The crux of the argument is that as the standard is incorporated into law, it is no longer infringing to make that work available, as one cannot comply with the law without having that information. No matter what happens in the end, this should make for an interesting case to follow.

Interesting argument. Is there any authority to support it? Seems to me that FOIA would permit someone to get the information from the government. I don’t see how it erases someone’s copyright rights, though.

Mike–

I’m curious. Since I know how important facts are to you, and I know how much you like to have all the information before you make any sort of claim, how is that you determined that this takedown notice was “bogus”? In fifteen minutes of research, I’ve found four appellate courts that suggest works so referenced in administrative law DO NOT lose their copyrights. Please explain how you reached a different determination. Or are you just jumping to conclusions again, as per usual?

You see how stuff like this makes it impossible to take you seriously, right? You claim to not be able to have opinions about several fundamental issues of copyright law because you don’t have enough information. But then with something like this, you have no trouble forming an opinion based on, apparently, a complaint filed by the EFF (an extremely biased and unreliable source). It’s ridiculous to pretend like you’re opinions are fact-based when they so clearly are quite often not so.

Care to comment? I won’t hold my breath.

In the long sweep of history, judges were once paid by the litigants, but experience showed that the judges tended to decide in favor of those who paid them the most. So the kings of various countries found it necessary to pay their judges salaries– and forbid them to take money from anyone else. A certain number of judges had to be removed from office for taking bribes before the reform took hold. The same applied for government officials. In England, in the late seventeenth century, Samuel Pepys was a very efficient Secretary of the Navy– but– in order for a contractor to get a contract for work on a ship, the contractor’s wife had to visit Pepys, and earn the contract on her backside. Pepys could get competent contractors to work on that basis, and it doesn’t seem to have materially hampered him in building up the British Navy. Pepys really didn’t even understand that he was doing anything wrong– the mentality of public service had not yet developed. Over time, the amount of private justice with official standing which can be tolerated decreases, just as institutions such as slavery gradually became intolerable.

Now, the legislative adoption of a private code by incorporation can reasonably be viewed as a “taking,” a taking of private property for the public use. The government’s right to “take” is fairly absolute, see for example Kelo. Patents and copyrights on published works are not even at the fringe of “taking,” since they are merely rights to collect royalties, without the element of “quiet enjoyment” which exists in a home. The property owner, in this case, the copyright holder, is of course entitled to compensation, based on his diminished expectation of revenue. For example, if, let us say, the State of Nebraska were to adopt a Model Building Code, produced by a private party, and to publish it on a state website, the private party would have a justifiable claim to be compensated on a worldwide basis, rather than just on the basis of the diminished revenue in Nebraska. However, when Kansas, the next year, adopted the same Model Building Code, the private party would be entitled to compensation only on so much as remained after Nebraska’s purchase. Of course, it is more likely that California, a large, wealthy, and progressive state, would be the first adopter.

Here, we are referring to citing a particular edition of a book of rules. If a legislative body were to make a reference to “the current or latest edition,” that would effect a transfer of government powers to a private body, which is obviously not permissible.

There are at least two kinds of standards. For example, there are technical standards for complex electronic and software systems, primarily aimed at ensuring compatibility. These standards are often run by either the ISO or the IEEE. In this case, standards behave very much like software, and the case for open-source software applies. It is better for all parties if twelve-year-old kids can freely download copies, read through them and discover “ambiguities,” the equivalent of software bugs. The document can be revised accordingly, and it is less likely that people will build expensive equipment which does not inter-operate. There are some standards organizations which make their documents freely available as a matter of policy. The Universal Serial Bus (USB) organization actually set up a system of blogs for the purpose of publicly talking out the meaning of the USB standards, and decided, as a matter of policy, to make friends with the hardware hackers.

It is a matter of the public good that the government should pay for a lot of this kind of thing, and in fact, the government does pay for a lot of it, indirectly, through such vehicles as publicly financed library budgets, higher prices paid to contractors (the recent West Virginia Internet Scandal is not quite a case in point), etc.