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Title 17, section 105 of the US code forbids the federal government from claiming copyright over its own publications. No such restriction exists for state governments, however, and many states have asserted copyright over things that one would think couldn’t possibly be treated as private property: legal codes, case law, the very stuff that government is made of. Worse yet, a few state governments have even awarded copyrights to 3rd party publishers in exchange for taking over the burden of printing and annotating their large, bound publications.
All that ended Monday when the Supreme Court ruled in favor of Public.Resource.Org in its case against the state of Georgia. States can no longer claim copyright over works which are authored and prepared by state employees. State publications are now unambiguously in the public domain.
Court decision: https://www.supremecourt.gov/opinions/19pdf/18-1150_7m58.pdf
The story of this case and how librarian hero Carl Malamud has fought it for the better part of a decade is a rather good one. I remember when he first lost in the district courts, and we all thought that was the end for him. But he appealed and took it all the way to the top; and now he’s won, in the biggest way possible. It’s a huge victory for public access to government information. And a modest win for sanity in the public sphere more generally.
Gary Price at InfoDocket provides a very fine list of documents and other links that provide context for this week’s hearings for Brett M. Kavanaugh, the Senate Judiciary Committee Hearing for Supreme Court.
NARA embroiled in politics surrounding documents re Supreme Court nominee Kavanaugh. The public loses.
I’ve been trying to get my head around the very public wrangling of the release of archival records relating to Judge Brett Kavanaugh. The National Archives (NARA) is in the process of releasing “Approximately 900,000 pages of email and paper records were requested by Senate Judiciary Committee Chairman Senator Charles Grassley.” But democratic Senators Diane Feinstein and Chuck Schumer are accusing NARA of withholding documents relating to Kavanaugh’s time as Staff Secretary under President George W. Bush. NARA has responded by saying that it is “longstanding and consistent practice” to respond only to requests from the Chair of Congressional Committees. Senate democrats have submitted FOIA requests for the remaining documents and are threatening to sue NARA if the FOIA request is denied.
Regardless of how many documents are released and made available to the Judiciary Committee, Chairman Grassley has scheduled the committee hearing for September 4, 2018, long before NARA says it will be able to finish its work. NARA says it expects to complete its review of the first roughly 300,000 pages by August 20, and the remaining 600,000 pages by the end of October. It’s unclear whether a lawsuit to release additional records will cause the committee’s work to be postponed.
Lost in all of this political wrangling (on top of the political wrangling whereby republicans blocked President Obama from nominating someone to the Supreme Court during his term) is the fact that the American public, regardless of political leaning, is losing out on really knowing the person being nominated for a lifetime position on the US Supreme Court, effecting the US political system for at least a generation to come.
Politics is a vicious game, but the nomination of a Supreme Court Justice shouldn’t be left to the will of pure partisanship. The public needs to have access to ALL of the records regarding Judge Cavanaugh’s public work, and the committee should have time to “advise and consent,” to understand the nominee’s record, deliberate, and appoint judges.
Feinstein wrote to archivist David Ferriero in a letter obtained by CNN on Wednesday, criticizing him for his narrow view of the law used to justify denying Democrats the documents. Democrats are set to begin meetings with Kavanaugh, President Trump’s nominee to the high court, after the August recess.
“Under your overly restrictive reading of the Presidential Records Act, minority members of the Senate Judiciary Committee now have no greater right to Mr. Kavanaugh’s records than members of the press and the public,” the California senator wrote.
“I ask that you reconsider the position set forth in your August 2 letter,” she continued. “These records are crucially important to the Senate’s understanding of Mr. Kavanaugh’s full record, and withholding them prevents the minority from satisfying its constitutional obligation to provide advice and consent on his nomination.”
Democrats are pushing for the federal government to release all documents created during Kavanaugh’s time at the White House, roughly three years during the George W. Bush administration when he served as staff secretary. Republicans have accused Democrats of seeking to delay Kavanaugh’s nomination with the request.
On July 31, 2018, the National Archives received a request from the Senate Judiciary Committee’s Ranking Minority Member Senator Dianne Feinstein and the other minority members of the committee for Judge Kavanaugh’s Staff Secretary records, which number the equivalent of several million pages. However, this request does not meet the requirements of section 2205(2)(C) of the Presidential Records Act, as the Archivist of the United States David S. Ferriero explained in an August 2, 2018, letter to Senate Minority Leader Charles Schumer. On August 6, 2018, Senator Feinstein asked the Archivist to reconsider this position, and the Archivist responded on August 10, 2018.
As noted in both letters, since the Presidential Records Act was enacted in 1978, the National Archives longstanding and consistent practice has been to respond only to requests from the Chair of Congressional Committees, regardless of which political party is in power. For the same reason that the National Archives was not able to respond to Senator Feinstein’s request, the agency also declined to respond to the requests by Republican Ranking Members for Presidential records during President Obama’s Administration.
This is welcome news re the US Supreme Court. Fulfilling a promise outlined by Chief Justice John G. Roberts Jr. in his 2014 year-end report on the federal judiciary, the Supreme Court is adopting electronic filing for all of its cases. The new electronic filing system will begin operation on November 13, 2017. Full and free Supreme Court dockets will be a boon to lawyers, researchers, students, and the public. Is this the beginning of the end for the Public Access to Court Electronic Records (PACER) system (he says hopefully!)?
After lagging behind other courts for years, the Supreme Court is finally catching up on a key technological feature that will be a boon to researchers, lawyers and analysts of all kinds. It’s moving to adopt electronic filing.
The change will allow the public to access legal filings for all future cases — free of charge. Beginning Nov. 13, the court will require “parties who are represented by counsel” to upload digital copies of their paper submissions. Parties representing themselves will have their filings uploaded by the court’s staff.
All those submissions will then be entered into an online docket for each case, and they will be accessible from the court’s homepage.
This is great news. A few months ago, the news broke that Jerry Goldman, who ran the Oyez Project, was looking to retire and cash in his site for upwards of $1 million. I was afraid that some for-profit publisher like WestLaw of LexisNexis was going to scoop it up. But now it seems that there’s a new deal between Oyez, Cornell University’s Legal Information Institute (LII) and Justia, the online publisher of legal information, to keep Oyez alive and freely accessible. Public domain crisis averted!
After months of uncertainty about its future, the Oyez Project, a free repository of more than 10,000 hours of U.S. Supreme Court oral-argument audio and other court resources, has found a new home.
The project’s founder, Jerry Goldman, who is retiring soon, told The National Law Journal on Tuesday that a newly minted arrangement with Cornell University’s Legal Information Institute and Justia, the online publisher of legal information, will keep Oyez alive.
“It’s a perfect match,” said Goldman, 71. “They will be great stewards.”
Launched in 1993, Oyez.org boasts nearly 9 million visits annually, ranging from students doing term papers to Supreme Court practitioners rehearsing upcoming arguments.
The Supreme Court has taped oral arguments for the last 60 years and deposited them with the National Archives. Oyez makes the audio available on its website with additional information, including searchable transcripts that are synchronized to the audio.
That makes it easy to hear the moment during arguments in the 2003 affirmative action case Grutter v. Bollinger when then-Chief Justice William Rehnquist addressed advocate Maureen Mahoney—a former law clerk of his—by her first name. Or, more recently, the time on March 27, 2012, when the late Justice Antonin Scalia compared the coverage mandate of the Affordable Care Act to an order that the public buy broccoli.