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Taking the Fight to the Appeals Court: Don’t Lock Laws Behind Paywalls

DEEPLINKS BLOG
August 29, 2017

It’s almost too strange to believe, but a federal court ruled earlier this year that copyright can be used to control access to parts of our state and federal laws—forcing people to pay a fee or sign a contract to read and share them. On behalf of Public.Resource.Org, a nonprofit dedicated to improving public access to law, yesterday EFF challenged that ruling in the United States Court of Appeals for the District of Columbia Circuit.

Public.Resource.Org acquires and posts a wide variety of public documents, including regulations that have become law through what’s called “incorporation by reference.” That means that they were initially created at private standards organizations before being adopted into law by cities, states, and federal agencies. By posting these documents online, Public Resource wants to make these requirements more available to the public that must abide by them. But six standards development organizations sued Public Resource, claiming that they have copyright in the regulations, and that Public Resource shouldn’t be allowed to post them at all.

Laws and regulations incorporated by reference include some of our most important protections for health, safety, and fairness. They include fire safety rules for buildings, rules that ensure safe consumer products, rules for energy efficient buildings, and rules for designing fair and accurate standardized tests for students and employees. Once adopted by a legislature or agency, these rules are laws that can carry civil or criminal penalties. For example, a person was charged with manslaughter this year in connection with the deadly Ghost Ship fire in Oakland, California for violating a fire code that became law through incorporation by reference.

According to the district court decision issued in February, the standards development organizations that convene the committees that write these codes and standards can continue to decide who can print them, who can access and post them online, and the price and conditions of that access. It’s as if a lobbyist who submitted a draft bill to Congress could charge fees for access to that bill after Congress and the president pass it into law.

Today, while most laws and regulations in the U.S. can be searched and read on the Web, laws incorporated by reference are locked behind paywalls, or cannot be found online at all. Many are available only in expensive printed books, or in a single office in Washington, D.C. that requires an appointment on several weeks’ notice. Public Resource’s website was designed to fill this gap, which is why it was targeted in a lawsuit.

In our opening brief, EFF, along with co-counsel at Fenwick & West and attorney David Halperin, argued that giving private organizations the power to limit access violates the First Amendment’s guarantee of free speech, and the due process protections of the Fifth and Fourteenth Amendments and contradicts copyright law.

We’re asking the appeals court to fix these errors and uphold the rights of everyone to know the law, and to share it.

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