January 14, 2014 | By corynne mcsherry

The Law Belongs In the Public Domain

In the week leading up the two-year anniversary of the SOPA blackout protests, EFF and others are talking about key principles that should guide copyright policy. Every day, we'll take on a different piece, exploring what’s at stake and and what we need to do to make sure the law promotes creativity and innovation. We've put together a page where you can read and endorse the principles yourself. Let's send a message to DC, Hollywood, Silicon Valley, Brussels, and wherever else folks are making new copyright rules: We're from the Internet, and we're here to help.

For nearly two centuries it has been a basic precept that the law lives in the public domain. It’s simple: in a democratic society, people must have an unrestricted right to read and speak their own laws. Full stop.

Of course, that principle means the law can never be subject to copyright restrictions. If any single entity owns a copyright in the law, it can buy, sell or ration the law, and make all sort of rules about when, where, and how we share it. People should never have to pay a fee to review and compare the rules and regulations they must obey, and no private entity should be the gatekeeper to the law.  As an appellate court put it

[I]t is hard to see how the public’s essential due process right of free access to the law (including a necessary right freely to copy and circulate all or part of a given 
law for various purposes), can be reconciled with the exclusivity afforded a private copyright holder . . . .

Simple, right?

Of course, access to the law has often been limited in practice. For example, while most federal court documents are available online, they live behind a government paywall (the PACER system).  And until recently, legal decisions were difficult to access if you couldn’t afford a subscription to a commercial service,such as Westlaw that compiles and tracks those decisions.

Fortunately, open access crusaders like Public.Resource.Org (whose founder, Carl Malamud, is testifying before Congress today about this issue), and the Center for Information Technology Policy, have worked hard to correct the situation, by publishing legal and government documents and giving citizens the tools to do so themselves. A private company, Google, has also done its part by including court opinions in the Google Scholar database. Until recently, these folks haven’t had to deal with copyright infringement lawsuits as they worked to free the law.

No longer. A group of standards-development organizations (SDOs) have banded together to sue Public.Resource.Org, accusing the site of infringing copyright by reproducing and publishing a host of safety codes that those organizations drafted and then lobbied heavily to have incorporated into law.

The SDOs argue that they hold a copyright on those laws because the standards began their existence in the private sector, and were only later "incorporated by reference" into the law. That claim conflicts with the public interest, common sense, and the rule of law.  

The fundamental right to access and share the law does not disappear just because the law in question is a technical standard. And a good thing, too, because these standards are now a significant part of the laws that shape our lives. Once incorporated, they become mandatory requirements, just like any other law.

The case involves crucial national standards like the national electrical codes, fire safety codes, and so on. Public access to such codes—meaning not just the ability to read them, but to publish and re-use them—can be crucial when there is an industrial accident, when there is a disaster such as the Moore, Oklahoma tornado, or when a homebuyer wants to know whether her house is code-compliant. Publishing the codes online, in a readily accessible format, makes it possible for reporters and other interested citizens to not only view them easily, but also to search and excerpt and generate new insights.

These organizations complain that if they can’t own the law—and control access to it—they can’t pay the bills and will have no incentive to continue their work.  Nonsense. First, much of the work is done by volunteers and even government officials. Second, SDOs have any number of alternative ways to keep the lights on (and pay their top executives exorbitant salaries). Indeed, as the same appeallate court said,

 [I]t is difficult to imagine an area of creative endeavor in which the copyright incentive is needed less. Trade organizations have powerful reasons stemming from industry standardization, quality control, and self-regulation to produce these model codes; it is unlikely that, without copyright, they will cease producing them.

But this case is about more than electrical codes. It is about drawing a line in the sand. The public domain is our cultural commons, the set of works, including legal works, that we can all use and reuse, without restriction or oversight. Protecting that resource, our common past and present, is essential to protecting our common future. That’s why EFF is representing Public.Resource.Org in fighting back against the SDOs, and why we’ve made defending the public domain a central priority. Join us.

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