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If the standards are expensive to develop and maintain, seems better to require a license to implement a standard, or a fee to validate compliance to the standa

If the standards are expensive to develop and maintain, seems better to require a license to implement a standard, or a fee to validate compliance to the standards. But anyone should be able to view them freely (if they are required by law) Keeping them secret to practicioners-only seems perverse. And if they’re expensive, this is the effect.

rayiner 8y ago
To use an example from the opinion, consider the ASTM standard for diesel fuel. ASTM has been involved in automotive standardization since the 1910s and 1920s: https://www.astm.org/COMMIT/D02/timeline.pdf https://www.astm.org/COMMIT/D02/timeline.pdf. (ASTM was founded in 1898). The diesel fuel standard was first published in 1948. 42 U.S.C. § 17021, which incorporates it by reference, was enacted in 2007. That’s not necessarily true for every standard, but in general the industry creates the standard because it needs to; the government comes along later and mandates use of standards that have already become widely adopted and time tested.
- paulsutter 8y ago
  How is the standard verified in practice? If it’s a device, it could be license fee on the device. If it’s validated by a lab, the lab could pay a fee to validate to the standard. But the standard should be freely published if it’s a law I research many more things than I build. It seems bizarre to collect fees from me when I’m researching an idea rather than when I implement it
  - rayiner 8y ago
    In the case of standards incorporated into building codes, it would be verified by a county building inspector. But in most cases, I'd imagine verification only happens if there is a dispute about compliance. I'd agree with your last point but only if reworded slightly: "the law should only rely on standards that are freely published." To me, this is where public.resource.org is barking up the wrong tree. The obligation to ensure free access to the law rests squarely with the government. It's not ASTM's duty to allow free access to standards that the government incorporated into a standard. If the government wants to use copyrighted work, it should enter into appropriate arrangements with the standards organizations that produce it.
    - pm24601 8y ago
      Federal law determines copyright, not the constitution. > The obligation to ensure free access to the law rests squarely with the government. Equal protection clauses and First Amendment control here. Otherwise there is secret law. In a degenerate example, "the crime of murder and a proper defense shall be determined by standard 451 from the Bradbury Institute." The Bradbury Institute will be happy to sell a copy of that standard for $100 million.
      - rayiner 8y ago
        Copyright is created in the constitution. Once granted, it is a constitutionally protected property right. Equal protection and first amendment “control” but so does copyright. All must be given effect. To use a different example: the government makes a law establishing yor back yard as a polling place for federal elections. Surely, you agree that peoples’ right to vote cannot to be vindicated if they can’t freely access polling locations. But that doesn’t mean that you are obligated to let everyone onto your property! The law is the problem, and the government is at fault for failing to ensure that polling locations are publicly accessible.
        pm24601 8y ago
        > Surely, you agree that peoples’ right to vote cannot to be vindicated if they can’t freely access polling locations. There is no right to vote. So the rest of your case does not apply. Furthermore, I don't agree at all with your analogy. I feel that it is fundamental requirement to have complete access to the law. So any examples, that result in arguing to the contrary I disagree with up to and including the "taking of property". > But that doesn’t mean that you are obligated to let everyone onto your property! This is also not true. The legal concept of "Easement by Necessity" ( https://www.legalmatch.com/law-library/article/easement-by-necessity.html https://www.legalmatch.com/law-library/article/easement-by-n... ) applies so once again your example is incorrect.
        TheCoelacanth 8y ago
        Copyright is not created by the Constitution. The ability to create and enforce copyright is created by the Constitution.
dragonwriter 8y ago
> If the standards are expensive to develop and maintain, seems better to require a license to implement a standard That would, in many ways, make things worse: you narrow the pool across which payments are spread, thereby increasing implementation costs and reducing competition in any field covered by such a standard.

rayiner 8y ago

To use an example from the opinion, consider the ASTM standard for diesel fuel. ASTM has been involved in automotive standardization since the 1910s and 1920s: https://www.astm.org/COMMIT/D02/timeline.pdf https://www.astm.org/COMMIT/D02/timeline.pdf. (ASTM was founded in 1898). The diesel fuel standard was first published in 1948. 42 U.S.C. § 17021, which incorporates it by reference, was enacted in 2007. That’s not necessarily true for every standard, but in general the industry creates the standard because it needs to; the government comes along later and mandates use of standards that have already become widely adopted and time tested.

paulsutter 8y ago
How is the standard verified in practice? If it’s a device, it could be license fee on the device. If it’s validated by a lab, the lab could pay a fee to validate to the standard. But the standard should be freely published if it’s a law I research many more things than I build. It seems bizarre to collect fees from me when I’m researching an idea rather than when I implement it
- rayiner 8y ago
  In the case of standards incorporated into building codes, it would be verified by a county building inspector. But in most cases, I'd imagine verification only happens if there is a dispute about compliance. I'd agree with your last point but only if reworded slightly: "the law should only rely on standards that are freely published." To me, this is where public.resource.org is barking up the wrong tree. The obligation to ensure free access to the law rests squarely with the government. It's not ASTM's duty to allow free access to standards that the government incorporated into a standard. If the government wants to use copyrighted work, it should enter into appropriate arrangements with the standards organizations that produce it.
  - pm24601 8y ago
    Federal law determines copyright, not the constitution. > The obligation to ensure free access to the law rests squarely with the government. Equal protection clauses and First Amendment control here. Otherwise there is secret law. In a degenerate example, "the crime of murder and a proper defense shall be determined by standard 451 from the Bradbury Institute." The Bradbury Institute will be happy to sell a copy of that standard for $100 million.
    - rayiner 8y ago
      Copyright is created in the constitution. Once granted, it is a constitutionally protected property right. Equal protection and first amendment “control” but so does copyright. All must be given effect. To use a different example: the government makes a law establishing yor back yard as a polling place for federal elections. Surely, you agree that peoples’ right to vote cannot to be vindicated if they can’t freely access polling locations. But that doesn’t mean that you are obligated to let everyone onto your property! The law is the problem, and the government is at fault for failing to ensure that polling locations are publicly accessible.
      - pm24601 8y ago
        > Surely, you agree that peoples’ right to vote cannot to be vindicated if they can’t freely access polling locations. There is no right to vote. So the rest of your case does not apply. Furthermore, I don't agree at all with your analogy. I feel that it is fundamental requirement to have complete access to the law. So any examples, that result in arguing to the contrary I disagree with up to and including the "taking of property". > But that doesn’t mean that you are obligated to let everyone onto your property! This is also not true. The legal concept of "Easement by Necessity" ( https://www.legalmatch.com/law-library/article/easement-by-necessity.html https://www.legalmatch.com/law-library/article/easement-by-n... ) applies so once again your example is incorrect.
      - TheCoelacanth 8y ago
        Copyright is not created by the Constitution. The ability to create and enforce copyright is created by the Constitution.

dragonwriter 8y ago

> If the standards are expensive to develop and maintain, seems better to require a license to implement a standard That would, in many ways, make things worse: you narrow the pool across which payments are spread, thereby increasing implementation costs and reducing competition in any field covered by such a standard.