RECOP: The Report of Current Opinions

law.gov

Great news, friends! Starting in 2011, Public.Resource.Org will release a Report of Current Opinions (RECOP) on a weekly basis. The Report will include a FREE HTML feed of ALL slip and final opinions from the appellate courts of the 50 states and the federal government. The feed will be available for reuse under a CC CC-Zero license, and will include page numbers. For more details, read Carl Malamud’s announcement on O’Reilly Radar. This is one of the major projects that Public.Resource.Org has undertaken since being awarded the Google 10^100 Grant in September.

While contributing this expansive body of case law to the public domain represents a great victory for advocates of free law, more needs to be done. First, RECOP is a temporary measure. Public.Resource.Org has committed to a two-year sunset for RECOP because of the ongoing monthly fees to put up new decisions online. Secondly, the ultimate goal of law.gov is for federal and state governments to self-publish this information. We hope that they will recognize the impact that RECOP has on democratizing the law and educating their citizens, and take immediate steps to take this on themselves.

Lawyer, programmers, lawmakers, muckrakers, bloggers, librarians and open government advocates–we need your help NOW to make the law.gov goals a reality. We’ve got two years to get the government to step up and take ownership of access to the law.

To summarize: the public will now have a place to obtain current, official opinions. Case law is being freed from the paywall. Onward!

Also see Bob Ambrogi’s post about RECOP, and his interview with Ed Walters of Fastcase on the project.

  • http://www.hyperlaw.com Alan D. Sugarman – HyperLaw

    Uh .. ” the public will now have a place to obtain current, official opinions??”

    The public has had a place to obtain current US court opinions for free and in micro-seconds from Google Scholar for over a year – both trial and appellate, both published and unpublished. Google Scholar includes all of these cases plus many more including US District Court opinions and other state court opinions. I use Google Scholar all the time – it is fantastic. It has its quirks, but, wow – fastest way to find a case.

    To repeat – Google Scholar includes keyed in versions of all of the West National Reporter System volumes including the star-pagination. In additon, Google Scholar includes most of the US Court of Appeals, District and Bankruptcy Court opinions that are not published and is very up-to-date, usually updated within a week. This is over a 100,000 opinions a year.

    How is Google Scholar able to copy the West books without fear of challenge: Simply, this was the legal case that my company HyperLaw won against West in 1997-8 – see 158 F.3d 674 – the only copyright text case ever lost by West – and that means ever. The case was won over the opposition of West, Mead (which owned Matthew Bender), the US DOJ, and most other publishers. Until last year when and Google stepped out, everyone else was still too fearful of West to copy their books and offer them for free on the Internet – inlcuding new volumes (which impact West book sales) with the internal pagination.

    So YES VIRGINIA [this is the day before the night before Christmas) – what FastCase and Malamud and Google Scholar are doing directly or indirectly is ripping the covers off of West books, and keying in the text FROM THE WEST books – NOT FROM THE COURT WEB SITES. So, it is somewhat disingenous for Public Resource to imply that the star pagninated cases come from govermental sources if they include the West pagination or if they are US Appeals cases. But, it is legal to do this -of course.

    When Public Resource released certain volumes of the Federal Reporter two years ago to great aclaim in the blogosphere, it was far from up-to-date, was never updated, and oddly omitted the West star-pagination pages, subsituting its own short-sighted paragraph numbers to cases which already had star pagination which the public could use. Although Public Resource claimed to have released “all” US Courts of Appeals cases, it did not, omitting the many tens of thousands of “unpublished” opinions, opinions now citable in the federal courts. If Public Resource is now only releasing “slip opinions”, then that could mean only published opinions are being included, for at least at one time, this term was reserved for opinions placed in “slip” boxes prior to the printing of the paperbound advance sheets. Of course, it has a broader meaning to some. Anway, it would be good consumer disclosure for Public Resource to actually identify by court name the opinions it will release, and which opinions come from West books.

    What this is can hardly be called a demonstration project – it is already available on Google Scholar. The concept is done and proven deja vu. I do not see the point of this.

    Go to Google Scholar right now and you will see all of 709 F.Supp.2d including cases from May and June 2010. I assumme Google is waiting for the final bound volumes for the later cases. In addition. For cases not yet in final print, yet to be published and unpublished cases are there as well. For example, see Trott v. Bank of New York decided just last week on December 16, 2010 in the U.S. District Court for the S.D. of Florida – available on Google Scholar.

    What has amazed me in the last year has been the nearly complete silence in the blogosphere as to what Google Scholar is offering now.

    How can anyone writer implying expertise on the subject with a straight face write about RECOP without mentioning Google Scholar is something that makes my mind spin. Do the people who write this stuff actuall practice law and do legal research for write briefs and articles?

    Is this more PR than actually doing anything? I fail to see how this will move the courts one way or another. For example, most courts do not publish in HTML or XML and it is a major accomplishment for them to use PDF – which is good enough for me.

    And, I am trying to figure out why Google would give Malamud $2 million to do what it is already doing and more so.

    Anyway, I could think of a lot more meaningful things to do with $2 million to move along public access to the law including knowledgable lobbying and commissioning professional and thorough and knowledgable studies of the facts and the universe of judicial opinions and courts.

    Anyway, sorry for the long post, but I received a Linked in update from Tim Stanley a while ago which pointed me to this post.

  • http://www.hyperlaw.com Alan D. Sugarman – HyperLaw

    Uh – the paywall has already been freed.

    I will excuse this author for not being in the field for long, but how could one write about RECOP without writing about Google Scholar which has done this and more? Anyway, Malamud knows for sure, and, if he does not, then that would say even more.

    I am not sure what this accomplishes as a demonstration project – it has already been demonstrated. See Google Scholar which has all of these case plus hundreds of thousand more cases. FREE Google Scholar has all of Federal Supplement current and has the Pacer version of district court opinions that have yet to appear in Federal Supplement, and never will.

    This is nothing at all like Edgar in 1994 – sorry, but that was a different scenario. Malamud there bought a copy of the government tapes of Edgar and ported them for public access. Here, much of the material is copied from the West Reporter system. There is no government tape to port over.

    So, when the demo of RECOP is over, it will be over,just as Public Resources Federal Reporter demonstration was over – never updated. In that adventure, it was represented that all federal court opinions were being made available, not mentioning that unpublihsed opinions which are VERY important were not made avaialable, nor of court US District and Banrkuptcy cases – still, apparently not available in the new venture, though of criticial importance to real lawyers and journalists.

    Thanks to Google Scholar for being willing to ignore the bullying of West by putting all of the copies of the text of cases from the West Reporters up for FREE with a WORLD CLASS search engine and with the West star pagination. Even though HyperLaw thoroughly established that the text of these cases could be copied in its 1996-98 copyright case against West (citation below), and with Matthew Bender that the citations could be copied in a companion case (citation below), everyone was still cowed to publish the cases for free with the citation for the public. Even Public Resource did not include the star-pagination in its last aborted venture.

    If I had $2 million in 1998, I would have had the West Reporters keyboarded then.

    But, in 2009 Google Scholar decided to face down fears of West and publish cases with the citations, copied from the West Reporters (the source of much of Malamud’s documents), and on a current basis, together will unpublished opinoins and opinions from court web sites.

    As noted above, there is no government database of this information as there was in Edgar – nothing to port over.

    For this reason, this is a waste of $2 million and will have no effect at all on how courts release cases to the public – no more than the impact of Google Scholar which is here and now.

    I will add more on the topic here and on the HyperLaw web site.

    Alan Sugarman
    HyperLaw

    See:
    Matthew Bender v. West, 158. F. 3d 674 (2nd Cir. 1998), aff’g, No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997), cert. denied sub. nom. West v. Hyperlaw, 526 U.S. 1154 (1999).
    http://www.hyperlaw.com/westlit/litdocs/1997-05-19-176-Martin-Order-Text.html
    Matthew Bender v. West Publishing Co., 158 F.3d 693 (2d Cir. 1998), cert. denied, 526 U.S. 1154 (1999)

  • http://www.hyperlaw.com Alan Sugarman

    Sorry about the double post – the first post was caught up in limbo and I assumed I forgot to hit submit, so I rewrote the second post.

    Tim posted about Google a year ago:
    http://onward.justia.com/2009/11/17/free-us-case-law-from-google-us-federal-50-state-case-law/

    What I would like to see from RECOP is:
    1.A list of all courts from whom the opinions will be taken.
    2.Whether the opinions will include both published and unpublished opinions.
    3. The source of the opinions – court web site or state official reporter or West National Reporter System.
    4. Whether the advance sheets or the final versions are being copied?
    5. If advance sheets (or slip opinions) are being copied, how is that made clear and how will updates be made.
    6. For the US Court of Appeals decisions, how is it anticipated to address changes made in the slip or advance sheets and only sent to West.
    7. What is the XML schema for tagging? Is there a complete definition document? Is the XML to include the actual link or reference to the source document? Will the XML schema work for trial courts and all the other courts published in the West National Reporter system? Will the XML schema work for those courts not included in the West National Reporter system – are there placeholders for this? Is there a place holder for the link in the appeal decision to the lower court decision on appeal, and the decision on remand? In bankruptcy cases, does the schema include the docket number for the bankruptcy case as well as the docket number for the adversary case? Is there a list of all courts and types of cases not being provided? Are there sample cases and completed XML files for all of the above.
    8. Is there an adult in charge who even knows what the questions in para 7 mean? Who are the adults in charge who know the details and can discuss with authority each issue listed above and below, with knowledge of other systems and approaches and of multiple courts and levels of courts.
    9. Three years into law.gov (misappropriating a web standard that a gov site is a government site) and now with $2 million of Google money, why not go about this in a methodical manner.
    10. I just remain amazed that the only metadata tagging/xml schemes I have ever seen for court opinions are either those relating to case management for a single court in state or governmental unit, or only applicable to a narrow category of cases (say, published appellate cases taken from West for US Courts).

    Sure, lesson have been learned by law.gov, for example, adding private paragraph numbers to Federal Reporter cases that already have star-pagination (that can be legally copied thanks to the Matthew Bender/HyperLaw cases). The lesson learned by law.gov is that this made no sense, since other on-line services were using different paragraph numbers. But, of course, anyone operating in the case law “space” could have told this to law.gov. So, just because law.gov learned a lesson already known in case law publishing 101 does not mean that it was some advance in the field.

    I guess one problem is that there is some excellent work being done, but, generally to create a solution by techies working for particular courts. The solution do not work across courts, but there is much useful knowledge.

    Sorry to be so irritable -but, this had got to end and the basic groundwork has got to be done in a professional methodical manner and the breathless pr announcements must end.

    By the way – one better use for Google’s money to law.gov — fund RECAP so that they can port over to Internet Explorer which I would guess is used by 90% of attorneys on a day to day purpose. Yup – Mozilla is great – but … RECAP is quite innovative, but needs funds to move to the next level. Also, fund RECAP to capture all the free court decisions available on Pacer/ECF and host the opinions.

    Anyway, Happy New Year.

    Alan Sugarman

    • http://www.justia.com/ Courtney Minick

      Hi Alan:

      Thanks for your comments. Please excuse the late reply, I was enjoying the holidays with my family.

      Let’s talk about Google Scholar. Of course I am aware of this product — I use it myself quite frequently, and you are absolutely correct about how thorough, easy to use, and well designed it is. It’s truly a fantastic service. As you mentioned, we have blogged about it before, and I’ve even written an article on the subject. If you read my posts, you’ll see that I link to opinions in Scholar quite often. I have actually been meaning to write a post about the enhanced coverage–so thanks for the reminder.

      Google Scholar wasn’t mentioned here quite simply because that’s not what this post was about. As you may have read, we are actively involved with the law.gov project, and this post was written to inform people about the RECOP release. I don’t think that writing about this development somehow implies that Google Scholar does not matter. If you follow the blog regularly, you know that we use it and link to it all the time. This post is only one part of a continuum of reports about increasing access the law in the United States.

      There is one key difference between the opinions published on Google Scholar and those published under the RECOP project: RECOP opinions will be available under a CC0 license to anyone who wants to reuse or publish them. This is important. It allows portability of these opinions, through which independent sites can republish, remix, or create new applications for the information. Google Scholar does not currently allow this (as it has some restrictions in the licensing of some of their content). Full and free open access encourages creative development and improves the offerings for all citizens who seek legal information. Google also believes in this, which is why they are supporting this project in addition to their work at Google Scholar.

      Are there some issues with the RECOP service? Sure. Criticism and ideas are always welcome to improve any product. However, I think it’s disingenuous to call this project a total waste of time and money. Criticism that this project has not been undertaken in a “methodical manner” also discounts the years of planning, workshops, and meetings that have gone into creating standards and developing best practices. We’ve been there the whole way, with Justia folks traveling across the country to attend these events — so I can say this with some authority.

      Similarly, I have to disagree with your criticism of the technical and legal expertise involved in developing this project. Fastcase, Justia, LII all have many years of legal and technical expertise. In addition, many lawyers, law schools and law librarians are putting tremendous amounts of efforts on the Law.gov project. The folks at RECAP, who have earned your high opinion, have been part of this effort and have been heavily involved in the planning and design. The list of signatories to this effort is full of very smart legal and technical folks.

      And yes, the RECOP service will end at some point. It’s designed to. The goal of the project is to encourage the government to take this over. Carl has helped the government self publish for free in the past, with the SEC Edgar directly and USPTO databases. I agree that it’s ridiculous for the government to buy back their own work product, and I hope that the government agrees too. This way, the government can — wait for it — decide to self publish. If part of the $2M from Google gets this goal accomplished, I’d say its money well spent.

      At Justia, believe that a rising tide of free information will lift all boats. We celebrate all genuine efforts to open the law. Each effort, no matter how imperfect, is a stepping stone toward truly free access.

      Regards,
      Courtney

  • http://www.hyperlaw.com Alan Sugarman

    Courtney

    I delayed responding until I had reviewed the Law.Gov seminar videos, which you brought to my attention. The sessions were quite interesting and fascinating with presentations by very smart people. Public Resource should be commended for conceptualizing these presentations and raising the profile of these long-standing issues.

    As to your response, you are not being fair.

    My posting was a response to the not accurate claim made in your original post – “Caselaw is being freed from the paywall.” My response was further informed by previous exaggerations by Public Resource. In substance, there is no difference between Public Resource falsely claiming that “all” of something is being released, and a court falsely claiming that the public has free access to “all” opinions. Overstatements – vaporlaw – create a false sense of security. These concerns were addressed in my 2009 presentation at the AALL annual convention in Washington.

    Another misleading Public Resource misstatement, repeated in many of the Law. Gov seminars, is that U.S. district court opinions on Pacer are behind a “paywall.” This statement is false and likely would be considered false and uninformed by most in the federal court system. All such opinions marked by a court as a written opinion are available at no cost. Yes, yes, we know that for most courts, you need a credit card, but the opinions are free and NOT behind a “paywall.” And, yes, I know that not all opinions are marked – and that is an issue for which I have been trying to garner support, with no support from Public Resource.

    As to the particular description of RECOP, I responded to your description and the stated purpose to embarrass the courts to release opinions themselves. At the appellate level, almost all courts think they already are providing these opinions at no cost, just not the final printed versions. Though there could be benefits from RECOP, depending on how configured, it is unlikely the stated purpose would be reached.

    Moreover, it is a false premise that the release of the SEC and PTO databases in the 1990s is apposite. Courts are independent branches of government with very independent judges. The very policy reason for securities and patent filings is for subsequent disclosure to the public. The Edgar and PTO databases were existing professionally created single databases with structured meta-data, and filers were required to strictly conform to submission standards. I see marginal relevance to the problem at hand with the courts.

    I have not seen RECOP so I do not know if the actual release will have problems. Even if the stated purposes are not met, the project could be a demonstration model. But, Law.Gov postings do not include, as far as I could see, descriptions of a meta-data schema as to RECOP. One would have expected a publicly disseminated description of the meta-data schema with an opportunity for comment. The video of the Cornell session addressing this issue was not posted. One participant at that session apparently has been opposed to creating a schema since 1996, when I attempted his help to collaborate in the creation of LTML – Legal Text Markup Language, and I gather is still opposed. But, that is not clear.

    Unfortunately, based upon the statement of Carl Malamud at Harvard Law.Gov 2.4, there will be no meta-data tagged schema proposed. If so, then the utility of a RECOP type demonstration is substantially diminished.

    My concept then, and now, is to define minimal metadata to describe court opinions. There is guidance – for example, the metadata used on Westlaw and Lexis, Pacer metadata and the xml files of RECAP, Alt-Law, and even the Public Resource Federal Reporter files. I myself have the meta-data scheme used in HyperLaw’s 1993 low-cost CD of U.S. Court of Appeals opinions, tagged using computer analysis of the text. Indeed, I provided data then under contract to Lawyers Cooperative. What is needed is a set of meta-data that will work across the range of appellate and trial courts and administrative agencies in all states and at the federal level. Developing these standards with support from the Google Grant would be a good project.

    As to your statement that Google Scholar cases may not be copied, that is very surprising comment and contrary to law; that copyright was not allowed in the text and citations of court opinions was established by the HyperLaw text case against West Publishing on text and the parallel decision where Matthew Bender was also a plaintiff.

    After all, any star paginated versions in RECOP (and Google Scholar) of the U.S. Court of Appeals decisions will no doubt be rekeyed from West’s Federal Reporter. How Google Scholar can claim a copyright of the rekeyed version, and indeed how can RECOP grant a CCO license to something that is already in the public domain, is something I have a hard time understanding.

    I also would like to acknowledge the presenter at the Duke law.gov session for being the only presenter to accurately describe the HyperLaw Second Circuit text case against West, authorizing the copying of cases from the West reporters. There is no other decision that declares as not-copyrightable the creation of a short name for the case, the addition of attorney names, the making of minor corrections, the incorporation of judge’s corrections, and the addition of parallel citations.

    [A Law.Gov pamphlet circulated at the sessions cited dicta in West v. Mead that law for the proposition that law was in the public domain, when the decision itself allowed West to use artifice to effectively copyright the law . The post-Feist HyperLaw Second Circuit decision (cert. denied) is a proper citation for this statement as to case law, not West v. Mead, and, curiously was not mentioned in the Law.Gov pamphlet, which raises issues of intellectual honesty.]

    As to your reference to the signatories to Public Resource and participants in the law.gov sessions, I am not without my own relevant experience, knowledge and academic degrees from distinguished institutions. I also bear more than one arrow scar in my back from my activities in this space – perhaps with more to come.

    Almost all issues raised at Law.Gov seminars, though, were articulated, explored and debated extensively between 1992 and 2000, if not before. It was déjà vu all over again. Moreover, none of the many activists leading the effort at the time presented at any of the seminars, except one mentioned below who took the West position.

    It is well worth reviewing related materials, for example, the May 1992 Congressional Hearing on H.R. 4426, 102nd Congress, introduced by Barney Frank. The bill (known then as the Lawyers Cooperative Bill) proposed prohibiting copyright for star pagination and for the “name, number, or citation” of State and Federal laws or regulations.

    I have posted the hearing on Scribd http://www.scribd.com/doc/46825836.
    My submission to the Committee is at page 331; I asked at page 325 that the bill be expanded to prohibit copyright for so called enhanced case reports, i.e., the corrections and parallel cites etc. added by West. This idea was not warmly greeted by West and Lexis or any other publishers, not then. nor later, and not today. West’s Vance Opperman and Professor Robert Berring’s (who spoke a Law.Gov Berkeley Part 5) joint testimony in opposition is at page 114. Opperman submitted a list of legal publishers showing HyperLaw at page 244 as the only publisher in 1992 of a CD-Rom version of Supreme Court opinions. This was sold at a very low price.

    As another example of issues pressed in the 90s, the importance of bulk downloading was always considered as fundamental. In the 90s, I myself criticized law schools hosting court databases and courts which would not allow bulk downloading (I received five arrows in my back for that position.) Some of those law schools even added copyright notices to those opinions. I know of a law school in New York City that hosts local agency decisions, but does not allow bulk downloading, and presented at one of the sessions.

    The idea of assigning a citation to cases at the time of release by a court goes was enunciated by John West in 1909.

    I await release of the Law.Gov report and RECOP and will provide my comments at such time. In the meantime, I would suggest that Public Resource vet its web site of exaggerations and overstatements, and that in the future, Public Resource release and then announce, rather than announce and then release.

    • http://www.justia.com/ Courtney Minick

      Alan,

      Thanks for the response. I think we are talking past each other a little bit. We are most certainly on the same side (free and fair access to the laws). I think we agree that the goal is to get the courts to self-publish, instead of passing the opinions through an intermediary who tries to copyright or otherwise monetize them with page numbers or basic editorial work. It seems that we disagree on the methods to achieve goal.

      Your point that the courts already think that they are providing the opinions–I assume you mean the slip opinions–is important. I’ve been doing some research on vendor/media neutral citation and the best models (OK, for example) require that the courts insert paragraph numbers into the final text of the opinion, as well as a public domain official citation. Even better if they allow citation to that one without requiring a parallel cite to the Reporter. If we could get the courts to take the small step of adding paragraph numbers and an official state citation, half the battle would be won. I saw your comment on the citation post, I know you’re a proponent. This is definitely on the radar at law.gov.

      And yes, the proper meta-data scheme would be most helpful to achieve this end. As for what Public Resource is doing to develop this scheme, I know it is on their radar, and it’s mentioned in the Statement of Principles http://public.resource.org/law.gov/:

      (6) Vendor- and media-neutral citation mechanisms should be employed.

      (7) Technical standards for document structure, identifiers, and
      metadata should be developed and applied as extensively as possible.

      (8) Data should be distributed in a computer-processable, non-proprietary form in a manner that meets best current practices for the distribution of open government data. That data should represent the definitive documents, not just aggregate, preliminary, or modified forms.

      Tom Bruce at Cornell LII has contributed extensively to this effort (as a side note, the LII is constructing the metadata models for the Libary of Congress, check it out http://blog.law.cornell.edu/blog/2011/01/05/library-of-congress-taps-lii-for-expertise-in-legislative-information/). If the standards are not in place right now, then they are being developed.

      As for Google Scholar, I never stated that the opinions could not be copied or that Google was asserting some sort of copyright over them. The point I was trying to make is that Google Scholar does not share the opinions out–they are not available for bulk download–whereas Public Resource will. It’s not a ding or a slight to Google, they are certainly under no obligation to provide that. I believe that bulk download is just as important as access, so that developers can create interesting applications and services with the data. This is a step in further progress of opening access to the law. If law.gov does this, gives the feed to the government, and shows them how it’s done, it makes the process easier for them to adopt.

      I’m glad we’re having this conversation online, but I’d love to talk to you live and hear about your experience litigating against West. I do not doubt that you bear many scars from that battle, and I thinkg it’s awesome that you took them on to further the cause of free and equal access to the law. Send me an email, let’s chat.

      Courtney
      courtney-at-justia-dot-com

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