
Can the Law Be Copyrighted? - Old_Thrashbarg
https://techcrunch.com/2019/04/09/can-the-law-be-copyrighted/
======
TimTheTinker
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.

~~~
iratewizard
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?

~~~
Old_Thrashbarg
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.

In addition, the laws are written by volunteers. ICC convenes committees of
volunteers who author the law. That's how the run such huge profit margins.

EDIT: Disclaimer - As stated in a couple other spots on this page, I am a
cofounder of UpCodes.

~~~
iratewizard
The committees don't write the code, they consult on what codes they want to
see. Those people should be volunteers, otherwise it would introduce
conflicting interests. The data they gather is then codified paid employees.
They have no profit margin as they are a non-profit and they have highly paid
executives because they are enormous in scale.

Stop talking out of your ass.

------
gumby
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
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
(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.

~~~
Gibbon1
You could fix this issue by a federal law that says any law or regulation that
isn't freely available is unenforceable.

Oh your building code is copyrighted and you have to pay to get a copy? Good
news! Legally there is no building code.

~~~
jimz
The federal government forcing a state to enforce a federal statute would
definitely violate the 10th Amendment if the state has laws against that. I
think most states have building codes irrespective of copyright status.

However, the very scenario is covered generally by statute already.
Regulations, even copyrighted ones adopted by an agency, must be publicly
accessible to have the force of law. Freely accessible in most cases relate to
having physical access to the text in some free way. This seems like something
that can be solved very simply on the state level: just redefine publicly
accessible to publicly accessible on the internet.

~~~
imgabe
You have to be very specific about "publicly accessible on the Internet". This
has to mean in a searchable, interlinked, HTML format.

What the NFPA[1] does with its codes is to make them "available" through this
horrible Java reader applet that prevents you from printing, selecting,
copying and pasting or doing anything except looking at one page at a time.
Oh, and half the time it's broken, or you have an incompatible version of Java
or some other nonsense. It's a mess.

[1] National Fire Protection Association. They publish the National Electric
Code (NEC) among others.

~~~
Old_Thrashbarg
Somehow it's not surprising to hear the NFPA Java reader is often broken.
There's a perverse incentive: the more broken it is, the more money they make
selling the law in book form. And then when they get to court, they can just
say they already provide free access.

------
rwcarlsen
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.

~~~
metaphor
> _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.

------
kevin_b_er
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.

~~~
gumby
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!

~~~
really_operator
Do you have a source for this claim? I'm only finding sources saying the case
was dismissed by the supreme without comment[1], and the 9th Circuit Court of
Appeals did rule on it (in favor of Gonzales)[2].

[1] [https://www.sfgate.com/politics/article/SAN-FRANCISCO-
Suprem...](https://www.sfgate.com/politics/article/SAN-FRANCISCO-Supreme-
Court-rejects-ID-challenge-2658185.php)

[2] [https://www.sfgate.com/bayarea/article/SAN-FRANCISCO-Man-
who...](https://www.sfgate.com/bayarea/article/SAN-FRANCISCO-Man-who-wouldn-t-
show-ID-at-2523430.php)

~~~
gumby
[https://papersplease.org/gilmore/](https://papersplease.org/gilmore/)

What I described was the court ruling; its appeal was denied by the US Supreme
Court.

~~~
really_operator
Right, but you said it "was dismissed as the law was classified so could not
be discussed in court", but I'm finding nothing that confirms that as true.

~~~
gumby
Check out the court's order:
[https://papersplease.org/gilmore/_dl/GilmoreDismissal.pdf](https://papersplease.org/gilmore/_dl/GilmoreDismissal.pdf)
(at the time it was Gilmore v. Ashcroft). The important part is buried: "As a
corollary, without having been provided a copy of this unpublished statute or
regulation, if it exists, the Court is unable to conduct any meaningful
inquiry as to the merits of plaintiff's vaguenesa srgument". I was in court
for the hearing; the government declined to provide any law or regulation
requiring showing of ID yet asserted that showing of ID was required; the
judge said (in the section I quoted) that as she couldn't see any law she
couldn't make a judgement.

Most of the order is dismissal of the other claims on jurisdictional grounds
and the appellate court (which by statute is primary, not appellate in this
case) declined to take the case. As it is primary, this seems strange to me.

~~~
really_operator
Thank you for the link. It sounds like they are talking about a TSA
regulation, and not necessarily a law, though. Still very interesting,
however, and I appreciate you following up.

~~~
gumby
Executive branch regulations (though not executive orders) are considered law
(called “administrative law”), have the force of law, and are litigated in the
courts same as law passed by Congress (unless Congress specifies otherwise, as
with the ones the district court said it did not have jurisdiction over).

I was in the courtroom when the case was argued and it was clear the judge was
looking for a good reason to throw it out rather than issue a ruling.

------
mindslight
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
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
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.

~~~
Old_Thrashbarg
Most of the organizations are extremely flush with cash and most of it is not
from selling the law.

That includes the organization in this article, ICC. 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. ICC
makes a lot of money. Attempting to copyright the law is unnecessary.

------
yonran
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...](https://archive.org/search.php?query=subject%3A%22bsc.ca.gov%22))
(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.

------
rolph
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
>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
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
Why would there be a need to prevent that? The only text that is authoritative
comes from the legal branch of the government.

~~~
hopler
The need to prevent that is the same need for any copyrighted work --to
protect the economic incentive of the author

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

~~~
paulgb
The idea that someone could copyright the law is completely antethetical to
democracy. Good luck, you're on the right side!

~~~
Old_Thrashbarg
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.

------
tathougies
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.

------
robmaister
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!

------
michelpp
The State of Oregon tried to claim copyright on state law:

[https://www.washingtontimes.com/news/2008/apr/19/oregon-
clai...](https://www.washingtontimes.com/news/2008/apr/19/oregon-claims-state-
law-copyrighted/)

but they decided "not to enforce any" after word got out:

[https://lawblog.justia.com/2008/06/19/oregon-decides-not-
to-...](https://lawblog.justia.com/2008/06/19/oregon-decides-not-to-enforce-
any-copyright-claims-on-the-oregon-revised-statutes/)

~~~
hopler
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-
li...](https://ij.org/press-release/oregon-engineer-wins-traffic-light-timing-
lawsuit/)

------
tracker1
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
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
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.

------
CalChris
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-...](https://www.propublica.org/article/congress-is-about-to-ban-the-
government-from-offering-free-online-tax-filing-thank-turbotax)

------
gumby
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_St...](https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States#Federal_and_state_laws_are_not_protected_by_copyright)

------
steelframe
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.

~~~
SilasX
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
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
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
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.

~~~
Mirioron
In fact, I would go even further and say that it should be illegal to force
somebody to follow laws and regulations that are not publicly and easily
accessible. By this I mean that people enforcing this or pushing for it should
be punished. It's basically racketeering.

~~~
SilasX
Does “having to go to the library” or “paying $10/month for a subscription for
doing things most people don’t do” count as “not easily accessible”?

------
Mirioron
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?

------
pergadad
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
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.

------
ABCLAW
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
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
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.

------
ezoe
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.

------
huffmsa
> _" 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.

------
qwerty456127
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.

------
derekp7
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
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
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
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
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.

------
ccsys
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.

------
fnordprefect
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.

~~~
chungleong
In order to understand the Law, we need to know the meanings of words laws are
written in. If we follow the logic that some are proposing here, the
government would have to license a dictionary and provide it for free to all
citizen. That'd be plain silly.

Building codes just provide precise definitions of what constitute safe
construction. They aren't laws themselves.

~~~
chii
Definitions are definitely part of the law when words' common parlance meaning
are not used in the law.

The question here is should the cost of writing a technical piece that make up
the law be placed on those who must follow it? Or should the cost be spread
out to all tax payers?

~~~
chungleong
The notion that anything the law references becomes the law is quite absurd.
Healthcare laws require insurance companies to cover the latest in preventive
cares. Does that suddenly make various medical journals part of the law? Of
course not.

------
aussiegreenie
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
[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.

------
evilotto
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
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
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...](http://media.iccsafe.org/AnnualReports/2015/2015AnnualReport.pdf)

~~~
evilotto
> 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.

