ANSI board member thinks we should all pay for sex (and also pay to read the law)

We've long chronicled the adventures of rogue archivist Carl Malamud, who is being sued all over the world for publishing standards that have been incorporated into the law, on the basis that laws must be freely accessible and republishable in order to be legitimate (an iron-clad principle stretching all the way back to the Magna Carta).

Now, Malamud is embroiled in a fight with the American Bar Association, a faction of whom have a "solution" to the problem of laws that you have to pay to access: they propose publishing the laws with DRM on a special website with a lengthy terms-of-service "agreement," all intended to stop you from republishing, printing, saving, or owning the laws you are required to obey.

The responsible parties at the ABA have deep conflicts of interest, including financial connections to the standards bodies involved, such as ANSI. ANSI has launched a major offensive on this, trying to get its members to lobby the ABA to adopt the most restrictive possible arrangements for access to the law.

Malamud's circulated a long, cogent, well-organized brief to members of the ABA, laying out his case, and including leaked emails from the ABA committee that came up with the DRM proposal. One of those emails, written by ANSI board member Dan Bart of Via View Corporation, derides the idea of the free access to the law, saying, "some people are still clamoring for free beer and free sex too."

I don't know about free beer, but I think that for many of us, sex is usually free.

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 that position.

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 being proposed are a series of licensing restrictions created by a click-through terms of use 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.

Appeal to the ABA House of Delegates [Carl Malamud/Public Resource]

Standards Body Whines That People Who Want Free Access To The Law Probably Also Want 'Free Sex'
[Mike Masnick/Techdirt]