An opinion issued by the Supreme Court Monday holding that Georgia can’t copyright the annotations to its official laws is drawing parallels to an ongoing fight over access to federal court filings.
Writing for the Court in Georgia v. Public.Resource.org, Chief Justice John Roberts noted , “If everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range of premium legal works for those who can afford the extra benefit. A State could monetize its entire suite of legislative history. With today’s digital tools, States might even launch a subscription or pay-per-law service.” Does that remind you of anything?
The chief justice’s opinion comes as influential members of Congress remain at odds with the Judicial Conference (over which Roberts presides) and the Administrative Office of U.S. Courts over its PACER platform, which charges users $0.10 per page to access federal court filings, even though it often costs the courts a fraction of a penny to produce these documents. Bipartisan  bills  introduced in the last year would make PACER free, which is something judiciary officials have repeatedly testified would all but bankrupt the third branch.
Monday’s high Court ruling, though, is clear: The law must be equally available to the public. It follows that federal court filings should also be openly available and not be hidden behind an online paywall.
But when advocates have called on the courts to provide free access to court records, the judiciary has repeatedly  claimed  that the high cost of maintaining PACER necessitates the fees imposed. That claim increasingly fails to pass muster considering the decreasing cost of storing and accessing electronic documents.
One estimate by well-regarded legal technologists puts the actual cost  of storing and retrieving court documents at one twenty-thousandth of a penny per page. That means it’d cost the judiciary about a quarter million dollars per year to store and retrieve the billion-plus documents on the platform, all while the courts collect more than $140 million per year from it.
Even if the actual cost was 10 times technologists’ estimates, public records fees would still far surpass what the Congress envisioned when it passed the E-Government Act of 2002, which required the judiciary to collect fees “only to the extent necessary ” to maintain the PACER system.
Recently, multiple nonprofit groups have sued the government, arguing that PACER’s current paywall model violates that law. A district court agreed  that some fees flouted that statute, and the case is currently on appeal before the U.S. Court of Appeals for the Federal Circuit. In this case, numerous groups have filed briefs in support of reform, including a group of retired federal judges who argue  that “the best policy is to make PACER free.”
Just like public court proceedings, public court records should be available—for free—to any member of the public. Paywalls for public documents limit transparency and harm judicial legitimacy. Moreover, they create an unnecessary divide between those who can afford PACER’s fees; and researchers, pro se litigants, members of the media and interested citizens who cannot.
During a public health crisis, when courthouse doors are sealed and hearings are proceeding remotely, online access is often the only way to access the federal courts—a task made more difficult by an inefficient and burdensome legal paywall.
The Supreme Court, for its part, seems to agree. Not only does Monday’s majority opinion rebuff “pay-per-law service,” the Court itself offers all its public filings for free on its website—the only federal court to do so.
Though often allergic to modernization as an institution, the Supreme Court’s commitment to posting  its filings for free is a model lower federal courts should follow. If not, Congress has enough legislative tools to do the job. Either way, the practice of hiding court records behind a paywall must end.
Image credit: Kalen Martin-Gross 
- “noted”: https://www.supremecourt.gov/opinions/19pdf/18-1150_7m58.pdf
- “Bipartisan”: https://www.congress.gov/bill/116th-congress/senate-bill/2064
- “bills”: https://www.congress.gov/bill/116th-congress/house-bill/1164
- “repeatedly”: https://www.techdirt.com/articles/20190927/12485143083/us-courts-rep-ignores-everything-about-internet-says-pacer-access-can-never-be-free-because-it-costs-money-to-operate.shtml
- “claimed”: https://docs.house.gov/meetings/JU/JU03/20190926/110028/HHRG-116-JU03-Wstate-FleissigA-20190926-U1.pdf
- “puts the actual cost”: https://free.law/pdf/lee-lissner-declaration.pdf
- “only to the extent necessary”: https://www.govinfo.gov/content/pkg/PLAW-107publ347/pdf/PLAW-107publ347.pdf
- “agreed”: https://www.courtlistener.com/recap/gov.uscourts.dcd.178502/gov.uscourts.dcd.178502.89.0_2.pdf#page=33
- “argue”: http://cyberlaw.stanford.edu/files/publication/files/PACER%20fee%20-%20appeal%20-%20retired%20MJ%20amicus.pdf#page=14
- “posting”: https://www.supremecourt.gov/filingandrules/electronicfiling.aspx
- “Kalen Martin-Gross”: https://www.shutterstock.com/g/kdmgphoto