10 July 2016

Yes, Making You Pay to Access Laws is Such a Good Idea (Not)

There are a number of lawsuits trying to enforce copyright on laws and the standards that they reference:
You would think that "the law" is obviously part of the public domain. It seems particularly crazy to think that any part of the law itself might be covered by copyright, or (worse) locked up behind some sort of paywall where you cannot read it. Carl Malamud has spent many years working to make sure the law is freely accessible... and he's been sued a bunch of times and is still in the middle of many lawsuits, including one from the State of Georgia for publishing its official annotated code (the state claims the annotations are covered by copyright).

But there's another area that he's fought over for many years: the idea that standards that are "incorporated by reference" into the law should also be public. The issue is that many lawmakers, when creating regulations will often cite private industry "standards" as part of the regulations. So, things like building codes may cite standards for, say, sheet metal and air conditioning that were put together by the Sheet Metal and Air Conditioning Contractors National Association (SMACNA), and say that buildings need to follow SMACNA's standards. And those standards may be great -- but if you can't actually read t

he standards, how can you obey the law. At one point SMACNA went after Malamud for publishing its standards. And while they eventually backed down, others are still in court against Malamud -- including the American Society for Testing & Materials (ASTM), whose case against Malamud is set to go to trial in the fall.

In the midst of all of this, various standards making bodies, along with the American National Standards Institute (ANSI), have been working over time to get the American Bar Association to adopt a proposal that limits publication of standards that are incorporated by reference. ANSI has pushed for a solution it prefers called "reasonable availability," in which the standard-makers decide by themselves how best to make the standards "available." ANSI, for example, hosts a bunch of incorporated by reference standards on its website -- but the only way to read them is to install a special kind of DRM (Windows and Mac only) that makes the documents purely read only. You are not allowed to save them. You are not allowed to download them permanently. You are not allowed to print them. And it's not all standards that are incorporated by reference. Why do they do this? Well, most of them sell their standards to professionals who need to buy them, and they don't want to give up on that revenue source (especially once those standards are incorporated by reference because at that point they become mandatory).
The technical term for this, "Nucking Futs."

BTW, it does not just occur in law, it is common among international standards bodies for contributors to insert their IP into those standards, and then extract rents.

Our IP system is seriously broken.


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