EFF fights lawsuit over publishing secret, expensive-to-see laws

From rogue archivist Carl Malamud (who recently liberated a massive trove of expensive standards and regulations that you were legally obliged to comply with, but couldn't see without paying out large sums of money):

The Electronic Frontier Foundation (EFF) asked a federal judge today to protect the free speech rights of an online archive of laws and legal standards after a wrongheaded copyright claim forced the removal of a document detailing important technical standards required by the federal government and several states.

EFF and co-counsel David Halperin represent Public.Resource.Org, Inc., a non-profit organization that improves the public's access to laws and codes that affect their lives. As part of its work, Public Resource acquires and makes available public safety documents such as fire safety codes, food safety standards, and other regulations that have been incorporated into U.S. and international laws. But last month, the association of Sheet Metal and Air Conditioning Contractors (SMACNA) claimed an online post of a federally-mandated 1985 standard on air-duct leakage violated their copyright, and demanded it be removed. The standards are a crucial element of U.S. federal energy conservation efforts and an integral part of model codes such as the International Energy Conservation Code. After a threat of legal action from SMACNA, Public Resource took down the document until a court could affirm its right to publish the information.

“The public has a right to meaningful access to the laws that govern their lives,” said Carl Malamud, the president and founder of Public Resource. “Technical standards like the ones in this document have the force of law, and people need to know them in order to comply with regulatory obligations, keep the public safe, and avoid costly penalties. The right of citizens to read and speak the law is fundamental to an informed citizenry in the United States and throughout the world. Ignorance of the law is no excuse, which means we have to be able to read the law.”

In a petition for declaratory and injunctive relief filed today, EFF and Public Resource asked the court to rule that the posting the standards does not infringe any copyright.

“Building codes and other technical specifications touch our lives every day, and Public Resource is helping to make it easier for us to access and understand how they affect us,” said EFF Intellectual Property Director Corynne McSherry. “We're asking the judge today to let Public Resource continue its important work in increasing the public's access to the laws and regulations that govern us.”

More information from EFF on PRO v. SMACNA

More on public safety codes

Previously on Boing Boing:

March 20, 2012: Liberating America's secret, for-pay laws
May 15, 2012: Publishing America's for-pay, private Laws
August 30, 2012: Revealed at last: India's public safety code for tamarind pulp
December 30, 2012: Public Resource liberates global building codes, include the Eurocode -- free the law!



  1. Ignorance of the law is no excuse, but what about poverty? (Wait, debtors prisons are basically coming back. Never mind.)

    1. As I understand it, these “laws” are building codes and the like. 

      It’s possible for a homeowner to violate the building code with a do-it-yourself repair, but no building inspector is ever going to know.  Also, nobody ever went to prison for violating a building code.

      The people who have a need to know are architects and engineers – and to them, the cost is just a part of doing business.

      1. The building inspector will know when the fire department determines that the wiring wasn’t to code causing the house to burn down and the insurance company will perk up their ears and decide that they don’t owe a dime because codes weren’t followed.

        It is a cost of doing business, but a cost that is just passed on to the consumer.  Shouldn’t the consumer be able to have a look at what they purchased if they choose?

      2. That’s quite true, and I did consider that. If it were otherwise (the traffic code by which you would be judged in random speed traps, for example), I would’ve really leaned in heavy on the fury, but this is more a pain in the ass that needs to change rather than a fascist-commie-pick-your-hated-generic-ism plot against unicorns.

        1. That’s the point I would make. You might have issues when you sell your home. Or perhaps you own an apartment building and you want to do repairs/modifications yourself? You’d have to get it right. Or you own any business and you want to remodel the building yourself.

  2. It’s sickeningly outrageous that there’s ANY law that requires money to be viewed.  That’s so anti-democratic as to be totally broken.

    If the law can’t be freely accessed and read, then the government has absolutely no right using it in prosecution.

  3. Wouldn’t prosecuting someone for violating a copyrighted law or code lead to the text being read in the courtroom and thus entered into the public record?

    Similarly, could a sympathetic Congressman enter the text into the Congressional Record, which is also public? (And you don’t even have to read it out loud on the floor, you can say “please enter this document into the Record.”)

    1. Codes change every two years or so and depending on when you started your project you might actually be using a code several years old.  And then the electrical code isn’t the same book as the stair code, or the fire exit code, or the materials code.  Multiply that times fifty states and it starts to add up rather quickly and more often than that Congressman is going to get reelected.

  4. Ignorance of the law can be an excuse – if the law requires knowledge that the act is illegal.

    A good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable.

    US v Cheek

    See also, Lambert v. California

  5. A large number of codes and standard are developed by nongovernmental organizations that use the purchase price of standards and members’ dues to pay for the development and maintenance of said standards.

    The number of individuals and organization that use some of these standards are limited, so the cost of development and maintenance is spread over a small user base resulting in a high per standard price.

    That said..

    Personally I believe, if an NGO developed standard is adopted by a government and compliance with the standards is mandated by law, the government should be required to pay the necessary licensing fees to purchase and place the standard in the public domain.

      1. So you would prefer the government take someones work without compensation? Intellectual property is property and therefore subject to the laws of eminent domain. If you are suggesting standards developed by NGOs be made public domain without just compensation you are suggesting throwing out the 4th Amendment.

  6. Laws are how we choose to live together.

    They are also how we can protect ourselves.Laws that are not accessible to all and not laws.They are arbitrary and capricious mechanisms of enforcement.

    Laws that you can’t check, regardless of the reason, cost or secrecy, are instruments to subjugate you, blindfold you and screw you.

    If you get something built you have to trust that you’re up to code but I trust no one because if my house burns down, I’m the one stuck with the consequences.

    1. Your last paragraph is exactly how it should be.  If you want to trust your electrician for following the NEC, right now you have no other choice unless you spend more than you do on the electrician to look at the code.

    1. Because, for example, the National Electric Code (NEC) isn’t itself a law.  However, states and municipalities have made following the NEC a law.

      So the code isn’t a law, just following it is.

      1.  Actually, the NEC is indeed a law in many jurisdictions. What government do is “incorporate by reference” a model code like the NEC so that the entire text of the document becomes part of the administrative code of a particular state or the Code of Federal Regulations. Search for “national electrical code” and “incorporated by reference” and you will see many examples.

  7. If the materials were developed with private sector money and then incorporated into the law, the government should either exercise eminent domain and make the info public or recompense the trade association for the reasonable value of the info and make it public.

    If public money was used to fund the development, we shouldn’t even be having this discussion.

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