Tell me this, do you think public domain documents available through PACER today should, as a matter of principle, be available free of charge? And if not, why not?
I don't really care, to be honest. I don't think "free as in speech" needs to be "free as in beer." I don't have a problem with a modest charge for PACER documents, just as I don't have a problem with a modest charge for using the subway. If someone wants to make it their mission, I don't object.
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.
First, "outdated IT" is only part of the problem. The courts have had decades to upgrade their systems, and they have consistently refused for one reason or another. Upgrades are not free, but the cost justifications have been blown so far out of proportion that it's simply not possible for them to be genuinely concerned about cost. There is real reluctance to change on the part of powerful individuals.
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...
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."
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.
Allow me to continue in my paranoid ridiculousness then. :)
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.")
> 1. The California link you provided points to the California link I provided.
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...).
The slip opinions go back 120 days (or it looks like two years if you find the "older than 120 days" link). California caselaw goes back considerably longer than that. As you surely know, precedent works on the basis of age in part. Therefore, Lexis maintains control over the vast majority of opinions and those that are most important.
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.
First, Aaron didn't die for anything you just wrote about in your comment. He died of a terrible illness exacerbated by what was by all evidence wholly unexpected aggression by prosecutors.
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?
Lexis and West pay the courts for these documents. They are happy to pay the fees. The courts are happy to get the fees. Do you honestly think Lexis and West would be happier if the docs were free?
Who loses? The public.
The proceedings of the nation's government institutions should not be behind paywalls.
> Lexis and West pay the courts for these documents. They are happy to pay the fees.
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."
New opinions are online and are now free to download (U.S. District Courts). The appellate courts lag.
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.
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.
