Libraries, Journalists, And Public Interest Groups Oppose Private Control Of Law
from the don't-lock-up-the-law dept
On July 8, an expanded coalition of library associations, civil society organizations, journalist groups, and other advocates for information access sent a letter to the House Judiciary Committee explaining their opposition to the Pro Codes Act. This coalition has grown significantly from the original group that opposed the bill, now including major organizations like the NAACP and numerous journalism organizations.
The Pro Codes Act is back (first as H.R. 4009, but refiled as H.R. 4072) in almost identical form to bill H.R. 1631 in the 118th Congress. The previous version was brought to the floor under suspension of the rules—a procedural mechanism typically reserved for non-controversial legislation—but failed to achieve the required two-thirds majority for passage. The use of suspension of the rules was particularly notable given that the Pro Codes Act is far from non-controversial. The Pro Codes Act has not received a committee hearing in this Congress or any previous one.
Works Incorporated by Reference Into Law
To understand the Pro Codes Act, one has to understand incorporation by reference. For example, a city may pass legislation saying that all residential structures must follow the International Residential Code 2024 (IRC 2024), published by the International Code Council (ICC). That means the IRC 2024 is now law in that city – it must be followed and violations can confer civil or even criminal penalties. Another example is the Web Content Accessibility Guideline (WCAG), which the Department of Justice incorporated by reference into regulations requiring web and mobile applications operated by state and local governments to be accessible to people with disabilities.
These laws govern everything from backyard deck projects to life safety regulations for baby pacifiers. They are accessed by construction professionals, DIYers, manufacturers, medical professionals, journalists, librarians, law students, consumers checking that products are safe, and many others.
Pro Codes prioritizes corporate profits over public access to law
At its core, the Pro Codes Act aims to grant standards development organizations (SDOs) exclusive ownership of large swathes of public law. The bill’s text is fairly convoluted, but states that “a standard … shall retain such [copyright] protection, notwithstanding that the standard is incorporated [into law] by reference.”
Proponents of the bill claim that it is necessary because without copyright protections, SDOs will no longer be incentivized to create codes and standards. But Congress does not need to do anything to incentivize the creation of standards. Even without copyright protection for standards incorporated by reference, standards development organizations (SDOs) benefit financially from licensing the latest versions of the standards they develop, and selling training materials and programs on these standards. As the bill itself acknowledges, these private entities provide limited access to the law “in a manner that does not substantially disrupt the ability of those organizations to earn revenue from the industries and professionals that purchase copies and subscription-access to those standards”.
The bill includes a minimum requirement that standards be made “publicly accessible online,” but does not prohibit copyright holders from providing read-only access and prohibiting users from downloading, copying, printing, or linking to the standards. As UpCodes explains here, this and other restrictions impose severe restrictions on access to the law.
The False Claim About Financial Hardship
While the argument that SDOs need copyright protection to stay in business and continue creating these important regulations enjoyed a fair amount of traction in the last Congress, there is no evidence, as noted by multiple courts now, that this has any basis in truth.
The main proponents of the bill, ICC and the National Fire Protection Association (NFPA), are making more money than ever as can be seen from their Form 990s (ICC’s, NFPA’s), despite public interest groups like Public.Resource.Org and companies like UpCodes providing free, unfettered access to these laws for the first time ever. The organizations are able to monetize a suite of auxiliary services around the law such as consulting, testing, inspection, certification and training. This allows them to continue growing their revenues and maintain exorbitant executive compensation (with CEO salaries upwards of $1,000,000, compared to the median CEO salary for non-profits of $115,682). In one case, a circuit court noted that:
“it is difficult to imagine an area of creative endeavor in which the copyright incentive is needed less. Trade organizations have powerful reasons stemming from industry standardization, quality control, and self regulation to produce these model codes; it is unlikely that, without copyright, they will cease producing them.” (Veeck v. SBCCI, 5th Circuit)
This 5th Circuit ruling was from 2002. The SBCCI went on to become the ICC and indeed from their 990s discussed above it’s seen that, 23 years later, the judge was indeed correct.
Courts Have Ruled Against Private Ownership of Law
The proponents also argue that the courts are split so Congress needs to intervene, but that couldn’t be further from the truth. Every circuit-level ruling has upheld that laws can not be owned. The supporters of the bill bring no evidence and are unable to cite any circuit-level case law showing codes adopted into law can be copyrighted. On the other hand, the free law proponents have many rulings in their camp. In addition to the above ruling, for example:
“The plaintiffs here claim a copyright over binding legal texts, which would enable them to prevent anyone from gaining access to that law or copying it for the public… As a matter of common-sense, this cannot be right: access to the law cannot be conditioned on the consent of a private party.” (ASTM, NFPA et al. v. Public.Resource.Org, DC Circuit Court)
“The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.” (BOCA v. Code Technology, 1st Circuit)
In 2020, the matter reached the Supreme Court with all three of the justices who wrote opinions concurring on one fundamental principle:
“No one can own the law” -Justice Roberts
“Beyond doubt, state laws are not copyrightable” -Justice Ginsburg
“Statutes and regulations cannot be copyrighted” -Justice Thomas
This is precisely why these organizations are now turning to Congress. The courts refused to grant them a monopoly over public law, after which they began spending millions lobbying to push this ill-conceived bill.
A Role for Advocates
While SDOs dedicate significant resources to lobbying for Congress to pass the Pro Codes Act, Congressional offices heard surprisingly little about this last Congress. Some offices report not getting a single note from constituents on Pro Codes. If you agree that this bill is deceptively written, please take one minute to contact your representatives and tell Congress not to paywall the law.
Katherine Klosek is the Director of Information Policy and Federal Relations at the Association of Research Libraries. Garrett Reynolds is a Founder of UpCodes.
Filed Under: access to the law, copyright, incorporated by reference, law, pro codes, standards
Comments on “Libraries, Journalists, And Public Interest Groups Oppose Private Control Of Law”
So when to expect this to pass?
Core problem is corrupt government legislators de facto ‘Delegating’ law-making authority to private “standards development organizations (SDOs)” — commanding citizens to OBEY arbitrary rules of unelected/unaccountable private entities.
An absolutely forbidden practice under Federal and all state constitutions.
The NFPA has turned into a bunch of bullies
Those of us in various kinds of rescue find ourselves needing to comply with NFPA standards in order to (a) be recognized as competent by local/state/federal authorities and (b) avoid being sued, or at least, sued successfully. (Yes, people sue rescuers. We save their lives, then they call an attorney.)
But the problem is that the NFPA does everything that it can to lock up its standards and thus prevent us from teaching them. It’s as if we were competing with them — which we’re not, and which we shouldn’t be, because allegedly everyone should be focused on saving as many lives as possible.
As has happened with some other putative nonprofits (e.g. TIAA-CREF) greed has taken over. The NFPA is now run for the benefit of its executives — who don’t give a damn about saving lives, only about their bloated bank accounts. This is just another money grab so that those executives can buy a third mansion — while out in the field, actual real live rescuers are taking out loans to buy their own gear or using stuff that’s so old it may not even work.
Imagine having to do the equivalent of stealing a car, piling one crime on top of the other, to do basic things that any defendant should be able to do I.e. finding out the charge against you or confronting your accuser. Thanks to copyright law, we might need samizdat for people to know the laws of this country.
Re:
We did need samizdat, as published by Carl Malamud who was sued for it. That didn’t change till Carl won the lawsuit (being “ASTM, NFPA et al. v. Public.Resource.Org” referenced by the article, with resource.org being Malamud).
And we still do it need, because Carl hasn’t yet published every third-party document incorporated into law. For example, National Electrical Code (2020) 422.11.3: “Resistance-type immersion electric heating elements shall be permitted to be subdivided into circuits not exceeding 120 amperes and protected at not more than 150 amperes as follows: […] (3) Where installed in low-pressure water heater tanks open-outlet water heater vessels / Informational Note: Low-pressure and open-outlet heaters are atmospheric pressure water heaters as defined in IEC 60335-2-21”. Without having access to that IEC standard, which I don’t see on Carl’s site, one might have no way of knowing whether one’s tank qualifies. (They may have labeled that an “informational note” as a cop-out, to avoid bringing the IEC text into the public domain; but it’s obviously normative rather than merely informational.)
secret laws!
Oh man, I’ve been after this one for a long time. 25 years ago I encountered some NFPA (fire) regulations that were essentially hidden by reference in to state law. It was not possible to pass a public exam using the available materials.
South Carolina is the worst, they still claim state copyright on their law corpus.
Georgia among many other states, has private profit organizations that claim ownership of administrative law findings.
Everyone should know, the law as it stands today is the legislative text plus the administrative findings.
California divorce law literally charges every week in random corners and it is impossible to keep up with it.
What a streaming pile of crap! But it’s not helped by secret laws and hidden proceedings.
Assholes.
I'm seeing this one
I’m an old Architect. I’ve been following public.resource.org on this for years, and they are heroes.
The code groups are driven by private interests, which is bad enough. It’s often an “American Pipe Manufacturers Association and Plumbers’ Union deciding what sort of pipe must be used” sort of work-product. Then let’s create even more code standards by reference, and you have to pay for those also.
This thing of adding Industry Standards by reference in codes has exploded in the last few code cycles. It used to be that the codes spelled it out and that was that.
To have to pay for access to a lot this is an insult, as the standards are often written by the manufacturers and their associations, and are structured to force adoption of products that meet those standards, which are naturally tailored to the products they are selling. So they’ve already scored their payday.
What’s even funnier is my clients think the codes are written by the government (pronounced Gummint). When they go off about how they hate all this stuff, I tell them the codes are written by private interest groups, not the Government, AND THAT’S WHY THEY SUCK. And I get a most blank stare – They think I’m a lunatic. That’s not how it plays on Fox News. Welcome to Idiocracy.
I hope this dies, but I’m not hopeful. This is the kind of crap law that flies under the radar because no one gets it, lawmakers feel like no one cares about it, so let’s follow the money and go home.