It sounds absolutely batty that there is a strong, bipartisan push to lock up aspects of our law behind copyright. But it’s happening. Even worse, the push is on to include this effort to lock up the law in the “must pass” National Defense Authorization Act (NDAA). This is the bill that Congress lights up like a Christmas tree with the various bills they know they can’t pass normally, every year.
And this year, they’re pushing the Pro Codes Act, a dangerous bill to lock up the law that has bipartisan support. The House bill is being pushed by Darrell Issa (who was once, long ago, good on copyright law) and in the Senate by Chris Coons (who has always been terrible on copyright law). We wrote about the many problems of the Pro Codes Act back in April, but Issa has still submitted it as an amendment for the NDAA (it’s Amendment 1082, so you have a bunch of scrolling to get there).
We’ve discussed a lot of this before, but it’s pretty deep in the wonky weeds, so let’s do a quick refresher. There are lots of standards out there, often developed by industry groups. These standards can be on all sorts of subjects, such as building codes or consumer safety or indicators for hazardous materials. The list goes on and on and on. Indeed, the National Institute of Standards and Technology has a database of over 27,000 such standards that are “included by reference” into law.
This is where things get wonky. Since many of these standards are put together by private organizations (companies, standards bodies, whatever), some of them could qualify for copyright. But, then, lawmakers will often require certain products and services to meet those standards. That is, the laws will “reference” those standards (for example, how to have a building be built in a safe or non-polluting manner).
Many people, myself included, believe that the law must be public. How can the rule of law make any sense at all if the public cannot freely access and read the law? Thus, we believe that when a standard gets “incorporated by reference” into the law, it should become public domain, for the simple fact that the law itself must be public domain.
This issue has come up in court many times in the past few years, mostly led by Carl Malamud and his Public.Resource.Org, that spent years trying to share various laws to make sure that the citizenry was properly informed. And yet he has been sued multiple times by those who claim their standards are private and covered by copyright.
Four years ago, there was a big victory when the Supreme Court sided with Malamud in a similar (but not identical) case regarding how the state of Georgia published its laws. In that case, Georgia partnered with a private publisher, Lexis Nexis, to publish the “Official Code of Georgia Annotated” and while Lexis would craft the “annotations,” the state of Georgia still considered the OCGA as the only truly “official” version of the law. When Malamud tried to publish his own version of the OCGA to make it more accessible, he was sued. But the Supreme Court made it clear that copyright cannot apply to “government edicts” and notes:
The animating principle behind this rule is that no one can own the law. “Every citizen is presumed to know the law,” and “it needs no argument to show . . . that all should have free access” to its contents.
Still, that did not get at the specific issue of “incorporation by reference” which is at the heart of some of Malamud’s other cases. Two years ago, there was a pretty big victory, noting that his publishing of standards that are “incorporated by reference” is fair use.
But industry standards bodies hate this, because often a large part of their own revenue stream comes from selling access to the standards they create, including those referenced by laws.
So they lobbied Congress to push this Pro Codes Act, which explicitly says that technical standards incorporated by reference retain copyright. To try to stave off criticism (and to mischaracterize the bill publicly), the law says that standards bodies retain the copyright if the standards body makes the standard available on a free publicly accessible online source.
A standard to which copyright protection subsists under section 102(a) at the time of its fixation shall retain such protection, notwithstanding that the standard is incorporated by reference, if the applicable standards development organization, within a reasonable period of time after obtaining actual or constructive notice that the standard has been incorporated by reference, makes all portions of the standard so incorporated publicly accessible online at no monetary cost.
They added this last part to head off criticism that the law is “locked up.” They say things like “see, under this law, the law has to be freely available online.”
But that’s missing the point. It still means that the law itself is only available from one source, in one format. And while it has to be “publicly accessible online at no monetary cost,” that does not mean that it has to be publicly accessible in an easy or useful manner. It does not mean that there won’t be limitations on access or usage.
It is locking up the law.
But, because the law says that those standards must be released online free of cost, it allows the supporters of this law, like Issa, to falsely portray the law as “enhancing public access” to the laws.
That’s a lie.
If we recognize standards incorporated by reference as being public domain, that enhances access. It allows the law to be published and shared by anyone. It allows the law to be presented in different formats and systems and in ways that are actually useful to more people, rather than relying on the one single source (the one who often has incentives to make it limited and hard to access, buried behind questionable terms of service).
On top of that, the idea that this law belongs in the NDAA is ludicrous. It flies in the face of the very fundamental concept that “no one can own the law,” as the Supreme Court itself recently said. And to try and shove it into a must pass bill about funding the military is just ridiculously cynical, while demonstrating that its backers know it can’t pass through regular process.
Instead, this is an attempt by Congress to say, yes, some companies do get to own the law, so long as they put up a limited, difficult to use website by which you can see parts of the law.
Library groups and civil society groups are pushing back on this (disclaimer: we signed onto this letter). Please add your voice and tell Congress not to lock up the law.
