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Secret Laws - Input Junkie
March 22nd, 2012
11:00 am

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Secret Laws
There are a lot of US laws that you have to pay to see, and you'll face serious penalties if you publish them.

Link thanks to
[personal profile] twistedchick.

This entry was posted at http://nancylebov.dreamwidth.org/535052.html. Comments are welcome here or there. comment count unavailable comments so far on that entry.

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From:madfilkentist
Date:March 22nd, 2012 03:29 pm (UTC)
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Properly speaking, they aren't laws, but privately published standards which have been given the force of law. For instance, a law might reference an ISO standard, and generally you have to pay to get a copy of those.

I'd like a good solution to this, but the more I think about it, the less obvious it is. A standard can't be put into the public domain just because it's referenced by a law. On the other hand, those standards represent a lot of thought about best practices, and it wouldn't make a lot of sense to reinvent the wheel.

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From:thnidu
Date:March 22nd, 2012 05:14 pm (UTC)
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"A standard can't be put into the public domain just because it's referenced by a law."

I surmise -- please correct me if I'm wrong -- that your basis for this statement is that any work made by a private organization and not explicitly released by them remains that organization's property, and they have the right to restrict, prohibit, or charge for access to it.

The problem is that these are not like, say, books or works of music. Although these standards are privately made, they are made part of the public law system "by reference", and not against the creators' will. To the contrary! Since these standards are now law, the public must obey them, and anyone who expects to be dealing with them, like a building contract, has no choice but to pay whatever price the organization wants to charge... if the standards are available at all. From the Boingboing article that Nancy linked to:
The reason we are making those copies is because citizens have the right to read and speak the laws that we are required to obey and which are critical to the public safety.

When Peter Veeck posted the Building Code of Savoy, Texas on the Web, the standards people came after him with a legal baseball bat. The standards people run private nonprofit organizations that draft model laws that states then adopt as law, through a mechanism known as incorporation by reference.

Peter thought the people of his town should be able to read the law that governed them. But the standards people were adamant that the model building codes were their copyright-protected property and that nobody could post this information without a license, nobody could copy their property without paying the tollmaster.

The U.S. Court of Appeals disagreed, saying that there is a “continuous understanding that ‘the law,’ whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright.” Veeck v. Southern Building Code Congress, 293 F.3d 791 (5th Circuit, 2002).

“If a Law Isn't Public, It Isn't a Law”—Justice Stephen Breyer
And there lies the injustice. If we are to be governed and restricted by standards, if there are rules we must follow or be penalized, we must be able to know those rules. The Boingboing article that Nancy linked goes into this issue.

ISTM... ISTM... that if the government wants to build these documents into law, the government should pay the organization for them, and make them freely available for all to see.

Edited at 2012-03-22 05:25 pm (UTC)
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From:madfilkentist
Date:March 22nd, 2012 05:38 pm (UTC)
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ISTM... that if the government wants to build these documents into law, the government should pay the organization for them, and make them freely available for all to see.

Yes, that's the right solution, in principle, but it would wipe out the market for the standard.

In the case of PDF 1.7, which is exactly equivalent to ISO 32000, there are two documents; one is the ISO standard, which costs a lot, and the other is the PDF 1.7 standard, which is free. Somehow it works, because there are people willing to pay for "the official standard" for reasons I don't understand.

This is just one of those cases where at first glance there ought to be a clear answer -- a legal requirement needs to be made public -- but the devil is in the details. Generally the average person in the street is incapable of breaking the law on these standards. Perhaps the answer is that they should be available for free upon receipt of a simple application explaining the legal need to know. Yet those people are exactly the source of income for the standards organization. My head spins...
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From:subnumine
Date:March 22nd, 2012 06:33 pm (UTC)
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As with the ISO standard, below, governments can write their own standard, either adopting the substance of the industry standard, which is NOT copywritable, or not.

The obvious solution is that the legislative bodies recieve a waiver from copyright provided they have gone through and edited the standard, removing references to the standard-making body. Since they can (and should) edit further, removing what they disagree with, the result is not a substitute for the expensive model code - and this should guarantee that somebody has read the code before adoption.

Copyright is an artificial and limited grant by government; where it does not serve public policy, it should be reformed.
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