I had no idea code bodies have been doing this... incredible. Requiring private individuals to pay a private entity for access to the law under which they are bound is unconscionable, to say the least.
The ICC v. UpCodes lawsuit is clearly one important front in this battle. Another potential route to ending this would be for a licensed contractor to sue the government for failing to make freely available the building codes under which he/she is legally bound. The legal argument (and thus the government's legal duty) would be crystal clear in a case like that, especially because both civil and criminal law requires such adherence.
> I had no idea code bodies have been doing this... incredible. Requiring private individuals to pay a private entity for access to the law under which they are bound is unconscionable, to say the least.
In particular for people who are able to understand German, I recommend reading "Franz Kafka - Vor dem Gesetz" (Türhüterparabel - gatekeeper parable):
It works pretty much this way in my country too. 'Standards Australia' is a body who charges for PDFs of various codes (including those which are thinly layered services over ISO standards)[0]. Local and state governments refer to those AS 'standards' for compliance.
Yes, it's a self referential ponzi scheme forcing citizens to pay to be adherent to laws. It should be free.
INAL however, I think the main loophole that allows it to exist is that since it's a private company (albeit labelled as a non-profit) it has 'copyright' on its publications, which is like the 'mechanical copyright' that the music /video industry has on CDs add DVDs, which is independent to the 'artistic copyright'. Many of our 'governing bodies' operate that this way: there's the law as written, and then there's the implementation of said law (tax office, Medicare, workers compensation, etc) in which, over time, become the arbitrator of the law -- which is a very different thing.
One of the most interesting things about the AS system, to my mind, comes from a case where a motorcyclist was fined for attaching a helmet cam -- AS1698 does not permit modification of helmets. (Whether or not attaching something via a sticker is modifying the helmet is still up for grabs.)
Regardless, he fought his case up to the county court and won, based on the argument that it was not sensible to expect the public to adhere to an AS that was not publicly available.
> Thus from the four preceding articles [of Question 90], the definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.
- St Thomas Aquinas [1]
The key word I want to bring attention from that quote is promulgated, or made known.
If law can be copyrighted by a private entity, by definition it cannot be universally promulgated and should not be considered a valid law.
Otherwise, we will end up with private, unknown, laws that will be pulled out of nowhere when convenient.
The text of law must be universally accessible to all (at least within a jurisdiction) or the law should be deemed invalid.
"Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash, and enlighten the land, to further the well-being of mankind.
...
That the strong might not injure the weak, in order to protect the widows and orphans, I have in Babylon the city where Anu and Bel raise high their head, in E-Sagil, the Temple, whose foundations stand firm as heaven and earth, in order to bespeak justice in the land, to settle all disputes, and heal all injuries, set up these my precious words, written upon my memorial stone, before the image of me, as king of righteousness. ... let the oppressed, who has a case at law, come and stand before this my image as king of righteousness; let him read the inscription, and understand my precious words: the inscription will explain his case to him."
Yes, and it gets wierder because the standards aren’t law (or they would be public), but the law can require work to be done according to the standard. Most of the standards were developed with tax dollars too.
It takes power away from homeowners when you can’t question the work of a tradesman because you can’t get your own copy of the standards.
It also makes it hard for owner-builders like me who are required to follow the standards but don’t really want to pay for them.
So my wife works for general code which was acquired by ICC and she gave me her inside scoop on this. It's a tough gray zone because of how ICC's business model is structured. They are not government funded and to write the codes take a lot of people a lot of man hours. Unlike general code, they write code for the entire state and offset cost to the people who access it professionally.
On the ICC v. UpCodes battle, UpCodes just ripped the content from ICC and used it to create their own app. The ethical gray zone I see is this: if ICC can't fund the process of writing the codes, how will they get written? Can a for-profit company like UpCodes be trusted to take up the reigns on that if ICC can no longer justify creating the codes?
The question isn't really whether ICC has the right to create codes and sell them and hold copyright (of course they do). It's whether a government, such as the state of Michigan or the state of California or the city of New york, that is bound by the Constitution of the United States of America is allowed to legislate a privately copyrighted text into law. The answer to me seems an obvious no, but I guess the courts will decide. ICC hasn't done anything wrong here; if there's anyone who's broken the law, it's the government.
"Breaking the law" and "infringing copyright" are orthogonal. It becomes the responsibility of the copyright holder to sue for infringement. In this case, however, it's in the copyright holder's interest to not do that: as a result of these documents being referenced into law, others must obtain a license (e.g. by paying a fee) to access them.
However, if the government acted as expected, incorporating a copyrighted work into law would necessarily place the work into the public domain, as are all other laws that were directly written into the legal code, thus removing the copyright from the owner. This, I suspect, would indeed result in a lawsuit against the government for attempting to reallocate copyright without due process (or some such legal complaint.)
When an engineering firm spends considerable revenue designing specifications that should become regulations, how should we compensate them and still maintain free access? I don't have any good answers myself.
The enforcement of the law and the actual breakage of the law are two separate events. While you're right that it is the copyright holder who has to ask the government for enforcement. Using a copyrighted work to which you do not own the license is against the law, and the government is capable of violating the law as well.
The government should just pay them for their codes for becoming public domain. How much I'm not sure about, but it should at least be for their expenses plus some interest over the time they spent.
And, per eminent domain, they have the right to do without asking permission. It’s the standard way for the government to turn private property into public property.
I mean, the solution seems pretty obvious to me - if the codes are legally-binding, their development should be funded by the governments which use them.
I disagree. I think that if the codes are legally binding (and the government funds them) then they should be created by a government body. Private entities shouldn't be making money off of creating regulation. That's literally the job of the government.
The majority of ICC’s revenue comes from program services, including consulting, certification, and training, which do not rely on profiting by limiting access to the law.
In addition, the laws are written by volunteers. ICC convenes committees of volunteers who author the law. That's how the run such huge profit margins.
EDIT: Disclaimer - As stated in a couple other spots on this page, I am a cofounder of UpCodes.
Yes, I left the first comment in this discussion saying I'm the cofounder, AMA, and 3 more times, but you're right, they all got a bit buried, I'll edit my first comment that appears to clarify.
I submitted the article and then left the first comment telling everyone I'm the cofounder and happy to answer questions. No tricks here.
> it's really sleazy to concern-troll
Not sure why you're so angry at me. I think it's quite fair for me to go public with this lawsuit. Do I hope that public opinion sides with what we're doing. Yes, of course. Is that bad? I happen to also really believe in what we're doing and the fight we took on. I was a fan of Carl Malamud before we started this company.
And that's doubly true when you consider how aggressive ICC has been in this lawsuit. I mean, suing us personally, trying to bankrupt us? Deposing and subpoena'ing personal friends of ours?
I'm curious whether ICC's volunteers sign anything transferring copyright of the code sections they draft to ICCC. Also, have you tried asking ICC why they're violating their own Antitrust Compliance Policy[1]?
> Care should be taken to ensure that ICC Activities, including without limitation the ICC code and standards
development process, is not used to stabilize prices or to exclude competitors or competition for reasons other than public health, safety or welfare.
Hey, UpCodes cofounder again, yes, they do ask volunteers to sign a copyright form. You can see it in this ICC tutorial (at 24s): https://www.youtube.com/watch?v=9hebfUQ-G24
Very interesting about that document. Yeah, none of what ICC is doing fits at all with their stated mission or anything.
I'm bookmarking that to read more carefully. Won't help with the lawsuit, but might make for a good tweet.
The committees don't write the code, they consult on what codes they want to see. Those people should be volunteers, otherwise it would introduce conflicting interests. The data they gather is then codified paid employees. They have no profit margin as they are a non-profit and they have highly paid executives because they are enormous in scale.
If ICC generates less revenue, they won’t be able to fund as many new building codes. Wouldn’t that result in a less fractured and more simplified code system? Wouldn’t that be a good thing?
Code is "minimal acceptable", so yes. Meeting code does not imply "quality".
The code bodies are really out of control at this point. They are unelected and unaccountable to anyone. Meanwhile, the codes they come up with get incorporated by local political hacks.
Detached residential buildings in our area now require fire sprinkler systems to be installed. This is way over the top, adding considerable cost and risk. Talked to a local fire department volunteer who said a large number of their calls are to go to peoples homes and turn off the sprinklers that were activated by false alarm (you're not allowed to). The owners suffer extensive flood damage for nothing, and often don't realize their homeowners insurance doesn't have a flood rider to cover the damage. So, this one change wastes emergency personnel time and destroys property. Good job! Meanwhile, the people who wrote the code are not impacted in any way by this.
It gets better. People not on municipal water (very large percentage) have no hope of feeding such a sprinkler system, so are required to install a water tank in their attic. This complicates remodeling to such an extent - its yet another reason people are getting uninspected work done.
I don't agree with that. The way I see it, looser codes could very well start making the US look like China with man-eating escalators and frequent structural failures.
How many different versions of escalator safety codes does the world need? Even for something like pile foundations that may have some geological variance by region, aren't there certain heuristics that should always be followed, with appropriate site surveying and structural analysis?
Exactly, and does each state and county really need its own of each code or have to add its own amendments? There are some particular scenarios though where they do: NYC has an extra code related to flooding, California has an earthquake code. Still you'd think a couple states or even a couple countries could all use the same earthquake code.
We have 3 different codes for wind rating just within our county alone based on the exposure zone. Given some of the peak winds we see it's very much a good thing.
Structural codes are fine by me, the newer energy codes are great too, our new house is so much cheaper to heat/cool than the 70s house we previously owned.
Why do 49 states (I think) have one height and MA has a different one?
Not saying all the differences don't make sense just a fair amount of them. I'm also not an industry professional (despite staring at these codes all day, I'm usually not actually reading them), so honestly asking here.
I imagine a lot of differences relate to different regional building practices, stemming from both historic trends but also geographic realities. Especially in older areas (but arguably in newer areas, too) you want to permit a greater range of configurations otherwise you risk people abstaining from fixing or replacing unsafe areas, or avoiding permitting altogether. Notably, 8-1/4" is the maximum height--the change allowed more options but people are perfectly free to continue using more common dimensions.
All that really matters is 7-11: the magic ratio for building your own stairs. Perhaps not the most ideal, but the easiest to remember and also trivial to build from common dimensional lumber[1] :)
On a more serious note, what _truly_ matters is consistency of the steps. Interstep deviations are what cause most injuries. After the first or second step, w'ever the rise/run, the brain has already adapted.
[1] 2x6" boards are actually 1.5x5.5". 5.5+1.5==7 and 5.5*2==11. 7-11 is the traditional American rise/run ratio. I think it's mostly coincidental, though, that 2x6 dimensional lumber adds up the way it does.
Couldn't tell you what the philosophy or justification behind MA's stair riser requirement is.
Have you considered that perhaps the engineers who contributed that change to the MA residential code have done their homework, identified value worth pursuing (whether for safety, building optimization, new material availability, future planning, etc.), and decided it was worth going through what surely isn't a painless ECP process to amend what you've dismissed to be trivial minutae?
I hardly see how that's connected to the number of laws on the books.
My understanding is that buildings in developing countries are more prone to disaster because of the way they're financed. In developed countries, buildings are funded by banks, which require insurance, which require inspections.
Building codes do definitely play a role. A lot of them are written in reaction to some tragedy (fire, earthquake, structural failure, etc). Here's an interesting assertion:
"the biggest potential saving of lives in rural areas lies in compliance with better building standards, so that homes and schools do not collapse so easily"
> My understanding is that buildings in developing countries are more prone to disaster because of the way they're financed.
You clearly haven't seen the kind of half-baked crap that comes out of unregulated construction. Even in places with established building code, certain outcomes aren't always guaranteed, e.g. the dumpster fires known as LA and SF.
The average salary for the top three ICC execs is $522,000/year (based on their 990s). Surprising for a non-profit. Hard to think they are cash strapped.
Through taxes, which your common citizen will gripe over because they don't see the value. Same reason we have crippling infrastructure paralysis (which, in some jurisdictions, is "fixed" with tolls).
I still think taxes would be superior for funding, but I see the need for the current methodology. The alternative would be comparisons to the GPG maintainer barely able to afford their bills. The ICC seems to be the regulatory code version of Let's Encrypt (backed by copyright law).
On the other hand, currently cities and municipalities end up including the development cost in their taxes anyway, because the main consumer of such codes (and thus ICCs main customers) are cities, municipalities, and states. Contractors are another major consumer I'd guess and the average individual is paying for those too. So actually paying for it in taxes would likely lower both taxes as well as construction costs, because it's likely ICC also compensates its employees really well.
Exactly. The cost is still passed on to the citizens, probably even more so. In addition, every year in the US, $4B is wasted in construction rework which is really dumb. One of the things we're trying to do at UpCodes is to create a checker for 3D building models to help catch some of these errors upstream. If we didn't have the fundraising to fight back against the lawsuit, we'd never have gotten to work on this.
BTW, it's not only government officials and industry people who have to read these laws, it's also all homeowners doing any kind of renovation or DIY project.
The cost of writing a pdf with standards in it is absolutely nothing compared to the mountains of cash they spend on absolute crap or just give away to friends.
I'm glad these guys are working on the problem but I'm sorry this article makes it seem like these guys suddenly discovered this problem.
Jim Warren is the reason all of the California code was opened up and put online in the 1990s.
Carl Malamud has been working on this for decades, and among other things is the reason SEC filings are all online. He's been working hard on building codes for many years too. His nonprofit is Public.Resource.Org
Another nonprofit, free.law, has several programs to free up other legal resources needed to understand the law.
UpCodes cofounder here. Fair point, and we definitely don't want to steal any credit from people like Carl Malamud and so many others who have devoted over a decade to this.
We're pretty new on the scene and unlike Carl who's an activist and whose main purpose is to protect the rule of law, we kind of stumbled into this lawsuit. We thought we were in the clear! Especially reading the case law, including the Veeck case (fought and lost by SBCCI which later became ICC) and seeing that Carl has most of the ICC materials on his site. We thought at the very least ICC wouldn't be able to relitigate this issue. It's bullshit.
Anyway, UpCodes wouldn't exist if it weren't for Carl Malamud, Corynne McSherry and Peter Veeck.
(IANAL) Good luck in your case, as it appears there is a government-created monopoly at work. I do believe ICC should own and control the copyrights to their work, however.
It seems wrong that local and state governments can both (a) release themselves of their own governing decisions by choosing a sole-sourced third party to write the regulations and (b) allow that third party to control access to the regulations at the same time. However, having myself visited an area in an underdeveloped country which was basically a shantytown, we should all recognize that building codes improve the lives of everyone.
The only real outcome that fits my IANAL vision of the law is to break up this monopoly and for local governments adopt and subsequently outline the codes themselves. The business could maybe then become selling those codes as a vendor to the government, but the governments themselves are the ones publishing them to their citizens.
The federal government forcing a state to enforce a federal statute would definitely violate the 10th Amendment if the state has laws against that. I think most states have building codes irrespective of copyright status.
However, the very scenario is covered generally by statute already. Regulations, even copyrighted ones adopted by an agency, must be publicly accessible to have the force of law. Freely accessible in most cases relate to having physical access to the text in some free way. This seems like something that can be solved very simply on the state level: just redefine publicly accessible to publicly accessible on the internet.
You have to be very specific about "publicly accessible on the Internet". This has to mean in a searchable, interlinked, HTML format.
What the NFPA[1] does with its codes is to make them "available" through this horrible Java reader applet that prevents you from printing, selecting, copying and pasting or doing anything except looking at one page at a time. Oh, and half the time it's broken, or you have an incompatible version of Java or some other nonsense. It's a mess.
[1] National Fire Protection Association. They publish the National Electric Code (NEC) among others.
Somehow it's not surprising to hear the NFPA Java reader is often broken. There's a perverse incentive: the more broken it is, the more money they make selling the law in book form. And then when they get to court, they can just say they already provide free access.
The stuff incorporated by reference has the force of law so should be freely available and resdistributable.
What's interesting is metadata: though court decisions themselves are not copyrightable, pagination and such (which is used by the courts to refer to other decisions) is. Disturbingly, when Malamud tried to publish Georgia's state laws he was accused of terrorism: https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St...
Well the previous poster was talking about eminent domain so in that case the government would set the price tag as it always does in eminent domain cases. However, eminent domain need not be used. The government could also purchase the copyright. Or the government could purchase a license that says something like "anyone subject to this law may copy/disseminate/etc. it" and simply make that a requirement of its procurement processes. Maybe the ICC doesn't want to play ball (and assuming no eminent domain), but in that case they wouldn't get any money at all (at least not from anyone bound by such a policy).
Of course this would change the business model, but it's not like there isn't a way to monetize the work in such a system.
It's vitally important that private business get involved in the issue, as well. I think the activists would say: Give UpCodes as much thunder as possible, and get a good precedent out of it.
Other companies, like FastCase, have been there, too.
So according to my reading - the ICC is an organization that makes building codes. Then they lobby state and federal governments to adopt them into law. Then they make their money by charging people for access to those codes. Talk about twisted incentives. No wonder building codes are becoming complex faster and faster.
> Then they make their money by charging people for access to those codes.
The entirety of ICC's building code as it applies to my state is both freely accessible by the general public on their website, and unlike other complete douchebag SDOs--looking at you, NFPA--it's actually usable. Anecdotally, I leveraged the crap out of the residential building code while contracting extensive rennovations to my home last year.
With so much liability behind them, building codes will always be relatively complex.
One correction: ICC organizes the committee of volunteers who write the laws.
That's how they have such massive profit margins and can afford to pay their CEO $742,000, when the median non-profit CEO gets $104,000 (see our references here: up.codes/free-law).
Either the law forcing you to follow it no longer can force such a thing, or the thing it is forcing you to follow is free to examine and understand. Forced ignorance of the law sounds like an excuse to me.
If "codes" can be held in secret by corporations until you pay them, could any law be a such? Could the rules of the road be shifted from the law books to secret laws too?
Secret laws trouble me greatly. They go fundamentally against the rule of law.
Yes you are subject to laws you cannot legally know about. Check out Gilmore v. Gonzales: the case was dismissed as the law was classified so could not be discussed in court!
Do you have a source for this claim? I'm only finding sources saying the case was dismissed by the supreme without comment[1], and the 9th Circuit Court of Appeals did rule on it (in favor of Gonzales)[2].
Right, but you said it "was dismissed as the law was classified so could not be discussed in court", but I'm finding nothing that confirms that as true.
Check out the court's order: https://papersplease.org/gilmore/_dl/GilmoreDismissal.pdf (at the time it was Gilmore v. Ashcroft). The important part is buried: "As a corollary, without having been provided a copy of this unpublished statute or regulation, if it exists, the Court is unable to conduct any meaningful inquiry as to the merits of plaintiff's vaguenesa srgument". I was in court for the hearing; the government declined to provide any law or regulation requiring showing of ID yet asserted that showing of ID was required; the judge said (in the section I quoted) that as she couldn't see any law she couldn't make a judgement.
Most of the order is dismissal of the other claims on jurisdictional grounds and the appellate court (which by statute is primary, not appellate in this case) declined to take the case. As it is primary, this seems strange to me.
Thank you for the link. It sounds like they are talking about a TSA regulation, and not necessarily a law, though.
Still very interesting, however, and I appreciate you following up.
Executive branch regulations (though not executive orders) are considered law (called “administrative law”), have the force of law, and are litigated in the courts same as law passed by Congress (unless Congress specifies otherwise, as with the ones the district court said it did not have jurisdiction over).
I was in the courtroom when the case was argued and it was clear the judge was looking for a good reason to throw it out rather than issue a ruling.
The law is enforceable, so you are subject to it while you don't know that it even exists.
The various no-fly and watch lists are like that too -- consider Rahinah Ibrahim who was accidentally placed on the no fly list in a Brazil-like incident. The government tried to bar her from fighting it or even explaining what happened.
Really writing or enforcing secret laws should be a capital offense with no defense allowed and proof of involvement and even absolve murder. There is no such thing as "too harsh" against such mad tyranny and usurpation.
check out the patriot act, and the way laws can be written but are too secret to reveal to the public, such "dark laws"
are not an issue for patriotic americans so you dont need to know anything about them.
basically only terrorists need to be concerned about these secret legal devices.
I've run directly into this with regards to the National Electrical Code. As an engineer doing your own home wiring is dead simple, but does require reading the specific practices if you want your work to be "to code", which is a generally good idea for liability reasons and your own safety. Public.resource.org used to have the NEC up, but took it down I think out of prudence/capitulation rather than a hard legal judgment. It's of course still easily available through torrents.
The only sensible model is that in order for a state (or other AHJ) to incorporate a code into law, then it must license it for the purpose of doing so. States would then directly pay code bodies for writing the codes, and could weigh for themselves whether it really makes sense to pay for revisions every 3 years.
Of course the code bodies don't actually want to just do this. What they want to do is the classic rent seeking model of installing their hook into government "for free", and then extracting a toll on each individual user in the form of official code books, prep manuals, etc. But this is directly incompatible with the rule of law, as the case law has been casually demonstrating.
(PS if you want an example of how much sway trade guilds still hold over local governments, check out Ernst Meyer vs Town of Nantucket. It's not about code per se, but about the general right to work on one's own home)
Same exact thing for the HIPAA regulations; they're written by a 3rd party who owns the copyright to them.
It's maddening that the government can simply wholesale adopt a code and not make it public. The feds, or at least the states individually, should hire experts to write the codes that are used by the public. Anything else is a travesty.
I think its totally acceptable for the states to adopt codes written by an independent organization, as long as in the end, people subject to the codes can access them without restriction.
I think the grandparent is right, the only viable business model is for states to pay a license to incorporate the codes into the law. We'd need to rewrite copyright law somewhat for that to work, because the code-writing agency needs to retain the ability to sell a license to more than one state, and sell a license for updates to the code, and to stop other people from making derivative works and trying to sell those to the states.
Most of the organizations are extremely flush with cash and most of it is not from selling the law.
That includes the organization in this article, ICC. The majority of ICC’s revenue comes from program services, including consulting, certification, and training, which do not rely on profiting by limiting access to the law. ICC makes a lot of money. Attempting to copyright the law is unnecessary.
A) Buy out specifications to release to public domain as part of the law.
B) Pay government workers / contract outside entities to perform work under the same restrictions as government workers: the results of work becoming public domain.
Seems like writing laws for the government should be work for hire. Once it is done the copyright is transferred to the government and then opened to the public. The organization gets paid, everybody is happy.
> Same exact thing for the HIPAA regulations; they're written by a 3rd party who owns the copyright to them.
That's not actually true: HIPAA regulations are adopted by the federal Center for Medicare and Medicaid Services within the Department of Health and Human Services under statutory authority in HIPAA.
However, there are a large number of private IT and other standards that are directly mandated for certain uses under those regulations (and, in many cases, those standards themselves incorporate other private standards.) Some of these standards are free-of-charge, others are not.
Right, following the fire laws when doing any work at home is not just a good idea, but required for safety of you and others in your vicinity.
You can be charged criminally for not following these laws that are behind paywalls.
In the ASTM v Public.Resource.Org case, I believe you are right, PRO agreed to voluntarily remove the laws while the case goes on. But that case has been going on since 2013 (https://ia801306.us.archive.org/33/items/gov.uscourts.dcd.16...). I suspect the law publishers are quite happy to have it drag on for another decade. The NFPA (publisher of NEC) makes over $80M a year, and the CEO is very well paid.
A worrying alternative outcome could be that codes are copyrighted, posting them is copyright infringement, but that such non-public codes do not carry the force of law.
I obviously hope this doesn't happen, but it would be a logically consistent outcome. This would then "shatter" the argument into many impractical state-level lawsuits over judgment calls where an AHJ declared something unsafe because it didn't follow the letter of the code (even though it's not actually law), and non-code-buying individuals would each be left fighting uphill battles to prove their work was safe - effectively the shape of the Meyer reference I posted above.
I too would interpret and act within an understanding of the law that since our government has paid a licensing fee to UNIDROIT on behalf of the people that the copy written is freely available to each citizen under fair use. Rent seeking corps and their lobbyists are trying to make that difficult by writing a lot of scary cease and desist letters full of hot air.
... so goes their argument. Yet for their "free online access", the first thing one is greeted with is a requirement to make an account, presumably entering into a contract, meaning it's not Free. In addition to pegging your CPU because you have to use a javascript browser to view it, terrible navigation controls, and most likely preventing copypasting, and printing. From a practical user-friendliness perspective, I'd really just suggest torrenting the pdf and getting on with your project.
If one doesn't actually want to digest dense technical specifications, I'd recommend a practical book distilling the subject down to what's relevant. The local library likely has such books, along with a copy of the full NEC.
If you were simply trying to be helpful by pointing out a practical avenue of access, then the following rebuttal isn't directed at you. But from an abstract legal perspective, the whole point is that a private entity should never have the privilege of owning the law, and them being kind and gifting some limited form of access does not change this.
While this is technically true, you are expressly forbidden from printing it or saving a local copy. Moreover, they are not made available in a format that is searchable or otherwise conducive to actually finding what you want.
In other words, if you want to actually use them without being constantly annoyed, you'll have to pay up.
In California, all the codes have an open-access version online (https://www.dgs.ca.gov/BSC/Codes). On the state website, some codes are more user-friendly than others; for example, the ICC Building Code has PDFs of each chapter that prohibit copying and printing, whereas the IAPMO Uniform Plumbing Code is a javascript app that allows you to flip between inaccessible images but not select or copy. Archive.org also has scans of the PDFs (https://archive.org/search.php?query=subject%3A%22bsc.ca.gov...) (from Public.Resource.Org, described by other comments here), which allows saving. Up.codes is much more user-friendly than either (https://up.codes/codes/california), since it allows you to search for a word and link to a specific code section and is mobile-friendly. I am very thankful that up.codes exists and has been expanding rapidly.
I am curious how far the open access decisions will reach. The building standards are incorporated into the law with amendments, so the state collaborates with the standards bodies to publish them. But these codes also reference many other standards published by ASTM, ASME, NSF, etc. by reference only (e.g. the pipe geometries, thread widths, manufacturing and testing methods). Do open access decisions cover these standards bodies’ publications too? I wish they did.
Copyright doesnt always mean no-one else has rights to it.
The idea of copyrighting a publication of legal statutes or codes could have some good, but the idea of obstructing the publics access to regulations, laws, or codes, and then somwhere down the line this problem goes away in exchange for money, is absolute despotic kruft.
so finacially challenged people have impaired opportunity to understand the law, its already an issue when there are mainly online disseminations of statues, and no physical text in easy reach. The technically challenged people have no access to the text of law in digital form, furthermore there is an issue with privacy that could come about.
No-one should have to Pay, login, sign up or give PII in exchange for access to text of legal statutes, something that is public property and derived from public monies remitted to an elected government acting within its bounds of authority.
>The idea of copyrighting a publication of legal statutes or codes could have some good
No it cannot. Copyright grants things called "exclusive rights". They are called such because, absent copyright, nobody is excluded from them. There is no good whatsoever in hindering people from copying, distributing, publicly performing, or creating derived works from existing laws or regulations.
I'm not sure what you're trying to accomplish by saying "Copyright doesnt always mean no-one else has rights to it." It's like saying shooting someone's leg doesn't mean you shot their arm. Copyright's sole purpose is to exclude rights from people who would otherwise have them. Pointing out that it doesn't take away all rights doesn't add to the discussion.
>There is no good whatsoever in hindering people from copying, distributing, publicly performing, or creating derived works from existing laws or regulations.
This isn't true. Let's say we decide that our copyright registry requires the submission of a full work to the government for archival purposes so we can compare a given work against the registered copyright. We'd obviously want someone to be able to check the register, but not gain the right to print someone else's registered work for sale commercially. If we didn't have any hindering, we couldn't actually run the registry at all!
The discussion here presupposes that all works which relate to regulations or laws do not have any independent value outside of their legal function, which isn't necessarily the case.
That said, when it comes to the text of legislation or a building code, your assumptions hold true. Just don't design a policy solution ignoring the other edge cases, though :).
if the public owns the legal text under a copyright then some 3rd party cant use that text to make money, and eventually claim it as thier own works, due to formatting, and secretarial time requireing offsetting revenue.
> No-one should have to Pay, login, sign up or give PII in exchange for access to text of legal statutes, something that is public property and derived from public monies remitted to an elected government acting within its bounds of authority.
So where's the utility in permitting the codes to be copyrighted? How could the public benefit from this?
Thank you, glad to get such a supportive response from folks. After keeping quiet about it for a year and a half, it's good to finally get this lawsuit some attention.
Reminds me of "Brazil" (1985), the Ministry of Information Retrieval (euphemism for torture) and their capital efficiency:
> I understand this concern on behalf of the taxpayers. People want value for money. That's why we always insist on the principal of Information Retrieval charges. It's absolutely right and fair that those found guilty should pay for their periods of detention and the Information Retrieval procedures used in their interrogations.
> Don't fight it son, confess quickly. If you hold out too long, you could jeopardize your credit rating.
Where do we send money? If you don't need it to pay for lawyers, buy some beer for yourselves, because this fight should be settled in favor of free (gratis) access to the law for everybody once and for all.
Hey thanks for the support! The best thing you can do is just raise awareness. Either sharing this article or our advocacy page (https://up.codes/free-law) to raise awareness helps.
It's hard to get most people to care, but this really does affect everyone.
I am pretty much the last person on the planet who should be telling people how to use social media, but if you aren't on instagram, you should be. There's a pretty vibrant community of people in the building trades on there sharing photos of their work and exchanging information.
I'm a recovering programmer turned woodworker with a pretty small following (200 and some followers, like I said, I'm the last person who should be telling people how to use social media), but I follow some carpenters and I'm consistently impressed with how much genuinely informative discussion takes place.
Really interesting issue you guys bumped into. I totally would have assumed that US legal codes were clearly and explicitly exempt from copyrights.
Can you talk about your plan to defend your position at all? I'm somewhat curious if the ICC has a demonstrated history of licensing their codes to US governments. When cities & states publish the codes in print and online, presumably the ICC would need to be licensing those codes in written agreements, if the ICC's position has merit. It seems like it might be a problem for their case if they can't show a history of having granted copyrights everywhere the codes have been published before.
Even though I think laws shouldn't be copyrightable, I have a small amount of sympathy for the ICC saying they did work that is now being used without any compensation. Hopefully they will update their expectations and figure out how to charge for some additional value beyond the text of the legal codes. But I'm also curious if you guys have started exploring any peaceful solutions such as revenue sharing, or paying the ICC for versions of codes, or support, or annotations, etc.?
Yes, we assumed that too until we got sued! We thought we were all good after reading about Veeck case (in which ICC, whose codes we thought we could very safely put up, lost in the 5th circuit).
I believe the ICC and state governments do reach agreements. For example, the Michigan state government's site instructs citizens to go buy the laws from ICC. Fun fact: the only play to read these Michigan laws for free online is UpCodes. We bought the physical books, sliced, scanned, OCRed, ingested and posted them.
In terms of our plan, we're relying a lot on case law. We put 4 very clear examples on our advocacy page. (up.codes/free-law, see "Didn't ICC already litigate this case?" under the FAQ)
> I have a small amount of sympathy for the ICC saying they did work that is now being used without any compensation.
Just don't forget that the codes are written by volunteers who never see a penny AFAIK. ICC organizers the volunteers (which is an important time-consuming task I do recognize).
Also, don't think they have no compensation. The majority of ICC’s revenue comes from program services, including consulting, certification, and training, which do not rely on profiting by limiting access to the law. Their CEO makes $742,000 in salary, which is arguably a bit high for a non-profit.
Thanks for the update. I hope you guys win for the sake of all of us, but for the sake of your startup I hope you don’t have to spend time in court. Laws shouldn’t be copyrightable not only for reasons of public access, but IMO also to specifically deter commercial interests from writing the codes, and to deter companies from making profits off of publically funded labor.
Right, we did not. In addition, we've heard from a ton of people asking how we were able to do this. They each have a story about trying to do something in this space and trying to work with ICC (or one of the other ones) and getting nowhere.
Half the stories are about people failing to convince them to let them touch their laws and half are about people who just assumed they're in the clear and then get a letter with 12 top corporate litigators saying they'd be suing them personally in federal court.
I happen to be at a point in my life where I don't have much to lose and hence when I fell into the second bucket, was able to fight back. But yeah, they're trying to personally bankrupt us.
But to answer more directly, we host the law. If we change the precise wording of the law, then that's unacceptable. If you being tried, you can't say "well, I followed this alternative law and if you read that, you'll see it can be interpreted differently". No, the exact text of the law is the law, nothing else.
But the law says standards of X. If the law prevents people from understanding X, then I would think one could argue that the law itself doesn't go into enough detail.
If X isn't bound as part of the law, and it can't be re-stated while keeping the intent in tact, then imho it should be effectively invalid. Just my own opinion, not something the court system would uphold necessarily.
I do find this appalling in practice. I would have less issue so long as the copyright holders for any legal specifications were limited to non-profit organizations with open accounting provisions.
Under Catholic social teaching (not that it matters here in particular, but using it as an example of a system of thought that's been around for a while), a law that has not been promulgated (i.e., been made generally available) cannot hold the weight of law.
If I can't freely access building codes when/where I want them, then I shouldn't have to comply to them. If you cannot know the law, you shouldn't be required to comply with it.
There are many required fees if you want to follow the law. Building permits, drivers license, car registration, the list goes on. every bit of it is awful.
I'm more angry about accessibility than I am over cost. The law should be freely accessible, and in this day and age, freely available online. I have less problems with access fees for permits/registrations, etc. Though I feel a lot of taxes are generally excessive.
This reminds me of another story which came out today: Congress Is About to Ban the Government From Offering Free Online Tax Filing. [1] This is a privatization of the government.
Who on earth is trying to make any kind of argument that laws constitute creative expression? From the laws I've read, they seem to embody a perfect example of the polar opposite of creative expression.
I don't think the idea is absurd on its face. Stuff like the building code or similar engineering standards doc will involve significant judgment in balancing competing concerns, just like a drawing of a bridge.
If you cannot read the laws you are subject to, should the government be able to punish you for breaking them?
If the ICC wanted to keep their work papers private, they should not lobby to get the enacted as laws and code. No one is forcing them to lobby their rules to state houses & cities.
In the age of the Internet, where data storage and transmission costs are effectively $0 for basic text documents, there is absolutely no excuse for all laws and codes to be 100% public domain.
It's not as if the government has to print a physical book for every citizen.
Fair enough, but that's a different argument from "it is 100% categorically wrong for anyone to have to incur any material cost to access the laws". If travel has costs and you have to travel to the library to learn it, that already violates it.
And you're still sidestepping the issue of the codes having a cost of production like any intellectual work, in terms of deciding e.g. the optimal balance to put in terms of safety vs cost of a building code. It doesn't cost for each access, but they do have to amortize that cost, and it makes sense for the cost to be allocated toward those who do specialized work in that domain.
In fact, I would go even further and say that it should be illegal to force somebody to follow laws and regulations that are not publicly and easily accessible. By this I mean that people enforcing this or pushing for it should be punished. It's basically racketeering.
If the law be copyrighted, I can violate the law without getting the chance of knowing it since it's copyright protected. In that situation, I won't be responsible for the violation since the law is effectively secret to the public.
> "Now ICC has made its codes available online for free. All you need is a phone in your hand or internet access to know what the codes say,” says Fee.
> Its codes
But they aren't the ICCs codes, they are laws. If they were non-legal industry standards a builder agreed to uphold as part of guild membership, then sure, they're ICCs property. But they're not.
Is a lawyer allowed to copy-paste or take screenshots "ICC laws" for use as evidence? One doesn't need private party permission to cite other sections of the law, and it's a damn slippery slope to start treating sections of the law differently.
>Its model codes and standards are developed by committees made up of volunteers from its membership and ICC staff. The ICC lobbies for the code to be enacted into law, and earns revenue by selling code books and running accreditation programs.
They are the ones that come up with rules to follow, then they lobby the government to make the rules into law, and then sell access to the rules/law. How is this not a racket?
Not only that - aren't they also a monopoly that is abusing their monopoly position?
Wow, wasn't aware. To our understanding, EU also has relatively homogenous building codes. It's the place we've thought we'd probably expand if we ever go international in the distant future.
There are two cases dealing with a directly analogous issues about to come up for argument in front of the Supreme Court of Canada.
The AG of Canada has taken the position that they're immune to copyright and can do whatever they want. By contrast, some amicus filings indicate they want these types of documentation to fall within the public domain.
It'll be interesting to see what solution is adopted, but I believe that there's a more intellectually-consistent, scaleable solution which is not in front of the courts that addresses the issues directly and with minimal fall-out to other stakeholders. Unfortunately, I only caught the ear of a few of the counsel after their filings were already done, so I don't think the proper solution will even be in front of the court.
That said, there's plenty of hope, and I'm glad the issue is in front of the courts. I do, however, find it strange that UpCodes settled while the founders were named directly but not included in the settlement.
There's a few working pieces. There's significant jurisprudence starting as early as Roman times on the idea of 'law like' instruments garnering protections by virtue of their role in public regulation. The UK has a number of very plainly stated cases on the matter that are pursuasive in the US as well.
Some attempt to attenuate copyright's ability to exclude in the case of law-like works by using carve-outs in copyright, but this solution isn't scaleable - Fair dealing and Fair use are consistently under siege, attacked in international-level agreements and interpreted fairly inconsistently between jurisdictions.
Instead, my proposal is to treat law-like documents as being in the public domain but only to the extent that they are being used for their law-like purpose.
Accordingly, even if we change the nature of databased works in the future, we 1) assure the access of the public to codes, regulations, registration documents and other key elements of law, 2) ensure that the government's treating of these documents is not hampered by transmission or duplication restrictions arising out of copyright, and 3) protect stakeholder interests by restricting the scope of use to the areas where there is a public purpose to the dissemination of these works.
I can send the case names privately if you'd like.
In fact an average citizen or a resident of a particular country usually doesn't know even 1% of its laws and can't get the laws to read for free - you have to either buy books or a DRM-ed database, all these are copyrighted. I actually find this ridiculous, if a state wants people to comply to its laws it should make all these laws easily available to everybody for free.
Another possibility is for the states to publish the codes on their web sites, then the state would pay the copyright holder (out of their state budgets) for each person that accesses the code. Full copyright would still be in force, and per copy royalties would still be sent to the rights holder, yet free access is still available to those who the law applies to.
What is the copyright holder contributing in this case? The government is passing laws and providing the access to them. Citizens aren't paying anyone for access. I'm not sure what the third party is doing that it should be getting paid in this situation.
What's the copyright holder doing in any case? They're the one that created the work! (Or who bought the right from the one who did.)
I don't even know where your question comes from.
"Yeah, nice. So you wrote a book, blah blah blah. What are you doing for me now? Why should I pay you anything? The text of the book already exists? You're just deadweight now."
So in the case of copyrighted laws in OP's scenario: The government passes laws (creating the text) and then someone or some company buys the rights to the text of the laws. Then the government (who created the text in the first place) pays the person who paid them to be able to display the text on a website?
And you can't see why I would question such a situation?
No, you mischaracterized the scenario. It's more like, a professional association writes their definition of how to build something while being "sure enough" that it won't flood, collapse, electrocute you etc. The government says, "oh, yeah, sounds right. Everyone has to do it that way." And then pays that group royalties whenever someone wants to check that they're in compliance.
That's no different from any other copyright situation, in terms of producing something of value and having to be paid for each copy, except that the government has propped up demand by making it the law and absorbing the royalty cost.
Make the jurisdiction keep a hard copy in every library and city hall / state building that it controls.
Contractors will buy a copy. And any novice that just wants to DIY can go look up the rules for free. And the copyright holder gets the sales from the library and city halls sales.
Not only is it covered under copyright, the vast majority of ours is the intellectual property of UNIDROIT and it's merely licensed to member countries. Our legislators merely approve with the weight of authority, or disapprove, on behalf of their constituents. See Uniform Commercial Code et al.
The article suffers from misuse of the term "the law", which throws the wrong focus on things.
In common law countries, copyright developed in England, which has always had a concept of Crown copyright.[1]
Legislation has always been subject to Crown copyright. So the answer to the article's heading is "yes, as has always been the case".
However, the real problem is different: legislation often gives binding force to things not produced by the legislature. This includes texts of international treaties (in common law countries other than the US, legislation is needed to give them municipal effect), and sometimes even laws of other jurisdictions (eg many Australian legislative regimes are based on the laws of one State being "picked up" and applied as if they had been enacted by another State).[2]
The particular problem is when legal force is given to a document that is produced by private parties. That document isn't a "law" in the usual sense, but legal obligations (and rights) can be imposed/created by actual laws by reference to its contents. eg: you must build to a standard, which is defined as a document produced by standards body X, and suffer a penalty or have your building liable to be demolished if you don't.
The problem addressed in the article is when those non-laws are given legal effect by actual laws. It should be the case that a citizen can find the entire contents of laws that bind them. There are areas of discourse in jurisprudence about it being fundamentally unfair if there are "secret" laws that a person may contravene but cannot know about to avoid contravening. The present topic comes close - the person has to pay to know the full extent of the law that binds them.
This is a policy issue, not a copyright one. Private documents like this will be subject to copyright because they are literary works.[3] The question is how to avoid the moral unfairness in one having to pay to know what one is required to do. Many solutions exist, eg compulsory licensing, a payment by the government in exchange for a creative commons style licence, etc.
The counter argument is that it takes expertise, time and money to create and maintain these standards, and if standards don't cover things to do with everyday life (eg obligations for driving, laws about what you can and can't do on the street) but are restricted to things like building or industrial activities (eg earthing requirements for high voltage installations), then these aren't standards that can be contravened by chance, but only apply if you undertake project X. So if someone wants to do project X and needs to comply with a paid standard to do project X, then doing so is a cost of doing project X.
TFA discusses this issue: building codes are relevant if you want to undertake building work. Should there be an extra cost of doing so, noting that you will already incur application/permit costs, inspection costs, etc in addition to the materials and labour?
We have exactly this issue in Australia: things often have to be done according to Australian Standards (which now often also double as New Zealand standards), but these are supplied by a private company that produces and charges for them. eg if you want to buy the standard AS 1926.1-2012 - Swimming pool safety-Safety barriers for swimming pools, a hard copy is A$152.66 and a soft copy is A$137.39.
So the question is - if someone wants to put in a swimming pool, is it wrong that they have to pay and extra amount to get a copy of the standards that they must build to?
1. https://en.wikipedia.org/wiki/Crown_copyright
2. This is a dark art, and has all sorts of conceptual and practical problems, but it is done.
3. I leave aside the massive expansion in what is protected under copyright, another policy question but one that content creators have decisively won.
In order to understand the Law, we need to know the meanings of words laws are written in. If we follow the logic that some are proposing here, the government would have to license a dictionary and provide it for free to all citizen. That'd be plain silly.
Building codes just provide precise definitions of what constitute safe construction. They aren't laws themselves.
Definitions are definitely part of the law when words' common parlance meaning are not used in the law.
The question here is should the cost of writing a technical piece that make up the law be placed on those who must follow it? Or should the cost be spread out to all tax payers?
The notion that anything the law references becomes the law is quite absurd. Healthcare laws require insurance companies to cover the latest in preventive cares. Does that suddenly make various medical journals part of the law? Of course not.
I think that society as a whole should bear the costs of regulations it imposes, regardless of how narrow they are, so that the balance between practical gains from the law and the costs of its enforcement is more broadly considered. When laws are written in such a way that their enforcement is borne by a small subgroup for whom they're relevant, the rest of society tends to ignore the costs, even if they're large, and focus on the benefits, even if they're small. It basically encourages tyranny of the majority.
(Courts should not be funded via court fines, and prisons should not be funded by inmate labor, for similar reasons.)
It sounds like UpCodes is making the argument that access to the building codes shouldn't be restricted so that they can build a business selling access to it. Yes, they will have a free version, but their idea is that people will pay them instead of ICC.
I don't think UpCodes is selling "access to building codes" so much as they're selling access to a platform for planning, tracking, and monitoring compliance with building codes. The building codes are a fundamental piece of what they're selling but it's not the entirety of what they're selling.
That's right all the codes are freely accessible. Users have to pay if they want to use our search engine and collaboration tools.
We started UpCodes for a couple reasons: one is to make money and build a business, another is because it seemed fun and interesting work, another is because we think this was important that no one was tackling (simplifying compliance, not the lawsuit which was unexpected and very unfortunate).
> their idea is that people will pay them instead of ICC
No, that's not right. Although, I admit I am pretty upset with them, they caused me a lot of personal anxiety of the last 19 months.
But ICC makes most of their revenue from program services, including consulting, certification, and training[1]. We haven't every thought about doing any of that, so their primary revenue stream is very much safe. The also have membership dues which are quite significant too.
I didn't read through the whole report and I'll admit it's not entirely clear what all the line items are, but (1) the "program/member services" cost more than the revenue the "program services" generate, and if "product sales" does represent their sales of access to the standards it's well above a third of their revenue. IIUC, they're a nonprofit, so those sales, and the potential loss to a competitor are the difference between solvency and insolvency.
> another is because we think this was important that no one was tackling
Maybe I'm just tired of the "disruption" economy, which as I see it is (1) find a way to avoid paying for things that other businesses have been paying for, (2) claim you've found a better business model, (3) profit. c.f, Uber, Airbnb, Monkey Parking.
In the "old days" you would have partnered with ICC, and built a better product together. But that's not exciting enough. Instead, you're doing it "disruption style" and trying to see what you can get away with. But face it, if you're successful, you're ruining peoples livelihoods. AIUI, these code standards are not some lunchtime conversations put together by politicians, they are specific, detailed requirements done by professionals for professionals, and one of the defining characteristic of being a professional is that you expect to be paid for your work.
The question of whether the law can be copyrighted is a valid one. Legal publishing companies have been dealing with this question for a while now (the most common way of citing court cases comes from a private company). But people are also entitled to be paid for their work, and you can't upend the system until you solve that problem too.
The ICC v. UpCodes lawsuit is clearly one important front in this battle. Another potential route to ending this would be for a licensed contractor to sue the government for failing to make freely available the building codes under which he/she is legally bound. The legal argument (and thus the government's legal duty) would be crystal clear in a case like that, especially because both civil and criminal law requires such adherence.