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Public.resource.org wins appeal on right to publish the law [pdf]

273 points by DannyBee 8y ago

DannyBee 8y ago
I unfortunately haven't seen it covered in news yet, so i don't have a better URL. But it's the appeal of this: https://www.eff.org/deeplinks/2017/02/federal-court-rules-against-publicresourceorg-says-public-safety-laws-can-be https://www.eff.org/deeplinks/2017/02/federal-court-rules-ag... The appeal opinion is a complete and total vindication for Carl and public.resource.org, which is awesome.
- Dotnaught 8y ago
  https://www.theregister.co.uk/2018/07/17/appeals_court_copyright_fair_use/ https://www.theregister.co.uk/2018/07/17/appeals_court_copyr...
rahimnathwani 8y ago
This is a great outcome, but it is amazing that the appeal opinion requires 40 pages when, in essence, the question is only whether people subject to US laws must pay to know what the law is. What's interesting about the case and the legal opinion is that public.resource.org's use is considered fair use, but it's still the case that public.resource.org must pay to get an initial copy of each standard, before it can be published on that site. So access to the law is still not free of charge.
- rayiner 8y ago
  It's not an easy case at all (and in fact, the court punts on the big-picture question, deciding the case instead on fair use). There are two separate issues: (1) "whether people subject to US laws must pay to know what the law is," and (2) whether a legislative body can deprive the private entity of copyright protection in a work by incorporating that work by reference into a law or regulation. Answering "yes" to the first question does not resolve this case, where a legislative body incorporated a private entity's technical standard by reference, without the private entity abandoning copyright in that work. The question is, what happens now? Does the copyrighted work automatically become public domain (what public.resource.org argued)? Or does the copyright remain valid, but instead we find the legislative body in violation of its obligation to ensure public access to the law (and, perhaps, find the law invalid on that basis)? It is not necessarily the case, as public.resource.org argued, that the requirement of public access automatically eliminates copyright in standards that have been incorporated by reference. It may instead create an affirmative obligation on the part of legislative bodies to enter into appropriate arrangements with the private entities that develop the standards.
  - rahimnathwani 8y ago
    Yes, I didn't mean to suggest it was an easy case. I only read half the opinion but can see that there are several issues, and many citations of precedent to support the opinion. But, as a non-lawyer, the fact that this level of analysis of statute and case law is required in order to make such a small step toward making the law accessible, is amazing. (EDIT: I mean, I understand that it is this way, but don't feel it should be this way) I say it's a small step because: - as you say, the court confirmed fair use, but did not consider the question of whether copyright is extinguished - each referenced standard is still locked behind payment until and unless this site or another pays for a copy and scans it If, as you suggest might be the case, it is the "obligation of legislative bodies to ensure public access to the law by refraining from incorporating obligations from sources that are not publicly accessible", then what becomes of those laws which reference standards which are not publicly accessible today? Do they become unconstitutional or void, until such time that the standards do become publily accessible? Would publication on public.resource.org be enough to count as 'publicly accessible'? And if it turns out that copyright is actually extinguished due a document's to incorporation (by reference) into law, would the former copyright owner have grounds to seek damages against the legislature? EDIT: in your subsequent edit you sort of answered one of my questions "(and, perhaps, find the law invalid on that basis)"
    - rayiner 8y ago
      Let's step back. What is the principle we seek to vindicate? That principle is that the law should be accessible to those who are charged with following it. Courts, however, rule on specific cases, not general principles. This case requires 40 pages because that big-picture principle is only tangentially implicated, and the court and the parties have to engage in some contortions to get to it. Public.resource.org isn't charged with failing to follow a law that was not publicly available. That would be the straightforward test case, and the straightforward resolution would be to find the law invalid on that basis. Instead, what the court had before it was a copyright infringement action, where public.resource.org argued, as a defense, that distributing these standards should not be copyright infringement because they are necessary for people to understand the law. That adds an additional wrinkle--the court needs to not only address the end goal (making the law accessible), but the specific means public.resource.org chose to achieve that goal (distributing copyrighted standards). The complexity of the opinion, thus, arises out of the wrinkles of the test case brought by public.resource.org. I also submit that a lot of complexity arises from the fact that the court really doesn't want to do the most straightforward thing, which is to say: that the standards continue to be copyrighted, but these laws are all invalid for incorporating obligations by reference from works that are not public accessible. What really happened here is that over decades legislatures worked themselves into a pickle, publicly incorporating these standards without thinking about the implications vis-a-vis copyright and public access. Now, the court is stuck trying to avoid the outcome of declaring all these laws invalid.
- deleted 8y ago
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- pwg 8y ago
  Reading through the meat of the 40 pages, the appeals court did two things: 1) reversed the lower courts summary judgement So public.resource.org ("PRO") "won" in the sense that the lower courts summary judgement was reversed, so PRO no longer has their hands tied by that summary judgement, for the moment. 2) remanded the case back to the lower court, because they found that there existed genuine issues of material fact such that the case was not suitable to be decided by summary judgement. And they remanded the case back to the lower court to analyze those genuine issues of material fact more carefully. What this means is that the case is not over, in fact, it has only just begun, because the appeals court has directed the lower court to analyze PRO's copying of the various standards under the copyright fair use doctrine to determine if each instance was, or was not, fair use. So this is not a "win" outright as in: one can copy the standards because they are referenced by the law. In fact, in more than a few locations in the decision the appeals court went out of their way to state that such a simple decision outcome was not possible for cases such as this. So the case continues, and PRO has more work to do to show, almost to a standard by standard basis, whether their copying was fair use based upon the standard, the law that incorporates it, and the directions given by the appeals court. However, the appeals court did indicate that there were quite a number of instances where, were the case facts developed sufficiently for them to render a decision on the merits, that many of PRO's copies might very well be seen as fair use copies. Other copies, maybe not so much. So it is a step in the right direction, but the situation is far from settled. edit: fix typo
  - testplzignore 8y ago
    I found these bits quite entertaining: > the district court will need to develop a fuller record > Instead, it might consider directing the parties, who poorly served the court by treating the standards interchangeably, to file briefs addressing whether the standards are susceptible to groupings that are relevant to the fair use analysis. Pretty much calling out everyone involved on their laziness. I can imagine the judge shaking his head in disappointment when writing this opinion.
- alasdair_ 8y ago
  > it is amazing that the appeal opinion requires 40 pages when, in essence, the question is only whether people subject to US laws must pay to know what the law is. This is actually a tough case. Someone, or some organisation, spent a lot of time and money making a standard and protected it by copyright. They did not ask to be part of a law - that was something the people who made the law decided - and really, the people who made the law should have licensed the standards.
  - rahimnathwani 8y ago
    "They did not ask to be part of a law" How do we know that they did not ask?
  - DannyBee 8y ago
    "They did not ask to be part of a law". This is mostly false, actually. They exist as model codes to be a part of building codes in a lot of cases. They serve no other purposes. Nobody is sitting around making building codes as a hobby that are accidentally getting incorporated into law. Additionally, in the case such a thing did happen, the authors would have have recourse - not against the public, but against the government, for a taking.
    - pwg 8y ago
      While I can't cite a source, it also would be very believable to learn that lobbyists from some of the larger standards orgs (the ones that more or less stand alone, like e.g. the NFPA) are encouraging politicians to actually reference "the standard" rather than write "law language" to define something already present in the standard. Potentially with a "back of the mind" thought by the lobbyist of "this will drive more sales for us".
      - Anechoic 8y ago
        it also would be very believable to learn that lobbyists from some of the larger standards orgs [...]are encouraging politicians to actually reference "the standard This is true thought by the lobbyist of "this will drive more sales for us". This is not. The money just isn't all that much, the industries want standards incorporated into laws to that organizations have one well-tested set of rules to follow across the country, rather than having to follow dozens/hundreds/thousands of variations across various jurisdictions.
Animats 8y ago
Now the question arises, is incorporation by reference into law a 5th amendment "taking", requiring payment by the government incorporating the standard into law. Or is that "fair use" by the Government?
- ummonk 8y ago
  Right, the issue doesn't seem to be the fact that the law is being republished, but the fact that some government entity is making use of a private copyrighted standard in its laws in the first place.
- neekburm 8y ago
  I think the court neatly avoided that question by relying on fair use rather than extinguishment of copyright as a basis for allowing the copying of the standards. A "taking" generally requires the government to deprive the owner of all reasonable use of the property. If the government places reasonable limitations on the use of property but doesn't actually deprive the owner of the property, it's not a taking. See Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
larkeith 8y ago
Of note: "Because the district court erred in its application of both fair use doctrines, we reverse and remand, leaving for another day the far thornier question of whether standards retain their copyright after they are incorporated by reference into law."
aj7 8y ago
If you go to their website, it looks pretty threadbare. I don’t know where the budget will come from to purchase the standards once for pdf-ization. I am personally interested in ASTM mechanical standards. ASTM has a reading room where you promise not to print. But the ASTM reading room does not have a search capability limited to itself. ASTM searches revert to mostly (or all?) for-sale publications. This makes the reading room almost useless.
- DannyBee 8y ago
  Carl Malamud takes donations, and is funded by a lot of good people. He was also behind the efforts to scan federal reporters (see https://yeswescan.org/index.court.html https://yeswescan.org/index.court.html) , etc.
  - brentonator 8y ago
    When I saw they won this case (I didn't know the case was in action), I donated what I could. I donate to the EFF and they support him with legal counsel. I've been a vocal opponent of the law not including the standards they reference due to copyright. Once it's enacted into law you should lose all right to prevent dissemination of those standards. It's not like the government is ever knocking on your door as a standards designer to enact your private standard as law. I think a large part of why housing in Florida is expensive is because of the prohibitively expensive standards you need to purchase to even determine what you have to do to legally build a home.
deleted 8y ago
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derekp7 8y ago
I think a good resolution going forward would be for the standards author to divide their work into two sections. One section would explain in plain english the regulations and how to follow them -- that could comprise the bulk of the work. Then an appendix could be written in legalese that would be intended to be incorporated into the actual building codes. This part they could make available to legislative bodies for free publication, but the useful part (the explanations and how-to-follow guidelines) would still be the proprietary part. Kind of like giving away the software, but charging for the users manual.
- taneq 8y ago
  More like an English description of the software followed by the source. The problem is that if the first part were sufficient to define the law then the second part would be unnecessary.
Latteland 8y ago
This seems like an obvious right. You should have to right to know about the laws. There's shouldn't be secret laws - like say how they decide on right to fly. Also we should disallow non-competes (they only help big companies, they hurt individuals).
- tedunangst 8y ago
  Is it equally obvious that lawmakers have the right to cite a copyrighted work and deprive it of copyrighted status?
  - rahimnathwani 8y ago
    I'm not arguing that it should be deprived of copyright protection. Just that it should be accessible. That access could be provided by means other than removing copyright status, e.g. through fair use exceptions, or by having the government buy copies for every public library, or for every household. But even if the only way to fix this were to extinguished copyright for the referenced works, this doesn't add a huge burden on lawmakers. They created copyright, after all, and the same powers they used to create it can be used to weaken it.
    - briandear 8y ago
      Why not just make the law available upon request at the office in charge of enforcement? People that need to know about the law can visit the agency responsible or, they can pay a fee and order a personal copy. Buying it for every library or household seems ridiculous since it’s pretty clear that the vast majority of people wouldn’t even use it.
      - mark-r 8y ago
        This misses the obvious benefits of making it searchable. Even if the owner of the standard provides a search function, there's no guarantee that it will be as useful or effective as e.g. Google search.
      - 8y ago
8bitsrule 8y ago
in essence, the question is only whether people subject to US laws must pay to know what the law is. I've always thought that, were it up to the Founding Fathers, the answer would be: obviously not. I was always taught that 'ignorance of the law is no excuse' . However, as a kid, when I asked the librarian where I could read the law, she laughed. (Defeatedly, I suppose.) And so, once again, the law is used to defeat liberty ... in the service of privilege.
- earenndil 8y ago
  Well, you still have to pay -- for internet access.
  - thayne 8y ago
    Most people have access to a public library with internet access.
    - Broken_Hippo 8y ago
      I encourage you to use a library for your internet access needs. Do it for a while without using your vehicle - cheap public transport only if you have it. Check out small town libraries, their hours and their range of free users. Just because folks technically have access doesn't mean that they can access such a thing.
      - colejohnson66 8y ago
        Also, most (if not all) libraries I’ve been to require a library card to use their computers. And to get a library card, you need some kind of proof of address. Homeless people don’t have addresses
        Broken_Hippo 8y ago
        Yeah, this is a serious issue and one I wish wasn't the case.
nightcracker 8y ago
We laugh at history, where the common man could not read and had to rely on their priest to tell them what the bible said and how to live their life. Things aren't all that different today.
speedplane 8y ago
This is just one of many fights concerning free access to the law. There are easily three other lawsuits going on now that I can think of concerning the issue, and the underlying issue is pretty basic: the public should have free access to the rules that govern them. Sadly, there are a number of incumbent commercial interests in both the government and private sector that fund themselves by being gatekeepers. There is just a small group that seeks to free the law for moral reasons and a few more that do so for legitimate commercial interests, but they have an uphill and lonely battle. I fear that lawsuits like this are not going to be sufficient (judges often decide cases in the middle, not on absolutionist moral principles). The real answer will likely have to come from legislation, and free access to the law does not seem to be anywhere near the top of most politicians (or citizens) priorities.
- Y_Y 8y ago
  > Absolution definition, act of absolving; a freeing from blame or guilt; release from consequences, obligations, or penalties I've never seen the word "absolutionist" before. Should this be "absolutist"?
  - adrianmonk 8y ago
    Or perhaps "abolitionist"? As in someone who wants to completely abolish the practice of forcing people to pay if they want to know what is legal.
  - speedplane 8y ago
    Yup thanks, absolutist is the correct word not sure where absolutionist came from, but even looking at it now, feels like it should be a real word.
- psergeant 8y ago
  > Sadly, there are a number of incumbent commercial interests This sentence basically sums up all that’s wrong with America in 2018.
- rayiner 8y ago
  What will the legislative fix be? Governments can’t just decide to make these privately developed standards free for public use. So they can pay to free it up (costs the taxpayers money) or they can write their own standards (costs tbe taxpayers even more money). Someone has to bankroll these efforts. The way it happens now is that the people who need the standards (the ones building regulated products) are the ones that pay for standardization. Indeed, they might well be ASTM members themselves (the ASTM has 30,000 members, including producers and users). So you’re asking the public to take on a major expense to vindicate the abstract principle that, if some random person wanted to look up what the standard requires, they should be able to do so for free. That might well be what the Constitution requires. But you can see why nobody wants to do it.
mrleiter 8y ago
It's important to note that the laws itself are public, but that the laws refer to guidelines published by Standard Defining Organisations (SDOs), which in turn are not freely accessible. This judgment means that PRO now still has to pay for an initial copy of a guideline, but that they don't break copyright by distributing it freely (fair use).
- dragonwriter 8y ago
  No, it just means that they will get a chance in court to present evidence to make the case that it is fair use; this reverses the trial courtsummary judgement, but does not direct a judgement in favor of PRO.
madez 8y ago
As someone with a bit of a distance to this, this seems grotesque, bizarre, and disconcerting. That the law is not free is The Onion material. I cannot fathom how one must fight before a court for it. This extreme hypercapitalism is disturbing.
- brentonator 8y ago
  I'm not even particularly affected by the issue in general. When I was reading my state law and found it referenced standards you can't publicly access, I was unreasonably peeved. I wrote letters to my representatives and congressmen about it but didn't expect much. I felt endorphins reading this today because this is the first time I've heard of the government not fucking something up in months. It's a Dumb and Dumber "So you're saying there's a chance" kind of satisfying moment. I'm hopeful Disney & friends finally get the middle finger in 2023 on copyright extension.
stilley2 8y ago
That document was incredibly readable. Props to the author for taking the time to break down the issue so well.
jaclaz 8y ago
As a side-side note, the same happens for "International Standards" most if not all ISO documents: https://www.iso.org/ https://www.iso.org/ are available only for a fee (and are not redistributable), so when you see a product proudly presented as being conformant to "ISO xxxx" you have no real way (as a user) to know what (the heck) it is conformant to. In some occasions I needed to check these, finding out how the tests actually performed on some items have nothing (or little) to do with the intended use or on how the actual item is advertised or perceived.
- F_r_k 8y ago
  It's illegal, but I would love to see a torrent with all these iso norms out there
  - delfinom 8y ago
    How is it illegal? The specs are copyrighted material written and maintained by private entities not government. And a immense majority (many thousands) of these specs are not required by government. I believe just in the case of this lawsuit it involves specs that some laws required.
    - M2Ys4U 8y ago
      I suspect that the person you are replying to is noting that using a torrent of ISO specs would be illegal, not that the ISO has copyright over the specs is illegal.
- rayiner 8y ago
  ISO is composed of people and companies that develop standards for other people to use. What is wrong with charging for that? What’s the other business model for paying for that effort? The “open” and “free” HTML standardization process, for example, has totally broken down, and now is “might makes right” (whatever Chrome does is the standard). Would that be preferable for ISO standards? It costs money to develop standards. Paying a fee to access them (so long as you are not forced to by law) is just about the least objectionable way of paying for the work to be done.
cjhanks 8y ago
It seems incomprehensible that a person should be obligated to follow a law that they cannot know without money. I haven't heard of of this fight before - but I really hope `public.resource.org` keeps up the fight.
csense 8y ago
I think the rules should be simple: If the government ever mentions any part of a standard in any law or binding regulation, that standard becomes public domain, forever. Because the law must be publicly available. This would effectively be government action taking rights away from the copyright holder. So, when such a mention occurs, the government must pay a fair price to the copyright owner, as required by the eminent domain clause of the US Constitution. This satisfies the public interest in making the standards freely available, while making sure the people who developed the standards are paid for their work. Thus preserving the economic viability of having the private sector develop these technical standards.
- deleted 8y ago
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ISL 8y ago
It's Saturday, so I had time to read the entire ruling. If anything, it calls out the district court for not having done its homework.

273 points by DannyBee 8y ago

I unfortunately haven't seen it covered in news yet, so i don't have a better URL. But it's the appeal of this: https://www.eff.org/deeplinks/2017/02/federal-court-rules-against-publicresourceorg-says-public-safety-laws-can-be https://www.eff.org/deeplinks/2017/02/federal-court-rules-ag... The appeal opinion is a complete and total vindication for Carl and public.resource.org, which is awesome.

Dotnaught 8y ago
https://www.theregister.co.uk/2018/07/17/appeals_court_copyright_fair_use/ https://www.theregister.co.uk/2018/07/17/appeals_court_copyr...

rahimnathwani 8y ago

This is a great outcome, but it is amazing that the appeal opinion requires 40 pages when, in essence, the question is only whether people subject to US laws must pay to know what the law is. What's interesting about the case and the legal opinion is that public.resource.org's use is considered fair use, but it's still the case that public.resource.org must pay to get an initial copy of each standard, before it can be published on that site. So access to the law is still not free of charge.

rayiner 8y ago
It's not an easy case at all (and in fact, the court punts on the big-picture question, deciding the case instead on fair use). There are two separate issues: (1) "whether people subject to US laws must pay to know what the law is," and (2) whether a legislative body can deprive the private entity of copyright protection in a work by incorporating that work by reference into a law or regulation. Answering "yes" to the first question does not resolve this case, where a legislative body incorporated a private entity's technical standard by reference, without the private entity abandoning copyright in that work. The question is, what happens now? Does the copyrighted work automatically become public domain (what public.resource.org argued)? Or does the copyright remain valid, but instead we find the legislative body in violation of its obligation to ensure public access to the law (and, perhaps, find the law invalid on that basis)? It is not necessarily the case, as public.resource.org argued, that the requirement of public access automatically eliminates copyright in standards that have been incorporated by reference. It may instead create an affirmative obligation on the part of legislative bodies to enter into appropriate arrangements with the private entities that develop the standards.
- rahimnathwani 8y ago
  Yes, I didn't mean to suggest it was an easy case. I only read half the opinion but can see that there are several issues, and many citations of precedent to support the opinion. But, as a non-lawyer, the fact that this level of analysis of statute and case law is required in order to make such a small step toward making the law accessible, is amazing. (EDIT: I mean, I understand that it is this way, but don't feel it should be this way) I say it's a small step because: - as you say, the court confirmed fair use, but did not consider the question of whether copyright is extinguished - each referenced standard is still locked behind payment until and unless this site or another pays for a copy and scans it If, as you suggest might be the case, it is the "obligation of legislative bodies to ensure public access to the law by refraining from incorporating obligations from sources that are not publicly accessible", then what becomes of those laws which reference standards which are not publicly accessible today? Do they become unconstitutional or void, until such time that the standards do become publily accessible? Would publication on public.resource.org be enough to count as 'publicly accessible'? And if it turns out that copyright is actually extinguished due a document's to incorporation (by reference) into law, would the former copyright owner have grounds to seek damages against the legislature? EDIT: in your subsequent edit you sort of answered one of my questions "(and, perhaps, find the law invalid on that basis)"
  - rayiner 8y ago
    Let's step back. What is the principle we seek to vindicate? That principle is that the law should be accessible to those who are charged with following it. Courts, however, rule on specific cases, not general principles. This case requires 40 pages because that big-picture principle is only tangentially implicated, and the court and the parties have to engage in some contortions to get to it. Public.resource.org isn't charged with failing to follow a law that was not publicly available. That would be the straightforward test case, and the straightforward resolution would be to find the law invalid on that basis. Instead, what the court had before it was a copyright infringement action, where public.resource.org argued, as a defense, that distributing these standards should not be copyright infringement because they are necessary for people to understand the law. That adds an additional wrinkle--the court needs to not only address the end goal (making the law accessible), but the specific means public.resource.org chose to achieve that goal (distributing copyrighted standards). The complexity of the opinion, thus, arises out of the wrinkles of the test case brought by public.resource.org. I also submit that a lot of complexity arises from the fact that the court really doesn't want to do the most straightforward thing, which is to say: that the standards continue to be copyrighted, but these laws are all invalid for incorporating obligations by reference from works that are not public accessible. What really happened here is that over decades legislatures worked themselves into a pickle, publicly incorporating these standards without thinking about the implications vis-a-vis copyright and public access. Now, the court is stuck trying to avoid the outcome of declaring all these laws invalid.
deleted 8y ago
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pwg 8y ago
Reading through the meat of the 40 pages, the appeals court did two things: 1) reversed the lower courts summary judgement So public.resource.org ("PRO") "won" in the sense that the lower courts summary judgement was reversed, so PRO no longer has their hands tied by that summary judgement, for the moment. 2) remanded the case back to the lower court, because they found that there existed genuine issues of material fact such that the case was not suitable to be decided by summary judgement. And they remanded the case back to the lower court to analyze those genuine issues of material fact more carefully. What this means is that the case is not over, in fact, it has only just begun, because the appeals court has directed the lower court to analyze PRO's copying of the various standards under the copyright fair use doctrine to determine if each instance was, or was not, fair use. So this is not a "win" outright as in: one can copy the standards because they are referenced by the law. In fact, in more than a few locations in the decision the appeals court went out of their way to state that such a simple decision outcome was not possible for cases such as this. So the case continues, and PRO has more work to do to show, almost to a standard by standard basis, whether their copying was fair use based upon the standard, the law that incorporates it, and the directions given by the appeals court. However, the appeals court did indicate that there were quite a number of instances where, were the case facts developed sufficiently for them to render a decision on the merits, that many of PRO's copies might very well be seen as fair use copies. Other copies, maybe not so much. So it is a step in the right direction, but the situation is far from settled. edit: fix typo
- testplzignore 8y ago
  I found these bits quite entertaining: > the district court will need to develop a fuller record > Instead, it might consider directing the parties, who poorly served the court by treating the standards interchangeably, to file briefs addressing whether the standards are susceptible to groupings that are relevant to the fair use analysis. Pretty much calling out everyone involved on their laziness. I can imagine the judge shaking his head in disappointment when writing this opinion.
alasdair_ 8y ago
> it is amazing that the appeal opinion requires 40 pages when, in essence, the question is only whether people subject to US laws must pay to know what the law is. This is actually a tough case. Someone, or some organisation, spent a lot of time and money making a standard and protected it by copyright. They did not ask to be part of a law - that was something the people who made the law decided - and really, the people who made the law should have licensed the standards.
- rahimnathwani 8y ago
  "They did not ask to be part of a law" How do we know that they did not ask?
- DannyBee 8y ago
  "They did not ask to be part of a law". This is mostly false, actually. They exist as model codes to be a part of building codes in a lot of cases. They serve no other purposes. Nobody is sitting around making building codes as a hobby that are accidentally getting incorporated into law. Additionally, in the case such a thing did happen, the authors would have have recourse - not against the public, but against the government, for a taking.
  - pwg 8y ago
    While I can't cite a source, it also would be very believable to learn that lobbyists from some of the larger standards orgs (the ones that more or less stand alone, like e.g. the NFPA) are encouraging politicians to actually reference "the standard" rather than write "law language" to define something already present in the standard. Potentially with a "back of the mind" thought by the lobbyist of "this will drive more sales for us".
    - Anechoic 8y ago
      it also would be very believable to learn that lobbyists from some of the larger standards orgs [...]are encouraging politicians to actually reference "the standard This is true thought by the lobbyist of "this will drive more sales for us". This is not. The money just isn't all that much, the industries want standards incorporated into laws to that organizations have one well-tested set of rules to follow across the country, rather than having to follow dozens/hundreds/thousands of variations across various jurisdictions.

Animats 8y ago

Now the question arises, is incorporation by reference into law a 5th amendment "taking", requiring payment by the government incorporating the standard into law. Or is that "fair use" by the Government?

ummonk 8y ago
Right, the issue doesn't seem to be the fact that the law is being republished, but the fact that some government entity is making use of a private copyrighted standard in its laws in the first place.
neekburm 8y ago
I think the court neatly avoided that question by relying on fair use rather than extinguishment of copyright as a basis for allowing the copying of the standards. A "taking" generally requires the government to deprive the owner of all reasonable use of the property. If the government places reasonable limitations on the use of property but doesn't actually deprive the owner of the property, it's not a taking. See Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

larkeith 8y ago

Of note: "Because the district court erred in its application of both fair use doctrines, we reverse and remand, leaving for another day the far thornier question of whether standards retain their copyright after they are incorporated by reference into law."

aj7 8y ago

If you go to their website, it looks pretty threadbare. I don’t know where the budget will come from to purchase the standards once for pdf-ization. I am personally interested in ASTM mechanical standards. ASTM has a reading room where you promise not to print. But the ASTM reading room does not have a search capability limited to itself. ASTM searches revert to mostly (or all?) for-sale publications. This makes the reading room almost useless.

DannyBee 8y ago
Carl Malamud takes donations, and is funded by a lot of good people. He was also behind the efforts to scan federal reporters (see https://yeswescan.org/index.court.html https://yeswescan.org/index.court.html) , etc.
- brentonator 8y ago
  When I saw they won this case (I didn't know the case was in action), I donated what I could. I donate to the EFF and they support him with legal counsel. I've been a vocal opponent of the law not including the standards they reference due to copyright. Once it's enacted into law you should lose all right to prevent dissemination of those standards. It's not like the government is ever knocking on your door as a standards designer to enact your private standard as law. I think a large part of why housing in Florida is expensive is because of the prohibitively expensive standards you need to purchase to even determine what you have to do to legally build a home.

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derekp7 8y ago

I think a good resolution going forward would be for the standards author to divide their work into two sections. One section would explain in plain english the regulations and how to follow them -- that could comprise the bulk of the work. Then an appendix could be written in legalese that would be intended to be incorporated into the actual building codes. This part they could make available to legislative bodies for free publication, but the useful part (the explanations and how-to-follow guidelines) would still be the proprietary part. Kind of like giving away the software, but charging for the users manual.

taneq 8y ago
More like an English description of the software followed by the source. The problem is that if the first part were sufficient to define the law then the second part would be unnecessary.

Latteland 8y ago

This seems like an obvious right. You should have to right to know about the laws. There's shouldn't be secret laws - like say how they decide on right to fly. Also we should disallow non-competes (they only help big companies, they hurt individuals).

tedunangst 8y ago
Is it equally obvious that lawmakers have the right to cite a copyrighted work and deprive it of copyrighted status?
- rahimnathwani 8y ago
  I'm not arguing that it should be deprived of copyright protection. Just that it should be accessible. That access could be provided by means other than removing copyright status, e.g. through fair use exceptions, or by having the government buy copies for every public library, or for every household. But even if the only way to fix this were to extinguished copyright for the referenced works, this doesn't add a huge burden on lawmakers. They created copyright, after all, and the same powers they used to create it can be used to weaken it.
  - briandear 8y ago
    Why not just make the law available upon request at the office in charge of enforcement? People that need to know about the law can visit the agency responsible or, they can pay a fee and order a personal copy. Buying it for every library or household seems ridiculous since it’s pretty clear that the vast majority of people wouldn’t even use it.
    - mark-r 8y ago
      This misses the obvious benefits of making it searchable. Even if the owner of the standard provides a search function, there's no guarantee that it will be as useful or effective as e.g. Google search.
    - 8y ago

8bitsrule 8y ago

in essence, the question is only whether people subject to US laws must pay to know what the law is. I've always thought that, were it up to the Founding Fathers, the answer would be: obviously not. I was always taught that 'ignorance of the law is no excuse' . However, as a kid, when I asked the librarian where I could read the law, she laughed. (Defeatedly, I suppose.) And so, once again, the law is used to defeat liberty ... in the service of privilege.

earenndil 8y ago
Well, you still have to pay -- for internet access.
- thayne 8y ago
  Most people have access to a public library with internet access.
  - Broken_Hippo 8y ago
    I encourage you to use a library for your internet access needs. Do it for a while without using your vehicle - cheap public transport only if you have it. Check out small town libraries, their hours and their range of free users. Just because folks technically have access doesn't mean that they can access such a thing.
    - colejohnson66 8y ago
      Also, most (if not all) libraries I’ve been to require a library card to use their computers. And to get a library card, you need some kind of proof of address. Homeless people don’t have addresses
      - Broken_Hippo 8y ago
        Yeah, this is a serious issue and one I wish wasn't the case.

nightcracker 8y ago

We laugh at history, where the common man could not read and had to rely on their priest to tell them what the bible said and how to live their life. Things aren't all that different today.

speedplane 8y ago

This is just one of many fights concerning free access to the law. There are easily three other lawsuits going on now that I can think of concerning the issue, and the underlying issue is pretty basic: the public should have free access to the rules that govern them. Sadly, there are a number of incumbent commercial interests in both the government and private sector that fund themselves by being gatekeepers. There is just a small group that seeks to free the law for moral reasons and a few more that do so for legitimate commercial interests, but they have an uphill and lonely battle. I fear that lawsuits like this are not going to be sufficient (judges often decide cases in the middle, not on absolutionist moral principles). The real answer will likely have to come from legislation, and free access to the law does not seem to be anywhere near the top of most politicians (or citizens) priorities.

Y_Y 8y ago
> Absolution definition, act of absolving; a freeing from blame or guilt; release from consequences, obligations, or penalties I've never seen the word "absolutionist" before. Should this be "absolutist"?
- adrianmonk 8y ago
  Or perhaps "abolitionist"? As in someone who wants to completely abolish the practice of forcing people to pay if they want to know what is legal.
- speedplane 8y ago
  Yup thanks, absolutist is the correct word not sure where absolutionist came from, but even looking at it now, feels like it should be a real word.
psergeant 8y ago
> Sadly, there are a number of incumbent commercial interests This sentence basically sums up all that’s wrong with America in 2018.
rayiner 8y ago
What will the legislative fix be? Governments can’t just decide to make these privately developed standards free for public use. So they can pay to free it up (costs the taxpayers money) or they can write their own standards (costs tbe taxpayers even more money). Someone has to bankroll these efforts. The way it happens now is that the people who need the standards (the ones building regulated products) are the ones that pay for standardization. Indeed, they might well be ASTM members themselves (the ASTM has 30,000 members, including producers and users). So you’re asking the public to take on a major expense to vindicate the abstract principle that, if some random person wanted to look up what the standard requires, they should be able to do so for free. That might well be what the Constitution requires. But you can see why nobody wants to do it.

mrleiter 8y ago

It's important to note that the laws itself are public, but that the laws refer to guidelines published by Standard Defining Organisations (SDOs), which in turn are not freely accessible. This judgment means that PRO now still has to pay for an initial copy of a guideline, but that they don't break copyright by distributing it freely (fair use).

dragonwriter 8y ago
No, it just means that they will get a chance in court to present evidence to make the case that it is fair use; this reverses the trial courtsummary judgement, but does not direct a judgement in favor of PRO.

madez 8y ago

As someone with a bit of a distance to this, this seems grotesque, bizarre, and disconcerting. That the law is not free is The Onion material. I cannot fathom how one must fight before a court for it. This extreme hypercapitalism is disturbing.

brentonator 8y ago
I'm not even particularly affected by the issue in general. When I was reading my state law and found it referenced standards you can't publicly access, I was unreasonably peeved. I wrote letters to my representatives and congressmen about it but didn't expect much. I felt endorphins reading this today because this is the first time I've heard of the government not fucking something up in months. It's a Dumb and Dumber "So you're saying there's a chance" kind of satisfying moment. I'm hopeful Disney & friends finally get the middle finger in 2023 on copyright extension.

stilley2 8y ago

That document was incredibly readable. Props to the author for taking the time to break down the issue so well.

jaclaz 8y ago

As a side-side note, the same happens for "International Standards" most if not all ISO documents: https://www.iso.org/ https://www.iso.org/ are available only for a fee (and are not redistributable), so when you see a product proudly presented as being conformant to "ISO xxxx" you have no real way (as a user) to know what (the heck) it is conformant to. In some occasions I needed to check these, finding out how the tests actually performed on some items have nothing (or little) to do with the intended use or on how the actual item is advertised or perceived.

F_r_k 8y ago
It's illegal, but I would love to see a torrent with all these iso norms out there
- delfinom 8y ago
  How is it illegal? The specs are copyrighted material written and maintained by private entities not government. And a immense majority (many thousands) of these specs are not required by government. I believe just in the case of this lawsuit it involves specs that some laws required.
  - M2Ys4U 8y ago
    I suspect that the person you are replying to is noting that using a torrent of ISO specs would be illegal, not that the ISO has copyright over the specs is illegal.
rayiner 8y ago
ISO is composed of people and companies that develop standards for other people to use. What is wrong with charging for that? What’s the other business model for paying for that effort? The “open” and “free” HTML standardization process, for example, has totally broken down, and now is “might makes right” (whatever Chrome does is the standard). Would that be preferable for ISO standards? It costs money to develop standards. Paying a fee to access them (so long as you are not forced to by law) is just about the least objectionable way of paying for the work to be done.

cjhanks 8y ago

It seems incomprehensible that a person should be obligated to follow a law that they cannot know without money. I haven't heard of of this fight before - but I really hope `public.resource.org` keeps up the fight.

csense 8y ago

I think the rules should be simple: If the government ever mentions any part of a standard in any law or binding regulation, that standard becomes public domain, forever. Because the law must be publicly available. This would effectively be government action taking rights away from the copyright holder. So, when such a mention occurs, the government must pay a fair price to the copyright owner, as required by the eminent domain clause of the US Constitution. This satisfies the public interest in making the standards freely available, while making sure the people who developed the standards are paid for their work. Thus preserving the economic viability of having the private sector develop these technical standards.

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ISL 8y ago

It's Saturday, so I had time to read the entire ruling. If anything, it calls out the district court for not having done its homework.