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 https://law.resource.org/pub/us/cfr/ibr/001/aera.standards.1999.pdf 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: http://www.aera.net…
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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  1. icon
    John Fenderson (profile), 29 May 2014 @ 8:50am

    Re: Re:

    The government does not give me, or anybody, any rights. The government does provide a legal mechanism to allow your rights to be enforced, but that's a different thing. If you can do something solely because the government says you can, it's not a right, it's a privilege.

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