Appeals court upholds right to post public laws online | Hacker News Reader

Appeals court upholds right to post public laws online

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201 pointsglitcher67 comments

The fact that this even made it to trial is flabbergasting, and truly highlights how unacceptably broken our copyright system is.

They were suing people for literally explaining the laws to people... as a violation of their copyright.

If that's something we have to even consider - I want this fucking garbage copyright system destroyed.

They were suing people for copying copyright-protected works. The usual arguing over exceptions ensued.

In this particular case, is the problem that copyright laws confer too many rights to the owners, or is the problem that legislative bodies are adopting inaccessible text as law?

> They were suing people for copying copyright-protected works.

Those works are our literal laws.

Suing people for sharing the law is not an acceptable position in ANY discussion. Period. Full fucking stop.

There is NO way you can claim to be any sort of democracy if we cannot talk about our laws,

I don't fucking care how we got there (I do, but not for this discussion) - the fact that we are here AT ALL is a HUGE flashing alarm blaring about how fucking off the rails the laws here have gotten.

I agree with the decision and in principle absolutely agree with what you are saying about our laws.

But you're oversimplifying the case here. They weren't complaining that the law was being published, they were complaining that their standards were published. The court agreed with PR that once those standards were incorporated into law, they were subject to fair use publication under the auspices of making available and explaining our laws to the public.

The courts agreed and here we are. But as another user wrote, this wasn't about copyrighting the law, it was about the inclusion of copyrighted material in the law and whether or not it fell under a different category with regards to fair use.

I'm sure I'm oversimplifying or missing something too, but I, who am generally opposed to how copyright is currently handled in the US, can see that there is more nuance to this case than your post admits to.

So what you're saying is that we're A-OK as a society with the gatekeeping of critical safety information behind private paywalls and copyright.

Safety information that is gathered at the expense of the public: we suffer the consequences that inform the standards. My fellow citizens have paid for those lessons with fucking blood.

You are saying we are all better served if copyright (another "benefit for the public" according to the proponents, mind you) were to apply to that information as default.

We are collectively better if we forced to enrich a private organization to simply read and understand critical safety information.

That is what you are saying?

Because my clear and immediate response is: fucking bullshit.

This tone doesn't feel especially productive. You asked:

> So what you're saying is that we're A-OK as a society with the gatekeeping of critical safety information behind private paywalls and copyright.

but the comment you're responding to explicitly said:

> I agree with the decision and in principle absolutely agree with what you are saying about our laws.

So like... they're obviously not saying what you're accusing them of saying. They're just explaining why this litigation occurred in the first place (and agreeing with the outcome, which seems to be the outcome you also want).

Maybe, but it’s the law. The feeling-based approach to what-is-right is spectacularly unproductive and also somewhat unpleasant to interact with.

Isn't the "feeling-based approach to what-is-right" the whole intent of the jury system?

Given the fraction of cases that make it to a jury, one might conclude it’s not a big part of the law.

Delving a bit deeper into the law, the jury is not deciding the law; they are deciding what facts are true. They do this, quite often, based on feelings. But they do not (jury nullification aside) decide what the law should be.

If I say the red car ran the red light and you say the blue car ran the red light, the jury decides who ran the red light. The question of who is allowed to run the red light is not something the jury ever addresses. This question is only ever a “should” question in the ballot box or the legislature.

Yes, all laws should be publicly accessible, but there are multiple ways legally to address the situation. You can just as equally say that the copyright is valid and people are prohibited from sharing the incorporated code, but the state legislatures violated the constitution by making private laws and thus the laws are overturned.

Or you could look at the actual intent of copyright law in the first place and invalidate any copyright that becomes part of the encoded law. This then removes the burden from any individual that publishes the law, and forces the copyright holder losing their holding to fight the state.

I don't have time to pursue this. But I suspect that you could argue that a state doing this is violating the commerce clause. I feel like states can create some types of monopolies but not others.

You can create a power monopoly, like I have to connect to PG&E's grid and pay them. But California can't pass a law giving Hasbro the sole right to sell toys in California.

In law, I believe what this would violate is more properly known as the Dormant Commerce Clause, if you are interested in learning more.

> is the problem that legislative bodies are adopting inaccessible text as law?

This one. Anything the government deems a standard or law should be in the public domain, accessible directly from government sources. And obviously, from there, anyone who wants to copy it would be able to.

>is the problem that copyright laws confer too many rights to the owners

Although this is also a problem due to excessively long copyright terms, but not in this specific case.

Alternatively, inaccessible law should be unconstitutional and unenforceable.

I don't think this is a practical outcome. If the law for seatbelt standards references a copyrighted document for materials, I don't want my car company throwing out the standards because the doc is copyrighted. It should simply be the case that the copyright is forcibly expired and the document with the information referenced by law is in the public domain.

This basically allows legislators to force anything into the public domain by simply referencing it in a law.

I'd rather see legislators forced to negotiate with copyright holders to make their works public domain, or else have their laws become invalid and thrown out, and have their governments subject to lawsuits for trying to enforce copyrighted laws.

> This basically allows legislators to force anything into the public domain by simply referencing it in a law.

Legislators can presently force literally whatever they want into the public domain simply by creating a law that does that. It's a toxic principle to place copyright on a pedestal where profit overrides the public good and copyright holders can hold good regulation hostage.

Anything the government does that isn't public should not be legal and have zero force.

Anything else and democracy does not work.

AND it must be in a language that a non-lawyer can understand reasonably well, without at least making a big mistake.

Both. But it's important to clarify that the publisher is not a victim of IBR, they profit enormously by having their standards take on the force of law. ANSI is active (on behalf of organizations including the plaintiffs) in lobbying for private standards to be incorporated into public law [0], and they're not doing it purely out of a desire to save the government time.

[0] https://www.ansi.org/outreach/government/ansi-activities

Excellent ruling. The next question in my mind is whether incorporating private standards into legislation without compensation violates the the takings clause of the constitution.

It is well established that this clause applies to intangible property such as copyright. Furthermore I disagree with some aspects of the courts assessment regarding the purpose and impact to revenue. On the first point, there is a large overlap between people who need to know the legal requirements for building and those who want to know best practices - the later is nearly a subset of the former, especially once these best practices become the law. Furthermore, the distribution of incorporated standards has historically been a legal gray area at best. Just because there was little evidence of lost revenue in the past doesn't mean there won't be significant lost revenue after it becomes unambiguously legal.

"Let's put it like this: we can use your standards in our legislation, and everyone will need training and information and assistance with the more technical aspects of the standard, and you can derive revenue from that. Or we can use some other standards, and yours will have approximately zero value to anyone. What do you think?"

Further, if in fact your standard was the only possibility (and so we can't have a different standard), there was in fact no creative element to your standard, and so it not only isn't protected from copying and redistribution for the purpose of informing people as to the law, but never protected at all since it had no creative element.

And yes, in practice we see that there is much more demand for relatively compact, opinionated books about something standard (e.g. "Beautiful C++" the most recent book from Kate Gregory) than there is for the large volumes of tremendously dry technical documentation which makes up the standard itself, a draft of which (nobody who matters cares about the "official" document) is here: https://timsong-cpp.github.io/cppwp/

I'd guess that you'll shift way more of a video course on the correct use of fire extinguishers than you would of a dry document specifying exactly how many litres of what retardants shall be provided to fight a fire of so-and-such proportions. Just make sure you don't persuade legislators to make watching your video a legal requirement and you can sell those for a nice healthy profit.

Also, see construction in general: far more people interested in watching people like Matt Risinger or Stud Pack deconstruct construction, so to speak, than document every last detail of the relevant building code(s).

"How to build it really good (and to code)" is far more in demand than "Tell me what the code is".

Seems like the obvious solution is to ban the use of private standards in public law. A vendor may choose to be eligible for having its standards used in the law by making them open/public/free for use, xor it can keep them private.

Pretty sure that's what this court ruling just did.

Isn't the fact that the private standard is becoming law compensation enough? The company that wrote/owns the standard will certainly experience economic benefits from having its work enshrined in law.

Certainly the company should have to agree: the government should not just be able to assume the company will be ok with it. But presumably in this particular case, the companies that wrote these particular fire protection and electrical standards did so because they wanted them to eventually have legal force.

> presumably in this particular case, the companies that wrote these particular fire protection and electrical standards did so because they wanted them to eventually have legal force.

Sure, but the reason they wanted this is at least part because they could earn revenue from selling access to them (and having the monopoly on being able to do so), which they now no longer can. It's not obvious to me how they would otherwise materially benefit.

> [When not selling access to the documentation,] It's not obvious to me how they would otherwise materially benefit.

Two ways come to mind:

1. Detailed expertise and brand-recognition would provide them an edge in selling consulting and training services.

2. Depending on how the legislature incorporated the standards, they would be in a position to promote/prevent future changes that benefit/disadvantage their stakeholders. Potentially a kind of regulatory capture.

> The next question in my mind is whether incorporating private standards into legislation without compensation violates the the takings clause of the constitution.

The standards cost money to produce, so it seems like _someone_ should pay for them, otherwise there'd be no incentive for the standards bodies to produce them in the first place. So I think maybe the best outcome would be a finding that these _are_ a taking, and that then governments who want to incorporate them by reference should have to pay to be able to do so (but then they'd be free to read to the public).

"It is well established that this clause applies to intangible property such as copyright".

No! The taking clause does NOT apply to copyright since copyright is not private property but an artificial government granted monopoly.

This is great, I've suffered as a result of how this was previously. I built a garage and had it inspected. I failed an electrical inspection and was given a reference in the National Electrical Code. When I went to look it up to figure out how to remediate, most of the links were trying to sell a copy. NEC wants $145 or a $11.99 monthly subscription. I had to find an illicit copy in order to comply with my local regulations.

I don't know how long it has been this way, but for at least the last few years you can read it online for free [1] if you create an account at the publisher's site, nfpa.org.

Here's a list of the codes NFPA publishes [2]. The NEC is NFPA 70.

Checking a few random ones, the ones that were not obsolete or withdrawn are available for online free reading. That includes several past editions. E.g., for the NEC the free online access includes editions going back to 1968.

(Old editions are sometimes relevant because local codes often lag in adopting the latest version).

[1] https://www.nfpa.org/Codes-and-Standards/All-Codes-and-Stand...

[2] https://www.nfpa.org/Codes-and-Standards/All-Codes-and-Stand...

Not op. Thank you for the resources

> if you create an account at the publisher's site, nfpa.org

If you need to create an account, that’s only free as in beer, but not free as in libre, which in my opinion every law/code should be

In Germany as far as I know (please somebody correct if knows better!) there is an association called "VDE" which is private. They make norms, which you must comply with. You have to pay for them, are are relatively expensive (much more than the cost of the editing and the paper in any case). I find it incredible, because the law you are subject to, is not public. But even much worst: basically the state has delegated writing laws to a private company. Please note! VDE is an association of many private companies, they could basically make a new norm, that some kind of cable, devices or such is now required, and you have to comply! That is the wolf taking care of the herd. There was already a case, where they tried to make obligatory a kind of better RCD with microprocessor, but if backfired spectacularly... but it could happen any time again.

The government (not the state) has not just "basically" delegated writing laws to private institutions (DIN and VDE are Vereine, not companies).

The government actually has a contract with DIN (first signed in 1975, last updated in 2020): https://www.bundestag.de/resource/blob/804880/5d66359e36df84...

With the stated purpose of "freeing the government from having to make up its own standards".

So Germany has basically avoided the need to pay for a National Instition for Standards, by offloading that cost to everybody who actually wants to read the standard.

> VDE is an association of many private companies, they could basically make a new norm, that some kind of cable, devices or such is now required, and you have to comply!

This is not correct, though. The norm would still have to be directly mentioned in any kind of legal document, or at least in any requirements by a third party (e.g. a bank that won't give you credit for a house if you don't promise to follow given building standards) to have any binding effect on you. The government also has people sitting on these standardization gremiums.

The main issue is that our German government sees value in overboarding standardisation and all those fees because they create revenue and jobs and make life harder for small companies. They want as many strong, big players backed by as many "reputable" standardisation agents (aka "consulting agencies") possible to influence the rest of the world. DIN and VDE are not just nuisances. They're powerhouses of German know-how transfer and influence in the world. Lots of DIN norms even have to be automatically taken over by most other European countries through CEN.

I would say it's Kafkaesque, but charging money for access to the legal text seems to take it a step further.

It is great to see this made clear in the U.S., as it facilitates the flow of information and efficiency. Canada also needs to do this for legally mandated regulations referring to the CSA, NRC, etc.

The conflict here is it costs a lot of effort (time and money) to do the hard work of figuring out what a good code should be. Used to be large cities (New York) would pay for it, and small towns would copy it - which meant if you lived in a smaller city you were freeloading off of New York (and in some cases you had to do something that made sense for New York but not where you were) which is unfair to New York's taxpayers. By have some organization create a standard towns can more equally share the cost of building a good standard.

Standards organizations need to pay the engineers who do all the complex calculations to figure out what works. However I think everyone agrees the law shouldn't be hidden from people who need to obey it.

you are not wrong, but missing quite a bit. In California and elsewhere, small variations in building and electrical code are used to stall, or make conflicting requirements using vague wording, that gives excess discretionary power to inspectors. In a large, wealthy city like San Francisco, inspectors routinely stall projects, or exert excessive discretionary powers over construction. Why? obviously it is an entry to corruption, but don't overlook the convenience to the city department of being completely and totally in control, to stall.. while being on salary.

Most places are not nearly as bad as CA. You are correct that codes are also used for corruption, but in many places they are closer to the ideal (they never hit the ideal) of ensuring safety so that you don't endanger the community or rescue workers with your property.

Then states need to make laws of shared governance for the entire state, and the tax base of the state is used to create and pay for said standards creation.

Having hundreds of different hidden behind paywall standards for each municipality is not doing the population at large any favors.

Sure, which is why states mostly have taken over from cities. State have them gone together to create/encourage these entities to create good codes they can just adopt so they don't have to pay the full price, while they get input into the process for whatever might be unique for their state.

The idea of these entities doing the work is sound. It is just that they have a little too much ability to control who gets to see the result of their work.

> Used to be large cities (New York) would pay for it, and small towns would copy it

It will always be beyond me why literally every tiny town in the US seems to think they're a special snowflake with veeery different requirements than everybody else.

There should be base codes for literally everything coming down from the federal or at maximum state level that you may be allowed to stricten in very specific points for very specific, publicly discussed reasons. The need to "develop" such a code more than once should never exist.

Everything else is not just unfair to the taxpayers who paid for these developments, it's simply unfair to your citizens. Why should they have different rights just because they happen to live in a different federal state?

Can't wait to get my hands on more of the RTCA standards documents behind aviation equipment/avionics regulations. Instead of having to beg borrow or steal just to be able to provide free help/advice to organizations like the FAA.

Lots of input there from taxpayer funded organizations like the FAA and Mitre and MIT Lincon Labs and us tax payers end up expected to buy it back again...

This is superb, and Europe should follow suit.

Isnt this more a case of the US lagging 1000 years behind like on card payments? All EU laws are publically available? And all laws in Denmark have been publically available for who knows how many years?

The law itself is broadly available (there are other cases going on about "reported" law which is the compendium put together by private editors), but they reference technical standards that aren't.

For example, a hypothetical RCW 94.50.691 in Washington might read "all paving stones sold for use in residential koi pond construction shall conform to American Impervious Surface Standards Body Standard Code 72-67-243". It's that last part that would be copyrighted by a private body and only available for sale at $47,542 per license.

Yes, in the UK for example, there will be Primary Legislation which is all debated in Parliament and you can go read that online at https://www.legislation.gov.uk/

And then there's "Secondary Legislation" some of which are available on that site but others are not. All these require Primary Legislation to enable them, but it means e.g. the Primary Legislation might say something like, "All Circus Clowns are also prohibited from entering a Red Zone as shall be decided from time-to-time by the Minister for Circus Clowns" and now that Minister just gets to make a Red Zone list, parliament says they get to do that and it prohibits Circus Clowns from entering - Parliament doesn't get to vote on updates to the list (but they do get to decide their own Prime Minister, which is why we didn't have Liz Truss for very long)

It is not uncommon for either Primary or Secondary Legislation to cite documents which are copyrighted by somebody else. Typically they are available at your public library, but as in the case decided here, that's not exactly convenient when compared to using Google.

No, in Europe we have the same problem with ISO norms and likely on some national technical ones, strictly speaking they are not Laws, but they are often cited either in the Laws and/or exposed to the public through labeling.

An example:

https://news.ycombinator.com/item?id=17587770

Bang on. Until recently I had several reams of MiFID and its implemting regulations on my desk, they sensibly are very closely aligned with standards, which co-evolve with them- so they are filled with references to ISO20022, 10383, 17442 and so many others. That said, even for our very complex business needing to refer to the standards was very rare. (It still would absolutely have saved time and money, but finding someone to commit actual money to BSI or ANSI membership can sometimes get lost in bureaucracy)

The case with VDE is a good example, where the norms have law force. In contrast DIN makes a specific statement, that the norms are just recommendations (as it should!) and have no law force. Even then, often through "state-of-the-art" obligations, they end up having law force. That is BAD idea.

VDE rules do NOT have law force, as mentioned in my other reply. Please stop repeating this.

Unfortunately not. Laws themselves are usually available for free online, but standards that laws and statues reference are in general not, and interpretation of law from cases is not in general directly available even if the cases themselves are.

Lets hope... I've seen far too many private organisations basically writing legislation. (e.g. VDE)

In France it's done this way:

https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI00002...

"Les normes sont d'application volontaire. Toutefois, les normes peuvent être rendues d'application obligatoire par arrêté signé du ministre chargé de l'industrie et du ou des ministres intéressés. Les normes rendues d'application obligatoire sont consultables gratuitement sur le site internet de l'Association française de normalisation."

If a law makes a norm mandatory then those norms must be free for eveyrone to read.

So, prior to this ruling, there were laws that the public couldn't get access to? I assume you could get them from magistrates and stuff though still, right? Or was it a complete lack of access?

Obviously online is still way preferred it just is crazy to me to think there was a law somewhere that you couldn't easily get the full text of. How the heck am I supposed to follow a law I can't read? lol

The problem was that the laws referred to commercial documents from standards bodies. Rather than reproducing the entire text of the standard in the law itself (which would be public), the law says "Buildings must comply with XYZ standard 123," where XYZ 123 has to be purchased from the standards body and they claim copyright on it.

This ruling says that providing that XYZ 123 standard online for non-commercial purposes is fair use if that standard is incorporated into the law.

OK thank you! I legit misunderstood, I appreciate the clarification!

This is about Incorporation By Reference.

For example, ASTM (a standards body) published a safety standard for children's toys. This was just a book that they sell, named ASTM F963.

Then, in 2008, Congress passed a law that all toys sold in the US must adhere to ASTM F963. The law itself can be publicly viewed. But the law does not directly include the text of ASTM F963. It just refers to it by name.

The standard is copyright ASTM, and they sell copies for about a hundred bucks.

For better or worse, the law refers to the current version of the standard. It's been updated a few times, and the legal requirement is to use the most recent version. The law has not changed, but the requirements have.

I am given to understand that on the local level this is common for building codes too. A municipality will say that buildings must follow the safety standards put out by some professional body or other relating to fireproofing lumber or framing or whatever.

Someone should publish their own standard titled "ASTM F963" but with obviously different contents. With a little work a lawyer can make your version meet the letter of the law as well.

This is terrible not only because you have made a law which is inaccessible to the population (which is in and out itself a total aberration in the law system).

But also:

- You made the law a moving target: when the new book is published, how you deal with products that were developed a month before, and went to market a month later? How are companies supposed to comply?

- Most important: the state is delegating the most important responsibility of making laws, and putting it in hands of profit driven companies or organisations. That cannot end well.

Well, there goes my defense that I couldn't know the law because it was copyrighted and I didn't have the money to buy a copy of the law in order to know what I could and could not do.

Unfortunately that’s not an accepted defense. Ignorance of the law doesn’t excuse you from complying

Ignorance of the law when you could have known is no defense. If the law is copyrighted and payment is required to even know it, that changes things.

This principle is cited way too often in a more general way as it really apply. Is not so easy as "you must know every single rule, norm, law that exist, with no possible excuses". If you are not in a reasonable position to have access to the norm, you do, and it do works, can defend yourself on that basis.

I had successfully defended myself in two cases where the transit law was a little diffuse, but just saying "I understood it differently, I'm sorry"

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