Why PlainSite No Longer Supports The RECAP Initiative
Inside baseball in legal startup land.

November 30, 2017


Much of the daily news we read is in some way related to proceedings in the federal court system. That's why Think Computer Foundation, PlainSite's 501(c)(3) non-profit backer, has been an enthusiastic supporter of the RECAP browser plug-in for years. RECAP takes documents and metadata from the federal court system's PACER database and makes it available to the public free of charge. This is important because typically, information on PACER costs $0.10 per page due to an illegal practice perpetuated by the Administrative Office of the United States Courts.

Since 2013, Think Computer Foundation has directly contributed $10,000 to fund grants in honor of Aaron Swartz that helped bring RECAP for Federal Appellate Courts and RECAP for Chrome to fruition. Those funds were matched by Princeton University CITP, where RECAP began, bringing the total grants awarded to $20,000. In addition, we have donated $5,000 to the Free Law Project, which RECAP's creators at Princeton chose to manage the project after they graduated.

We have provided additional support as well. In 2014, we filed a lawsuit against the Administative Office of the United States Courts arguing that PACER's pricing scheme is illegal under the E-Government Act of 2002. Though the case was thrown out, it provided a solid basis for a new class-action case filed more recently making the same basic argument. The Free Law Project even contributed an amicus brief in that later case affirming the importance of keeping PACER documents free. The case is ongoing.

Through PlainSite's use of RECAP, Think Computer Foundation has also contributed many thousands of dollars worth of legal documents from PACER to the public domain.

That is why we are so disappointed to have to bring a number of issues with RECAP's management to the public's attention. While the Free Law Project, under the direction of Mike Lissner, has made substantial progress on some of the plug-in's technical issues, it has fundamentally changed the direction of the project in ways that we think should be better explained.

The new version of RECAP, which users were automatically upgraded to with no notice, no longer places legal documents on the Internet Archive, which served as a neutral clearinghouse where documents could then be downloaded free of charge. Instead, it sends them directly to the Free Law Project's own CourtListener web site only. While this difference may seem minor, the Free Law Project has asked us to pay a monthly fee to continue being able to use RECAP data. As a matter of principle, we do not believe that fees should be required to access public domain materials. This has also been the Free Law Project's stated view in court. Additionally, we have already committed substantial resources to RECAP.

We are frankly shocked that an organization calling itself the "Free Law Project" would dare to suggest a model that is obviously anything but free in either the monetary or the general sense. Essentially, CourtListener is now a clearinghouse for legal materials with a gatekeeper business model similar to that of Lexis-Nexis or Westlaw. While it may not be charging end-users, it is planning to charge startups and non-profits, while trading on the brand and good-will of the RECAP name, to which we have been one of the largest, if not the largest, financial contributor. Those proposed costs will need to be passed on.

We have already attempted to discuss these issues with the Free Law Project, and we have received a written response to our concerns suggesting that there will be no changes to the new model. We believe that further debate over these issues is in the public interest.

It is worth noting that this particular issue is not the end of the world, whereas many other news items right now—the ongoing Mueller investigation of the President, North Korea's nuclear threats, and a Republican tax plan designed to devastate the middle class—may well be. That being said, many of these important issues are about to be fought over in United States courts if they are not in court already, and it is crucial now more than ever that the public have maximum transparency into the proceedings of these cases. We believe that the Free Law Project has picked a particularly inopportune time to start playing games with a reliable model that has worked well and in the public's interest for years.

Furthermore, we believe that the Free Law Project is misleading RECAP users, even if unintentionally. The Options dialog box for the latest overhauled version of RECAP contains a setting to "Notify me when RECAP uploads a file to the Archive." There is even a reference to "Internet Archive style." Yet the plug-in, in its latest form, never uploads documents to the Internet Archive, as it once did. It only uploads them to CourtListener. And the Free Law Project RECAP site does not explain that organizations must pay fees to use RECAP data, unlike before.

.RECAP Screenshot

If you have concerns about the new RECAP model, we encourage you to share them with the Free Law Project. Or, you can contribute to the RECAP Github code base by adding back Internet Archive support (and appellate support, which has also been removed). In the alternative, should the Free Law Project reject such contributions, we are willing to pay interested contractors to fork the RECAP codebase to make a dedicated PlainSite plug-in for court sites that supports uploading to the Internet Archive as before.

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