The Electronic Frontier Foundation continues to publish its excellent series of Copyright Week posts (here's yesterday's installment). Today, Corynne McSherry describes the fight over copyrighted laws. Not copyright laws — laws about copyright — but, rather, laws that are copyrighted, and that can't be read without paying hefty fees.
This odd situation crops up often in the realm of public safety standards (the last kind of law you'd want to hide away from the public, really): lawmakers commission private standards bodies to write these standards, then write a law that reads, "In order to comply with the law, you must follow standard such-and-such." So now you've got this weird situation where the law is a secret, it is proprietary, it cannot be published, and you can't see it or know what it says unless you're willing to pay the standards body.
But that's just the beginning:
Fortunately, open access crusaders like Public.Resource.Org (whose founder, Carl Malamud, is testifying before Congress today about this issue), and the Center for Information Technology Policy, have worked hard to correct the situation, by publishing legal and government documents and giving citizens the tools to do so themselves. A private company, Google, has also done its part by including court opinions in the Google Scholar database. Until recently, these folks haven't had to deal with copyright infringement lawsuits as they worked to free the law.
No longer. A group of standards-development organizations (SDOs) have banded together to sue Public.Resource.Org, accusing the site of infringing copyright by reproducing and publishing a host of safety codes that those organizations drafted and then lobbied heavily to have incorporated into law.
The SDOs argue that they hold a copyright on those laws because the standards began their existence in te private sector, and were only later "incorporated by reference" into the law. That claim conflicts with the public interest, common sense, and the rule of law.
The fundamental right to access and share the law does not disappear just because the law in question is a technical standard. And a good thing, too, because these standards are now a significant part of the laws that shape our lives. Once incorporated, they become mandatory requirements, just like any other law.
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The Law Belongs In the Public Domain
