
Public.resource.org wins appeal on right to publish the law [pdf] - DannyBee
https://www.cadc.uscourts.gov/internet/opinions.nsf/533D47AF883C8194852582CD0052B8D4/$file/17-7035.pdf
======
rahimnathwani
This is a great outcome, but it is amazing that the appeal opinion requires 40
pages when, in essence, the question is only whether people subject to US laws
must pay to know what the law is.

What's interesting about the case and the legal opinion is that
public.resource.org's use is considered fair use, but it's still the case that
public.resource.org must pay to get an initial copy of each standard, before
it can be published on that site.

So access to the law is still not free of charge.

~~~
rayiner
It's not an easy case at all (and in fact, the court punts on the big-picture
question, deciding the case instead on fair use). There are two separate
issues: (1) "whether people subject to US laws must pay to know what the law
is," and (2) whether a legislative body can deprive the private entity of
copyright protection in a work by incorporating that work by reference into a
law or regulation.

Answering "yes" to the first question does not resolve _this case_ , where a
legislative body incorporated a private entity's technical standard by
reference, without the private entity abandoning copyright in that work. The
question is, _what happens now?_ Does the copyrighted work automatically
become public domain (what public.resource.org argued)? Or does the copyright
remain valid, but instead we find the _legislative body_ in violation of its
obligation to ensure public access to the law (and, perhaps, find the law
invalid on that basis)?

It is not necessarily the case, as public.resource.org argued, that the
requirement of public access automatically eliminates copyright in standards
that have been incorporated by reference. It may instead create an affirmative
obligation on the part of legislative bodies to enter into appropriate
arrangements with the private entities that develop the standards.

~~~
cryptonector
It's not like legislatures are taking novels or source code for various OSes,
apps, ..., and incorporating it into law in order to vitiate the relevant
copyrights. These are laws written by third parties to _be_ laws. In any case,
both (1) and (2) could be answered "no" and still resolve this case --
legislatures would then have to rewrite those laws or acquire the copyrights
on them. And, as you point out, (2) could be answered "yes, when the work is
intended by its owners to be incorporated into laws" (which would immediately
cease to be the case).

Besides questions of how the courts have ruled / should rule on these issues,
on what grounds, and so on, there's a policy question. I don't think we should
want the law to not be in the public domain as a matter of policy.

Question for the lawyers of HN: can governments take copyrights via eminent
domain? Statutorily or constitutionally? Perhaps only national governments
rather than State/provincial?

~~~
test6554
What if someone writes a new law as a literary work about banning soft drinks
or limiting sugar. They write hundreds of these literary laws in many
different forms using lots of varying language with the specific intent to
copyright it so that it makes it very difficult to draft an actual bill that
bans soft drinks or limits sugar use in processed foods without violating some
soda company's copyrights.

~~~
YawningAngel
Reproducing a document you did not reference coincidentally is not a copyright
violation

------
speedplane
This is just one of many fights concerning free access to the law. There are
easily three other lawsuits going on now that I can think of concerning the
issue, and the underlying issue is pretty basic: the public should have free
access to the rules that govern them.

Sadly, there are a number of incumbent commercial interests in both the
government and private sector that fund themselves by being gatekeepers. There
is just a small group that seeks to free the law for moral reasons and a few
more that do so for legitimate commercial interests, but they have an uphill
and lonely battle.

I fear that lawsuits like this are not going to be sufficient (judges often
decide cases in the middle, not on absolutionist moral principles).

The real answer will likely have to come from legislation, and free access to
the law does not seem to be anywhere near the top of most politicians (or
citizens) priorities.

~~~
rayiner
What will the legislative fix be? Governments can’t just decide to make these
privately developed standards free for public use. So they can pay to free it
up (costs the taxpayers money) or they can write their own standards (costs
tbe taxpayers even more money).

 _Someone_ has to bankroll these efforts. The way it happens now is that the
people who need the standards (the ones building regulated products) are the
ones that pay for standardization. Indeed, they might well be ASTM members
themselves (the ASTM has 30,000 members, including producers and users).

So you’re asking the public to take on a major expense to vindicate the
abstract principle that, if some random person wanted to look up what the
standard requires, they should be able to do so for free. That might well be
what the Constitution requires. But you can see why nobody wants to do it.

~~~
paulsutter
If the standards are expensive to develop and maintain, seems better to
require a license to implement a standard, or a fee to validate compliance to
the standards. But anyone should be able to view them freely (if they are
required by law)

Keeping them secret to practicioners-only seems perverse. And if they’re
expensive, this is the effect.

~~~
rayiner
To use an example from the opinion, consider the ASTM standard for diesel
fuel. ASTM has been involved in automotive standardization since the 1910s and
1920s:
[https://www.astm.org/COMMIT/D02/timeline.pdf](https://www.astm.org/COMMIT/D02/timeline.pdf).
(ASTM was founded in 1898). The diesel fuel standard was first published in
1948. 42 U.S.C. § 17021, which incorporates it by reference, was enacted in
2007.

That’s not necessarily true for every standard, but in general the industry
creates the standard because it needs to; the government comes along later and
mandates use of standards that have already become widely adopted and time
tested.

~~~
paulsutter
How is the standard verified in practice? If it’s a device, it could be
license fee on the device. If it’s validated by a lab, the lab could pay a fee
to validate to the standard.

But the standard should be freely published if it’s a law

I research many more things than I build. It seems bizarre to collect fees
from me when I’m researching an idea rather than when I implement it

~~~
rayiner
In the case of standards incorporated into building codes, it would be
verified by a county building inspector. But in most cases, I'd imagine
verification only happens if there is a dispute about compliance.

I'd agree with your last point but only if reworded slightly: "the law should
only rely on standards that are freely published." To me, this is where
public.resource.org is barking up the wrong tree. The obligation to ensure
free access to the law rests squarely with the government. It's not ASTM's
duty to allow free access to standards that the government incorporated into a
standard. If the government wants to use copyrighted work, it should enter
into appropriate arrangements with the standards organizations that produce
it.

~~~
pm24601
Federal law determines copyright, not the constitution.

> The obligation to ensure free access to the law rests squarely with the
> government.

Equal protection clauses and First Amendment control here. Otherwise there is
secret law.

In a degenerate example, "the crime of murder and a proper defense shall be
determined by standard 451 from the Bradbury Institute." The Bradbury
Institute will be happy to sell a copy of that standard for $100 million.

~~~
rayiner
Copyright is created in the constitution. Once granted, it is a
constitutionally protected property right. Equal protection and first
amendment “control” but so does copyright. All must be given effect.

To use a different example: the government makes a law establishing yor back
yard as a polling place for federal elections. Surely, you agree that peoples’
right to vote cannot to be vindicated if they can’t freely access polling
locations. But that doesn’t mean that you are obligated to let everyone onto
your property! The law is the problem, and the government is at fault for
failing to ensure that polling locations are publicly accessible.

~~~
PeterisP
Copyright is _not_ created in the constitution as some right that inherently
applies to all inventors/creators.

The particular constitution clause only _permits_ congress to grant copyright
exclusivity if (and to the limits) it wishes to; it doesn't _require_ the
congress to grant this exclusive right in any particular scope or even at all
- it's up to the congress to decide.

~~~
rayiner
Except this case addresses standards which are already copyrighted. (The laws
incorporated pre-existing standards). Congress can decide the scope of the
grant, just as it could decide the terms on which to grant someone 40 acres in
the west. But once granted, it is a property right. Congress can’t just
retroactively take it away.

------
8bitsrule
_in essence, the question is only whether people subject to US laws must pay
to know what the law is._

I've always thought that, were it up to the Founding Fathers, the answer would
be: obviously not.

I was always taught that 'ignorance of the law is no excuse' . However, as a
kid, when I asked the librarian where I could read the law, she laughed.
(Defeatedly, I suppose.)

And so, once again, the law is used to defeat liberty ... in the service of
privilege.

~~~
earenndil
Well, you still have to pay -- for internet access.

~~~
thayne
Most people have access to a public library with internet access.

~~~
Broken_Hippo
I encourage you to use a library for your internet access needs. Do it for a
while without using your vehicle - cheap public transport only if you have it.

Check out small town libraries, their hours and their range of free users.

Just because folks technically have access doesn't mean that they can access
such a thing.

~~~
colejohnson66
Also, most (if not all) libraries I’ve been to require a library card to use
their computers. And to get a library card, you need some kind of proof of
address. Homeless people don’t have addresses

~~~
Broken_Hippo
Yeah, this is a serious issue and one I wish wasn't the case.

------
jaclaz
As a side-side note, the same happens for "International Standards" most if
not all ISO documents:

[https://www.iso.org/](https://www.iso.org/)

are available only for a fee (and are not redistributable), so when you see a
product proudly presented as being conformant to "ISO xxxx" you have no real
way (as a user) to know what (the heck) it is conformant to.

In some occasions I needed to check these, finding out how the tests actually
performed on some items have nothing (or little) to do with the intended use
or on how the actual item is advertised or perceived.

~~~
rayiner
ISO is composed of people and companies that develop standards for other
people to use. What is wrong with charging for that? What’s the other business
model for paying for that effort? The “open” and “free” HTML standardization
process, for example, has totally broken down, and now is “might makes right”
(whatever Chrome does is the standard). Would that be preferable for ISO
standards?

It costs money to develop standards. Paying a fee to access them (so long as
you are not forced to by law) is just about the least objectionable way of
paying for the work to be done.

~~~
alexchamberlain
You could charge a fee to the companies displaying the mark or those able to
certify it, whilst making the standard free to read.

~~~
delfinom
But there are hundreds of ISO specs.

In a product design alone, I may have 10-15 ISO specs, we don't stick on 10-15
labels on the outside and it would be ridiculous to stick on a sticker for a
spec that just details minimum hole size spacing in a circuit board.

~~~
rspeer
I enjoy claiming that code I write is "ISO 3 compliant" when I pick arbitrary
numbers from a limited set of nice arbitrary numbers.

------
DannyBee
I unfortunately haven't seen it covered in news yet, so i don't have a better
URL.

But it's the appeal of this: [https://www.eff.org/deeplinks/2017/02/federal-
court-rules-ag...](https://www.eff.org/deeplinks/2017/02/federal-court-rules-
against-publicresourceorg-says-public-safety-laws-can-be)

The appeal opinion is a complete and total vindication for Carl and
public.resource.org, which is awesome.

~~~
Dotnaught
[https://www.theregister.co.uk/2018/07/17/appeals_court_copyr...](https://www.theregister.co.uk/2018/07/17/appeals_court_copyright_fair_use/)

------
Latteland
This seems like an obvious right. You should have to right to know about the
laws. There's shouldn't be secret laws - like say how they decide on right to
fly. Also we should disallow non-competes (they only help big companies, they
hurt individuals).

~~~
tedunangst
Is it equally obvious that lawmakers have the right to cite a copyrighted work
and deprive it of copyrighted status?

~~~
rahimnathwani
I'm not arguing that it should be deprived of copyright protection. Just that
it should be accessible. That access could be provided by means other than
removing copyright status, e.g. through fair use exceptions, or by having the
government buy copies for every public library, or for every household.

But even if the only way to fix this were to extinguished copyright for the
referenced works, this doesn't add a huge burden on lawmakers. They created
copyright, after all, and the same powers they used to create it can be used
to weaken it.

~~~
briandear
Why not just make the law available upon request at the office in charge of
enforcement? People that need to know about the law can visit the agency
responsible or, they can pay a fee and order a personal copy. Buying it for
every library or household seems ridiculous since it’s pretty clear that the
vast majority of people wouldn’t even use it.

~~~
rahimnathwani
"Why not just make the law available upon request at the office in charge of
enforcement?"

Because plane tickets are expensive.

"pay a fee and order a personal copy"

That violates the notion that laws should be publicly accessible.

------
csense
I think the rules should be simple:

If the government ever mentions any part of a standard in any law or binding
regulation, that standard becomes public domain, forever. Because the law must
be publicly available.

This would effectively be government action taking rights away from the
copyright holder. So, when such a mention occurs, the government must pay a
fair price to the copyright owner, as required by the eminent domain clause of
the US Constitution.

This satisfies the public interest in making the standards freely available,
while making sure the people who developed the standards are paid for their
work. Thus preserving the economic viability of having the private sector
develop these technical standards.

------
nightcracker
We laugh at history, where the common man could not read and had to rely on
their priest to tell them what the bible said and how to live their life.

Things aren't all that different today.

------
larkeith
Of note:

"Because the district court erred in its application of both fair use
doctrines, we reverse and remand, leaving for another day the far thornier
question of whether standards retain their copyright after they are
incorporated by reference into law."

------
derekp7
I think a good resolution going forward would be for the standards author to
divide their work into two sections. One section would explain in plain
english the regulations and how to follow them -- that could comprise the bulk
of the work. Then an appendix could be written in legalese that would be
intended to be incorporated into the actual building codes. This part they
could make available to legislative bodies for free publication, but the
useful part (the explanations and how-to-follow guidelines) would still be the
proprietary part.

Kind of like giving away the software, but charging for the users manual.

~~~
taneq
More like an English description of the software followed by the source. The
problem is that if the first part were sufficient to define the law then the
second part would be unnecessary.

------
Animats
Now the question arises, is incorporation by reference into law a 5th
amendment "taking", requiring payment by the government incorporating the
standard into law. Or is that "fair use" by the Government?

~~~
ummonk
Right, the issue doesn't seem to be the fact that the law is being
republished, but the fact that some government entity is making use of a
private copyrighted standard in its laws in the first place.

------
aj7
If you go to their website, it looks pretty threadbare. I don’t know where the
budget will come from to purchase the standards once for pdf-ization. I am
personally interested in ASTM mechanical standards. ASTM has a reading room
where you promise not to print. But the ASTM reading room does not have a
search capability limited to itself. ASTM searches revert to mostly (or all?)
for-sale publications. This makes the reading room almost useless.

~~~
DannyBee
Carl Malamud takes donations, and is funded by a lot of good people.

He was also behind the efforts to scan federal reporters (see
[https://yeswescan.org/index.court.html](https://yeswescan.org/index.court.html))
, etc.

~~~
brentonator
When I saw they won this case (I didn't know the case was in action), I
donated what I could. I donate to the EFF and they support him with legal
counsel.

I've been a vocal opponent of the law not including the standards they
reference due to copyright. Once it's enacted into law you should lose all
right to prevent dissemination of those standards. It's not like the
government is ever knocking on your door as a standards designer to enact your
private standard as law.

I think a large part of why housing in Florida is expensive is because of the
prohibitively expensive standards you need to purchase to even determine what
you have to do to legally build a home.

------
mrleiter
It's important to note that the laws itself are public, but that the laws
refer to guidelines published by Standard Defining Organisations (SDOs), which
in turn are not freely accessible. This judgment means that PRO now still has
to pay for an initial copy of a guideline, but that they don't break copyright
by distributing it freely (fair use).

~~~
dragonwriter
No, it just means that they will get a chance in court to present evidence to
make the case that it is fair use; this reverses the trial courtsummary
judgement, but does not direct a judgement in favor of PRO.

------
stilley2
That document was incredibly readable. Props to the author for taking the time
to break down the issue so well.

------
cjhanks
It seems incomprehensible that a person should be obligated to follow a law
that they cannot know without money. I haven't heard of of this fight before -
but I really hope `public.resource.org` keeps up the fight.

------
ISL
It's Saturday, so I had time to read the entire ruling. If anything, it calls
out the district court for not having done its homework.

------
madez
As someone with a bit of a distance to this, this seems grotesque, bizarre,
and disconcerting. That the law is not free is The Onion material. I cannot
fathom how one must fight before a court for it.

This extreme hypercapitalism is disturbing.

~~~
brentonator
I'm not even particularly affected by the issue in general. When I was reading
my state law and found it referenced standards you can't publicly access, I
was unreasonably peeved. I wrote letters to my representatives and congressmen
about it but didn't expect much.

I felt endorphins reading this today because this is the first time I've heard
of the government not fucking something up in months. It's a Dumb and Dumber
"So you're saying there's a chance" kind of satisfying moment.

I'm hopeful Disney & friends finally get the middle finger in 2023 on
copyright extension.

