
Federal Court Says Public Safety Laws Can Be Locked Behind Paywalls - DiabloD3
https://www.eff.org/deeplinks/2017/02/federal-court-rules-against-publicresourceorg-says-public-safety-laws-can-be
======
jawns
I can see troubling consequences that arise from both sides' arguments.

If private companies can hold copyrights on portions of the law, that inhibits
access to those laws, and I think any reasonable person would agree that
citizens have a basic right to access the text of laws and legally binding
regulations, and paywalls or other restrictions conflict with that right.

But if the government can essentially revoke a private individual or company's
copyright merely by incorporating otherwise protected text into legislation,
that can have adverse effects on copyright holders.

And it would be interesting to see just how far you could stretch a claim on
both sides.

For instance, let's say that a law specifies that vehicles used by some
governmental department must be maintained according to the specifications in
their respective owners' manuals. Could that be argued to be a type of
"incorporation by reference" of the specifications, thus voiding the copyright
of the owners' manuals?

Or what if a private company tried to impose absurd restrictions on accessing
copyrighted material that has been incorporated by reference, such that even
the governmental agencies charged with enforcing the law were unable to access
it? Could that be a way of subverting the law?

Or what if a lawmaker has it out for a particular publisher or writer, and
purposefully quotes their copyrighted texts (beyond what would typically be
considered fair use) in legislation as a way of damaging their copyright?

And if it is the case that nonprofit groups that devise standards for public
safety and device interoperability are deprived of their copyrights because
those standards are incorporated into legislation, I would imagine it would
disincentivize the work they do, perhaps leading to less well thought out
public safety and device interoperability standards.

~~~
adekok
> But if the government can essentially revoke a private individual or
> company's copyright merely by incorporating otherwise protected text into
> legislation, that can have adverse effects on copyright holders.

How about:

a) voluntarily giving up copyright if you want your text to become law.

or

b) not making law out of propriety, private, copyrighted works.

The reality is that secret laws are bad. We've known this as a society for
millenia:

[http://www.crystalinks.com/romelaw.html](http://www.crystalinks.com/romelaw.html)

Those laws were published _publicly_ where anyone could read them.

~~~
vkreso
>
> [http://www.crystalinks.com/romelaw.html](http://www.crystalinks.com/romelaw.html)

Lovely link! I find the subject of Roman law fascinating.

I'd argue that the reception of it throughout the centuries after the fall of
the Roman state (most importantly it's dissemination) helped formed the basis
of the modern European identity.

Also, fun fact: Roman law has been heavily studied in Japan since after it
entered Japanese law as part of the Meiji restoration, so today Japan is one
of the centers of Romanist studies.

------
leereeves
"Ignorance of the law is no excuse".

"Oh, you want to see the law? That'll cost you."

~~~
kefka
Why pretend we're a representative republic with strong ties into democracy
(CIA world factbook)? We're an oligopolstic, corporcrato-plutarchy.

Welfare for the rich, and capitalism for the poor.

Companies get numerous socialist programs to help fund their bottom line, yet
average and poor receive little and are berated for it.

Drug test welfare recipients? Can't do that to the CEO, can we?

You're more "equal" rich again, and good luck with that public defender if
you're poor.

Kill someone? Poor = eChair. Rich = affluenza, "treatment program".

Just accept the idea that this country now espouses that "More Money = More
access to being a citizen". We are not equal. The past had that mythic "equal"
part; but that time is done and gone.

In the end, the following is now what this country stands for:

1$ = 1 Vote

~~~
ThisIs_MyName
Shit like this is why people don't take HN seriously.

------
paulajohnson
The lowest level of the US court system tries hard to stick to what law and
precedent say, and to avoid engaging with constitutional issues. If you want
to drive change you have to appeal it up a level or two, where the senior
judges consider it to be within their pay scale. That is what is going to
happen here.

~~~
pc86
And in the interim you can be fined or imprisoned for violating a law which
you cannot read without paying a private entity.

Either side can appeal a case, and judges should be ruling based on all laws,
including the state and federal constitutions. Anything less should be grounds
for impeachment (as should consistently having your rulings overturned by
higher courts).

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cooper12
Copyright law needs some serious reform. It's unconscionable that you can't
even share the laws that govern you. We really need an exception for things
that are considered "public" knowledge, including freedom of panorama. (I
can't even take a picture of my own city if it contains an artwork in it) We
also need to do something about orphaned works. Sadly, it's in the interest of
Disney and other corporations that the status quo of a restrictive commons
continues indefinitely.

~~~
maxerickson
There's no need for a copyright exception, people crafting public laws should
simply not incorporate material that cannot be published along with the law.

~~~
Old_Thrashbarg
Yes, that would be one solution, but you'd have to somehow enforce that
governments do that or else local governments may continue with the status
quo.

Also, there's the question of what to do with historical laws. For example,
buildings being renovated sometimes have to follow the building codes
corresponding to their original construction date. So the current laws that
the publishers are trying to paywall may be relevant for another 100 years.

~~~
maxerickson
The code thing is fairly easy, just make it acceptable to follow the current
law rather than the unpublished one.

It might bother preservationists or lead to more expensive renovations¹, but
oh well.

¹Is it so much that renovations must follow the old code, or are they
sometimes allowed to because the new standard is hard to retrofit?

------
dandare
Kafka and Orwell missed an opportunity when they did not incorporate the idea
of secret/paywalled laws into their works.

~~~
beaconstudios
this story reminds me of the card game Mao, which was a particular favourite
at my college:

[https://en.wikipedia.org/wiki/Mao_(card_game)](https://en.wikipedia.org/wiki/Mao_\(card_game\))

------
Old_Thrashbarg
The fight is not over yet. Please consider donating to Public Resources, which
runs on a shoestring budget, employing just one person, Carl Malamud, at a
modest salary.

------
huffmsa
>ruling that private organizations can use copyright to control access to huge
portions of our state and federal laws.

Then if I decide not to use their copyright, the onus is on the copyholder to
file suit against me for violation.

If in fact a firm owns it, the government cannot pursue a case, and the firm
(with no criminal jurisdiction) cannot impose any penalty.

If in fact the government owns the text, it must necessarily be made freely
available, unless it pertains to national security (which is shaky
justification at best).

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mnm1
How can one possibly respect a law one cannot read or any lawmakers/political
bodies who make/encourage such laws or institutions claiming to enforce/defend
them?

What exactly is the difference for the accused between this situation and
having legal cases randomly decided by random rules?

~~~
ar15saveslives
Their weird logic must be "we don't restrict access to the text of a law, you
just have to pay for it".

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tehwalrus
Perhaps part of qualifying as a lawyer should involve writing code against
someone else's annoying API, just to give them a taste of how the law is for
the rest of us.

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vivekd
>We’re disappointed by this misguided ruling, but the case is far from over.

Sounds like its going to be appealed.

I think the government needs to stop passing regulations that just copy the
rules of private standards organizations unless they are also allowed to
publish the regulations. Private organizations will do what they will, the
public can't control private actors or force them to give up their right to
collect money for their standards (at least not without a fight).

I juts don't understand why the government would just make laws without
ensuring the right to publish them or make them widely available to the
people, is just irresponsible and goes to show how little thought goes into
all these regulations that govern our lives.

~~~
ryandrake
It's easy to understand. They are just doing what their primary constituents
(big corporations) want.

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exabrial
Seems like an oversimplification of the issue, but the consequences are
certainly disturbing.

~~~
edblarney
This is the issue.

Some weird corner of the law gets ruled on, but it has odd implications for
the rest of us ... questions and concerns abound ...

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gnicholas
interesting facts, from the decision:

 _Importantly, there is no evidence that the ... standards are unavailable to
the public. In fact, the undisputed record evidence shows that the standards
are required to be available in physical form from OFR; are available for
purchase from the [first] Plaintiffs in hard copy and from the [second]
Plaintiffs in hard copy and PDFs; and are accessible in read-only format for
free in [second] Plaintiffs’ online reading rooms_

If this information is freely available in electronic format — which seems to
be the case for the second plaintiff — then in my mind the concern is greatly
mitigated. The defendant could simply link out to the relevant page.

I'm surprised the decision doesn't mention the cost that the first plaintiff
charges for the hard-copy of their standards (which are apparently not
electronically available), since the cost/delay seems relevant. If the cost is
hundreds or thousands of dollars, there definitely be cause for concern. On
the other hand, if the cost is negligible, I'm somewhat less concerned.

To be clear, I still think that whatever agencies incorporate third-party
content by reference should always require that the documents be freely
available online. I just think these facts about current availability are
interesting (and are not mentioned in the EFF post).

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Old_Thrashbarg
Some of these laws are so complex and interdependent that we need tools to
help simplify them. If the publishers are allowed to paywall the law, then
it'll be harder for startups like UpCodes to operate.

UpCodes provides a search engine into the codes, pinning (bookmarking) codes,
a collaboration tool and finally weaves in local laws and amendments right
into the code.

------
icebraining
I don't get the criticism against the judge or the ruling. Frankly, the
arguments presented by Resource.org seem to be unpersuasive (the claim that
these standards are "discovered facts" is just insulting to the engineers that
worked on them) and completely unsupported by the law. It's not the judge's
fault that your Congress and other governments have sold you out. Go sue
_them_ for enforcing laws you can't read.

~~~
DannyBee
"I don't get the criticism against the judge or the ruling."

It's actually directly contrary to rulings in other states, circuits, etc.

Even the supreme court has held, consistently, since 1888, that the law is
free.

'the authentic exposition and interpretation of the law, which, binding every
citizen, is free for publication to all, whether it is a declaration of
unwritten law, or an interpretation of a constitution or a statute' Banks v.
Manchester (128 U.S. 244, 1888)

I don't think this could be more clear.

An argument that you get to lock it away by incorporating by reference is
patently absurd and directly contrary to this.

You don't get to say

"page one of georgia annotated code:

for the text of pages 1-100000 of the georgia code, please see 'the real
georgia annotated code', published by forprofitco,"

But that's just what is happening, since these standards are not "voluntary",
but _binding law_ that you can be charged with crimes or sued for violating.

If they wanted to charge money, they have a simple solution - don't make them
law, don't charge people for violations, etc.

" Frankly, the arguments presented by Resource.org seem to be unpersuasive
(the claim that these standards are "discovered facts" is just insulting to
the engineers that worked on them) and completely unsupported by the law."

Except they (and others) have repeatedly won in pretty much every other case.
This is in fact, the first case i'm aware of that they've lost (or that others
have lost in similar situations).

Frankly, the idea that you can sue people or charge them with a crime, for a
law they have to pay to read is insulting to _everyone_ , and very clearly not
constitutional.

As mentioned, there is a simple solution - if you want to charge, don't give
them binding force of law. You don't get to have your cake and eat it too.

~~~
icebraining
But that's my point - the question in this trial wasn't whether the State can
use closed standards as law, but whether someone can violate the copyright of
these standards just because the State refers to them in the law.

 _Frankly, the idea that you can sue people or charge them with a crime, for a
law they have to pay to read is insulting to everyone, and very clearly not
constitutional._

My point exactly! They should be suing the State for doing that! Not trying to
invalidate some company's copyrighted standard.

~~~
DannyBee
"But that's my point - the question in this trial wasn't whether the State can
use closed standards as law, but whether someone can violate the copyright of
these standards just because the State refers to them in the law."

The answer is yes. :)

At best, it's a taking.

"My point exactly! They should be suing the State for doing that! Not trying
to invalidate some company's copyrighted standard."

You have this very backwards, in the sense that the organization
_deliberately_ worked with the states to make this happen.

You would have a better argument if the states had forced it to happen.

In any case, you also have "who should sue who" wrong.

1\. You can't sue the states in federal court they have sovereign immunity ;)
But if you could ....

2\. At best, this is a taking by the state. It's the problem of the standards
folks to sue the state, not the problem of the rest of the world of trying to
use the law.

------
charonn0
On the one hand the law should be freely available in full text to everyone.

On the other hand, how many legislators are qualified to write a fire code?

~~~
calibas
Those two points don't really oppose each other...

~~~
rhino369
The people who put together these codes spend a lot of time and effort doing
it. They only get compensated by requiring people to pay for access via a
copyright.

Some bodies do it without restricting access, like IEEE, but their work in
contributed by interested parties who control their IP via other means.
Companies will work on the next 802.11x, but they are always trying to guide
the standard to benefit their company.

------
skywhopper
Even if the companies that wrote these laws get to retain copyright, surely
the substantial public interest in making them freely available makes this
Fair Use. But current Copyright law is a cancer on our economy. Why not the
government, too?

------
IanDrake
The ACA already forces every US citizen to buy a product from a private
company. This isn't much different.

The Supreme Court has already upheld this as a "tax", so expect the same
result.

