In the latest salvo in the battle to defend the right to publish the law, EFF filed a counterclaim on Friday against three standards development organizations (“SDOs”), asking a federal court in Washington to declare that the online publication of safety codes does not violate copyright or trademark law.  We are joined in the effort by co-counsel Fenwick & West LLP, Durie Tangri LLP, and David Halperin.

This dispute started on August 3, when three SDOs, the National Fire Protection Association, ASTM International, and the American Society of Heating, Refrigerating and Air Conditioning Engineers (the SDOs) filed a federal lawsuit against Public.Resource.Org (“Public Resource”), led by Carl Malamud, for publishing codes and standards that various government entities have incorporated into law. Public Resource is a nonprofit organization that improves public access to government records and the law.  It acquires copies of public records like legal decisions, tax filings, statutes, and regulations, and it puts them online in easily accessible formats that make them more useful to readers.

In the past few years, Public Resource’s mission has come to include publishing health and safety codes that federal, state, and local governments have incorporated into law.  SDOs often develop the codes, and then encourage lawmakers and agencies to turn them into laws through a process called “incorporation by reference.” But despite legal precedents that the law cannot be copyrighted, SDOs continue to insist they have the power to restrict the rights of others to publish and use these laws. 

Publishing the codes online, in standard Web formats, makes it possible for reporters, scholars, advocates, small businesses and other interested citizens not only to view them, but also to search, excerpt, and copy them, to annotate them, and to craft new documents from them in order to compare health and safety requirements and generate new insights.

The counterclaim filed today explains that once they become part of the law, health and safety codes also become part of the public domain, and that the Constitution – not to mention our basic commitment to the rule of law protects Public Resource’s right to publish them. Once the government decides, often with the encouragement of SDOs, to turn a private safety code into a law that all must follow, the SDO can no longer be the gatekeeper that decides when, where, and how the public can use the code. Simply put, from the Constitution to the county fire code, the law belongs to all of us.

The SDOs insist that they have recently made some of their codes available but, as our counterclaim states, even that access is subject to legal warnings, contractual limitations, and technological restrictions.  Public Resource publishes the codes for free, in a user-friendly format that is available to all interested citizens. That way, if there is an industrial accident or natural disaster, or a homebuyer just wants to double-check that a house was built to code, an easy, free reference is available.

The SDOs also complain that if incorporation into law means they can no longer use copyright to restrict access to their standards, they will lose the incentive to create them in the first place. Nonsense. SDOs benefit tremendously when governments adopt their standards, and that benefit doesn’t depend on copyright. Having their safety codes transformed into laws gives the SDOs a government seal of approval and helps them sell training, certification, advertising, and lots of copyrighted books and pamphlets. SDOs generate revenue from a wide variety of sources. They shouldn’t be the gatekeepers of the law – and copyright doesn’t give them that power.

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