[HN Gopher] Appeals court upholds right to post public laws online
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Appeals court upholds right to post public laws online
Author : glitcher
Score : 172 points
Date : 2023-09-13 15:59 UTC (7 hours ago)
(HTM) web link (www.eff.org)
(TXT) w3m dump (www.eff.org)
| chankstein38 wrote:
| 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
| racingmars wrote:
| 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.
| lmkg wrote:
| 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.
| bluGill wrote:
| 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.
| f1shy wrote:
| 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.
| pavon wrote:
| 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.
| cvalka wrote:
| "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.
| PaulDavisThe1st wrote:
| "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?"
| yjftsjthsd-h wrote:
| 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.
| tialaramex wrote:
| 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.
| PaulDavisThe1st wrote:
| 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".
| kelnos wrote:
| 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.
| apendleton wrote:
| > 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.
| Terr_ wrote:
| > [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.
| apendleton wrote:
| > 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).
| sullija722 wrote:
| 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.
| horsawlarway wrote:
| 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.
| cvoss wrote:
| 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?
| lotsofpulp wrote:
| > 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.
| alwayslikethis wrote:
| Alternatively, inaccessible law should be unconstitutional
| and unenforceable.
| bastawhiz wrote:
| 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.
| f1shy wrote:
| AND it must be in a language that a non-lawyer can
| understand reasonably well, without at least making a big
| mistake.
| lolinder wrote:
| 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
| horsawlarway wrote:
| > 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.
| smhenderson wrote:
| 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.
| horsawlarway wrote:
| 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.
| apendleton wrote:
| 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).
| [deleted]
| pavon wrote:
| 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.
| Gibbon1 wrote:
| 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.
| pixl97 wrote:
| 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.
| emilfihlman wrote:
| This is superb, and Europe should follow suit.
| sunbum wrote:
| 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?
| techsupporter wrote:
| 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.
| tialaramex wrote:
| 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.
| jaclaz wrote:
| 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
| f1shy wrote:
| 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.
| andylynch wrote:
| 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)
| f1shy wrote:
| Lets hope... I've seen far too many private organisations
| basically writing legislation. (e.g. VDE)
| guerby wrote:
| 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 etre rendues d'application obligatoire par
| arrete signe du ministre charge de l'industrie et du ou des
| ministres interesses. Les normes rendues d'application
| obligatoire sont consultables gratuitement sur le site internet
| de l'Association francaise de normalisation."
|
| If a law makes a norm mandatory then those norms must be free
| for eveyrone to read.
| dwater wrote:
| 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.
| tzs wrote:
| 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...
| nico wrote:
| 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
| Supply5411 wrote:
| I would say it's Kafkaesque, but charging money for access to
| the legal text seems to take it a step further.
| f1shy wrote:
| 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.
| bluGill wrote:
| 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.
| mistrial9 wrote:
| 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.
| pixl97 wrote:
| 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.
| bluGill wrote:
| 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.
| mikece wrote:
| 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.
| nico wrote:
| Unfortunately that's not an accepted defense. Ignorance of the
| law doesn't excuse you from complying
| mikece wrote:
| 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.
| f1shy wrote:
| 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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