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Public.resource.org wins appeal on right to publish the law [pdf] (uscourts.gov)
273 points by DannyBee on July 20, 2018 | hide | past | favorite | 104 comments

This is a great outcome, but it is amazing that the appeal opinion requires 40 pages when, in essence, the question is only whether people subject to US laws must pay to know what the law is.

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

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

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

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

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

I don't mean to come across as indignant or whatever, but I don't believe this case is complicated at all. US laws are public domain, and the legislature erred in assigning copyright for something in the public domain. This happens all the time, it's called plundering the commons, and the only reason the court "struggles" with it is that to identify it as such threatens to upend centuries of the practice (or, honestly, call out its own practice). The case itself isn't complicated. The corrupt intertwining of corporate interests and the US government is just a gross mess.

You’re confusing the facts. The legislature didn’t assign copyright to something in the public domain. The standards were preexisting, privately developed and copyrighted. You’re asking for the exact opposite of “plundering the commons”—you’re asking for private property to be taken for public use without compensation.

I don't think I am:

'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.

I agree. Other than test code we develop internally for use in develop, every product I work on is subject to some level of testing at Nationally Recognized Testing Laboratory for standards compliance. Qualification makes our products easier to sell, and the system works fairly well because they're developed by voting in our industrial membership groups such as IEEE and NEMA, then written into safety codes like the NEC published by NFPA. The adoption as express law by whichever body has jurisdiction over the product is the heart of the problem because

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?

So, a serious question:

We have eminent domain for property and the like. Why isn't it used for copyright/patents for purposes of the public good?

The government does use eminent-domain like powers for patents: https://en.wikipedia.org/wiki/Government_patent_use_(United_.... But using eminent domain costs money (the government must pay "just compensation"). That's a hard sell here. Take, for example, the ASTM standard on diesel fuel (an example used in the opinion). Only companies selling diesel fuel have to know what's in the standard--they are the ones charged with following the law, not Joe Everyday on the street. Using eminent domain would vindicate the abstract principle that the law should be freely accessible, but as a practical matter it would just save a few bucks for big companies that can afford to pay for the standards.

The law is the law though. If you can afford to lobby to have your standard become law, then you should have made your business plan more robust than charging people to know the law.

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.

A copyright is not private property. It is a privilege granted by Congress that has some property-like qualities.

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.

Yes, I didn't mean to suggest it was an easy case. I only read half the opinion but can see that there are several issues, and many citations of precedent to support the opinion.

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)"

Let's step back. What is the principle we seek to vindicate? That principle is that the law should be accessible to those who are charged with following it. Courts, however, rule on specific cases, not general principles. This case requires 40 pages because that big-picture principle is only tangentially implicated, and the court and the parties have to engage in some contortions to get to it. Public.resource.org isn't charged with failing to follow a law that was not publicly available. That would be the straightforward test case, and the straightforward resolution would be to 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.

Thank you for the further explanation.

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?

The most straightforward outcome would be for the standard to be public domain, the laws to remain valid and for the former copyright owner to take the government to court if it doesn't like having its standard incorporated into the law.

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

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

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

ASTM, etc., are composed of people who develop standards and use standards independently of any incorportation into any laws. ASTM predates the federal legislation encouraging incorporation of privately developed standards, on which public.resource.org relied, by almost a century. The laws are recognition of standards the industry had already designed for itself.

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.

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

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

Sorry to me this is the easiest decision on the planet. Free access to laws. I don't care about the bad business model of a company charging for something that shouldn't be charged for.

It's easy to decide where you stand (at least for me it is) on the question of whether access should be free. It's less obvious what is the correct way to implement that.

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.

Reading through the meat of the 40 pages, the appeals court did two things:

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

I found these bits quite entertaining:

> 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.

> it is amazing that the appeal opinion requires 40 pages when, in essence, the question is only whether people subject to US laws must pay to know what the law is.

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.

"They did not ask to be part of a law".

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.

While I can't cite a source, it also would be very believable to learn that lobbyists from some of the larger standards orgs (the ones that more or less stand alone, like e.g. the NFPA) are encouraging politicians to actually reference "the standard" rather than write "law language" to define something already present in the standard. Potentially with a "back of the mind" thought by the lobbyist of "this will drive more sales for us".

it also would be very believable to learn that lobbyists from some of the larger standards orgs [...]are encouraging politicians to actually reference "the standard

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.

"They did not ask to be part of a law"

How do we know that they did not ask?

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

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

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

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

> Sadly, there are a number of incumbent commercial interests

This sentence basically sums up all that’s wrong with America in 2018.

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

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

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

> Governments can’t just decide to make these privately developed standards free for public use.

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.

I'd argue that would be a taking requiring just compensation.

The government may grant certain works the privilege of copyright, subject to certain restrictions, if it deems that doing this will promote the public good (i.e. promote progress of science and useful arts). It's not required to grant copyright exclusivity to all works nor all usage scenarios, it already does not grant it to some works and some usage scenarios, and that has not been considered a taking.

It is not. Copyright is clearly distinguished by the Constitution as something granted by Congress rather than a Constitutionally guaranteed right.

If you take that view, then the taking isn’t coming from those that want to read the law, it’s coming from the government that wants to incorporate it into the law. So yes, the government should compensate groups that come up with the rules, but more often than not, they won’t need to because there will be strong interests involved that want to define the rules.

Page 27-28 of the opinion:

> 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.

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

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

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

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

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

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

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

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

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

For building codes, the fee paid to the planning department could cover the license fee for the standards.

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.

Federal law determines copyright, not the constitution.

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

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

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

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

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

Copyright is not created in the constitution as some right that inherently applies to all inventors/creators.

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

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

> Surely, you agree that peoples’ right to vote cannot to be vindicated if they can’t freely access polling locations.

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.

Copyright is not created by the Constitution. The ability to create and enforce copyright is created by the Constitution.

> If the standards are expensive to develop and maintain, seems better to require a license to implement a standard

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.

There are many ways standards setting organizations can “bankroll their efforts”, including certification, brand licensing, training, and association dues. Almost every standards organization works this way.

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.

On a more practical level, one of the few things legislators are rather good at is drafting large and complex rules for a variety of situations. Don’t think the cost of funding building codes standards that are incorporated into law will be terribly significant. I’d bet in the majority of cases, the government is already funding these efforts anyway.

> Absolution definition, act of absolving; a freeing from blame or guilt; release from consequences, obligations, or penalties

I've never seen the word "absolutionist" before. Should this be "absolutist"?

Yup thanks, absolutist is the correct word not sure where absolutionist came from, but even looking at it now, feels like it should be a real word.

Or perhaps "abolitionist"? As in someone who wants to completely abolish the practice of forcing people to pay if they want to know what is legal.

in essence, the question is only whether people subject to US laws must pay to know what the law is.

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

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

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

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

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

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

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

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

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

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

OTOH, I have lived for two decades within a few blocks of a library (in two locations) and have rarely used it. That changed once I had a son, but I have found limited personal use. It would be better for the community if the libraries' locations were more densely concentrated in neighborhoods with greater social and economic needs. I greatly support the mission of our libraries despite my personal limited use; they are an important component in any progressive agenda.

I agree whole-heartedly. I'd honestly expand services to include things like social chatting areas along with quiet ones and possibly simple coffee shops. It wouldn't need to be fancy, just there.

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).

So, the libraries in my county (which is largely rural and has several small town branches) allow people with library cards to check out mobile wifi hotspots and Chromebooks, so you don't even have to go to the library (except as necessary for equipment checkout and return) to use the library for internet access.

So long as you can get a library card, that works out wonderfully. Last rural place I lived did not have a county-wide system, though, and some folks didn't have a library that served their needs without driving at least 10-15 minutes and paying a yearly fee for their card. This particular library also had limited space for computers, often a waiting list to use one, a half-hour time limit when you used them, and short opening hours. On the other hand, the peole were nice and the building beautiful.

Libraries and their districts vary so much in what they are willing or can offer, and it is a real shame.

Access to a library -certainly does not- enable ready access to the law. (E.g., that's why the lawyers use Westlaw ... proprietary ... instead of the library.)

Perhaps your suggestion is not based on personal experience.

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


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.

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

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

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

But there are hundreds of ISO specs.

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

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

It's illegal, but I would love to see a torrent with all these iso norms out there

How is it illegal? The specs are copyrighted material written and maintained by private entities not government. And a immense majority (many thousands) of these specs are not required by government.

I believe just in the case of this lawsuit it involves specs that some laws required.

I suspect that the person you are replying to is noting that using a torrent of ISO specs would be illegal, not that the ISO has copyright over the specs is illegal.

So? Its the same as hundreds of thousands of standards you may not even heard of, used from your cars, appliances, houses, public utilities, etc. Most of it is meant for the engineers involved and not for the end customer. But marketing people sometimes slap on the label.

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.

>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).

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

But it's the appeal of this: https://www.eff.org/deeplinks/2017/02/federal-court-rules-ag...

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

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

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

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

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.

In the case of technical standards, having yours make law is obviously vastly more useful and profitable for all involved than charging a cover fee. Participation in these committees is hardly an effort for a better world, it is a very effective way for an incumbent to cement their market position and create barriers to competition for smaller companies.

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.

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

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

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

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

Because plane tickets are expensive.

"pay a fee and order a personal copy"

That violates the notion that laws should be publicly accessible.

This misses the obvious benefits of making it searchable. Even if the owner of the standard provides a search function, there's no guarantee that it will be as useful or effective as e.g. Google search.

No, it should work the other way around.

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.

Maybe (eminent domain?).

Regardless, they could write their own. Or acquire the copyrights.

I think the rules should be simple:

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

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

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

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

Things aren't all that different today.

Of note:

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

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

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

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

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

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

I think the court neatly avoided that question by relying on fair use rather than extinguishment of copyright as a basis for allowing the copying of the standards.

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).

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

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

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

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

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

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

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

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

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

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

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

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

This extreme hypercapitalism is disturbing.

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

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

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

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