back to article Y'know... Publishing tech specs may be fair use, says appeals court

In a victory for those supporting open access to technical specifications, the US Court of Appeals for the District of Columbia Circuit on Tuesday vacated injunctions [PDF] that prohibited Public.Resource.Org (PRO) from publishing copyrighted technical standards online. The appeals court reversed a partial grant of summary …

  1. heyrick Silver badge

    Ummm?

    Isn't a photo taken by a park ranger (or whatever) automatically made non copyright and available to the public if it was taken in his capacity as a government employee?

    How is this any different? Things that are to do with the creation of laws and government regulations must, by necessity, be made available on similar terms (unless the "national security" excuse kicks in).

  2. Jim Mitchell

    Re: Ummm?

    The standards in question are not created by the government, nor a government employee in the course of their job. They are created by a private third party organization and "incorporated by reference" in state/federal law.

    This creates the obvious issues of laws you have to pay somebody for before you know what they are. The fact this hasn't been challenged before is surprising to me, it is just crazy.

  3. I3N
    Coat

    As a Navy Boffin ...

    Accepted the lack of copyright ownership in exchange for not having to wear suits and ties in journal article bio profile pics!

  4. MikeGH

    Re: Ummm?

    In the UK, the government keeps getting hammered for this by parliament, at its solution is ensuring there is always a copy available to read at the department's London office.and it says where in the law.

  5. Anonymous Coward
    Anonymous Coward

    Re: Ummm?

    "...solution is ensuring there is always a copy available to read at the department's London office.and it says where in the law."

    Shirley the location is the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard"

  6. Oengus Silver badge

    Re: Ummm?

    I would have thought this is a more likely scenario for the display of government documents...

    All the planning charts and demolition orders have been on display at your local planning department in Alpha Centauri for 50 of your Earth years, so you’ve had plenty of time to lodge any formal complaint and it’s far too late to start making a fuss about it now. ... What do you mean you’ve never been to Alpha Centauri? Oh, for heaven’s sake, mankind, it’s only four light years away, you know. I’m sorry, but if you can’t be bothered to take an interest in local affairs, that’s your own lookout.

    You can't make them too available. Someone might read them.

  7. ratfox Silver badge
    Devil

    Ignorantia juris non excusat

    But you have to pay to know it.

  8. MiguelC Silver badge

    Re: Ignorantia juris non excusat

    Laws are public speech and their dissemination can not be impeded. Requirement of payment for it's release is, therefore, not allowed.

    It's unfortunate the court avoided ruling on that.

  9. MonkeyJuice

    Re: Ignorantia juris non excusat

    It has, however, now inadvertently set a precident.

  10. whoseyourdaddy

    Umm... I have a concern...

    Your plug-in things have to conform to UL/IEC/CSA safety standards.

    I hate that I've read more than a thousand pages.

    I would never expect them to protect my safety if no one was expected to pay these private companies for writing, defending, and everything related to maintaining them.

  11. Anonymous Coward
    Anonymous Coward

    @ whoseyourdaddy

    these private companies make a business out of controlling compliance, without their certification then products, methods and engineers are not recognised as fit for purpose and if anything the later have been involved with goes to court then they have to defend themselves in each case to prove they are competent, compared with your private companies who have automatic recognition by the state.

    If you are going to have a compliance body it should be country wide and not be a business but part of the government. Private companies should never be allowed to have control of the law

  12. ExampleOne

    Surely the "copyright on the standards" means that, potentially, someone could block all use of the standard in a courtroom?

    I agree with the article, this is likely to end up going all the way to the Supremes.

  13. C. P. Cosgrove

    Uh ?

    I would have thought that law - or laws - is/are public documents and have to be public, else how can you be expected to have reasonable knowledge of them ?

    I agree that not everybody requires, for example, a detailed knowledge of the Petroleum Regulations but the knowledge should be freely available to those who do need it. But the laws of a country or state should be freely available for public study and scrutiny.

    And as for the argument that why should an institute make its regulations available for free, it is their duty to create these regulations and publish them. And if an element of financial compensation is needed to enable this duty to be carried out then it falls to the State to supply this. Such documents have the nature of a 'public good' and access to them should not be impeded by considerations of copyright or intellectual property, epecially if done either at the behest of the State or if essentially paid for by the State.

    Chris Cosgrove

  14. Stuart Halliday

    Good luck getting ISO standards free....

  15. Jack of Shadows Silver badge

    They answer to a higher court, corporations.

  16. Maelstorm Bronze badge
    FAIL

    Um...Yeah

    The Georgia one is a real winner. You cannot get the official state code without paying US $23,000 or some outrageous amount for it because it's copyrighted. I can see it now:

    Defendant: Your Honor, I had no idea that there was a law saying that I could not do that.

    Judge: Ignorance of the law is not an excuse.

    Defendant: But your Honor, how am I to know what the law is if I cannot get access to the text of the law? It's not available publicly, and I can't afford the fee to get access to the law.

    Judge: Not my problem. Ignorance of the law is not an excuse.

    The big issue with this and cases like this one is that it fosters secret laws and the double standard. The law must be available freely to the public. Otherwise, you can end up in jail for violating a law that is on the books, but nobody but a select few is allowed access to the books.

  17. TReko

    Re: Um...Yeah

    The same is true in Australia. Many building codes and electrical standards which are mandated by law cost around $4000 a year.

  18. onefang

    Re: Um...Yeah

    Also in Australia, our politicians are often trotting out the "I can't tell you that, commercial in confidence" excuse for keeping secrets. Secrets that really should be not a secret.

  19. whoseyourdaddy

    Ok, put it another way...

    Who will ensure these standards are kept current if no one will pay for them?

    Good luck on that.

    (p.s. downvote me all you want, Freetards. You know I'm right.)

  20. GrapeBunch Bronze badge

    Re: Ok, put it another way...

    @who's

    When you pay the building inspector for the mandatory before anybody can stay in the building. Or the bilge pump inspector for the mandatory before being allowed to sail.

    These regulations are not just for "safety", they also protect the (corporate) members of the associations which issue them. A requirement, for example, to put electrical outlets on walls every x feet (when say x + 2 is also a reasonable number, or was last year) results in bilgeloads of extra billable hours. Smiles from the electrician, smiles from the electrician's contractor, who bills at twice what the electrician charges him. Smiles from the socket manufacturers. Smiles from the copper mining corps. So as another answer to the question, the standards will continue to be kept current because follow the money.

  21. martinusher Silver badge

    Re: Ok, put it another way...

    >Who will ensure these standards are kept current if no one will pay for them?

    That's what you've got a "government" for. The purpose of the government is to lay down standards and enforce them. What's supposed to happen is that legislators decide the framework for laws ("we need standards to prevent ships from blowing up harbors") and the appropriate civil service department then organizes the standards, often coordinating with industry groups. Governments use international relations to negotiate treaties which can include determining international standards or reciprocal recognition of standards.

    I know its fashionable these days to slag off 'government' and, especially if there's money to be made, to privatize its functions but the reality is that everyone needs it. Just take an everyday example of using and airliner to go from England to, say, the USA. Before ICAO organized all the international treaties and standards every international flight had to be licensed by the appropriate governments. There was no standards for aircraft design and testing, pilot training, flying practice, airport design -- nothing. Getting this organized took a lot of work. Since it does work everyone now takes it for granted ("so what do we need government for? Its just a waste of money...." Sounds familiar?)

    What's likely to happen is that the price of legislation is going to be limited to the actual costs of publishing it.

    BTW -- I resent the appellation "Freetards". Nothing is free, not even lunch.

  22. Allan George Dyer Silver badge

    Re: Ok, put it another way...

    @GrapeBunch - "put electrical outlets on walls every x feet (when say x + 2 is also a reasonable number, or was last year)"

    No, x + 2 wasn't a reasonable number, last year or ever. x / 10 might be. Even when I had my place rewired, and I specified as many as I thought I would need, a few years later they were all full, and I've been buying socket strips ever since!

    It's probably some sort of Parkinson's Law variant.

  23. Charlie Clark Silver badge

    Re: Ok, put it another way...

    Who will ensure these standards are kept current if no one will pay for them?

    That isn't the issue: many countries have well-maintained legal specification that are open access. The legal issue is ensuring that laws, including specifications they refer to, are freely available to all.

    Indeed it is often only the publicly available specifications that are well-maintained over time: companies invariably lose interest in maintaining specifications that do not directly further their own commercial interests.

  24. Kevin Johnston Silver badge

    Re: Ok, put it another way...

    My wife thought I was mad when I suggested 12 double sockets when our Kitchen/Breakfast room was rebuilt. It was just under a year before she was looking for extra sockets

  25. DougS Silver badge

    Re: Ok, put it another way...

    There's nothing wrong with outlet strips. Fire officials dislike them because fires have been caused by plugging in too many things and overloading the circuit, though in a properly wired home with functioning circuit breakers a simple overload isn't a concern. Even if you have a duplex receptacle on a circuit by itself you can overload it if you plug two high draw items like an electric toaster and a microwave into the two outlets. So if this was really a concern they should ban duplex receptacles or series circuits and require every individual outlet be on a separate circuit!

    Claiming we need more outlets or they should be closer together because we plug in more things - given all that extra stuff we plug in are extremely low electronic items like phone chargers, wifi repeaters, streaming TV boxes and the like is silly. There's no compromise of safety by plugging 20 things that collectively draw 400 watts into a really big outlet strip, or plugging several power strips into another power strip that's plugged into the wall to get those 20 things plugged in (or to provide proper reach if your outlets are too far apart)

    There should be some exceptions to these rules for circuits that have properly wired and fully tested circuits with breakers and GFCI/AFCI that meets code (AFCI/GFCI protection automatically extends to everything in a circuit, whether directly or via outlet strips)

  26. John Riddoch

    Re: Ok, put it another way...

    From close experience - plugging two ovens into a single extension lead blew the fuse on the extension (by design and quite correctly - note that it was someone else who did this, not me). In contrast, I have two extension bars linked together at home serving up a number of low wattage items (mainly around the PC) quite happily because they don't go near the 13 amps permitted by the fuse. It's all about what you plug in, not just the number of items.

    The dislike of multiple extension bars dates back to when most items in the house were high wattage and folk would link 2 or more bar heaters, a toaster and an iron into one socket with rather inevitable results. When the blown fuse gets replaced by tin foil or a bolt, the next inevitable results annoy the fire brigade.

  27. Allan George Dyer Silver badge

    Re: Ok, put it another way...

    @DougS - it's not the safety issue (except when the nearest free socket is the other side of a gangway). It's the additional cable, tangling with all the other cables, gathering dust, falling down the back of the cabinet and being inconvenient.

  28. DougS Silver badge

    Re: Ok, put it another way...

    Fine, that's an argument for someone building a home choosing to put more outlets closer together. Its not an argument for code requiring that.

    There are a lot of things that are convenient for home owners that you should want in a home, but code shouldn't require them. Because maybe I don't plug in a lot of stuff, and maybe you don't care about having to go up steps from your garage to your house and think zero entry is a waste of money, etc.

  29. Allan George Dyer Silver badge

    Re: Ok, put it another way...

    @DougS - very few people build their own home, and the rental market in particular is stuck with what is there. The codes were written before we had a massive increase in appliance numbers, so they should be updated to current conditions.

    Is that the argument you wanted?

  30. DougS Silver badge

    Re: Ok, put it another way...

    Codes should be about safety, not convenience or "what people want to buy". You could have a code requiring skylights or a three car garage to insure people can find the houses they want to buy, or you could leave it up to the builders to go where the market leads them - builders who fail to do so will find they have houses they can't sell, or are forced to sell at a reduced price, and they'll either learn their lesson or go bankrupt and be replaced by builders who will.

    Letting the government decide what people want instead of the free market is why the USSR is now a footnote in history, and the US and UK are still around after hundreds of years.

  31. Allan George Dyer Silver badge

    Re: Ok, put it another way...

    @DougS- In a democracy, the government is the people, but a purely free (=unregulated) market is controlled by the capitalists. If building codes were about safety above all, then flammable furniture would be banned. If you want to say that the free market is best because the USSR failed, the free market's track record is not that long, surely absolutist monarchies have survived for thousands of of years. I'm saying find a balance between regulation and market freedom. Regulation needs to step in where the consequencies of decisions are external to the buyers and sellers.

  32. DougS Silver badge

    Re: Ok, put it another way...

    Building codes only govern the structure, they can't dictate what furniture you put in. Are you going to have an inspection every time you buy a new couch?? There are laws that prevent selling overly flammable furniture, because they caused deaths. But it sounds like you'd want laws preventing the sale of pink couches with yellow stripes and green polka dots, because it is in bad taste and buyers should be protected from having it on the market!

    If I built a house that had only one outlet per room, had a single 20 watt light fixture in a 30'x30' room, had shag carpeting in the bathrooms and other terrible ideas, no one would buy it. Or I'd be forced to accept an offer far lower to reflect the cost for the buyer to remedy all my stupid decisions. Why should code step in and say "you can't put shag carpeting in a bathroom because it is gross"? Its my house, if I want to put shag carpeting in a bathroom it should be my right, even if no one else in the world would want a buy a house that had it.

  33. Allan George Dyer Silver badge

    Re: Ok, put it another way...

    You're missing the point: the people who live with the consequencies of your nightmare flat are not the people who decide what is built or buy the new builds, therefore the free market does not work to the benefit of the residents or society. Would you buy a 128 sq ft flat at US$2500 per sq ft? Around here, developers are building these, and marketing them as luxury nano flats, and speculators (mostly ou-of-city money) are buying them while poor people are renting cage homes. The ever-inflating prices must be a bubble, but it's lasted for 20+ years and the free market is slow to correct while people live with chronic overcrowding. https://www.hongkongfp.com/2017/02/25/govt-says-will-consider-setting-minimum-limit-apartment-sizes-nano-flat-trend-continues/

    I'm advocating a balance between regulation and market forces, so I don't want rules to tell you what colour your sofa should be, but I do want rules to generally improve people's lives, even if they are not strictly safety issues. Can you take a more holistic point of view?

  34. EveryTime Silver badge

    If a standards organization wants their standard to be enforced by the government, they must accept that they will lose the copyright. At least on the portion of the standard that is incorporated into enforceable laws or regulations.

    If they are writing something to make money on the copyright, perhaps they should be writing novels or textbooks.

    In real life, not theoretical cases, standards are written by people with regular employment in the field. The standards bodies get their expertise and labor for free. The companies they work for get an early lead in marketplace, sometimes to the extent of making substantial profits in low-tech endeavors. For instance, price out Simpson Strong-Ties and compare the products to other building products.

  35. I3N
    Happy

    Strong-Ties will turn any sysadmin into a construction expert

    Love the stuff ... then I saw that I needed spec adhesive and bolt to fasten the 4X4 base in to the patio cement.

    BTW, I'm neither.

  36. Michael Wojcik Silver badge

    If a standards organization wants their standard to be enforced by the government, they must accept that they will lose the copyright. At least on the portion of the standard that is incorporated into enforceable laws or regulations.

    If they are writing something to make money on the copyright, perhaps they should be writing novels or textbooks.

    I strongly suspect those organizations could continue to prosper without retaining copyright on such specifications, or if they had to provide a transferable license on that copyright for the portions incorporated into law. There are plenty of ways to profit from intellectual property even when you don't have complete control over its distribution.

    I am in general inclined to defend intellectual property, within limits (I'm no fan of the ridiculous US copyright terms, for example), but I don't see this reduction in IP rights as an existential danger to specification-promulgating organizations.

  37. veti Silver badge

    Dear Reg editorial staff:

    Much as I personally would like to see Diana Ross nominated to America's highest court, I don't think it's going to happen.

    So could you please, pretty please, stop calling them "The Supremes"?

  38. onefang

    Re: Dear Reg editorial staff:

    I may be wrong here, or at least inaccurate, some 'Murican can correct me if I am wrong. I believe "The Nine Seniles" is also on offer if you don't like "The Supremes". Though likely not on offer to professional journalists that want to stay out of court.

  39. I3N
    Angel

    Well guess what, and I bought a copy of NFPA 101 2012

    And as a NFPA member once upon a time, they required that I accept their terms and conditions. but first reset that forgotten password.

    If you consider your email address as free-access payment, https://www.nfpa.org/Codes-and-Standards/All-Codes-and-Standards/Free-access

    Was touring makerspaces. With arc welding at the front door and rear door blocked with satellite tv dishes - a 'Right, what's all this then?!' moment.

    That type of reading, prefer print

  40. Anonymous Coward
    Anonymous Coward

    You broke the law but...

    "I can't tell you what it is that you done wrong."

    "But Judge, all I did was put up a flag pole."

    "No excuse. It could have fallen over and hit some passer by on the head. You didn't get a permit, or get it approved by the Flag Pole Inspector and nor did said flag pole inspector inspect the pole after you put it up."

    "Judge, my home is 10 miles from the nearest public road. Any passer by will be trespassing on my land."

    "But you broke the law. The sentence is life without parole. Perhaps that will teach you a lesson not to do anything in this 'land of the free' without a permit and that includes breathing."

  41. wyatt
    Meh

    18th edition (BS 7671:2018 Requirements for Electrical Installations) has just been released. You have to pay for this:

    https://electrical-shop.theiet.org/books/bs-7671/bs-7671-2018.cfm

    Is this similar to what's happening in the US?

  42. m-k

    the State of Georgia won its 2015 case against PRO for publishing the state's laws online

    somebody in Georgia (more than one body) must have lost their mind. Unless, of course, PRO did what they they for profit.

  43. sisk Silver badge

    Is it just me or isn't it blindingly obvious that technical specifications should fall under fair use?

  44. StudeJeff

    Why is this even a question?

    If something is made into law, no matter what its source, why would there even be a question about being able to distribute it? It's the law of the land, people have to be able to know what the law is to be able to follow it!

  45. David 132 Silver badge
    Happy

    Re: Why is this even a question?

    Oh dear. Well, I suppose you have to learn sometime. Come, sit down.

    See... the world isn't fair, or logical, or consistent. Some people are greedy - for money, or power, or control. Some are idiots in thrall to the greedy ones.

    Next week, when you've recovered from this, I'll let you in on the shocking truth about the Easter Bunny, Father Christmas, and the Honest Salesman.

  46. emullinsabq

    is the law really enshrined in this infringed material?

    It might help if we could see the material that was allegedly infringed. My experience using ASHRAE suggests otherwise. Mostly it was material, based on the law, that was useful to engineers.

    If the law is indeed separate, then I think this material should be protected by copyright. OTOH, if the law says something like, "See ASHRAE", then yeah, I agree it's a problem.

  47. RainCaster

    How will JEDEC like that?

    There are a number of high tech standards that the world needs, yet you must buy them from obscure and dodgy websites. Think IEEE, ISO, JEDEC, etc.

  48. I3N
    Big Brother

    Re: How will JEDEC like that?

    Or bow in allegiance to those unholy consortia like Zigbee, Z-Wave, Bluetooth, USB, ....

  49. Kanhef

    How far should it go?

    Many specifications reference other standards. For example, say you want to build a data center. Most jurisdictions will require that you follow the International Building Code (IBC) for the structure, and I'm not even touching fireproofing, electrical, HVAC, etc. here. For the steel frame of the building, IBC says it shall be constructed in accordance with AISC 360. That will in turn require you to follow AWS D1.1, which invokes other standards for several things. Then you have steel decking, rebar, concrete, soil preparation, and so on. Even if the standards incorporated into law themselves are made available, they directly and indirectly require the use of dozens of other standards. Should all of those be made freely available as well?

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