Welcome to the website of the Digital Media Law Project. The DMLP was a project of the Berkman Klein Center for Internet & Society from 2007 to 2014. Due to popular demand the Berkman Klein Center is keeping the website online, but please note that the website and its contents are no longer being updated. Please check any information you find here for accuracy and completeness.
Nevada has enacted a new public records law requiring government agencies to respond to written public records requests within five days. The law, which was signed by the Governor on June 13, went into effect on October 1, 2007.
The Pennsylvania House and Senate are considering new legislation designed to strengthen the state's Open Records Law. This is welcome news, as Pennsylvania's current law is one of the most antiquated -- and public-unfriendly -- laws in the country. (It's an indication of Pennsylvania's disregard for public access that I had to link to the Pennsylvania Newspaper Association's website for the current version of the law because the state's legislative website does not include laws enacted prior to 1975, and the Pennsylvania law came about in 1957.)
There are currently three Open Records reform bills pending in the Pennsylvania House and Senate: HB 443, introduced by Rep. Tim Mahoney; SB 1, introduced by Sen. Dominic Pileggi; and SB 765, introduced by Sen. Jim Ferlo.
The Evening Bulletin, which does a good job comparing the three versions, is sanguine that a reform bill will pass this session:
A major obstacle standing between proposed reform and passage is the reformers themselves. They all appear to agree on the need for more access to public records, but they don't all agree on how it should be accomplished. It is more difficult to find and acquire public records in Pennsylvania than just about anywhere else in the country.Legislators, terrorized by the threat of being cast and perceived in an election year as against reform, appear ready to vote for open records reform.
Following up on our post about Carl Malamud's project to create a free resource for court decisions online, there's been another important advance in this area this week. On Wednesday, AltLaw launched its free legal search engine, which lets users perform full-text searches of the last 10 years of federal appellate and Supreme Court opinions. Tim Wu, a Columbia law professor and one of the heads of the project, writes about AltLaw:
Obviously the program is beta and unfinished. We don't think, in its present form, that Altlaw can serve as a full substitute for a commercial legal database. But the crucial word is YET. With help or on our own we're going to do at least the following before we consider Altlaw beyond beta:
Expand coverage; both in terms of dates and jurisdictions;
Link citations with cases; and
Create smart, advanced searches, beyond which other databases have.
This is another important step forward for citizen access to the decisions of our nation's courts. The CMLP applauds AltLaw, which is is a joint project of Columbia Law School’s Program on Law and Technology, and the Silicon Flatirons Program at the University of Colorado Law School.
The New York Times reports that Carl Malamud and his non-profit organization, Public.Resource.Org, have begun an ambitious campaign to make US court decisions available to the public for free online. According to its website, Public.Resource.Org seeks to create an "unencumbered public repository of federal and state case law and codes." To do this, Malamud will be scanning West Publishing's federal and state case reporters,"extracting the public domain content and republishing it on the Internet for use by anyone." Malamud has already started with West's Federal Supplement, Federal Reporter, and Federal Appendix. So far, only cases from the 1880s are up on the website.
Interestingly, Malamud has a successful history of challenging publishers and getting government information released to the public. In the 1990s, he spearheaded a campaign that led to the US government making records from the Securities and Exchange Commission (EDGAR) and the Patent and Trademark Office available to the public for free.
Lawyers have long anticipated a move of this kind because court decisions and statutes are not copyrightable. West Publishing and its primary competitor, LexisNexis, do not own the copyrights to the decisions that they publish in print or post to their subscription-based online services. Rather, the publishers own the copyrights only to the content that they add to the published opinions, such as syllabi (which summarize the general holding of each opinion), head notes (which summarize specific points of law discussed in each opinion), and "key numbers" (which categorize points of law into different legal topics and subtopics for research purposes). They also own the copyrights to the particular selection and arrangement of the opinions in their case reporter volumes. This is a relatively thin layer of copyrightable material -- it is fairly clear that a competitor or interested citizen could copy and distribute cases found in West's reporters, so long as the syllabi, head notes, and "key numbers" were redacted, and so long as the reproductions did not duplicate the West reporters' original selection and arrangement of cases. See, e.g., Matthew Bender & Co. v. West Publishing, 158 F.3d 674 (2d Cir. 1998), cert. denied, 526 U.S. 1154 (1999).
Last Friday night (8/3), the United States Senate passed the the FOIA reform bill, S.849, before retiring for its August recess. We discussed the proposed FOIA amendments in detail a few weeks ago, when Senator Kyl was still holding the bill up in the Senate. The most notable aspect of the draft legislation from our perspective is its expansive definition of "the news media," which appears to encompass bloggers and other online journalists. The bill also establishes a tracking system for individual information requests, reinforces FOIA deadlines for federal agencies, allows for recovery of attorney's fees when a requester is forced to file suit, and creates a FOIA ombudsman to help resolve disputes between the public and agencies without litigation.
When Congress reconvenes in September, the Senate and House (H.R.1309) versions of the bill likely will go to Conference to resolve small differences between them before final passage into law (assming, of course, that there is no presidential veto). (Please see the Open Congress website to search for the most recently available text of S.849 and H.R.1309.)
The CMLP applauds this important step towards greater efficiency, transparency, and fairness in handling requests for government information.
The New York Timesreports that a bi-partisan bill (H.R.1309) to amend the Freedom of Information Act (FOIA) is stalled in the Senate after passing the House in March 2007 with a large majority (308-117).
GovernmentExecutive.com is reporting that the CIA has adopted a new definition of "news media" that could significantly reduce the fees and costs for citizen journalists who request documents under the Freedom of Information Act.
The Reporters Committee for Freedom of the Press reports that Oregon Governor Ted Kulongoski recently signed two bills that increase public access to government records.
The first of the two bills now requires that "the public body receiving the request shall respond as soon as practicable and without unreasonable delay." While this is an improvement over the prior law, which merely required that the requester be given a "reasonable opportunity to inspect or copy the public record," see ORS 192.440, Oregon still provides no set time period by which a governmental body must respond to a request for public records.
That is the question that Jason Fry raises in a provocative column in the Wall Street Journal Online. Fry writes that:
Property deeds, marriage and divorce records, court files, motor-vehicle information and tax documents are increasingly being digitized, and contain a wealth of information that few of us would want online: Social Security numbers, birth dates, maiden names and images of our signatures. Local governments have rushed to put those documents online for a decade or so, often without scrubbing them of such information. And that's made them potentially fertile ground for busybodies, stalkers and identity thieves.
I have no doubt that this comes as a shock to many people. But it shouldn't. The records being put online are public. They are available to anyone willing to schlep to the courthouse or county clerk. As Fry notes, "[o]pen records are a longstanding American tradition."
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