Saturday, October 31, 2015

Free the Law: Democracy requires open court decisions

It is heartening to see that someone has noticed how most of our court documents and decisions are locked up behind a paywall and is willing to do something about it. For example, most federal court decisions and documents are locked up behind PACER, an electronic access system for the federal courts. As Brian W. Carver notes at the Free Law Project, The fees for use of PACER are high and not easy to predict during use, the user interface is very difficult to use and there is no accountability with the people who run PACER. In his words, there is no meaningful access to court documents for the average person.

Techdirt also brings word that Harvard University has recognized the problem of paywalled decisions online and has started a project, Free the Law (not to be confused with the Free Law Project mentioned above - similar goal, different people), to do something about it. Their goal? Make every U.S. and state court decision available online for free to anyone who wants it. Considering that we've had the internet around for so long, I'm surprised it took this long for someone, anyone, to make this a priority.

The Free Law Project, is set on making every document from these court cases in PACER available free to the public. The Free Law Project is a non-profit organization dedicated to "Providing free access to primary legal materials, developing legal research tools and supporting academic research on legal corpora", as their website attests.

If you're wondering why open court records are so important, consider the case of SCO v IBM. In 2003, SCO filed suit against IBM for copying UNIX code into Linux. Linux is a free and open source operating system which, as SCO put it, was for hobbyists until IBM came along and copied UNIX code into Linux, making that UNIX it freely available to anyone who wants to use it.

What does Linux have to do with you? If you're browsing the web, you're most likely accessing a server running Linux. If you have a cell phone, it's most likely running Linux. Got a smart TV? Linux. I use Linux at home for my computers. Most of the Fortune 500 uses Linux.

SCO saw this immense market building up on the use of Linux and wanted to charge $700 per server for commercial use of Linux at the start. IBM wanted to protect its reputation and fought the lawsuit with everything they had at their disposal and prevailed.

The lawsuit gave rise to the website, by far one of my favorite blogs when it was running (it is still there, and it's still a very useful resource). Pamela Jones was the creator of Groklaw and she brought news of the lawsuit every time SCO or IBM made a move. The lawsuit so enraged the Linux community that a small army of men and women worked together to get every document, every filing, anything that came out of the proceedings and put it online for anyone to see.

Groklaw brought intense scrutiny to the players in the lawsuit. Much analysis was brought forth as to the motives for the lawsuit, the most probable being that SCO wanted IBM to buy the company out and make them go away, but that didn't happen. SCO declared bankruptcy before IBM could get to their counterclaims against SCO. In the end, the amount of code found to be copied was so small as to be trifling, and it turned out that SCO didn't even own the copyrights to the code that was the source of their complaint. If not for Groklaw, we all might be paying much more to use Linux rather than getting a copy free if we wanted it. We might even be using Windows instead of Linux if Microsoft had their way.

We wouldn't know much of this without public access to court documents. Public access to the court documents made it easy to spread the word about what was happening. Public access also makes it easy to allow others to analyze the proceedings and to ensure that the proceedings were fair. But none of it was free. Everyone who contributed at Groklaw went down to the courthouse to get the documents, scan them, transcribe them to text and make it available online. It all took time, money and effort.

While the story of Groklaw concerns the documents, and the Free the Law project concerns the opinions produced by the courts, the point is the same. Free and open access to the law, from docket to opinion, is essential for democracy to function.

If the goals of the Harvard Free the Law project and the Free Law Project becomes a reality, anyone anywhere can look up a court case, get the opinion and the case file, and use it as they need to. Just about every city, every state and the federal government, make their laws and regulations freely available online. It's about time we made every court document and decision available online for free, too.
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