Federal Court Basically Says It's Okay To Copyright Parts Of Our Laws

from the incorporation-by-reference dept

For many years, we've written about Carl Malamud and his non-profit organization Public.Resource.org, which goes to great lengths to make sure that the law and other government documents are widely available to the public. While he's gotten lots of attention for battling states over their claims to hold a copyright in the law, perhaps his biggest fight has been over the question of whether or not private standards that are "incorporated by reference" into the law, are still covered by copyright. And, unfortunately, the federal district court in Washington DC has just ruled against him, and effectively said it's okay to lock up some important elements of the law with copyright. This is bad news.

Some background: as you probably know, there are tons of standards bodies out there who create various standards. Most techies are quite familiar with various technology standards, developed by various groups. But standards obviously go way beyond just the tech industry. Think: building codes for plumbers and electricians. These are often developed by independent, private bodies. Of course, you may also realize that some of these standards are in the law as well. These are generally known as "incorporated by reference." That's just a fancy way of saying that a private group created a standard and then lawmakers put into the law "this thing we're regulating needs to meet those standards." So, for example, fire codes may be developed by a private body, but then governments say that any building has to meet those standards. Voila: those standards are "incorporated (into the law) by reference."

The question, though, is how accessible are these standards? Many of the standards bodies that create those standards like to sell them. That's often how they make their money. But that seems to be in fairly dire conflict with the idea that the law should be publicly accessible. It's fairly difficult to argue that the rule of law is paramount when you can't even see the law without having to buy a bunch of expensive standards. To deal with this, many regulators and standards bodies have come up with awful hedges -- which basically say that any such standard incorporated by reference must be "available to the public," but they allow that availability to be insanely limited. So, for example, the EPA basically says, sure, you can see all of the standards, if you trek to DC and go to a special reading room (or a few other limited places):

Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 11 CFR part 51. To enforce any edition other than that specified in this section, the EPA must publish notice of change in the Federal Register and the material must be available to the public. All approved material is available for inspection at the EPA Docket Center, Public Reading Room, EPA WJC West, Room 3334, 1301 Constitution Ave. NW., Washington, DC, telephone number 202-566-1744, and is available from the sources listed below. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

And, of course, even then, there are serious restrictions on what you can do. Many of the reading rooms are "read only." You can read them, but you can't print or download electronic versions. As you can imagine, that can be fairly useless. Imagine you're trying to build a house, and every time you want to check if something is up to code, you have to go to DC to a special reading room, find the standard, check the details, but you can't print it out or download an electronic version.

You'd probably think that's a pretty silly way to have laws.

At least, that seems to be what Malamud thought, so he bought copies of a whole bunch of these standards, scanned them, and put them online, arguing that once they're incorporated by reference into the law, they are a part of the law and thus copyright shouldn't apply. The big standards bodies, including the American Society for Testing and Materials (ASTM), the National Fire Protection Association (NFPA), the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), the American Educational Research Association (AERA), the American Psychological Association (APA), and the National Council on Measurement in Education (NCME) sued Public.Resource.org for copyright infringement (and for some of them, trademark infringement). The plaintiffs were lumped into two groups -- the ASTM group (covering the first three groups listed above, which filed for copyright and trademark infringement) and the AERA group (covering the last three groups, which filed for just copyright infringement).

Public Resource made a number of arguments for why the standards bodies shouldn't win, but the court doesn't buy them. It's not impressed by the idea that since many people worked on these standards, the bodies don't really hold the copyrights. Malamud also argued that there's no valid copyright in standards, because there's nothing copyrightable in a bunch of standards, which are nothing more than "methods or systems" -- comparing it to the famous Feist case that said a telephone book isn't copyrightable, because it's just a collection of facts. And, of course, "methods and systems" are not copyrightable material under Section 102(b) of copyright law (this is the same issue that was debated in the Oracle/Google case over whether or not APIs were covered by copyright).

Unfortunately, the court doesn't see it that way for standards. It notes that even under Feist, standards meet the "extremely low" bar of creativity to be covered by copyright. And, it completely disregards the 102(b) argument as a misreading of the law, saying that it only bars trying to copyright the system or method itself, "not the written work explaining or describing that method." I can see that argument, though I'm still left wondering who actually thinks that copyright is the necessary incentive to create a building code. But, unfortunately, that's not quite how copyright law works these days.

The bigger issue is over what happens to the copyright once it's incorporated by reference into the law. Malamud's lawyers argued that it should be considered public domain. The court says... sorry, nope. As you surely know, copyright law says that works made by the federal government are not subject to copyright and are in the public domain. But that only applies to works actually created by the government. It has long been recognized that works created by others, and then assigned to the US government allow the government to retain the copyright. We can argue that this is dumb and bad policy (because it is), but it's pretty well-recognized. Here, Malamud's lawyers argued that even so, Congress intended things directly referenced into the law to be in the public domain. But the court basically says that Congress had a chance to weigh in on this and didn't... so, no dice:

Congress was well aware of the potential copyright issue posed by materials incorporated by reference when it crafted Section 105 in 1976. Ten years earlier, Congress had extended to federal agencies the authority to incorporate private works by reference into federal regulation.... However, in the Copyright Act of 1976, Congress made no mention of these incorporated works in § 105 (no copyright for “any work of the United States Government”) or any other section. As the House Report quoted above indicates, Congress already carefully weighed the competing policy goals of making incorporated works publicly available while also preserving the incentives and protections granted by copyright, and it weighed in favor of preserving the copyright system....

However, recognizing the importance of public access to works incorporated by reference into federal regulations, Congress still requires that such works be “reasonably available.” ... Under current federal regulations issued by the Office of the Federal Register in 1982, a privately authored work may be incorporated by reference into an agency’s regulation if it is “reasonably available,” including availability in hard copy at the OFR and/or the incorporating agency.... Thirteen years later, Congress passed the National Technology Transfer and Advancement Act of 1995 (“NTTAA”) which directed all federal agencies to use privately developed technical voluntary consensus standards.... Thus, Congress initially authorized agencies to incorporate works by reference, then excluded these incorporated works from § 105 of the Copyright Act, and, nearly twenty years later, specifically directed agencies to incorporate private works by reference. From 1966 through the present, Congress has remained silent on the question of whether privately authored standards and other works would lose copyright protection upon incorporation by reference. If Congress intended to revoke the copyrights of such standards when it passed the NTTAA, or any time before or since, it surely would have done so expressly.

Again, based on the legislative history, perhaps that's a reasonable, if unfortunate, reading of the law. And it's something that Congress should fix, but almost certainly won't.

But, taking a step back from all of this, there's still the problem that it's crazy. The idea that the law itself should be locked up under copyright is immensely problematic for a whole host of other reasons. And Malamud and his lawyers pointed this out, arguing that there's a due process issue here, where using copyright to block people from accessing the law deprives them of their due process. But, the court isn't impressed, basically saying other court opinions haven't bought this kind of argument, so it won't either. And, further, the court seems to feel that those limited reading rooms or fee-based copies are enough access:

... there is no evidence here that anyone has been denied access to the standards by the ASTM Plaintiffs or AERA Plaintiffs. Instead, Defendant simply argues that the public should be granted more expansive access.

Another argument is that once incorporated by reference, under the merger doctrine, the "law" and the creative expression are so tightly intertwined (i.e., "merged") that the law is now factual and thus not subject to copyright law. The court says "eh, we're not going to look at that, because it doesn't matter either way."

The court declines to resolve this merger doctrine issue, since under either approach, the standards maintain copyright protection.

After all that, we finally get to the fair use argument. Public.Resource argues that what it's done isn't copyright infringement, even if the work is covered by copyright, thanks to fair use. The court does a four factor analysis... and says "no fair use." On the big question of whether or not it's transformative, Public.Resource tried to argue that making the works more accessible (including turning them into digital versions that could be searched) was transformative. The ruling in the Google Book scanning case would seem to support that, but the court says no, because it doesn't see turning a written work into a searchable HTML file as enough of a transformation.

While it appears Defendant may enable blind individuals, like all other individuals, to access the standards at no cost, they still may have to take additional steps like OCR processing or converting to a different file type, as well as using additional screen reader programs in order to access the standards. There is no evidence that this would not be possible with Plaintiffs’ PDFs or by scanning Plaintiffs’ hard copy standards. In Defendant’s view, taking the first step or two towards making the standards entirely accessible to those with visual impairments is enough to have transformed the standards. This attempts to stretch logic, and certainly the doctrine of fair use, too far. Defendant has not offered a sufficiently new purpose to render the use transformative, and this weighs against a finding of fair use.

Within this analysis, I'd argue that the court goes way too far in dismissing the comparisons to the Google Books ruling and the ruling in the Swatch case that said that posting full transcripts of analyst calls can be fair use. The court here seems overly nitpicky, saying that Google Books doesn't count because it doesn't show full works, and Swatch (which does show full works) doesn't count because that work wasn't available in any other way (though I'm not sure what that really has to do with the fair use analysis).

The court also says that "the nature" of the work goes against Malamud, which surprises me. You'd think that the fact that these works are a part of the law would push it the other way. But, instead, the court misreads the nature of the Constitution to misunderstand what the framers meant by the word "science." This is unfortunate:

Defendant argues that Plaintiffs’ standards are “factual,” both because they are highly technical and because they are “the law.” However, the Constitution explicitly states that copyright exists to “advance the progress of science and the useful arts.” ... That Plaintiffs’ works involve technical scientific concepts and guidelines does not push it away from the core of intended copyright protection, but actually brings it closer. Plaintiffs’ standards are vital to the advancement of scientific progress in the U.S. and exactly the type of expressive work that warrants full protection under the Constitution and the Copyright Act.

This is just wrong. At the time the Constitution was written "science" had an entirely different meaning. It meant learning. That's entirely different than something that is mandated by law.

On the third factor of the "amount" of the work copied, obviously here it's all of it, and the court says that there is not "a single case" that supports the Defendant's view that because the entire standards were referenced into law, it's fair use. But that's also wrong. Again, the Google book scanning and the Hathitrust rulings both made it clear that using the whole work was fine because "it is literally necessary to achieve" the purpose they were looking to achieve.

While I found the court's reasoning on the copyrightability of the standards more persuasive, the fair use analysis seems incredibly weak -- and hopefully the appeals court will overturn it.

The only "win" for Malamud was that the argument for contributory infringement failed, but for fairly weak reasons, leaving it open to the possibility that a more complete attempt to make that claim could work.

Finally, the court also says that for the ASME plaintiffs, what Malamud did is also trademark infringement. I won't even bother getting into why, but this result was more or less expected given the results of the copyright part of the case.

The court then grants an injunction, basically ordering Malamud to delete all these standards from the internet. It includes a fairly bizarre determination of whether or not the public will be harmed by this:

Additionally, the public must not be disserved by the issuance of an injunction. Here, the public interest is served by the policy interests that underlie the Copyright Act itself, namely the protection of financial incentives for the continued creation of valuable works, and the continued value in maintaining the public-private system in place in the U.S. to ensure continued development of technical standards.

Did you get that ridiculous sleight of hand? The public is served by no longer having access to the law because it's better for some private organizations to get rich off of the standards that are a part of the law, or else such standards might not be developed. Huh?

I'm guessing that this case will be appealed, and hopefully the appeals court is more receptive to the fair use arguments. In the meantime, though, this seems like a pretty big loss for those who believe not just in the rule of law, but the idea that the law ought to be accessible to the public if it's to be respected.


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  • identicon
    Anonymous Coward, 3 Feb 2017 @ 11:01am

    So you can break the law, because you can't see the laws, or the copyright on whatever is hidden?

    reply to this | link to this | view in chronology ]

    • icon
      Nick B (profile), 3 Feb 2017 @ 11:27am

      Re:

      You aren't breaking secret law, as the laws are available freely and you can access them at a time and place of your choosing just as long as you are current on the $5000 per law yearly subscription fee (other fees may apply, see your Law Sales Lawyer for details).

      Even if you can't afford the $5000/law/year fee, you can always view the laws on the 30th of February between 2am and 2:01am at the Public Law Viewing Stand in the Armys artillery training target area (look for the center of a series of red circles).

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Feb 2017 @ 11:40am

        Re: Re:

        Well you can also get a free bonus introduction when you are arrested for it as well. That part is FREE!!!

        reply to this | link to this | view in chronology ]

      • identicon
        Professional Engineer, 3 Feb 2017 @ 6:56pm

        ACTUAL cost of access to the law

        1 Year Subscription

        NFPA Members:
        $1,345.50
        Non-Members:
        $1,495.00

        This is the actual cost of access to the NFPA codes as published on the NFPA web site.
        http://www.nfpa.org/nfcssallaccess?icid=D621

        Of course you also have to add the cost of access to ICC, IEEE, ANSI, ASHRAE, IESNA, ICEA, NEMA, UL, ETL, ASME, ASTM, AWWA, TIA, EIA standards also.

        That is affordable right?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 5 Feb 2017 @ 11:40pm

          Re: ACTUAL cost of access to the law

          "That is affordable right?"

          No, not really. Not to someone on minimum wage for example. It brings to mind Kafka's "The Gates to the Law are always open, but before them stands a gatekeeper."

          If laws are to be secret, or made prohibitively expensive, then ignorance of the law should be justifiable.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2017 @ 11:39am

      Re:

      well... that is not really that much of an outrage.

      there are already so many laws on the books that you cannot hope to avoid breaking one just on accident anyways.

      Have you ever thrown a battery away for example? How about using an aerosol can in a manor not prescribed?

      Everyone is a fucking criminal waiting to be caught!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 11:08am

    Hey, normally "I didn't know it was against the law" doesn't fly because you're assumed to be responsible and capable of knowing.

    Now that's changed! Maybe this is a great boon to public defense!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 11:11am

    So you can break the law, because you can't see the laws, or the copyright on whatever is hidden?

    You almost certainly will break the law when the law is unknowable, but courts have generally found that inability to know the law does not excuse one from following it anyway. This is another aspect of the insanity of the current system. If inability to know the law were an excuse, large parts of the tax code and Federal criminal law would collapse, since nobody knows the law in full. Even the Congressionally funded experts who were specifically instructed to spend work time analyzing the law came back with a result of failure, asserting it was too hard to catalog in full.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 11:17am

    Ignorance of the fact that your laws are stupid is no excuse.

    Secret laws, secret courts, secret tribunals ... and proles are supposed to be clairvoyant or possibly absorb the secret law contents via osmosis. Regardless, you are guilty when one is violated, even before your trial.

    reply to this | link to this | view in chronology ]

  • icon
    Bamboo Harvester (profile), 3 Feb 2017 @ 11:17am

    BTDT

    Around 1990 I scanned the Town Codes, Zoning, Building, and specialty codes for most of the Towns in Suffolk Cty, NY for the company I worked for.

    Each hardcopy volume had "Copyright XYZ Corp, etc" in it, some as a footer on EVERY page - to "discourage" the Towns themselves from photocopying them.

    We used my scans internally (big rDB using dBaseIV I built for them) as a research tool that put us well ahead of the other companies in the area in the same business.

    We kept it entirely internal to prevent any competitors from taking business from us, but the Town Board members themselves wanted copies. Which, of course, I never released to them because nobody trusts politicians to NOT sell anything not nailed down.

    So the Town Boards started clamoring at the two or three companies that published the printed manuals for electronic copies.

    Which led to us getting sued for copyright violation for every manual.

    The suit was eventually dismissed because we did BUY a copy of each manual (kinda hard to scan them without them...), ONLY used it internally, and never tried to sell or give away a copy.

    Some of the larger National spec guides *are* available in electronic formats now - I have a copy of the NEC, but they're not free, and you generally have to subscribe for updates, which are not cheap.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 11:36am

    Sounds like this judge needs to have every law possible used against them

    For people like this judge to decide on their own to ignore the law, common sense and the right of the people to know their rights, prosecutors should tie him up for the rest of his life on little hidden laws that he violates by simply existing in a modern, overly litigated world.

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 3 Feb 2017 @ 11:51am

      Re: Sounds like this judge needs to have every law possible used against them

      Yep. The best way to get rid of bad laws is to enforce them.

      Or bad court rulings.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Feb 2017 @ 11:56am

        Re: Re: Sounds like this judge needs to have every law possible used against them

        "The best way to get rid of bad laws is to enforce them."

        Incorrect, history teaches a very different lesson. In most cases you only get a sea change when certain people are negatively affected by a law.

        As long as the peasants are the ones being impacted no one gives a damn.

        reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 3 Feb 2017 @ 11:47am

    Franz Kafka and You

    Did you get that ridiculous sleight of hand? The public is served by no longer having access to the law because it's better for some private organizations to get rich off of the standards that are a part of the law, or else such standards might not be developed.

    The federal court jesters (gate keepers) have spoken -- Josef K shall be denied access to the law unto which he has been indicted.

    https://en.wikipedia.org/wiki/The_Trial

    Is it cruel and unusual punishment for a government to tax and lord over it's citizens with implied threats of violence/imprisonment in denying them access to the very laws in which the government (ab)uses to repress their natural rights to life, liberty and pursuit of happiness while being reduced to a state of complete ignorance in all matters of governance?

    reply to this | link to this | view in chronology ]

  • icon
    NeghVar (profile), 3 Feb 2017 @ 11:55am

    Ignorance of the law

    If they want to start copyrighting laws, them I say they abolish "Ignorance of the law is no excuse"

    reply to this | link to this | view in chronology ]

    • identicon
      David, 4 Feb 2017 @ 8:46am

      Re: Ignorance of the law

      Heller's "Catch 22" was a satire, not an instruction manual.

      Man, we really need to get any instance of ironical or satirical material out of the White House library before somebody from the Trump hegemony stumbles over those and starts getting ideas.

      If you see what happened to "1984", you'd just want to make sure they never get their hands on Swift's "A Modest Proposal For preventing the Children of Poor People From being a Burthen to Their Parents or Country, and For making them Beneficial to the Publick".

      I mean, stuff like "There is likewise another great advantage in my scheme, that it will prevent those voluntary abortions, and that horrid practice of women murdering their bastard children, alas! too frequent among us! sacrificing the poor innocent babes I doubt more to avoid the expense than the shame, which would move tears and pity in the most savage and inhuman breast." is straight out their book anyway.

      reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 3 Feb 2017 @ 12:17pm

    Regression to the Mean...ing

    “Standards” do not promote progress. They merely prevent regress.

    reply to this | link to this | view in chronology ]

  • identicon
    Jason, 3 Feb 2017 @ 12:33pm

    Seems to me like they probably went wrong allowing anything to be published in a standard at all. Better to keep all of that knowledge as a trade secret, only to be practiced by those learned few who can pass muster and be brought into the tutelage of a wise old master.

    Did you employ all of the the proper construction guilds to put up your pole barn? Their seal of approval is all you need to prove you meet "the building code". Wait, I don't see a stamp from the wiring clan... That's a fine for sure.

    reply to this | link to this | view in chronology ]

    • identicon
      Paul, 3 Feb 2017 @ 5:25pm

      Re:

      Well if it's a trade secret then your not allowed to enforce it. Even if you move enforcement to the guilds and require a guild lisense to do the work, any final enforcement comes from a legal source and you will be able to say "He refused to give me the access to the law I needed to follow it" - Because he demanded $5000 to change a $10 wall outlet

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Feb 2017 @ 8:31am

        Re: Re:

        I think what is implied is they seek monopoly rights, in order words - you must contract with them or do nothing at all.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 12:55pm

    Abolish Copyright

    Make the world a better place.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 3 Feb 2017 @ 1:32pm

    Ignorance of the Law...

    ever seen a better example?

    Secret courts, secret laws, secret references.

    Its awesome to live in a free society where so many people have found a way to make a buck off of hiding public information.

    Keeping deals for extra income trump the publics right to know. Corporate profits trump public interest every fucking time. Pity that no one is on our side protecting our access to the materials we paid to have created, instead allowing us to have to keep paying for what we should rightly own.

    reply to this | link to this | view in chronology ]

  • identicon
    Christopher Ferry, 3 Feb 2017 @ 1:44pm

    The crux of the argument

    "I'm still left wondering who actually thinks that copyright is the necessary incentive to create a building code."

    I do, because people who write building codes don't work for free.

    I mean, I'd love for the standards to be free and readily accessible to everyone the moment they become part of the law. But then the government would need to pay the standards organizations for the intellectual property they just seized. And since this is a natural monopoly (it's a really bad idea to have competing standards organizations trying to produce the cheapest standards for the government to use) there essentially no way to set a price. Or, you could just make all the standards organizations part of the government (but then what about international standards?)

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 3 Feb 2017 @ 2:47pm

      Re: The crux of the argument

      Or they could, you know, just pay for the work done and then make the results public domain.

      Government: We'd like you to develop standards for X.

      Company: Here's the standards you asked for so you can incorporate them into the law.

      Government: Here's your pay.

      It's not like this would be a difficult process, the only change would be that it would be a one-time purchase, not repeated 'licensing' deals.

      reply to this | link to this | view in chronology ]

      • identicon
        Dan Audy, 3 Feb 2017 @ 8:53pm

        Re: Re: The crux of the argument

        That is what governments in civilized countries do. But it is hard to expect much from a backwater like the US.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2017 @ 2:47pm

      Re: The crux of the argument

      No one asked them to work for free, but when someone is tasked to create something for the greater good, and it becomes a part of the law, you don't get to keep profiting from copyright on it.

      You don't get to make money forever on something you did once. This idea of propping up existing business models is what kills off governments and makes the world a worse place, not better.

      reply to this | link to this | view in chronology ]

      • identicon
        Liberi Fatali, 8 Feb 2017 @ 12:01pm

        Re: Re: The crux of the argument

        "No one asked them to work for free, but when someone is tasked to create something for the greater good, and it becomes a part of the law, you don't get to keep profiting from copyright on it."

        There's a novel place where they tried this idea, and while I do agree with the crux of the argument, I feel this logic is telling them exactly that. What's the cut off line for the money? A year, a decade, their death? Let's be honest here and recognize they'd be screwed over their money over laws that they helped create.

        We allow the politicians not only to get far better healthcare at the cost of taxpayers, but salaries that would make any ordinary private individual jealous. Why do they get to have the right to continuously profit on sitting their butts while the rest of America is held at gunpoint by laws?

        Why are public officials allowed to profit off the backs of their constituents without being representative of them and make reckless decisions that will never impact their daily lives while they live far off from where most people live?

        But if a private individual or companies not allowed to do the same thing, it's wrong.
        It's only when power isn't in someone's grasp that they complain. Never any principles whatsoever. Until we answer the issues with the public sector that are long overdue AS WELL as this , there's no point in addressing this issue by far because in this ludicrous thought process, only the government can do anything.

        "You don't get to make money forever on something you did once."

        This is faulty logic.

        Do you have an ignorance of property law, or do you have an ignorance of property law?

        Tell that to Hollywood, Youtubers, artists and other professionals who do exactly that, and ask them to have their products for free. See when they laugh in your face.

        My gripe with copyright laws is how Hollywood companies, let alone cartoon studios, own all the rights to people's individual creations. I find it ludicrous and unethical how if you create characters for a company in the United States, a company own them, not you. As someone whose developing their chops to be a filmmaker in animation and live action potentially down the road, this is discouraging if I don't really own the rights to content I have myself created.

        In Japan, they treat their creators with respect. As far as I know they have rights over their content, who can adapt it, what can be done with it, etc.

        You might not like current copyright law, but as it stands, no one is entitled to another's property. This notion of entitlement of owning things you've never had the sense to create or make yourself is sad and pathetic. Doe anyone honestly believe that people in the past would appreciate people today stealing their work if they existed in the present?

        There's a reason why copyright law existed in the first place and it's for this reason. People would steal other people's content wholesale and sell it as their own, same as some do today, that's when we ultimately consider digital content equivalent to physical. Since it's commonly treated as second class via property rights at the moment as it's at the pleasure of companies, I have never considered piracy to be a major issue.

        If companies were enforced to treat digital content as equal to property rights as per say buying a copy of a book, DVD, or whatever else, then I would understand the arguments against piracy. The only people who are impacted by piracy are those who ARE INDIE and upstart artists and content creators.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2017 @ 6:25pm

      Re: The crux of the argument

      People who write building codes are generally volunteers. They may be paid by their employers who have an interest in seeing the codes changed to their benefit, but the standards development organizations do not pay people to write the codes they sell.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Feb 2017 @ 8:36am

        Re: Re: The crux of the argument

        No, they steal time and knowledge from "volunteers" and then turn around and sell the charitable work of others for profit. I understand their reasoning when they attempt to defend it, because it's a sweet deal if you can get it.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Feb 2017 @ 9:45am

          Re: Re: Re: The crux of the argument

          Just create a WikiCode site for each jurisdiction...

          electrical.ga.us.wikicode.org
          plumbing.ga.us.wikicode.org

          The Internet will happily analyze & annotate

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2017 @ 6:48pm

      Re: The crux of the argument

      No one should have to pay or give anything in order to be informed about what the law requires of them. Demanding any form of payment for such information is outrageous and you should know that.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 3 Feb 2017 @ 2:51pm

    'Beware of the Leopard'

    ... there is no evidence here that anyone has been denied access to the standards by the ASTM Plaintiffs or AERA Plaintiffs. Instead, Defendant simply argues that the public should be granted more expansive access.

    “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 flashlight.”

    “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, The Hitchhiker's Guide to the Galaxy

    reply to this | link to this | view in chronology ]

  • identicon
    Tibb, 3 Feb 2017 @ 4:02pm

    2 Poor to law

    At some point does this mean you can be too poor to know the laws?
    Can you be convicted for being too poor to know something is illegal?

    reply to this | link to this | view in chronology ]

    • identicon
      Paul, 3 Feb 2017 @ 5:28pm

      Re: 2 Poor to law

      Technically "Excessive Fines and Fees are illegal" but I think that's only when imposed by a court of law, not required by the state through a 3rd party.

      I guess you can say the 3rd party is an agent of the state, but even then this is code enforcement, not a criminal case.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2017 @ 6:53pm

      Re: 2 Poor to law

      Yes, in fact we do have debtors prison here in the good old us of a. There are a lot of words written in a lot of places that claim this is unconstitutional, unlawful, and outright wrong ... but do you think any of that well intended writing means anything at all to those hell bent upon filling their coffers with your hard earned assets? No - it does not. They are greedy little shits and they do not care about anything other than themselves.

      reply to this | link to this | view in chronology ]

  • identicon
    Professional Engineer, 3 Feb 2017 @ 6:17pm

    Lack of access to the law makes you less safe

    ..."there is no evidence here that anyone has been denied access to the standards"...

    Everyone will be less safe due to this ruling.

    I design electrical power systems. I simply can not afford to buy copies of every code that applies to my work. I buy a copy of the electrical code every three years and a few other building codes.

    For the rest of the codes, I either use outdated codes or assume the codes I don't have access to are not very significant.

    And unfortunately for the public, the building code enforcement officials don't have access to the law either. Consequently, the codes are not enforced.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2017 @ 6:55pm

      Re: Lack of access to the law makes you less safe

      Maybe this angle will be used by trump in order to get asbestos off the list of shit that kills you.

      reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 6 Feb 2017 @ 6:06am

        Re: Re: Lack of access to the law makes you less safe

        I bet you dollars to doughnuts there are asbestos denialists who insist that asbestos is good for you and that trying to ban it is liberal nannying.

        reply to this | link to this | view in chronology ]

  • icon
    Richard Bennett (profile), 3 Feb 2017 @ 6:45pm

    It's a shame that it costs money to make things. This partially remedied by forcing taxpayers to cover the costs of creation through taxes and/or fees. That works for laws and regulations.

    Standards are different because they're developed by private parties. Their costs are borne in a variety of ways that will come to the author with a bit of reflection.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2017 @ 7:00pm

      Re:

      So, rather than the government hiring experts to create building standards (for hire means the contractor does not get "IP") ... and paying them - once, some people think we the little folk should pay each and every time we need to know what the fucking law says.

      reply to this | link to this | view in chronology ]

      • icon
        Richard Bennett (profile), 3 Feb 2017 @ 7:17pm

        User fees

        Yes, this is like paying to get into a public park. It's called a "user fee".

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 3 Feb 2017 @ 9:18pm

          "To access the law and standards you are legally obligated to follow, please insert $1500."

          With the tiny little difference that public parks require constant maintenance and people to keep them in good condition, which the user fees are used to pay for, whereas if a standard 'wears out'(say by the creation of a new and better one) then it would be simple enough to make another single payment for those companies creating them and releasing the result into the public domain.

          There's also the not so insignificant difference that not paying the fee for a public park simply means you're not allowed in, you're not kept in the dark on something with safety and legal risks.

          They could easily switch to a single payment system, where they're paid for their work once and if they want to get paid again they have to do more work, but that would remove that easy source of money they currently get from charging people for access to the law, and we can't have that now can we?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Feb 2017 @ 10:08pm

          Re: User fees

          Yes, this is like paying to get into a public park. It's called a "user fee".

          Fees for public parks go to the government, not private companies. And there are no laws requiring people to go to the parks.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Feb 2017 @ 10:45pm

          Re: User fees

          I am not an expert on public parks, you might be - idk. However, I find it difficult to believe that entrance fees at public parks are much over twenty bucks and certainly nowhere near $1495.00. Also, no idea where you live, but around here many public parks do not have entrance fees as they are funded via local means. But this all sidesteps the issue doesn't it? Good deflection there, I still need to pay in order to find out what the law requires of me and you think this is ok.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Feb 2017 @ 8:02am

      Re:

      dirty little secret is that by keeping standards development in private hands they can smuggle toxic stuff into building codes. such as particle boards laced with formaldehydes used in houses.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Feb 2017 @ 5:37am

      Re:

      Because if nobody could own the copyright to law for one's lifetime plus seventy years - why, who would ever want to make laws?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 7:35pm

    A case for civil disobedience and/or jury nullification if I ever heard one.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 3 Feb 2017 @ 10:05pm

    Let's join forces...

    and write all of the worst laws we can think of. Then copyright them.

    If you can't join 'em, sue 'em.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Feb 2017 @ 8:26am

    read page 54. total bull shit. argument upside down. crooked judge.

    reply to this | link to this | view in chronology ]

  • identicon
    Riesling, 4 Feb 2017 @ 9:40am

    WikiLaw would be a great alternative!

    Just create a WikiLaw site for each jurisdiction...

    us.wikilaw.org
    ga.us.wikilaw.org
    atlanta.ga.wikilaw.org

    The Internet will happily analyze & annotate!

    See https://meta.m.wikimedia.org/wiki/Wikilaw

    reply to this | link to this | view in chronology ]

  • icon
    Vikarti Anatra (profile), 5 Feb 2017 @ 3:22am

    Well, it's only USA's idea.
    If you have to develop software to work with NFC cards, you very likely need ISO 15693. You have to buy it from ISO. (or try to find working draft or get official version in your local language from your local standards organization).

    If you need to know what exactly C++ IS... you need to pay for ISO C++ standard (or get latest working draft which is very easy and C++ Standard WG suggest this themselves on https://isocpp.org/std/the-standard).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2017 @ 3:34am

    There ought to be a law.

    That is all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2017 @ 7:09am

    Re: If Congress intended to revoke the copyrights

    Congress didn't have to.

    The right to habeas corpus is a natural right, preceding copyright, and any related litigation filed on behalf of copyright.

    The right to address you accusers exists BEFORE you are accused. If an agency of state denies discovery to an accused person preceding an accusation, it still violates article 1 of the Constitution of the United States. (if somebody can cite something on this, it would be helpful)

    That isn't to say that the state can't keep secrets. But if somebody formally ASKS for legal documents pertaining to an activity that may reasonably require legal defense, it is unlawful to deny those documents to them, even if they are as yet uncharged.

    Whereas incorporated standards are law, and whereas those standards must be adhered to in order persue life, liberty, and happiness, therefore restriction of availability for the incorporated standards, is to deny natural human rights.

    I believe is time to return to a form of jurisprudence that we haven't seen since Larry Flynts orange. It is not unreasonable to ridicule the ridiculous, however dressed in pomp. May the sale of rotten tomatoes outside federal courts commence.

    reply to this | link to this | view in chronology ]

  • identicon
    Kevin Curry, 5 Feb 2017 @ 7:35am

    copyright as incentive to standardize

    "though I'm still left wondering who actually thinks that copyright is the necessary incentive to create a building code."

    Knowing this is the way the law works, the first incentive is to make it difficult for competitors of the companies who authored the standard to enter the market. The second is to raise money in the form of dues required to be a member in the standards org. Without paid membership access and utility are restricted to the point of not being useful.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Feb 2017 @ 7:29am

    Permit me to issue and control the copyright of a nation, and I care not who makes its laws!

    reply to this | link to this | view in chronology ]

  • identicon
    Lori, 8 Feb 2017 @ 5:33pm

    I've heard that AMA's ownership of the system of CPT codes (without which no clinic or practitioner can bill Medicare, but is a de facto standard for private insurance too) is rent extraction on a massive scale.

    reply to this | link to this | view in chronology ]


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