
Germany threatens to jail Carl Malamud for making the law available for free - Amadou
http://boingboing.net/2013/11/21/germany-threatens-to-jail-carl.html
======
bowlofpetunias
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.

~~~
nhebb
I used to work for a medical device manufacturer that had to comply with IEC
60601 (among others standards). Compliance with these standards was required
by law, but the IEC and ISO documentation was not free. However, the
underlying principal is that by purchasing copies of the standards, companies
are subsidizing the creation and maintenance of the safety standards. In short
it's kind of regulatory fee.

I applaud Malamud's efforts for some of the documents he has made available,
but since the DIN is not a government agency, this is basically like making a
copy of the ISO 9000 standards available for free download.

~~~
Zenst
Or you could view it as a monopoly with no competition. In effect it is a
protection system. When viewed that way it is easy too see how people could
become upset entering into these areas.

With that it is easy to see how such articles get written in such styles on
the internet or indeed tabloids as it is a formula of panic that has served
media well for too long.

~~~
Tomte
It's not exactly a monopoly You can buy it from ANSI or BSI, as well. If you
don't insist on the German language version (even then, the Austrians probably
have another version).

Remember those C and C++ PDF standards, that ANSI sold for $18, later $30,
despite the competition selling for two hundred or whatever?

But sure, it's not a really competitive market.

------
Tomte
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
_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-
liberat...](http://legalresearchplus.com/2008/09/27/carl-malamud-liberating-
law/)

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/h...](http://ec.europa.eu/enterprise/policies/european-
standards/harmonised-standards/general-product-safety/)

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
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/pro...](http://www.bmas.de/SharedDocs/Downloads/DE/PDF-
Meldungen/produktsicherheitsgesetz-prdsg-englisch.pdf?__blob=publicationFile)

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.

~~~
nhaehnle
Thank you for the explanation.

Let me offer a tl;dr: Standards bodies found a bureaucratic loophole allowing
them to make their standards into _de facto_ -law while avoiding that those
standards then become part of the public domain as they ought to be.

Sounds like a classic case where the law has not caught up with morality.

~~~
roel_v
No, you are _wrong_ , the whole _reason_ the GP is so long is _because EU law
is much more complicated than the average nerds ' vision of what law should be
like_ (i.e., a rule-based decision tree). It is no 'loop hole', it is a
fundamental feature of EU law to _not_ be a federal system where the
Commission sets the law in a uniform way across the territory.

~~~
nhaehnle
Your point about the complexity of EU law is irrelevant.

If there is even one single EU country in which the law is implemented in such
a way that the standard referenced by the EU document becomes de facto law,
then that standard ought to enter the public domain at least within that
country. The detour via the EU is irrelevant.

~~~
roel_v
Look, just read everything that was said above again until you understand it
and then come back, there's no point in me repeating the same thing several
times. You're literally talking nonsense - 'de facto law', 'public domain
within that country', 'detour via the EU' \- everything you say indicates you
don't understand the points being made here.

Not to be an asshole about it, but between you and me, there is only one
person with a law degree.

~~~
nhaehnle
Not to be an asshole about it, but if you really have a law degree, then
perhaps that explains your inability to see the moral dimension of what is
going on here. Time to take off your lawyer hat and read again what I wrote.

I have _not_ written whether I believe the publication of those standards is
legal under current (copyright) law or not. The point is that it _ought to be_
legal because it is _moral_. It is moral because (at least for some of the
standards, according to everything I have read about the topic) the _de facto_
way of following a certain law is to follow the standard that was published.
Whether there are other ways of following that law is made irrelevant by
common practice (again, from a moral point of view, thought perhaps not
according to current copyright law).

If necessary, the (copyright) law _should_ be changed so that the law follows
morality.

------
ChuckMcM
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
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
"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
You are quoting an American ruling. This is a European case.

~~~
DannyBee
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.

~~~
flexie
I made an assertion and now it's my "job to support it"?! How is that for an
assertion. Stating that everybody is not entitled to get a free copy of
copyrighted material is hardly an assertion in the first place and I think you
maybe have a very strong sense of entitlement if you think you should tell me
what my job is ;-)

I am not a German lawyer but a Danish one. The Danish copyright law doesn't
have such provision but in Denmark charging manufacturers 100 euro for a
standard would not upset any judge. 100 Euro is the price of a meal at an
average restaurant, 20 minutes of lawyer time or a text book on insolvency law
(if you can't pay for it). Things are cheaper in Germany so maybe 100 Euro is
too much. I don't know.

Lawmakers often prefer that technical standards are made by private and semi
private bodies because politicians and government clerks have absolutely no
clue about technicalities. manufacturers prefer it for the same reason.

Even if these technical bodies sell 1,000 "baby pacifier standards" all over
Germany, and I doubt they sell that many, the proceeds barely cover the direct
cost of creating the standards, including hiring lawyers, engineers and other
experts, negotiating with different interest groups, printing etc.

If the alternative would be to let the taxpayers bear the full price I think
it's fine to have manufacturers pay a few hundred euros yearly to get the
standards they need.

In most of Europe compliance with product safety regulations is not ensured
through the courts by lawyers hired by those who have suffered damage. Yes,
these cases exist but in much smaller numbers than in the US. The real
enforcement of the rules is carried out by public agencies that control that
the rules are followed, issue fines and bans, close factories etc. So there
are very few readers of most of these standards.

As for court cases, I don't know of any on this subject.

~~~
crististm
'I made an assertion and now it's my "job to support it"?! ' \- Yep - that's
how it goes.

~~~
darklajid
Actually no. Stating the fact that random rulings in the US don't apply to
this case here is nothing that needs further support. Even if the general idea
('those documents should be free') would be supported in a German court that
observation would still be true: Those court cases aren't relevant.
Interesting maybe, related for people asking themselves how the US handles
this. But they don't mean a thing for the case in the article.

Nothing to "support" any further.

~~~
DannyBee
I think you are confused.

The original assertion was (basically): "Just because you make something part
of the law, doesn't make it free".

Note it was not even an assertion made about german law, but the law in
general. There was no support for this statement offered, just a bare
assertion that this was true.

I pointed out this was not true in the US, and probably not true in plenty of
places. I specifically asked if there was any caselaw to support the
assertion.

The response, rather than to offer support for the bare assertion, was to
point out i cited the US. Which was kind of besides the point.

So I went to the trouble of looking up german copyright law, and posting what
_it_ says about it. At that point, I felt like I was essentially doing the
work of the parent for them, and pointed out again that maybe they'd like to
support their _still_ bare assertion about the law.

So yes, there was something to support, and at least as of this writing, it's
_still_ not supported.

------
HarryHirsch
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
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
That does not make it legal to publish a work without the copyright holder's
consent.

~~~
nhaehnle
Perhaps, but it does make it _moral_ to publish the work.

And law ought to follow morality rather than the other way around.

~~~
rowyourboat
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
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.

~~~
halostatue
Note that not all countries hold the idea that the U.S. does where something
published by the government is not copyrighted.

[http://en.wikipedia.org/wiki/Crown_copyright](http://en.wikipedia.org/wiki/Crown_copyright)

~~~
tracker1
I realize this... the core principles of liberty are, however, universal. Even
if a specific local government doesn't believe in it. Even in the U.S. it
appears to be less and less supported by law each year.

------
tomohawk
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.

------
crististm
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.

------
po
_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.

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

