Members Of Congress: Court Was Wrong To Say That Posting The Law Is Copyright Infringement

from the time-to-clarify-the-law dept

Back in February, we wrote about a disturbing court decision that said that standards that are “incorporated by reference” into law, could still be copyright infringing if posted to the internet. In that earlier post I go into much more background, but the short version is this: lots of laws point to standards put together by private standards bodies, and say, effectively, “to be legal, you must meet this standard.” For example, fire codes may be required to meet certain standards put together by a private standards body. Carl Malamud has spent years trying to make the law more accessible, and he started posting such standards that are “incorporated by reference” into the law publicly. His reasoning: once the government incorporates the standard into the law, the standard must be publicly available. Otherwise, you have a ridiculous situation in which you can’t even know what the law is that governs you unless you pay (often a lot) to access it.

Standards bodies weren’t happy about this — as some of them make a large chunk of money from selling access to the standards. But from a straight up “the law should be public” standpoint, the answer should be “too bad.” Unfortunately, the district court didn’t see it that way, and basically said it’s okay to have parts of our laws blocked by copyright. We thought that ruling had some serious problems, and Malamud and his organization Public.Resource.Org appealed. A bunch of amicus briefs have been filed in the case — which you can see at EFF’s case page on the lawsuit. There’s a good one from some law professors about how the lower court got it wrong, as well as a ton of library associations (and also other law professors and former gov’t officials). Public Citizen also filed a good brief on the importance of having access to the law. It’s worth reading them all.

However, I wanted to focus on a different amicus brief, filed by two sitting members of Congress, Reps. Zoe Lofgren and Darrell Issa. The brief was put together by Harvard’s Cyberlaw Clinic, with help from lawyer Cathy Gellis (who has represented us from time to time, as well as written some posts for Techdirt). It’s certainly not unheard of to have members of Congress file amicus briefs in cases, but it’s not particularly common either. The fact that two members of Congress are worried about the due process implications of a court ruling should, hopefully, capture the court’s attention.

For the law to govern and protect the people, the people must know what the law is. By offering an electronic platform for the publication of legal codes and standards, Public Resource helps the public by providing access to laws that might otherwise be functionally inaccessible. Without this access, the consequences are significant. First, those who inadvertently violate inaccessible regulations may be blindsided by civil and criminal penalties for violations they did not know to avoid. Second, those whose health and welfare depends on others? compliance with these regulations may suffer damage to their life, liberty, and property, as a result of both others? ignorance of the law and their own inability to access the law in order to pursue enforcement. This Court should not endorse a copyright regime that allows private SDOs to limit access to the legal rules that govern and protect the public.


As members of Congress, our job is to draft and enact laws that govern the United States. But mere passage of legislation is not enough; due process requires more. The Fifth and Fourteenth Amendments dictate that no person is to be ?deprived of life, liberty, or property, without due process of law.? U.S. Const. amend. V; U.S. Const. amend. XIV. There can be no due process when people cannot remain informed of the laws by which they are bound. And they cannot remain informed when the law itself is not sufficiently communicated to the people it governs.

Lots of people could make those points — but having it come from the people who actually make the laws seems to make the point that much more relevant. Hopefully the court agrees.

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Comments on “Members Of Congress: Court Was Wrong To Say That Posting The Law Is Copyright Infringement”

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Anonymous Coward says:

It’s a good thing to see members of Congress taking note of things like this, but Congress’ laws are the entire reason this is a problem to begin with. Congress has the sole Constitutional authority to say what is and isn’t worthy of copyright protection, but they’ve purposely passed laws so one sided towards content creators (DMCA, Mickey Mouse Protection Act, etc) that we’re in this mess to begin with! How about introducing a law that explicitly states no public proceedings or laws drafted by public institutions, legislatures, or governmental bodies and any standards they reference as basis for their laws and legal standards can be anything but public domain? Problem solved. Stop passing laws written by corporate shills.

SirWired (profile) says:

The issue isn't quite so cut-and-dried

It takes time and money to write these building codes, and somebody has to pay to do all that. If incorporation by reference puts something in the public domain (making it difficult to get paid for copies), where is the money to develop the codes supposed to come from?

Maybe something can be worked out for these “model codes” which were designed from the ground-up to be incorporated into law, but what about other things that might be incorporated by reference? As a copyright holder, what right do governments have to forcibly put my works in the public domain? What if a novel were to be incorporated by reference (e.g. “The 8th-grade English Curriculum Shall Include To Kill a Mockingbird.”)…

Anonymous Coward says:

Re: The issue isn't quite so cut-and-dried

Ultimately, the government shouldn’t (and I would argue legally couldn’t) include non-public domain content in a law. By definition, all law should be public domain. All laws are passed in representation of the people, so no law text can legally be withheld from the people who collectively own it and the government that wrote it. So if a non-government group writes a standard, the government needs to make a one time purchase and release it into the public domain or else hire someone else to write a public domain version. I’m not pretending that this is easy in all realms, but no amount of “that’s not easy” makes creating a legal paradox acceptable.

ALFIE says:

Re: Re: Illegal Laws

the issue is very simple — legislators enacted an illegal law … a new law that violated existing law (copyright law in this case)

that court compounded the problem by ignoring the legislative error in the new law … and merely affirming that the pre-existing copyright law was valid. The court should have exposed the legislative error and declared the new law invalid.

(the overall validity of copyright law is a separate issue for discussion. in practice, all courts enforce established copyright law — and that’s the starting premise for this specific court case)

– Do legislators ever enact Illegal Laws (?) — Absolutely, they often do so.

– Do courts ever uphold or ignore Illegal Laws — Absolutely, they often do so.

So… whatdaya think is the basic problem here ??

Paul Brinker (profile) says:

Re: Re: Re: Illegal Laws

The laws are in conflict, but not illegal. The job of the court is to agree on the interaction of laws, especially if they stack on each other. Trial courts, barring any outside information should take the law at face value. At face value there is nothing illegal in passing a law that references a book, the law simply says some book is also part of the law but not included as the book is actively managed. This is on its face, the same thing that happens with the IRS writing a Tax rule that’s outside the tax code passed by congress.

So by basic analysis, the trial court taking all laws at face value found that the law can reference a book, and the book can be copyright protected. The trial court did not take into account the fact that sections of the book are also laws as this is something that has not been addressed by any court or law.

The Appeal is actully the correct place to point out an error in the law itself as applied. Because at appeal you can state clearly that if a law references a book, the applicable section of the book is also part of the law, thus no longer protected by copyright because laws are not protected by copyright.

Ultimately with the backing of several people in congress this will made correct. Then states will need to pay standards body’s up front to establish standard and perhaps the standards body can publish the annotated standards with additional information that is outside the scope of the law itself.

ALFIE says:

Re: Re: Re:2 Illegal Laws

“… if a law references a book, the applicable section of the book is also part of the law, thus no longer protected by copyright because laws are not protected by copyright.”

The basic rule-of-law demands that specific laws be clearly understandable by the public and courts. If not, mysterious laws are invalid from the getgo.

Legislators can not legally enact “silent laws” that directly repeal well established law, without formally mentioning it at all.

Such a legislative error (or malfeasance) should be obvious to competent lower court judges … and well within their jurisdiction on relevant cases before them.

Of course in this particular case, dopey legislators neither knew nor cared that they were contradicting established copyright law. The lethargic lower court judge saw the problem, but did not care to challenge the legislator error/malfeasance — and washed his hands of the problem. The public was left scrambling to try and resolve the issue thru appeals. The public was poorly served by the legislative and judicial system.

Machin Shin says:

Re: Re: The issue isn't quite so cut-and-dried

These people really wouldn’t want that either. If the government didn’t use their closed standards then they couldn’t sell copies.

The government buying them as a “one time purchase” wouldn’t make them anywhere near as much money because the government would have all the power to say “Yeah…. you want far too much where as this other guy, he will do it for half that”

As for their complaining about this. You really think it will cut into their sales all that much? Guys doing construction for a living as still very likely to buy an “official copy” or two. Seems like most electricians I have met have copies of the electrical code even though they almost never look at it because they have memorized the parts that are important to them.

Mason Wheeler (profile) says:

Re: The issue isn't quite so cut-and-dried

What if a novel were to be incorporated by reference (e.g. "The 8th-grade English Curriculum Shall Include To Kill a Mockingbird.")…

That’s not "incorporating by reference"; that’s simply referencing. Incorporating by reference would be if the law was putting the content of the book itself (not simply the name of it) into the legal code. It’s difficult to imagine a scenario in which this would be the case for a novel.

Anonymous Coward says:

Re: Re: Re: The issue isn't quite so cut-and-dried

1) Simply saying “the curriculum includes To Kill a Mockingbird” does not require anyone to actually rely on TKaM as part of their legal defense in a court case, or to provide basic safety when constructing a building.

2) You can always go read To Kill a Mockingbird at the public library. You can’t do that with these codes. And that’s fundamentally wrong.

Anonymous Coward says:

Re: The issue isn't quite so cut-and-dried

Seems like the answer is obvious: if the government includes things by reference, the government has to make the referenced material available and pay the appropriate licensing fees. In some cases, that will mean waiving fees altogether, in other cases, it will mean paying a distribution license.

In any case, the barrier to access must always be governmental, not third party.

But a better solution would be that these model codes are developed with grant money in the first place, and don’t use a paywall subscription model to recoup costs. Or, the org that develops the codes is still the de-facto expert on them, and can sell their services in interpreting and deploying them, much like OSS-based companies to today.

Valkor says:

Re: Re: The issue isn't quite so cut-and-dried

I won’t repeat what has already been said more clearly:

It really shouldn’t even cost THAT much. For example, ASTM goes out of its way to stress the volunteer labor that goes into developing non-profit standards:

The bad news is that it’s expressly illegal for the government to develop standards when public standards exist:

I guess it’s good for a universal standard to be used, but the law should serve the people, not the other way around!

cpt kangarooski says:

Re: The issue isn't quite so cut-and-dried

Well, first, your work is only copyrighted because the government gave you a copyright; they are not obligated to do so and can attach whatever strings they like to it, such as, the copyright may be voided by the government at any time without compensation if incorporated into law. Be thankful for getting anything at all, I say.

But secondly, there’s no reason why this would threaten works that are not in some way regulatory in nature. To Kill A Mockingbird wouldn’t have any problems even if mandated as part of the curriculum, but a building code that you must follow to build a house that can be lawfully occupied is of that type. I don’t think it’s a hard distinction for people to make.

As for the money, well, if you draft codes and don’t like the idea, stop drafting them. Governments in need of codes will either step in and do it themselves or pay someone to do it for them. They may not be able to force a private author to draft codes but that doesn’t mean that they have to cater to the author’s business model of making their work a part of the law that must be complied with.

That One Guy (profile) says:

Re: But it could be

It takes time and money to write these building codes, and somebody has to pay to do all that. If incorporation by reference puts something in the public domain (making it difficult to get paid for copies), where is the money to develop the codes supposed to come from?

From the same government bodies that are paying for those codes now, except it would be one purchase rather than merely a license.

1) Government realizes that there is a need for particular codes that will be incorporated/linked to the laws.

2) Government finds a company that is willing to create those codes, and hires them to do so.

3) Company presents resulting codes to government, who after review to make sure they are good pays the company, taking ownership of the codes as part of the transaction.

4) Codes can now be released to the public alongside the laws they are part of, free for the public to access.

The company would still get paid, the codes would still be made, the only difference is that the company wouldn’t be in the position of gatekeeper to the codes after the transaction took place.

That One Guy (profile) says:

Re: Re: Re: "Being paid once is nice, but if I'm not being paid Constantly what's the point?"

You can’t think of any companies that would take a paying job for delivering a product/service, despite the fact that they couldn’t sell the same thing multiple times? Not a one that would look at other companies shooting themselves in the foot for refusing to do so and use that to bargain for better pay for doing it themselves?

That’s a rather strange way of doing business.

takitus (profile) says:

Re: Re: Re: By that logic...

but who is going to step up? Because as soon as one government pays, any other government would be able to copy those standards for free. Nobody wants to feel like a chump.

We should all cheer Elsevier’s efforts to create a paywalled Web-based encyclopedia. Who else is going to step up? What chumps would undertake a massive project when their work could just be copied without royalty?

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:2 By that logic...

What you fail to comprehend is that the typical science researcher is not in it for copyright potential, but for recognition in their particular field. Should someone copy their work, they would think ‘recognition’, not how much would this make me in terms of money.

They do the work to advance science, or they are not serious researchers. Tell us about someone who is serious about the advancement of science and not in it for money.

Anonymous Coward says:

Re: Re: Re: Nice idea, but no

IDK if such a thing exists in the USA, but in many countries there is an association or collaborative committee for each of the various levels of government, where they lobby the superior governments and arrange cross-border matters which they don’t want to (or constitutionally can’t) hand over to a higher government. They could developmcodes collectively.

Alternatively, they could copy codes from elsewhere (perhaps with a few cosmetic changes to avoid eliminating barriers to trade which couldn’t be reinstated). For a lot of things EU or British standards would be most convenient (being already in English), though for building codes the US might want to use the royalty-free New Zealand versions of the AS/NZS series, since Australian building practices are more like American norms.


Re: The issue isn't quite so cut-and-dried

If incorporation by reference puts something in the public domain (making it difficult to get paid for copies), where is the money to develop the codes supposed to come from?

Literally in the sentence itself. “incorporation by reference”

If the government sees fit to legislate that the reference into law, then it is the governments responsibility to pay whatever recompense is appropriate.

If the government so declines, then the government can anti-up whatever costs seem necessary in order for itself to generate those laws/codes that it deems necessary

Machin Shin says:

Re: The issue isn't quite so cut-and-dried

“As a copyright holder, what right do governments have to forcibly put my works in the public domain?”

LMFAO, Seriously? As a copyright holder you ask what right they have? Who do you think gave you the copyright? It isn’t some god given right, it is government created. It also isn’t even guaranteed in the constitution. It just says they have the right to give you copyright, so yeah, they have every right in the world to take it away again.

Almost Anonymous says:

Re: The issue isn't quite so cut-and-dried

It is cut-and-dried. Under no circumstances should any part of the law be “hidden” or pay-walled from the public. Period.

The codes should be work-for-hire, if anything. I think a good argument could be made that the codes are a collection of facts, anyway, and as such are not copyrightable. But if they are, then the copyright belongs to the government, and no third party has a right to charge for access.

tracyanne (profile) says:

Re: The issue isn't quite so cut-and-dried

Copyright is a Government Granted Monopoly. It is NOT a birthright.

Therefore the Government can (and does regularly) decide to what extent that Granted Monopoly can apply.

Therefore the Government can decide that any or all content can be locked up for ever and a day (which it effectively is right now, under current Copyright law) or that any or all content must be made publicly available as Public Domain.

How a content creator deals with making money from their works is not, strictly speaking, the Governments concern.

Anonymous Coward says:

Re: Re: Re:

You say that like you’re surprised that the authoritarian apologist showed up in defense of silly interpretations of the law. He believes supermarkets are IP-intensive industries which would never be capable of function if not for the fact that intellectual property laws exist, and no one would ever make purchases. (We’d probably all be food pirates if it came to that!)

MyNameHere (profile) says:

Re: Re: Re:

“And yet, when there is a noticeable majority of people who want net neutrality, you agree with Ajit Pai when he claims that nobody wants it.”

Liar (and troll)

I don’t agree with Ajit at all. I just think that net neutrality as created was just a “chairman’s rule set” and the next chairman can well remove it. If you want net neutrality, have congress write it into law.

I don’t think the FCC has the mandate to enforce it.

So when only 2 members of congress write an amicus brief, I think it’s misleading to say “members of congress” when it’s just two congress critters, and not the whole congress (very different).

The Enforcer says:



Sections of this article use terminology in contravention of public law 97-182b subsection 9J Hut Hut Hut, otherwise known as the Palmser Greasy Aintthay Act.
You must bring this article into compliance within twenty-four hours or your bank accounts will be seized.
In order to view the particulars of this particular regulation, please order our Standards of Nonstandard Standards, volumes one through nineteen. Each volume is discounted to you at a cost of $975.00 US plus shipping.

Anonymous Coward says:

It starts with: "We the people"

and therefore stands that if authority does not originate with the people, then it is not law. And that is before we even get to the guts of article 1, or the 5th amendment.

The problem isn’t that legislators have to debate about this. The problem is that people who debate about this, are legislators.

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