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.
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.
'Ever operated a tank barge and wondered what power
source you would need for your cargo tank’s liquid overfill
protection system to comply with the law? Probably not. But if
you did, you might consider thumbing through the Code of
Federal Regulations, where you would discover that one option
is to hook up to an off-barge facility, provided that your system
has “a 120-volt, 20-ampere explosion-proof plug that meets . . .
NFPA 70, Articles 406.9 and 501-145.” 46 C.F.R.
§ 39.2009(a)(1)(iii)(B). Dig deeper and you would learn that
NFPA 70 is not some obscure rule or regulation or agency
guidance document but is instead another name for the
“National Electrical Code,” a multi-chapter technical standard
prepared by the National Fire Protection Association (the
eponymous “NFPA”), detailing best practices for “electrical
installations.” Complaint ¶ 66, American Society for Testing &
Materials v. Public.Resource.Org, Inc. (ASTM), No. 1:13-cv-
01215 (D.D.C. Aug. 6, 2013) (“ASTM Compl.”), Dkt. No. 1,
Joint Appendix (J.A.) 86. Parts of NFPA 70 have been
incorporated into the statutes or regulations of at least forty-
seven states and, as we have just seen, the federal government.
American Insurance Ass’n Amicus Br. 5.'
So an SDO develops a standard. No problem, that's private and copyright is theirs. Then than standard is incorporated into statues. The incorporated language is now public domain.
I'm 100% ok compensating SDOs for their work, which is necessary and important. But that needs to happen before it becomes law.
At every one of those steps my employer is paying something. Except for the adoption by the authority having jurisdiction, which along with the public it represents appears to be free riders despite providing a public benefit and having taxing authority. I suppose my employer could foot part of the bill for the SDOs as a cost of doing business in all of those jurisdictions but I'm not sure how difficult it would be given that these govt entities vary in size from states down to municipalities.
Nor is it clear how equitable it would be to tax only domestic OEMs but not the foreign ones.
How are the overseas SDOs funded?
We have eminent domain for property and the like. Why isn't it used for copyright/patents for purposes of the public good?
I don't really care that the standards organizations lose money from big corporations when thousands of small businesses gain free legal access to the laws governing their industry.
The copyright owner is not deprived of anything by their copyrighted work becoming public domain except for the enforcement of that copyright by the government.
But, as a non-lawyer, the fact that this level of analysis of statute and case law is required in order to make such a small step toward making the law accessible, is amazing. (EDIT: I mean, I understand that it is this way, but don't feel it should be this way)
I say it's a small step because:
- as you say, the court confirmed fair use, but did not consider the question of whether copyright is extinguished
- each referenced standard is still locked behind payment until and unless this site or another pays for a copy and scans it
If, as you suggest might be the case, it is the "obligation of legislative bodies to ensure public access to the law by refraining from incorporating obligations from sources that are not publicly accessible", then what becomes of those laws which reference standards which are not publicly accessible today? Do they become unconstitutional or void, until such time that the standards do become publily accessible? Would publication on public.resource.org be enough to count as 'publicly accessible'?
And if it turns out that copyright is actually extinguished due a document's to incorporation (by reference) into law, would the former copyright owner have grounds to seek damages against the legislature?
EDIT: in your subsequent edit you sort of answered one of my questions "(and, perhaps, find the law invalid on that basis)"
Instead, what the court had before it was a copyright infringement action, where public.resource.org argued, as a defense, that distributing these standards should not be copyright infringement because they are necessary for people to understand the law. That adds an additional wrinkle--the court needs to not only address the end goal (making the law accessible), but the specific means public.resource.org chose to achieve that goal (distributing copyrighted standards). The complexity of the opinion, thus, arises out of the wrinkles of the test case brought by public.resource.org.
I also submit that a lot of complexity arises from the fact that the court really doesn't want to do the most straightforward thing, which is to say: that the standards continue to be copyrighted, but these laws are all invalid for incorporating obligations by reference from works that are not public accessible. What really happened here is that over decades legislatures worked themselves into a pickle, publicly incorporating these standards without thinking about the implications vis-a-vis copyright and public access. Now, the court is stuck trying to avoid the outcome of declaring all these laws invalid.
I'm intrigued by this part "... isn't charged with failing to follow a law that was not publicly available ... the straightforward resolution would be to find the law invalid on that basis."
Are you aware of any cases where this has been tested? How would one go about finding such a case if it exists, or satisyfing oneself that no such case exists?
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?
ASTM members are mostly companies that design products to, and build according to, the standards. The monetization strategy of charging for the standards thus is simply the building industry taxing itself to support standards development.
The interesting thing about this case is that there are three things (the standards model, open access laws, and reliance on expert technical standards) that all are desirable, standing alone. It’s the interaction between them that gets hairy.
It would be perfectly reasonable for the state to just pay the standards body a fee for, essentially, help in writing the law. Legislatures already pay lawyers to formulate the legalese of regular laws, so paying for such a service would hardly be weird or out of place.
1) reversed the lower courts summary judgement
So public.resource.org ("PRO") "won" in the sense that the lower courts summary judgement was reversed, so PRO no longer has their hands tied by that summary judgement, for the moment.
2) remanded the case back to the lower court, because they found that there existed genuine issues of material fact such that the case was not suitable to be decided by summary judgement. And they remanded the case back to the lower court to analyze those genuine issues of material fact more carefully.
What this means is that the case is not over, in fact, it has only just begun, because the appeals court has directed the lower court to analyze PRO's copying of the various standards under the copyright fair use doctrine to determine if each instance was, or was not, fair use.
So this is not a "win" outright as in: one can copy the standards because they are referenced by the law. In fact, in more than a few locations in the decision the appeals court went out of their way to state that such a simple decision outcome was not possible for cases such as this.
So the case continues, and PRO has more work to do to show, almost to a standard by standard basis, whether their copying was fair use based upon the standard, the law that incorporates it, and the directions given by the appeals court.
However, the appeals court did indicate that there were quite a number of instances where, were the case facts developed sufficiently for them to render a decision on the merits, that many of PRO's copies might very well be seen as fair use copies. Other copies, maybe not so much. So it is a step in the right direction, but the situation is far from settled.
edit: fix typo
> the district court will need to develop a fuller record
> Instead, it might consider directing the parties, who poorly served the court by treating the standards interchangeably, to file briefs addressing whether the standards are susceptible to groupings that are relevant to the fair use analysis.
Pretty much calling out everyone involved on their laziness. I can imagine the judge shaking his head in disappointment when writing this opinion.
This is actually a tough case. Someone, or some organisation, spent a lot of time and money making a standard and protected it by copyright. They did not ask to be part of a law - that was something the people who made the law decided - and really, the people who made the law should have licensed the standards.
This is mostly false, actually.
They exist as model codes to be a part of building codes in a lot of cases.
They serve no other purposes.
Nobody is sitting around making building codes as a hobby that are accidentally getting incorporated into law.
Additionally, in the case such a thing did happen, the authors would have have recourse - not against the public, but against the government, for a taking.
This is true
thought by the lobbyist of "this will drive more sales for us".
This is not. The money just isn't all that much, the industries want standards incorporated into laws to that organizations have one well-tested set of rules to follow across the country, rather than having to follow dozens/hundreds/thousands of variations across various jurisdictions.
How do we know that they did not ask?
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.
This sentence basically sums up all that’s wrong with America in 2018.
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.
Sure they can: the federal government could just add a provision to copyright law stating “the distribution of the unmodified text of any standard referenced in and necessary to assess compliance with, or otherwise determine the applicability or effect of, any law, regulation, or other binding act of any part of the federal government, any state government, or the government of any subdivision of a state, shall, in all cases, be considered fair use.”
Whether they should is another question.
> Along these lines, can the SDOs continue to make money on derivative goods such that they have an adequate incentive to continue producing these standards? As one amici notes, even after a sister circuit ruled that an organization that drafted a model building code adopted into law lost its copyright, see Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002), its successor organization remains profitable both through sales of codes and of “program services, including consulting, certification, and training.” 66 Libraries Amicus Br. 22 (citing Int’l Code Council, Annual Report 52 (2015))
There is HUGE value in the training materials around proper use and understanding of these standards.
For example, a building standard may specify that a sewer plumbing run must have a 1"/12" slope for proper drainage. The training comes in the form of handling the problem cases and still staying compliant with the standard.
In the accounting field, accounting standards are made and enforced to a large degree by private entities. Staying current requires constant training hours, recertification and in some cases external visits from other accounting professionals.
Keeping them secret to practicioners-only seems perverse. And if they’re expensive, this is the effect.
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.
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
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.
Yes I agree with your rewording, I would just add that it doesn’t seem difficult to find a solution that satisfies both parties. Of course inertia is the real barrier. The current fee structure was designed when printing books was expensive, and that’s why it seems so obtuse in retrospect.
> 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.
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.
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.
There is no right to vote. So the rest of your case does not apply.
Furthermore, I don't agree at all with your analogy. I feel that it is fundamental requirement to have complete access to the law. So any examples, that result in arguing to the contrary I disagree with up to and including the "taking of property".
> But that doesn’t mean that you are obligated to let everyone onto your property!
This is also not true. The legal concept of "Easement by Necessity" ( https://www.legalmatch.com/law-library/article/easement-by-n... ) applies so once again your example is incorrect.
That would, in many ways, make things worse: you narrow the pool across which payments are spread, thereby increasing implementation costs and reducing competition in any field covered by such a standard.
However in law, the standard isn’t just “a standard”, it’s an enforceable law. And yes, anyone should be able to know what the law is for either commercial, academic, or purely self-educational reasons without paying an arm and a leg.
If there is a rule that governs your behavior, you should be able to know what it is.
I've never seen the word "absolutionist" before. Should this be "absolutist"?
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.
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.
And I wish they were at least state-wide systems simply because of the variety different locations could offer by ordering books from other branches. I've seen it in smaller systems between branches in addition to things like bookmobiles. There are added bonuses if you can integrate school libraries into general-use libraries after school hours, though not all areas are keen on this idea (my father tried to set this up as a school business manager and it fell on deaf ears).
Libraries and their districts vary so much in what they are willing or can offer, and it is a real shame.
Perhaps your suggestion is not based on personal experience.
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.
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.
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.
I believe just in the case of this lawsuit it involves specs that some laws required.
These specs are driven by company to company relationships largely and not government. Heck, the law requires a car diagnostic bus for emission testing, but it never mandated the bus standard, so theres 2-3 main comm bus specs companies follow instead.
Like ISO9001, popular among companies is a process spec that requries auditing that ensures your company has a documented process for engineering, production, etc among other things. Companies slap ISO9001 compliant on fucking everything. But ultimately it means shit to an end user and only company to company relations do they care a little.
Sure, but that is a "process spec" (that the marketing people have managed to transmit as representing "better quality" whilst in reality, and at the most it represents "same quality").
I was talking more about "product specs" and "tests" performed on goods/materials.
If I tell you that reaction to fire of a product is:
Class B-s1, d0
(UNI EN 13501-1; EN 13823; EN ISO 11925-2)
you have no way to understand (nor does usually the technician that may be assisting you) what (the heck) it means.
You will find tables giving you the corresponding classification in your country (so yes, the government is involved as well), usually different from the ISO standard and you will know that B means "not likely" inflammable, the s1 means that it emits "a little" smoke when in fire and d0 means that combustion will not produce burning drops of material, but you don't know in which conditions the tests have been made.
To have an idea of the mess, check this:
When you check (indirectly, like from here):
how the tests are performed, instantly, and no matter what ISO, your government or any local Law says, you will want to have A1 materials (non-combustible) only in your home.
The test that classified the material as "B-s1, d0" (among the best classifications after the A1 or non-combustible) equates more or less to say that your toddler with a cigarette lighter did not manage to put your house on fire in 30 seconds (but it says nothing about a larger flame or a more extended time).
But it's the appeal of this:
The appeal opinion is a complete and total vindication for Carl and public.resource.org, which is awesome.
In the case of federal lawmakers, yes, insofar as copyright is a federally granted statutory privilege that federal lawmakers can (under the US Constitution—international obligations are a side issue) limit however they choose.
For state lawmakers, probably not, because they can't limit federal copyright protection, so this would be a taking requiring just compensation under the 5th Amendment. But I have no problem with requiring state lawmakers who choose to incorporate a copyright-protected work into law to secure, at a minimum, the necessary permission for public unmodified copies, whether by voluntary exchange or eminent domain.
If they are ever cited in law, there's champagne for all the butts in seats that guided the committees work in producing a thousands pages plus hot air anti-trust balloon.
There's a concerning undertone here of these noble companies coming together to prevent our houses from burning down with their valuable standards work. In reality, you get Grenfell.
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.
Because plane tickets are expensive.
"pay a fee and order a personal copy"
That violates the notion that laws should be publicly accessible.
A violation of a law which, to be followed, requires knowledge of a secret, paywalled technical document, should be unprosecutable.
It is a violation of a person's 4th Amendment right to due process to prosecute them under secret laws.
If a law wants to reference a technical document, it should reproduce the text to be referenced in full, in the publicly available text of the law, and there should be rules governing this process.
Regardless, they could write their own. Or acquire the copyrights.
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.
Things aren't all that different today.
"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."
Kind of like giving away the software, but charging for the users manual.
A "taking" generally requires the government to deprive the owner of all reasonable use of the property. If the government places reasonable limitations on the use of property but doesn't actually deprive the owner of the property, it's not a taking. See Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
He was also behind the efforts to scan federal reporters (see https://yeswescan.org/index.court.html) , etc.
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.
This extreme hypercapitalism is disturbing.
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.