Last week, as part of EFF’s annual Copyright Week, we wrote about the need for transparency in creating copyright restrictions in the international arena. As a current legal battle shows, however, it is equally important that copyright restrictions not interfere with transparency and open access to the law itself.
In a democracy, no one owns the law—or to put it another way, everyone owns the law. If a judge claimed that she should be paid a toll every time someone copied a passage from one of her decisions, we would find it absurd. If the lobbyist who wrote sections of your city’s business code announced he could decide, at any time, to sharply limit public access to those sections, he would be run out of town. The right to read the law—and just as important, the right to copy, discuss, and share the law—is essential to the rule of law itself.
But six huge industry associations are trying to undermine that principle, insisting that it doesn’t apply to a growing category of law: laws that began as private standards but are later incorporated into federal and state regulations. Insisting that they own a copyright in these laws, they’ve joined forces to stop a tiny non-profit, Public.Resource.Org, from posting them online.
Public Resource has a simple and important mission: to make government more accessible, including the law. Along with documents like tax filings and government-produced videos (check out the famous 1951 “duck and cover” film here), Public Resource posts federal rules about safety and product design that are initially created through private standards development organizations (SDOs) and later incorporated into federal and state laws. In 2013, three SDOs sued Public Resource, claiming that only they have the right to say who can copy dozens of standards incorporated into law, and at what price. These are some of the most important laws governing our daily lives and the safety of the buildings and products we encounter, yet copies are expensive to obtain. And while the SDOs put some of the standards online, they load up their sites with registration requirements, copy restrictions, and difficult user interfaces in a deliberate attempt to make the sites hard to use.
In 2014, three more SDOs sued Public Resource over a standard for designing tests. That standard is part of the U.S. Department of Education’s rules for handing out billions of dollars in financial aid for students, yet the groups that published it make it hard to find and buy, in order to boost sales of a new edition. It’s not available online anywhere right now, so finding out what the law is means tracking down an increasingly rare used copy.
Copyright cannot trump the essential public interest in accessing and sharing the law. So this winter, EFF and attorneys at Fenwick & West are fighting back, asking the U.S. District Court for the District of Columbia to rule that Public Resource has the right to put these important laws online in standard formats, free of copy protections and cumbersome user interfaces. Other courts, including the Supreme Court, have long since declared that no one owns the law. We hope this court will do the same.
The Roman emperor Caligula published his tax laws only in narrow places, in very small letters, to prevent his subjects from actually being able to read them. While standards development organizations have nobler goals than those of a famously corrupt emperor, deliberately making the law more difficult for ordinary people to find, read, and discuss is still a big problem for our democracy. If we must all abide by the law—including the law of building safety, product safety, energy efficiency, and high-stakes testing—then we must all have the ability to access it freely, without fees or restrictions.