Public Access to Some Laws Denied
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 Public.resource.org 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 Public.resource.org 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.
Public.resource.org 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 Public.resource.org’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, Public.resource.org 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 Public.resource.org, 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 Public.resource.org 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 Public.resource.org) 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 Public.resource.org, 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.