
American Bar Association votes to DRM referenced material made public - walterbell
https://boingboing.net/2016/08/10/american-bar-association-votes.html
======
rayiner
The article is misleading. The ABA has no power to "DRM the law." It's a
purely private organization like the IEEE or the ACM. What the ABA did is pass
a resolution urging Congress to require that private publications incorporated
by reference into federal regulations be made publicly-available:
[https://www.americanbar.org/news/reporter_resources/annual-m...](https://www.americanbar.org/news/reporter_resources/annual-
meeting-2016/house-of-delegates-resolutions/112.html)

 _I.e._ , if a regulation incorporates the POSIX standard--which you
ordinarily have to pay for--by reference, the ABA resolution calls for a copy
of the standard to be made publicly available. That is often not the case
today.

What the ABA stopped short of doing is calling for a freely-copyable version
of those private codes. I can't access the final resolution for some reason,
but the draft says "the required public access must include at least online,
read-only access to the incorporated portion of the standard . . . but it need
not include access to the incorporated material in hard-copy printed form."

I strongly support the idea that anything incorporated by reference into the
law should be public domain. But the article is a very misleading take on what
the ABA did and even what the ABA has the power to do.

~~~
csense
If the government takes your land and gives it to the public to build a new
road, the Constitution says you have to be compensated. If the government
takes your standard and gives it to the public to build a new law, it seems
like the same conclusion should apply.

When the government forces private copyrighted materials into the public
domain, they should pay the copyright holders for the revenue they would have
gotten from paid distribution.

I 100% agree with the principle that free access to the complete text of every
law needs to be given to every person the law applies to. I'm just pointing
out that any implementation of this principle which involves government
appropriation of copyrighted works is constitutionally required to take into
account the property rights of the copyright holders.

~~~
jsprogrammer
>If the government takes your land and gives it to the public to build a new
road, the Constitution says you have to be compensated. If the government
takes your standard and gives it to the public to build a new law, it seems
like the same conclusion should apply.

The situations are different. In the case of eminent domain the individual(s)
lose physical access to their property, whereas with a standard, no damage is
done to the individual(s)' ability to use it, as only copies are being made.

~~~
dragonwriter
Both in practice and Constitutionally, eminent domain and the associated right
of compensation applies to property _generally_ (including both real and
personal property, and, in the latter case, both tangible and intangible
personal property.)

~~~
jsprogrammer
Publishing a copy is not taking. Taking would be something like declaring
exclusive use over the work (taking the copyright itself).

Publishing a copy of something that already exists is an independent action
that doesn't affect copyright holders' use of their property.

~~~
dragonwriter
> Publishing a copy is not taking.

"Property", whether real, tangible personal, or intangible personal, is a
legal power to exclude others from certain actions with reference to some
thing.

Limiting some part of that exclusive power while leaving the owner title to
the property and with the rest of the exclusive rights is still a taking of
property, so even if what the government did with regard to copyrights was
less extensive than actually seizing the copyright, it would still be a taking
(similar to using eminent domain to take an easement or right-of-way, leaving
the owner of land the title.)

------
tetrep
> Among those opposed was Beverly Quail... She said there’s no such thing as
> read-only publication online, thanks to the ease of making electronic
> copies. And taxpayers should not foot the bill for publishing standards of
> interest to very few people, she said.

That's actually exactly what taxpayers should foot the bill for, many of the
services the government provides do exactly that, spread the needs of the few
across the many, making it cheaper per-person to provide something, like the
text of legislation. Wouldn't it be great to live in a world with universal
access to ~~healthcare~~ legislation?

> Malamud, an associate member of the ABA who received special privileges of
> the floor, noted that the public would be prohibited by this motion from
> printing, searching or copying the law, and would have to preregister with a
> private vendor before reading the law.

Those are some pretty terrible constraints and it's kinda funny that one of
the supposed reasons to oppose this is that it costs tax payers money, yet you
can't copy the legislation and put it somewhere else. This hosting/mirroring
issue was solved decades ago by having the trusted source provide a hash of
the document in question, and then allowing anyone to mirror it. Interested
parties need only verify the hash to ensure they have the document in
question.

Edit: Whoops, should cite the better article (linked to in the OP) that I got
those quotes from:
[http://www.abajournal.com/news/article/after_strong_debate_h...](http://www.abajournal.com/news/article/after_strong_debate_house_calls_for_publication_of_privately_drafted_standa/)

~~~
zrm
> This hosting/mirroring issue was solved decades ago by having the trusted
> source provide a hash of the document in question, and then allowing anyone
> to mirror it.

And solved even better by digital signatures.

------
kimmel
There is an over saturation of lawyers in America in many of the legal fields.
Making the laws harder to access is a way for lawyers to add value to their
jobs because it erodes away the ability for the common person to read,
understand, and use the laws. Carl Malamud has pointed out this protectionist
racket in the past and actively fights against it.

Law schools lie about the availability of jobs post graduation to keep the
student money flowing in. This has been mentioned before on HN here:
[https://news.ycombinator.com/item?id=8180690](https://news.ycombinator.com/item?id=8180690)
and
[https://news.ycombinator.com/item?id=9443739](https://news.ycombinator.com/item?id=9443739)

~~~
SmellTheGlove
Lawyer here, although I went back to tech and don't practice as far as the
public would be concerned. Access to the law has always been hard. Reading the
laws (meaning statute) is easy and will only get easier. But for any matter of
more than trivial complexity, you need case law. That's been difficult to
access easily for a very long time, but even proposing that you live next door
to a law library and can access all of the reporters and such, actually
analyzing the case law is still hard. You need to know what's still good law,
follow cites, etc. That's where Westlaw and Lexis make their money - their
product is actually pretty good, if not horribly expensive.

Anyway, making (statutory) laws harder to access doesn't do much for lawyers.
Most of the work is in the case law, and that couldn't possibly in the future
get any more difficult to access than it is today.

If you're interested in this issue, follow Casetext. They're doing good work:

[https://casetext.com/](https://casetext.com/)

Disclaimer: I have no interest in casetext. And none of this is legal advice,
obviously.

------
mjmahone17
I believe this is about laws such as construction codes, where many cities
reference a privately created code. The only way to access that code legally
is to pay the private company for read access.

Based on the actual article, the ABA voted not to demand that all laws should
be completely available without copyright. Basically, they voted to maintain
the status quo. They didn't make an explicit value judgement of DRM'd laws,
though.

~~~
tokenizerrr
Yet supposedly "ignorance of the law excuses not"

~~~
chillydawg
Well it's not supposedly, that IS the law. Ignorance is not a defence.

~~~
tremon
Is "can't afford to read the law" a valid defense?

~~~
evanwolf
heart of the issue.

------
cookiecaper
This seems hyperbolic. It sounds like the ABA was debating a measure that
would encourage Congress to allow private companies to get copies of and
resell access to the highly-specialized sections of the Federal Register. So,
from the start, this is a good thing, because right now these are only
accessible by making an appointment with the Federal Register Reading Room and
paying them a sum of money.

The "DRM and EULA" part just means that the ABA seems OK with allowing private
companies to be the distributors of this based on their own terms, instead of
advocating a government-run open access site that would allow anyone to look
up the relevant safety regulations.

So, no, the ABA did not vote to obscure the law, or invoke DRM or EULAs. They
voted to make the Federal Register more accessible than it currently is.
BoingBoing is simply unhappy that the resolution didn't go as far as they
would've liked.

------
joshuaheard
All laws, rules, and regulations should be available free to download from the
issuing government agency. I don't see a valid argument for any other policy
regarding this.

~~~
lisper
Then you haven't been paying attention. What is at issue here is highly
technical rules and regulations like building codes that cannot be written
directly by elected officials because they do not have the expertise. That
kind of work has to be contracted out to specialists who are not lawmakers,
and those people have to be compensated somehow for their work. They could be
paid with tax dollars, but tax dollars are scarce, and why should every tax
payer foot the bill for the cost of writing a regulation that is only of use
to a very small special interest group? Why not let the market take care of it
instead?

I'm not saying I necessarily agree with this argument, but I think it's
defensible.

~~~
walterbell
Do tax payers benefit from the protections (e.g. safety) specified in the
laws?

~~~
lisper
That question is hotly debated. Liberals tend to say yes, and conservatives
tend to say no.

~~~
randallsquared
If 'no', then get rid of it. If 'yes', then the full ruleset should be made
available.

Even among those who disagree on the utility of the law, there doesn't seem to
be any need for a compromise position of "possibly 'yes' so let's keep it, but
possibly 'no' so let's hide the rules from the public".

------
sevenless
Someone please, try to construct an argument in favor of this. There's usually
a counter-argument however weak.

How can citizens obey laws they have no way of reading?

(Come to think of it, at no point has anyone explained all the laws to me,
either. Are we all supposed to peruse law books in our spare time to make sure
we're not breaking the law?)

~~~
bluGill
The counter argument is this: It takes a lot of time to figure out what the
code should be. Is a 1cm by 1cm board strong enough to hold up a building,
what about a 60cm by 60 cm board? Obviously the first is not, while the second
is way overkill and a waste of money (I haven't done any calculations on this
so I might be wrong!). Someone needs to figure out the properties of building
materials and the right margin of safety. That is generally engineers who want
to eat so we have to pay them. Thus it costs a lot of money to write a good
code. If you can copy their work for free nobody will do that work - you need
to eat so you won't have time after your day job to check and recheck
everything even if you wanted to.

The problem is this: in a free copy world once someone pays for this work
everyone else is free to copy it. So if Chicago pays for it, New York City is
free to just copy Chicago's law and save all the money of paying someone to do
this themselves. This is obviously unfair to Chicago who put a lot of money
into it. (Chicago and New York might agree to share the costs, but there are a
lot of small towns that will not)

What code publishers want to do is privately put the money in to write a good
code, get the cities to make it law, and then charge for copies. This business
model works, and is fair: you buy the code if you want it (and $75 for the
book it isn't that unreasonable a price to pay either if you need it). The
city gets a copy in their library so if you don't want your own copy just read
when city offices are open. It isn't a bad deal.

(do not read the above as my approval of it, I'm just stating the argument)

------
MichaelBurge
It wasn't clear from the article why anyone would want this. An example for
the other side might be something like this: Suppose your state passes a law
requiring C compilers used for civil engineering software be compliant with
the C standard. The law now refers to a standard that you have to pay 198
Swiss Francs[1] to access.

Engineers publish all sorts of requirements and technical information, and it
seems useful for the law to be able to refer to them.

[1]
[http://www.iso.org/iso/home/store/catalogue_tc/catalogue_det...](http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=57853)

~~~
sfrailsdev
Not just useful, necessary, when it comes to things like structural safety.
You need a building code that get's updated to address issues civil engineers
face.

These laws are the api for building things.

It's unjust to make the law you have to follow something you have to pay to
see, especially when ignorance of the law is not an excuse for not following
it.

Not just because it flies in the face of American legal principles to have
private secret laws, but because laws you have to pay 10k to access and which
have DRM that prevent sharing create a barrier to entry for new companies, and
increase costs to consumers.

It's not like the organizations that develop building codes can't make money
from things like testing, education, professional development etc.

------
pavel_lishin
As I understand it, they voted to add DRM to the law as a means of making it
accessible to the public - which it currently isn't at all. Is that a correct
understanding?

~~~
primis
My current understanding is that there is a bunch of laws that are only
accessible from the municipality directly through lots of hoops and
bureaucracy, so ABA wants to put them on their website using DRM so they can
control "who" gets a copy of them. Which is absurd, because the law should be
public domain to begin with due to it's nature.

~~~
ncallaway
I wouldn't say that's accurate. The ABA wants them to out them online. The
_minimum_ level of access is "read only" which implies DRM. At no point does
the ABA suggest that's the _optimal_ level of access.

~~~
evanwolf
The first big law/funding/ruling often stands intact for a decade or more. So
getting it closer to right the first time is a worthy goal.

------
evanwolf
Right now the code gatekeepers have been keeping their heads down, charging
modest sums per use to keep milking the cow.

But they seem like ripe takeover targets. Another city wants to win the
Olympic bid instead of you? Or to steal your pro football team? Or you don't
like their views on nameyoursocialissue? Buy their laws then set prohibitive
fees and restrictions, killing their economy. Want to see your building code?
You must apply in person, on paper, with exact change, between 8:42am and
8:54am Tuesdays after you pass the secret test and pay the
initiation/credentialing/backgroundcheck fees. have access to the laws and the
tools needed to use them.

It's a slow warfare. But leaving laws under corporate control, under a profit
motive, poses other risks.

------
bluGill
Relevant links that are probably more informative (or the current status quo,
not this issue). Current court cases are the opposite of this.

[http://hlrecord.org/2015/02/pulled-over-for-copying-u-s-
fede...](http://hlrecord.org/2015/02/pulled-over-for-copying-u-s-federal-law-
do-you-have-a-license-and-registration-for-that-law/)

------
themartorana
_" And if a law isn't public, it isn't a law!"_

Well...
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687223](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687223)

------
simbalion
The laws belong to the people. There's no debate about this, only crooks
trying to steal things from us.

