New Bill Calls For An End To PACER Fees, Complete Overhaul Of The Outdated System

from the pass-this-pls dept

The perennial make-PACER-free legislation has arrived. If you're not familiar with PACER, count yourself among the lucky ones. PACER performs an essential task: it provides electronic access to federal court dockets and documents. That's all it does and it barely does it.

PACER charges taxpayers (who've already paid taxes to fund the federal court system) $0.10/page for EVERYTHING. Dockets? $0.10/page. (And that "page" is very loosely defined.) Every document is $0.10/page, as though the court system was running a copier and chewing up expensive toner. So is every search result page, even those that fail to find any responsive results. The user interface would barely have been considered "friendly" 30 years ago, never mind in the year of our lord two thousand twenty. Paying $0.10/page for everything while attempting to navigate an counterintuitive interface draped over something that looks like it's being hosted by Angelfire is no one's idea of a nostalgic good time.

Legislation attempting to make PACER access free was initiated in 2018. And again in 2019. We're still paying for access, thanks to the inability of legislators to get these passed. Maybe this is the year it happens, what with a bunch of courtroom precedent being built up suggesting some illegal use of PACER fees by the US Courts system. We'll see. Here's what's on tap for this year's legislative session:

Representatives Hank Johnson (D-Ga.) and Doug Collins (R-Ga.) are hoping to drastically change all of the above with their bipartisan reform effort, the Open Courts Act (OCA).

The bill would make online access to federal court records free to the public. It also contains language that would effectively improve upon PACER’s current and wildly out-of-date search functionality, increase third-party accessibility to the entire system, and upgrade and maintain the database using modern data standards.

This is a good bill. It aims for something more than just free access. (To be honest, that would at least offset the frustration of subjecting yourself to PACER's hideous charms in an attempt to talk it out of some filings.) Free access is a necessity. At this point, the presumed openness of the court still hides behind a paywall, separating citizens from courtroom documents under the naive theory that it's impossible to give something away if it costs money to produce. (And that assumption ignores the tax dollars already earmarked for running the court system.)

This bill would also drag the PACER system (presumably kicking and screaming) into the future… or at least a much more recent past. The 1995-esque front end would be updated, along with all the other stuff that doesn't work well… which is pretty much everything.

It would be a bit more future-proofed. The bill [PDF] demands transparent coding that will incorporate "non-proprietary, full text searchable, platform-independent" elements. This means documents will finally be searchable by the text they contain, rather than limited to locating documents by finding the right docket and going from there. And this will hopefully fix another problem with PACER: search issues baked into the system by jurisdiction divisions. Each federal court has its own login page and, while it's possible to search all jurisdictions, it's far more likely you'll be dimed to death by useless searches before you find what you need.

But who's going to pay for this, I hear the US Courts system asking? Well, like any other FTP service, it will be mostly supported by whales.

On its own terms, the OCA would take two to three years to modernize the overall CM/ECF so that all court documents are searchable, readily accessible and machine-readable regardless of an end user’s browser setup. During this period, so-called institutional “power users” would still be subject to PACER fees–if they charge over $25,000 annually.

But not forever.

After that, fees would vanish entirely.

Will this be the bill that sticks? Maybe. Courts are finding the PACER system questionable -- not just the barrier it places between the public and court documents, but the uses of the fees as well, very little of which has actually been spent on improving PACER itself. If there's something almost everyone agrees with, it's that PACER sucks. Being asked to pay for the dubious privilege of using a barely working system is the insult piled on top of the $0.10/page injury.

Filed Under: court records, doug collins, hank johnson, pacer, transparency

Judge Alsup Slams Patent Troll For Basically Everything

from the don't-try-to-pull-a-fast-one-on-judge-alsup dept

Lots of folks probably remember Judge William Alsup from the Google/Oracle mess, in which he seemed to be one of the few reasonable people in the room, who actually took the time to understand the deeper technical issues. Alsup has quite a reputation for a number of other cases as well, and one thing that seems fairly clear is that you don't want to try to bullshit this judge who knows how to code on technical issues. You might recall in the Uber/Waymo fight, he also ordered both companies to teach him how LiDAR works and he made it clear that he wasn't messing around:

Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.

That brings us to a more recent case, involving notorious patent troll Uniloc -- a company we've written about a bunch in the past, mainly for its buffoon like attempts at patent trolling. This includes suing over the game "Mindcraft" (the trolls were in such a rush to sue, they didn't notice it was actually "Minecraft"), and a weak attempt to patent basic math. All the way back in 2011, we wrote about Uniloc getting smacked down by the Federal Circuit for pushing a ridiculous way of calculating patent damages.

It appears that in the intervening years, Uniloc hasn't given up any of this. The company keeps buying up more patents and suing lots of companies -- including Apple, which it has sued multiple times. One of those lawsuits was filed back in 2017. In response to this lawsuit, Apple argued that Uniloc didn't actually hold the right to sue over the patent. Ridiculously, Uniloc demanded most of the details be blacked out, arguing that it was "confidential."

It sounds like a situation not unlike the Righthaven situation from a few years ago, where the "real" holder of the patent (or, in Righthaven's case, the copyright) retained real ownership, but created a sham transfer whereby the suing company (in this case Uniloc) really only had the right to sue, and was disconnected from the actual right to license the patent. But, it's difficult to tell for sure, given all the black ink.

EFF got involved to protest this, and back in January Judge Alsup agreed that Uniloc couldn't hide this info. Since then, Uniloc has been trying to convince Judge Alsup to change his mind, with a ton of filings (and a few hearings) back and forth on this issue. Earlier this week Judge Alsup more or less rejected every argument Uniloc made, even going beyond the question of redacting info.

In short, Judge Alsup says he got it right the first time, and the public's right to know outweighs any concern Uniloc has for giving up its "secret sauce."

This order reiterates the prior order denying plaintiffs’ initial request to seal: generalized assertions of potential competitive harm fail to outweigh the public’s right to learn of the ownership of the patents-in-suit, which patents grant said owner the right to publicly exclude others.... It also reiterates that this is particularly true where, as here, the public has an especially strong interest in learning the machinations that bear on the issue of standing in the patent context. Furthermore, the United States government bestows entities such as Uniloc the right to control the use of the purported inventions at issue. Because Uniloc’s rights flow directly from this government-conferred power to exclude, the public in turn has a strong interest in knowing the full extent of the terms and conditions involved in Uniloc’s exercise of its patent rights and in seeing the extent to which Uniloc’s exercise of the government grant affects commerce.

In other words, a patent grants you tremendous power to exclude in exchange for the public revelation of what you've invented. Uniloc shouldn't be able to conduct its business in secret.

Alsup also notes that Uniloc doesn't even come close to justifying the reasons for its requested redactions other than a general "oh, but it will hurt our business."

... plaintiffs’ supposed risk of (still) generalized competitive harm in future negotiations from disclosure did not and does not compellingly outweigh the public’s interest in accessing this information for the reasons stated above

Alsup mocks Uniloc's reference to other patent suits (including Apple v. Samsung) in which some information was redacted by noting that that was a totally different situation involving actually confidential information from companies selling actual products, not just trolling.

Plaintiffs’ reliance on Apple Inc. v. Samsung Electronics. Co. Ltd., ... is unavailing, inasmuch as the parties there sought to seal product-specific financial information (such as costs, sales, profits, and profit margins), as opposed to the licensing-specific financial information at issue here.... Plaintiffs here have no products to sell and thus their (alleged) risk of competitive harm is entirely distinguishable from that in Apple.

A few other areas where Uniloc sought to hide info, Alsup dismisses by pointing out that a "boilerplate assertion of competitive harm fails to provide a compelling reason to seal."

And that's not all that Alsup appears displeased with Uniloc over. Remember earlier when I talked about Uniloc running into trouble years back for using a nutty formula for trying to calculate damages? Well, Alsup notes that redacting all this info might help Uniloc hide "reasonable royalties" from being used in damage calculations, and calls out "vastly bloated figures."

The impact of a patent on commerce is an important consideration of public interest. One consideration is the issue of marking by licensees. Another is recognition of the validity (or not) of the inventions. Another is in setting a reasonable royalty. In the latter context, patent holders tend to demand in litigation a vastly bloated figure in “reasonably royalties” compared to what they have earned in actual licenses of the same or comparable patents. There is a public need to police this litigation gimmick via more public access. We should never forget that every license has force and effect only because, in the first place, a patent constitutes a public grant of exclusive rights.

Once again, the message is: don't try to bullshit Judge Alsup, especially on technical issues. Now, hopefully, we'll finally see the details of Uniloc's agreements over these patents, and why exactly Apple thinks Uniloc really has no standing to sue.

Filed Under: court records, damages, ownership, patent trolls, patents, redactions, seal, transparency, william alsup
Companies: apple, uniloc

Federal Circuit Agrees To Speed Up Publication Of Court Documents After EFF Complaint

from the broadband-world,-dial-up-court-system dept

A small but significant win for transparency has been obtained by the EFF. As we're all well aware, the federal courts often seem to be at odds with the First Amendment they're supposed to be upholding by allowing plaintiffs -- especially the government -- to seal filings, if not entire dockets, with alarming regularity.

Lots of these are tied to the government's law enforcement work. But some of it has to do with disputes over intellectual property the public already has access to. Patent cases see an inordinate amount of document sealing, taking a lot of the "public" out of "public court system." There's a presumption of openness that's supposed to apply across the board. The government gets around this by making claims about national security or law enforcement means/methods. But in patent cases -- where the underlying patents are already accessible to the public via the USPTO's website -- the Patent Trial and Appeal Board's (PTAB) frequently allows filings to be sealed.

Making things even more opaque (if only temporarily), the Federal Circuit (which presides over the PTAB) has been delaying the public release of documents for several days, despite all courts relying heavily on an electronic filing system. This isn't just a problem for members of the public who expect filings to appear in a timely fashion. It's also a problem for litigants, as the EFF points out:

The court’s current practice is to docket briefs as “tendered” when they are first filed and to disable public access until the briefs are accepted by the Clerk’s Office. This sometimes leads to briefs being withheld from the public for more than a week.

While this may not seem like a big deal, the public’s right of access to courts includes a right to timely access. The delays at the Federal Circuit mean that briefs sometimes don’t become available until after supporting amicus briefs are due. Amici are encouraged not to duplicate party briefs, but that’s a challenge if they can’t read the party briefs in time.

The EFF sent a letter to the Federal Circuit, informing it that this system that didn't do any favors for the public it's supposed to serve. It never received a direct answer, but it appears the Federal Circuit did listen to the EFF. A policy change that took effect at the beginning of August removes the bizarre waiting period between filings and their accessibility via the Federal Circuit's site.

Earlier this month, the Federal Circuit announced a new compliance review policy. While that new policy [PDF] doesn’t specifically mention the practice of withholding briefs as “tendered,” we have confirmed with the Clerk’s Office that briefs are now available on PACER as soon as they are filed. Our review of recent dockets also suggests that briefs are now available to the public right away.

This fix follows on the heels of the other fixes by the Federal Circuit which force litigants to respect the presumption of openness. The Federal Circuit's bar for sealing documents is likely the strictest in the federal court system: litigants have to file a separate motion if they want to seal more than 15 words in any filing, much less the filing itself. Hopefully, other federal courts will follow this lead and force litigants to show their work if they're seeking to render a presumptively transparent process opaque.

Filed Under: cafc, court records, federal circuit, public documents, transparency
Companies: eff

PACER Officials Give Weak, Nonsensical Excuse For Why PACER Deleted Tons Of Public Court Records With No Notice

from the total-failure dept

We were among the first to report that the federal court system's PACER electronic database of court records had deleted a ton of old cases, and once our story went live, we saw a ton of lawyers, law professors and journalists flip out over the news, which had been hidden in a little-read notice on the PACER site, posted with basically no notice at all. The Washington Post got the Administrative Office of the US Courts to provide a statement about the deletions that makes almost no sense at all.

Charles Hall, a spokesperson for the Administrative Office, told The Post via e-mail that the change was made on Aug. 11 in preparation for an overhaul of the the PACER architecture, including the implementation of the next generation of the Judiciary's Case Management and Electronic Case Files System. "NextGen replaces the older CM/ECF system and provides improvements for users, including a single sign-on for PACER and NextGen," he wrote.

However, as a result of the changes the locally developed legacy case management systems of some courts were no longer compatible with PACER, he says. Since PACER works as a sort of distributed network of different archives rather than one centralized database, that's a major problem.

However, Hall says, the dockets and documents no longer available through the system could still be obtained directly from the relevant court and "all open cases, as well as any new filings, will continue to be available on PACER."

Yes, I can understand how there might be some backwards compatibility problems, but it seems like there's a pretty straightforward way to deal with that: move the old files to the new system. But no one seems to be doing that. The claim that it's okay because the documents are available "directly from the relevant court" is a ridiculous, weak excuse. The whole point of PACER was to make the records more accessible and to get away from having the documents only available to people who have the time and resources to go down to the local court to get the documents.

The Washington Post also spoke to Brian Carver from UC Berkeley's School of Information, who recently took over the management of RECAP (the crowd-sourced effort that many of us rely on and contribute to) to post any documents obtained via PACER to the freely available web via the Internet Archive. He made a pretty good point, that it's absolutely ridiculous that no one at the courts made this information public earlier so that people could try to do something to preserve the availability of those case records:

Carver says their group would be happy to host the files publicly, and are reaching out the courts to see if that is possible. But he was still shocked by the lack of advance warning. "If we had known about it in advance maybe we could have done something to target these documents and archive them publicly," he says. "It was really an announcement of an accomplished feat -- we weren't told until after this deed was already done."

Meanwhile, Aaron Greenspan, who runs another site that makes court documents publicly available, PlainSite, (and who first alerted us to this issue), has sent the Administrative Office of the US Courts a response to this, pointing out, as we mentioned above, how ridiculous it is:

The supposed explanation that the dockets and documents were stored in an "incompatible" format is nonsensical and has no technical justification whatsoever. As you well know, database schema changes happen all the time, and it is easily within the realm of possibility to write conversion scripts—especially given how much money the AO has spent on PACER NextGen already. In fact, the technology known as ODBC exists for this very reason.

He further has offered to "reverse-engineer the supposedly legacy format(s) ourselves and make the data available to the public for free at no cost to the Government" and even asked them to ship the hard drives to him. Somehow, I doubt that's going to happen, but it seems like working with Carver or Greenspan or anyone else, frankly, would have made more sense than just deleting these public records.

Update: And... Carl Malamud of Public.Resource.Org has sent letters to all of the courts that had cases deleted, requesting copies of the deleted cases. We'll see how that goes.

While it's great that PACER is apparently moving to a new system (the login page is already different, though the underlying pages still remain horrifyingly painful to use), dumping a bunch of cases down the memory hole is a huge problem.

Filed Under: administrative office, court records, courts, pacer, public records, recap
Companies: plainsite

California Makes A Move To Further Separate The Public From Its Public Records

from the our-paywall-now-insurmountably-higher! dept

The fact that the public is still charged fees to access public records already seems rather questionable. After all, the creation of these documents is paid for by taxpayers. Keeping them locked up behind a governmental paywall often seems like double-dipping.

It's time to add one more to the list of government entities continuing to separate the public from public records with access fees. This time it's the state of California manning the ratchet.

A proposal to drastically increase fees for the public and press to look at court records is still up in the air after divergent votes from the California Senate and Assembly.

The fee, embodied in trailer bill language supported by the governor, the Judicial Council and its administrative arm, will inevitably restrict access to public documents and has raised an outcry from newspaper publishers and open-government advocates.

California courts already charge $15 for searches of court records that take more than 10 minutes.

The proposal from the Administrative Office of the Courts and backed by Gov. Jerry Brown would have the state charge $10 for every name, file or information that comes back on any search, regardless of the time spent.

$10 a search result? Granted, this would be an in-person, human-powered search at a courthouse, but this is ridiculous. Those pushing this increase have offered several different rationales for the increase (curb data mining, raise money, clerks not equipped with stopwatches), but have been completely unable to project whether this increase will offset the (apparently) increased costs.

One argument against the fee is that its advocates have not been able to tie it to an actual dollar amount, a fact admitted in a Judicial Council report that said: "The amount of revenue this proposal will bring in is impossible to estimate."

It's a government thing. Take a vague feeling that the public is draining public services of money and use this non-estimate as justification for a rate hike. Meanwhile, supporters will likely continue to count unhatched budgetary chickens without considering the worst case scenario (which is also the most common scenario associated with tax hikes). Jim Ewert of the California Newspaper Publishers Association points out what should be obvious to lawmakers at this point:

"...[I]f it's adopted there is going to be very little additional funding, because people just aren't going to make the request. There's going to be even less understanding of government court activities. It's very shortsighted."

You raise the price, you get fewer purchasers. Government services aren't that much different from retail services, especially when the "consumer" is paying directly.

So, how does something this unpopular (at least with open government advocates and the press) get as far as this did? Easy. All you have to do is move quickly and exclude interested parties from the discussion.

The votes in both houses were taken at budget subcommittee hearings dealing with a host of judicial branch issues. There was no debate or discussion at either hearing.

The Assembly committee rejected the fee increase. The Senate committee approved it, with a stipulation that members of the press be exempt. There is no language, at this point, on what a press exemption would entail.

There's an exemption, but no one outside of the involved legislators has the details. What seems to be certain is that fees will be increasing, something a cash-strapped government like California's would be unlikely to reject. At this point, the fee increase is scheduled to head to a conference committee for further discussion. Ewert hopes this one will actually involve the public.

Ewert said he hopes lawmakers will give the CNPA and other press and freedom of information groups the opportunity to provide input.

"[I]t's just a bad idea to deny access to records that the public has already paid for, and shield the public from an institution that it already has very little understanding about."

As Ewert points out, this rate hike will only increase the distance between the public and the records they should rightfully have access to. Worse, it will disproportionately affect citizens with limited income. This increase, if passed, will not only allow the state to tax its constituents multiple times for the same records, it will turn public record access into a privilege, rather than a right.

Filed Under: california, court records, fees, public records, taxpayers