Wednesday, January 11, 2006

Pay-For-Use Pacer/ECF Systems Violate Freedom of Information Principles

As political centrists, we are sometimes on the side of government, and sometimes we are against government. It just depends on the issue.

One of the most ill-conceived ideas in modern legal research comes from the US courts, which require online payment by credit card to access PACER/ECF Systems online, the US courts' electronic database:

"The PACER Service Center is the Federal Judiciary's centralized registration, billing, and technical support center for electronic access to U.S. District, Bankruptcy, and Appellate court records."

As can be read at LawLibTech: Recovering Costs on Pacer/ECF Systems and the comments thereto, this makes practical access cumbersome, problematical and far more difficult than it should be, even to professional librarians, so what about the public?

From a legal point of view, the fact that access to legal documents is unnecessarily cumbersome and monetarily encumbered is a clear violation of Freedom of Information principles. The argument that one is paying for "online access" rather than for "viewing" the documents themselves (which must be free to view) is absurd. You might as well charge a "door charge" at county courthouses. There is no difference. Besides, you pay per page. That's viewing.

From an economic point of view, the requirement of payment probably causes more societal actual costs than benefits, and should be scrapped for that reason alone.

The requirement of payment by credit card and the logging of access also raise clear privacy issues. Freedom of Information principles require that government documents be made public and be easily and freely available to everyone. Permitting access to information was not intended as a means for the government to keep track of what its citizens were reading, what credit cards they had, or anything similar.

In our view, the entire PACER/ECF payment scheme is clearly illegal.

Indeed, we find that the following "clearly chilling" notice with which a user is confronted when accessing a document at PACER/ECF is contrary to the spirit of free information. It is the reverse of "inviting" and is downright unfriendly.

Here is what you get at EDF/PACER if you try to access - as we did - the complaint in the $5 billion patent suit against Google by some company called RTI (Rates Technology Inc. v. Google Inc), another of the farcical blackmail-like patent cases which our inept patent laws are germinating:

"Notice

This is a Restricted Web Site for Official Court Business only. Unauthorized entry is prohibited and subject to prosecution under Title 18 of the U.S. Code. All activities and access attempts are logged.

Instructions
Enter your ECF login and password for electronic filing capabilities. If you do not need filing capabilities, enter your PACER login and password. If you do not have a PACER login, contact the PACER Service Center to establish an account. You may register online at http://pacer.psc.uscourts.gov or call the PACER Service Center at (800) 676-6856 or (210) 301-6440.

An access fee of $.08 per page (rate increase effective January 1st,2005), as approved by the Judicial Conference of the United States, will be assessed for access to this service. All inquiries will be charged to your PACER account. If you do not need filing capabilities, enter your PACER login and password. The Client code is provided to the PACER user as a means of tracking transactions by client. This code can be up to thirty two alphanumeric characters long
."

How about, as an alternative suggested text: "Welcome to ECF/PACER, the electronic database website of the federal U.S. Courts. According to Freedom of Information principles, all citizens are entitled to free and easy access to government documents. This website is designed to provide that service for the federal US courts. Thank you for visiting and come again."

Copycense CommuniK™ Series on Copyright

Copycense is a blog of news and commentary about law and technology, particularly copyrights and licensing.

Recent postings by K. Matthew Dames on copyright issues are well worth reading, e.g. the first article of a series of so-called CommuniK™ postings:

"that reviews several ways information professionals can use protected works freely without getting written permission from the copyright owner, signing a license, or working with a third-party publisher representative such as the Copyright Clearance Center. The goal of the series is to arm information professionals with the tools to help them analyze and properly use what federal law describes as “limitations” on the exclusive rights that copyright owners receive."

We have added Copycense to our blawgroll.
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Basic Economics - Tax Cuts and Steak Cuts

We recently received the following lesson in Economics 101 from a reader (author unknown), to which we have coined our own answer as Economics 100.

Basic Economics is not so simple as the "Tax Cuts" analysis below, which makes a critical error in assuming that those particular 10 citizens are at that restaurant eating a steak in the first place. The metaphor fails.

"TAX CUTS - A SIMPLE LESSON IN ECONOMICS

Let's put tax cuts in terms everyone can understand. Suppose that every
day, ten men go out for dinner. The bill for all ten comes to $100. If
they pay their bill the way we pay our taxes, it would go something like
this:
The first four men (the poorest) would pay nothing.
The fifth would pay $1.
The sixth would pay $3.
The seventh $7.
The eighth $12.
The ninth $18.
The tenth man (the richest) would pay $59.

So, that's what they decided to do. The ten men ate dinner in the
restaurant every day and seemed quite happy with the arrangement, until
one day, the owner threw them a curve. "Since you are all such good
customers," he said, "I'm going to reduce the cost of your daily meal by
$20."

So, now dinner for ten only cost $80. The group still wanted to pay
their bill the way we pay our taxes. So, the first four men were
unaffected. They would still eat for free.
But what about the other six, the paying customers? How could they
divvy up the $20 windfall so that everyone would get his "fair share"?

The six men realized that $20 divided by six is $3.33. But if they
subtracted that from everybody's share, then the fifth man and the sixth
man would each end up being "PAID" to eat their meal.

So, the restaurant owner suggested that it would be fair to reduce each
man's bill by roughly the same amount, and he proceeded to work out the
amounts each should pay. And so:
The fifth man, like the first four now paid nothing (100% savings).
The sixth now paid $2 instead of $3 (33% savings).
The seventh now paid $5 instead of $7 (28% savings).
The eighth now paid $9 instead of $12 (25% savings).
The ninth now paid $14 instead of $18 (22% savings).
The tenth now paid $49 instead of $59 (16% savings).

Each of the six was better off than before. And the first four
continued to eat for free. But once outside the restaurant, the men
began to compare their savings.

"I only got a dollar out of the $20," declared the sixth man. He
pointed to the tenth man - "but he got $10!"

"Yeah, that's right," exclaimed the fifth man. "I only saved a dollar,
too. It's unfair that he got ten times more than me!"

"That's true!" shouted the seventh man. "Why should he get $10 back
when I got only $2? The wealthy get all the breaks!"

"Wait a minute," yelled the first four men in unison. "We didn't get
anything at all. The system exploits the poor!"

The nine surrounded the tenth and beat him up.

The next night the tenth man didn't show up for dinner, so the nine sat
down and ate without him. But when it came time to pay the bill, they
discovered something important. They didn't have enough money between
all of them for even half of the bill!

And that, boys and girls, journalists and college professors, is how our
tax system works. The people who pay the highest taxes get the most
benefit from a tax reduction. Tax them too much, attack them for being
wealthy, and they just may not show up at the table anymore
."

Here is our "Economics 100" reply:

Economics 100 by Andis Kaulins = "Reality" Economics

1. Citizen 1 never eats out because he can not afford it. He is one of the small percentage of humanity who is averse to paid-for-services work and to earning money. This quite small minority of humans has always existed and often makes up both the "black sheep", the ne'er do wells, as well as the "sensitives" of society, the starving artists, etc., who sometimes, however, also make a contribution to humanity, although many, such as Mozart, for a lack of funds, were buried in pauper's graves, and others, such as Max Planck, had to be cared for by the state in their old age, even though their contribution to humanity was considerable, but was not the kind rewarded by money. We all profit by Mozart, but who pays? and who profits the most? mostly the record companies. Imagine if patents and copyrights and contributions to society were sustainable rights over generations and could accrue interest for families over generations just like cash - the world's accumulation of wealth would look quite different. Citizen 1 has no income and pays no taxes and is not found in restaurants eating with "the tenth man". He is lucky to get by.

2. Citizen 2 is near retirement age and unemployed and never eats out (although he used to) because he can not afford it. Ever since his company (Enron) went down the tubes due to the greed and corruption of management, he has been unable to find work. He would like to pay taxes if he had the income to justify it. 200 employment applications have been returned as "not interested". Citizen 2 receives minimal unemployment benefits and he repairs bicycles to get by, also doing much community service work. Recently he helped to repaint an orphanage near the restaurant "SuperSteak Paradise" where the restaurant visitors had complained that the orphanage was too shabby for the nice neighborhood. Voluntary community work is not remunerated, but plays a great role in keeping societies livable.

3. Citizen 3 never eats out because he is a small farmer/rancher who lives too far from the blessings of the big cities and because he has 6 children to support (2 children per family are required on average to sustain the population and the labor force - the figure in the US at the moment is 2.07). He raises a few beef cattle for the restaurants in the nearest city, including "SuperSteak Paradise", although his own income does not permit him to eat his own beef. But we must ask: "who has become rich as a farmer, providing sustenance for his fellows?" Very few men. Citizen 3 pays taxes commensurate with his earnings - enough to stay in business, but not so much as to put him out of business. He lives on the edge of survival, as many farmers do. But why are farmers not richer than they are? Taxes too high? Hardly. It has to do with prices. Big agribusinesses and middlemen make lots of money, small farmers do not. That's the way the economic system is set up.

4. Citizen 4 never eats out because he is a butcher with a wife and 5 children to feed and a mortgage in the city to pay. He cuts the beef for the restaurants in the city. When did anyone ever get to be rich being a butcher? Yet, it is a job which has to be done. The butcher pays normal taxes and gets by, but does not have enough left over to himself eat at the "SuperSteak Paradise" restaurant, for whom he cuts the steaks. But is this not the strange economic nature of the world? What construction worker lives in a house as good as the houses he builds? What watchmaker can afford the Rolex that he makes? And what worker at Ferrari drives a Ferrari that he assembles? Why does our economic system work this curious way? Taxes too high on the moneyed gentry? Hardly. It has to do with supply and demand - and prices. No matter what the 10th man pays in taxes, he always has enough left over for a Rolex. We are not angry about this, but that's the system. Complaints about taxes from the upper echelons are legion, and yet those making these complaints always have plenty of money. How is that?

5. Citizen 5 never eats out because she is a waitress at the "SuperSteak Paradise" restaurant. She is studying at the nearby university to be a teacher, and by chance, is also giving supplementary language lessons to the children of the owner of the restaurant, for which the pay is minimal, but which is giving her valuable experience. But why is teaching often so poorly paid? Why should a physician, or a lawyer, or an architect, make more? Are taxes the problem? Hardly. It is supply and demand, because we limit the number of people who are physicians and lawyers and architects.

6. Citizen 6 seldom eats out and is a secretary for a law firm in the city. She is married and has 4 children and works to supplement her husband's truck-driving salary (he delivers the steaks to "SuperSteak Paradise"). She hopes that enough money can be saved to put the children through college if they are able. They go out to eat occasionally, but "SuperSteak Paradise" is a bit too pricey for them, even though she in fact typed the incorporation documents for the restaurant's owner, who is a client of the lawyer she works for. Her hours are as long those of the lawyers, and both are less than the hours of the truck drivers, yet the salary levels are greatly divergent. How is this justified?

7. Citizen 7 eats out occasionally, but seldom alone, and almost never in steak restaurants. He is a construction worker whose company helped to build "SuperSteak Paradise". In fact, he helped lay the foundations for the building. Depending on the building market, he has a lot do or very little to do and thus always saves his money for the hard times, which always come. His wife said recently they should go to "SuperSteak Paradise" for a meal, but he looked at his 3 children, and they all went to McDonald's instead, for half the price that the steaks in the restaurant would have cost just for the two of them. You have to make ends meet.

8. Citizen 8 is the architect who designed the "SuperSteak Paradise" restaurant. He eats there all the time and deducts his meals as business expenses, as well-to-do business clients and other VIPs are wined and dined, without cost to them, of course, even though they could afford it. He has made quite a reputation by his "SuperSteak Paradise" design and his architectural practice has flourished ever since.

9. Citizen 9 is the lawyer whose associates drafted the incorporation and franchising documents for the "SuperSteak Paradise" restaurants throughout the country. His leading role in that franchising operation has caused the law firm's clientele to boom in the business sector. Not only does he deduct his frequent meals there as business expenses, but he also deducts the costs of his law firm's meetings there from the firm earnings.

10. Citizen 10 is the owner of the "SuperSteak Paradise" restaurant franchising chain who does not work any longer or harder than any of the above employed persons, but he does understand how the economic system under capitalism works. He has exploited that economic system, which allows large monetary accumulation, to his own financial benefit, making millions of dollars in the process and giving him vast economic freedom, far beyond that of his fellow men. He is pleased that the restaurant is frequented by people of the moneyed class, who are prepared to pay top dollar for good steaks.

Alas, if it were not for the high taxes he has to pay, he would be a happy man.

***

Perhaps we should put a cap on capital accumulation the same way that we put a cap on the salaries of professional athletes in several sports? Would that make sense? Hardly. It is much better for everyone to let everyone earn what they can, but you are forewarned that if you figure out a way to make millions or billions in our economic system, you have to put a good share back into the pot from which that wealth came because what you have left over is still far more than the rest of your fellow humans have at their disposal, with or without taxes.

Wealth accumulation is a "benny" of the economic system, not a natural or even an earned right. No one individual is worth the kind of money that wealthy people have. However, society permits accumulated wealth because it permits economies of scale and also puts money into the hands of people who know how to deal with money wisely, and that is a social benefit.

However, to talk about the "unfairness" of taxation to the moneyed gentry is simply absurd if one does not also talk about the "unfairness" of disproportionate earning. Mozart created more "wealth" than any living financial magnate, yet he did not profit monetarily from that, beause that is not the way the system is set up.

Similarly, many a rich man profits from contributions made by his less wealthy fellow men for which he has paid next to nothing as compared to the benefit granted to him. Just think of the discovery of antibiotics. Antibiotics have saved many a rich man's life - now THAT is a valuable service. We could, for example, as a society, exert a simple charge of 50% of net worth for the saving of a life through antibiotics. Nor would such a charge be too high. It is all a question of the system. When the wealthy complain about taxes, it is OK, why not, it is their right, but they should keep the world in perspective.

If everyone truly had to pay "fair cash" for everything that the world now benefits them with, and for all of the discoveries and advances made by other humans of which we today are the benefactors, every man would be in the red. Don't forget it.
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