8/12/13

Malamud's Public.Resource.org Sued for Posting Legal Codes

No matter what your opinion is of Carl Malamud, he definitely keeps things interesting when it comes to making public information public. Malamud has been the focus on this blog recently when he told Georgia "no thanks" when the state asked him to take down their official state code. This time around, it seems that a number of professional societies and trade associations are suing him and Public.Resource.org in the US District Court for DC for copyright infringement stating that:
Public Resource has copied en masse Plaintiffs’ copyrighted standards in their entirety, posted them to its public website, and encouraged the public to disregard Plaintiffs’ copyrights and to copy, distribute, and create derivative works of those standards at will.
The entire PDF version of the complaint is available here.

This is the same old argument of "should laws be copyrighted" only with a bit of a twist. Usually when we think of "laws"  we think of the legalese written out and approved by members of the legislature. Legal Codes, on the other hand, are usually produced by a private organization, and then adopted by state and local governments. The idea behind having the private organization write the standards that are turned into law is that these are the professionals that understand the technical aspects at a much deeper level than those in the legislature. It has been viewed as a private/public blend that uses the knowledge and efficiency of the private industry and the power to enforce regulations held by the state. One of the trade offs with this type of collaboration is that the government doesn't take on the expense (directly) of writing the standards, and the private organization keeps the copyright and gets to sell the standards to those required to follow it.

As you might expect, Carl Malamud's opinion on this topic is very simple. "Code is Law":
The law belongs to the people, and cannot become the private property of some governmental or non-governmental organization, no matter how seemingly well-deserved are the rents one could extract from winning a monopoly concession on a parcel of the law. While standards bodies need money to carry out their valuable work, and while it is clear that these standards bodies create high-quality documents that are essential to our public safety, one cannot cordon off the public domain simply because of an institutional desire for funds. 
So, the fight is on. The Associations are looking to have their material removed, attorney fees paid, and any other compensation that the court deems fit. Some of the Plaintiffs have posted their own, read-only (no printing) version of their codes on their own websites. See ASTM and NFPA.  Malamud says this is just not enough and seems to be ready to tell the Association to 'bring it on.'

Should legal codes be copyrighted? Or, should they fall under the traditional rule that laws are public and if the public is required to obey them, then they should have free access to them? I have a feeling that the DC Circuit won't be the last word on this issue.

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5 comments:

Laurie Daley said...

Wouldn't he be a great choice for a speaker at AALL - either a webinar, or at the annual conference? I'd love to hear what he has to say.

kindsvater said...

If the codes are publicly adopted and become law, there shouldn't be a copyright. Or, could someone say they don't have to obey the "law" because they didn't pay to get a copy of it?

Jim D said...

If they are laws they should be public, because they are laws for the public.

Anonymous said...

The work needs to be done by these standards bodies. There are costs associated with the work. Who picks up the cost? The governments?

Even if we accept that Malamud is right in principle (and he's not, as standards are not laws), his thinking is magical if he imagines money is going to appear out of thin air to pay for this work.

The question isn't "free or not." The question is, "if distributed free, how does the work get paid for?"

Anonymous said...

These standards are a cash cow for someone. Most standards are created by individuals who give of their time and are not compensated. Where is all the money going that they get for these standards? If not free, they should be available at a reasonable cost.

 

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