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Comment by speedplane | Hacker News Reader

This is just one of many fights concerning free access to the law. There are easily three other lawsuits going on now that I can think of concerning the issue, and the underlying issue is pretty basic: the public should have free access to the rules that govern them.

Sadly, there are a number of incumbent commercial interests in both the government and private sector that fund themselves by being gatekeepers. There is just a small group that seeks to free the law for moral reasons and a few more that do so for legitimate commercial interests, but they have an uphill and lonely battle.

I fear that lawsuits like this are not going to be sufficient (judges often decide cases in the middle, not on absolutionist moral principles).

The real answer will likely have to come from legislation, and free access to the law does not seem to be anywhere near the top of most politicians (or citizens) priorities.

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> Sadly, there are a number of incumbent commercial interests

This sentence basically sums up all that’s wrong with America in 2018.

What will the legislative fix be? Governments can’t just decide to make these privately developed standards free for public use. So they can pay to free it up (costs the taxpayers money) or they can write their own standards (costs tbe taxpayers even more money).

Someone has to bankroll these efforts. The way it happens now is that the people who need the standards (the ones building regulated products) are the ones that pay for standardization. Indeed, they might well be ASTM members themselves (the ASTM has 30,000 members, including producers and users).

So you’re asking the public to take on a major expense to vindicate the abstract principle that, if some random person wanted to look up what the standard requires, they should be able to do so for free. That might well be what the Constitution requires. But you can see why nobody wants to do it.

If the standards are expensive to develop and maintain, seems better to require a license to implement a standard, or a fee to validate compliance to the standards. But anyone should be able to view them freely (if they are required by law)

Keeping them secret to practicioners-only seems perverse. And if they’re expensive, this is the effect.

To use an example from the opinion, consider the ASTM standard for diesel fuel. ASTM has been involved in automotive standardization since the 1910s and 1920s: https://www.astm.org/COMMIT/D02/timeline.pdf. (ASTM was founded in 1898). The diesel fuel standard was first published in 1948. 42 U.S.C. § 17021, which incorporates it by reference, was enacted in 2007.

That’s not necessarily true for every standard, but in general the industry creates the standard because it needs to; the government comes along later and mandates use of standards that have already become widely adopted and time tested.

How is the standard verified in practice? If it’s a device, it could be license fee on the device. If it’s validated by a lab, the lab could pay a fee to validate to the standard.

But the standard should be freely published if it’s a law

I research many more things than I build. It seems bizarre to collect fees from me when I’m researching an idea rather than when I implement it

In the case of standards incorporated into building codes, it would be verified by a county building inspector. But in most cases, I'd imagine verification only happens if there is a dispute about compliance.

I'd agree with your last point but only if reworded slightly: "the law should only rely on standards that are freely published." To me, this is where public.resource.org is barking up the wrong tree. The obligation to ensure free access to the law rests squarely with the government. It's not ASTM's duty to allow free access to standards that the government incorporated into a standard. If the government wants to use copyrighted work, it should enter into appropriate arrangements with the standards organizations that produce it.

Federal law determines copyright, not the constitution.

> The obligation to ensure free access to the law rests squarely with the government.

Equal protection clauses and First Amendment control here. Otherwise there is secret law.

In a degenerate example, "the crime of murder and a proper defense shall be determined by standard 451 from the Bradbury Institute." The Bradbury Institute will be happy to sell a copy of that standard for $100 million.

Copyright is created in the constitution. Once granted, it is a constitutionally protected property right. Equal protection and first amendment “control” but so does copyright. All must be given effect.

To use a different example: the government makes a law establishing yor back yard as a polling place for federal elections. Surely, you agree that peoples’ right to vote cannot to be vindicated if they can’t freely access polling locations. But that doesn’t mean that you are obligated to let everyone onto your property! The law is the problem, and the government is at fault for failing to ensure that polling locations are publicly accessible.

> Surely, you agree that peoples’ right to vote cannot to be vindicated if they can’t freely access polling locations.

There is no right to vote. So the rest of your case does not apply.

Furthermore, I don't agree at all with your analogy. I feel that it is fundamental requirement to have complete access to the law. So any examples, that result in arguing to the contrary I disagree with up to and including the "taking of property".

> But that doesn’t mean that you are obligated to let everyone onto your property!

This is also not true. The legal concept of "Easement by Necessity" ( https://www.legalmatch.com/law-library/article/easement-by-n... ) applies so once again your example is incorrect.

Copyright is not created by the Constitution. The ability to create and enforce copyright is created by the Constitution.

The particular constitution clause only permits congress to grant copyright exclusivity if (and to the limits) it wishes to; it doesn't require the congress to grant this exclusive right in any particular scope or even at all - it's up to the congress to decide.

Except this case addresses standards which are already copyrighted. (The laws incorporated pre-existing standards). Congress can decide the scope of the grant, just as it could decide the terms on which to grant someone 40 acres in the west. But once granted, it is a property right. Congress can’t just retroactively take it away.

For building codes, the fee paid to the planning department could cover the license fee for the standards.

Yes I agree with your rewording, I would just add that it doesn’t seem difficult to find a solution that satisfies both parties. Of course inertia is the real barrier. The current fee structure was designed when printing books was expensive, and that’s why it seems so obtuse in retrospect.

> If the standards are expensive to develop and maintain, seems better to require a license to implement a standard

That would, in many ways, make things worse: you narrow the pool across which payments are spread, thereby increasing implementation costs and reducing competition in any field covered by such a standard.

> Governments can’t just decide to make these privately developed standards free for public use.

Sure they can: the federal government could just add a provision to copyright law stating “the distribution of the unmodified text of any standard referenced in and necessary to assess compliance with, or otherwise determine the applicability or effect of, any law, regulation, or other binding act of any part of the federal government, any state government, or the government of any subdivision of a state, shall, in all cases, be considered fair use.”

Whether they should is another question.

I'd argue that would be a taking requiring just compensation.

It is not. Copyright is clearly distinguished by the Constitution as something granted by Congress rather than a Constitutionally guaranteed right.

The government may grant certain works the privilege of copyright, subject to certain restrictions, if it deems that doing this will promote the public good (i.e. promote progress of science and useful arts). It's not required to grant copyright exclusivity to all works nor all usage scenarios, it already does not grant it to some works and some usage scenarios, and that has not been considered a taking.

If you take that view, then the taking isn’t coming from those that want to read the law, it’s coming from the government that wants to incorporate it into the law. So yes, the government should compensate groups that come up with the rules, but more often than not, they won’t need to because there will be strong interests involved that want to define the rules.

Page 27-28 of the opinion:

> Along these lines, can the SDOs continue to make money on derivative goods such that they have an adequate incentive to continue producing these standards? As one amici notes, even after a sister circuit ruled that an organization that drafted a model building code adopted into law lost its copyright, see Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002), its successor organization remains profitable both through sales of codes and of “program services, including consulting, certification, and training.” 66 Libraries Amicus Br. 22 (citing Int’l Code Council, Annual Report 52 (2015))

There is HUGE value in the training materials around proper use and understanding of these standards.

For example, a building standard may specify that a sewer plumbing run must have a 1"/12" slope for proper drainage. The training comes in the form of handling the problem cases and still staying compliant with the standard.

In the accounting field, accounting standards are made and enforced to a large degree by private entities. Staying current requires constant training hours, recertification and in some cases external visits from other accounting professionals.

There are many ways standards setting organizations can “bankroll their efforts”, including certification, brand licensing, training, and association dues. Almost every standards organization works this way.

However in law, the standard isn’t just “a standard”, it’s an enforceable law. And yes, anyone should be able to know what the law is for either commercial, academic, or purely self-educational reasons without paying an arm and a leg.

If there is a rule that governs your behavior, you should be able to know what it is.

On a more practical level, one of the few things legislators are rather good at is drafting large and complex rules for a variety of situations. Don’t think the cost of funding building codes standards that are incorporated into law will be terribly significant. I’d bet in the majority of cases, the government is already funding these efforts anyway.

> Absolution definition, act of absolving; a freeing from blame or guilt; release from consequences, obligations, or penalties

I've never seen the word "absolutionist" before. Should this be "absolutist"?

Or perhaps "abolitionist"? As in someone who wants to completely abolish the practice of forcing people to pay if they want to know what is legal.

Yup thanks, absolutist is the correct word not sure where absolutionist came from, but even looking at it now, feels like it should be a real word.

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