Great post on the Cornell Legal Information Institute‘s blog, Vox PopuLII, on the events that led to the development of RECAP. I don’t entirely understand what made the feds so nervous about the mass downloading of documents that are already open to the public–we’re not talking about private diplomatic correspondence, à la Wikileaks, after all. My guess is they felt they were being “robbed.” PACER at the time was available for free only through a few designated computers in a few designated locations, hence only a few people with time (read: not attorneys) would use the terminals to access a few documents from cases of personal interest.
Certainly the courts do not “own” filed documents and cannot claim a financial stake in them. An interesting comparison lies between documents filed with the court and court opinions, which are created by the court. Courts have never monetized those opinions, as far as I am aware; in fact, courts have provided those opinions freely to publishers like West and Lexis for decades. The law has been clear for a long time that courts do not have a copyright interest in their opinions. Yet opinions are the work of the court, while filings (and most of the documents available through PACER) are not. It is ironic that they managed to monetize the latter and not the former, although understandable considering the history of access of court documents.