Invective and Intrigue Within the Free Law Movement Over RECAP Changes

Disagreement over recent changes to a program designed to provide public access to federal court documents has developed into a feud of sorts between two advocates for free and open access to government information – and implicated in it is a cast of characters that includes the man who created the original version of Facebook, another man who may not actually exist, and a variety of people willing to weigh in with their opinions, but unwilling to do so on the record.

The feud involves RECAP, a program run by the Free Law Project (FLP) to collect documents downloaded from the federal judiciary’s fee-based PACER system and make them available for free in a publicly accessible archive. To collect PACER documents, RECAP encourages lawyers and legal researchers to use its extension for Chrome and Firefox browsers that automatically captures every document downloaded from PACER and delivers it to the RECAP archive.

The feud began after FLP rolled out an updated version of the RECAP extension in November. Prior to the update, RECAP delivered documents to two repositories – the RECAP archive hosted by FLP and a separate archive hosted by the Internet Archive. But with the update, FLP said it would no longer push documents to the Internet Archive in real time and instead would upload PACER data there only quarterly.

For most users of the extension and the archive, this change was hardly noticed. In fact, it brought improvements, most notably making documents downloaded from PACER available more quickly on the FLP archive and eliminating restrictions on uploads of large dockets.

But behind the scenes, something else changed. FLP has long made the bulk PACER data available to developers of other free legal research sites through an application programming interface (API). But with the data now being hosted in real time solely in its own archive, FLP decided to ask these developers to pay a monthly fee to help support the project.

One who was none too happy about that was Aaron Greenspan. Greenspan is perhaps best known as the Harvard classmate of Facebook founder Mark Zuckerberg who first created a web-based student portal that included a feature called “The Face Book.” In 2009, he settled a trademark dispute with Facebook for an undisclosed amount. He later sued Columbia Pictures for not including him in the movie, “The Social Network.”

These days, Greenspan runs Think Computer Corporation, a software development company, and its non-profit sibling, Think Computer Foundation. Together, they run PlainSite, a website dedicated to providing the public with free access to legal documents and information about the legal system.

PlainSite was a site that used the RECAP data. But when FLP Executive Director Mike Lissner contacted Greenspan in November and asked him to pay a monthly fee of between $500 and $1,000 to continue to use the data, Greenspan went public with his complaint, publishing a blog post in which he said that PlainSite would no longer support the RECAP project.

We are frankly shocked that an organization calling itself the “Free Law Project” would dare to suggest a model that is obviously anything but free in either the monetary or the general sense. Essentially, CourtListener is now a clearinghouse for legal materials with a gatekeeper business model similar to that of Lexis-Nexis or Westlaw. While it may not be charging end-users, it is planning to charge startups and non-profits, while trading on the brand and good-will of the RECAP name, to which we have been one of the largest, if not the largest, financial contributor. Those proposed costs will need to be passed on.

A second site that relied on the RECAP data, United States Courts Archive, shut down as a result of the change. A notice posted on the site says:

Due to changes in the way the RECAP Project is hosting court records from the federal PACER system, we are no longer able to retrieve and make available federal court records in a timely manner. The reason we created this web site in the first place was to make the RECAP records easier to access and use. RECAP’s new web site, hosted at www.courtlistener.com, has greatly improved document searchability and accessibility. Therefore, we have decided that it is not worth the effort to re-engineer this site to work with the new RECAP API. This means that we have decided to retire the United State Courts Archive web site and direct you to other options.

I reached out to the lawyer who operated this site to discuss his decision to close it down. He declined to discuss the matter on the record.

Over the last week or so, I have been talking to some of the people involved, directly or indirectly, in this dispute. Here is what I have learned.

The Mysterious Mr. Fuenchem

Early in January, I received an email from John Fuenchem. He wrote:

You may be interested in knowing that the Free Law Project has decided to charge other organizations money to access RECAP documents, and it now denies access to organizations which refuse to pay. The new version of the RECAP plug-in only uploads documents to the FLP’s own CourtListener site, while other sites, such as PlainSite and the United States Courts Archive, are no longer being updated in real time.

He encouraged me to read Greenspan’s blog post and to get in touch with Greenspan directly. He concluded:

I hope you share my concern about the FLP’s decision, and I hope you feel that public discussion about the issue is warranted. I hope you will consider writing a post about this on LawSites or tweeting a link to Mr. Greenspan’s blog post.

I’d already read Greenspan’s post and had been meaning to follow-up on it. But Fuenchem’s email piqued my interest for another reason: John Fuenchem seemed not to exist.

His email came from a Yahoo! Canada address. It had no signature and provided no explanation of Fuenchem’s interest in this matter or his relationship to Greenspan. A Google search found no such person by that name. So who is John Fuenchem?

Greenspan’s Objections

Meanwhile, I also heard from Greenspan, who pointed me to a second blog post he had written about RECAP, published Feb. 5. This post noted the closing of the United States Courts Archive website, which I mentioned above, and suggested that it was because of FLP’s decision to begin charging for access to bulk data.

(Note that the notice posted on the United States Courts Archive website said nothing about fees.)

Greenspan’s post also speculated that DocketAlarm’s decision to be acquired by Fastcase might also have been motivated by FLP’s request for payment. Greenspan wrote:

This kind of anti-competitive behavior would be questionable were it attributable to a for-profit corporation, but it is completely inexcusable coming from a nominal non-profit organization. RECAP should be inspiring new sites, not the underlying reason behind the closure of existing ones. The Free Law Project must either restore RECAP’s Internet Archive functionality, or relinquish its role in maintaining RECAP and convert to a for-profit corporation that focuses on CourtListener as a commercial product.

Greenspan also sent me copies of emails he sent to Lissner, FLP’s director, and board members Brian Carver and Ansel Halliburton. In the first, sent Nov. 19, 2017, he outlined his concerns with the RECAP changes. His email described a number of concerns, starting with this:

This new plan, where RECAP flows first to CourtListener in real-time and then to the Internet Archive once per calendar quarter (maybe?), fundamentally changes the nature of the plug-in in a way that I simply don’t agree with, and I find it surprising that others would agree with it as well. Mike explained that FLP’s view is that the Internet Archive is intended to be a backup repository, not a primary source for data; therefore, FLP should treat it that way. I understand that there are some architectural reasons why this may be true, but even assuming that it is true, the fact is that for many years the Internet Archive has served as a platform-independent and totally neutral clearinghouse for PACER information with A) zero cost for project end users and participants; and B) very few technical problems for either. In contrast, the new plug-in version thus far favors one platform (CourtListener) over all others, sounds like it will be expensive, and has serious bugs that are impairing its functionality, at least whenever I try to use it. In due course I’m sure the bugs will get worked out, but right now, that’s the reality.

Greenspan said that his Think Computer Foundation had directly provided $15,000 toward the development of RECAP and in support of FLP and that, including matching grants, its total indirect contribution to RECAP was $25,000. “I was happy to contribute my share of those funds because I knew that they would benefit a public good that would help both end users of the plugin and other legal technology startups looking to use it,” he wrote.

He also said that, as a condition of that contribution, he had asked that he be kept in the loop on FLP’s work. That never happened, he said, and he was given no advance notice of the changes to RECAP.

I was informed of this new FLP business model last week, after the new RECAP plugin was released. As you know, and as stated above, the new RECAP plugin does not update the Internet Archive. That means that FLP has effectively cut off one of PlainSite’s main information sources, and it did so with no prior notice. PlainSite may not be RECAP’s largest user or contributor, but it is a major one.

Lissner responded the next day.

There’s definitely some change here, and I don’t want to minimize that. We didn’t make this decision lightly, and actually had to hold several meetings to come to consensus around it. It’s a big change in how we think about things and in the services we provide. Like I said on the phone, ideally, everything would always be free, but so far that hasn’t been a winning strategy for us.

He took issue with Greenspan’s contention that there had been no technical problems with the former versions of the RECAP browser extensions, asserting that, in fact, there had been a lot of problems – a point Greenspan later conceded and that several others I’ve spoken to have confirmed.

Lissner also apologized for not notifying Greenspan of the changes in advance, attributing this to his frantic work schedule in getting the new extensions ready to release. He went on to address several of the technical issues Greenspan’s email had raised, and then concluded:

I always appreciate getting your perspective. Let me know if you want to have another phone call to talk about this some more. It’s definitely a big change in how the system works and I know it’s impacting you. Hopefully we can find a good way forward.

On Nov. 21, Greenspan sent a reply in which he continued to express his dissatisfaction with the changes. He wrote in part:

Fundamentally I don’t think you can have it both ways. You are seemingly looking for a model that allows Free Law Project to sit in the middle as a gatekeeper and effectively profit at least enough to pay yourself a salary, but that isn’t what “Free Law” means. The beauty of RECAP was that in a world of Lexis and Westlaw, there was finally a working system with no gatekeeper.

Had you come to your previous donors (or potential ones) with a clear request for funding and a clear outline of the additional functionality you intended to deliver with the additional support, I think you may have received a different response, at least from me, than you’re getting now. This feels more like a hostage situation—you are, after all, telling me what I can no longer do unless I pay up again—and even though you are clearly a talented developer, to be frank, I no longer think you are the right person to be running FLP. I regret that I have to even say this, but if this were a commercial transaction where I had paid for software development services (rather than just donated), I would take you to court for fraud, extortion and tortious interference with prospective economic advantage. I’m not actually going to do that of course. My point is just to emphasize how totally backward I think your approach is here. You just blew up part of something I built which worked smoothly for six years and helped pay my bills.

I’ll leave it there. I’m clearly disappointed in the new approach and I can no longer support your organization financially or otherwise.

A Conversation with Greenspan

In addition to corresponding with Greenspan by email, he and I spoke by phone. “I have a lot of respect for Mike,” he told me. “He did an amazing job building RECAP.”

But Greenspan said he felt blindsided by the new extension and Lissner’s request for a monthly fee to use the data, especially given that Greenspan’s foundation had supported the project financially.

“He never followed up,” Greenspan said. “I was not kept in the loop. I told him that point blank.”

Greenspan believes that the decision to charge a fee is due in part to Lissner’s desire to be paid a higher salary. According to tax records, Lissner is paid about $90,000 a year. (Lissner told me the actual amount is less than that.) Greenspan notes that living in the Bay Area is expensive and that Lissner understandably wants to do the best he can to support his family.

But, he argues, “rearranging the entire free judicial docket system for one person’s benefit is against everything people associated with this movement stand for.”

What Others Are Saying

Greenspan is not the only one to write critically of FLP’s changes. Benjamin Edelman, an associate professor at Harvard Business School who specializes in the economics of online markets, published a post on Jan. 22 in which he questioned FLP’s approach. He outlined several concerns, one of which addressed FLP’s decision to charge for bulk access.

[C]harging for access to documents seems in sharp tension with RECAP’s promise to users. The organization’s very name — “Free Law” — calls for distributing materials not just without charge, but also without restriction. Indeed, FLP filed an amicus brief in the National Veterans Legal case stating that the FLP is a “nonprofit organization established in 2013 to provide free, public, and permanent access to primary legal materials on the internet for educational, charitable, and scientific purposes to the benefit of the general public and the public interest.”

He also expressed concern about FLP’s lack of advance notice of the changes.

FLP announced the delayed data distribution as a fait accompli, not soliciting input ahead of time from the users who contribute documents and code to the RECAP plug-in. That’s a natural approach for a commercial service, and maybe appropriate for some non-profits, but hard to reconcile with the position of stewardship I had understood RECAP and FLP to aspire to.

On GitHub, John Hawkinson, a Massachusetts freelance journalist, took issue with Edelman’s post insofar as it suggested that RECAP-collected documents would no longer be available to the public as soon as they are collected. With the November change, these documents are now available to the public nearly instantly, he wrote, and much faster than they were under the prior RECAP version. “They’re on courtlistener.com rather than archive.org but that doesn’t mean they’re unavailable,” he wrote.

Thomas Bruce, director of the Legal Information Institute at Cornell Law School and a former member of FLP’s board, said that FLP’s decision to charge fees is not unreasonable.

This is the latest in a long-running series of episodes that reveal how hit-or-miss the system of distribution for American legal information actually is. Assembling and maintaining a resource that combines the work product of many law creators – or a platform that supports crowdsourcing of that activity – is more than a full-time job, and somehow those who do it need to be able to buy groceries. Fees are not unreasonable, especially when they are minimal compared with overall costs. That said, we’re still in a world where distribution is haphazard and there is no organization (mine included) that is doing everything it could to ensure that distribution of costs and benefits is both as wide-ranging and fair as it could be.

Mike Lissner Responds

Mike Lissner, FLP’s director, admits that he did not do a good job of communicating with Greenspan about the changes, and points out that he has apologized to him about that.

But he stands by the decision to change the RECAP extension, which he says was done to improve its performance and speed and eliminate bugs. PACER documents captured through the RECAP extension always went first to the FLP’s server, where they were then sent to the Internet Archive.

FLP intends to continue sending this data to the Archive, but will now do so only on a quarterly basis. Lissner had hoped to do the first quarterly upload at the end of 2017, but he has yet to do that. The reason for the delay, he says, is that the first upload will be huge and he is trying to figure out how best to accomplish it. FLP has enhanced several million documents in its collection by adding previously missing docket numbers, and all those enhanced documents need to be uploaded to replace the versions that already reside on the Internet Archive, in addition to many new documents.

Regarding the decision to charge other developers for bulk downloads, Lissner argues that large users of the data should contribute something to the cost of collecting it, and he says that Greenspan is the largest user of all.

“We’re a non-profit, of course, but we can’t give everything away for free forever,” he says.

“Aaron’s running a business. He gets ads. He’s not a non-profit. But he’s unwilling to contribute anything back.”

As for pricing, Lissner agrees that he asked Greenspan for a monthly fee in the range of $500 to $1,000. But that was a suggestion, he says, and he was happy to discuss it and try to agree on an amount that would work.

“If someone is running their business and using our service, I think there should be a relationship there,” Lissner said. “If Aaron had come back and said he’s not making any money on PlainSite, I would have said, ‘Go ahead and use it.’”

I asked Lissner about Greenspan’s contention that this is all about Lissner’s desire to be paid a higher salary. Lissner responded that his salary is determined by the board, not by him, and that the board was deeply involved in reviewing and approving all aspects of the RECAP changes.

He also took issue with Greenspan’s suggestion that UnitedStatesCourts.org was shut down because of the new fees. The lawyer behind that site operated it as a side project and, after the changes in November, came to the conclusion that FLP’s new RECAP site was so improved that it no longer made sense for him to maintain his site. That, in fact, is what he said in the notice posted on his site, when he wrote:

RECAP’s new web site … has greatly improved document searchability and accessibility. Therefore, we have decided that it is not worth the effort to re-engineer this site to work with the new RECAP API.

Lissner said he is sorry that this disagreement between Greenspan and him has become public, but he maintains that Greenspan is the only person truly affected by this.

And What About Mr. Fuenchem?

I spoke to several people in preparing this post, some of whom refused to be quoted or identified on the record. But John Fuenchem was the only one who refused to be identified even off the record.

Two people I spoke to speculated that Fuenchem is actually a sockpuppet for Greenspan. They believe Greenspan fabricated him in order to help lobby for his anti-FLP campaign.

Greenspan denied this. “For the record,” he wrote me, “I am not John Fuenchem.”

Fuenchem also denied it. While he did not agree to reveal his identity, he did agree to speak with me by phone.

He lives in Canada and works in the legal profession. He is not a lawyer, but he is preparing to become one. His concern with this issue, he told me, stemmed from the fact that he has been a regular RECAP user and has contributed hundreds of dollars’ worth of documents to it.

“The FLP says it is going to make these documents available to everyone,” he said. “I don’t think they have a right to deny access to other organizations.”

Fuenchem said he was also concerned about FLP’s lack of transparency in never announcing these changes in advance.

He exchanged several emails with Lissner, he said, but Lissner would not confirm whether FLP planned to charge other organizations for access to the documents.

So is Fuenchem just a nom de guerre for Greenspan? If so, then Greenspan does a mean imitation of a Canadian accent. But I don’t think so.

My Thoughts

Both Free Law Project and PlainSite are fighting the good fight for public access to court information – information that should be public in the first place, but isn’t.

The FLP does important work. In addition to RECAP, it hosts CourtListener, a free website for researching legal opinions and tracking legal topics. Recently, it went through a massive project to download every opinion and order from PACER and make them available through the RECAP archive. Two years ago, it launched a nationwide database of biographical information on federal and state judges. The variety of projects FLP is working on can be seen on its GitHub page.

It does all this on a scant budget. Its 2016 Form 990 showed revenues of just $54,528 against expenses of $92,000. The year before, it had revenue of $95,446, but much lower expenses, at $28,057. The rise in expenses appears to be due to an increase in the salary paid to Lissner, from $27,000 in 2015 to $90,000 in 2016. (As noted earlier, Lissner says the amount he is actually paid is less than this.)

Lissner’s argument is that someone has to help foot this bill, and that it makes more sense for the FLP to seek contributions from major users such as PlainSite than to start charging fees to its everyday users such as you and me.

Maybe some major foundation will step up and underwrite FLP’s work. But until that happens, I tend to agree with Lissner that big users ought somehow to contribute. I don’t know anything about PlainSite’s finances or its ability to pay, and it’s not for me to know.

But I’d hope that Greenspan and Lissner could sit down and come up with an arrangement that works for both of them. In the end, they’re both fighting for the same cause, and a feud between allies serves no one’s interest – especially not the public’s.