31 ms·

Can the Law Be Copyrighted?

195 points by Old_Thrashbarg 8y ago

robmaister 8y ago
Generalizing a bit, it's fascinating that it's possible to break the law without being able to afford knowing the law. You guys are definitely doing something that is innovative and a win for everyone (except ICC). Best of luck on the lawsuit!
ccsys 8y ago
Not only is it covered under copyright, the vast majority of ours is the intellectual property of UNIDROIT and it's merely licensed to member countries. Our legislators merely approve with the weight of authority, or disapprove, on behalf of their constituents. See Uniform Commercial Code et al.
Old_Thrashbarg 8y ago
UpCodes cofounder here, glad to see people care about this! Happy to answer any questions.
- paulgb 8y ago
  The idea that someone could copyright the law is completely antethetical to democracy. Good luck, you're on the right side!
  - YjSe2GMQ 8y ago
    Yeah it's absolute garbage. Reminds me of "Brazil" (1985), the Ministry of Information Retrieval (euphemism for torture) and their capital efficiency: > I understand this concern on behalf of the taxpayers. People want value for money. That's why we always insist on the principal of Information Retrieval charges. It's absolutely right and fair that those found guilty should pay for their periods of detention and the Information Retrieval procedures used in their interrogations. > Don't fight it son, confess quickly. If you hold out too long, you could jeopardize your credit rating.
  - Old_Thrashbarg 8y ago
    Thank you, glad to get such a supportive response from folks. After keeping quiet about it for a year and a half, it's good to finally get this lawsuit some attention.
- mauvehaus 8y ago
  Where do we send money? If you don't need it to pay for lawyers, buy some beer for yourselves, because this fight should be settled in favor of free (gratis) access to the law for everybody once and for all.
  - Old_Thrashbarg 8y ago
    Hey thanks for the support! The best thing you can do is just raise awareness. Either sharing this article or our advocacy page (https://up.codes/free-law https://up.codes/free-law) to raise awareness helps. It's hard to get most people to care, but this really does affect everyone. You can also follow us on Twitter: https://twitter.com/upcodes https://twitter.com/upcodes As you can see, we're not very good at social media and have small reach, so any help is appreciated!
    - mauvehaus 8y ago
      I am pretty much the last person on the planet who should be telling people how to use social media, but if you aren't on instagram, you should be. There's a pretty vibrant community of people in the building trades on there sharing photos of their work and exchanging information. I'm a recovering programmer turned woodworker with a pretty small following (200 and some followers, like I said, I'm the last person who should be telling people how to use social media), but I follow some carpenters and I'm consistently impressed with how much genuinely informative discussion takes place.
- tracker1 8y ago
  Would it be enough to change any verbiage and keep all the numbers/measurements and formulas the same?
  - Old_Thrashbarg 8y ago
    IANAL, but I think in the Public.Resource.Org / EFF case, they were claiming you could restate the law: """ Judge Tatel: you have to stay in the hospital for the three days. Can they not use three days? Mr. Verrilli: No, I think they could describe the fact that the standard says three days. But again ... Judge Tatel: More than two and less than four? Is that what they'd have to say? """ (p. 24 of DC Circuit oral argument, https://www.dropbox.com/s/bb0by3nm3dfql3v/gov.uscourts.cadc.17-7035.oral.20180514.pdf?dl=0 https://www.dropbox.com/s/bb0by3nm3dfql3v/gov.uscourts.cadc....) But to answer more directly, we host the law. If we change the precise wording of the law, then that's unacceptable. If you being tried, you can't say "well, I followed this alternative law and if you read that, you'll see it can be interpreted differently". No, the exact text of the law is the law, nothing else.
    - tracker1 8y ago
      But the law says standards of X. If the law prevents people from understanding X, then I would think one could argue that the law itself doesn't go into enough detail. If X isn't bound as part of the law, and it can't be re-stated while keeping the intent in tact, then imho it should be effectively invalid. Just my own opinion, not something the court system would uphold necessarily. I do find this appalling in practice. I would have less issue so long as the copyright holders for any legal specifications were limited to non-profit organizations with open accounting provisions.
- dahart 8y ago
  Really interesting issue you guys bumped into. I totally would have assumed that US legal codes were clearly and explicitly exempt from copyrights. Can you talk about your plan to defend your position at all? I'm somewhat curious if the ICC has a demonstrated history of licensing their codes to US governments. When cities & states publish the codes in print and online, presumably the ICC would need to be licensing those codes in written agreements, if the ICC's position has merit. It seems like it might be a problem for their case if they can't show a history of having granted copyrights everywhere the codes have been published before. Even though I think laws shouldn't be copyrightable, I have a small amount of sympathy for the ICC saying they did work that is now being used without any compensation. Hopefully they will update their expectations and figure out how to charge for some additional value beyond the text of the legal codes. But I'm also curious if you guys have started exploring any peaceful solutions such as revenue sharing, or paying the ICC for versions of codes, or support, or annotations, etc.?
  - Old_Thrashbarg 8y ago
    Yes, we assumed that too until we got sued! We thought we were all good after reading about Veeck case (in which ICC, whose codes we thought we could very safely put up, lost in the 5th circuit). I believe the ICC and state governments do reach agreements. For example, the Michigan state government's site instructs citizens to go buy the laws from ICC. Fun fact: the only play to read these Michigan laws for free online is UpCodes. We bought the physical books, sliced, scanned, OCRed, ingested and posted them. In terms of our plan, we're relying a lot on case law. We put 4 very clear examples on our advocacy page. (up.codes/free-law, see "Didn't ICC already litigate this case?" under the FAQ) > I have a small amount of sympathy for the ICC saying they did work that is now being used without any compensation. Just don't forget that the codes are written by volunteers who never see a penny AFAIK. ICC organizers the volunteers (which is an important time-consuming task I do recognize). Also, don't think they have no compensation. The majority of ICC’s revenue comes from program services, including consulting, certification, and training, which do not rely on profiting by limiting access to the law. Their CEO makes $742,000 in salary, which is arguably a bit high for a non-profit.
    - 8y ago
- dmckeon 8y ago
  Did UpCodes make any attempt to approach the copyright holder regarding licensing for republication or redistribution? edit: FTA: "UpCodes did not ask ICC to license the code"
  - Old_Thrashbarg 8y ago
    Right, we did not. In addition, we've heard from a ton of people asking how we were able to do this. They each have a story about trying to do something in this space and trying to work with ICC (or one of the other ones) and getting nowhere. Half the stories are about people failing to convince them to let them touch their laws and half are about people who just assumed they're in the clear and then get a letter with 12 top corporate litigators saying they'd be suing them personally in federal court. I happen to be at a point in my life where I don't have much to lose and hence when I fell into the second bucket, was able to fight back. But yeah, they're trying to personally bankrupt us.
mindslight 8y ago
I've run directly into this with regards to the National Electrical Code. As an engineer doing your own home wiring is dead simple, but does require reading the specific practices if you want your work to be "to code", which is a generally good idea for liability reasons and your own safety. Public.resource.org used to have the NEC up, but took it down I think out of prudence/capitulation rather than a hard legal judgment. It's of course still easily available through torrents. The only sensible model is that in order for a state (or other AHJ) to incorporate a code into law, then it must license it for the purpose of doing so. States would then directly pay code bodies for writing the codes, and could weigh for themselves whether it really makes sense to pay for revisions every 3 years. Of course the code bodies don't actually want to just do this. What they want to do is the classic rent seeking model of installing their hook into government "for free", and then extracting a toll on each individual user in the form of official code books, prep manuals, etc. But this is directly incompatible with the rule of law, as the case law has been casually demonstrating. (PS if you want an example of how much sway trade guilds still hold over local governments, check out Ernst Meyer vs Town of Nantucket. It's not about code per se, but about the general right to work on one's own home)
- jimktrains2 8y ago
  Same exact thing for the HIPAA regulations; they're written by a 3rd party who owns the copyright to them. It's maddening that the government can simply wholesale adopt a code and not make it public. The feds, or at least the states individually, should hire experts to write the codes that are used by the public. Anything else is a travesty.
  - repiret 8y ago
    I think its totally acceptable for the states to adopt codes written by an independent organization, as long as in the end, people subject to the codes can access them without restriction. I think the grandparent is right, the only viable business model is for states to pay a license to incorporate the codes into the law. We'd need to rewrite copyright law somewhat for that to work, because the code-writing agency needs to retain the ability to sell a license to more than one state, and sell a license for updates to the code, and to stop other people from making derivative works and trying to sell those to the states.
kevin_b_er 8y ago
Either the law forcing you to follow it no longer can force such a thing, or the thing it is forcing you to follow is free to examine and understand. Forced ignorance of the law sounds like an excuse to me. If "codes" can be held in secret by corporations until you pay them, could any law be a such? Could the rules of the road be shifted from the law books to secret laws too? Secret laws trouble me greatly. They go fundamentally against the rule of law.
- rolph 8y ago
  check out the patriot act, and the way laws can be written but are too secret to reveal to the public, such "dark laws" are not an issue for patriotic americans so you dont need to know anything about them. basically only terrorists need to be concerned about these secret legal devices. BULLSHIT!
- gumby 8y ago
  Yes you are subject to laws you cannot legally know about. Check out Gilmore v. Gonzales: the case was dismissed as the law was classified so could not be discussed in court!
  - rhn_mk1 8y ago
    What is the point of such unenforceable law?
    - gumby 8y ago
      The law is enforceable, so you are subject to it while you don't know that it even exists. The various no-fly and watch lists are like that too -- consider Rahinah Ibrahim who was accidentally placed on the no fly list in a Brazil-like incident. The government tried to bar her from fighting it or even explaining what happened.
      - Nasrudith 8y ago
        Really writing or enforcing secret laws should be a capital offense with no defense allowed and proof of involvement and even absolve murder. There is no such thing as "too harsh" against such mad tyranny and usurpation.
TimTheTinker 8y ago
I had no idea code bodies have been doing this... incredible. Requiring private individuals to pay a private entity for access to the law under which they are bound is unconscionable, to say the least. The ICC v. UpCodes lawsuit is clearly one important front in this battle. Another potential route to ending this would be for a licensed contractor to sue the government for failing to make freely available the building codes under which he/she is legally bound. The legal argument (and thus the government's legal duty) would be crystal clear in a case like that, especially because both civil and criminal law requires such adherence.
- wolfgke 8y ago
  > I had no idea code bodies have been doing this... incredible. Requiring private individuals to pay a private entity for access to the law under which they are bound is unconscionable, to say the least. In particular for people who are able to understand German, I recommend reading "Franz Kafka - Vor dem Gesetz" (Türhüterparabel - gatekeeper parable): > https://gutenberg.spiegel.de/buch/erzahlungen-i-9763/16 https://gutenberg.spiegel.de/buch/erzahlungen-i-9763/16 English translation: > http://www.kafka-online.info/before-the-law.html http://www.kafka-online.info/before-the-law.html Here a narrated version (German): > https://www.youtube.com/watch?v=77JLmS6diaE https://www.youtube.com/watch?v=77JLmS6diaE This parable is also part of the novel fragment "Der Proceß" (The Trial) by Franz Kafka - a novel that I can also highly recommend: > https://gutenberg.spiegel.de/buch/der-prozess-9771/1 https://gutenberg.spiegel.de/buch/der-prozess-9771/1 English translation: > http://www.gutenberg.org/etext/7849 http://www.gutenberg.org/etext/7849
- iratewizard 8y ago
  So my wife works for general code which was acquired by ICC and she gave me her inside scoop on this. It's a tough gray zone because of how ICC's business model is structured. They are not government funded and to write the codes take a lot of people a lot of man hours. Unlike general code, they write code for the entire state and offset cost to the people who access it professionally. On the ICC v. UpCodes battle, UpCodes just ripped the content from ICC and used it to create their own app. The ethical gray zone I see is this: if ICC can't fund the process of writing the codes, how will they get written? Can a for-profit company like UpCodes be trusted to take up the reigns on that if ICC can no longer justify creating the codes?
rolph 8y ago
Copyright doesnt always mean no-one else has rights to it. The idea of copyrighting a publication of legal statutes or codes could have some good, but the idea of obstructing the publics access to regulations, laws, or codes, and then somwhere down the line this problem goes away in exchange for money, is absolute despotic kruft. so finacially challenged people have impaired opportunity to understand the law, its already an issue when there are mainly online disseminations of statues, and no physical text in easy reach. The technically challenged people have no access to the text of law in digital form, furthermore there is an issue with privacy that could come about. No-one should have to Pay, login, sign up or give PII in exchange for access to text of legal statutes, something that is public property and derived from public monies remitted to an elected government acting within its bounds of authority.
- brlewis 8y ago
  >The idea of copyrighting a publication of legal statutes or codes could have some good No it cannot. Copyright grants things called "exclusive rights". They are called such because, absent copyright, nobody is excluded from them. There is no good whatsoever in hindering people from copying, distributing, publicly performing, or creating derived works from existing laws or regulations. I'm not sure what you're trying to accomplish by saying "Copyright doesnt always mean no-one else has rights to it." It's like saying shooting someone's leg doesn't mean you shot their arm. Copyright's sole purpose is to exclude rights from people who would otherwise have them. Pointing out that it doesn't take away all rights doesn't add to the discussion.
  - rolph 8y ago
    if the public owns the legal text under a copyright then some 3rd party cant use that text to make money, and eventually claim it as thier own works, due to formatting, and secretarial time requireing offsetting revenue.
    - rhn_mk1 8y ago
      Why would there be a need to prevent that? The only text that is authoritative comes from the legal branch of the government.
derekp7 8y ago
Another possibility is for the states to publish the codes on their web sites, then the state would pay the copyright holder (out of their state budgets) for each person that accesses the code. Full copyright would still be in force, and per copy royalties would still be sent to the rights holder, yet free access is still available to those who the law applies to.
- kamarg 8y ago
  What is the copyright holder contributing in this case? The government is passing laws and providing the access to them. Citizens aren't paying anyone for access. I'm not sure what the third party is doing that it should be getting paid in this situation.
  - SilasX 8y ago
    What's the copyright holder doing in any case? They're the one that created the work! (Or who bought the right from the one who did.) I don't even know where your question comes from. "Yeah, nice. So you wrote a book, blah blah blah. What are you doing for me now? Why should I pay you anything? The text of the book already exists? You're just deadweight now."
    - kamarg 8y ago
      So in the case of copyrighted laws in OP's scenario: The government passes laws (creating the text) and then someone or some company buys the rights to the text of the laws. Then the government (who created the text in the first place) pays the person who paid them to be able to display the text on a website? And you can't see why I would question such a situation?
      - SilasX 8y ago
        No, you mischaracterized the scenario. It's more like, a professional association writes their definition of how to build something while being "sure enough" that it won't flood, collapse, electrocute you etc. The government says, "oh, yeah, sounds right. Everyone has to do it that way." And then pays that group royalties whenever someone wants to check that they're in compliance. That's no different from any other copyright situation, in terms of producing something of value and having to be paid for each copy, except that the government has propped up demand by making it the law and absorbing the royalty cost.
rwcarlsen 8y ago
So according to my reading - the ICC is an organization that makes building codes. Then they lobby state and federal governments to adopt them into law. Then they make their money by charging people for access to those codes. Talk about twisted incentives. No wonder building codes are becoming complex faster and faster.
- Old_Thrashbarg 8y ago
  One correction: ICC organizes the committee of volunteers who write the laws. That's how they have such massive profit margins and can afford to pay their CEO $742,000, when the median non-profit CEO gets $104,000 (see our references here: up.codes/free-law).
- metaphor 8y ago
  > Then they make their money by charging people for access to those codes. The entirety of ICC's building code as it applies to my state is both freely accessible by the general public on their website, and unlike other complete douchebag SDOs--looking at you, NFPA--it's actually usable. Anecdotally, I leveraged the crap out of the residential building code while contracting extensive rennovations to my home last year. With so much liability behind them, building codes will always be relatively complex.
gumby 8y ago
I'm glad these guys are working on the problem but I'm sorry this article makes it seem like these guys suddenly discovered this problem. Jim Warren is the reason all of the California code was opened up and put online in the 1990s. Carl Malamud has been working on this for decades, and among other things is the reason SEC filings are all online. He's been working hard on building codes for many years too. His nonprofit is Public.Resource.Org Another nonprofit, free.law, has several programs to free up other legal resources needed to understand the law.
- Old_Thrashbarg 8y ago
  UpCodes cofounder here. Fair point, and we definitely don't want to steal any credit from people like Carl Malamud and so many others who have devoted over a decade to this. We're pretty new on the scene and unlike Carl who's an activist and whose main purpose is to protect the rule of law, we kind of stumbled into this lawsuit. We thought we were in the clear! Especially reading the case law, including the Veeck case (fought and lost by SBCCI which later became ICC) and seeing that Carl has most of the ICC materials on his site. We thought at the very least ICC wouldn't be able to relitigate this issue. It's bullshit. Anyway, UpCodes wouldn't exist if it weren't for Carl Malamud, Corynne McSherry and Peter Veeck.
  - cabaalis 8y ago
    (IANAL) Good luck in your case, as it appears there is a government-created monopoly at work. I do believe ICC should own and control the copyrights to their work, however. It seems wrong that local and state governments can both (a) release themselves of their own governing decisions by choosing a sole-sourced third party to write the regulations and (b) allow that third party to control access to the regulations at the same time. However, having myself visited an area in an underdeveloped country which was basically a shantytown, we should all recognize that building codes improve the lives of everyone. The only real outcome that fits my IANAL vision of the law is to break up this monopoly and for local governments adopt and subsequently outline the codes themselves. The business could maybe then become selling those codes as a vendor to the government, but the governments themselves are the ones publishing them to their citizens.
steelframe 8y ago
Who on earth is trying to make any kind of argument that laws constitute creative expression? From the laws I've read, they seem to embody a perfect example of the polar opposite of creative expression.
- Max_aaa 8y ago
  One can be very "creative" in killing creative expression.
- SilasX 8y ago
  I don't think the idea is absurd on its face. Stuff like the building code or similar engineering standards doc will involve significant judgment in balancing competing concerns, just like a drawing of a bridge.
  - erichurkman 8y ago
    If you cannot read the laws you are subject to, should the government be able to punish you for breaking them? If the ICC wanted to keep their work papers private, they should not lobby to get the enacted as laws and code. No one is forcing them to lobby their rules to state houses & cities.
    - SilasX 8y ago
      You can read them, just for a small payment. Before the internet, you might have had to pay to travel to a library. Was that wrong too?
      - erichurkman 8y ago
        If the library charges? Yes. In the age of the Internet, where data storage and transmission costs are effectively $0 for basic text documents, there is absolutely no excuse for all laws and codes to be 100% public domain. It's not as if the government has to print a physical book for every citizen.
aussiegreenie 8y ago
In Australia, the answer is clear. The regulations and standards used by the law ARE PRIVATE. It costs several hundred dollars to get a standard. The profit margins are similar to Reed Elsevier.
- kevin_b_er 8y ago
  https://www.ag.gov.au/About/Pages/Ruleoflaw.aspx https://www.ag.gov.au/About/Pages/Ruleoflaw.aspx > laws are clear, predictable and accessible > laws are publicly made and the community is able to participate in the law-making process Then, in Australia, the answer is clear. Australia lacks the rule of law. The laws are not accessible nor publicly made. They are privately made and difficult to access.
pergadad 8y ago
And on the other end of the spectrum the EU has just decided to publish all its documents in CC-BY to avoid any such rights nightmare ..
- Old_Thrashbarg 8y ago
  Wow, wasn't aware. To our understanding, EU also has relatively homogenous building codes. It's the place we've thought we'd probably expand if we ever go international in the distant future.
fnordprefect 8y ago
The article suffers from misuse of the term "the law", which throws the wrong focus on things. In common law countries, copyright developed in England, which has always had a concept of Crown copyright.[1] Legislation has always been subject to Crown copyright. So the answer to the article's heading is "yes, as has always been the case". However, the real problem is different: legislation often gives binding force to things not produced by the legislature. This includes texts of international treaties (in common law countries other than the US, legislation is needed to give them municipal effect), and sometimes even laws of other jurisdictions (eg many Australian legislative regimes are based on the laws of one State being "picked up" and applied as if they had been enacted by another State).[2] The particular problem is when legal force is given to a document that is produced by private parties. That document isn't a "law" in the usual sense, but legal obligations (and rights) can be imposed/created by actual laws by reference to its contents. eg: you must build to a standard, which is defined as a document produced by standards body X, and suffer a penalty or have your building liable to be demolished if you don't. The problem addressed in the article is when those non-laws are given legal effect by actual laws. It should be the case that a citizen can find the entire contents of laws that bind them. There are areas of discourse in jurisprudence about it being fundamentally unfair if there are "secret" laws that a person may contravene but cannot know about to avoid contravening. The present topic comes close - the person has to pay to know the full extent of the law that binds them. This is a policy issue, not a copyright one. Private documents like this will be subject to copyright because they are literary works.[3] The question is how to avoid the moral unfairness in one having to pay to know what one is required to do. Many solutions exist, eg compulsory licensing, a payment by the government in exchange for a creative commons style licence, etc. The counter argument is that it takes expertise, time and money to create and maintain these standards, and if standards don't cover things to do with everyday life (eg obligations for driving, laws about what you can and can't do on the street) but are restricted to things like building or industrial activities (eg earthing requirements for high voltage installations), then these aren't standards that can be contravened by chance, but only apply if you undertake project X. So if someone wants to do project X and needs to comply with a paid standard to do project X, then doing so is a cost of doing project X. TFA discusses this issue: building codes are relevant if you want to undertake building work. Should there be an extra cost of doing so, noting that you will already incur application/permit costs, inspection costs, etc in addition to the materials and labour? We have exactly this issue in Australia: things often have to be done according to Australian Standards (which now often also double as New Zealand standards), but these are supplied by a private company that produces and charges for them. eg if you want to buy the standard AS 1926.1-2012 - Swimming pool safety-Safety barriers for swimming pools, a hard copy is A$152.66 and a soft copy is A$137.39. So the question is - if someone wants to put in a swimming pool, is it wrong that they have to pay and extra amount to get a copy of the standards that they must build to? 1. https://en.wikipedia.org/wiki/Crown_copyright https://en.wikipedia.org/wiki/Crown_copyright 2. This is a dark art, and has all sorts of conceptual and practical problems, but it is done. 3. I leave aside the massive expansion in what is protected under copyright, another policy question but one that content creators have decisively won.
tracker1 8y ago
If I can't freely access building codes when/where I want them, then I shouldn't have to comply to them. If you cannot know the law, you shouldn't be required to comply with it.
- hopler 8y ago
  There are many required fees if you want to follow the law. Building permits, drivers license, car registration, the list goes on. every bit of it is awful.
  - tracker1 8y ago
    I'm more angry about accessibility than I am over cost. The law should be freely accessible, and in this day and age, freely available online. I have less problems with access fees for permits/registrations, etc. Though I feel a lot of taxes are generally excessive.
ABCLAW 8y ago
There are two cases dealing with a directly analogous issues about to come up for argument in front of the Supreme Court of Canada. The AG of Canada has taken the position that they're immune to copyright and can do whatever they want. By contrast, some amicus filings indicate they want these types of documentation to fall within the public domain. It'll be interesting to see what solution is adopted, but I believe that there's a more intellectually-consistent, scaleable solution which is not in front of the courts that addresses the issues directly and with minimal fall-out to other stakeholders. Unfortunately, I only caught the ear of a few of the counsel after their filings were already done, so I don't think the proper solution will even be in front of the court. That said, there's plenty of hope, and I'm glad the issue is in front of the courts. I do, however, find it strange that UpCodes settled while the founders were named directly but not included in the settlement.
- Old_Thrashbarg 8y ago
  UpCodes cofounder here. I'd be interested to hear your solution. Also, can you link to the Canadian case? I'm curious. In terms of the ASCE settlement, it included us, so the settlement was between ASCE, UpCodes, Inc., and both cofounders.
  - ABCLAW 8y ago
    There's a few working pieces. There's significant jurisprudence starting as early as Roman times on the idea of 'law like' instruments garnering protections by virtue of their role in public regulation. The UK has a number of very plainly stated cases on the matter that are pursuasive in the US as well. Some attempt to attenuate copyright's ability to exclude in the case of law-like works by using carve-outs in copyright, but this solution isn't scaleable - Fair dealing and Fair use are consistently under siege, attacked in international-level agreements and interpreted fairly inconsistently between jurisdictions. Instead, my proposal is to treat law-like documents as being in the public domain but only to the extent that they are being used for their law-like purpose. Accordingly, even if we change the nature of databased works in the future, we 1) assure the access of the public to codes, regulations, registration documents and other key elements of law, 2) ensure that the government's treating of these documents is not hampered by transmission or duplication restrictions arising out of copyright, and 3) protect stakeholder interests by restricting the scope of use to the areas where there is a public purpose to the dissemination of these works. I can send the case names privately if you'd like.
evilotto 8y ago
It sounds like UpCodes is making the argument that access to the building codes shouldn't be restricted so that they can build a business selling access to it. Yes, they will have a free version, but their idea is that people will pay them instead of ICC.
- elliekelly 8y ago
  I don't think UpCodes is selling "access to building codes" so much as they're selling access to a platform for planning, tracking, and monitoring compliance with building codes. The building codes are a fundamental piece of what they're selling but it's not the entirety of what they're selling.
  - Old_Thrashbarg 8y ago
    That's right all the codes are freely accessible. Users have to pay if they want to use our search engine and collaboration tools. We started UpCodes for a couple reasons: one is to make money and build a business, another is because it seemed fun and interesting work, another is because we think this was important that no one was tackling (simplifying compliance, not the lawsuit which was unexpected and very unfortunate). > their idea is that people will pay them instead of ICC No, that's not right. Although, I admit I am pretty upset with them, they caused me a lot of personal anxiety of the last 19 months. But ICC makes most of their revenue from program services, including consulting, certification, and training[1]. We haven't every thought about doing any of that, so their primary revenue stream is very much safe. The also have membership dues which are quite significant too. [1] page 52 here: http://media.iccsafe.org/AnnualReports/2015/2015AnnualReport.pdf http://media.iccsafe.org/AnnualReports/2015/2015AnnualReport...
    - evilotto 8y ago
      > But ICC makes most of their revenue I didn't read through the whole report and I'll admit it's not entirely clear what all the line items are, but (1) the "program/member services" cost more than the revenue the "program services" generate, and if "product sales" does represent their sales of access to the standards it's well above a third of their revenue. IIUC, they're a nonprofit, so those sales, and the potential loss to a competitor are the difference between solvency and insolvency. > another is because we think this was important that no one was tackling Maybe I'm just tired of the "disruption" economy, which as I see it is (1) find a way to avoid paying for things that other businesses have been paying for, (2) claim you've found a better business model, (3) profit. c.f, Uber, Airbnb, Monkey Parking. In the "old days" you would have partnered with ICC, and built a better product together. But that's not exciting enough. Instead, you're doing it "disruption style" and trying to see what you can get away with. But face it, if you're successful, you're ruining peoples livelihoods. AIUI, these code standards are not some lunchtime conversations put together by politicians, they are specific, detailed requirements done by professionals for professionals, and one of the defining characteristic of being a professional is that you expect to be paid for your work. The question of whether the law can be copyrighted is a valid one. Legal publishing companies have been dealing with this question for a while now (the most common way of citing court cases comes from a private company). But people are also entitled to be paid for their work, and you can't upend the system until you solve that problem too.
michelpp 8y ago
The State of Oregon tried to claim copyright on state law: https://www.washingtontimes.com/news/2008/apr/19/oregon-claims-state-law-copyrighted/ https://www.washingtontimes.com/news/2008/apr/19/oregon-clai... but they decided "not to enforce any" after word got out: https://lawblog.justia.com/2008/06/19/oregon-decides-not-to-enforce-any-copyright-claims-on-the-oregon-revised-statutes/ https://lawblog.justia.com/2008/06/19/oregon-decides-not-to-...
- hopler 8y ago
  Oregon also tried to make it illegal for engineers to point out safety flaws in their red light traps. https://ij.org/press-release/oregon-engineer-wins-traffic-light-timing-lawsuit/ https://ij.org/press-release/oregon-engineer-wins-traffic-li...
- Old_Thrashbarg 8y ago
  Oregon and Georgia, those states make me sad. Don't try to copyright your laws please.
gumby 8y ago
I commented on this down thread but decided it deserved to top level post: when Carl Malamud tried to publish the Georgia civil code he was accused of terrorism: https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States#Federal_and_state_laws_are_not_protected_by_copyright https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St...
CalChris 8y ago
This reminds me of another story which came out today: Congress Is About to Ban the Government From Offering Free Online Tax Filing. [1] This is a privatization of the government. https://www.propublica.org/article/congress-is-about-to-ban-the-government-from-offering-free-online-tax-filing-thank-turbotax https://www.propublica.org/article/congress-is-about-to-ban-...
tathougies 8y ago
Under Catholic social teaching (not that it matters here in particular, but using it as an example of a system of thought that's been around for a while), a law that has not been promulgated (i.e., been made generally available) cannot hold the weight of law.
yonran 8y ago
In California, all the codes have an open-access version online (https://www.dgs.ca.gov/BSC/Codes https://www.dgs.ca.gov/BSC/Codes). On the state website, some codes are more user-friendly than others; for example, the ICC Building Code has PDFs of each chapter that prohibit copying and printing, whereas the IAPMO Uniform Plumbing Code is a javascript app that allows you to flip between inaccessible images but not select or copy. Archive.org also has scans of the PDFs (https://archive.org/search.php?query=subject%3A%22bsc.ca.gov%22 https://archive.org/search.php?query=subject%3A%22bsc.ca.gov...) (from Public.Resource.Org, described by other comments here), which allows saving. Up.codes is much more user-friendly than either (https://up.codes/codes/california https://up.codes/codes/california), since it allows you to search for a word and link to a specific code section and is mobile-friendly. I am very thankful that up.codes exists and has been expanding rapidly. I am curious how far the open access decisions will reach. The building standards are incorporated into the law with amendments, so the state collaborates with the standards bodies to publish them. But these codes also reference many other standards published by ASTM, ASME, NSF, etc. by reference only (e.g. the pipe geometries, thread widths, manufacturing and testing methods). Do open access decisions cover these standards bodies’ publications too? I wish they did.
deleted 8y ago
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Mirioron 8y ago
The ICC seems like a racket. >Its model codes and standards are developed by committees made up of volunteers from its membership and ICC staff. The ICC lobbies for the code to be enacted into law, and earns revenue by selling code books and running accreditation programs. They are the ones that come up with rules to follow, then they lobby the government to make the rules into law, and then sell access to the rules/law. How is this not a racket? Not only that - aren't they also a monopoly that is abusing their monopoly position?
ezoe 8y ago
If the law be copyrighted, I can violate the law without getting the chance of knowing it since it's copyright protected. In that situation, I won't be responsible for the violation since the law is effectively secret to the public.
qwerty456127 8y ago
In fact an average citizen or a resident of a particular country usually doesn't know even 1% of its laws and can't get the laws to read for free - you have to either buy books or a DRM-ed database, all these are copyrighted. I actually find this ridiculous, if a state wants people to comply to its laws it should make all these laws easily available to everybody for free.
huffmsa 8y ago
> "Now ICC has made its codes available online for free. All you need is a phone in your hand or internet access to know what the codes say,” says Fee. > Its codes But they aren't the ICCs codes, they are laws. If they were non-legal industry standards a builder agreed to uphold as part of guild membership, then sure, they're ICCs property. But they're not. Is a lawyer allowed to copy-paste or take screenshots "ICC laws" for use as evidence? One doesn't need private party permission to cite other sections of the law, and it's a damn slippery slope to start treating sections of the law differently.

Generalizing a bit, it's fascinating that it's possible to break the law without being able to afford knowing the law. You guys are definitely doing something that is innovative and a win for everyone (except ICC). Best of luck on the lawsuit!

ccsys 8y ago

Not only is it covered under copyright, the vast majority of ours is the intellectual property of UNIDROIT and it's merely licensed to member countries. Our legislators merely approve with the weight of authority, or disapprove, on behalf of their constituents. See Uniform Commercial Code et al.

Old_Thrashbarg 8y ago

UpCodes cofounder here, glad to see people care about this! Happy to answer any questions.

paulgb 8y ago
The idea that someone could copyright the law is completely antethetical to democracy. Good luck, you're on the right side!
- YjSe2GMQ 8y ago
  Yeah it's absolute garbage. Reminds me of "Brazil" (1985), the Ministry of Information Retrieval (euphemism for torture) and their capital efficiency: > I understand this concern on behalf of the taxpayers. People want value for money. That's why we always insist on the principal of Information Retrieval charges. It's absolutely right and fair that those found guilty should pay for their periods of detention and the Information Retrieval procedures used in their interrogations. > Don't fight it son, confess quickly. If you hold out too long, you could jeopardize your credit rating.
- Old_Thrashbarg 8y ago
  Thank you, glad to get such a supportive response from folks. After keeping quiet about it for a year and a half, it's good to finally get this lawsuit some attention.
mauvehaus 8y ago
Where do we send money? If you don't need it to pay for lawyers, buy some beer for yourselves, because this fight should be settled in favor of free (gratis) access to the law for everybody once and for all.
- Old_Thrashbarg 8y ago
  Hey thanks for the support! The best thing you can do is just raise awareness. Either sharing this article or our advocacy page (https://up.codes/free-law https://up.codes/free-law) to raise awareness helps. It's hard to get most people to care, but this really does affect everyone. You can also follow us on Twitter: https://twitter.com/upcodes https://twitter.com/upcodes As you can see, we're not very good at social media and have small reach, so any help is appreciated!
  - mauvehaus 8y ago
    I am pretty much the last person on the planet who should be telling people how to use social media, but if you aren't on instagram, you should be. There's a pretty vibrant community of people in the building trades on there sharing photos of their work and exchanging information. I'm a recovering programmer turned woodworker with a pretty small following (200 and some followers, like I said, I'm the last person who should be telling people how to use social media), but I follow some carpenters and I'm consistently impressed with how much genuinely informative discussion takes place.
tracker1 8y ago
Would it be enough to change any verbiage and keep all the numbers/measurements and formulas the same?
- Old_Thrashbarg 8y ago
  IANAL, but I think in the Public.Resource.Org / EFF case, they were claiming you could restate the law: """ Judge Tatel: you have to stay in the hospital for the three days. Can they not use three days? Mr. Verrilli: No, I think they could describe the fact that the standard says three days. But again ... Judge Tatel: More than two and less than four? Is that what they'd have to say? """ (p. 24 of DC Circuit oral argument, https://www.dropbox.com/s/bb0by3nm3dfql3v/gov.uscourts.cadc.17-7035.oral.20180514.pdf?dl=0 https://www.dropbox.com/s/bb0by3nm3dfql3v/gov.uscourts.cadc....) But to answer more directly, we host the law. If we change the precise wording of the law, then that's unacceptable. If you being tried, you can't say "well, I followed this alternative law and if you read that, you'll see it can be interpreted differently". No, the exact text of the law is the law, nothing else.
  - tracker1 8y ago
    But the law says standards of X. If the law prevents people from understanding X, then I would think one could argue that the law itself doesn't go into enough detail. If X isn't bound as part of the law, and it can't be re-stated while keeping the intent in tact, then imho it should be effectively invalid. Just my own opinion, not something the court system would uphold necessarily. I do find this appalling in practice. I would have less issue so long as the copyright holders for any legal specifications were limited to non-profit organizations with open accounting provisions.
dahart 8y ago
Really interesting issue you guys bumped into. I totally would have assumed that US legal codes were clearly and explicitly exempt from copyrights. Can you talk about your plan to defend your position at all? I'm somewhat curious if the ICC has a demonstrated history of licensing their codes to US governments. When cities & states publish the codes in print and online, presumably the ICC would need to be licensing those codes in written agreements, if the ICC's position has merit. It seems like it might be a problem for their case if they can't show a history of having granted copyrights everywhere the codes have been published before. Even though I think laws shouldn't be copyrightable, I have a small amount of sympathy for the ICC saying they did work that is now being used without any compensation. Hopefully they will update their expectations and figure out how to charge for some additional value beyond the text of the legal codes. But I'm also curious if you guys have started exploring any peaceful solutions such as revenue sharing, or paying the ICC for versions of codes, or support, or annotations, etc.?
- Old_Thrashbarg 8y ago
  Yes, we assumed that too until we got sued! We thought we were all good after reading about Veeck case (in which ICC, whose codes we thought we could very safely put up, lost in the 5th circuit). I believe the ICC and state governments do reach agreements. For example, the Michigan state government's site instructs citizens to go buy the laws from ICC. Fun fact: the only play to read these Michigan laws for free online is UpCodes. We bought the physical books, sliced, scanned, OCRed, ingested and posted them. In terms of our plan, we're relying a lot on case law. We put 4 very clear examples on our advocacy page. (up.codes/free-law, see "Didn't ICC already litigate this case?" under the FAQ) > I have a small amount of sympathy for the ICC saying they did work that is now being used without any compensation. Just don't forget that the codes are written by volunteers who never see a penny AFAIK. ICC organizers the volunteers (which is an important time-consuming task I do recognize). Also, don't think they have no compensation. The majority of ICC’s revenue comes from program services, including consulting, certification, and training, which do not rely on profiting by limiting access to the law. Their CEO makes $742,000 in salary, which is arguably a bit high for a non-profit.
  - 8y ago
dmckeon 8y ago
Did UpCodes make any attempt to approach the copyright holder regarding licensing for republication or redistribution? edit: FTA: "UpCodes did not ask ICC to license the code"
- Old_Thrashbarg 8y ago
  Right, we did not. In addition, we've heard from a ton of people asking how we were able to do this. They each have a story about trying to do something in this space and trying to work with ICC (or one of the other ones) and getting nowhere. Half the stories are about people failing to convince them to let them touch their laws and half are about people who just assumed they're in the clear and then get a letter with 12 top corporate litigators saying they'd be suing them personally in federal court. I happen to be at a point in my life where I don't have much to lose and hence when I fell into the second bucket, was able to fight back. But yeah, they're trying to personally bankrupt us.

mindslight 8y ago

I've run directly into this with regards to the National Electrical Code. As an engineer doing your own home wiring is dead simple, but does require reading the specific practices if you want your work to be "to code", which is a generally good idea for liability reasons and your own safety. Public.resource.org used to have the NEC up, but took it down I think out of prudence/capitulation rather than a hard legal judgment. It's of course still easily available through torrents. The only sensible model is that in order for a state (or other AHJ) to incorporate a code into law, then it must license it for the purpose of doing so. States would then directly pay code bodies for writing the codes, and could weigh for themselves whether it really makes sense to pay for revisions every 3 years. Of course the code bodies don't actually want to just do this. What they want to do is the classic rent seeking model of installing their hook into government "for free", and then extracting a toll on each individual user in the form of official code books, prep manuals, etc. But this is directly incompatible with the rule of law, as the case law has been casually demonstrating. (PS if you want an example of how much sway trade guilds still hold over local governments, check out Ernst Meyer vs Town of Nantucket. It's not about code per se, but about the general right to work on one's own home)

jimktrains2 8y ago
Same exact thing for the HIPAA regulations; they're written by a 3rd party who owns the copyright to them. It's maddening that the government can simply wholesale adopt a code and not make it public. The feds, or at least the states individually, should hire experts to write the codes that are used by the public. Anything else is a travesty.
- repiret 8y ago
  I think its totally acceptable for the states to adopt codes written by an independent organization, as long as in the end, people subject to the codes can access them without restriction. I think the grandparent is right, the only viable business model is for states to pay a license to incorporate the codes into the law. We'd need to rewrite copyright law somewhat for that to work, because the code-writing agency needs to retain the ability to sell a license to more than one state, and sell a license for updates to the code, and to stop other people from making derivative works and trying to sell those to the states.

kevin_b_er 8y ago

Either the law forcing you to follow it no longer can force such a thing, or the thing it is forcing you to follow is free to examine and understand. Forced ignorance of the law sounds like an excuse to me. If "codes" can be held in secret by corporations until you pay them, could any law be a such? Could the rules of the road be shifted from the law books to secret laws too? Secret laws trouble me greatly. They go fundamentally against the rule of law.

rolph 8y ago
check out the patriot act, and the way laws can be written but are too secret to reveal to the public, such "dark laws" are not an issue for patriotic americans so you dont need to know anything about them. basically only terrorists need to be concerned about these secret legal devices. BULLSHIT!
gumby 8y ago
Yes you are subject to laws you cannot legally know about. Check out Gilmore v. Gonzales: the case was dismissed as the law was classified so could not be discussed in court!
- rhn_mk1 8y ago
  What is the point of such unenforceable law?
  - gumby 8y ago
    The law is enforceable, so you are subject to it while you don't know that it even exists. The various no-fly and watch lists are like that too -- consider Rahinah Ibrahim who was accidentally placed on the no fly list in a Brazil-like incident. The government tried to bar her from fighting it or even explaining what happened.
    - Nasrudith 8y ago
      Really writing or enforcing secret laws should be a capital offense with no defense allowed and proof of involvement and even absolve murder. There is no such thing as "too harsh" against such mad tyranny and usurpation.

TimTheTinker 8y ago

I had no idea code bodies have been doing this... incredible. Requiring private individuals to pay a private entity for access to the law under which they are bound is unconscionable, to say the least. The ICC v. UpCodes lawsuit is clearly one important front in this battle. Another potential route to ending this would be for a licensed contractor to sue the government for failing to make freely available the building codes under which he/she is legally bound. The legal argument (and thus the government's legal duty) would be crystal clear in a case like that, especially because both civil and criminal law requires such adherence.

wolfgke 8y ago
> I had no idea code bodies have been doing this... incredible. Requiring private individuals to pay a private entity for access to the law under which they are bound is unconscionable, to say the least. In particular for people who are able to understand German, I recommend reading "Franz Kafka - Vor dem Gesetz" (Türhüterparabel - gatekeeper parable): > https://gutenberg.spiegel.de/buch/erzahlungen-i-9763/16 https://gutenberg.spiegel.de/buch/erzahlungen-i-9763/16 English translation: > http://www.kafka-online.info/before-the-law.html http://www.kafka-online.info/before-the-law.html Here a narrated version (German): > https://www.youtube.com/watch?v=77JLmS6diaE https://www.youtube.com/watch?v=77JLmS6diaE This parable is also part of the novel fragment "Der Proceß" (The Trial) by Franz Kafka - a novel that I can also highly recommend: > https://gutenberg.spiegel.de/buch/der-prozess-9771/1 https://gutenberg.spiegel.de/buch/der-prozess-9771/1 English translation: > http://www.gutenberg.org/etext/7849 http://www.gutenberg.org/etext/7849
iratewizard 8y ago
So my wife works for general code which was acquired by ICC and she gave me her inside scoop on this. It's a tough gray zone because of how ICC's business model is structured. They are not government funded and to write the codes take a lot of people a lot of man hours. Unlike general code, they write code for the entire state and offset cost to the people who access it professionally. On the ICC v. UpCodes battle, UpCodes just ripped the content from ICC and used it to create their own app. The ethical gray zone I see is this: if ICC can't fund the process of writing the codes, how will they get written? Can a for-profit company like UpCodes be trusted to take up the reigns on that if ICC can no longer justify creating the codes?

rolph 8y ago

Copyright doesnt always mean no-one else has rights to it. The idea of copyrighting a publication of legal statutes or codes could have some good, but the idea of obstructing the publics access to regulations, laws, or codes, and then somwhere down the line this problem goes away in exchange for money, is absolute despotic kruft. so finacially challenged people have impaired opportunity to understand the law, its already an issue when there are mainly online disseminations of statues, and no physical text in easy reach. The technically challenged people have no access to the text of law in digital form, furthermore there is an issue with privacy that could come about. No-one should have to Pay, login, sign up or give PII in exchange for access to text of legal statutes, something that is public property and derived from public monies remitted to an elected government acting within its bounds of authority.

brlewis 8y ago
>The idea of copyrighting a publication of legal statutes or codes could have some good No it cannot. Copyright grants things called "exclusive rights". They are called such because, absent copyright, nobody is excluded from them. There is no good whatsoever in hindering people from copying, distributing, publicly performing, or creating derived works from existing laws or regulations. I'm not sure what you're trying to accomplish by saying "Copyright doesnt always mean no-one else has rights to it." It's like saying shooting someone's leg doesn't mean you shot their arm. Copyright's sole purpose is to exclude rights from people who would otherwise have them. Pointing out that it doesn't take away all rights doesn't add to the discussion.
- rolph 8y ago
  if the public owns the legal text under a copyright then some 3rd party cant use that text to make money, and eventually claim it as thier own works, due to formatting, and secretarial time requireing offsetting revenue.
  - rhn_mk1 8y ago
    Why would there be a need to prevent that? The only text that is authoritative comes from the legal branch of the government.

derekp7 8y ago

Another possibility is for the states to publish the codes on their web sites, then the state would pay the copyright holder (out of their state budgets) for each person that accesses the code. Full copyright would still be in force, and per copy royalties would still be sent to the rights holder, yet free access is still available to those who the law applies to.

kamarg 8y ago
What is the copyright holder contributing in this case? The government is passing laws and providing the access to them. Citizens aren't paying anyone for access. I'm not sure what the third party is doing that it should be getting paid in this situation.
- SilasX 8y ago
  What's the copyright holder doing in any case? They're the one that created the work! (Or who bought the right from the one who did.) I don't even know where your question comes from. "Yeah, nice. So you wrote a book, blah blah blah. What are you doing for me now? Why should I pay you anything? The text of the book already exists? You're just deadweight now."
  - kamarg 8y ago
    So in the case of copyrighted laws in OP's scenario: The government passes laws (creating the text) and then someone or some company buys the rights to the text of the laws. Then the government (who created the text in the first place) pays the person who paid them to be able to display the text on a website? And you can't see why I would question such a situation?
    - SilasX 8y ago
      No, you mischaracterized the scenario. It's more like, a professional association writes their definition of how to build something while being "sure enough" that it won't flood, collapse, electrocute you etc. The government says, "oh, yeah, sounds right. Everyone has to do it that way." And then pays that group royalties whenever someone wants to check that they're in compliance. That's no different from any other copyright situation, in terms of producing something of value and having to be paid for each copy, except that the government has propped up demand by making it the law and absorbing the royalty cost.

rwcarlsen 8y ago

So according to my reading - the ICC is an organization that makes building codes. Then they lobby state and federal governments to adopt them into law. Then they make their money by charging people for access to those codes. Talk about twisted incentives. No wonder building codes are becoming complex faster and faster.

Old_Thrashbarg 8y ago
One correction: ICC organizes the committee of volunteers who write the laws. That's how they have such massive profit margins and can afford to pay their CEO $742,000, when the median non-profit CEO gets $104,000 (see our references here: up.codes/free-law).
metaphor 8y ago
> Then they make their money by charging people for access to those codes. The entirety of ICC's building code as it applies to my state is both freely accessible by the general public on their website, and unlike other complete douchebag SDOs--looking at you, NFPA--it's actually usable. Anecdotally, I leveraged the crap out of the residential building code while contracting extensive rennovations to my home last year. With so much liability behind them, building codes will always be relatively complex.

gumby 8y ago

I'm glad these guys are working on the problem but I'm sorry this article makes it seem like these guys suddenly discovered this problem. Jim Warren is the reason all of the California code was opened up and put online in the 1990s. Carl Malamud has been working on this for decades, and among other things is the reason SEC filings are all online. He's been working hard on building codes for many years too. His nonprofit is Public.Resource.Org Another nonprofit, free.law, has several programs to free up other legal resources needed to understand the law.

Old_Thrashbarg 8y ago
UpCodes cofounder here. Fair point, and we definitely don't want to steal any credit from people like Carl Malamud and so many others who have devoted over a decade to this. We're pretty new on the scene and unlike Carl who's an activist and whose main purpose is to protect the rule of law, we kind of stumbled into this lawsuit. We thought we were in the clear! Especially reading the case law, including the Veeck case (fought and lost by SBCCI which later became ICC) and seeing that Carl has most of the ICC materials on his site. We thought at the very least ICC wouldn't be able to relitigate this issue. It's bullshit. Anyway, UpCodes wouldn't exist if it weren't for Carl Malamud, Corynne McSherry and Peter Veeck.
- cabaalis 8y ago
  (IANAL) Good luck in your case, as it appears there is a government-created monopoly at work. I do believe ICC should own and control the copyrights to their work, however. It seems wrong that local and state governments can both (a) release themselves of their own governing decisions by choosing a sole-sourced third party to write the regulations and (b) allow that third party to control access to the regulations at the same time. However, having myself visited an area in an underdeveloped country which was basically a shantytown, we should all recognize that building codes improve the lives of everyone. The only real outcome that fits my IANAL vision of the law is to break up this monopoly and for local governments adopt and subsequently outline the codes themselves. The business could maybe then become selling those codes as a vendor to the government, but the governments themselves are the ones publishing them to their citizens.

steelframe 8y ago

Who on earth is trying to make any kind of argument that laws constitute creative expression? From the laws I've read, they seem to embody a perfect example of the polar opposite of creative expression.

Max_aaa 8y ago
One can be very "creative" in killing creative expression.
SilasX 8y ago
I don't think the idea is absurd on its face. Stuff like the building code or similar engineering standards doc will involve significant judgment in balancing competing concerns, just like a drawing of a bridge.
- erichurkman 8y ago
  If you cannot read the laws you are subject to, should the government be able to punish you for breaking them? If the ICC wanted to keep their work papers private, they should not lobby to get the enacted as laws and code. No one is forcing them to lobby their rules to state houses & cities.
  - SilasX 8y ago
    You can read them, just for a small payment. Before the internet, you might have had to pay to travel to a library. Was that wrong too?
    - erichurkman 8y ago
      If the library charges? Yes. In the age of the Internet, where data storage and transmission costs are effectively $0 for basic text documents, there is absolutely no excuse for all laws and codes to be 100% public domain. It's not as if the government has to print a physical book for every citizen.

aussiegreenie 8y ago

In Australia, the answer is clear. The regulations and standards used by the law ARE PRIVATE. It costs several hundred dollars to get a standard. The profit margins are similar to Reed Elsevier.

kevin_b_er 8y ago
https://www.ag.gov.au/About/Pages/Ruleoflaw.aspx https://www.ag.gov.au/About/Pages/Ruleoflaw.aspx > laws are clear, predictable and accessible > laws are publicly made and the community is able to participate in the law-making process Then, in Australia, the answer is clear. Australia lacks the rule of law. The laws are not accessible nor publicly made. They are privately made and difficult to access.

pergadad 8y ago

And on the other end of the spectrum the EU has just decided to publish all its documents in CC-BY to avoid any such rights nightmare ..

Old_Thrashbarg 8y ago
Wow, wasn't aware. To our understanding, EU also has relatively homogenous building codes. It's the place we've thought we'd probably expand if we ever go international in the distant future.

fnordprefect 8y ago

The article suffers from misuse of the term "the law", which throws the wrong focus on things. In common law countries, copyright developed in England, which has always had a concept of Crown copyright.[1] Legislation has always been subject to Crown copyright. So the answer to the article's heading is "yes, as has always been the case". However, the real problem is different: legislation often gives binding force to things not produced by the legislature. This includes texts of international treaties (in common law countries other than the US, legislation is needed to give them municipal effect), and sometimes even laws of other jurisdictions (eg many Australian legislative regimes are based on the laws of one State being "picked up" and applied as if they had been enacted by another State).[2] The particular problem is when legal force is given to a document that is produced by private parties. That document isn't a "law" in the usual sense, but legal obligations (and rights) can be imposed/created by actual laws by reference to its contents. eg: you must build to a standard, which is defined as a document produced by standards body X, and suffer a penalty or have your building liable to be demolished if you don't. The problem addressed in the article is when those non-laws are given legal effect by actual laws. It should be the case that a citizen can find the entire contents of laws that bind them. There are areas of discourse in jurisprudence about it being fundamentally unfair if there are "secret" laws that a person may contravene but cannot know about to avoid contravening. The present topic comes close - the person has to pay to know the full extent of the law that binds them. This is a policy issue, not a copyright one. Private documents like this will be subject to copyright because they are literary works.[3] The question is how to avoid the moral unfairness in one having to pay to know what one is required to do. Many solutions exist, eg compulsory licensing, a payment by the government in exchange for a creative commons style licence, etc. The counter argument is that it takes expertise, time and money to create and maintain these standards, and if standards don't cover things to do with everyday life (eg obligations for driving, laws about what you can and can't do on the street) but are restricted to things like building or industrial activities (eg earthing requirements for high voltage installations), then these aren't standards that can be contravened by chance, but only apply if you undertake project X. So if someone wants to do project X and needs to comply with a paid standard to do project X, then doing so is a cost of doing project X. TFA discusses this issue: building codes are relevant if you want to undertake building work. Should there be an extra cost of doing so, noting that you will already incur application/permit costs, inspection costs, etc in addition to the materials and labour? We have exactly this issue in Australia: things often have to be done according to Australian Standards (which now often also double as New Zealand standards), but these are supplied by a private company that produces and charges for them. eg if you want to buy the standard AS 1926.1-2012 - Swimming pool safety-Safety barriers for swimming pools, a hard copy is A$152.66 and a soft copy is A$137.39. So the question is - if someone wants to put in a swimming pool, is it wrong that they have to pay and extra amount to get a copy of the standards that they must build to? 1. https://en.wikipedia.org/wiki/Crown_copyright https://en.wikipedia.org/wiki/Crown_copyright 2. This is a dark art, and has all sorts of conceptual and practical problems, but it is done. 3. I leave aside the massive expansion in what is protected under copyright, another policy question but one that content creators have decisively won.

tracker1 8y ago

If I can't freely access building codes when/where I want them, then I shouldn't have to comply to them. If you cannot know the law, you shouldn't be required to comply with it.

hopler 8y ago
There are many required fees if you want to follow the law. Building permits, drivers license, car registration, the list goes on. every bit of it is awful.
- tracker1 8y ago
  I'm more angry about accessibility than I am over cost. The law should be freely accessible, and in this day and age, freely available online. I have less problems with access fees for permits/registrations, etc. Though I feel a lot of taxes are generally excessive.

ABCLAW 8y ago

There are two cases dealing with a directly analogous issues about to come up for argument in front of the Supreme Court of Canada. The AG of Canada has taken the position that they're immune to copyright and can do whatever they want. By contrast, some amicus filings indicate they want these types of documentation to fall within the public domain. It'll be interesting to see what solution is adopted, but I believe that there's a more intellectually-consistent, scaleable solution which is not in front of the courts that addresses the issues directly and with minimal fall-out to other stakeholders. Unfortunately, I only caught the ear of a few of the counsel after their filings were already done, so I don't think the proper solution will even be in front of the court. That said, there's plenty of hope, and I'm glad the issue is in front of the courts. I do, however, find it strange that UpCodes settled while the founders were named directly but not included in the settlement.

Old_Thrashbarg 8y ago
UpCodes cofounder here. I'd be interested to hear your solution. Also, can you link to the Canadian case? I'm curious. In terms of the ASCE settlement, it included us, so the settlement was between ASCE, UpCodes, Inc., and both cofounders.
- ABCLAW 8y ago
  There's a few working pieces. There's significant jurisprudence starting as early as Roman times on the idea of 'law like' instruments garnering protections by virtue of their role in public regulation. The UK has a number of very plainly stated cases on the matter that are pursuasive in the US as well. Some attempt to attenuate copyright's ability to exclude in the case of law-like works by using carve-outs in copyright, but this solution isn't scaleable - Fair dealing and Fair use are consistently under siege, attacked in international-level agreements and interpreted fairly inconsistently between jurisdictions. Instead, my proposal is to treat law-like documents as being in the public domain but only to the extent that they are being used for their law-like purpose. Accordingly, even if we change the nature of databased works in the future, we 1) assure the access of the public to codes, regulations, registration documents and other key elements of law, 2) ensure that the government's treating of these documents is not hampered by transmission or duplication restrictions arising out of copyright, and 3) protect stakeholder interests by restricting the scope of use to the areas where there is a public purpose to the dissemination of these works. I can send the case names privately if you'd like.

evilotto 8y ago

It sounds like UpCodes is making the argument that access to the building codes shouldn't be restricted so that they can build a business selling access to it. Yes, they will have a free version, but their idea is that people will pay them instead of ICC.

elliekelly 8y ago
I don't think UpCodes is selling "access to building codes" so much as they're selling access to a platform for planning, tracking, and monitoring compliance with building codes. The building codes are a fundamental piece of what they're selling but it's not the entirety of what they're selling.
- Old_Thrashbarg 8y ago
  That's right all the codes are freely accessible. Users have to pay if they want to use our search engine and collaboration tools. We started UpCodes for a couple reasons: one is to make money and build a business, another is because it seemed fun and interesting work, another is because we think this was important that no one was tackling (simplifying compliance, not the lawsuit which was unexpected and very unfortunate). > their idea is that people will pay them instead of ICC No, that's not right. Although, I admit I am pretty upset with them, they caused me a lot of personal anxiety of the last 19 months. But ICC makes most of their revenue from program services, including consulting, certification, and training[1]. We haven't every thought about doing any of that, so their primary revenue stream is very much safe. The also have membership dues which are quite significant too. [1] page 52 here: http://media.iccsafe.org/AnnualReports/2015/2015AnnualReport.pdf http://media.iccsafe.org/AnnualReports/2015/2015AnnualReport...
  - evilotto 8y ago
    > But ICC makes most of their revenue I didn't read through the whole report and I'll admit it's not entirely clear what all the line items are, but (1) the "program/member services" cost more than the revenue the "program services" generate, and if "product sales" does represent their sales of access to the standards it's well above a third of their revenue. IIUC, they're a nonprofit, so those sales, and the potential loss to a competitor are the difference between solvency and insolvency. > another is because we think this was important that no one was tackling Maybe I'm just tired of the "disruption" economy, which as I see it is (1) find a way to avoid paying for things that other businesses have been paying for, (2) claim you've found a better business model, (3) profit. c.f, Uber, Airbnb, Monkey Parking. In the "old days" you would have partnered with ICC, and built a better product together. But that's not exciting enough. Instead, you're doing it "disruption style" and trying to see what you can get away with. But face it, if you're successful, you're ruining peoples livelihoods. AIUI, these code standards are not some lunchtime conversations put together by politicians, they are specific, detailed requirements done by professionals for professionals, and one of the defining characteristic of being a professional is that you expect to be paid for your work. The question of whether the law can be copyrighted is a valid one. Legal publishing companies have been dealing with this question for a while now (the most common way of citing court cases comes from a private company). But people are also entitled to be paid for their work, and you can't upend the system until you solve that problem too.

michelpp 8y ago

The State of Oregon tried to claim copyright on state law: https://www.washingtontimes.com/news/2008/apr/19/oregon-claims-state-law-copyrighted/ https://www.washingtontimes.com/news/2008/apr/19/oregon-clai... but they decided "not to enforce any" after word got out: https://lawblog.justia.com/2008/06/19/oregon-decides-not-to-enforce-any-copyright-claims-on-the-oregon-revised-statutes/ https://lawblog.justia.com/2008/06/19/oregon-decides-not-to-...

hopler 8y ago
Oregon also tried to make it illegal for engineers to point out safety flaws in their red light traps. https://ij.org/press-release/oregon-engineer-wins-traffic-light-timing-lawsuit/ https://ij.org/press-release/oregon-engineer-wins-traffic-li...
Old_Thrashbarg 8y ago
Oregon and Georgia, those states make me sad. Don't try to copyright your laws please.

gumby 8y ago

I commented on this down thread but decided it deserved to top level post: when Carl Malamud tried to publish the Georgia civil code he was accused of terrorism: https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States#Federal_and_state_laws_are_not_protected_by_copyright https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St...

CalChris 8y ago

This reminds me of another story which came out today: Congress Is About to Ban the Government From Offering Free Online Tax Filing. [1] This is a privatization of the government. https://www.propublica.org/article/congress-is-about-to-ban-the-government-from-offering-free-online-tax-filing-thank-turbotax https://www.propublica.org/article/congress-is-about-to-ban-...

tathougies 8y ago

Under Catholic social teaching (not that it matters here in particular, but using it as an example of a system of thought that's been around for a while), a law that has not been promulgated (i.e., been made generally available) cannot hold the weight of law.

yonran 8y ago

In California, all the codes have an open-access version online (https://www.dgs.ca.gov/BSC/Codes https://www.dgs.ca.gov/BSC/Codes). On the state website, some codes are more user-friendly than others; for example, the ICC Building Code has PDFs of each chapter that prohibit copying and printing, whereas the IAPMO Uniform Plumbing Code is a javascript app that allows you to flip between inaccessible images but not select or copy. Archive.org also has scans of the PDFs (https://archive.org/search.php?query=subject%3A%22bsc.ca.gov%22 https://archive.org/search.php?query=subject%3A%22bsc.ca.gov...) (from Public.Resource.Org, described by other comments here), which allows saving. Up.codes is much more user-friendly than either (https://up.codes/codes/california https://up.codes/codes/california), since it allows you to search for a word and link to a specific code section and is mobile-friendly. I am very thankful that up.codes exists and has been expanding rapidly. I am curious how far the open access decisions will reach. The building standards are incorporated into the law with amendments, so the state collaborates with the standards bodies to publish them. But these codes also reference many other standards published by ASTM, ASME, NSF, etc. by reference only (e.g. the pipe geometries, thread widths, manufacturing and testing methods). Do open access decisions cover these standards bodies’ publications too? I wish they did.

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Mirioron 8y ago

The ICC seems like a racket. >Its model codes and standards are developed by committees made up of volunteers from its membership and ICC staff. The ICC lobbies for the code to be enacted into law, and earns revenue by selling code books and running accreditation programs. They are the ones that come up with rules to follow, then they lobby the government to make the rules into law, and then sell access to the rules/law. How is this not a racket? Not only that - aren't they also a monopoly that is abusing their monopoly position?

ezoe 8y ago

If the law be copyrighted, I can violate the law without getting the chance of knowing it since it's copyright protected. In that situation, I won't be responsible for the violation since the law is effectively secret to the public.

qwerty456127 8y ago

In fact an average citizen or a resident of a particular country usually doesn't know even 1% of its laws and can't get the laws to read for free - you have to either buy books or a DRM-ed database, all these are copyrighted. I actually find this ridiculous, if a state wants people to comply to its laws it should make all these laws easily available to everybody for free.

huffmsa 8y ago

> "Now ICC has made its codes available online for free. All you need is a phone in your hand or internet access to know what the codes say,” says Fee. > Its codes But they aren't the ICCs codes, they are laws. If they were non-legal industry standards a builder agreed to uphold as part of guild membership, then sure, they're ICCs property. But they're not. Is a lawyer allowed to copy-paste or take screenshots "ICC laws" for use as evidence? One doesn't need private party permission to cite other sections of the law, and it's a damn slippery slope to start treating sections of the law differently.