PACER, RECAP, and Federal Court Filings

Jonathan Zittrain of the Harvard Law School posted the following on the Cyberprof ListServ. Think about the intellectual property law issues that are raised and how they might be analyzed and resolved.

http://recapthelaw.org/

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Transparency is a fundamental principle of our legal system. Since the 1980s, the cutting edge of judicial transparency has been PACER, an electronic system that allows attorneys and the general public to access millions of federal court records. PACER was a big step forward when it was originally created, but lately it has begun to show its age. At a time when the other two branches of government are becoming ever more subject to online scrutiny, the judicial branch still requires citizens to provide a credit card and pay eight cents a page for its documents. For reasons we detail on our "Why It Matters" page, we think this needs to change, and the sooner the better.Today we're excited to release the public beta of RECAP. RECAP is an extension to the popular Firefox web browser that gives PACER users a hassle-free way to contribute to a free, open repository of federal court records. When a RECAP user purchases a document from PACER, the RECAP extension helps her automatically send a copy of that document to the RECAP archive. And RECAP saves its users money by notifying them when documents they're searching for are already available for free from the public archive.RECAP is a project of the Center for Information Technology Policy at Princeton University. It was developed by Harlan Yu, Steve Schultze, and Timothy B. Lee, under the supervision of Prof. Ed Felten. Some of the key ideas that inspired RECAP are described in this paper, written by Harlan, Ed, and two of their colleagues.The RECAP repository is hosted by the Internet Archive, a world- renowned online library. With the help of RECAP users, we want to build the nation's most comprehensive public archive of freely- available federal judicial records. And we're looking for partners to help us build the archive more quickly and find new, innovative uses for the information. We are already working with Justia and public.resource.org to integrate the public records they already have into our archive.If you're convinced that you'd like to be a RECAP beta tester, please check out our privacy policy and then head to our installation page to get started. With your help, we can make the dream of free public access to court records a reality.

 

Some possible issues: 

(1) Among the filings in a litigated district court case (briefs, affidavits, evidentiary papers, judicial opinions, etc.), which if any are copyright protected?  Optional reading:  Ralph D. Clifford, Intellectual Property Rights in an Attorney's Work Product, 3 Trends & Issues in Intellectual Property 1 (2008).  See also an exam problem in copyright from fall 1994.
(2) If a given filing is copyright protected, does the RECAP system itself or any individual user (uploader or downloader) infringe copyright, at least prima facie?
(3) What defenses might be available for any such prima facie infringement?  Does the government in operating PACER have defenses that are not open to private parties (commercial or noncommercial)?  Do the merger or idea/expression doctrines play any role?
(4) If fair use is part of the defense, do we distinguish between litigants in the same case, litigants in other cases, noncommercial uses by private parties, public but noncommercial archiving (such as RECAP), and public commercial archiving?