I can see troubling consequences that arise from both sides' arguments.
If private companies can hold copyrights on portions of the law, that inhibits access to those laws, and I think any reasonable person would agree that citizens have a basic right to access the text of laws and legally binding regulations, and paywalls or other restrictions conflict with that right.
But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders.
And it would be interesting to see just how far you could stretch a claim on both sides.
For instance, let's say that a law specifies that vehicles used by some governmental department must be maintained according to the specifications in their respective owners' manuals. Could that be argued to be a type of "incorporation by reference" of the specifications, thus voiding the copyright of the owners' manuals?
Or what if a private company tried to impose absurd restrictions on accessing copyrighted material that has been incorporated by reference, such that even the governmental agencies charged with enforcing the law were unable to access it? Could that be a way of subverting the law?
Or what if a lawmaker has it out for a particular publisher or writer, and purposefully quotes their copyrighted texts (beyond what would typically be considered fair use) in legislation as a way of damaging their copyright?
And if it is the case that nonprofit groups that devise standards for public safety and device interoperability are deprived of their copyrights because those standards are incorporated into legislation, I would imagine it would disincentivize the work they do, perhaps leading to less well thought out public safety and device interoperability standards.
> But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders.
How about:
a) voluntarily giving up copyright if you want your text to become law.
or
b) not making law out of propriety, private, copyrighted works.
The reality is that secret laws are bad. We've known this as a society for millenia:
Lovely link! I find the subject of Roman law fascinating.
I'd argue that the reception of it throughout the centuries after the fall of the Roman state (most importantly it's dissemination) helped formed the basis of the modern European identity.
Also, fun fact: Roman law has been heavily studied in Japan since after it entered Japanese law as part of the Meiji restoration, so today Japan is one of the centers of Romanist studies.
> let's say that a law specifies that vehicles used by some governmental department must be maintained according to the specifications in their respective owners' manuals. Could that be argued to be a type of "incorporation by reference" of the specifications, thus voiding the copyright of the owners' manuals?
No great loss if it does. I don't imagine car manufacturers regard manuals as a profit center.
> what if a private company tried to impose absurd restrictions on accessing copyrighted material that has been incorporated by reference, such that even the governmental agencies charged with enforcing the law were unable to access it? Could that be a way of subverting the law?
The courts tends to be pretty good at dealing with people who try to mess with them through this kind of technicality.
> Or what if a lawmaker has it out for a particular publisher or writer, and purposefully quotes their copyrighted texts (beyond what would typically be considered fair use) in legislation as a way of damaging their copyright?
> And if it is the case that nonprofit groups that devise standards for public safety and device interoperability are deprived of their copyrights because those standards are incorporated into legislation, I would imagine it would disincentivize the work they do, perhaps leading to less well thought out public safety and device interoperability standards.
Hmm. Perhaps lawmakers should have to license materials they want to incorporate, or seize them with compensation via an eminent domain-like process.
The moment it becomes a law, it should become a work of the Federal Government. If they draft it as a law, and it becomes a law, it should enter the standard of non-copyrightable public works (as we see on wikipedia for many releases from the federal government).
We're also ignoring something really troubling in this entire situation: the fact that private entities and lobbyists are drafting so much of our legislation (typically for their benefit). Sure there are some things like safety standards that I can see as best being worked on by several trade groups, but there is a considerable about of legislation drafted by banks, security firms and defense contractors that directly benefits those industries at the expense of the people.
Let's not forget the 2008 financial crisis, that was created by much of this type of legislation. Many of those banks committed outright fraud:
..and none of those people from the bottom to the top, have never been charged with crimes. As they write more laws, they make the types of corruption they often engage in, legal.
"But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders."
This is a settled area of law; revoking the copyright would be a "taking", inarguably for the public good, and the copyright holder would be entitled to just compensation.
IMO that is the appropriate way to handle this issue; effectively the government uses eminent domain to seize the copyright.
> the copyright holder would be entitled to just compensation.
I would suggest that for a lot of organizations whose code has become written into laws, the organizations actually benefit from their incorporation even if they were to be required to release the copyright. They may lose some 'access-control' revenue from release of the copyright, but overall their closeness to the rules gives them ample opportunity to make money from associated services (e.g. training, consulting, membership and influence on revisions to name a few).
>But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders.
I don't know if this is actually being proposed as a possible solution. It might be enough to prevent governments from doing the reference in the first place. Then it would be up to the government to negotiate public access to to any standards they wanted to make law.
There is a commonly used approximation used to compensate for the change in density of various retail petroleum products with temperature. In my country we have a law covering how such compensation is to be done at the retail level. That law is a reference to a standard behind a pay and weirdness wall. In Belgium they have the same sort of law, but the actual function is right there in the law, in standard mathematical notation.
At what point in history would you say patent laws became beneficial to society? Patent law was created as a way for oligarchs to maintain economic power over their subjects[1], and it is still used as such[2].
Patents represent a deal: You publish specifications, and society will grant you exclusive use for X years. Thankfully, unlike their copyright cousins, patent laws have not seen an increase in X. This serves to prevent knowledge from being locked away as trade secrets.
Beneficial to society? Drug companies have patents, and patents expire. Upon expiration, generics become available because the synthesis of the drugs is public knowledge, which creates a competitive market and lowers the price.
Without patents, the drug companies could (modulo other regulations) keep synthesis of their chemicals a trade secret, which may not be replicable in a reasonable time-frame.
"Our works are free. But you have to contact an unlisted phone number, at a specified time we don't state, to a man who is only authorized to grant access when funds are available. And the times of access are limited to 100 hours per month, or less when restricted. And the location in which to meet is in the capitol at a building with no parking, and the hardest to get to.
Or you can buy the code for the low price of $4999 . Printing fees, and all that."
what if a lawmaker has it out for a particular publisher or writer,
and purposefully quotes their copyrighted texts in legislation
Technically, this ability already exists in some ways. Parliamentary Privilege [1] allows members of parliament to speak freely without fear of legal sanction.
As a result of a defamation case brought against Hansard [2] in the 19th century, parliamentary publications (e.g. a transcript from parliament) are also protected by absolute privilege [3].
That's UK law, but it's a common template for Westminster-system style legislatures.
So a law-maker could read out a book in its entirety, which could then be published in its entirety as a transcript of parliamentary publications. It's social norms and conventions on parliamentary behaviour that prevent its abuse, rather than copyright law.
Copyright is simply the right to the fruits of one's own labors to be exclusive for some amount of time. I'd say that's a moral and ethical right. Just because you write novels or develop software rather than build houses or cars doesn't mean you should be deprived of making a living because others are free to duplicate your work with little to no expense, expertise, or time spent doing so.
Here is the difference: The constitution authorizes the legislature to grant limited-term monopolies to inventors and creators. But that isn't an obligation, and there is no underlying constitutional right. "Limited" could mean a week. It's completely up to the legislature.
In contrast, a law authorizing property seizure without compensation, or even an expiration date on property rights, would be unconstitutional. All copyright and patent protections expire.
They only expire because of an overwhelming public interest. Otherwise the very idea of them being property that can be created, bought, and sold would allow their owners the same rights as other property owners. They can expire your novel because it's useful (hopefully) to culture, but they can't expire your physical book except under exceptional circumstances.
I don't think that makes sense. They expire because they are disclosed, i.e. published, manufactured and sold, etc. Without a government granted and enforced monopoly, creators and inventors would have no protection against being immediately copied without compensation. There is no question of a "right" in this. It's a government granted monopoly, explicitly authorized in the constitution because, otherwise, such monopolies were considered abhorrent. In that, it is a unique part of the US constitution, and does not resemble in any way the rights protected by other parts of the constitution.
> For instance, let's say that a law specifies that vehicles used by some governmental department must be maintained according to the specifications in their respective owners' manuals.
I think this is how it works with aircraft. The manufacturer issues at POH (Pilot Operating Handbook), and the pilot must operate the aircraft in accordance with this POH. Also the pilot is required to have the POH available in the aircraft anytime it is being flown.
> But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders.
I don't see a problem with that. Copyright is a privilege granted by the government. If the government wants to revoke that privilege that is their prerogative.
The US constitution states otherwise. It says that Congress is allowed (not required) to grant limited time copyrights to promote the useful arts and sciences. That seems to make it quite explicit that copyright is granted by the government and not just recognized by it.
The extreme abuse of that rule would be to bump the price to $1T and thus create secret laws. Without review by the People and their representatives, it's not a democracy.
Just accept the idea that this country now espouses that "More Money = More access to being a citizen". We are not equal. The past had that mythic "equal" part; but that time is done and gone.
In the end, the following is now what this country stands for:
The lowest level of the US court system tries hard to stick to what law and precedent say, and to avoid engaging with constitutional issues. If you want to drive change you have to appeal it up a level or two, where the senior judges consider it to be within their pay scale. That is what is going to happen here.
And in the interim you can be fined or imprisoned for violating a law which you cannot read without paying a private entity.
Either side can appeal a case, and judges should be ruling based on all laws, including the state and federal constitutions. Anything less should be grounds for impeachment (as should consistently having your rulings overturned by higher courts).
Copyright law needs some serious reform. It's unconscionable that you can't even share the laws that govern you. We really need an exception for things that are considered "public" knowledge, including freedom of panorama. (I can't even take a picture of my own city if it contains an artwork in it) We also need to do something about orphaned works. Sadly, it's in the interest of Disney and other corporations that the status quo of a restrictive commons continues indefinitely.
There's no need for a copyright exception, people crafting public laws should simply not incorporate material that cannot be published along with the law.
Yes, that would be one solution, but you'd have to somehow enforce that governments do that or else local governments may continue with the status quo.
Also, there's the question of what to do with historical laws. For example, buildings being renovated sometimes have to follow the building codes corresponding to their original construction date. So the current laws that the publishers are trying to paywall may be relevant for another 100 years.
The fight is not over yet. Please consider donating to Public Resources, which runs on a shoestring budget, employing just one person, Carl Malamud, at a modest salary.
>ruling that private organizations can use copyright to control access to huge portions of our state and federal laws.
Then if I decide not to use their copyright, the onus is on the copyholder to file suit against me for violation.
If in fact a firm owns it, the government cannot pursue a case, and the firm (with no criminal jurisdiction) cannot impose any penalty.
If in fact the government owns the text, it must necessarily be made freely available, unless it pertains to national security (which is shaky justification at best).
How can one possibly respect a law one cannot read or any lawmakers/political bodies who make/encourage such laws or institutions claiming to enforce/defend them?
What exactly is the difference for the accused between this situation and having legal cases randomly decided by random rules?
Perhaps part of qualifying as a lawyer should involve writing code against someone else's annoying API, just to give them a taste of how the law is for the rest of us.
>We’re disappointed by this misguided ruling, but the case is far from over.
Sounds like its going to be appealed.
I think the government needs to stop passing regulations that just copy the rules of private standards organizations unless they are also allowed to publish the regulations. Private organizations will do what they will, the public can't control private actors or force them to give up their right to collect money for their standards (at least not without a fight).
I juts don't understand why the government would just make laws without ensuring the right to publish them or make them widely available to the people, is just irresponsible and goes to show how little thought goes into all these regulations that govern our lives.
Importantly, there is no evidence that the ... standards are unavailable to the public. In fact, the undisputed record evidence shows that the standards are required to be available in physical form from OFR; are available for purchase from the [first] Plaintiffs in hard copy and from the [second] Plaintiffs in hard copy and PDFs; and are accessible in read-only format for free in [second] Plaintiffs’ online reading rooms
If this information is freely available in electronic format — which seems to be the case for the second plaintiff — then in my mind the concern is greatly mitigated. The defendant could simply link out to the relevant page.
I'm surprised the decision doesn't mention the cost that the first plaintiff charges for the hard-copy of their standards (which are apparently not electronically available), since the cost/delay seems relevant. If the cost is hundreds or thousands of dollars, there definitely be cause for concern. On the other hand, if the cost is negligible, I'm somewhat less concerned.
To be clear, I still think that whatever agencies incorporate third-party content by reference should always require that the documents be freely available online. I just think these facts about current availability are interesting (and are not mentioned in the EFF post).
Some of these laws are so complex and interdependent that we need tools to help simplify them. If the publishers are allowed to paywall the law, then it'll be harder for startups like UpCodes to operate.
UpCodes provides a search engine into the codes, pinning (bookmarking) codes, a collaboration tool and finally weaves in local laws and amendments right into the code.
I don't get the criticism against the judge or the ruling. Frankly, the arguments presented by Resource.org seem to be unpersuasive (the claim that these standards are "discovered facts" is just insulting to the engineers that worked on them) and completely unsupported by the law. It's not the judge's fault that your Congress and other governments have sold you out. Go sue them for enforcing laws you can't read.
"I don't get the criticism against the judge or the ruling."
It's actually directly contrary to rulings in other states, circuits, etc.
Even the supreme court has held, consistently, since 1888, that the law is free.
'the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute' Banks v. Manchester (128 U.S. 244, 1888)
I don't think this could be more clear.
An argument that you get to lock it away by incorporating by reference is patently absurd and directly contrary to this.
You don't get to say
"page one of georgia annotated code:
for the text of pages 1-100000 of the georgia code, please see 'the real georgia annotated code', published by forprofitco,"
But that's just what is happening, since these standards are not "voluntary", but binding law that you can be charged with crimes or sued for violating.
If they wanted to charge money, they have a simple solution - don't make them law, don't charge people for violations, etc.
" Frankly, the arguments presented by Resource.org seem to be unpersuasive (the claim that these standards are "discovered facts" is just insulting to the engineers that worked on them) and completely unsupported by the law."
Except they (and others) have repeatedly won in pretty much every other case.
This is in fact, the first case i'm aware of that they've lost (or that others have lost in similar situations).
Frankly, the idea that you can sue people or charge them with a crime, for a law they have to pay to read is insulting to everyone, and very clearly not constitutional.
As mentioned, there is a simple solution - if you want to charge, don't give them binding force of law.
You don't get to have your cake and eat it too.
But that's my point - the question in this trial wasn't whether the State can use closed standards as law, but whether someone can violate the copyright of these standards just because the State refers to them in the law.
Frankly, the idea that you can sue people or charge them with a crime, for a law they have to pay to read is insulting to everyone, and very clearly not constitutional.
My point exactly! They should be suing the State for doing that! Not trying to invalidate some company's copyrighted standard.
"But that's my point - the question in this trial wasn't whether the State can use closed standards as law, but whether someone can violate the copyright of these standards just because the State refers to them in the law."
The answer is yes.
:)
At best, it's a taking.
"My point exactly! They should be suing the State for doing that! Not trying to invalidate some company's copyrighted standard."
You have this very backwards, in the sense that the organization deliberately worked with the states to make this happen.
You would have a better argument if the states had forced it to happen.
In any case, you also have "who should sue who" wrong.
1. You can't sue the states in federal court they have sovereign immunity ;)
But if you could ....
2. At best, this is a taking by the state. It's the problem of the standards folks to sue the state, not the problem of the rest of the world of trying to use the law.
Standards shouldn't be copyrightable. Or they're not standards, they're just secret handshakes (or whatevers, after all you can't really talk about parts of it, because all of it is just dry quantitative stuff - yet not simple facts to share) that allegedly work.
Also, does ISO pay the C++ standards developers? And how much is the market for C++ standards? (Yes, compiler vendors are usually big firms/organizations, but I doubt all the money paid for the standards so far would be enough to cover all the expenses of the various working group meetings involved.)
And sure, the tools of the trade argument is valid, you don't get hammers for free if you want to build a house (or just fix up something), but we can make the mental categorical distinction between information that gains value as more and more people has access vs information that loses value as more and more people has access (trade secrets, hence the licensing cost of patents).
I think we need to be careful to distinguish between copyright and access; they're not the same thing. For example open-source software is protected by open-access licenses, which in turn rest on the concept of copyright. We don't need to abolish copyright to establish a right to open access.
> (the claim that these standards are "discovered facts" is just insulting to the engineers that worked on them)
As an engineer, I don't see why. Discovery is still hard and valuable work.
I personally also think the use of terminology like "discovery" rather than "invention" reinforces that you don't have some divine, exclusive right to control what you've created, but that discoveries are to benefit all of humanity. The government gives you a time-limited exclusive license as a reward for taking the risk and doing the hard work to make these discoveries.
That's the point - the government doesn't give you a license for discoveries, only for creative work. The EFF et all weren't trying to rename the term, they were claiming that these standards were merely uncreative "discoveries", unlike every other copyrightable work.
> That's the point - the government doesn't give you a license for discoveries, only for creative work.
Creative work is a discovery, and this is trivial to see: you can write a program to enumerate all possible English texts, and so discover every possible written work that has, can or will ever be made.
So it's more correct to say that the government gives you a license for certain kinds of discoveries, and the EFF are saying that this sort of work does not belong in the protected category. That's not entirely unreasonable from what I can see.
The people who put together these codes spend a lot of time and effort doing it. They only get compensated by requiring people to pay for access via a copyright.
Some bodies do it without restricting access, like IEEE, but their work in contributed by interested parties who control their IP via other means. Companies will work on the next 802.11x, but they are always trying to guide the standard to benefit their company.
Even if the companies that wrote these laws get to retain copyright, surely the substantial public interest in making them freely available makes this Fair Use. But current Copyright law is a cancer on our economy. Why not the government, too?
If private companies can hold copyrights on portions of the law, that inhibits access to those laws, and I think any reasonable person would agree that citizens have a basic right to access the text of laws and legally binding regulations, and paywalls or other restrictions conflict with that right.
But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders.
And it would be interesting to see just how far you could stretch a claim on both sides.
For instance, let's say that a law specifies that vehicles used by some governmental department must be maintained according to the specifications in their respective owners' manuals. Could that be argued to be a type of "incorporation by reference" of the specifications, thus voiding the copyright of the owners' manuals?
Or what if a private company tried to impose absurd restrictions on accessing copyrighted material that has been incorporated by reference, such that even the governmental agencies charged with enforcing the law were unable to access it? Could that be a way of subverting the law?
Or what if a lawmaker has it out for a particular publisher or writer, and purposefully quotes their copyrighted texts (beyond what would typically be considered fair use) in legislation as a way of damaging their copyright?
And if it is the case that nonprofit groups that devise standards for public safety and device interoperability are deprived of their copyrights because those standards are incorporated into legislation, I would imagine it would disincentivize the work they do, perhaps leading to less well thought out public safety and device interoperability standards.