Germany threatens to jail Carl Malamud for making the law available for free

Rogue archivist Carl Malamud writes, "One of the most important public safety laws in Europe is Dir. 2001/95/EC which regulates general product safety. Public.Resource.Org, in our ongoing quest to make legally-mandated public safety codes available, purchased the German instantiation of 40 of these essential codes and made them available on the Internet. Every country in the EU is required to implement and publish these standards.

"Imagine our surprise when we were served notice to appear in Hamburg District Court in Germany."

You can read the docket here, but some of the highlights are that not only is Public.Resource.Org being sued, but “the person of” Carl Malamud is being sued in an individual capacity. The code people are asking for €50,000 in damages. Additional fines of €250,000 are being requested and, if I can't pay, a maximum total period of detention of two years is possible. I am very pleased to say that the premier German public interest law firm, iRights.Law, will be representing us. The iRights.Law group, and their affiliate iRights.Info, play a similar role to that of EFF in the United States and I'm very grateful for their help.

The code people picked 4 specific standards to sue on, including—believe it or not—the EU-mandated standard DIN EN 1400-1, “Child use and care articles - Soothers for babies and young children - Part 1: General safety requirements and product information.”

That's right, we're being sued for the .DE standard for the safety of the Binky® and other brands of baby pacifiers. Before we posted this important safety standard, you could only read the document if you spent €103.90 for the .DE Binky Code, £140.00 for the .UK Binky Code, or €90.26 for the .FR Binky Code.

As the people suing us say in their press release about this important standard:

“Babies fall asleep faster when they can suck on a soother. However, the consequences could well be fatal if a child were to swallow its dummy. Safety requirements relating to the physical and chemical quality of soothers are dealt with in DIN EN 1400-1 ff. Soothers wishing to conform to this standard must have a shield with at least two holes allowing the baby to continue to breathe in the event of the soother becoming lodged in its mouth.”

Sounds kind of important, don't you think?

The standards we posted for product safety from Germany are just one of several such collections we've posted that are mandated by the European Union:

* From Bulgaria, we've posted the EU-mandated standards for agricultural and forest machinery as well as train safety and interoperability.

* From France, the EU-mandated standards for toy safety and green packaging.

* From Ireland, the EU-mandated standards for medical implants.

* From Italy, the EU-mandated standards for food processing machinery.

* From Latvia, the EU-mandated standards for earth-moving machinery, garden equipment, and hand-held tools.

* From Serbia, the EU-mandated standards for personal protective equipment.

* From the United Kindom, all UK national annexes to the Eurocode and crucial standards for the safety of baby carriages and access to buildings by disabled people.

* The entire EU-mandated building code, the Eurocode, which has been transformed into valid HTML with SVG graphics and properly-encoded mathematical formulas.

Citizens of the world have the right to read the public safety codes that govern the safety of our modern technical society. Our work in Europe joins the complete collection of standards from India and our extensive collection of US-mandated public safety standards at the Federal and state levels, as well as numerous standards from around the world. Our goal is that all of the standards that are required by law become available to the citizens of the world so that the rule of law becomes real for all of us. You can't require a license to speak the law, you shouldn't have to have a credit card to read the law.

Be an informed citizen. Copy that code.

The Case of the DeBinky Code

Notable Replies

  1. So ignorance is no excuse when breaking the law yet knowing what the law is and spreading it is potentially criminal?

  2. If your everyday activities just happen to comply consistently with what the law is, then can your conduct be used as evidence that you've come into possession of knowledge of what the law is?

  3. Pingu says:

    At first, the DIN is a private organization, in terms of a trade organization. It is only partly founded by the government. It is the same like the ANSI, NIST, and SAE in the US (they are called National Bodies), or like ISO, IEC, ETSI, CEN, and CENELEC on international and European level. I am on of the experts who in that field for electronics and safety in electronics. I am in several working groups within almost all of these organizations. Even I as an expert who is working on those documents, I have to sign a away almost exclusive to give away all the copyright to those organizations. That said, even I have to buy and pay for those standards, even as I have access to preliminary versions that I had to work on, to review, and to comment on.

    The standards published by all these organizations are standards and NOT laws. If you have very good reasons you don't have to follow those standards. But then of course, you have to have good reasons.

    The EC (European Commission) mandates in certain areas, that a so-called harmonization has to be done. That is e.g. in the area of wireless communication a regulation in the 2.4GHz frequency range. As all telecommunication related topics are standardized by ETSI, the ETSI gets a mandate to work on this topic. Then companies like Cisco and IBM work on this topic and publish a standard, which then becomes an EN and then is approved by the National Bodies, namely DKE in Germany, to become a DIN EN. Then EC publishes in its directory that all wireless communication devices within Europe has to follow this so-called harmonized standard. If your device does not follow the requirements of that standard and something happens, then you become liable and it is your task to prove that you weren't the cause, which becomes hard if didn't followed the standard.
    The very same procedure is true for safety in machinery, another topic I am heavily involved in.

    That means, the government has laws, that e.g. in safety in machinery, that you are liable for your machinery you put in production. Then the government has a list of standards that is published, because experts like me said: if you follow those standards you will be in line with the law and you have done the best known to the current state in technology to prevent accidents.
    That said, you don't have to follow those standards if you have reasons to do so. But it makes your life easier if you follow those standards.

    TL/DR: Those standards are NOT laws. Those standards are protected by copyright. Because selling these standards mainly finance the infrastructure to develop these standards. This is not paid for by the general public like the government itself.


    "The DKE business organization finances about 95 % of its budget from the proceeds of standards prepared by the DKE and sold by the VDE VERLAG and Beuth Verlag.

    The remainder is contributed by the union of sponsors, which has about 400 member companies, five associations of the electrical industry and nine associations closely connected to electrotechnical standardization."

    That means, if you would like to abandon copyright in standardization, then the general public has to pay with their tax money for that.

  4. And civil rights demonstrators were arrested and badly injured being sprayed with high pressure fire hoses and attacked by dogs. I suppose you'd say their actions were a 'bad precedent,' as well?

  5. It's not so easy. In certain cases law demands compliance to standards. You could argue that when a law refers to a third party source this source is part of the law and should be public too.

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