5 ms·

Excellent ruling. The next question in my mind is whether incorporating private standards into legislation without compensation violates the the takings clause

by pavon 3y ago

Excellent ruling. The next question in my mind is whether incorporating private standards into legislation without compensation violates the the takings clause of the constitution. It is well established that this clause applies to intangible property such as copyright. Furthermore I disagree with some aspects of the courts assessment regarding the purpose and impact to revenue. On the first point, there is a large overlap between people who need to know the legal requirements for building and those who want to know best practices - the later is nearly a subset of the former, especially once these best practices become the law. Furthermore, the distribution of incorporated standards has historically been a legal gray area at best. Just because there was little evidence of lost revenue in the past doesn't mean there won't be significant lost revenue after it becomes unambiguously legal.

PaulDavisThe1st 3y ago
"Let's put it like this: we can use your standards in our legislation, and everyone will need training and information and assistance with the more technical aspects of the standard, and you can derive revenue from that. Or we can use some other standards, and yours will have approximately zero value to anyone. What do you think?"
- tialaramex 3y ago
  Further, if in fact your standard was the only possibility (and so we can't have a different standard), there was in fact no creative element to your standard, and so it not only isn't protected from copying and redistribution for the purpose of informing people as to the law, but never protected at all since it had no creative element. And yes, in practice we see that there is much more demand for relatively compact, opinionated books about something standard (e.g. "Beautiful C++" the most recent book from Kate Gregory) than there is for the large volumes of tremendously dry technical documentation which makes up the standard itself, a draft of which (nobody who matters cares about the "official" document) is here: https://timsong-cpp.github.io/cppwp/ https://timsong-cpp.github.io/cppwp/ I'd guess that you'll shift way more of a video course on the correct use of fire extinguishers than you would of a dry document specifying exactly how many litres of what retardants shall be provided to fight a fire of so-and-such proportions. Just make sure you don't persuade legislators to make watching your video a legal requirement and you can sell those for a nice healthy profit.
  - PaulDavisThe1st 3y ago
    Also, see construction in general: far more people interested in watching people like Matt Risinger or Stud Pack deconstruct construction, so to speak, than document every last detail of the relevant building code(s). "How to build it really good (and to code)" is far more in demand than "Tell me what the code is".
- yjftsjthsd-h 3y ago
  Seems like the obvious solution is to ban the use of private standards in public law. A vendor may choose to be eligible for having its standards used in the law by making them open/public/free for use, xor it can keep them private.
  - PaulDavisThe1st 3y ago
    Pretty sure that's what this court ruling just did.
kelnos 3y ago
Isn't the fact that the private standard is becoming law compensation enough? The company that wrote/owns the standard will certainly experience economic benefits from having its work enshrined in law. Certainly the company should have to agree: the government should not just be able to assume the company will be ok with it. But presumably in this particular case, the companies that wrote these particular fire protection and electrical standards did so because they wanted them to eventually have legal force.
- apendleton 3y ago
  > presumably in this particular case, the companies that wrote these particular fire protection and electrical standards did so because they wanted them to eventually have legal force. Sure, but the reason they wanted this is at least part because they could earn revenue from selling access to them (and having the monopoly on being able to do so), which they now no longer can. It's not obvious to me how they would otherwise materially benefit.
  - Terr_ 3y ago
    > [When not selling access to the documentation,] It's not obvious to me how they would otherwise materially benefit. Two ways come to mind: 1. Detailed expertise and brand-recognition would provide them an edge in selling consulting and training services. 2. Depending on how the legislature incorporated the standards, they would be in a position to promote/prevent future changes that benefit/disadvantage their stakeholders. Potentially a kind of regulatory capture.
apendleton 3y ago
> The next question in my mind is whether incorporating private standards into legislation without compensation violates the the takings clause of the constitution. The standards cost money to produce, so it seems like _someone_ should pay for them, otherwise there'd be no incentive for the standards bodies to produce them in the first place. So I think maybe the best outcome would be a finding that these _are_ a taking, and that then governments who want to incorporate them by reference should have to pay to be able to do so (but then they'd be free to read to the public).
cvalka 3y ago
"It is well established that this clause applies to intangible property such as copyright". No! The taking clause does NOT apply to copyright since copyright is not private property but an artificial government granted monopoly.

by pavon 3y ago

PaulDavisThe1st 3y ago

"Let's put it like this: we can use your standards in our legislation, and everyone will need training and information and assistance with the more technical aspects of the standard, and you can derive revenue from that. Or we can use some other standards, and yours will have approximately zero value to anyone. What do you think?"

tialaramex 3y ago
Further, if in fact your standard was the only possibility (and so we can't have a different standard), there was in fact no creative element to your standard, and so it not only isn't protected from copying and redistribution for the purpose of informing people as to the law, but never protected at all since it had no creative element. And yes, in practice we see that there is much more demand for relatively compact, opinionated books about something standard (e.g. "Beautiful C++" the most recent book from Kate Gregory) than there is for the large volumes of tremendously dry technical documentation which makes up the standard itself, a draft of which (nobody who matters cares about the "official" document) is here: https://timsong-cpp.github.io/cppwp/ https://timsong-cpp.github.io/cppwp/ I'd guess that you'll shift way more of a video course on the correct use of fire extinguishers than you would of a dry document specifying exactly how many litres of what retardants shall be provided to fight a fire of so-and-such proportions. Just make sure you don't persuade legislators to make watching your video a legal requirement and you can sell those for a nice healthy profit.
- PaulDavisThe1st 3y ago
  Also, see construction in general: far more people interested in watching people like Matt Risinger or Stud Pack deconstruct construction, so to speak, than document every last detail of the relevant building code(s). "How to build it really good (and to code)" is far more in demand than "Tell me what the code is".
yjftsjthsd-h 3y ago
Seems like the obvious solution is to ban the use of private standards in public law. A vendor may choose to be eligible for having its standards used in the law by making them open/public/free for use, xor it can keep them private.
- PaulDavisThe1st 3y ago
  Pretty sure that's what this court ruling just did.

kelnos 3y ago

Isn't the fact that the private standard is becoming law compensation enough? The company that wrote/owns the standard will certainly experience economic benefits from having its work enshrined in law. Certainly the company should have to agree: the government should not just be able to assume the company will be ok with it. But presumably in this particular case, the companies that wrote these particular fire protection and electrical standards did so because they wanted them to eventually have legal force.

apendleton 3y ago
> presumably in this particular case, the companies that wrote these particular fire protection and electrical standards did so because they wanted them to eventually have legal force. Sure, but the reason they wanted this is at least part because they could earn revenue from selling access to them (and having the monopoly on being able to do so), which they now no longer can. It's not obvious to me how they would otherwise materially benefit.
- Terr_ 3y ago
  > [When not selling access to the documentation,] It's not obvious to me how they would otherwise materially benefit. Two ways come to mind: 1. Detailed expertise and brand-recognition would provide them an edge in selling consulting and training services. 2. Depending on how the legislature incorporated the standards, they would be in a position to promote/prevent future changes that benefit/disadvantage their stakeholders. Potentially a kind of regulatory capture.

apendleton 3y ago

> The next question in my mind is whether incorporating private standards into legislation without compensation violates the the takings clause of the constitution. The standards cost money to produce, so it seems like _someone_ should pay for them, otherwise there'd be no incentive for the standards bodies to produce them in the first place. So I think maybe the best outcome would be a finding that these _are_ a taking, and that then governments who want to incorporate them by reference should have to pay to be able to do so (but then they'd be free to read to the public).

cvalka 3y ago

"It is well established that this clause applies to intangible property such as copyright". No! The taking clause does NOT apply to copyright since copyright is not private property but an artificial government granted monopoly.