Pub­lic Ac­cess to Some Laws De­nied

Traveling Minds - - Table Of Contents -

Most peo­ple un­der­stand the say­ing “ig­no­rance of the law is no ex­cuse,” mean­ing that even if you are not aware of a law – or, as an ex­am­ple, maybe did not see that sign where the speed limit went down and ended up driv­ing too fast – you can still be found guilty. But what if the very law you just vi­o­lated was not even avail­able to be looked at?

If this sounds like a police-state men­tal­ity, it is. But if it sounds im­pos­si­ble, it not only is not im­pos­si­ble; it is al­ready a re­al­ity un­der the Trump era.

Up un­til now, laws – like all sim­i­lar things cre­ated and writ­ten us­ing pub­lic tax dol­lars in the United States – were pub­lic in­for­ma­tion. In most democ­ra­cies, if the peo­ple pay for it, they own it. Laws are in the pub­lic do­main and sup­posed to be freely dis­trib­uted.

A good ex­am­ple of such free­doms are the photos and data gath­ered by NASA’S pub­lic-use satel­lites and manned space mis­sions. Any­thing other than spe­cific clas­si­fied data is con­sid­ered part of the pub­lic do­main and is avail­able for all to read and use with­out even hav­ing to cite where it came from.

There is also the con­cept that in­for­ma­tion held con­fi­den­tially by the gov­ern­ment must be dis­closed – for copy­ing costs only at best – un­der the Free­dom of In­for­ma­tion Act. The idea here is that if there is a com­pelling rea­son why such con­fi­den­tial­ity should be breached, in­di­vid­u­als and or­ga­ni­za­tions who fill out the ap­pro­pri­ate pa­per­work should be en­ti­tled to see it – and all be­cause it was de­vel­oped us­ing pub­lic funds.

Th­ese ex­am­ples – the free use of any­thing gov­ern­ment-cre­ated (such as our laws, NASA’S photos or even non-clas­si­fied in­for­ma­tion held con­fi­den­tially) – re­ally should be read­ily avail­able to the pub­lic and also be able to be put on­line, re­dis­tributed or reused in any way with­out fur­ther costs or taxes of any kind.

Ap­par­ently those were the old days.

A fed­eral court rul­ing dis­closed in Fe­bru­ary 2017 stated that cer­tain laws and reg­u­la­tory re­quire­ments can ac­tu­ally be kept con­fi­den­tial and pro­tected un­der copyright reg­u­la­tions – even if they were gen­er­ated us­ing tax dol­lars.

For Trav­el­ing Minds readers in the busi­ness com­mu­nity, this is a very se­ri­ous is­sue. Ex­am­ples of some of th­ese stan­dards in­clude things like safety rules for build­ings and con­sumer prod­ucts, re­quire­ments for en­ergy ef­fi­ciency and even the re­quired pa­ram­e­ters for the de­sign of stan­dard­ized tests for stu­dents and em­ploy­ees.

The catch that al­lows such doc­u­ments to be pro­tected by copyright law in­volves the process by which they were cre­ated in the first place.

It turns out – at least ac­cord­ing to the cur­rent fed­eral court rul­ing – that if the reg­u­la­tions and stan­dards in ques­tion were gen­er­ated in the first place by pri­vate in­di­vid­u­als or in­sti­tu­tions, there is a loop­hole in this as­sumed pro­tec­tion that all laws and reg­u­la­tions must be pub­lic.

The ra­tio­nale is that if those in­di­vid­u­als or in­sti­tu­tions de­vel­oped them as copy­righted doc­u­ments, then even af­ter they turn into the “law of the land,” those reg­u­la­tions and stan­dards may con­tinue to be pro­tected by copyright. It is per­fectly le­gal to keep them pri­vate and/or un­avail­able to the pub­lic in gen­eral. The reg­u­la­tions may even legally be kept be­hind an in­for­ma­tion pay­wall, mean­ing that those who want to see them have to pay ei­ther a sin­gle-use or sub­scrip­tion fee for on­line or in-per­son ac­cess to the reg­u­la­tions.

One case in­volved The Amer­i­can So­ci­ety for Test­ing and Ma­te­ri­als, et al, who sued Pub­­ in Case No. 13-ev-1215 (TSC) in the Dis­trict of Columbia over do­ing what many would con­sider a rea­son­able pub­lic ser­vice and a per­fectly le­gal one at the same time. A sec­ond case cov­er­ing a law­suit by the Amer­i­can Ed­u­ca­tional Re­search As­so­ci­a­tion, Inc., et al, filed against the same Pub­­ on sim­i­lar grounds, as Case No. 14-cv-0857 (TSC), also in the Dis­trict of Columbia, was com­bined with the other case as a made of ju­di­cial ex­pe­di­ency.

Pub­­ is a web­site that gath­ers pub­lic law in­for­ma­tion and reg­u­la­tory stan­dards, or­ga­nizes them, makes them eas­ily search­able and re­dis­tributes them on its own (non­profit) web­site for all to look at for free. Since that is Pub­­’s mis­sion and it is set up to do this well, it of­ten makes it far eas­ier for one to check out laws than would have been pos­si­ble oth­er­wise.

In this com­bined case, Pub­­ was de­fended by coun­sel from the Elec­tronic Free­dom Foun­da­tion and co-coun­sel at Fen­wick & West, Durie Tan­gri, and at­tor­ney David Halperin.

As noted in the Mem­o­ran­dum Opin­ion Judg­ment in the com­bined case:

“Plain­tiffs Amer­i­can So­ci­ety for Test­ing and Ma­te­ri­als (‘ASTM’), Na­tional Fire Pro­tec­tion As­so­ci­a­tion, Inc. (‘NFPA’) and Amer­i­can So­ci­ety of Heat­ing, Re­frig­er­at­ing and Air-con­di­tion­ing En­gi­neers (‘ASHRAE’) (col­lec­tively ‘ASTM Plain­tiffs’) brought suit against De­fen­dant Pub­­, Inc. (‘Pub­lic Re­source’) un­der the Copyright Act (17 U.S.C. § 101 et seq.) and the Lan­ham Act (15 U.S.C. § 1051 et seq.), al­leg­ing copyright in­fringe­ment and trade­mark in­fringe­ment. Plain­tiffs Amer­i­can Ed­u­ca­tional Re­search As­so­ci­a­tion, Inc. (‘AERA’), Amer­i­can Psy­cho­log­i­cal As­so­ci­a­tion, Inc. (‘APA’) and Na­tional Coun­cil on Mea­sure­ment in Ed­u­ca­tion, Inc. (‘NCME’) (col­lec­tively ‘AERA Plain­tiffs’) also brought copyright in­fringe­ment claims against Pub­lic Re­source un­der the Copyright Act. Plain­tiffs in both cases seek per­ma­nent in­junc­tions bar­ring De­fen­dant from con­tin­ued dis­play of their works.”

As the de­ci­sion noted, “Pub­lic Re­source has posted gov­ern­ment-au­thored ma­te­ri­als on its web­site, in­clud­ing ju­di­cial opin­ions, In­ter­nal Rev­enue Ser­vice records, patent fil­ings and safety reg­u­la­tions. It does not charge fees to view or down­load the ma­te­ri­als on its web­site.”

In com­ing up with its de­ci­sion that Pub­lic Re­source had to stop do­ing what it was do­ing, the court noted the fol­low­ing:

“In the United States, a com­plex pub­lic-pri­vate part­ner­ship has de­vel­oped over the last cen­tury in which pri­vate in­dus­try groups or as­so­ci­a­tions, rather than gov­ern­ment agen­cies, typ­i­cally de­velop stan­dards, guide­lines, and pro­ce­dures that set the best prac­tices in a par­tic­u­lar in­dus­try. Ap­pli­ca­ble stan­dards are used by en­ti­ties and in­di­vid­u­als in or­der to self-reg­u­late and con­form to the best prac­tices of that in­dus­try.”

The court also noted that gov­ern­men­tal agen­cies, reg­u­la­tory bod­ies, cities, states and even the fed­eral gov­ern­ment of­ten do some­thing called “in­cor­po­ra­tion by ref­er­ence of in­dus­try stan­dards.” This means that the gov­ern­ment agen­cies choose to in­cor­po­rate th­ese pri­vately de­vel­oped stan­dards into publicly re­quired le­gal spec­i­fi­ca­tions for those choos­ing to do busi­ness in the ar­eas cov­ered by those stan­dards.

In the court’s ar­gu­ment, it also noted that the De­fen­dant Pub­­ ar­gued that “even if the Copyright Act does not bar copyright pro­tec­tion for in­cor­po­rated stan­dards, in­di­vid­u­als have a due process right to ac­cess the text of ‘the law’ in­clud­ing the stan­dards at is­sue” in this case. The court did not ar­gue against that specif­i­cally, but in the end it did de­cide that if the in­for­ma­tion in­cor­po­rated into the law was pre­vi­ously cre­ated pri­vately and was en­ti­tled to copyright pro­tec­tion in that ear­lier form, it main­tained that pro­tec­tion even af­ter be­ing in­cor­po­rated into of­fi­cial laws. It also made it a crime to make the doc­u­ments freely avail­able (through en­ti­ties like Pub­­ even to those who must – as a mat­ter of com­pli­ance with the laws – be fully aware of them in or­der to be in com­pli­ance.

One can un­der­stand that the var­i­ous pri­vate or­ga­ni­za­tions and in­di­vid­u­als who worked so hard and dili­gently on cre­at­ing what were at the time sug­gested stan­dards would not want their work to be dis­trib­uted for free to the world.

But in that case, if those same stan­dards be­come in­cor­po­rated as law, it does seem – ridicu­lous at best – to say that an en­tity such as Pub­­, which is in­tend­ing to pro­vide the pub­lic ser­vice of ac­cess to manda­tory reg­u­la­tions, should be blocked from be­ing able to dis­trib­ute them freely.

The le­gal bat­tles in this is­sue are far from over and could have far-reach­ing im­pli­ca­tions on the na­ture of the “hoops” that com­pa­nies have to jump through in or­der to just carry out their busi­ness prop­erly.

And if gov­ern­ment agen­cies, reg­u­la­tory bod­ies, cities, states and the fed­eral gov­ern­ment in­sist on us­ing th­ese third-party stan­dards as part of the way they en­force rules, then those agen­cies need to be the ones who have to put up the costs of pub­lic ac­cess to those doc­u­ments. The small-to-medium en­ter­prises who pro­vide most of the jobs in the United States – and who are re­quired to be in com­pli­ance with such stan­dards – should not be re­quired to foot the bill them­selves. Es­pe­cially since they are sim­ply try­ing to be good law-abid­ing en­ti­ties, which is a rar­ity enough to be given some po­si­tion of re­spect, honor and pro­tec­tion from fur­ther oner­ous costs just to do their work.

And it isn't just laws with pri­vately de­vel­oped stan­dards that are be­ing hid­den. A num­ber of states no longer make their laws freely avail­able on­line and it is be­com­ing harder to even find out what the laws in­clude.

Even the IRS, which im­pacts al­most ev­ery Amer­i­can, won't pub­lish their tax code for the pub­lic. For­tu­nately, they al­low The Le­gal In­for­ma­tion In­sti­tute of Cor­nell Univer­sity Law School to host the in­for­ma­tion.

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