by Dennis Crouch
In a letter mailed on April 7, 2015, I joined with the Electronic Frontier Foundation (EFF) in calling on the U.S. Court of Appeals for the Federal Circuit to re-institute free public access to orders issued by the court.
Following former Chief Judge Rader’s resignation in 2014, the Federal Circuit stopped providing free public access the the vast majority of court orders. These orders are still accessible through PACER, but that system is difficult and costly to use.
Although the court’s most substantive work is usually found in published opinions. Court orders can be substantive and important and the letter provides a few examples:
For example, an order involving ongoing royalties in cases involving Apple and VirnetX was not chosen for publication on the site, despite the high interest in the proceedings the case has generated, and the impact the order could have on the publicly traded companies. Another order barred Facebook from asserting invalidity defenses on appeal for procedural reasons – a matter of public interest because it could educate litigants about how to preserve issues on appeal, and because Facebook is a public company. Even in cases where the Court seeks public participation, it has not chosen to put relevant orders up on its website for public access. On December 30, the Court granted a petition for en banc rehearing of SCA Hygiene Products v. First Quality Baby Products, No. 2013-1564, announcing on its website that it invited amicus curiae briefs in the case. Rather than posting the order on its website, the Court instead directed interested parties to view the order on PACER. Because the case is sufficiently important to merit an announcement on the Court’s website, it was dismaying that the order was not selected for public access on the website.
The change that we propose is simple and fully within the Court’s power — we know this because the court was previously providing free public access to these documents as standard operating procedure. My hope is that the Court will hear our respectful requests and make this appropriate change.
Michael Barclay and Vera Ranieri from EFF have also written on the topic in the EFF Deep Links Blog.