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I don't mean to come across as indignant or whatever, but I don't believe this case is complicated at all. US laws are public domain, and the legislature erred

I don't mean to come across as indignant or whatever, but I don't believe this case is complicated at all. US laws are public domain, and the legislature erred in assigning copyright for something in the public domain. This happens all the time, it's called plundering the commons, and the only reason the court "struggles" with it is that to identify it as such threatens to upend centuries of the practice (or, honestly, call out its own practice). The case itself isn't complicated. The corrupt intertwining of corporate interests and the US government is just a gross mess.

rayiner 8y ago
You’re confusing the facts. The legislature didn’t assign copyright to something in the public domain. The standards were preexisting, privately developed and copyrighted. You’re asking for the exact opposite of “plundering the commons”—you’re asking for private property to be taken for public use without compensation.
- crankylinuxuser 8y ago
  So, a serious question: We have eminent domain for property and the like. Why isn't it used for copyright/patents for purposes of the public good?
  - rayiner 8y ago
    The government does use eminent-domain like powers for patents: https://en.wikipedia.org/wiki/Government_patent_use_(United_States) https://en.wikipedia.org/wiki/Government_patent_use_(United_.... But using eminent domain costs money (the government must pay "just compensation"). That's a hard sell here. Take, for example, the ASTM standard on diesel fuel (an example used in the opinion). Only companies selling diesel fuel have to know what's in the standard--they are the ones charged with following the law, not Joe Everyday on the street. Using eminent domain would vindicate the abstract principle that the law should be freely accessible, but as a practical matter it would just save a few bucks for big companies that can afford to pay for the standards.
    - brentonator 8y ago
      The law is the law though. If you can afford to lobby to have your standard become law, then you should have made your business plan more robust than charging people to know the law. I don't really care that the standards organizations lose money from big corporations when thousands of small businesses gain free legal access to the laws governing their industry.
- camgunz 8y ago
  I don't think I am: 'Ever operated a tank barge and wondered what power source you would need for your cargo tank’s liquid overfill protection system to comply with the law? Probably not. But if you did, you might consider thumbing through the Code of Federal Regulations, where you would discover that one option is to hook up to an off-barge facility, provided that your system has “a 120-volt, 20-ampere explosion-proof plug that meets . . . NFPA 70, Articles 406.9 and 501-145.” 46 C.F.R. § 39.2009(a)(1)(iii)(B). Dig deeper and you would learn that NFPA 70 is not some obscure rule or regulation or agency guidance document but is instead another name for the “National Electrical Code,” a multi-chapter technical standard prepared by the National Fire Protection Association (the eponymous “NFPA”), detailing best practices for “electrical installations.” Complaint ¶ 66, American Society for Testing & Materials v. Public.Resource.Org, Inc. (ASTM), No. 1:13-cv- 01215 (D.D.C. Aug. 6, 2013) (“ASTM Compl.”), Dkt. No. 1, Joint Appendix (J.A.) 86. Parts of NFPA 70 have been incorporated into the statutes or regulations of at least forty- seven states and, as we have just seen, the federal government. American Insurance Ass’n Amicus Br. 5.' So an SDO develops a standard. No problem, that's private and copyright is theirs. Then than standard is incorporated into statues. The incorporated language is now public domain. I'm 100% ok compensating SDOs for their work, which is necessary and important. But that needs to happen before it becomes law.
  - howard941 8y ago
    I agree. Other than test code we develop internally for use in develop, every product I work on is subject to some level of testing at Nationally Recognized Testing Laboratory for standards compliance. Qualification makes our products easier to sell, and the system works fairly well because they're developed by voting in our industrial membership groups such as IEEE and NEMA, then written into safety codes like the NEC published by NFPA. The adoption as express law by whichever body has jurisdiction over the product is the heart of the problem because At every one of those steps my employer is paying something. Except for the adoption by the authority having jurisdiction, which along with the public it represents appears to be free riders despite providing a public benefit and having taxing authority. I suppose my employer could foot part of the bill for the SDOs as a cost of doing business in all of those jurisdictions but I'm not sure how difficult it would be given that these govt entities vary in size from states down to municipalities. Nor is it clear how equitable it would be to tax only domestic OEMs but not the foreign ones. How are the overseas SDOs funded?
- TheCoelacanth 8y ago
  A copyright is not private property. It is a privilege granted by Congress that has some property-like qualities. The copyright owner is not deprived of anything by their copyrighted work becoming public domain except for the enforcement of that copyright by the government.

rayiner 8y ago

You’re confusing the facts. The legislature didn’t assign copyright to something in the public domain. The standards were preexisting, privately developed and copyrighted. You’re asking for the exact opposite of “plundering the commons”—you’re asking for private property to be taken for public use without compensation.

crankylinuxuser 8y ago
So, a serious question: We have eminent domain for property and the like. Why isn't it used for copyright/patents for purposes of the public good?
- rayiner 8y ago
  The government does use eminent-domain like powers for patents: https://en.wikipedia.org/wiki/Government_patent_use_(United_States) https://en.wikipedia.org/wiki/Government_patent_use_(United_.... But using eminent domain costs money (the government must pay "just compensation"). That's a hard sell here. Take, for example, the ASTM standard on diesel fuel (an example used in the opinion). Only companies selling diesel fuel have to know what's in the standard--they are the ones charged with following the law, not Joe Everyday on the street. Using eminent domain would vindicate the abstract principle that the law should be freely accessible, but as a practical matter it would just save a few bucks for big companies that can afford to pay for the standards.
  - brentonator 8y ago
    The law is the law though. If you can afford to lobby to have your standard become law, then you should have made your business plan more robust than charging people to know the law. I don't really care that the standards organizations lose money from big corporations when thousands of small businesses gain free legal access to the laws governing their industry.
camgunz 8y ago
I don't think I am: 'Ever operated a tank barge and wondered what power source you would need for your cargo tank’s liquid overfill protection system to comply with the law? Probably not. But if you did, you might consider thumbing through the Code of Federal Regulations, where you would discover that one option is to hook up to an off-barge facility, provided that your system has “a 120-volt, 20-ampere explosion-proof plug that meets . . . NFPA 70, Articles 406.9 and 501-145.” 46 C.F.R. § 39.2009(a)(1)(iii)(B). Dig deeper and you would learn that NFPA 70 is not some obscure rule or regulation or agency guidance document but is instead another name for the “National Electrical Code,” a multi-chapter technical standard prepared by the National Fire Protection Association (the eponymous “NFPA”), detailing best practices for “electrical installations.” Complaint ¶ 66, American Society for Testing & Materials v. Public.Resource.Org, Inc. (ASTM), No. 1:13-cv- 01215 (D.D.C. Aug. 6, 2013) (“ASTM Compl.”), Dkt. No. 1, Joint Appendix (J.A.) 86. Parts of NFPA 70 have been incorporated into the statutes or regulations of at least forty- seven states and, as we have just seen, the federal government. American Insurance Ass’n Amicus Br. 5.' So an SDO develops a standard. No problem, that's private and copyright is theirs. Then than standard is incorporated into statues. The incorporated language is now public domain. I'm 100% ok compensating SDOs for their work, which is necessary and important. But that needs to happen before it becomes law.
- howard941 8y ago
  I agree. Other than test code we develop internally for use in develop, every product I work on is subject to some level of testing at Nationally Recognized Testing Laboratory for standards compliance. Qualification makes our products easier to sell, and the system works fairly well because they're developed by voting in our industrial membership groups such as IEEE and NEMA, then written into safety codes like the NEC published by NFPA. The adoption as express law by whichever body has jurisdiction over the product is the heart of the problem because At every one of those steps my employer is paying something. Except for the adoption by the authority having jurisdiction, which along with the public it represents appears to be free riders despite providing a public benefit and having taxing authority. I suppose my employer could foot part of the bill for the SDOs as a cost of doing business in all of those jurisdictions but I'm not sure how difficult it would be given that these govt entities vary in size from states down to municipalities. Nor is it clear how equitable it would be to tax only domestic OEMs but not the foreign ones. How are the overseas SDOs funded?
TheCoelacanth 8y ago
A copyright is not private property. It is a privilege granted by Congress that has some property-like qualities. The copyright owner is not deprived of anything by their copyrighted work becoming public domain except for the enforcement of that copyright by the government.