from the public-domain-fail dept
It seems like we're hearing about more and more attempts by the courts to scare people away from RECAP. Lawyer Michael Barclay sent over the following text he saw when he logged into the PACER system for the District of Massachusetts federal court, which goes so far as to tell people who are accessing PACER on a "fee exempt" account that they're forbidden to use RECAP:
NOTICE FOR PACER FEE-EXEMPT USERSThat part where they say that fee exempt folks are barred from using RECAP had me scratching my head. Could the courts legally do this? According to the PACER FAQ:
The court would like to remind fee-exempt PACER users of the terms of the exemption and of potential issues associated with a new software application called RECAP. It was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. A fee exemption applies only for limited purposes. Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court. Therefore, fee exempt PACER users must refrain from the use of RECAP. The prohibition on transfer of information received without fee is not intended to bar a quote or reference to information received as a result of a fee exemption in a scholarly or other similar work.
NOTICE FOR CM/ECF FILERS
The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or .plug-in. called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted or sealed documents. Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised. The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.
A court may, for good cause, exempt persons or classes of persons from the electronic public access fees, in order to avoid unreasonable burdens and to promote public access to such information.Um. If it is supposed "to promote public access to such information," shouldn't they be encouraging the use of RECAP for fee exempt folks? In digging around, I also found the identical notice to what's on the D.Ma. site -- and while there's no date on it, on the listing of announcements it's a few below March of 2010 -- so this particular statement may actually be a few years old. Either way, it seems troubling that PACER is trying to restrict the use of RECAP and claiming that certain users are forbidden from using it. I don't see how they have the right to do that. Along those lines, after being pressed on the subject back in 2009, the court system stated that the federal court system is fine with RECAP, so I'm a bit confused (and troubled) by the conflicting messages.
Is the federal court system really trying to tell people they can stop them from redistributing public domain info?