This debate was at the center of a recent court ruling that questioned whether technical standards created by private entities and incorporated into law can be copyrighted. The answer, as passed down by a U.S. District Court, was indeed they can, and anyone who subsequently posts them online is committing a copyright violation.
This ruling was issued Thursday, Feb. 2 by U.S. District Court Judge Tanya S. Chutkan of Washington, D.C., in a lawsuit brought against Public.Resource.Org, a site dedicated to the promotion of free municipal, state and federal legal codes. The plaintiffs in the case were a group of standard development organizations responsible for underwriting technical standards about building safety, product specifications and other consumer interests.
The standards in question were written by these organizations and incorporated into law in Georgia. They were then made available in reading rooms and libraries for viewing in person, or for purchase from the standard organizations. Public.Resource.Org bought a copy and posted the content online, where anyone could view it for free. This is what the court determined to be a violation of copyright.
In a post-decision statement, the defendant’s camp argued that “everyone should be able to read the law, discuss it, and share it with others, without having to pay a toll,” and that the ruling interfered with due process rights. Conversely, the plaintiff’s camp released a statement praising the decision and painting the upheld copyrights as financially vital to the development of “standards at the highest level of excellence and at minimal cost to government.”
While the judge ruled in favor of the plaintiffs, the resulting opinion questioned whether copyright law as it relates to this issue was in the interest of the public, going so far as to suggest that changes be made in Congress.
“This conclusion does not dismiss or diminish the valid public policy concern that citizens benefit from greater access to statutes, regulations, and all materials they must reference in fulfilling their legal obligations,” the judge wrote. “The ability to know, understand, and communicate the law as a broad concept is of paramount importance to the continued success of our democracy. However, changes to the statutory or regulatory framework that reconsider the balancing of interests underlying modern copyright law and incorporation by reference must be made by Congress, not this court.”
In the recent past there has, in fact, been bi-partisan congressional support for such changes. In January 2014, at a hearing of the U.S. House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, members of Congress discussed copyright restrictions on legal codes, laws and standards. The need for change was broached by Rep. Zoe Lofgren, D-CA, and Rep. Darrell Issa, R-CA, who agreed the issue should be addressed in any future copyright reform legislation.
“It seems to me very clear that you cannot have secret law,” Lofgren said. “If you’re going to require people to adhere to a standard, that has to be in public domain. I’m sympathetic — I understand that there’s a business model set up — but you can’t allow the business model to trump the rule of law.”
To date, no action has been taken.
Part of the plaintiff’s argument, though, is that the technical codes are available online for free, which is true. There is, however, debate over whether the formatting is sufficiently accessible. The standards in the Georgia case are online in read-only format, which means they appear as images and may not be downloaded, making them hard to disseminate or search through.
Carl Malamud, president and founder of Public.Resource.Org, refrained from commenting on the ruling against his site, deferring to his camp’s statement. In the past, however, Malamud advocated that any legal code should be free, online, searchable, linkable, downloadable in bulk, and privately or commercially reproducible by citizens — similar to open data standards set by governments. The counterpoint is that developing, maintaining and publishing technical codes is expensive, which is why the current copyright system should remain in place.
While Congress would most certainly have to make a decision to change the financial model to make no-cost access realistic, there seems to be no shortage of civic technologists and nonprofit groups eager to work on facilitating a transition to a system in which these standards, as well as other laws and information that is public record, are published online in searchable and free formats.
For example, on Tuesday, Feb. 14, Congress held its first hearings in more than a decade to examine a system called Public Access to Court Electronic Records (PACER), which enables the public to get case and docket info from federal district courts for $.10 a page. In advance of that hearing, The Internet Archive offered to host PACER’s data for no cost with a system that provides more detailed metadata. The Internet Archive’s digital librarian and founder, Brewster Kahle, made this offer in a letter.
“In today’s world, public access means access on the Internet,” Kahle wrote. “Public access also means that people can work with big data without having to pass a cash register for each document.”
