For posting parts of the U.S. Code of Federal Regulations, Public.Resource.Org, my nonprofit corporation, is being sued. We’re being sued in 2 district court cases by 6 plaintiffs. When one of my lawyers from the Electronic Frontier Foundation (EFF) went to argue for our right to a jury trial, he found himself facing 12 lawyers at the plaintiff’s table.
I’m an Internet hacker, not a lawyer, but I’ve lawyered up as well. In addition to EFF, Fenwick & West and Durie Tangri have agreed to assist me on a pro bono basis. That’s a lot of legal firepower on an issue that would seem to be on it’s face very simple. The cases strike to the heart of 2 central questions in our legal system. First, what is the law? Second, how do we promulgate that law to an informed citizenry?
That laws that I post are technical standards that are explicitly and deliberately incorporated by reference into federal regulations or state statutes or administrative codes. I started doing this in 2008 with the building code of California. States, cities, counties, and the federal government all mandate building codes, and they often incorporate model building codes developed by nonprofit organizations such as the International Code Council.
Based on a strong 5th Circuit opinion, Veeck v. Southern Building Code Congress, it seemed clear that building codes are the law and that, according to long-held tenets of common law, had no copyright. From the California Building Code (known as Title 24 of the Code of California Regulations), I expanded our efforts to post all the building, fire, electrical, plumbing, fuel & gas, boiler, elevator, energy, and accessibility codes for the country.
Then, in 2012, we moved this work up to the federal level, posting 969 technical standards that were incorporated by the Office of the Federal Register into the Code of Federal Regulations. These standards cover a truly impressive swath of safety requirements, from hazardous material transport to pipeline safety, OSHA requirements for factories, automotive safety, mine safety, boating safety, and many other things that can go dreadfully wrong in our modern technical world.
We know from the headlines what happens when these safety codes are ignored. Wastewater runoff from fracking, horrific injuries in factories, massive explosions in plants like the Texas City Refinery because mandated standards are ignored and not enforced. Until we started posting these documents, the only way to read them was to pay the original code developers hundreds of dollars per copy for the privilege of reading the law. Even more onerous, the nonprofit code producers insisted that they alone had the right to provide copies of the law online and that nobody else could speak these laws.
By speaking the law, I mean reformatting the documents into modern format like HTML. Putting the documents in a common format so you can compare two standards from two different developers. Making the documents available in bulk so anybody else can create new and better ways of informing the citizenry.
That’s what we’re being sued for. The charge is “massive copyright infringement.” The plaintiffs are groups like the National Fire Protection Association (NFPA), the creator of the National Electrical Code, a document required by law in all 50 states and by the federal government. Not only is the code required by law, the entire purpose of the code development process is to get it incorporated by reference into law. NFPA employs a full-time staff that does nothing but lobby state officials for that privilege, and when they succeed in being named the provider of the law in a state, they trumpet their success in blaring press releases.
Let’s be very clear. I have no problem with the NPFA selling an official certified version of the National Electrical Code. I begrudge not one cent of revenue for marketing training, certification, handbooks, and other value-added materials. I think NFPA does amazingly good work, their codes are precise and complete, and they should be able to shout from the rooftops that they are indeed the officially named creator of our nation’s National Electrical Code.
Where I part ways with the plaintiffs is that the idea that a U.S. citizen needs to ask for permission before they can read the law. Even worse is the idea that I cannot speak the laws that bind us without a license. The Supreme Court ruled in 1824 in Wheaton v. Peters that the law in America has no copyright because the law is owned by the people. Without that decision, West Publishing never could have created their National Reporter System, that wonderful edifice of American jurisprudence that made federal and state case law available to the bar.
Our country is one based on the rule of law, and a fundamental requirement of the rule of law is that the law must be promulgated to be effective. The maxim that ignorance of the law is no excuse is not empty Latin bromide, it is the expression of a belief that in our system of government, all citizens must inform themselves of their rights and obligations.
Efforts to publish the law are not limited to U.S. technical public safety standards. We’ve received takedowns from the states of Idaho, Georgia, and Mississippi for posting their official state codes, publications of the states with the force of law. And, we’ve recently taken our efforts to make public safety standards available abroad to India, where we’ve posted 19,000 Indian Standards published by the Government of India and required by statute and regulation throughout the country. Contrasting the efforts in India to those in the U.S. is a fascinating exercise in comparative law, especially given the deep roots of this principle in both the U.S. and Indian constitutions.
The principle is a big one, and we’re hopeful we’ll prevail. The U.S. cases are in their early stages, with wrangling over discovery, fact witnesses, and expert witnesses. Soon, the serious briefing will begin. In the Congress, the House Judiciary Committee held hearings in 2014 on the question of edicts of government whether people can be barred by copyright law from speaking their laws, and we’re expecting more action on that front in 2015.
What is the law and who is allowed to speak is the issue we want to reaffirm, following on a long line of decisions going back to the beginning of our country, because the law belongs to the people. I hope you’ll follow along as these cases continue to develop.
Resources for Further Reading:
[1] The first case is in the U.S. District Court for the District of Columbia, ASTM et. al. v. Public.Resource.Org (1:13-cv-01215). You can see the current docket for the case on the Internet Archive at http://archive.org/details/gov.uscourts.dcd.161410/
[2] The second case is before the same judge, American Educational Research Association v. Public.Resource.Org (1:14-cv-00857). The current docket is visible at http://archive.org/details/gov.uscourts.dcd.166323/
[3] The reason those cases are available 0on the Internet Archive is because of the RECAP plugin, a service that lets you look at the district court PACEDR system and see if somebody has already purchased that file. If so, you don’t have to pay. You can learn more about RECAP here: https://www.recapthelaw.org/
[4] Peter Veeck v. Southern Building Code Congres, 293 F. 3d 791 (Fifth Circuit, 2002) is viewable at: https://law.resource.org/pub/us/case/reporter/F3/293/293.F3d.791.99-40632.html
[5] Wheaton v. Peters, 33 U.S. 591, 8 Pet. 591, 8 L. Ed. 10555 is viewable at: https://bulk.resource.org/courts.gov/c/US/33/33.US.591.html
[6] Carl’s testimony to the House Judiciary Committee can be viewed at: https://public.resource.org/edicts/
[7] The nonprofit corporations are not exactly hurting for money. Most of them pay $1 million dollar salaries and have lots of lucrative revenue streams. See Table 3, Table of Revenue and Renumeration at https://law.resource.org/pub/table03.html
[8] Our international effort scan be viewed at https://law.resource.org/pub/12tables.html
[9] Indian Standards and the Petition to the Honorable Ministry can be viewed at https://law.resource.org/pub/in/