Articles Tagged with free law

By now, you’ve all read that Justice Antonin Scalia made a series of mistakes in the dissenting opinion of EPA v. EME Homer City Generation, L.P. The Supreme Court issued a corrected version of the opinion on its website. For more on the story, read the coverage in the WSJ Law Blog, the Volokh Conspiracy, or SCOTUSBlog. They’ll give you the background – this post will discuss publishing implications, and why it’s problematic that the Court doesn’t notify the public when they make revisions to opinions.

Here’s how the Supreme Court’s electronic publishing process works. The first version of the opinion, called the bench opinion, is released in XML format to a handful of publishers (the “Project Hermes” feed). Later that day, a PDF version – the “slip opinion” – is released on the Court’s website. The slip opinions may be further edited, and then the official opinions are published in the bound volumes as citable opinions.

The Supreme Court’s website issues the following disclaimer about the slip opinions found therein:

Caution: These electronic opinions may contain computer-generated errors or other deviations from the official printed slip opinion pamphlets. Moreover, a slip opinion is replaced within a few months by a paginated version of the case in the preliminary print, and–one year after the issuance of that print–by the final version of the case in a U. S. Reports bound volume. In case of discrepancies between the print and electronic versions of a slip opinion, the print version controls. In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.

The Court occasionally issues new versions of slip opinions, but they don’t always notify the public when they do so.  Professor Emeritus of Cornell Law School and legal information expert Peter Martin has written about this, noting that most changes are for minor typographical errors. However, there have been instances where a significant change was made:

Far more recent history includes the removal of a lengthy footnote from the majority opinion in Skilling v. United States, 561 U.S. 358 (2010).  The slip opinion file now at the Court’s web site carries no notice of the revision beyond the indication in the “properties” field that it was modified over two weeks after the opinion’s filing date.  To see the original footnote 31 one must go to the CourtListener site or a collection like that of Cornell’s LII built on the assumption that a slip opinion distributed by the Court on day of decision will not be changed prior to its appearance in a preliminary print.

The changes made to Scalia’s dissent in EME Homer were arguably significant. They were also very public. As far as I can tell, it was Law Professor Richard Lazarus who first discovered the error. He blogged about it, it was picked up by national news, and that’s why we know that the change was made. The Supreme Court notified Professor Lazarus of the change, but there is no mention of it on their site. They simply swapped opinions.

HT to Professor Peter Martin who posts in his blog, Citing Legally, the news that, as of January 1, 2014, “sixty years after the Oklahoma Supreme Court designated the West Publishing Company as the ‘official publisher’ of its decisions, it [has] revoked that designation.”  Going forward, the electronic versions of Oklahoma appellate court decisions rendered after January 1st and posted on the State’s Court Network are now deemed “official.”  Read more of Professor Martin’s post here.  Way to go Oklahoma — You’re O-K!

Josh Tauberer recently announced the release of “Open Government Data: Best Practices Language for Making Data ‘License Free.’ That document sets forth recommendations for federal agencies issuing data, and sample Creative Commons Zero (public domain) licensing statements.

In the memorandum, Mr. Tauberer and his colleagues discuss how open licensing protocols can be applied by various federal government authors—agencies in house, through contractors, or a mix—to different outputs, such as codes, laws, reports, etc. The overriding principle is that because the federal government’s material is not subject to copyright protection, a CC0 license will make it clear to users that the government disclaims its copyright.

When contractors are involved, things get a little more complicated: “Works produced under a contract with the government may be subject to copyright protection. Any such contract should specify that any copyright in the work is transferred to the government.” Transferring the copyright to the government, of course, obviates it, as federal government works are not subject to copyright protection under the Copyright Act. For mixes of government and non-government works, they recommend that “non-governmental contributors be required to waive copyright protection to their submissions,” which is another way of bringing taxpayer funded government work product into the public domain. This shouldn’t be a controversial proposition, but we’ve seen what happens when private standards are incorporated by reference into law.

The Administrative Office of the Courts announced yesterday that FDSys will now include opinions from 64 federal courts.  The program to integrate federal court opinions into FDSys began in 2011.  In 2011, they added opinions from 12 courts. In 2012, they increased that number to 28 courts.  In February of this year, they announced that they were expanding the program. And now we know they have increased the number of courts to 64. According to today’s press release, they are backfilling some jurisdictions, putting in an archive back to 2004. They claim to have 750,000 opinions in FDSys now.

According to the statement, “FDsys currently contains opinions from 8 appellate courts, 20 district courts, and 35 bankruptcy courts.”  To put this in perspective, there are 17 circuit courts, 94 district courts, and 195 bankruptcy courts.  All together, they are pulling opinions from 63 of 307 federal courts (roughly). That’s 21% of the federal jurisdictions in 3 years.

As usual, I feel compelled to say “it’s great that they’re doing this, BUT”—they’re focusing on the wrong things. Why are they pulling documents from district courts and bankruptcy courts? The case law that most people care about is appellate opinions that create precedent.  In federal jurisdictions, this means the Circuit Courts of Appeal and the United States Supreme Court.  FDSys has no SCOTUS opinions (which are freely available on the Court’s site), and only about half of the Circuit Courts of Appeal.  Some district court opinions are interesting and useful, and I suppose the same is true for bankruptcy court opinions, but why are they being added ahead of the Supreme Court? 750,000 documents is a lot—my guess is they’re pulling in random orders and rulings that are part of the public record but not especially useful in legal research.

Courthouse News reported this week on the “land grab” in California’s local court systems. When the courts announced last year that they were killing the CCMS (California Case Management System), vendors pounced on the opportunity to provide contracted solutions in its place. CCMS was a project started by the California courts over ten years ago. It was intended to link all of the county and state courthouses together into a centralized docketing system. As Courthouse news reports, however,

The massive CCMS project was deep-sixed last year by the Judicial Council under pressure from the Legislature, after the Administrative Office of the Courts had spent $520 million in taxpayer money over ten years on a project that was nowhere near completion and carried a projected price tag of $1.9 billion.

Now that CCMS is dead, Courts are turning to the private sector to update their docketing systems, which languished while waiting for the new system. Three bidders have emerged as candidates for the new systems: New Mexico-based Justice Systems Inc., Texas-based Tyler Technologies, and Pennsylvania-based LT-Tech owned by Thomson Reuters (formerly West Publishing). According to Courthouse News, “The deals have three basic financial components, licensing and installation for millions of dollars, yearly upkeep for hundreds of thousands of dollars, and, a golden egg, the right to charge lawyers a fee, generally around $5, for every document electronically filed.”

California is proposing to charge citizens to access and read court files and other public documents. The Administrative Office of the Courts has proposed that the state charge $10 for every name, file, or information that comes back from a search. Techdirt has the story. Charging for search results – where have I heard that before?

VoxPopuLII has a great post from few days ago about access to published court opinions by the guys at Ravel Law. In their post, they discuss the de facto privatization of the law, and how to effectively change that. It’s a concise, organized overview of the problem and solution.

President Obama issued an executive order last month calling on the federal government to open access to public documents by making them “open and machine readable.” He called on government information to be “managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable.”

Well, I can think of a huge dataset waiting to be opened: case law from the US Federal District and Appellate Courts. Right now, some of the case law is published in slip format (the unofficial decision) in FDSys. It is machine readable, and contains metadata – both good things, consistent with this directive. However, it’s not official. If we are to take the White House mandate seriously, the official, published case law (issued by a private publisher), should be hosted in FDSys. This would make it “usable” under the Order.

In support of this move, President Obama references the release of government GPS and weather data, which encouraged entrepreneurs to create applications and tools of value to the American people.

California Assemblyman Brian Nestande (R-42nd Dist.) has put forth a bill to apply a Creative Commons License to the California Code of Regulations (CCR). According to Mr. Nestande’s site, “AB 292 will provide that the full text of the California Code of Regulations shall have an open access creative commons attribution license, allowing any individual, at no cost, to use, distribute and create derivative works based on the material for either commercial or noncommercial purposes.”

Right now, the Office of Administrative Law (OAL) owns and publishes the CCR. The OAL was created by Cal. Gov’t Code §11340. Cal. Gov. Code §11343 et seq governs the filing and publication of the Cal. Code Regs. The Office of Administrative law collects the regulations from issuing agencies, and after notice, sends them to the Secretary of State for certification. The OAL is then charged with providing for the “or the official compilation, printing, and publication of adoption, amendment, or repeal of regulations, which shall be known as the California Code of Regulations.” (Cal. Gov’t Code §11344(a)).

Section 11344.4(a) also allows them to sell the CCR: “The California Code of Regulations, the California Code of Regulations Supplement, and the California Regulatory Notice Register shall be sold at prices which will reimburse the state for all costs incurred for printing, publication, and distribution.”

The OAL currently contracts with Thompson West/Barclay’s to publish the official version of the CCR. According to Mr. Nestande’s office, the OAL licenses the CCR to West for $400,000 per year, plus 7% of all royalties. [The office did not have a copy of the latest contract, but you can see the contract for 2009-2012 here]. We don’t how much it would cost to produce the CCR in house, but it’s not a stretch to imagine that the OAL is turning a profit on this deal – which seems to be outside the scope of its charter in 11344.4. Mr. Nestande’s office points out that this creates a conflict of interest for the OAL – “As more businesses are covered by new regulations, more businesses need to purchase access to those regulations from Thomson, and OAL derives a larger profit.  This makes it difficult to be truly objective when approving new regulations, if it directly benefits from expanding the state’s regulatory burden.”

I think the bigger conflict of interest is that Cal Gov’t Code §11344(a) requires the OAL to post the CCR’s online for free, but their incentive for profit is interfering with the public’s ability to view and use those regulations. The CCR is hosted online by Westlaw. They are papered over with disclaimers (“The Official California Code of Regulations is available in looseleaf printed format from Thomson – West / Barclays (1-800-888-3600)) and copyright statements (© 2013 Office of Administrative Law for the State of California;” “Use of all or part of the data displayed on this site for commercial or other unauthorized purposes is prohibited.”). The regs on the site are not indexed by Google, and users cannot download or copy them without violating the copyright. What’s more, they’re not official. The Bluebook requires you to cite to the official version, which is the Westlaw Compilation.

There’s another absurdity in the status quo: Westlaw actually sells copies of its Compilated Regs to other state offices. You know, state regulatory offices that devised the regs to begin with. According to the Assemblyman’s office, “Nearly all state agencies and departments purchase the compilation from West, in addition to hundreds of trade associations, and individual business owners that purchase single section subscriptions.”

Last week, Public.Resource.Org, through their counsel at the Electronic Frontier Foundation, filed an action for declaratory judgement against the Sheet Metal and Air Conditioning Contractors’ National Association, Inc. [SMACNA]. In its complaint, Public.Resource.org asserts that since SMACNA’s copyrighted standards were explicitly incorporated into federal and state law, they have become part of the public domain and are no longer subject to copyright restrictions.

This saga began when Carl Malamud of Public.Resource.Org began buying copies of privately issued, copyrighted building codes and putting them up online. These codes were incorporated by law into federal and state statutes, so Carl believed that they should be publicly available – a  proposition we agreed with.

When Attributor, an agent for SMACNA, discovered the codes on Public.Resource.Org, they sent a DMCA takedown notice. Public.Resource.Org now seeks a declaratory judgment from the federal courts that it is not infringing. It asserts that since these standards were incorporated by reference into federal law, the manual is now “the law of the United States and compliance with the 1985 manual is mandatory,” and thus is part of federal law – which is not subject to copyright.

Two legislative crowdsourcing efforts came across my desk today: OpenPACER and Fork the Law. I love the idea of collective effort to make laws.

The government has tried this to some extent with Regulations.gov. There, you can sort, view, and comment on proposed regulations. An even better iteration of this is GovPulse, a site that was created in the private sector to categorize and search proposed regulations. GovPulse encourages users to comment and contact their representatives, but it’s not an official comment site.

OpenPACER and Fork the Law are something entirely new, however. They are created by citizens for citizens in order to change the law. If you’re reading this blog, you probably already know about PACER and efforts underway to eliminate the paywall. The folks at RECAP (a PACER recycling tool) have started OpenPACER to solve this problem legislatively. You know that saying “There ought to be a law?” – well, OpenPACER is acting on that by proposing legislation to “provide free and open access to electronic federal court records.”