What's interesting about the case and the legal opinion is that public.resource.org's use is considered fair use, but it's still the case that public.resource.org must pay to get an initial copy of each standard, before it can be published on that site.
So access to the law is still not free of charge.
Answering "yes" to the first question does not resolve this case, where a legislative body incorporated a private entity's technical standard by reference, without the private entity abandoning copyright in that work. The question is, what happens now? Does the copyrighted work automatically become public domain (what public.resource.org argued)? Or does the copyright remain valid, but instead we find the legislative body in violation of its obligation to ensure public access to the law (and, perhaps, find the law invalid on that basis)?
It is not necessarily the case, as public.resource.org argued, that the requirement of public access automatically eliminates copyright in standards that have been incorporated by reference. It may instead create an affirmative obligation on the part of legislative bodies to enter into appropriate arrangements with the private entities that develop the standards.
'Ever operated a tank barge and wondered what power source you would need for your cargo tank’s liquid overfill protection system to comply with the law? Probably not. But if you did, you might consider thumbing through the Code of Federal Regulations, where you would discover that one option is to hook up to an off-barge facility, provided that your system has “a 120-volt, 20-ampere explosion-proof plug that meets . . . NFPA 70, Articles 406.9 and 501-145.” 46 C.F.R. § 39.2009(a)(1)(iii)(B). Dig deeper and you would learn that NFPA 70 is not some obscure rule or regulation or agency guidance document but is instead another name for the “National Electrical Code,” a multi-chapter technical standard prepared by the National Fire Protection Association (the eponymous “NFPA”), detailing best practices for “electrical installations.” Complaint ¶ 66, American Society for Testing & Materials v. Public.Resource.Org, Inc. (ASTM), No. 1:13-cv- 01215 (D.D.C. Aug. 6, 2013) (“ASTM Compl.”), Dkt. No. 1, Joint Appendix (J.A.) 86. Parts of NFPA 70 have been incorporated into the statutes or regulations of at least forty- seven states and, as we have just seen, the federal government. American Insurance Ass’n Amicus Br. 5.'
So an SDO develops a standard. No problem, that's private and copyright is theirs. Then than standard is incorporated into statues. The incorporated language is now public domain.
I'm 100% ok compensating SDOs for their work, which is necessary and important. But that needs to happen before it becomes law.
At every one of those steps my employer is paying something. Except for the adoption by the authority having jurisdiction, which along with the public it represents appears to be free riders despite providing a public benefit and having taxing authority. I suppose my employer could foot part of the bill for the SDOs as a cost of doing business in all of those jurisdictions but I'm not sure how difficult it would be given that these govt entities vary in size from states down to municipalities.
Nor is it clear how equitable it would be to tax only domestic OEMs but not the foreign ones.
How are the overseas SDOs funded?
We have eminent domain for property and the like. Why isn't it used for copyright/patents for purposes of the public good?
I don't really care that the standards organizations lose money from big corporations when thousands of small businesses gain free legal access to the laws governing their industry.
The copyright owner is not deprived of anything by their copyrighted work becoming public domain except for the enforcement of that copyright by the government.
But, as a non-lawyer, the fact that this level of analysis of statute and case law is required in order to make such a small step toward making the law accessible, is amazing. (EDIT: I mean, I understand that it is this way, but don't feel it should be this way)
I say it's a small step because:
- as you say, the court confirmed fair use, but did not consider the question of whether copyright is extinguished
- each referenced standard is still locked behind payment until and unless this site or another pays for a copy and scans it
If, as you suggest might be the case, it is the "obligation of legislative bodies to ensure public access to the law by refraining from incorporating obligations from sources that are not publicly accessible", then what becomes of those laws which reference standards which are not publicly accessible today? Do they become unconstitutional or void, until such time that the standards do become publily accessible? Would publication on public.resource.org be enough to count as 'publicly accessible'?
And if it turns out that copyright is actually extinguished due a document's to incorporation (by reference) into law, would the former copyright owner have grounds to seek damages against the legislature?
EDIT: in your subsequent edit you sort of answered one of my questions "(and, perhaps, find the law invalid on that basis)"
Instead, what the court had before it was a copyright infringement action, where public.resource.org argued, as a defense, that distributing these standards should not be copyright infringement because they are necessary for people to understand the law. That adds an additional wrinkle--the court needs to not only address the end goal (making the law accessible), but the specific means public.resource.org chose to achieve that goal (distributing copyrighted standards). The complexity of the opinion, thus, arises out of the wrinkles of the test case brought by public.resource.org.
I also submit that a lot of complexity arises from the fact that the court really doesn't want to do the most straightforward thing, which is to say: that the standards continue to be copyrighted, but these laws are all invalid for incorporating obligations by reference from works that are not public accessible. What really happened here is that over decades legislatures worked themselves into a pickle, publicly incorporating these standards without thinking about the implications vis-a-vis copyright and public access. Now, the court is stuck trying to avoid the outcome of declaring all these laws invalid.
I'm intrigued by this part "... isn't charged with failing to follow a law that was not publicly available ... the straightforward resolution would be to find the law invalid on that basis."
Are you aware of any cases where this has been tested? How would one go about finding such a case if it exists, or satisyfing oneself that no such case exists?
Besides questions of how the courts have ruled / should rule on these issues, on what grounds, and so on, there's a policy question. I don't think we should want the law to not be in the public domain as a matter of policy.
Question for the lawyers of HN: can governments take copyrights via eminent domain? Statutorily or constitutionally? Perhaps only national governments rather than State/provincial?
ASTM members are mostly companies that design products to, and build according to, the standards. The monetization strategy of charging for the standards thus is simply the building industry taxing itself to support standards development.
The interesting thing about this case is that there are three things (the standards model, open access laws, and reliance on expert technical standards) that all are desirable, standing alone. It’s the interaction between them that gets hairy.
It would be perfectly reasonable for the state to just pay the standards body a fee for, essentially, help in writing the law. Legislatures already pay lawyers to formulate the legalese of regular laws, so paying for such a service would hardly be weird or out of place.
1) reversed the lower courts summary judgement
So public.resource.org ("PRO") "won" in the sense that the lower courts summary judgement was reversed, so PRO no longer has their hands tied by that summary judgement, for the moment.
2) remanded the case back to the lower court, because they found that there existed genuine issues of material fact such that the case was not suitable to be decided by summary judgement. And they remanded the case back to the lower court to analyze those genuine issues of material fact more carefully.
What this means is that the case is not over, in fact, it has only just begun, because the appeals court has directed the lower court to analyze PRO's copying of the various standards under the copyright fair use doctrine to determine if each instance was, or was not, fair use.
So this is not a "win" outright as in: one can copy the standards because they are referenced by the law. In fact, in more than a few locations in the decision the appeals court went out of their way to state that such a simple decision outcome was not possible for cases such as this.
So the case continues, and PRO has more work to do to show, almost to a standard by standard basis, whether their copying was fair use based upon the standard, the law that incorporates it, and the directions given by the appeals court.
However, the appeals court did indicate that there were quite a number of instances where, were the case facts developed sufficiently for them to render a decision on the merits, that many of PRO's copies might very well be seen as fair use copies. Other copies, maybe not so much. So it is a step in the right direction, but the situation is far from settled.
edit: fix typo
> the district court will need to develop a fuller record
> Instead, it might consider directing the parties, who poorly served the court by treating the standards interchangeably, to file briefs addressing whether the standards are susceptible to groupings that are relevant to the fair use analysis.
Pretty much calling out everyone involved on their laziness. I can imagine the judge shaking his head in disappointment when writing this opinion.
This is actually a tough case. Someone, or some organisation, spent a lot of time and money making a standard and protected it by copyright. They did not ask to be part of a law - that was something the people who made the law decided - and really, the people who made the law should have licensed the standards.
This is mostly false, actually. They exist as model codes to be a part of building codes in a lot of cases. They serve no other purposes.
Nobody is sitting around making building codes as a hobby that are accidentally getting incorporated into law.
Additionally, in the case such a thing did happen, the authors would have have recourse - not against the public, but against the government, for a taking.
This is true
thought by the lobbyist of "this will drive more sales for us".
This is not. The money just isn't all that much, the industries want standards incorporated into laws to that organizations have one well-tested set of rules to follow across the country, rather than having to follow dozens/hundreds/thousands of variations across various jurisdictions.
How do we know that they did not ask?