Everyone should be able to read the law, discuss it, and share it with others, without having to pay a toll or sign a contract. Seems obvious, right? Unfortunately, a federal district court has said otherwise, ruling that private organizations can use copyright to control access to huge portions of our state and federal laws. The court ordered Public.Resource.Org to stop providing public access to these key legal rules.
Public.Resource.org has one mission: to improve public access to government documents, including our laws. To fulfill that mission, it acquires and posts online a wide variety of public documents including regulations that have become law through “incorporation by reference,” meaning that they are initially created through private standards organizations and later incorporated into federal law. Those regulations are often difficult to access because they aren’t published in the federal code, but they are vitally important. For example, they include the rules that govern the safety of buildings and consumer products, promote energy efficiency, and control the design of standardized tests for students and employees.
The industry associations that develop these rules insist that they have copyrights in them – even after they become binding regulations. Six of those associations sued Public Resource for copyright infringement. According to their complaint, sharing the law means breaking the law.
EFF, along with co-counsel at Fenwick & West, Durie Tangri, and attorney David Halperin stepped up to defend Public Resource in court. Unfortunately, we didn’t win this round; the district court has granted summary judgment motions in favor of the standards organizations, ruling that they can claim copyright in the regulations, and ordered Public Resource not to post them online. The district court’s decision runs contrary to decisions in other parts of the country, and raises serious constitutional issues. We don’t see how the decision can be reconciled with the due process right to know the law, nor our First Amendment right to share it.
The district court’s decision suggests that laws can be copyrighted and put behind paywalls as long as they were first written down by someone outside of government. Of course, lobbyists and trade groups write bills and draft regulations that get passed by Congress, or federal agencies, with scarcely a word changed. The ruling against Public Resource suggests that every one of those lobbyists and other private interests “owns” a piece of the law and can control who accesses it, and how, and at what price. Will private parties be able to make parts of the law inaccessible, in an attempt to boost sales of other publications? Three of the plaintiffs against Public.Resource.Org have already tried to do this with the 1999 Standards for Educational and Psychological Testing, which is a part of both state and federal regulations.
We’re disappointed by this misguided ruling, but the case is far from over. Public Resource continues to make important government documents from many nations available on its website, and to push those governments to allow everyone to read and speak the law. And EFF will continue to stand beside Public Resource in its mission to make the law available to all.