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.

Last week, the US House of Representatives Judiciary Committee voted to advance the Protecting and Enhancing Public Access to Codes Act, or the Pro Codes Act (H.R. 1631), to the full House. The bill would extend copyright protection to codes (such as building codes) that are developed by standards development organizations (SDOs) and incorporated by reference into local, state, and federal laws, as long as the SDOs make the codes “available to the public free of charge online in a manner that does not substantially disrupt the ability of those organizations to earn revenue.”

This is the latest development in a long-running battle between SDOs and public interest groups that have posted online standards incorporated by reference. SDOs have sued these public interest groups for copyright infringement, and the public interest groups have argued that once the standards are incorporated by reference, they lose their copyright protection. The public interest groups have argued in the alternative that the fair use right permits the online posting of the standards. The courts have ruled in favor of the public interest groups on the fair use theory without addressing the protectability argument. The Pro Codes Act seeks to foreclose the protectability argument without directly implicating the fair use theory.

The SDOs supporting the Pro Codes Act assert that it would increase access to the law by incentivizing the SDOs to provide online “reading rooms” where the public could read the standards incorporated by reference. However, such reading rooms are unnecessary because public interest groups already provide free online access to the standards in more usable formats. As Corynne McSherry, legal director at the Electronic Frontier Foundation (EFF), stated: “This legislation is a solution in search of a problem: at least one public interest organization is already providing much better access to the law, also for free, with no financial impact on the standard organizations.” In 2023, McSherry successfully represented Public.Resource.Org in ASTM v. Public.Resource.Org, where the US Court of Appeals for the DC Circuit held that fair use permitted Public.Resource.Org to post online codes incorporated by reference because it served a nonprofit, educational purpose.

During last week’s markup of the Pro Codes Act, Representative Zoe Lofgren introduced dozens of amendments to improve the bill, one of which would codify the ASTM precedent established by the DC Circuit. Unfortunately, the committee rejected this amendment. (In fact, the committee voted down all of Lofgren’s amendments, except for one that would require the Government Accountability Office to study the effects of the bill.)

Rep. Lofgren also entered into the record an opposition letter in which a coalition of libraries, civil society, disability rights groups, and others argue that providing free access to the law furthers the fundamental purpose of copyright, which is to allow public access to knowledge. Some of the letter’s signers also made this point in an amicus brief in ASTM v. Public.Resource.Org:

The Copyright Act ultimately aims to achieve the constitutional goal to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art 1, cl. 8, sec. 8.

During last week’s markup, some members of the House Judiciary Committee displayed a fundamental misunderstanding of copyright law. Proponents of Pro Codes claimed that the bill would strike a balance between copyright law and public access to information. But copyright law and access to information are not in tension; facilitating access to information is the constitutional purpose of copyright, as the library and civil society groups wrote in their brief in support of Public.Resource.Org.

Some members of the committee tried to parse standards incorporated by reference from other elements of the law. But as Rep. Lofgren rightly noted, in 2020 the Supreme Court reaffirmed the “government edicts doctrine” that works created by government officials in the course of their official duties are not copyrightable. Accordingly, when a work is incorporated by reference into an official government document it has the force of law and belongs in the public domain. In 2019, the Library Copyright Alliance (LCA) filed an amicus brief in State of Georgia v. Public.Resource.Org asking the Supreme Court to affirm this reasoning, and explaining how libraries rely on the government edicts doctrine to preserve and provide access to the cultural record, including all elements of the law.

Another flawed argument by lawmakers at the Pro Codes markup is that standards incorporated by reference is an unfair “taking” of the SDOs’ copyrights under the Fifth Amendment. As the lawmakers’ argument goes, governments must compensate property owners when they take over private property for public use under eminent domain; similarly, the government should extend copyright to the SDOs in exchange for the use of their standards. But this analogy falls apart because there is no reluctance on the part of the SDOs for the adoption of their standards; in fact, the SDOs actively lobby governments to adopt their standards.

A related argument by supporters of the Pro Codes Act is that the SDOs provide a valuable service, and therefore they deserve a revenue stream in exchange for their contribution to the public good. But copyright law does not grant copyright to reward hard work (Feist Publications v. Rural Telephone Service). Further, the DC Circuit Court found that although Public.Resource.Org has been posting incorporated standards for 15 years, “the plaintiffs have been unable to produce any economic analysis showing that Public Resource’s activity has harmed any relevant market for their standards. To the contrary, ASTM’s sales have increased over that time.” The SDOs can also derive significant revenue from selling training materials and programs. SDOs do not need a copyright incentive; the development of standards advances the economic interests of their members.

Additionally, Rep. Lofgren pointed out that, in 2020, the Supreme Court in Georgia v. Public.Resource.Org found constitutional limits to legislatures’ ability to expand copyright. Chief Justice Roberts stated “no one can own the law” and reaffirmed that if “every citizen is presumed to know the law, … it needs no argument to show … that all should have free access” to its contents. Pro Codes would be unconstitutional under the First, Fifth, and Fourteenth amendments, which guarantee the public’s rights to read, share, and discuss the law.

It is worth noting that several House Judiciary Committee members made nearly identical arguments in favor of the bill, and I assume the standards development organizations circulated talking points in advance of the markup. We know that passing the Pro Codes Act is a major legislative priority for the SDOs.

ARL and our fellow advocates are disappointed that the Pro Codes Act will advance to the House, particularly since the House did not hold a hearing on the bill. We remain grateful to Representative Lofgren, who has defended copyright law against overprotection for decades.

Katherine Klosek is the Director of Information Policy and Federal Relations at the Association of Research Libraries. This post originally appeared on the ARL’s site.