The Internet Archive has long supported the efforts of the Free Law Movement to make the laws and edicts of government of the United States more broadly available. With our colleague Aaron Swartz and the efforts of numerous groups across the country including the Free Law Foundation and Princeton’s Center for Information Technology Policy, we host the RECAP repository of documents from the federal district courts. Many of these public domain document were downloaded by users of the goverment’s PACER system for $0.10 per page and uploaded to the Internet Archive. The RECAP repository is available for free, and in bulk, which is useful for researchers.
On Tuesday, February 14, the U.S. Congress will hold the first hearings in over a decade examining the operation of the PACER system. The hearing will be before the Subcommittee on Courts, Intellectual Property and the Internet of the Judiciary Committee in the House of Representatives. The Internet Archive was pleased to accept the committee’s invitation to submit a statement for the record and we have submitted the following, which includes an offer to host the PACER data now and forever to make the works of our federal courts more readily available to inform the citizenry and to further the effective and fair administration of justice.
Our courts must function in the light of day, and in this day and age that means on the Internet. The Internet Archive is happy to try to help.
February 10, 2017
The Honorable Darrell Issa, Chairman
The Honorable Jerry Nadler, Ranking Member
Subcommittee on Courts, Intellectual Property and the Internet
Committee on the Judiciary
House of Representatives
Washington, DC 20515
Dear Chairman Issa and Ranking Member Nadler,
Thank you for the opportunity to submit comments on the Judiciary Committee’s hearing entitled “Judicial Transparency and Ethics.” I write on behalf of the Internet Archive, a non-profit digital library that is based in San Francisco with facilities throughout the world.
For more than 20 years, the Internet Archive has been archiving digital collections and making them available at no cost and with no restriction on the Internet. The Internet Archive works with the Library of Congress, the National Archives, and numerous national libraries around the world to collect, store, and provide permanent access to millions of books, videos, audio and hundreds of millions of pages of U.S. government documents, including over 14,000 hours of video of Congressional hearings.
By this submission, the Internet Archive would like to clearly state to the Judiciary Committee, as well as to the Administrative Office of the U.S. Courts and the Judicial Conference of the United States, that we would be delighted to archive and host—for free, forever, and without restriction on access to the public—all records contained in PACER.
People download more than 20 million books from the Internet Archive each month. We preserve 1 billion web pages each week for public access through the “Wayback Machine.” Indeed, the Wayback Machine is the only publicly accessible archive of all the websites of Congress. At any given moment, we are delivering about 30 gigabits of data per second. We host more than 20 petabytes of data in total.
By comparison, the PACER corpus is a fraction of a petabyte and does not use a significant amount of bandwidth. We have the capacity to host this information, and I know there are many other organizations on the Internet who would be able to make dramatic increases in the usability and utility of our Federal Judiciary’s database if it were made available in a more modern fashion and without artificial restrictions on use.
The stated purpose of PACER is to make public court records “freely available to the greatest extent possible.” Sixteen years ago, the United States Courts predicted that PACER would allow the public to “surf to the courthouse door on the Internet.” Today, anyone visiting a federal courthouse can view the public record for free. PACER, on the other hand, charges users per-page fees that are prohibitive for many members of the public. The Judiciary could resolve this unfortunate discrepancy—immediately—at no cost. This is our offer.
The Internet Archive has deep experience with collections of this kind. In fact, we already host the records from over a million federal court cases that have been donated by the public as part of the RECAP Project. However, a million cases is a small portion of the hundreds of millions of cases that PACER contains, and we are frustrated that it is so difficult to obtain and serve the workings of our federal courts to the public. This is a fairly trivial technical task, and we would welcome the opportunity to make much more data available.
I must also note that the Internet Archive is not alone in being well-equipped to offer this service. There are other large digital repositories that similarly serve the public for free. I cannot speak for them, but I believe that once the corpus is available for no fee and without restriction, they too will replicate it and offer similar service. Indeed, others may build useful tools for reading, searching, and studying the corpus of public court records that makes up our federal case law.
In order to recognize the vision of universal free access to public court records, the Federal Judiciary would essentially have to do nothing. We are experts at “crawling” online databases in an efficient and careful fashion that does not burden those systems. We are already able to comprehensively crawl PACER from a technical perspective, but the resulting fees would be astronomical. The Federal Judiciary has a Memorandum of Understanding with both the Executive Office for US Trustees and with the Government Printing Office that gives each entity no-fee access for the public benefit. The collection we would provide to the public would be far more comprehensive than the GPO’s current court opinion program—although I must laud that program for providing a digitally-authenticated collection of many opinions.
By making federal judicial dockets available in this manner, the Federal Judiciary would enable free and unlimited public access to all records that exist in PACER, finally living up to the name of the program. In today’s world, public access means access on the Internet. Public access also means that people can work with big data without having to pass a cash register for each document.
This PACER collection we would maintain and improve would have far more detailed metadata and contextual information than the GPO service or the PACER Case Locator service. And, that’s just for starters, because we know that there are thousands of eager researchers, journalists, and government workers (including Congressional staff) who would immediately jump in and work with us.
By providing no-cost access to the Internet Archive to PACER and accepting our commitment to make this information available for use without restriction in perpetuity, we believe we can work with our government to make the workings of our court more usable to government attorneys, to members of the bar, and to the public at large.
Sincerely yours,
Brewster Kahle
Digital Librarian and Founder, Internet Archive
Notes:
- S. Rep. 107–174, 107th Cong., 2d Sess., at 23 (2002), https://www.govinfo.gov/content/pkg/CRPT-107srpt174/pdf/CRPT-107srpt174.pdf.
- Electronic Public Access at 10, THE THIRD BRANCH: NEWSLETTER OF THE FEDERAL COURTS, Sep. 2000, at 3, https://archive.org/details/thirdbranch32332200001fede/.
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Here is a satire I sent to the US DOJ fifteen years ago (about the MPAA wanting copyright protection built into all computer hardware) that relates to free vs. proprietary law. I sent a copy to Richard Stallman back then and he said it made him laugh. 🙂
http://www.pdfernhout.net/microslaw.html
Transcript of April 1, 2016 MicroSlaw Presidential Speech (Before final editing prior to release under standard U.S. Government for-fee licensing under 2011 Fee Requirements Law)
My fellow Americans. There has been some recent talk of free law by the General Public Lawyers (the GPL) who we all know hold un-American views. I speak to you today from the Oval Office in the White House to assure you how much better off you are now that all law is proprietary. The value of proprietary law should be obvious. Software is essentially just a form of law governing how computers operate, and all software and media content has long been privatized to great economic success. Economic analysts have proven conclusively that if we hadn’t passed laws banning all free software like GNU/Linux and OpenOffice after our economy began its current recession, which started, how many times must I remind everyone, only coincidentally with the shutdown of Napster, that we would be in far worse shape then we are today. RIAA has confidently assured me that if independent artists were allowed to release works without using their compensation system and royalty rates, music CD sales would be even lower than their recent inexplicably low levels. The MPAA has also detailed how historically the movie industry was nearly destroyed in the 1980s by the VCR until that too was banned and all so called fair use exemptions eliminated. So clearly, these successes with software, content, and hardware indicate the value of a similar approach to law.
There are many reasons for the value of proprietary law. You all know them since you have been taught them in school since kindergarten as part of your standardized education. They are reflected in our most fundamental beliefs, such as sharing denies the delight of payment and cookies can only be brought into the classroom if you bring enough to sell to everyone. But you are always free to eat them all yourself of course! [audience chuckles knowingly]. But I think it important to repeat such fundamental truths now as they form the core of all we hold dear in this great land.
First off, we all know our current set of laws requires a micropayment each time a U.S. law is discussed, referenced, or applied by any person anywhere in the world. This financial incentive has produced a large amount of new law over the last decade. This body of law is all based on a core legal code owned by that fine example of American corporate capitalism at its best, the MicroSlaw Corporation.
MicroSlaw’s core code defines a legal operating standard or OS we can all rely on. While I know some GPL supporters may be painting a rosy view of free law to the general public, it is obvious that any so called free alternative to MicroSlaw’s legal code fails at the start because it would require great costs for learning about new so-called free laws, plus additional costs to switch all legal forms and court procedures to the new so called free standard. So free laws are really more expensive, especially as we are talking here about free as in cost, not free as in freedom.
In any case, why would you want to pay public servants like those old time — what were they called? — Senators? Representatives? — around $145K a year out of public funds just to make free laws? Laws are made far more efficiently, inexpensively and, I assure you, justly, by large corporations like MicroSlaw. Such organizations need the motivation of micropayments for application, discussion or reference of their laws to stay competitive. MicroSlaw needs to know who discusses what law and when they do so, each and every time, so they can charge fairly for their services and thus retain their financial freedom to innovate. And America is all about financial freedom, right! [Audience applause].
And why should your hard earned tax dollars go to pay public citizens to sit on juries and render open justice when things could be done so much more quickly and cheaply by commercial organizations working behind closed doors? Why, with free law each and every one of you might have to take time out of your busy schedules to sit in a court room and decide the guilt or innocence of a peer!
And why pay a judge’s salary out of taxes, such has been proposed? Judges clearly should be compensated on a royalty basis by anyone referencing decisions a judge produces. This encourages judges to swiftly produce more decisions as well as decisions that big legal corporations like MicroSlaw want to cite more often, which is good for the economy.
Top law schools would have to shut their doors if most law was not proprietary, as who would pay $100,000 up front to join a profession where initiates release their work mainly into the public domain? Obviously there would no longer be any legal innovation without private laws requiring royalties when discussed, since who would spend their time writing new laws when there is no direct financial return on their investment?
And of course, lawyers will not be paid well without earning royalties on private laws, since if they can’t sell all royalty rights to their legal work directly to large corporations, how will they make a decent living? Why, even if public money is spent on developing laws, say, at universities, it is clear such laws will not be respected, further developed, or widely distributed unless somebody owns those laws too and so can make money from selling access to them. It’s beyond me why people sometimes act like there could be a spirit of volunteerism in this great land of ours after all the effort we have put into stamping that out, such as by making it illegal to help someone for free. Also, since the Internet had to be shut down early in this administration to prevent children from viewing pornography without paying, distribution of new information will always be expensive.
Each lawyer out there should remember to uphold the current proprietary legal system, because you too may win the law lottery and become as rich and famous as the founder of MicroSlaw — but only if you start with a trust fund! [Indulgent audience laughter]
I know some lawyers out there are concerned about being replaced by the lawyers most major law corporations are now importing from India and China. Let me assure you, this does not threaten your livelihood, because there is currently a lawyer shortage restricting our economic growth, and those Indian and Chinese lawyers have extensive resumes indicating years of experience developing U.S. laws. For you business people out there, it is also my understanding those imported lawyers make model workers because they can’t easily change jobs. Thus I have supported removing all restrictions on bringing over such imported lawyers, in an effort to stimulate economic growth in this fair land of ours.
[Inaudible shouted question] Citizenship? Naturally we would not want to offer such imported lawyers any form of citizenship when they come over because they are not Americans — that should be obvious enough. We’re hoping they go back to where they came from after we are done with them, since there are always eager workers in another country we can later exploit at lower wages, I mean provide economic enhancement opportunities for. Besides, dammit, have you seen the color of their skin?
[Inaudible shouted question] Ageism? I remind everyone here that, obviously, as has been conclusively shown by studies MicroSlaw itself has so charitably funded, older American lawyers can not be retrained to know about new laws, so I implore all lawyers as patriots to plan to learn a new profession after age thirty-five so you do not become a burden on your beloved country.
[Inaudible shouted question] Prisons? There are only a million Americans behind bars for copyright infringement so far. No one complained about the million plus non-violent drug offenders we’ve had there for years. No one complained about the million plus terrorists we’ve got there now, thanks in no small part to a patriotic Supreme Court which after being privatized upheld that anyone who criticizes government policy in public or private is a criminal terrorist. Oops, I shouldn’t have said that, as those terrorists aren’t technically criminals or subject to the due process of law are they? Well it’s true these days you go to prison if you complain about the drug war, or the war on terrorism, or the war on infringers of copyrights and software patents — so don’t complain! [nervous audience laughter] After all, without security, what is the good of American Freedoms? Benjamin Franklin himself said it best, those who don’t have security will trade in their freedoms.
I’m proud to say that the U.S. is now the undisputed world leader in per capita imprisonment, another example of how my administration is keeping us on top. Why just the other day I had the U.N. building in New York City locked down when delegates there started talking about prisoner civil rights. Such trash talk should not be permitted on our soil. It should be obvious that anyone found smoking marijuana, copying CDs, or talking about the law without paying should face a death penalty from AIDS contracted through prison rapes — that extra deterrent make the system function more smoothly and helps keep honest people honest. That’s also why I support the initiative to triple the standard law author’s royalty which criminals pay for each law they violate, because the longer we keep such criminals behind bars, especially now that bankruptcy is also a crime, the better for all of us. That’s also why I support the new initiative to make all crimes related to discussing laws in private have a mandatory life sentence without parole. Mandatory lifetime imprisonment is good for the economy as it will help keep AIDS for spreading out of the prison system and will keep felons like those so called fair users from competing with honest royalty paying Americans for an inexplicably ever shrinking number of jobs.
Building more prisons… [Aside to aid who just walked up and whispered in the president’s ear: What’s that? She’s been arrested for what again? Well get her off again, dammit. I don’t care how it looks; MicroSlaw owes me big time.]
Sorry about that distraction, ladies and gentlemen. Now, as I was saying, building more prisons is good for the economy. It’s good for the GNP. It’s good for rural areas. Everyone who matters wins when we increase the prison population. People who share are thieves plain and simple, just like people who take a bathroom break without pausing their television feed and thus miss some commercials are thieves. Such people break the fundamental social compact between advertisers and consumers which all young children are made to sign. And let me take this opportunity to underscore my administration’s strong record on being tough on crime. MicroSlaw’s system for efficient production of digitized legal evidence on demand is a key part of that success. So is the recent initiative of having a camera in every living room to catch and imprison those not paying attention when advertising is on television, say by making love or even talking. Why without such initiatives, economic analysts at MicroSlaw assure me that the GNP would have decreased much more than it has already. Always remember that ditty you learned in kindergarten, Only criminals want privacy, because a need for privacy means you have something evil to hide.
[Inaudible shouted question] Monopolies? Look, nothing is wrong with being a monopoly. It’s our favorite game, isn’t it? Sure, we might slap somebody on the wrist now and then [winks] but everyone in America aspires to be a monopolist, so why not just have more of them? Why not let every creative lawyer be their own little monopolist permanently on some small piece of the law. It’s the American way; it’s the will of the people.
Look, these questions are getting annoying. The next person who asks a question will have their universal digital passport suspended immediately via video face recognition! [Hush from crowd.] Or at least, someone who looks like you will! [General relieved laughter.]
Here is the bottom line. If all law was not proprietary, lawmaking corporations like MicroSlaw wouldn’t be able to make as much money as they do the way they are currently doing it. So the economy would further collapse, plunging the U.S. into an even worse recession than the one we are in now, which, as experts have shown, is the legacy of all the illegal software and media copying in the late 1990s. Look, we’ve already cut all nonessential government programs like Head Start, monitoring water quality, researching alternate energy, and improving public health. Free law would mean a further reduction of tax revenues and we would have to make tough choices about reducing spending on essential things like developing better weapons of mass destruction, imprisoning marijuana users, propping up oppressive regimes, and promoting unfunded mandates like higher school testing standards. I assure you, these priorities will never change as long as I am president, and I will always make sure we have money for such essential government functions, whatever that takes. So I urge you to never support the creation of free law, which might undermine such basic government operations ensuring your security, and further, to turn in anyone found advocating such.
By the way, I am proud to announce government homeland security troops are successfully retaking Vermont even as we speak. Troops will soon be enforcing federal school standards there with all necessary force. Their number one priority will be improving the curriculum to help kids understand why sharing is morally wrong. Too bad we had to nuke Burlington before they would see the light, har, har, [weak audience laughter] but you can see how messed up their education system must have been to force us to have to do that. And have no fear, any state that threatens the American way of life in a similar fashion will be dealt with in a similar way. I give you my word as an American and as your president sworn to uphold your freedom to live the American lifestyle we have all grown accustomed to recently, and MicroSlaw’s freedom to define what that lifestyle is to their own profit.
So, in conclusion, a body of legal knowledge free for all to review and discuss would be the death of the American dream. Remember, people who discuss law in private without paying royalties are pirates, not friends. Thus I encourage you all to report to MicroSlaw or your nearest homeland security office anyone talking about laws or sharing legal knowledge in other than an approved fashion and for a fee. Always remember that nursery school rhyme, there is money for you in turning in your friends too.
God Bless! This is a great country! [Wild audience applause.]
Addendum — March 4, 2132 — Freeweb article 2239091390298329372384 Archivists have just now recovered the above historic document from an antique hard disk platter (only 10 TB capacity!) recently discovered in the undersea exploration of a coastal city that before global warming had been called Washingtoon, D.C.. It is hard for a modern sentient to imagine what life must have been like in those dark times of the early 21st Century before the transition from a scarcity worldview to a universal material abundance worldview. It is unclear if that document was an actual presidential speech or was intended as satire, since most digital records from that time were lost, and the Burlington crater has historically been attributed to a Cold Fusion experiment gone wrong. In any case, this document gives an idea of what humans of that age had to endure until liberty prevailed.
Copyright 2002 Paul D. Fernhout Verbatim copying and distribution of this entire article is permitted in any medium, provided this notice is preserved.