Public.Resource.Org Sued (Again) For Publication Of A Document Incorporated Into Federal Regulations [Update]

from the maybe-sue-the-government-instead? dept

Carl Malamud’s project — the freeing of laws, codes and regulations via Public Resource — has seen him and his site sued multiple times for copyright infringement. This includes lawsuits brought legal threats by state governments who somehow believe state laws can’t be distributed without their permission.

Other entities, like air conditioning contractors and sheet metal manufacturers, have also gone to court to defend their “right” to keep rules and regulations that impact millions of Americans safely locked up behind high-priced paywalls. Malamud’s response has been to point out that a) state laws shouldn’t be locked up, even the annotated versions stocked by LexisNexis, and b) federally mandated standards that apply to contractors shouldn’t be either, even if those creating the documents are commercial enterprises. In the latter case, federal mandates make these documents of public interest, seeing as they apply to millions of Americans, even if somewhat more indirectly.

Now, Malamud is being sued by the three organizations (two of which are all nonprofits) behind the “Standards for Educational and Psychological Testing.” Here’s what these standards are designed to do, according to the filing.

The Standards are designed to apply to professional test developers, sponsors, publishers, and users by providing criteria for the evaluation of tests, testing practices, and the effects of test use. The Standards have been used to develop testing guidelines for such activities as college admissions, personnel selection, test translations, test user qualifications, and computer-based testing.

In running down the facts of the case, the plaintiffs point to the lengthy process of maintaining and improving these standards, as well as income it generates at $40-50 a copy. (The lawsuit claims $35-40 for a price range, but the American Psychological Association’s [one of the plaintiffs] own site sells it for $49.95.) These assertions are both likely true, but it doesn’t change one of the most integral, underlying facts.

The Standards were not created in response to an expressed governmental or regulatory need, nor were they prepared in response to any legislative action or judicial decision. However, the Standards have been cited in judicial decisions related to the proper use and evidence for assessment, as well as by state and federal legislators.

This is the plaintiffs arguing that, unlike many other documents posted at Public Resource, this one isn’t related to, and hasn’t been adopted by the US government or any smaller state entity. The wording here seems to limit the plaintiffs’ “exposure” to citations only. The plaintiffs do admit that government bodies have incorporated (although this word isn’t used specifically) the standards, but surround it with verbiage that makes it sound as involuntary as possible.This is an attempt to head off Malamud’s normal defense of his actions — that government regulations, ones that potentially affect millions of people, shouldn’t be withheld from the public.

Similar sentences are interspersed throughout the filing in the hopes of further separating the plaintiffs from previous entities that have sued Malamud.

There is no mechanism to enforce compliance with the Standards on the part of the test developer or test user…

None of the Plaintiff organizations has solicited any government agency to incorporate the Standards into the Code of Federal Regulations or other rules of Federal or State agencies…

While these parties may not have pushed for federal adoption and may not have implemented mandatory adoption themselves, the fact remains that the “Standards” have been incorporated into federal regulations.

§ 668.148 Additional criteria for the approval of certain tests.

(a) In addition to satisfying the criteria in § 668.146, to be approved by the Secretary, a test must meet the following criteria, if applicable:

(1) In the case of a test developed for a non-native speaker of English who is enrolled in a program that is taught in his or her native language, the test must be


(iv) Developed in accordance with guidelines provided in the 1999 edition of the “Testing Individuals of Diverse Linguistic Backgrounds” section of the Standards for Educational and Psychological Testing prepared by a joint committee of the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education incorporated by reference in this section. Incorporation by reference of this document has been approved by the Director of the Office of the Federal Register pursuant to the Director’s authority under 5 U.S.C. 552(a) and 1 CFR part 51.


(2) In the case of a test that is modified for use for individuals with disabilities, the test publisher or State must—

(i) Follow guidelines provided in the “Testing Individuals with Disabilities” section of the Standards for Educational and Psychological Testing; and


(3) In the case of a computer-based test, the test publisher or State, as applicable, must—

(i) Provide documentation to the Secretary that the test complies with the basic principles of test construction and standards of reliability and validity as promulgated in the Standards for Educational and Psychological Testing

So, the Standards are very much a part of federal law. And yet the plaintiffs argue that because it had no active part in the government’s decision to incorporate their standards, it should still be able to paywall documents that are used by the US government to determine the suitability of tests.

Locking up something that is part of federal regulations doesn’t make sense, even if the regulations wording helpfully includes a (very indirect) link to AERA’s cash register. That these organizations didn’t approach the government and lobby for inclusion of the standards hardly matters. The standards have been adopted by the Department of Education, which makes them of public interest, rather than solely the property of the rights holders.

The lawsuit also makes this puzzling claim.

In front of the unauthorized copy of the 1999 Standards that Defendant published to its website, Defendant placed a cover sheet or “Certificate,” falsely implying that the publication of Plaintiffs’ Standards to Defendants’ website was somehow authorized or sanctioned by U.S. law.

The added cover sheet simply points to the law governing public records and public records requests, while somewhat dramatically stating that the document below has been “incorporated by reference” into federal law, therefore making it “legally binding.” The problem with this claim is that the above federal regulation points to the same part of the US Code that Public Resource’s “cover sheet” does.

Incorporation by reference of this document has been approved by the Director of the Office of the Federal Register pursuant to the Director’s authority under 5 U.S.C. 552(a) and 1 CFR part 51.

The public records law states that the government must make available any outside document that it incorporates into federal standards. The US holds up its end of the bargain (but not even barely) with this:

The incorporated document is on file at the Department of Education, Federal Student Aid, room 113E2, 830 First Street, NE., Washington, DC 20002, phone (202) 377-4026, and at the National Archives and Records Administration (NARA)… The document also may be obtained from the American Educational Research Association at:…

Once again, the public is left out in the cold. If you don’t happen to live in the DC area or don’t have the $36-50 AERA is asking, then the document incorporated into federal law may as well not exist. But it does, and Public Resource is making it available. (So is the Internet Archive.)

Through no fault of their own (at least according to the filing), the plaintiffs have had their standards placed into the public domain by the US government in what has to be one of the most oblique instances of asset forfeiture. But that doesn’t change the fact that the incorporation of the standards put them under the jurisdiction of public records laws, something they’ll likely find themselves arguing against once Malamud responds.

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Comments on “Public.Resource.Org Sued (Again) For Publication Of A Document Incorporated Into Federal Regulations [Update]”

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Ninja (profile) says:

I would be more inclined to agree with them on the issue of maintenance of the Standards being a cost intensive process if they weren’t charging absurd rates for access. I find it outraging to charge more than a few dozen pennies for any document. It’s the old MAFIAA mentality of profiting on a single copy instead of distributing it on the wild. I’m fairly sure people would gladly pay, say, 20, 30 cents knowing it goes towards keeping the thing updated and well maintained. But 50 bucks? Really?

Still, if it is law then it should be public and readily available. If you can’t use lack of knowledge of the law as an excuse then everything pertaining to any law or Govt decree should be readily accessible to anybody, including those that have zero money on them.

Anonymous Coward says:

“None of the Plaintiff organizations has [publicly] solicited any government agency to incorporate the Standards into the Code of Federal Regulations or other rules of Federal or State agencies?”

There, fixed that for you. With all the back door deals that go around we don’t know whether or not they have privately solicited any government agencies and are just telling a lie. Maybe not but we can’t tell for sure.

Anonymous Coward says:

What is the point of having standards if they are locked away from view? This is applicable to many standards, not just the ones being sued over this time.

Almost everyone has heard the saying “ignorance of the law is no excuse”, but how many of those same people are aware of the many laws and standards intensionally kept hidden from the general public such that the public is indeed ignorant.

Charging a toll for information access is stupid, but we apparently live in a world populated with stupid.

Gabriel (profile) says:

Trying to look at this from the standpoint of a hypothetical sincere plaintiff, though, if we’re going to support any sort of copyright at all it doesn’t seem fair that my rights to my own privately-produced work can be terminated without my consent due to unilateral action by the government. If incorporation by reference does indeed place my document into the public domain, then I would argue that any such reference is a “taking” and that I have a claim against the government for compensation.

Anonymous Coward says:

Re: Re: Re: Re:

Exactly. Rights exist outside of government. A right is what you can do if there is no government. Contrary to what the government tells you driving is a right and not a privilege. but I don’t mind the government regulating such rights for public safety.

A privilege is something the government gives you. A privilege requires the existence of a government to have. Intellectual property is a privilege since government is needed for enforcement.

The Wanderer (profile) says:

Re: Re: Re:2 Re:

And under the distinguishing standard John Fenderson stated, it would then be classed not as a right (just as you said) but as a privilege.

I can see room to quibble about what term should be applied to it (“privilege” vs. something else), but you do seem to be agreeing that “right” is one term which should not be applied.

Anonymous Coward says:

Re: Re:

The constitution doesn’t say that government must grant these privileges. It says that government may grant these privileges (that is if it wishes to) but only to promote the progress …

IP law should not be about defending your ‘rights’ it should be about promoting the progress.

Furthermore government can use eminent domain.

I think the bigger issue is why is the government using privately controlled text as a basis of law? This is something the government should have never done and could be remedied in one of two ways

A: The works are forced into the public domain. The government could compensate the privilege holder with a fair market value for the works (a fair market value and not whatever the heck the privilege owner asks for). A fair market value would take into consideration the value of the works had the government not adopted them as legal standards (the company would probably be unable to charge nearly as much with the same volume of sales if the government hadn’t adopted them as legal standards).

B: The courts could invalidate these legal standards and require that the government redraft new legal standards that are publicly available for free.

In either case the course of action that the government must take is that it must not adopt privately held text as legal standards from now on (ie: take one of the previous actions to clean up the mess it made but ensure that it doesn’t make that mess anymore). If the government sees some privately controlled text that it thinks would make for good legal standards what the government could do (from now on) is either

A: Draft new standards that are publicly and freely available.

B: Negotiate with the IP holder ahead of time a way those text could be publicly and freely released as a legal standard (ie: negotiate a fair compensation the government could give the IP holder).

Jim says:

Douglas Adams understands this issue

” …You hadn’t exactly gone out of your way to call attention to them had you?
I mean like actually telling anyone or anything.’
But the plans were on display…’ on display? I eventually had to go down to the cellar to find them.’
`That’s the display department.’
`With a torch.’
`Ah, well the lights had probably gone.’
`So had the stairs.’
`But look you found the notice didn’t you?’
`Yes,’ said Arthur, `yes I did.
It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory
with a sign on the door saying
“Beware of The Leopard”.’
— Douglas Adams.

Anonymous Coward says:

School Accreditations

The same is true with school accreditations.

I called the state government education office and asked for a copy of the private school standards, after getting nowhere with the accred. agency, and the gov. official said he didn’t know what the standards were, yet they were incorporated into the code or administrative code.

The same with preschools, which are licensed under public welfare. I can’t find standards for NECPA online.

Also, I can’t find the Red Cross First Aid and CPR book online. This is definitely incorporated into various regulations.

– – – – –

Code of VA

? 22.1-19. Accreditation of elementary, middle, and high schools; nursery schools; recognition of certain organizations; child day center regulation.

The Virginia Board of Education has authorized the Virginia Council for Private Education to accredit private nursery, preschool, elementary, and secondary schools. (?22.1-19) State recognized accreditation comes through accreditation granted by any of the VCPE Approved State Recognized Accrediting Members.

These are the member associations listed:

AdvancED/Southern Association of Colleges and Schools (AdvancED/SACS)

American Montessori Society (AMS)

Association of Christian Schools International (ACSI)

Association of Christian Teachers and Schools (ACTS)

Association of Classical & Christian Schools (ACCS)

International Christian Accrediting Association (ICAA)

North American Christian School Accrediting Agency (NACSAA)

Seventh Day Adventist Schools of the Potomac Conference (SDASPC)

Southeastern District, Lutheran Church – Missouri Synod (SED-LCMS)

Southern Association of Independent Schools (SAIS)

Virginia Association of Independent Schools (VAIS)

Virginia Association of Independent Specialized Education Facilities (VAISEF)

Virginia Catholic Education Association (VCEA)

Virginia Independent Schools Association (VISA)

cc young (profile) says:

Public use of standards

They wish to both to control standards used by the public and to charge the public (when they can get away with it) when the standards are used.

If they were to prohibit use of the standards in the public arena, then no one would have an issue in their profiting from the use. What they’ve done is create a monopoly through the law, and using the monopoly to coerce payment from users of the standards the monopoly maintains.

IMHO classic troll.

John Snape (profile) says:

Freely available?

I sent an email to the California Building Standards Committee asking them if they would sue me if I published and sold the California Building Standards that are incorporated into title 24 (along with Titles 1 to 28).

I’ve yet to receive a response.

I then sent an email asking where I could see the text online. Within hours I received links to the standards organizations online to either see a password protected version in pdf form, view the code section by section (making it extremely difficult to get a complete text of it at once) or buy a hard copy for hundreds of dollars.

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