American Bar Association votes to DRM referenced material made public
boingboing.net
boingboing.net
I.e., if a regulation incorporates the POSIX standard--which you ordinarily have to pay for--by reference, the ABA resolution calls for a copy of the standard to be made publicly available. That is often not the case today.
What the ABA stopped short of doing is calling for a freely-copyable version of those private codes. I can't access the final resolution for some reason, but the draft says "the required public access must include at least online, read-only access to the incorporated portion of the standard . . . but it need not include access to the incorporated material in hard-copy printed form."
I strongly support the idea that anything incorporated by reference into the law should be public domain. But the article is a very misleading take on what the ABA did and even what the ABA has the power to do.
When the government forces private copyrighted materials into the public domain, they should pay the copyright holders for the revenue they would have gotten from paid distribution.
I 100% agree with the principle that free access to the complete text of every law needs to be given to every person the law applies to. I'm just pointing out that any implementation of this principle which involves government appropriation of copyrighted works is constitutionally required to take into account the property rights of the copyright holders.
More reasonably, they should pay the copyright holders for the value it would have had had the government not mandated it, since if free access comes with the government mandate, the additional value it has because of the mandate is a direct result of the same action as making it free to access, and should not be factored in to an eminent domain value analysis.
Obviously code bodies want to have their cake and eat it too, creating an exclusive right to print the law and enabling a high margin industry of selling the code and its derivatives to every individual bound by it (which is everyone). But this rent seeking is obviously incompatible with the fundamental rule of law.
The situations are different. In the case of eminent domain the individual(s) lose physical access to their property, whereas with a standard, no damage is done to the individual(s)' ability to use it, as only copies are being made.
Copyrights and patents are regulatory property. They're created by government, and what rights such property entails are defined entirely by the government. All "property" is conceptually fictional, but government is effectively restricted from, for example, redefining the meaning of real property in a way that subverts constitutional protections against takings.
I don't know what the law is in this area, or even if it's settled, but I can easily imagine a scenario where the courts say that if a government implicitly or explicitly changes the rights that attach to _their_ grant of regulatory property, that such a change is not a taking (i.e. expropriation of property) for which the constitution requires compensation.
The opposite is certainly allowed. For example, SCOTUS has said (at least in dicta, if not in binding rule) that Congress can put back under copyright material that already fell into the public domain, even though other people have already relied upon it.
Generally, when discussing regulatory property and regulatory takings, the courts assume there are implied limitations to your rights such that merely because the government restricts your property rights causing you financial hardship, it doesn't necessarily follow that there was a taking of property. This is why zoning laws passed after you purchased your house can be enforced without the government being forced to pay you. When the first American zoning laws were passed and challenged in court, SCOTUS said that zoning restrictions weren't per se a taking because it was always implied that real property rights were subject to implied restrictions related to public health & safety. (Common law nuisance was used to support the argument, but crucially a nuisance is a manifest injury, whereas zoning laws are typically speculative at best, and in hindsight usually ineffective and even counterproductive. Forcing governments to internalize the cost of poor policy decisions is precisely the function of requiring just compensation, yet zoning laws are unfortunately permitted to subvert that dynamic.)
Implied limitations are especially numerous and broad in the context of regulatory property. The courts could easily say that grants of copyright come with implied reservations to the government; and that the government reserved the right to limit the grant, ex post facto, for the public benefit, such as when material is incorporated into a public law.
This, and your whole post, make a very good and interesting point.
There is definitely a potential distinction (and, AFAIK, no clear case law on it) here, but I think the distinction is less in regulatory property vs. other property classes and more in the fact that copyright and patent are temporary property. I don't think there is anything that clearly stops new, government-issued property grants (whether of real property or otherwise) from being limited in a way which would permit some later conditional reversion to government use -- the limitation would be part of the property granted ab initio and thus there would be no taking -- but existing property rights cannot be curtailed in favor of the government without compensation.
A retroactive change to existing grants even of regulatory property like copyrights and patents that amounts essentially to an early termination (and making something covered by such an exclusive right freely and publicly available would be essentially an early termination) would seem to me to still be a compensable taking, though I will agree that I haven't seen any cases of this being litigated and there is potentially tension between Article I power to grant (and define the scope of) the exclusive rights and the Fifth Amendment takings clause here that makes it somewhat murky.
Taxi medallions are a similar form of regulatory property in that they grant monopoly rights. In New York I believe title vests with whomever possesses the physical medallion and is in perpetuity, but in San Francisco it's more like a license, isn't directly transferable, and has a defined duration.
A few years ago it cost several hundred thousand dollars to purchase a medallion from SF. People often financed the purchase with bank loans. To combat Uber San Francisco dramatically increased the supply of medallions so that the effective value dropped precipitously and is still going down, I think. Many medallion owners are under water, and increased competition from new medallion owners likely caused some people to go bankrupt. (Uber had a similar effect but I'm sure if we tried hard enough we could tie a bankruptcy directly to SFMTA's change of policy.)
I can't imagine a court finding this state of affairs to be illegal or requiring any kind of compensation even though the city basically extracted millions of dollars from people's pockets and then screwed them over. How bad does it need to get before it becomes a taking? It's pretty bad now and AFAIK there's still no actionable claim that can be or has been made. And I don't see how the limited duration of the medallion would matter; if anything a more limited duration implies the purchaser expected to make a return on his investment faster.
Now imagine the city removes all laws that restricted access to providing taxi services. But it still maintained the medallion and the restrictions (insurance, checkups) required of medallion holders. As a practical matter the medallions would be worthless, but you can still say that you own one and are governed by stricter regulations. So perhaps riders will pay a premium (1 dollar? 10 cents?) for that reassurance.
Now imagine a city outright cancels a medallion system. Your metal medallion or piece of paper instantly becomes a curio. I think a court could legitimately say that the regulatory property was impliedly limited by the city sustaining the monopoly. That is, you paid for the government-created monopoly right only in so far as the government chose to maintain the statutory scheme. It's hard to drawn a line between this scenario and the previous two scenarios while keeping a straight face. The law draws arbitrary lines, but that doesn't mean they're entirely divorced from meaningful considerations, like concerns about consistent treatment.
With real property or chattel we can at least pretend that there's intrinsic value to the property, and draw the line at preventing governments from harming that intrinsic value by it taking physical possession from you. Often for real property that's exactly how the line is drawn--you can pay $1 million for a piece of land that you can no longer build on, but as long as you can still pitch a tent a court can legally find there was no taking. (There are other elements that also control, but it's still possible and has happened.) But that fiction is totally indefensible when we're talking about a piece of paper whose only intrinsic value, if anything, relates to the regulatory framework it exists within.
When you look at the law of regulatory takings, where you can't depend on analogies with physical possession to delineate what is a taking or not a taking, you rely on investment backed expectations and similar rules that balance foreseeable restrictions on your property against how much value you've lost by new government regulations. In the taxi medallion case even that approach doesn't help much, perhaps because it would be odd for courts to penalize governments for _rescinding_ laws, and especially for liberalizing restraints on trade.
So given all this context, I can't imagine there being much problem with the government passing a law that says copyrighted works lose _some_ protections when incorporated into published law. Presumably you still couldn't, for example, copy and distribute the POSIX standard in situations unrelated to dissemination and discussion of the incorporating law. The value of the copyright might be significantly diminished, but there's still some commercial value, especially if we assume people will remain law abiding.
And remember that you never _paid_ anything to the government for your copyright. Unlike a taxi medallion, your copyright was granted free-of-charge. Copyright may have persuaded you to make investments, but depending on the kind of property we're taking about, courts can choose to make that fact dispositive or irrelevant--especially when they can invoke the legal fiction that the limitation was always implied and thus foreseeable, and therefore you were an idiot for not taking that into account.
Whatever the boundaries of the law are in this area, I think partial limitations on the scope of your already granted copyright are likely to fall well within the boundaries of acceptable changes not requiring compensation, especially if the carve-out is tailored to serve an honest-to-goodness public purpose.
I think there's a strong argument to made where literally or effectively rescinding the copyright is illegal without compensation. I also think there's a strong argument that doing so would be entirely legal. It's a fascinating question. But neither of those extremes are implicated here.
And note that duration doesn't really figure into any of this, which is why I don't think it's relevant.
Those things cost a couple hundred thousand dollars in SF, and existing ones are typicaly valued at tens of thousands.
Should I have a claim if I paid $250k for a liquor license to the state last year, but this year the state of California decided to rescind commercial liquor laws? What if they permitted cities the ability to rescind them; would SF owe me, or would the the state of California own me if SF exercised this ability? What if they were rescinded for all stores more than a 1000 feet from a school? Does it matter whether I was outside the 1000 feet zone and the license became useless, or if I was inside the zone by 10 feet and so it was technically useful but lost almost all commercial value? The resale value of a liquor store business can be a function almost entirely of the value of the license it holds.
Those are thorny questions, but I think in general there's much to be said for giving government carte blanche ability to reduce the scope of or entirely rescind monopoly schemes. I think it would be fair to say that relying on government-imposed monopolies is like making a deal with the devil; don't be surprised if you get screwed.
As long as it's not targeted at individuals (which is probably more an equal protection or due process issue), and isn't a bald faced scheme to expropriate assets, courts would be wise to let the chips fall where they may. I think there's an old common law axiom that the default rule is to leave damages where they fall unless there's a good public policy interest in shifting them. That seems applicable here where it's difficult to justify punishing the government for relaxing a restraint on trade. It's not at all clear to me that the greater public good benefits even collaterally, all things considered.
Publishing a copy of something that already exists is an independent action that doesn't affect copyright holders' use of their property.
"Property", whether real, tangible personal, or intangible personal, is a legal power to exclude others from certain actions with reference to some thing.
Limiting some part of that exclusive power while leaving the owner title to the property and with the rest of the exclusive rights is still a taking of property, so even if what the government did with regard to copyrights was less extensive than actually seizing the copyright, it would still be a taking (similar to using eminent domain to take an easement or right-of-way, leaving the owner of land the title.)
In other words, if someone publishes your works for free that you would otherwise charge for access, they haven't taken your work, they've taken your control over the access to it.
Oddly, it also seems like a lot of the time, people who advance such an argument seem also inclined to think it should, at the very least, be possible for workers to own the means of production. Are intellectual workers excepted? Is this contradiction just one that hasn't been noticed and given the consideration it deserves? Is there something about the workers, or the work, which makes the cases not parallel?
This is exactly how I would describe your comment, far more than the one you replied to.
The comment you replied to attacks a single argument-- that relieving people of IP rights is not the same as relieving them of physical property.
I'd expand a bit to note that jsprogrammer's comment isn't internally consistent; the case for compensation in expropriation of real property is made in terms of access, while that for same of intellectual property in terms of use. These are not the same.
If we take access as the standard, then the use of eminent domain to construct an interstate highway doesn't seem to qualify for recompense, because the interstate highway system is open to the free use of anyone, including any and all former owners of the real property on which it was built.
If we take the standard to be use, then expropriation of intellectual property does qualify for recompense, because if access to the property in question has been made freely available to anyone, then selling such access is a use to which that property can no longer be put.
And of course there are plenty of other examples. To regard such arguments as tendentious is both uncharitable and, given sufficient exposure, somewhat difficult to avoid. What I'd really appreciate is a clear and internally consistent statement on the subject, from someone who's willing to discuss, debate, and attempt to persuade, rather than indulging in reheated anti-McCarthyism.
Your land may be taken from you in the sense that there is now a concrete block where your house used to be, but it is difficult to say what is taken when someone else prints a copy of something they saw.
What's taken in your second example is the effective ability to sell that person a copy of whatever they saw and printed; why would he buy it, when he already has it for free?
To the best of my admittedly unlettered knowledge, one of the rights that inheres in property ownership, in our modern system of law and in the traditions from which it's derived, is the ability to resell access and usage of that property in a variety of forms, such as receiving payment in exchange for the privilege of temporary possession of, and domicile in, a given piece of real property - commonly known as "rent".
The argument most commonly put forth by advocates of a fundamental distinction between real and intellectual property seems to hinge on scarcity. That is, it's reasonable for real property rights to include resale of access because a given unit of real property is unique and effectively irreplicable, and therefore scarce; conversely, it's unreasonable for intellectual property rights to include the same, because intellectual property can be losslessly copied and recopied without limit, and therefore cannot accurately be described as scarce.
Where I differ with that argument is in its definition of scarcity. I'd argue instead that uniqueness, and thus scarcity, inhere in the specific arrangement of information that constitutes a given unit of intellectual property, and relegate replicability to an essentially accidental characteristic - interesting and valuable, to be sure, but of no significance to the question at hand.
It might be argued that some other person who has not yet seen the design might not buy a copy from the copyright holder, but that is speculative.
The difference that I don't think is getting through is that a design can be copied from a copy, without affecting the original. If I rent your place, I necessarily displace you. The same is not so with a written design. It can be copied without the copyright holders' notice.
That's hardly a novel claim here; I acknowledged, discussed, and disposed of it in the argument to which you here reply, and whose tl;dr is more or less that copyability and scarcity are orthogonal. That's the argument I would like to see addressed.
The same does not hold under eminent domain seizure.
A real property owner's parcel remains intact, in the same sense, when an access easement over it is seized by eminent domain, only his right to exclude others from uses -- the essence of the relation known as "property" -- is impacted.
The requirement for compensation for takings of real property is not limited to cases where fee simple title to the parcel is taken.
When someone accesses, or, copies, a copy of a copyrighted work, the owner of the copyright is not affected.
I'm contrasting them. I don't argue that the copyright owner's possession of the copied property remains intact. Her rights in that property, I'd argue, do not.
More substantively, thanks for the correction. BoingBoing often seems to have a knee-jerk reaction to DRM.
I'm really starting to get annoyed with BoingBoing, and Cory Doctorow in particular, for this and other reasons. It's sad, because he used to be a real icon of mine, and the first person I'd go to for commentary on laws affecting the digital space. But lately I've been noticing that he has this one preferred narrative-- the "hero hackers" versus the stupid-and/or-tyrannical government - and while that narrative is certainly common, Cory rushes to apply it to everything before he stops to examine the facts. See for instance the post-coup Turkey leaks (which he at least apologized for).
It's particularly dangerous when it leads to uncritical worship of people like Jacob Appelbaum, who got several glowing tributes in BoingBoing over the years, and look how that turned out.
I can think of some extremely limited circumstances in which DRM may make sense. None of those apply to general-purpose computers in our homes, pockets or most businesses.
As BoingBoing (certainly annoying in a number of ways) is a fairly typical blog format - mostly reacting to news - it seems inevitable that mentions of DRM are going to be about general-use DRM for, e.g., music, movies, etc., they aren't covering the extremely limited circumstances in which DRM makes sense (classified information, extremely locked-down corporate secrets, a couple others[1]), and precisely none of those stop copyright infringement, add value to the content or make paying customers happier.
So it seems to me that what you see as knee-jerk is actually just the reaction of a person knowledgable on the topic to a stupid idea.
So in your view, would you say this action is making the former more or less likely to happen in the future?
So I guess the answer is "this doesn't make it less likely than zero and is probably the best we can get."
Aren't they government funded to produce these codes. I was under the distinct impression that selling the reference material is just a nice profit bonus?
For example, here is NFPA's financial statement: http://www.nfpa.org/news-and-research/publications/nfpa-jour.... 87% of its revenue comes from publications or membership dues.
That's actually exactly what taxpayers should foot the bill for, many of the services the government provides do exactly that, spread the needs of the few across the many, making it cheaper per-person to provide something, like the text of legislation. Wouldn't it be great to live in a world with universal access to ~~healthcare~~ legislation?
> Malamud, an associate member of the ABA who received special privileges of the floor, noted that the public would be prohibited by this motion from printing, searching or copying the law, and would have to preregister with a private vendor before reading the law.
Those are some pretty terrible constraints and it's kinda funny that one of the supposed reasons to oppose this is that it costs tax payers money, yet you can't copy the legislation and put it somewhere else. This hosting/mirroring issue was solved decades ago by having the trusted source provide a hash of the document in question, and then allowing anyone to mirror it. Interested parties need only verify the hash to ensure they have the document in question.
Edit: Whoops, should cite the better article (linked to in the OP) that I got those quotes from: http://www.abajournal.com/news/article/after_strong_debate_h...
And solved even better by digital signatures.
Law schools lie about the availability of jobs post graduation to keep the student money flowing in. This has been mentioned before on HN here: https://news.ycombinator.com/item?id=8180690 and https://news.ycombinator.com/item?id=9443739
Anyway, making (statutory) laws harder to access doesn't do much for lawyers. Most of the work is in the case law, and that couldn't possibly in the future get any more difficult to access than it is today.
If you're interested in this issue, follow Casetext. They're doing good work:
Disclaimer: I have no interest in casetext. And none of this is legal advice, obviously.
Which fails to explain the ABA lobbying for this, since -- despite the misleading headline -- the ABA is actually pushing for making the laws easier to access, if not with as much freedom to make use of the content as some (myself included) would prefer.
(Really, I don't see any evidence that lawyers don't their jobs as protected by secret information that only they have access to that any layperson could use just as effectively, any more than computer programmers do; AFAICT, they are much more likely to see themselves as having invested considerable time in developing specialized skills that most laypeople don't have, and thus don't see themselves threatened by mere information about the content of the law being more freely available.)
Based on the actual article, the ABA voted not to demand that all laws should be completely available without copyright. Basically, they voted to maintain the status quo. They didn't make an explicit value judgement of DRM'd laws, though.
Note that the courts hold the law cannot be copyright. Thus I cannot publish the original code that the city used. I can only publish it terms of the building code for that city. I cannot publish, for example, the authors name because who wrote the original is not part of the law. Those wrote that write the code typically will have lots of engineering notes that are not part of the law, and these are valuable to people reading the code.
So "the law" that is public is simply the reference to the private code.
It is my impression the ABA voted for openness (just not as much as the author wanted). Right now, parts of the public register may not be available online and/or in a single place at all.
ABA is saying put them in one place, put that place online, and sure, since it's private property, let the owner control access with a price. Requiring tax dollars be spent on giving free access to obscure references forces one to choose between the taking of private property (i.e. your software retails for $10,000 but some legislator incorporated so now you must offer it at the state-mandated price of $10) and running a risk of massive abuse (government ends up paying some ditz $10,000 per view of a one-page PDF, views which have a habit of coming from the author's neighbourhood).
You can usually also get access at public libraries. Not terribly convenient though.
The "DRM and EULA" part just means that the ABA seems OK with allowing private companies to be the distributors of this based on their own terms, instead of advocating a government-run open access site that would allow anyone to look up the relevant safety regulations.
So, no, the ABA did not vote to obscure the law, or invoke DRM or EULAs. They voted to make the Federal Register more accessible than it currently is. BoingBoing is simply unhappy that the resolution didn't go as far as they would've liked.
I'm not saying I necessarily agree with this argument, but I think it's defensible.
If its not a public benefit, it shouldn't be a public rule or regulation.
If it is a public rule or regulation, it should be freely available to the public. This includes third-party standards, etc., made mandatory for an industry, etc., by a public rule or regulation -- such as the various X12 and other transaction standards mandated under HIPAA.
Note that my intent in writing the original comment was not to engage in this debate, but rather simply to point out that there is a legitimate debate here with defensible arguments on both sides.
In the case of many of the industry standards incorporated into laws (this is certainly the case of the transaction standards under HIPAA), the payment doesn't actually go to the people writing the rules, who are largely industry employees (both public and private sector) paid by their employers to work on standards, because the employers have an interest in the standards reflecting their concerns.
It goes to standards bodies who don't actually employ the technical experts writing the rules. And only some of those standards are from standards bodies that charge for them (e.g., X12 charges for its transaction standards, but CAQH CORE doesn't charge for its standard operating rules (it does offer compliance certification, for which it does charge, but certification by CAQH CORE isn't a HIPAA mandate.)
On the other hand, the building and electrical codes are useful to many homeowners.
I can understand the arguments for both the user-fee model and the publicly-funded model and I'm not sure there's a one-size-fits-all model. If it came down to a vote, I'm guessing the public would vote for a user-pays model rather than a tax increase.
Even among those who disagree on the utility of the law, there doesn't seem to be any need for a compromise position of "possibly 'yes' so let's keep it, but possibly 'no' so let's hide the rules from the public".
How can citizens obey laws they have no way of reading?
(Come to think of it, at no point has anyone explained all the laws to me, either. Are we all supposed to peruse law books in our spare time to make sure we're not breaking the law?)
The problem is this: in a free copy world once someone pays for this work everyone else is free to copy it. So if Chicago pays for it, New York City is free to just copy Chicago's law and save all the money of paying someone to do this themselves. This is obviously unfair to Chicago who put a lot of money into it. (Chicago and New York might agree to share the costs, but there are a lot of small towns that will not)
What code publishers want to do is privately put the money in to write a good code, get the cities to make it law, and then charge for copies. This business model works, and is fair: you buy the code if you want it (and $75 for the book it isn't that unreasonable a price to pay either if you need it). The city gets a copy in their library so if you don't want your own copy just read when city offices are open. It isn't a bad deal.
(do not read the above as my approval of it, I'm just stating the argument)
The ABA is lobbying to for the government to mandate at least public read access to what are now, private, for-pay standards incorporated into laws and regulations.
The argument for this is you shouldn't have to pay to read the law (there is certainly an argument [which I agree with] -- as in the source article -- that this isn't enough access, and that ideally we should have more. But that's an argument that the ABA position doesn't go far enough to correct the problem in the status quo, rather than an argument that it is in the wrong direction.)
> How can citizens obey laws they have no way of reading?
That's exactly the problem that the ABA proposal addresses -- in the status quo, there are rules you have no way of reading. With the ABA proposal, that would no longer be the case.
As for the rest of the laws, at least in the US, following common sense will keep you out of trouble most of the time. Judges by and large do not decide cases by mechanically interpreting laws, but rather by choosing which laws make most sense to apply in the given context. It is even sometimes possible to outright break laws, as in famous cases like State v Shack.
Pragmatic me says legislators were more than happy to essentially rubber-stamp, "We'll defer to a higher power because this stuff is super complicated and really esoteric stuff" and the higher power said it wanted a paycheck.
Engineers publish all sorts of requirements and technical information, and it seems useful for the law to be able to refer to them.
[1] http://www.iso.org/iso/home/store/catalogue_tc/catalogue_det...
These laws are the api for building things.
It's unjust to make the law you have to follow something you have to pay to see, especially when ignorance of the law is not an excuse for not following it.
Not just because it flies in the face of American legal principles to have private secret laws, but because laws you have to pay 10k to access and which have DRM that prevent sharing create a barrier to entry for new companies, and increase costs to consumers.
It's not like the organizations that develop building codes can't make money from things like testing, education, professional development etc.
But they seem like ripe takeover targets. Another city wants to win the Olympic bid instead of you? Or to steal your pro football team? Or you don't like their views on nameyoursocialissue? Buy their laws then set prohibitive fees and restrictions, killing their economy. Want to see your building code? You must apply in person, on paper, with exact change, between 8:42am and 8:54am Tuesdays after you pass the secret test and pay the initiation/credentialing/backgroundcheck fees. have access to the laws and the tools needed to use them.
It's a slow warfare. But leaving laws under corporate control, under a profit motive, poses other risks.
http://hlrecord.org/2015/02/pulled-over-for-copying-u-s-fede...
Well... http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687223