The Private Side of Law – You’ve Got to Buy it to Know What it Says

Lawrence B Hunt

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Posted 11 months ago. 1 helpful vote

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Many industries related nonprofit entities develop and publish industry standards which are then incorporated by reference into statutes and regulations having the force of law. Both governments and private industry rely on such standards. Such standards are seldom if ever published by any governmental entity or otherwise available to the public without cost. Instead, to obtain those standards it’s necessary to purchase them from the private entity which developed them. That is, to know what the law says, it’s necessary to pay a private entity for the governing text.

Moreover, the private entities which develop and publish such standards claim that those standards are subject to copyright protection and cannot legally be duplicated or republished without the copyright holder’s consent. Thus, not only is it necessary to pay a private party to learn what the law requires but it’s also legally impermissible to reprint or republish that law without the copyright holder’s consent. The nonprofit organizations which develop these standards claim that the income they receive from the sale of the published standards they’ve developed is essential to their ongoing work to improve those standards.

Recently, an organization known as Public.Resource.Org (“PRO") has been copying and uploading copyrighted standards developed by private nonprofit entities and incorporated by reference into statutes and regulations claiming that any copyright protection for such standards is lost once they become law.

In one case brought in U.S. District Court for the Northern District of California, PRO sought declaratory relief that the Sheet Metal and Air Conditioning Contractors’ National Association, Inc. (“SMACNA") had no copyright infringement claim against it for PRO’s publication of a 1985 manual explicitly adopted as law by federal regulation. PRO claimed that SMACNA lost any copyright protection for its manual when than manual was explicitly incorporated into law by federal regulation. In July 2013 the parties resolved the litigation with SMACNA’s agreement not to assert any copyright interest in documents it produced which were later adopted as law.

In a case filed August 6, 2013 three other nonprofit organizations which developed standards adopted as law brought suit for injunctive and other relief against PRO in U.S. District Court in D.C. claiming copyright and trademark infringement against PRO for its publication of standards incorporated into laws and regulations.

Good discussions of this issue can be found here, here, and here.

Although I don’t claim to know much about copyright law and express no opinion as to the strengths of each side’s legal position in the pending case, it does seem odd that any governmental entity that wants to adopt such standards as law can’t also purchase the right to publish those standards for public consumption. That would solve the nonprofits’ need for income from its work while also making the law generally available to the public which shouldn’t be a controversial result. It’s really almost Kafkaesque that in order to discover what a law requires it’s often necessary to purchase the text of those requirements from a private party.

© 8/26/2013 Lawrence B. Hunt of Hunt & Associates, P.C. All rights reserved.

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