US Courts: open source will make you break the law

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Most of you already know about the US Courts' shameful profiteering through the PACER system. They charge $0.08/page for public court documents and in so doing stifle the public's access to their own content. Not long ago, our friends at CITP released an open source project called RECAP. When you install this gem in your browser, documents your retrieve from PACER are deposited in a public archive, where they can be retrieved by everyone, at no cost, forever. So no surprise that US Courts is now discouraging the use of the plugin. They stand to lose a lot of cash if these documents are free. What surprised me first is this little gem:

A fee exemption applies only for limited purposes. Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court. Therefore, fee exempt PACER customers must refrain from the use of RECAP. The prohibition on transfer of information received without fee is not intended to bar a quote or reference to information received as a result of a fee exemption in a scholarly or other similar work.

Emphasis mine, of course. Not only are these public documents not free, but if you happen to have retreived them for free, you're not allowed to make them free to anyone else. I'm trying to construct a valid argument for this. I can't get there. But let's move to an even bigger surprise: fearmongering open source software

:

Please be aware that RECAP is “open-source” software, which means it can be freely obtained by anyone with Internet access and could possibly be modified for benign or malicious purposes. This raises the possibility that the software could be used for facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security and document redaction practices to ensure that documents and sensitive information are not inadvertently shared or compromised.

So because RECAP is open source, anyone could insert crazy code at any time and force you to violate disclosure rules or otherwise run afoul of the law. This is, of course, ridiculous. If anyone knows who approved and distributed this memo, please let me know. They clearly don't understand how open source software works. We can help. (via Consumer Law & Policy Blog)

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1 Comment

Connie's picture

Ah, my favorite word in this article, and the one that sums it up so well: fearmongering. You have to sit back and marvel at the manner in which misinformation and misdirection are being used to secure systems where information that is already public is being fee-assessed, only to then stack up reasons to restrict access to info again. Anyone who has gone through public documents searching for anything (federal or local) knows the pain involved in obtaining copies of some documents...may you discover the author of the memo, and make headway in education him/her of the realities and potentials that open source provides.