from the bad-ansi,-bad dept
You would think that “the law” is obviously part of the public domain. It seems particularly crazy to think that any part of the law itself might be covered by copyright, or (worse) locked up behind some sort of paywall where you cannot read it. Carl Malamud has spent many years working to make sure the law is freely accessible… and he’s been sued a bunch of times and is still in the middle of many lawsuits, including one from the State of Georgia for publishing its official annotated code (the state claims the annotations are covered by copyright).
But there’s another area that he’s fought over for many years: the idea that standards that are “incorporated by reference” into the law should also be public. The issue is that many lawmakers, when creating regulations will often cite private industry “standards” as part of the regulations. So, things like building codes may cite standards for, say, sheet metal and air conditioning that were put together by the Sheet Metal and Air Conditioning Contractors National Association (SMACNA), and say that buildings need to follow SMACNA’s standards. And those standards may be great — but if you can’t actually read the standards, how can you obey the law. At one point SMACNA went after Malamud for publishing its standards. And while they eventually backed down, others are still in court against Malamud — including the American Society for Testing & Materials (ASTM), whose case against Malamud is set to go to trial in the fall.
In the midst of all of this, various standards making bodies, along with the American National Standards Institute (ANSI), have been working over time to get the American Bar Association to adopt a proposal that limits publication of standards that are incorporated by reference. ANSI has pushed for a solution it prefers called “reasonable availability,” in which the standard-makers decide by themselves how best to make the standards “available.” ANSI, for example, hosts a bunch of incorporated by reference standards on its website — but the only way to read them is to install a special kind of DRM (Windows and Mac only) that makes the documents purely read only. You are not allowed to save them. You are not allowed to download them permanently. You are not allowed to print them. And it’s not all standards that are incorporated by reference. Why do they do this? Well, most of them sell their standards to professionals who need to buy them, and they don’t want to give up on that revenue source (especially once those standards are incorporated by reference because at that point they become mandatory).
Either way, there was an attempt to push through a bad proposal at the ABA, getting it to take an official stance on standards that were incorporated by reference, but the first attempt was denied when various parts of the ABA pointed out that only a small group had worked on the issue. A larger task force was formed, but oddly, that task force was amazingly one-sided, including a number of people connected to ANSI or its supporters (including its former chair, Oliver Smoot, and its General Counsel, Patricia Griffin). Malamud asked multiple sections of the ABA if he could be a part of the working group and was denied. Not surprisingly, the final recommendation, which the ABA is about to consider next month, does not recognize that standards incorporated by reference should be widely and freely available, since they are the law. Instead, it takes a much more restrictive approach, whereby such standards would need to be made available (an improvement from the current situation), but that availability can still be in a very restrictive and locked down manner (such as with DRM and limitations).
The fact that it takes a small step in the right direction already has ANSI upset, and it’s whining to its members asking them to tell the ABA not to support this proposal, dropping all sorts of FUD about how it will kill off various standards bodies, and complaining that the process by which this proposal was created was “closed” (leaving aside that ANSI and its friends made up a decent portion of the folks on the working group). Malamud has now sent a massive book detailing all of the problems with the proposal and noting that supporters of it are trying to rush it through, potentially looking to influence some of the lawsuits that he’s currently involved in (such as the one about to go to trial). Some task force members raised the concern that it seems weird for the ABA to stake out a position on an issue that is about to be resolved by the courts. Either way, somewhat amazingly, both Malamud and ANSI agree that they don’t want the ABA to accept the current proposal — but for wildly different reasons.
Malamud’s packet is impressive in the details and evidence that it presents. But his major complaint is that the ABA is making a huge mistake in trying to “balance” the interests of standards bodies that get money from locked up standards and the public. There’s no need for balance here. General common sense says the public should win here and the law itself should be public and freely accessible. But that’s not how the task force looked at this:
Think for a moment about the interests that are being ?reconciled.? On the one side are the
proprietary interests of a few nonprofit organizations, organizations that eagerly seek to have
some of their standards incorporated into law, and also profit greatly from the sale of numerous
products, such as the sale of non-mandatory standards, training, and certification. Nonprofit
organizations such as ANSI have done quite well under the current system, paying million-dollar
salaries to their executives and receiving numerous government subsidies, plus the all-important
market positioning they get from being an official provider of an important segment of federal
law. This is an enviable market position for a nonprofit, and they have profited handsomely from
What is being balanced against those ?proprietary interests? are the rights of the American
people to read and speak the law. Joe S. Bhatia, the president of ANSI, put it well when he stated
clearly that ?a standard that has been incorporated by reference does have the force of law, and it
should be available.? These standards are integral to the regulations, no different than any other
edict of government. Public safety laws are too important to be carved out as a special category
of edict of government, a category subject to arbitrary limitations on use.
The way that ?balance? was struck is what disturbs those of us who wished to participate. The
task force is asking the ABA House of Delegates to endorse severe restrictions on how citizens
can access regulations, in the form of ?read-only? documents on the Internet. The term ?readonly?
is a term that doesn?t make any sense to those of us who work on the Internet. What are
agreement, coupled with technical restrictions enforced by ?Digital Rights Management? (DRM)
technical measures. But the law is not a Hollywood movie and it is not a Tom Clancy novel. The
law is special in our democracy, or in any society that observes the rule of law. The law belongs
to the people and edicts of government are not subject to copyright under long-standing doctrines
of common law and the clear and unambiguous policy of the U.S. Copyright Office.
And really, the principle here is pretty clear and shouldn’t involve that much debate. If it’s included as part of the law, it needs to be widely and freely available.
For those of us in the American Bar Association, the concept of ?read only? flies directly against
the work practices of members of the bar who must use the law to do their jobs. Lawyers do not
simply read the law, they cite the law and copy it, they publish extracts in documents such as
briefs, treatises, and newsletters. If we entertain the notion that a category of our law requires a
license in order to repeat those laws?and that is precisely the position today of ANSI and its
fellow SDOs?the bar will be faced with a situation where permission to use the law may be
granted only after the extraction of unreasonable rents and a request for permission, which may
be arbitrarily granted or refused. This is not a theoretical situation; it is the current stance of the
organizations that drafted this resolution and they are proposing that Congress codify those
Most disturbing in the resolution that the ABA is being asked to endorse is the idea that the right
to speak the law?to post it on the Internet in a transformative fashion that allows others to use it
more effectively?belongs to a single private party, and that private party may require a license
before others are permitted to work with the material. Just imagine if John B. West had needed a
license before including court opinions in his National Reporter System, an innovation that
became central to the practice of law in the United States. Allowing only a single party, or those
to whom they arbitrarily grant a license, to control access to primary legal materials deliberately
retards innovation in order to maximize revenue through a monopoly over crucial components of
federal public safety law. Putting the brakes on innovation for presentation of the law not only
hurts democracy, it hurts the legal profession, depriving lawyers of better tools and services.
The packet that Malamud put together also includes some of the emails that were sent around as part of the working group’s deliberations, including one rather incredible one in which ANSI board member Dan Bart of Valley View Corporation, completely mocks the idea that standards that are part of the law should be available for free — saying that “some people are still clamoring for free beer and free sex too.” Apparently, this individual feels everyone should pay for sex.
Even ignoring what one hopes is an inadvertent slip up in logical arguments, the email completely ignores the issue. People aren’t just asking for random stuff for free — they’re asking for the law to be freely available to the public. If you don’t want that to happen, don’t get your standard included in the law.
If you go through the emails included in the packet there are even more details, including the co-chair of the ABA’s SciTech Technical Standardization Committee stepping down for being effectively ignored during the process of deciding on the resolution and not allowed to join the working group.
The whole thing is a mess. It’s not even clear why the ABA should be considering this point at all. And, if it must consider it, why would it not support the most obvious conclusion: if it’s a part of the law, it’s part of the law and needs to be widely and freely available, not locked down by DRM.
Filed Under: carl malamud, dan bart, incorporated by reference, joe bhatia, law, public access, standards
Companies: aba, ansi