Important victory in Public Resource's tireless fight to make the law free for everyone

For years, rogue archivist Carl Malamud (previously) has battled for the right to publish the law online in freely readable and shareable formats, through his activist group Public Resource.

You'd think that this was a no-brainer, but it turns out that there are lots of local and state legislatures that have a tidy racket selling access to the law, and, more importantly, a lot of the law (building and safety codes, especially) are actually standards, whose "Standards Development Organizations" (SDOs) charge thousands of dollars to read their work products.

Here's how that works: a city or state needs an electrical safety code. If you are an electrician, you will need to obey whatever they come up with. If you're hiring an electrician or buying a house or leasing a store, you'll need to read the code to figure out if you're in compliance.

But developing an electric safety code is expensive, and besides, there are expert bodies (that is, SDOs) that have already written them, and their work is used in lots of other cities, so there are premade wires, fixtures, switches, junction boxes, and other premade parts that comply with the rules, which will make obeying them a lot simpler.

So the government "incorporates the standard by reference," passing a law like, "The electrical safety code of East Dingleberry shall the version XYZ of the Sacred Guild of Electricians and Voltomancers." If you want to follow the law, you just need to buy the safety code from the guild.

This sounds sensible, except now we're in the very weird situation in which a private body is claiming copyright — the right to restrict who can see, duplicate, and modify a document — over the law. That's where it starts to get ugly. And it's not like the SDOs are unwitting victims of lazy city lawmakers who can't be bothered to make their own codes: the SDOs exist to create private, copyrighted laws that are intended to be incorporated by reference, guaranteeing a captive market that pays through the nose just to find out what the law they're supposed to be obeying actually says.

So Carl is always, always in court (often represented by the Electronic Frontier Foundation, for whom I am a paid contractor, so make of that what you will), and little by little, he is eking out the precedential victories that guarantee to all of us the right to know what the law says.

The latest win was in the DC Circuit, where he was sued by the American Society for Testing and Materials. In a judgment last week, the court found that publishing the law was fair use. As Cathy Gellis points out, the court could have gone further, ruling on whether the law is even copyrightable, period, but the judge effectively chickened out, saying that if they didn't have to touch a constitutional question, they wouldn't.

So, it's an important, but partial victory. But a victory! Congrats, Carl and thank you for your tireless work!

Overall, this is a good result for Public Resource. And far be it for me to rain on Carl Malamud and his legal team's well-deserved parade, it's still important to point out why, although this D.C. Circuit decision is a good one, it could have been better.

For one thing, the parties have already litigated a lengthy trial. And their prize for finally winning the pie eating contest now is more pie. That litigating fair use is so arduous, even for as well-counseled a defendant as Public Resource, is a significant problem. As Lawrence Lessig has observed, "Fair use is only the right to hire a lawyer." Fair use is of little value for worthy defendants who might ultimately win infringement cases on those grounds if they can get obliterated by the litigation defending themselves along the way. Which is one reason why the D.C. Circuit's refusal to evaluate the core copyrightability grounds is a troubling one, because while Public Resource may ultimately prevail, what about anyone else who similarly decides to publish the law that also incorporates standards?

Furthermore, while the court's interest in ensuring that Public Resource could survive a subsequent fair use inquiry is great for Public Resource, and there is nothing in the decision to suggest that it is only Public Resource that should get to, it won't be helpful if the way the court framed each of the fair use factors in order to ensure it could reach Public Resource can't be of use to other defendants not exactly like Public Resource but with their own plausible fair use defenses. Certain language in particular does give some pause, such as the hostility towards some of Public Resource's transformative uses.

Appeals Court Tells Lower Court To Consider If Standards 'Incorporated Into Law' Are Fair Use; Could Have Done More [Cathy Gellis/Techdirt]


(via Four Short Links)