Opening Up the Law: Pacer, CITP, and the RECAP the Law Project

recap-diagAs some of you know I am a Visiting Fellow this year at Princeton’s Center for Information Technology Policy. When I arrived a couple weeks ago, I heard about a project in the works and have been dying to tell people about it. It is now live and looks great. It is called RECAP and just may change the way people access a major part of the law. We’re talking about the law that lurks outside cases; the actual guts of litigation.

Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated each and every day. Court documents are essentially public documents (there are times when papers are sealed etc., but that is a separate matter). The government runs a system called PACER that allows one to search for and access U.S. Appellate, District, and Bankruptcy court records and documents. But as the Washington Post explains, “The fee to access PACER is $0.08 per page: ‘The per page charge applies to the number of pages that results from any search, including a search that yields no matches (one page for no matches.) The charge applies whether or not pages are printed, viewed, or downloaded.’ For people who do a lot of legal research, those fees add up quickly.”

In an era of transparent government, open source, and access-to-knowledge movements, it was only a matter of time before someone decided to find a way to make court documents available on a broader basis. The folks at Stanford have the IP Litigation Clearing House. That project aims to fill the “critical need for a comprehensive, online resource for scholars, policy makers, industry, lawyers, and litigation support firms in the field of intellectual property litigation.” That project has 23,000 documents and is growing. Pretty darn good, if you ask me. But wait; don’t order yet! Now comes RECAP from the folks at Princeton’s Center for Information Technology Policy. (Specifically, Harlan Yu, Steve Schultze, and Timothy B. Lee developed the project which is led by Prof. Ed Felten). Here is the link to the About Page, but let me tell you a little more.

CITP’s Harlan Yu explains:

RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive.

In addition, if one is using PACER and RECAP “The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository.” So when one searches for a document, one is notified about the availability of a free copy of the document.

There is probably much more to say here, but for now I want to congratulate the folks here at CITP on a great idea that uses information, technology, law, and policy to craft an elegant solution to increasing government transparency. This resource should feed almost anyone interested in practicing or studying the law. Empirical researchers alone should be drooling at this new wealth of information.

Real Online Competition: The Right to Exit

There has been a lot of news coverage of Google’s “openness initiatives” over the past few weeks. The “Open Handset Alliance” promises to break the carriers’ appliancization of cell phones. OpenSocial is designed to put its imprint on social-networking generally, while allowing mass participation in creating apps for it:

OpenSocial[] is an appeal to software developers and Web sites to cooperate in adopting a single set of software standards for the little software widgets that can add a social-networking layer to all Web sites. Agreement on a standard would save users from the aggravation of joining multiple networks and save developers from the aggravation of writing code that works only with specific sites. Unlike Facebook’s programming requirements, Google’s use nonproprietary programming languages.

Both these initiatives are great. But somebody has to keep asking the question: what’s in it for Google? Fake Steve Jobs suggests one answer:

[D]espite their big brains and IQ tests, they [got] totally blindsided by Facebook and have to gin up this ridiculous OpenSocial thing. Just like with this phone thing, they round up all the losers in that social networking space to form some . . . alliance. You know how it looks? It looks weak. Companies don’t form alliances and consortia when they’re winning. Also, whenever you see companies start talking about being “open,” it means they’re getting their ass kicked. You think Google will be forming an OpenSearch alliance any time soon, to help also-rans in search get a share of the spoils? Me neither.

Which led me to think–what would an open search alliance look like? Well, the more Google knows about users, the more targeted their ads and services will become. That self-reinforcing advantage helps them on both sides of a two-sided market; they offer advertisers richer data on potential customers, and target ads better to users.

If those advantages tend to lock advertisers and consumers in to using already favored search engines, perhaps an Open Search Alliance would make search data portable–just as an open social networking standard would let you download your profile and social graph into some portable file. As personalized search tailors services to users, your past queries provide a treasure trove of data that can be used to tweak responses to future searches. The basic question is: who ought to control the data that users and search engines mutually generate? All your queries have been training Google to give you what you want–shouldn’t you be able to use that data to your advantage if you switch search engines?

I can just imagine the howls of protest–“Lock-in is the whole Web 2.0 business model! Give ’em stuff for free, use their UGC, and monetize the eyeballs!” But my hope is that (user sunk costs + lock-in) becomes a much less compelling business model over the coming decade. Although optimism on “innovation markets” has largely anesthetized antitrust authorities looking at these situations, we should reconsider whether encouraging big players to compete to capture a market produces more gains and innovation than rules that reduce the cost of exit from dominant players.

If we don’t see those type of rules, just remember that every bit of time you invest in Facebook apps, Google searches, etc. is one more step toward locking yourself in. Expect much noisier ads and much more invasive privacy practices as the companies grow in strength and recognize how difficult it would be for you to quit. And don’t expect that, when you finally reach a breaking point and want to quit, all 100 or so of your friends will follow you over to another social network–or that the new seach engine you choose provides services remotely as good as a Google you’ve trained as well as a voice-recognition program to recognize your idiosyncratic preferences and tastes.