Back in December, WIRED magazine did a piece about Carl Malamud of Public.Resource.org and his mission to make federal court records freely available on line, rather than exclusively through the court system’s own proprietary PACER network.   For anyone who has used PACER, the idea of a free, easy-to-use alternative has great appeal. The PACER system is not word searchable, so the only way to find documents is by entering the docket number or case name, two pieces of information that many researchers do not have when approaching a general legal question.  Also, PACER charges eight cents a page for materials other than court decisions, which actually generates a surplus for the courts – reportedly $50 million in 2006.  And PACER is not available to all curious Web users with the click of a mouse, but requires a government-issued password and login number.  
 
Working with Mr. Malamud, a number of government-reform activists have begun copying large amounts of material from PACER and placing them online without restriction. The New York Times of February 13 reports that one such activist, Aaron Schwartz, downloaded over 19 million pages of documents through a free PACER connection at a public library, an amount of text representing about 20% of the content on PACER.  (The free public library access was suspended on September 29 because of a reported security breach; it is unclear whether the mass downloading by activists such as Mr. Schwartz was at issue.)  More...

A recent dispute involving Amazon.com and some Dutch media students highlights the danger of overestimating the power of fair use to defend against claims of on-line infringement.  About two weeks ago, two students from the Piet Zwart Institute of the Willem de Kooning Academy  Hogeschool, located in Rotterdam, created a tool that allowed Amazon.com customers to download pirate copies of the books, movies and music they were seeking from the Amazon.com site. The tool was a Firefox plug-in that created an official-looking button next to Amazon’s listing for each item that said “Download 4 Free.”  Rather than making legitimate, authorized purchases from Amazon.com, however, the customers using the tool were instead directed by hyperlinks to the Pirate Bay, an unauthorized BitTorrent site, and a BitTorrent client would be started up to initiate the unlawful download. The students called their project “Pirates of the Amazon.” 

  
The students’ tool and corresponding website were taken down after Amazon.com filed a DMCA notice, and in most similar situations that would have been the end of the matter.   In this case, however, the students issued a ringing defense of their activities under the fair use doctrine, which is codified at 17 U.S.C. 107.  Fair use can provide a complete defense to a wide variety of unauthorized uses, and has been applied particularly expansively in connection with parody, as in Campbell v. Acuff-Rose, the well-known 1994 Supreme Court decision involving a rap parody of Roy Orbison’s “Oh Pretty Woman.”  Accordingly, the creators of “Pirates of  the Amazon” posted an explanation in which they claimed that the project was “an experiment in interface design, information access and currently debated issues in media culture.” In a follow-up e-mail reported by the New York Times (Dec. 8, 2008 at B6), the students posited that Amazon.com and the Pirate Bay “might look like opposites, but are actually quite similar in regards to the mainstream media content they provide . . . Our product demonstrated this practically.  So it’s a parody of any kind of media consumerism, whether corporate or subcultural.” More...