Does Westlaw infringe a lawyer’s copyright in his legal document? This lawsuit won’t tell us.

The Lawyer’s Weekly reports that lawyer Lorne Waldman has filed a class action in Canada alleging that Westlaw infringes the copyrights held in the documents lawyers file in court and that Westlaw publishes through its online, for pay research service:

The Toronto lawyer contends that the defendants’ Westlaw Litigator service is infringing his copyright, and that of hundreds, if not thousands, of other lawyers by reproducing (in PDF, Microsoft Word and other downloadable formats), and making available on-line for a fee,  more than 50,000 pleadings, court motions and facta the defendants recently copied from civil court files across Canada.

The case raises interesting copyright questions, but I don’t think the court will ever decide those questions.

A class action is a lawsuit brought on behalf of a group of people who have identical legal claims against a defendant arising out of identical facts. Rules of court procedure allow cases to be aggregated promotes efficiency by, in the words of Wikipedia, “aggregat[ing] a large number of individualized claims into one representational lawsuit.” There is a strong incentive too for plaintiffs’ lawyers to  bring class actions — the lawyers for the plaintiff who represents the class by running the lawsuit (typically, though not necessarily, the plaintiff who brings the lawsuit) earn fees based on a percentage of the award given to the entire class. Allowing this bonanza is a better idea than it sounds in many cases — without the promise of the large payday at the end of the case, no one would sue a large corporation like Westlaw individually because the cost would be so great for a minuscule recovery. Thus, the class action device protects against corporate activity that would cheat individual consumers out of small amounts.

Before a case that has been filed as a class action, like Mr. Waldman’s, can proceed, however, the court must determine whether it should proceed as a class action. If the court determines the case should not be a class action, it will deny “certification” of a class of plaintiffs and the case, should it proceed, will have to proceed as an individual lawsuit. That, I contend, is what will likely happen to Mr. Waldman’s, and I’m not sure it’s worth his while to litigate against a behemoth like the owners of Westlaw for the relatively small recovery he’d win even should he prevail.

Why do i think the court likely will not find Waldman’s case suitable for class action treatment? Because determining whether a given document is even entitled to copyright protection in the first place requires close scrutiny of the individual document. A huge number (arguably the vast majority) of legal documents are pastiches of other documents; many are purely formulaic. The less original a document is, the less likely it will be deemed worthy of copyright protection.

In short, determining whether Westlaw infringes the copyright on a specific legal document requires inquiry into the nature of that specific document. Examination of every document created by lawyers and published by Westlaw is precisely the kind of individualized, exhaustive procedure the class action is designed to make unnecessary. If that individualized inquiry is necessary, the case will not be certified as a class action.

Accordingly, the only way Mr. Waldman is likely to prevail on his claims is if he’s willing to go it alone and establish both that his documents are entitled to copyright protection and that Westlaw’s activities are an infringement of those copyrights.

A lawyer must separate bluster from truth and act accordingly: Halsey Minor’s fall.

Being an effective lawyer requires an enormous amount of confidence in one’s own judgment. As I tell my students, when you’re a lawyer, there is always someone who is telling you you’re wrong. You have to figure out the extent to which the person telling you you’re wrong is right, adjust your position accordingly, and move on. Frequently, the person telling you you’re wrong is wrong himself. It’s not always easy to tell the difference between wrong and right. But the real signs of maturity are (1) being able to adjust your position to what’s right in someone else’s words, and (2) being able to reject disagreement you judge for yourself is without merit.

[One of my pet peeves with contemporary journalists is precisely there lack of nerve -- rather than making judgments and explaining them, most journalists merely "report" the words of people who disagree without judgment.]

An example of being told I was flat-out wrong occurred over a year and a half ago, when I wrote about Sotheby’s $16.8 million lawsuit against the art collector and Internet entrepreneur Halsey Minor for refusing to pay the auction house for three paintings he bought in May” (including The Peaceable Kingdom and the Leopard of Serenity by Edward Hicks). I explained that I didn’t see merit in Minor’s claims that Sotheby’s had been in the wrong in failing to disclose to Minor that it had a security interest in The Peacable Kingdom and that the painting’s owner had agreed Sotheby’s would receive the proceeds of the sale. Minor argued that he had relied on Sotheby’s expertise in connection with the painting, and that if he had known of Sotheby’s security interest in the painting he would not have been willing to pay so much. In short, he claimed, Sotheby’s had been supposed to be working on his behalf in giving him advice regarding the painting but in fact had been acting on its own behalf and to his detriment.

Minor agreed to buy the paintings in May 2008. We all know what happened subsequently — we all experienced financial disaster. As a result, the art market collapsed, and the paintings Minor had bought were worth significantly less than he had agreed to pay. Moreover, one could presume,Minor might have suffered severe financial problems in and after 2008. I suspected strongly that Minor either no longer had the money to buy the paintings or, at least, no longer saw them as worth owning at the price he had agreed to pay.

Minor, though, made plain in a comment to my post (as he had to other people who had written skeptically of his claims) that he thought I was wrong, concluding

Sotheby’s committed Fraud and will pay for it and its disappointing to see you allow them to get away with charging outrageous fees and then blaming lack on knowledge on the victim.

What do you say to someone so vehement when you think he’s full of it? You ignore him, and you let the evidence speak for itself. Which, apparently, is what Sotheby’s did. As Donn Zaretetsky of the Art Law Blog reported over 2 months ago, the federal judge who heard the case ruled on March 30 in favor of Sotheby’s on all counts, entering judgment in Sotheby’s favor for $4.4 million plus interest, late charges, and legal fees. (Decision embedded below.)

And now Zaretsky points out  too that my suspicions regarding Minor’s financial hardships are, apparently, well-founded. According to the New York Post:

Fallen Internet tycoon Halsey Minor is so hard up for cash that he can’t even afford to send Sotheby’s his art collection to make good on his $6.6 million debt to the famed auction house. Court papers filed yesterday say the CNet.com co-founder ‘has represented that he cannot pay shippers to transport his fine and decorative art as directed.

And Elizabeth Lesly Stevens of the Bay Citizen reports that Minor has defaulted on the rent for the offices of his corporate home, offices which he has abandoned:

Minor Ventures, Minor’s investment vehicle and corporate home in recent years, has recently cleared out of its 12th-floor, 17,000-square-foot space at 199 Fremont, in San Francisco’s trendy SoMa neighborhood. Minor left behind artwork, office equipment and cubicles, says Laura Binai, a staffer with the building’s management company.

“All their mail comes here, but no one comes to get it,” she said.

Minor Ventures is technically a subtenant of insurance giant Aon Corp., which is “hunting down Minor for rent,” Binai says. An Aon spokesman declined to comment, and efforts to reach Minor have been unsuccessful.

And a second part of Minor’s design collection is set to be sold on Wednesday by some of Minor’s creditors. And a court has allowed Sotheby’s “to register the $6.6 million judgment in the Western District of Virginia and the District of Delaware, where Minor has significant assets,” including “a $6.52 million mortgage for a farm near Charlottesville, Va., that he recently brought current after it was foreclosed upon.”

So what does it seem happened? Minor suffered severe financial losses in the second half of 2008 and his emphatic assertions of wrongdoing by Sotheby’s were just so much bluster.

Sothebys v. Minor Judgment

Research only begins with information: patience, insight, and imagination are the most important parts of it.

Suffering from one of my occasional bouts with insomnia the other night, I came upon a message on the legal writing professors’ listserv from a professor who was seeking advice from students who were wondering what tricks or tools they might use to find the analogies and legal arguments that they were finding so difficult to discover in the course of their legal research. No doubt the hour contributed to the poor quality of my response. In her poem “4 a.m.,” Wislawa Szymborska writes that “No one feels fine at four a.m.” But the passionate rage I felt at the belief that there are simple tips and tricks to effective research of any sort was not purely the product of the feeling Szymborska describes as “Hollow. Vain./Rock bottom of all the other hours.”

We have a serious misunderstanding these days about what constitutes research.

According to the Oxford English Dictionary, research is the

Systematic investigation or inquiry aimed at contributing to knowledge of a theory, topic, etc., by careful consideration, observation, or study of a subject.

Let’s assume that the inquiry is into a legal topic. The first element of research is a “systematic investigation or inquiry.” I suppose location of a database or the use of a particular search algorithm could be considered one sort of a systematic investigation, but to suppose that the notion of systematic investigation is exhausted by the location of sources is nonsensical. I can point students to particular treatises I personally find of great value in certain subjects, and of course legal research is filled with secondary sources and finding tools that fill virtually any style one might find useful in such sources. And we live in the age of databases — there are databases for everything.

But systematic investigation is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in the second part of that definition of the term: “careful consideration, observation, or study.”

The answers to difficult legal questions don’t lie around waiting to be found as if they are treasure chests left lying on forest floors. They are constructed and created by elements buried within our universe of databases. Thus, research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

In short, research, analysis, and theorizing are all a single activity — finding things, making sure they are the right things, and putting them together in the right ways.

To suggest otherwise would be to suggest that finding the historical sources concerning the U.S. Civil War that James McPherson used in writing his brilliant history of that conflict was virtually all the work that had to be done to produce the book. After all, once one has found the sources, the writing is just a matter of stringing the information in those sources together, right?

Of course not. One must find the sources, of course. But the research is inseparable from the perspicacious mind that finds within those sources the elements that the creative and original mind then can mold into a work that educates, entertains, moves, and even convinces.

There is no such thing as research apart from insight and imagination. And an enormous amount of work.

And so, in perhaps the most coherent part of my e-mail the other night, I wrote:

Research is about drawing connections between ideas and words from wildly disparate sources, connections that can only be found by means of painstakingly patient reading of one source after another, tracing connections between sources that might be as seemingly trivial as the bare citation in one case to a another case in connection with a discussion in the first case that strikes the attentive and imaginative reader as potentially relevant to the legal issue he or she is researching. Obviously, tracing such connections (and the myriad of similarly subtle connections effective researchers exploit) requires an enormous amount of concentration, and enormous amount of patience with the continual following up of leads that go nowhere, an enormous amount of imagination to spot connections that courts don’t make explicit (and often don’t even recognize the true significance of), and an abandonment of the idea that engaging in research in this manner is to neglect (in some Luddite fashion) “tools” that can do the job so much more quickly and effectively.

Research is painstaking work that requires enormous imagination and is inextricably intertwined with and develops simultaneously with the development of the legal analysis the research is intended to support. (Which is one reason I go ballistic anytime someone suggests librarians rather than legal writing professors should be teaching research to first year law students, as if legal research is simply a matter of knowing sources and databases and how to develop effective word searches rather than being part and parcel of the writing and analysis.)

I’ve always told my students that law is as requires as much creativity and originality as any human endeavor. I mean it.

One last point: I don’t think Google is making us stupid. Yes, there is more information available to us than ever before. But, again, we can’t confuse information with research. Research is inquiry that contributes to knowledge. Information may be a sine qua non of research, but without attention, insight, and imagination, it isn’t research at all.

Here’s legal innovation: YouTube Broadcast of the Proposition 8 Trial. But will it happen? Stay tuned.

There are few more important and timely issues concerning innovation and law than the impact of the internet on courts. Courts have always been considered public institutions anyone could walk into to see court proceedings or to look themselves at court files. But now making something “public” means making it available to anyone at his or her own computer, and the inherent resistance to change that resides in any well-established institution makes courts and those who don’t want their legal stands exposed to the brightest possible public lights reluctant to embrace this new notion of public access.

So, as CNN reports, controversy and legal wrangling has erupted over the decision by “the federal judge who is hearing appeals of California’s Proposition 8 this week ruled that the proceedings could be shown — albeit in delayed fashion — on YouTube.”  But opponents of same-sex marriage, outlawed by Proposition 8, appealed the judge’s order and yesterday the Supreme Court postponed the online broadcasts at least until tomorrow (when, it is hoped, the Supreme Court will rule on the issue).

Jon Davidson, legal director of the pro-gay rights Lambda Legal, argued that opponents of same-sex marriage want to keep the trial as much out of the public eye as they can because public debate on same-sex marriage actually increases support for it. In addition, he argued that the risks of true public access to the proceedings is way overblown:

“One of the things we find on the marriage issue, but really on all issues in response to gay rights, is that the more discussion there is — the more conversation, the more people learn — the more likely it is that gay people are going to do well,” Davidson said.

Davidson said posting the trial on YouTube wouldn’t increase the potential for witnesses to be harassed, saying that anyone can read news reports after the fact to find out who spoke and what they said.

Besides, any effort to block new-media coverage of the hearings is already too late, Davidson said. He said people in the courtroom for opening arguments Monday were posting live updates to Twitter throughout.

Don’t let your clients send you emails from their employers’ email systems.

Mike Masnick at techdirt has an interesting item about a court decision that “personal emails sent from work computers can still be considered privileged and confidential as an attorney-client communication.” Masnick notes, however, that “[w]e’ve seen plenty of cases where courts have said that an individual has no expectation of privacy on emails sent from work.” And he realizes that the case he’s discussing isn’t the typical employee e-mail case; instead, “it dealt with a federal prosecutor who was fired, and is trying to claim that the firing was for his whistle-blowing. He was trying to access the emails of a US Attorney that he believes will reveal why he was fired. So it wasn’t a case of a company trying to review the email (which is normally the case in these types of lawsuits). And, as such, it makes sense.”

But Masnick has a more interesting question: suppose you e-mail your lawyer from your employer’s e-mail system — is your e-mail protected by the attorney-client privilege from disclosure to your employer? As Masnick wonders:

[W]hat would happen in a lawsuit where it was the employer looking at the material? If a company has a regular program of recording and examining employee email (as many do), then how would the issue be resolved? It would seem that, in such circumstances, it would make a lot less sense to consider the content protected, since the employer is not asking for it, but already has access to it.

I think Masnick is right that your e-mail to your attorney, sent from an e-mail system you know your employer has access to (pursuant to typical employee e-mail policies), is not subject to the attorney-client privilege. And if it’s not protected by the privilege, anyone who has a right to it as relevant evidence in a lawsuit will be able to get it, not merely the author’s employer.

Why? The mere communication between client and lawyer does not establish the existence of an attomey·client relationship ”It is of the essence of the privilege that it is limited to those communications which the client either expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended.” McCormick on Evidence § 91 (4th ed. 1972).

Thus, to establish confidentiality, (1) “[t]he client must intend his communications with his attorney to be confidential, (2) [t]he client’s subjective intention of confidentiality must be reasonable under the circumstances, and (3) the confidentiality must have been subsequently maintained. A subjective expectation of privacy can sometimes be ascertained from the client’s express intentions.” Those intentions must be determined from the circumstances surrounding the communication. William P. Matthews, Encoded Confidences: Electronic Mail the Intemet, and the Attorney-Giant Privilege, 45 U. Kan. L. Rev. 273, 283 (1996).

In short, in considering whether the privilege applies, the courts focus on the precautions taken to preserve confidentiality and the parties’ “reasonable expectation of privacy.” Wendy R. leibowitz, Communication in the E·Mail Era: Deciphering the Risks and Fears, Nat’l LJ., Aug. 4, 1997, at B9.

Lawyers are like priests or doctors — you learn early on that your client’s confidence’s are sacred and that your knowledge of them will go to the grave with you. You learn too that disclosure of those confidences to third parties destroys them. So you don’t discuss client business on elevators, in subways, in taxis, on planes, in restaurants, in coffee shops, on crowded sidewalks . . . . You know a client’s “friend” who is along for moral support but not part of the case should not be present for discussions that should be kept confidential.

In short, you know that if there’s a reasonable likelihood someone else may be in on the communication (whether by listening in or by opening the letter or e-mail), the communication is not confidential. And it doesn’t seem to me that an employee has a reasonable expectation that someone else may not be “in on” the communications he makes via e-mail from work. As the Privacy Rights Clearing House puts it:

Is electronic mail private? What about voice mail?

In most cases, no. If an electronic mail (e-mail) system is used at a company, the employer owns it and is allowed to review its contents. Messages sent within the company as well as those that are sent from your terminal to another company or from another company to you can be subject to monitoring by your employer. This includes web-based email accounts such as Yahoo and Hotmail as well as instant messages. The same holds true for voice mail systems. In general, employees should not assume that these activities are not being monitored and are private. Several workplace privacy court cases have been decided in the employer’s favor. See for example: Bourke v. Nissan, Smyth v. Pillsbury, Shoars v. Epson.

In short, if you’re communicating with your lawyer in the course of what you consider a lawyer-client communication, don’t use your employer’s email system. You might just as well be speaking with your lawyer in the back seat of a taxi with the cabbie listening in.

Interpreting, accurately, what isn’t there — the Redactor’s Dilemma

Any lawyer knows that “non-facts” — what people don’t do, things that don’t happen, words that aren’t said — are as telling as what we typically think of as “facts.” Julian Sanchez, in a post entitled The Redactor’s Dilemma, gives a brilliant demonstration of this truth. Sanchez has been “poring over the FOIA documents on cell phone lojacking obtained by the ACLU.” Like many stacks of documents lawyers are accustomed to examining, the ones Sanchez examined are heavily redacted. As he explains:

[O]ver time, you start developing little heuristics for trying to put the puzzle pieces together, to at least limit the domain of what might be in those black boxes. What can context tell you? What can you infer from the length of the redacted material? Looking at these sets of documents, I think I may have picked up on an interesting variation on Mike Masnick’s “Streisand Effect”—that now-familiar phenomenon where efforts to suppress information end up drawing all the more attention to it.

It was pretty easy for Sanchez to figure out that one of the redactions was the statutory definition of “basic subscriber information” found in the U.S. Code, and his first reaction was to wonder [w]hat sort of jackass . . . had concluded that the contents of American public laws were some kind of operational secret?” But then, of course, he realized “the investigative technique [the redactors were] taking pains to conceal . . . involved exploiting that part of the statute in some crucial way.” The post is worth reading in its entirety for the truth it uncovers: prosecutors are seeking cell tower information from telcoms, rather than GPS info, because doing so requiring the prosecutors to satisfy a lower legal standard and they can easily get enough from that information to determine where a person is.

But what I find most interesting is what Sanchez calls the Redactor’s Dilemma — the huge risk that redactions themselves will reveal to informed readers what it is that’s been redacted:

Imagine you’re given the task of censoring documents like these for public release. There are some bits that you just obviously cut out—whole paragraphs describing operational details that, for good reasons or bad, you want to keep secret. But that won’t be quite enough. Because you’re probably going to have folks reading the documents who know a little something about the law, a little something about the relevant technology, and a little something about surveillance tactics generally. Folks who might piece together one of those facts you’ve excised, not from an explicit statement, but from individually innocuous clues that would nevertheless reveal something if an attentive reader pus them together in the right way.

This is where the dilemma arises. Because if anyone does happen to determine, by other means, what lies behind one or two of those black boxes, you’ve actually given them a much bigger clue. You’ve pointed them to the precise facts that, assembled in the proper order and with the right background knowledge, hint at what you were trying to hide—facts they might otherwise skimmed over without a second glance. But it’s worse than that, even. Because the facts really are more or less innocuous in isolation, a lot of that information won’t be secret per se. The choice of just which lines to redact involves a fair amount of imaginative guesswork—which bits might a reader combine in a chain of inference? That means if similar documents are being censored by different redactors, you’re apt to get the worst of both worlds—many pieces of the puzzle left exposed in one document or another, sufficiently parallel in structure to make them mutually completing, with the potential significance of each one highlighted by its absence from the others.

The inexorable trend toward free access to court documents

I mentioned last week that Google Scholar can now be used to find case law. It’s real progress.Court documents, after all, are public documents, so it sometimes seems a bit frustrating that the only reliable way to do legal research is through private systems. As Wired’s Threat Level explains, “West [Publishing], and its competitor, Lexis Nexis, buy court data in bulk, reformat it and add proprietary citation codes. They then license the database of public documents at high rates to libraries, law firms and government agencies. Even the U.S. Court system pays West’s high license fees to access public court documents that West purchased from it.”

To make matters worse, the court system’s database, PACER, doesn’t work well: “the search function is intricate and inflexible, and lacks a way for users to be notified when a case is updated. And in the age of Google, it is absurd to charge citizens to search for the name of a person in a lawsuit. Even looking at the docket sheet — a short form list of all actions in a given case — costs $.08 a page.”

The ability to copy and disseminate documents instantaneously, of course, is breaking this system down.  In addition to Google Scholar, a “Firefox plug-in called RECAP, created by Princeton students, uploads court documents to a public archive any time a user goes into th e system, while programmer Aaron Swartz took advantage of a pilot program offering free access to download 18 million court documents (that earned him an FBI investigation).”

I’ve got mixed feelings about court dockets in their entirety being freely available via the internet (as opposed to, say, the documents courts themselves produce). Dissemination of documents produced without thought to a worldwide audience can cause serious misunderstandings. But technology and economics seem to be inexorable forces — just ask the music industry: try as it might, it isn’t going to recreate a world in which it held a monopoly on the ability to produce and distribute recorded music. And it’s probably better after all that the public gets for free the court documents it produces.

If a county court in Georgia can take adavantage of a website and do it well, so can you.

Justice Serves, for the 11th consecutive year, names the Top Ten Court Websites.

What do they have in common? They’re well organized, making it easy for anyone to find exactly what they need on the site. They provide online services that eliminate pointless trips to inconvenient locations. (Courthouses aren’t the centrally located public oases they once were. Have you ever attended traffic court in a strip mall 50 miles away? I have.) And they make rules and procedures that inspire dreams of Kafka plain and obvious.

Three cheers to the State Court of Chatham County, Georgia.

Do we really want anyone to have free online access to court files?

Court documents are public. You can go down to any courthouse and examine the files from any case you want. But there has been no smooth transition to making those documents publicly available on the internet. That may be changing, though I’m not entirely sure I agree with the majority of commentators on the subject that making those documents freely available to anyone with an internet connection is a good thing.

As explained by the Wall Street Journal, “Digital records of court filings, briefs and transcripts sit behind paywalls like Lexis and Westlaw.” Lawyers, non-profits, and researchers can use PACER to access all documents filed in the federal courts, but PACER has 2 significant defects: (1) it costs 8 cents per page to download any document (an amount that can add up rapidly to access a sufficient amount of material to make sense of any given document), and (2) you cannot search the system by keyword.

As the WSJ puts it: That’s right: In 2009, judicial records in the U.S. are essentially unsearchable.” But last week, a team from Princeton’s Center for Information Technology Policy unveiled a Firefox add-on that promises over time to make all those documents filed in federal courts freely available and word searchable:

They whipped up a sleek little add-on to the popular Firefox Internet browser called RECAP (PACER spelled backward). Legit users of the federal court system download it. Then each time they drop eight pennies, it deposits a copy of the page in the free Internet archive. This data joins other poached information, all of which is formatted, relabeled and made searchable—the kind of customer service government tends to skimp on. Users can even see what has already been liberated while within the government system, a stylish and subversive touch. This week, as RECAP picked up speed, various court offices got skittish and began sending out emails acknowledging the project’s legality, but “strongly discouraging” its use anyway.

I’m as great an advocate of government (and corporate) transparency as almost anyone, but I can’t help but be troubled by the possibility that someday all the files in every court in the land will be word searchable and accessible to anyone with an internet connection. It’s one thing to go to a courthouse (or even through many free online sites) to access the papers filed by the parties to a particular lawsuit. Courts are public institutions, and the fact their documents have always been and continue to be accessible to anyone (willing to visit the courthouse where those papers are filed) has been fundamental to the greatness of our judicial system.

But papers filed in court do not necessarily state facts. Think of what friends of yours have been falsely and outrageously accused of in bitter business and divorce cases. Think of all the ridiculously frivolous lawsuits “tort reformers” are always screaming about. Think about how often the report of a filing of a lawsuit, which sets forth allegations that are merely allegations, not assertions of proven fact, are reported and read as fact. Do you really want anyone with an internet connection to be able to search the files of all the courts in the land for your name, pull up the documents from that case, and set forth on their website what some witness has stated without regard to the larger context of the court case that might reveal the witnesses lack of credibility, hostility, limited knowledge, subjectivity, or sheer misapprehension?

Just one example of the sort of problems free access to court records could create was described by Charlotte Watson, Executivec Director for the New York State Office for the Prevention of Domestic Violence in a public hearing held by the New York State Commission on Public Access to Court Records. Ms. Watson testified as follows (at pages 82 and following of the transcript of the entire hearing (pdf):

Ms. Watson: What we innocently put on the “Web” a few years ago is now being used in ways we never considered, including invasive crimes such as identity theft. We’ve heard horror stories of how stalking victims were tracked and harmed through information posted and available to all for good or bad intent. We’ve all seen those annoying pop-up adds on our computers, advertising the ability to find literally, anyone. As a domestic violence advocate with more than 27 years in the field, and one concerned about privacy in general, those ads, and the open, easy access to so much personal information in what we term the “information age” are truly frightening.

Nowhere is this more of a concern than when considering the safety and security of victims of domestic violence, sexual assault and stalking. We know that domestic violence is pervasive, on-going, life-changing reality for millions of women and children in this country, and stalking is an integral part of the dynamic of domestic violence.

Domestic violence victims know all too well their abusers will use any means to control and terrify them and keep them from escaping. It is not unusual for a batterer to monitor the odometer on a victim’s car, record the victim’s phone calls, or use hidden cameras. Imagine what it would be like to have a Global Positioning Satellite unit attached to your car and monitored constantly by someone in authority over you. This is the daily reality of many victims of domestic violence with the state of technology today.

What will tomorrow hold? It’s extremely difficulty and often dangerous for battered women to escape their abusers. Many find it necessary to flee the area entirely in hope of

finding safety. Those who are able to get away live with the extreme fear of being found by their abuser. A losing battle for approximately 1,100 U.S. women each year who were murdered by their intimate partners after fleeing, as well as, countless others who are re-assaulted.

There have been many attempts to help victims find safety. . . . Unfortunately, at the same time we are recognizing the needs of domestic violence victims, the trend toward “open government” and access to information has become an easy, affordable and valuable weapon for abusers.

As advocates for victims of crime, however, we do recognize the need to find ways to increase the accountability of systems, including the courts, in their responses and decisions. It’s vital that these interests are balanced against victim safety and the privacy of users of our court process. In the effort to increase accountabilities, the court must be mindful of even the appearance of culpability, should granting easy access to information result in harm to a victim.

It should never be the case that potential consumers of the courts must weigh the need for safety through court intervention against the need for privacy and anonymity

which may also impact safety. In light of these concerns, I will outline a number of recommendations regarding open access to court information. . . . The negative implications include, as has been mentioned:

A chilling effect on victims who are considering using the court for legal relief. While we applaud the fact that family court and matrimonial records will not be subject to open access, I must emphasize that under current law, criminal court is the only court in which many victims may seek relief. Consider, for example, a victim who’s being abused or stalked by a boyfriend. To obtain an order of protection, that victim will have to disclose significant personal information and potentially embarrassing details about the abuse in criminal court. Under the Conference of Chief Justices and the Conference of State Court Administrators Guidelines, this information would readily be accessible by the public and the offender. It’s not a leap to say the victims will be reluctant to pursue an order of protection under these circumstances. Is it fair to ask a victim to sacrifice her privacy for the safety she’s entitled to under the law?

Imagine the heyday the pornography and smut industry will have with such easy access to crime scene photos of horribly violent rapes and homicides. Imagine the websurfer who accidentally opens a porn site or the errant adolescent going to sneak a peak only to discover the crime scene photo of his naked mother lying in a pool of blood. At what point would the balace tip from accountability at this point to culpability? At what price? Who and how would these decisions be made as to where to draw the line?

There are safety risks for crime victims and witnesses. As I noted earlier, abusers often track and monitor their victims as a means of maintaining control. These behaviors typically increase when a victim leaves the abuser. Whenever a victim becomes involved with the court system, whether voluntarily, as a result of mandatory arrest or pro-prosecution policies or for some other reason, precious information about her location, status, current name, phone numbers and other circumstances is disclosed. Such disclosure is a major concern for my agency and victim advocates across the state. We know that abusers will access this information and use it every way possible to stalk, threaten, assault or kill the victim and maybe her children.

This can be a problem even when the victim is using the court system for something unrelated to domestic violence. For example, if these involved in a motor vehicle accident resulting in legal action and the information, includinging simply the location of the Court is posted on the Internet, her address would be posted making it all too easy for her abuser to find her. Perhaps she relocates to escape the abuser and later becomes the beneficiary of a probated estate. As a result, identifying information could be posted creating similar safety risks. Ironically, if the victim is seeking a legal name change, even this information could be posted on the Web, making her efforts at anonymity fruitless.

It’s important to note she may not be a victim at the time of her interaction with the court on the myriad of non-domestic violence related actions that could bring her to court. After one date with a stalker, she would be vulnerable to his gaining valuable information about her that could lead to her demise. There’s an increased opportunity for identity theft. Destroying the victim’s credit and reputation is a tactic already used by batterers. Open public court records will only increase the opportunity for accessing and misusing personal information.

We’re concerned about the secondary uses of the information. Information stored by the courts will most certainly be used for purposes that move far from the original public policy intent of governmental accountability. It will be gleaned and sifted and compiled along with other information to create entirely new databases that can be misused and misinterpreted. Once the information is gathered for another database, it can never be taken back or corrected. In domestic violence cases, false or misleading information could be deliberately planted by the batterer in spurious legal filings that include slanderous material against the victim which are then posted on the Web for all to see and use.

Internet access could undermine the victim in custody proceedings. Seeking custody is one of the most powerful tactics used by abusers to access control their victims. Abusers will use every means available to discredit the victim and prolong a custody battle. The proposed guidelines actually aid abusers in this process. Open public access to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon we the court. This poses serious ramifications for victims who ultimately leave their abusers and seek custody. Economic survival or the abusers threats or false promises often compel victims to minimize or deny the events or later recant earlier statements of abuse that form the basis of a criminal prosecution. The fact that such records from a criminal proceeding and many civil proceedings will be within easy grasp of an abuser in a subsequent custody proceeding essentially re-victimizes the victim, rewards the abuser’s use of coercive tactics and facilitates the abuser’s use of custody as a weapon of control.

MR. ABRAMS: It seems to me that a good part of what you’re saying would apply to public access, regardless of whether there’s an Internet or not. When you say that “open public access — on page five — to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon by the court.” The fact is that now, without an Internet — before we had an Internet, there was open public access to court information, regardless of whether the information was relied upon by the court. Does your office favor limiting access to the information itself, regardless of whether it’s going on

the Internet?

MS. WATSON: Our concern is the same one expressed many times today; that’s the cheap, easy affordable part of it. You can actually be sitting in your bedroom, walk over to your computer and find the information. It’s very different from having to go down to the courthouse and go through the records and find the information, being able to sit in California, sit on your computer, pull up your victim, your target’s information on a court record in New York.

Law is real, and so is art.

From Mirrors. Photographs from the Arkansas State Prison 1915-1937, found and printed by Bruce Jackson, 8/19/2004 (with pointers from Jonathan Lethem and Julie Langsam):

Involved in a lawsuit? Be ready to welcome the world into your life.

One of the downsides of engaging in litigation, even on behalf of a righteous cause, is the way in which you must open much you consider private not only to your adversary but often also to the public.  Your motives, your finances, your personal relationships, and, in certain circumstances, your physical and emotional health will be subject to inquiry in the course of a lawsuit.  Often, these questions and answers will be part of the public record.  Court records, after all, are public records.

Fortunately, unless you are considered newsworthy, most of the public will not go rooting through court files.  It is inevitable, though, that the new technologies and media outlets will be used to exploit the exposure of personal matters.

So I am not surprised that, as reported in the ABA Journal, “Outraged by deposition testimony in a fraud suit against a Houston automobile dealership, a client of a Texas attorney arranged, with the lawyer’s help, to post a six-minute excerpt on YouTube.”

In this case, the judge ordered the post taken down (because the deposition was not yet part of the public record in the case), but he refused to sanction the lawyer and client who had initially posted it. “However, the final salvo hasn’t yet been fired in battle to publish the deposition excerpt on YouTube. [The plaintiff's attorney] plans to file a written transcript of the deposition at the courthouse, as part of the record in the case, and then post the full deposition on the site. Under those circumstances, says [the defense lawyer] . . . , his client would be unlikely to protest.”

Proceedings of the Old Bailey, 1674-1913

I just discovered The Proceedings of the Old Bailey, 1674-1913, a fully searchable edition of the documents from the 197,745 criminal trials held in London’s central criminal court during that period.

According to John Langbein, the Proceedings are “probably the best accounts we shall ever have of what transpired in ordinary English criminal courts before the later eighteenth century”. Although initially aimed at a popular rather than a legal audience, the material reported was neither invented nor significantly distorted. The Old Bailey Courthouse was a public place, with numerous spectators, and the reputation of the Proceedings would have quickly suffered if the accounts had been unreliable. Their authenticity was one of their strongest selling points, and a comparison of the text of the Proceedings with other manuscript and published accounts of the same trials confirms that what they did report was for the most part reported accurately.

The database is a treasure trove for historians and the curious.  A random search for a topic of some interest to me, stock fraud, undearthed the case of “Richard Slocombe the younger, who was indicted for feloniously and deceitfully impersonating” his father, thereby securing for himself £50 of the £450 worth of “South Sea Annuities” owned by his father.  The records include transcripts and summaries of some of the trial testimony.  Here is the report of Mr. Slocombe’s testimony in his defense and the testimony on his behalf by his uncle.

Prisoner’s defence:

From what I had conceived and collected from discourse between my father and mother, this was mine upon my coming to age; my father is at these years reduced to a degree of insanity, he cannot recollect one half hour what he spoke the last; I am fully persuaded if my mother and sister were here, they would coincide perfectly in what I advance in every respect; as to the transfer, I signed nothing but my own name; if I had been conscious I was doing wrong, I should have made but one transfer, and took all the money at once; I did not act with any view of defrauding, therefore I most humbly hope you will take it in the most favourable consideration and construction; I am not particularly desirous of calling my father.

To his [Slocombe's] character:

John Pierce . I am the prisoner’s uncle; I never knew but that he always bore a good character, he was always very dutiful.

Richard Slocombe the younger was found guilty and was executed.