive. We don't assert any copyrights over the documents. That's not quite the way I would have phrased it, but it's the language our lawyers recommended.
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  - Anonymous Coward, 14 Aug 2009 @ 7:00am
    
    Re: Re: doh!
    Thanks for the clarification tim!
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  - Jon B., 14 Aug 2009 @ 8:56am
    
    Re: Re: doh!
    I was thinking the same thing...
    
    Even open source advocates make sure to claim as much copyright as possible. Hard to enforce even a good copyleft license without the basic rights to do so. Doesn't mean you're a jerk for it.
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Ward Mundy, 14 Aug 2009 @ 7:17am

He Who Laughs Last
Don't forget who's going to decide any controversy pertaining to PACER... the same fine folks that thought it up in the first place.
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Anonymous Coward, 14 Aug 2009 @ 8:30am

"Basically, if you're a PACER user, you install the Firefox extension, and any documents you access via your PACER account automatically get uploaded to a public archive (hosted by the Internet Archive folks)."

Great, now anyone can hack the software and fake an upload with false information.
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diabolic (profile), 14 Aug 2009 @ 12:49pm

This sounds like a good idea but I am the only one that is bothered by "documents you access via your PACER account automatically get uploaded to a public archive"?

What is to prevent the RECAP plugin from confusing the PACER site with some other site and automatically uploading random content or private data to a public archive?

Don't take away my control of the data on my screen.
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johnf (profile), 10 Jan 2018 @ 8:41pm

RECAP
Unfortunately, the Free Law Project has decided to charge other organizations money to access RECAP documents, and it now denies access to organizations which refuse to pay. The new version of the RECAP plug-in only uploads documents to the FLP's own CourtListener site, while other sites, such as PlainSite and the United States Courts Archive, are no longer being updated. This decision was made in secret with no public discussion, and it was made despite the FLP's stated position that court documents should be free and freely available to everyone. For more information, please see https://www.plainsite.org/articles/20171130/why-plainsite-no-longer-supports-the-recap-initiative/
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