7 ms·

Germany threatens to jail Carl Malamud for making the law available for free

131 points by Amadou 13y ago

Tomte 13y ago
I know, you're enraged, but truthfulness is still not optional. The defendant did not "make the law available for free", he (allegedly) distributed a copyrighted standards text. Which is not law. At all. And no, it is not incorporated into law, either. Despite what some people usually claim. (There are a few DIN standards that are actually incorporated, but I've never come across those, I think they are used in some building construction code or whatever). I know, I also think it's bad that there is no way to read and use standards freely (or cheaply), but the headline is totally misleading.
- Amadou 13y ago
  And no, it is not incorporated into law, either. Despite what some people usually claim. So you are disputing the part of the article that says: "Every country in the EU is required to implement and publish these standards." I've followed Malamud's work in the USA and there he has been 100% accurate in his claims that the standards he publishes are incorporated into law by reference. You seem to be saying that he's wrong about how it works in the EU, and that what he published is not incorporated into law by reference. I'm inclined to give him the benefit of the doubt given his history. http://legalresearchplus.com/2008/09/27/carl-malamud-liberating-law/ http://legalresearchplus.com/2008/09/27/carl-malamud-liberat... If you have an explanation for how it is that he has mistakenly assumed that the standards he published are incorporated into EU law by reference, I'm all ears. Don't forget the cited document here: http://ec.europa.eu/enterprise/policies/european-standards/harmonised-standards/general-product-safety/ http://ec.europa.eu/enterprise/policies/european-standards/h... Which is a directive of the European Parliament and Council that specifies DIN EN 1400, the baby pacifier standard he's being sued for publishing.
  - Tomte 13y ago
    Look, I know, EU "law" is difficult. I happen to have a little bit of knowledge about that, because I work on safety-related systems in industrial automation, where the same legal mechanisms apply (although "my" directive is 2006/42/EG, not Directive 2001/95/EC). Legally it works like this: 1. The EU issues a directive. Directives are not directly binding (some gray areas have developed over the years) and must be implemented by national legislatures into national law. The directive is the base line, national legislators may go above and beyond what the directive calls for. 2. In Germany we have implemented this directive (as well as "my directive", that's why I claim to have some knowledge about this issue, as well) in the "Produktsicherheitsgesetz" (Product Safety Act). You can find a translation here: http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/produktsicherheitsgesetz-prdsg-englisch.pdf?__blob=publicationFile http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/pro... 3. The law enables quite a few ministers to issue regulations that deal with specific things (in my example: the Ninth Regulation deals with machinery safety). Those regulations usually refer back to the EU Directive, incorporating it partly. For example, in the Ninth you can see (http://www.gesetze-im-internet.de/gsgv_9/__3.html http://www.gesetze-im-internet.de/gsgv_9/__3.html) that some requirements are basically just worded as "must meet requirements A, B and C from 2006/42/EG" or "must provide documentation as per Annex I of 2006/42/EG)". 4. Law and Regulations must be obeyed. Not some "EU law". This law. And only this law. The key insight is: how you fulfill the requirements is up to you. Also, the burden of proof that you fulfilled those requirements is yours. 5. Because those requirements are rather vague and abstract, and this burden of proof is not easily met, the law provides for some "convenience avenue" (well, and because that's the idea behind the EU's "New Approach"): You may demonstrate that you meet the requirements of certain applicable standards. If you do this (and you still have the burden of proof here!), you are automatically assumed to be in compliance with the law and the regulations. That's the so-called assumption of conformity. 6. That's where your linked table comes in: those are standards that are "harmonized under the Directive". If you find a standard that's (partly) applicable (you may not use a nuclear reactor standard to claim conformance of your children's toys...) on that list, you may shift your burden of proof from the law and the regulations to the standard (as far as it's applicable). 7. So far it doesn't sound very exciting. You just swapped one set of requirements where you bear the burden of proof with another set of requirements where you also bear the burden of proof. The thing is, those standards are tailored to your field, so they are much more practical and manageable. And the real kicker is this: you can get certification by TÜV, BG and other "notified bodies" provided for by EU law, that you met the requirements of the standard. You probably won't get TÜV or BG to certify that you met the requirements of the law itself. 8. Okay, but isn't that "incorporation"? No, it's not. Not legally. And not practically. First, remember: you have to follow the German law. Not some Directive. The latter isn't directly binding to anyone, except the national states insofar, as they are required to implemented it. The decision which standards are "harmonized" and thus invoke this assumption of conformity lies with EU organs, not national organs. So there is a real division of authority there. And, most important: you're always free to disregard any and all harmonized standards. If you feel good about meeting the requirements of the national law and regulations without the help of harmonized standards (and in some fields you mostly have to do that anyway, because no really applicable harmonized standards exist), you're free to do so.
HarryHirsch 13y ago
There is a problem: traditionally standardizing bodies finance themselves by selling copies of the standard. I can see why someone might liberate the standards, but they should at least offer up alternative models for financing. The financing model may be obsolete, but the body that issues the standards is not.
- Amadou 13y ago
  The body that creates the standards is typically a creation of the industry that implements the standards. It is a cost of doing business. Compare them to RFCs which are quite similar in that they are generally created by authors who work for the companies implementing the RFCs.
  - rowyourboat 13y ago
    That does not make it legal to publish a work without the copyright holder's consent.
    - nhaehnle 13y ago
      Perhaps, but it does make it moral to publish the work. And law ought to follow morality rather than the other way around.
      - rowyourboat 13y ago
        If your point is that these standards are in fact de-facto laws and should be treated accordingly (free access and all), then make that point directly. It is unclear to me how copyright violation helps here, apart from publicity.
        tracker1 13y ago
        If the law requires implementation of {STANDARD} then {STANDARD} is part of the law, and should not be subject to copyright... the end.. no copyright violation for standards that are part of the law.
ChuckMcM 13y ago
I love this guy (Carl Malamud). I get that standards bodies like the monopoly they get by charging for their 'standards' but they rarely pay for the time of the people making these standards or their airfare to attend the meetings. Judging by the salaries of the "management" in these outfits I'm guessing the profits are pretty good.
flexie 13y ago
If the law mandates use of (privately manufactured) safety mechanisms it doesn't mean that you are entitled to get those safety mechanisms for free. Similarly, if the law mandates that manufacturers comply with certain (privately manufactured) technical standards it doesn't mean that everybody is entitled to get a copy of those standards for free. That being said it is unfortunate that the law refers to non open standards. And the penalties this guy risks are outrageous.
- DannyBee 13y ago
  "it doesn't mean that everybody is entitled to get a copy of those standards for free." Can you cite some case law for this assertion? At least in the US, every court i'm aware of to confront the issue has decided that if they incorporate a standard by reference into a law, you must be allowed to access it for free, or it cannot be enforced against you. Some even go further, and state it is no longer copyrightable. See, e.g., VEECK v. SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL, INC (293 F.3d 791) "Our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works retain their protected status." If you have contrary authority, i'd love to see it (veeck has, last i looked, 283+ citations). Even those commentators who criticize the Veeck decision all agree that the public must be given access to the code, for free. The only portion they disagree on is whether incorporation causes the copy to enter the public domain or not (IE whether it's still copyrightable).
  - flexie 13y ago
    You are quoting an American ruling. This is a European case.
    - DannyBee 13y ago
      Please cite any european decision to the contrary to support your decision ... Germany's official copyright law (which i only have english translations of, so apologies) says: "(3) The copyright on private collections of standards is not affected by section 1 and 2 if they are referred to in laws, regulations, decrees or official announcements without reproduction of their wording. In this case, the originator is obliged to grant each and every publisher the right to copy and distribute on reasonable terms. If a third party is the holder of the exclusive right to copy and distribute, that party is obliged to grant the license of use in accordance with sentence 2." I doubt 103 euros per copy is going to be found to be reasonable terms ... (And if it was not by reference, it would be covered by the sentence one that i didn't copy, which would just make it plain old not copyrightable) But enough of this, you made an assertion (and not even about german law, mind you, but about 'the law'), it's your job to support it.
bowlofpetunias 13y ago
Worst linkbait title ever? In fact, the entire post ridiculously manipulative. Doctorow is not doing anybody any favors by going into full tin-foil-hat-speak to disguise the facts. "Germany" is not "threatening" anybody. Malamud is getting sued by what is only referred to as the mysterious "the code people". (Which is actually DIN, an internationally well known standardisation institution, not need to refer to them as some shady gang.) All of this happens to take place in Germany. The facts are bad enough without this kind of nonsense.
- throwawaykf 13y ago
  I really wish people would realize outlets like BoingBoing, Techdirt and the like are just trolling for rage-views.
- thomasz 13y ago
  DIN is the German ANSI
  - chalst 13y ago
    Like ANSI, DIN is not a branch of government, but a self-regulated non-profit institute (an e.V.) Their FAQ describes their relationship to the government: > What is the role of the government or the European Commission in standardization? > Standardization is a form of economic self-regulation, relieving the state of the responsibility for developing detailed technical specifications while ensuring that a standard reflects the state of technology. Because the state has an interest in standardization, particularly in the occupational safety and health sectors, it funds DIN projects in sectors which are in the public interest. http://www.din.de/cmd?cmsrubid=55343&menurubricid=55343&level=tpl-rubrik&menuid=47566&languageid=en&cmsareaid=47566#Role%20of%20government http://www.din.de/cmd?cmsrubid=55343&menurubricid=55343&leve...
    - belorn 13y ago
      So let me see if I understand this right. The EU has created several safety laws that each countries must follow. The laws then in turn reference proprietary written standards by DIN, which people need to buy in order to actually follow and understand the law. Is that correct?
crististm 13y ago
Only a few months ago I was looking specifically for the European safety regulations for children tables and - to my surprise - they were nowhere to be found or were hidden behind some pay wall.
iSnow 13y ago
I see it as a violation of copyright case, not some obscure Kraut conspiracy.
po 13y ago
Additional fines of €250,000 are being requested and, if I can't pay, a maximum total period of detention of two years is possible Good to know that you can buy your way out of prison.
tomohawk 13y ago
If it walks like a duck and talks like a duck, it's a duck. Once a 'safety standard' is incorporated into a law, it becomes the law. At this point, it should be made freely available just like any other law. If it is important that some standards body get paid for their effort, then the gov't should pay at the time of transaction (when the standard is incorporated). It's a bit rich to levy a tax on people (fee to see the law), when the people have no representation or input into the creation of the law. This goes against long established norms. The US Constitutions forbids the federal government from copyrighting laws, the principle being that free people should be able to freely see the laws that govern them.
- coldarchon 13y ago
  Completely wrong and not on topic. There is no law that you cannot produce a car without a seat belt on every seat. But there is a Ministry of Transport approval that is only given when your seats all have seat belts. According to you the people should be able to define how many seats need a seat belt. Wrong.

131 points by Amadou 13y ago

Tomte 13y ago

I know, you're enraged, but truthfulness is still not optional. The defendant did not "make the law available for free", he (allegedly) distributed a copyrighted standards text. Which is not law. At all. And no, it is not incorporated into law, either. Despite what some people usually claim. (There are a few DIN standards that are actually incorporated, but I've never come across those, I think they are used in some building construction code or whatever). I know, I also think it's bad that there is no way to read and use standards freely (or cheaply), but the headline is totally misleading.

Amadou 13y ago
And no, it is not incorporated into law, either. Despite what some people usually claim. So you are disputing the part of the article that says: "Every country in the EU is required to implement and publish these standards." I've followed Malamud's work in the USA and there he has been 100% accurate in his claims that the standards he publishes are incorporated into law by reference. You seem to be saying that he's wrong about how it works in the EU, and that what he published is not incorporated into law by reference. I'm inclined to give him the benefit of the doubt given his history. http://legalresearchplus.com/2008/09/27/carl-malamud-liberating-law/ http://legalresearchplus.com/2008/09/27/carl-malamud-liberat... If you have an explanation for how it is that he has mistakenly assumed that the standards he published are incorporated into EU law by reference, I'm all ears. Don't forget the cited document here: http://ec.europa.eu/enterprise/policies/european-standards/harmonised-standards/general-product-safety/ http://ec.europa.eu/enterprise/policies/european-standards/h... Which is a directive of the European Parliament and Council that specifies DIN EN 1400, the baby pacifier standard he's being sued for publishing.
- Tomte 13y ago
  Look, I know, EU "law" is difficult. I happen to have a little bit of knowledge about that, because I work on safety-related systems in industrial automation, where the same legal mechanisms apply (although "my" directive is 2006/42/EG, not Directive 2001/95/EC). Legally it works like this: 1. The EU issues a directive. Directives are not directly binding (some gray areas have developed over the years) and must be implemented by national legislatures into national law. The directive is the base line, national legislators may go above and beyond what the directive calls for. 2. In Germany we have implemented this directive (as well as "my directive", that's why I claim to have some knowledge about this issue, as well) in the "Produktsicherheitsgesetz" (Product Safety Act). You can find a translation here: http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/produktsicherheitsgesetz-prdsg-englisch.pdf?__blob=publicationFile http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/pro... 3. The law enables quite a few ministers to issue regulations that deal with specific things (in my example: the Ninth Regulation deals with machinery safety). Those regulations usually refer back to the EU Directive, incorporating it partly. For example, in the Ninth you can see (http://www.gesetze-im-internet.de/gsgv_9/__3.html http://www.gesetze-im-internet.de/gsgv_9/__3.html) that some requirements are basically just worded as "must meet requirements A, B and C from 2006/42/EG" or "must provide documentation as per Annex I of 2006/42/EG)". 4. Law and Regulations must be obeyed. Not some "EU law". This law. And only this law. The key insight is: how you fulfill the requirements is up to you. Also, the burden of proof that you fulfilled those requirements is yours. 5. Because those requirements are rather vague and abstract, and this burden of proof is not easily met, the law provides for some "convenience avenue" (well, and because that's the idea behind the EU's "New Approach"): You may demonstrate that you meet the requirements of certain applicable standards. If you do this (and you still have the burden of proof here!), you are automatically assumed to be in compliance with the law and the regulations. That's the so-called assumption of conformity. 6. That's where your linked table comes in: those are standards that are "harmonized under the Directive". If you find a standard that's (partly) applicable (you may not use a nuclear reactor standard to claim conformance of your children's toys...) on that list, you may shift your burden of proof from the law and the regulations to the standard (as far as it's applicable). 7. So far it doesn't sound very exciting. You just swapped one set of requirements where you bear the burden of proof with another set of requirements where you also bear the burden of proof. The thing is, those standards are tailored to your field, so they are much more practical and manageable. And the real kicker is this: you can get certification by TÜV, BG and other "notified bodies" provided for by EU law, that you met the requirements of the standard. You probably won't get TÜV or BG to certify that you met the requirements of the law itself. 8. Okay, but isn't that "incorporation"? No, it's not. Not legally. And not practically. First, remember: you have to follow the German law. Not some Directive. The latter isn't directly binding to anyone, except the national states insofar, as they are required to implemented it. The decision which standards are "harmonized" and thus invoke this assumption of conformity lies with EU organs, not national organs. So there is a real division of authority there. And, most important: you're always free to disregard any and all harmonized standards. If you feel good about meeting the requirements of the national law and regulations without the help of harmonized standards (and in some fields you mostly have to do that anyway, because no really applicable harmonized standards exist), you're free to do so.

HarryHirsch 13y ago

There is a problem: traditionally standardizing bodies finance themselves by selling copies of the standard. I can see why someone might liberate the standards, but they should at least offer up alternative models for financing. The financing model may be obsolete, but the body that issues the standards is not.

Amadou 13y ago
The body that creates the standards is typically a creation of the industry that implements the standards. It is a cost of doing business. Compare them to RFCs which are quite similar in that they are generally created by authors who work for the companies implementing the RFCs.
- rowyourboat 13y ago
  That does not make it legal to publish a work without the copyright holder's consent.
  - nhaehnle 13y ago
    Perhaps, but it does make it moral to publish the work. And law ought to follow morality rather than the other way around.
    - rowyourboat 13y ago
      If your point is that these standards are in fact de-facto laws and should be treated accordingly (free access and all), then make that point directly. It is unclear to me how copyright violation helps here, apart from publicity.
      - tracker1 13y ago
        If the law requires implementation of {STANDARD} then {STANDARD} is part of the law, and should not be subject to copyright... the end.. no copyright violation for standards that are part of the law.

ChuckMcM 13y ago

I love this guy (Carl Malamud). I get that standards bodies like the monopoly they get by charging for their 'standards' but they rarely pay for the time of the people making these standards or their airfare to attend the meetings. Judging by the salaries of the "management" in these outfits I'm guessing the profits are pretty good.

flexie 13y ago

If the law mandates use of (privately manufactured) safety mechanisms it doesn't mean that you are entitled to get those safety mechanisms for free. Similarly, if the law mandates that manufacturers comply with certain (privately manufactured) technical standards it doesn't mean that everybody is entitled to get a copy of those standards for free. That being said it is unfortunate that the law refers to non open standards. And the penalties this guy risks are outrageous.

DannyBee 13y ago
"it doesn't mean that everybody is entitled to get a copy of those standards for free." Can you cite some case law for this assertion? At least in the US, every court i'm aware of to confront the issue has decided that if they incorporate a standard by reference into a law, you must be allowed to access it for free, or it cannot be enforced against you. Some even go further, and state it is no longer copyrightable. See, e.g., VEECK v. SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL, INC (293 F.3d 791) "Our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works retain their protected status." If you have contrary authority, i'd love to see it (veeck has, last i looked, 283+ citations). Even those commentators who criticize the Veeck decision all agree that the public must be given access to the code, for free. The only portion they disagree on is whether incorporation causes the copy to enter the public domain or not (IE whether it's still copyrightable).
- flexie 13y ago
  You are quoting an American ruling. This is a European case.
  - DannyBee 13y ago
    Please cite any european decision to the contrary to support your decision ... Germany's official copyright law (which i only have english translations of, so apologies) says: "(3) The copyright on private collections of standards is not affected by section 1 and 2 if they are referred to in laws, regulations, decrees or official announcements without reproduction of their wording. In this case, the originator is obliged to grant each and every publisher the right to copy and distribute on reasonable terms. If a third party is the holder of the exclusive right to copy and distribute, that party is obliged to grant the license of use in accordance with sentence 2." I doubt 103 euros per copy is going to be found to be reasonable terms ... (And if it was not by reference, it would be covered by the sentence one that i didn't copy, which would just make it plain old not copyrightable) But enough of this, you made an assertion (and not even about german law, mind you, but about 'the law'), it's your job to support it.

bowlofpetunias 13y ago

Worst linkbait title ever? In fact, the entire post ridiculously manipulative. Doctorow is not doing anybody any favors by going into full tin-foil-hat-speak to disguise the facts. "Germany" is not "threatening" anybody. Malamud is getting sued by what is only referred to as the mysterious "the code people". (Which is actually DIN, an internationally well known standardisation institution, not need to refer to them as some shady gang.) All of this happens to take place in Germany. The facts are bad enough without this kind of nonsense.

throwawaykf 13y ago
I really wish people would realize outlets like BoingBoing, Techdirt and the like are just trolling for rage-views.
thomasz 13y ago
DIN is the German ANSI
- chalst 13y ago
  Like ANSI, DIN is not a branch of government, but a self-regulated non-profit institute (an e.V.) Their FAQ describes their relationship to the government: > What is the role of the government or the European Commission in standardization? > Standardization is a form of economic self-regulation, relieving the state of the responsibility for developing detailed technical specifications while ensuring that a standard reflects the state of technology. Because the state has an interest in standardization, particularly in the occupational safety and health sectors, it funds DIN projects in sectors which are in the public interest. http://www.din.de/cmd?cmsrubid=55343&menurubricid=55343&level=tpl-rubrik&menuid=47566&languageid=en&cmsareaid=47566#Role%20of%20government http://www.din.de/cmd?cmsrubid=55343&menurubricid=55343&leve...
  - belorn 13y ago
    So let me see if I understand this right. The EU has created several safety laws that each countries must follow. The laws then in turn reference proprietary written standards by DIN, which people need to buy in order to actually follow and understand the law. Is that correct?

crististm 13y ago

Only a few months ago I was looking specifically for the European safety regulations for children tables and - to my surprise - they were nowhere to be found or were hidden behind some pay wall.

iSnow 13y ago

I see it as a violation of copyright case, not some obscure Kraut conspiracy.

po 13y ago

Additional fines of €250,000 are being requested and, if I can't pay, a maximum total period of detention of two years is possible Good to know that you can buy your way out of prison.

tomohawk 13y ago

If it walks like a duck and talks like a duck, it's a duck. Once a 'safety standard' is incorporated into a law, it becomes the law. At this point, it should be made freely available just like any other law. If it is important that some standards body get paid for their effort, then the gov't should pay at the time of transaction (when the standard is incorporated). It's a bit rich to levy a tax on people (fee to see the law), when the people have no representation or input into the creation of the law. This goes against long established norms. The US Constitutions forbids the federal government from copyrighting laws, the principle being that free people should be able to freely see the laws that govern them.

coldarchon 13y ago
Completely wrong and not on topic. There is no law that you cannot produce a car without a seat belt on every seat. But there is a Ministry of Transport approval that is only given when your seats all have seat belts. According to you the people should be able to define how many seats need a seat belt. Wrong.