Court Says Carl Malamud Can Keep Freeing The Law

from the about-time dept

We’ve written a bunch about Carl Malamud, who has devoted so much of his time and energy towards freeing the law. While that may sound ridiculous that the law needs to be “freed,” Malamud noticed, before most others, different forces that were looking to lock up (and often from) the actual text of the laws. And Carl, rightly, believes that everyone should be able to read the law freely, otherwise how can people be expected to know what’s legal and what’s not?

For his troubles, Carl has been sued in a few big (and important) cases. I’ve seen people “congratulate” Carl on getting sued for his efforts to publish the law, thinking that this is what he wants — but it’s not. I’ve spoken to him about this multiple times, and he just wants the law to be free, not to have to go through the pain and hassle of a lawsuit. Yet, when those who seek to lock up the law come after him, Carl is willing to fight back. A few years ago, he freed the laws of Georgia from a stupidly convoluted setup, in which the state partnered with a private company to lock up the “official” code of Georgia.

But one of Carl’s biggest projects is getting people to recognize the problems when lawmakers incorporate some sort of standard into the law where the official standard is then locked up behind (often expensive) paywalls. There are standards-making bodies out there that insist that this is the only way that they can afford to keep the standards going, by making money selling copies of it. And while some may be sympathetic to that argument, it’s no excuse for hiding standards that are required by law. If lawmakers are saying that you have to meet a standard to be in compliance with the law, then the standards must be freely available.

A bunch of standards bodies sued Carl and his organization, Public.Resource.Org, and the case has bounced around the courts. The standards bodies were incredibly obnoxious about it all, with one board member of a standards body bizarrely whining in an email that the people clamoring to free the law “are still clamoring for free beer and free sex too.” Weird to admit that you normally expect to pay for sex, but, hey everyone has their own preferences.

Back in 2017, a district court ruled against Carl, but thankfully the DC Circuit sent the case back saying that the lower court needed to consider if such standards that are incorporated by law can be posted under fair use. And as the next round heated up, one of the remaining plaintiffs agreed to drop the case, leaving just one remaining standards body: ASTM — the American Society for Testing and Materials.

Finally, a few weeks ago (I’m catching up on some stories that I’ve been meaning to write up), the district court ruled (mostly) in favor of Carl, but very much in favor of fair use. The parts that the court ruled against him were on a few standards he had posted that, for a variety of reasons, were somewhat different than the actual standard incorporated into the law. But for the ones that were the standards used in the law, the court found in favor of fair use.

Somewhat incredibly, the court went through each of the separate 217 standards at issue in the case and did a fair use analysis on each of them in a separate appendix to the ruling. I’m not going to go through each fair use analysis, but it’s worth skimming through and getting a sense. The key part, though, is the recognition by the court that when a standard has been incorporated into the law, it should be fair use to republish the parts of the standard that are relevant to the law.

One interesting tidbit, though, is that throughout this very, very long legal dispute, the various standards bodies have insisted that allowing Carl to do this would destroy their “business” and the ability to keep working on standards. This issue came up in determining part of the fourth factor of the fair use test — which is the impact on the market. And the court notes that the standards bodies like ASTM have had lots of time to show harm, and have failed to do so.

Plaintiffs’ evidence falls well short of showing some meaningful likelihood of future harm. Plaintiffs begin with the premise that Defendant’s postings are “unrestricted” and “widely viewed,” and conclude that “[t]his means its users include those individuals and entities who would otherwise purchase or license copies of Plaintiffs standards.” See Pls.’ 2d MSJ at 27. But Plaintiffs’ evidentiary support for this proposition is meager: correspondence from an engineer asking Defendant if the Circuit’s decision in ASTM I meant Defendant could “update the site,” Wise Decl. ¶ 174, Ex. 173 at PRO_00267293, and correspondence from an engineering firm telling Defendant it heard about its organization from a “colleague” and asking Defendant how it could access Defendant’s postings, id. ¶ 165, Ex. 164 at Interrog. 22. Those communications—showing that two entities were interested in accessing Defendant’s posting —do not explain whether the entities were interested in accessing Defendant’s postings in lieu of purchasing Plaintiffs’ standards, as opposed to simply accessing them in Plaintiffs’ read-only access rooms.

Plaintiffs also argue that beyond those two engineering entities, there “may also” be “further would-be-infringers” who could repurpose Defendant’s postings to turn a profit for themselves. See Pls.’ 2d MSJ at 27. This argument is even more tenuous than the former. Plaintiffs point to a third-party website offering users the ability to pay to access ASTM standards, but they do not assert—or offer any evidence to show—that the third party’s offerings are a result of Defendant’s actions, or whether the third party, like Defendant, purchased Plaintiffs’ standards and then scanned and uploaded them to its website. See id. (citing Pls.’ 2d SMF ¶¶ 105-06 (citing Wise Decl. ¶ 154-55)). In other words, evidence that other websites are also posting Plaintiffs’ standards—without any causal connection to Defendant’s actions—does not show “market harm caused by the particular actions of the alleged infringer,” nor does it show whether Defendant’s actions enabled “widespread conduct of the sort engaged in by [Defendant]” that “would result in a substantially adverse impact on the potential market for the original.” Campbell, 510 U.S. at 590 (internal quotation marks omitted).

All in all the end result here is good. The court has said that when standards are incorporated into law, Public.Resource.Org will be able to publish those parts of the standards and be protected under fair use.

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Comments on “Court Says Carl Malamud Can Keep Freeing The Law”

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Samuel Abram (profile) says:

one board member of a standards body bizarrely whining in an email that the people clamoring to free the law “are still clamoring for free beer and free sex too.”

I audibly yelled “WHAT THE FUCK?!?!?” I mean, seriously: US Government content (as part of which the legal code counts) are in the public domain. You pay for beer mostly because of the labor, ingredients, and logistics (not to mention packaging) used for them. Mike addressed the “free sex” part so I won’t. Public Domain works can be free (as in beer and speech) to distribute, so why the hell does that board member think we have a sense of entitlement when we actually are entitled as US citizens? If anyone has a sense of entitlement, it’s that board member for locking up public domain content.

Anonymous Coward says:

Re: Re:

Or he meant it in the sense of “free love”: the separation of the state from sexual and romantic matters. The quote would then suggest he finds it silly for the government to not be involved. And, indeed, many people do want the government involved in things like birth control and adultery, even people who like to bitch about government overreach.

Chris Brand says:


The actual customer here is the government/lawmakers who chose to incorporate these standards into the law. If the standards bodies in question decided to give them away to those customers for free, than that just seems like a bad business decision on their part – and the courts certainly shouldn’t be protecting anyone from their own bad business decisions

Anonymous Coward says:


The legislators can (probably) “say” whatever they like: “you have to follow the best practices guidelines of Organization X”, say, without permission of Organization X.

The bad business decision here is Organization X not making a Takings claim on the copyright of their standards document.

And (as I said elsewhere) they can make a business case to the legislature: You want us to keep making this? Well, you’ve deprived us of our revenue stream. We need straw to make our bricks, so you’ll have to give us the straw. And sure, you’ll audit our books, but if you cheap out, you get cheap regulations.

Of course, they could make their case in their regulations…:

127.5.3 Final approval of any new structure is dependent upon owner filing a petition to the respective state representatives and copied to the Building Code Board, demanding $(amount) payment from the State of ______ to the Building Code Board, and upon the state paying said payment.

127.5.3 (A) The BCB may issue a waiver to the owner for final approval if the owner joins the BCB in a suit against the state for monies owed….

Anonymous Coward says:

Re: Re:

The bad business decision here is Organization X not making a Takings claim on the copyright of their standards document.

“here”? No, you’re describing a hypothetical situation, whereas here in reality these groups write codes with the understanding they will be written into law. NFPA didn’t write their fire codes to entertain themselves or their fans, and if the legislators switched to some “competitor”, it’s unlikely anyone would be buying NFPA products—except perhaps to look for good ideas, reword them, and copy them into the competing standards (because, of course, only the specific wording of rules are copyrightable; the idea that emergency exits should be kept clear, for example, is not copyrightable).

It’s certainly possible that some “Organization X” could be upset about a legislator “taking” material they authored. Maybe Ron DeSantis, in his ongoing Disney-feud, will declare a song from Frozen to be Florida’s state anthem, and we’ll see some fireworks. But have you heard of any actual case?

Anonymous Coward says:

It is a poverty of imagination.

There are standards-making bodies out there that insist that this is the only way that they can afford to keep the standards going, by making money selling copies of it.

… and news organizations want search engines to pay for linking to their news. I presume we’ll be hearing from the buggy whip lobby asking for a whip being required for each horseless carriage.

Now… if the standards bodies were were to push back on the legislators and sell them the copyright, and provide the update service (“we need x funding annually or we retire”) they might get somewhere. They become a paid lackey, but it’s a solid job.

That One Guy (profile) says:


Now… if the standards bodies were were to push back on the legislators and sell them the copyright, and provide the update service (“we need x funding annually or we retire”) they might get somewhere. They become a paid lackey, but it’s a solid job.

That’s really what should have been done from the get-go, the government pays them to develop the standards as a work for hire and then the government owns and publishes those standards. Should they need updating then that can be paid for in the same way with the same transfer of ownership taking place

Anonymous Coward says:

Honestly, I’m a bit disappointed by this outcome. One of the tenants of law is that “ignorance of the law is not a defense” because it’s assumed the law is freely available to everyone.

When the law is not freely available and prohibitively expensive to retrieve, it’s reasonable to assume that “ignorance of the law” is a reasonable defense, but I’m also convinced the courts would not see it that way.

I would have liked to see the inane logic the courts would have had to come up with to justify the “ignorance is not a defense” argument while simultaneously denying people access to the law.

That Anonymous Coward (profile) says:

So how much of what the private businesses make from these schemes line the pockets of the lawmakers?

I mean we’ve seen the revolving door in DC, no way to pretend this can’t happen in lower levels.
Which cousins idiot son ends up with a cushy good paying job?

If the law doesn’t explain the “standard” can it really be law?
Does allowing a 4rd party to maintain those standards generate a problem in the law when they change the code referenced?
I mean someone could smuggle some CRT into a standard & then FL would have to invalidate everything it touched.

Does this mean that the standard bodies should be bound by the rules on governments as they are effective able to make a change, without any public input, and create new law if they so choose to?

Anonymous Coward says:


I don’t know whether the lawmakers themselves get kickbacks, but the text of these things reads exactly like laws, so it’s not hard to imagine some “revolving door”.

There’s a conspiracy theory circulating online that electrical codes are requiring AFCI circuit breakers just to enrich the breaker manufacturers—though I’m not sure how NFPA etc. would benefit. Certainly one could argue that the requirements, as written, might actually reduce safety (they’re required on “new” circuits only, which encourages people to reuse shitty existing wiring to save hundreds/thousands of dollars; similarly, if you’ll have to spend $100+ in permit/inspection fees to replace a loose $5 receptacle, you might be inclined to ignore it or just secretly replace it).

Anonymous Coward says:

Re: Re: Re:

The same way some CongressCritters benefited from being warned about Covid coming & snapping up PPE stocks.

Do you have any evidence of that? My understanding is that their holdings would be public information, so one could look up the new requirements in any given code (once Carl publishes it), then see what stocks the legislators bought just before approving it—and whether they’d have some reason to benefit.

Anonymous Coward says:

Some Insider Details

Mr. Masnick thanks for this, some info you might find interesting: 1) ASTM was so scared of this outcome they had a reorganization and consider themselves a SaaS company now, selling copies of their digital library technology (not content, but platform) to other orgs like API. Fascinating this was never accounted for in the assessment of impact on their business. 2) Suit was not just ASTM but also NFPA and ASHRAE, in fact NFPA started it but ASTM joined because they were worried little NFPA would lose. With their huge chip lead in the SDO space it ended up being ASTM’s counsel that led the suit but they’re generally not very competent hence the meager evidence they put up on the fourth factor. The lawyer is also VP of ASTM human resources where he does a similarly incompetent job. 3) ASTM has 3 years operating budget in the bank and makes incredible profits each year, even more so with the SaaS offering, and as the judge notes, fair use copying of standards written into law is unlikely to change that. Engineering firms, departments of transportation, etc. buy subscriptions to their digital library content not just for documents but enhanced features like search and redline version comparison. It’s analogous to SciHub versus ProQuest and JSTOR. ASTM already accepted that paywalls will continue to fall and have built other lines of business. Very interesting it didn’t come out in discovery. Of all the SDOs, ASTM is the richest and has the biggest lead in generating revenue through other means. 4) ASTM’s sales department complained constantly in internal meetings about Malamud. I’ve seen sales reps tell the staff that fair use doesn’t exist. The leadership, right up to the president, talks shit about Malamud in meetings. But the president did openly express on many occasions that she didn’t expect to win the suit. This is part of why she chose to reorganize the company around the successful digital library technology product (white label digital libraries for smaller orgs). 5) They also make a little money on training and certification, not much but it is another vertical. They also sell journal articles and other technical documents. They have a few side bets. 6) ASTM itself offers free versions of standards written into law but it’s hard to locate on their website and the user experience is deliberately poor. Still, they do it. 7) Email me Mike if you ever want to hear more about ASTM from someone who watched this unfold from the inside.

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