ABA Journal


Internet Law

Open-access website faces infringement suit for posting safety and technical standards

Aug 15, 2013, 03:05 pm CDT


Am I to understand that a Standard such as a fire, safety or building code can be written into Law, and under penalty of law, citizens, organizations or businesses can be required to comply with that Standard, but in order to see the Standard, they have to pay a non-governmental organization a fee or royalty because that non-governmental organization is allowed to copyright that Standard?

By Tyrone on 2013 08 15, 6:14 pm CDT

@1 - You'd be surprised, but that is actually the case with many standards, some written into statute, others adopted by rules and regulations. I could never understand that they could be so inaccessible, to be honest. Usually these standards are very technical and do not apply to laypersons (Do you know to what standards a boiler has to be constructed to, or what output lighting systems in large buildings must provide? Have you ever needed to know?) so the public might never know.

By NoleLaw on 2013 08 15, 8:18 pm CDT

I don't think there's any copyright infringement that occurs when you recite the law and/or type out the standard. The infringement comes when you Copy the entire standard and format from the provider instead of from the statute.

The other place copyright comes into effect is when the data is compiled by a 3rd party. The 3rd party (Thomson Reuters, STN, Dialog, etc.) present public information in a new format with additional content. The format, look and feel become protected but not the underlying public content.

The trouble is that some public content costs money to acquire. Court papers that are assembled by PACER cannot be obtained from the court without paying a copy fee.

The moral of the story: you can't just copy what you want, but you can usually have access to public information you just have to know where and how to get it (sometimes for a fee anyway).

By mike on 2013 08 16, 6:47 pm CDT

Didn't we already have this discussion? <i>Veeck v. Souther Building Code Congress Intl, Inc</i>, 293 F.3d 791 (US 5th Cir en banc, 07-Jun-2002)?

By andrews on 2013 08 18, 6:01 pm CDT

From a Fair Use prospective, it will be interesting to see how this turns out.

By BMF on 2013 08 19, 5:17 pm CDT

The thing with standards and codes adopted by reference is that they are not reproduced in the statute or regulation. That's what the "by reference" is all about. Saves government ink, if nothing else. These are large documents typically. Additionally, codes adopted by reference (say the International Building Code - ICBO) themselves have long lists of external codes they adopt by reference. You can't avoid using ASTM in codes of this sort, as their fingerprints are all over, as one would expect.

Normal statutory rules for adoption by reference require the entity doing the adoption to have a couple of copies on hand. That way, you should be able to go into your local building agency and look at the code. Klunky, especially in the age of the internet. However, the status of secondary codes - those included in the primary code - is a bit murkier. Agencies, in my experience, often do not have copies of all of those on hand.

By Walt Fricke on 2013 08 19, 8:11 pm CDT

#4 - thank you for the citation to Veek.

By Walt Fricke on 2013 08 19, 8:30 pm CDT

I chair the ISO and ANSI Space Operations Working Group as an aerospace engineer, not a lawyer. In the US and many other nations, authoritative standards bodies are private, nonprofit entities. Internationally they are recognized as NGO's. They develop Industrial Consensus Standards. Sales of standards are their major revenue source. Without this revenue there might be no standards. The NTTAA of 1996 mandates that Federal agencies adopt consensus industrial standards and not develop their own without cause. Things like safety regulations are in another domain. How a Government can incorporate copyrighted standards into statute or regulation is a dilemma. In principle, NTTAA requires that mandated users purchase the standards. Copies for public scrutiny may also infringe on copyrights.

By Dave Finkleman on 2013 08 28, 9:44 am CDT

Imagine congress setting all the standards. unthinkable. these private standard setting organizations have mostly operated with a high level of integrity, and intensity of focus in their area of concentration. Promulgation of a new standard often follows years of research and hard work. Sale of those standards is their bread and butter. #8 hit it on the head. As much as you may not like the idea of having to pay for copies of standards that are legally enforcible (incorporated by reference), and even though such standard prmulgaiting bodies are also susceptible to being corrupted by special interests, they are likely better than any conceivable alternative. We take our safety for granted, but every day, every one of us is safer iin a hundred ways because of such standards thus developed and promulgated.

By observer on 2013 08 28, 1:47 pm CDT

Love the #1 :)

And how much it would be to see the price list?
(a real life question from my home country's 1990s history)

By Anna Gray on 2013 08 28, 1:48 pm CDT

#8 - copies for public scrutiny don't infringe any more than reading a book in a library does.

But if what you meant was copying, with a copy machine, a work protected by copyright, well that is a much trickier issue.

My local city library has the ICBO Building (and various other) code book. They make you sign just to read it (worried about theft, with good reason). And if you want to, you can take it to the copier and make copies. Because it is a large book, this kind of thing is pretty much self limiting - people copy a chart or table or couple of pages. Happens all the time, and nothing is going to stop it, copyright or no copyright. Homeowners doing work on their homes aren't going to purchase a code book. And nobody is going to go after them for infringement. Things just don't work that way.

Copying some and putting it on your website for all to see (and copy) is where the current question sits, and partly because it is so open and obvious. This really is a conundrum. Law ultimately is a command by the sovereign to the subject, backed by force. But the subject has to be able to know what is required in order to comply. Even dictatorships understand this, to the extent that they aren't just looking for ways to terrorize their people. Which is why our courts have so clearly said that the law is public.

In general, building professionals like architects and engineers and contractors purchase copies of these codes and standards. They need to refer to them frequently, and the expense is not that large in terms of a business spreading the cost. Not quite the same where Joe Homeowner is involved.

I would also take issue with those who think government agencies are incapable of setting reasonable standards. I live in a town which houses one of the laboratories of what used to be the National Bureau of Standards (now NIST). These guys are the ones who came up with the atomic clock, and it seems every few years they make it even more astoundingly accurate. The perception some have about the inability of government employees to get it right stems, I think, from rules that seem nitpicky to most of us. Outhouses for farm workers when the farmers themselves just use what nature provided. But NGO rule setting is not perfect. The maximum allowable space between railing supports has changed at least three times during the 30 some years I have had occasion to look at a building code.

By Walt Fricke on 2013 08 28, 6:22 pm CDT

@8,9 - It strikes me as an odd argument that without revenues from sales to the governed of the governing documents, the documents would not exist. First off, that seems a silly conclusion: even if a whole ton of your operating budget comes from sales of copies, it is nothing but a want of creativity to suggest that it can _only_ come from that source. It could be replaced, and should be. Second off, you have not demonstrated the value to having these things developed by your organization. The only argument I have heard so far is that it is useful to incorporate codes by reference because it saves ink. That is, of course, stupid.

I am not an engineer or a professional builder. I should not have to be in order to legally build. If I am to be governed by a building code, I must be permitted to see it and there should be no cost to me to learn the laws that govern me.

Anyhow, from the story it appears that they are suing the wrong guy. This guy is not copying a code, he is copying a pleading he got out of PACER. Once submitted to a court, the documents were made public. He is simply increasing the distribution. The infringement, if there is one, was by the participants in the underlying lawsuit.

By PenguinAdLitem on 2013 08 28, 7:08 pm CDT

We are getting slightly off track. Perhaps I have led us there. I deal with technical standards for things like building satellites, not building codes. I am a retired Civil Servant (42 years with 26 in the Executive Corps). I know that Government employees are not all dunces. The issue with technical standards is that the Government itself does not build anything itself any more. Those who build rockets know best what is required, not those who buy rockets but have never built or launched such themselves. If would be like the average car buyer setting standards for electronic ignition. NIST is not the US member body for International Standards. The Federal standards organization is generally not the interface with international standards. BTW, the Naval Observatory is the principal user and developer of atomic clocks in the US. Over 300 atomic clocks around the world are used to determine precise and accurate Coordinated Universal Time. All are scrutinized and periodically recertified of comparable capability by the Bureau International des Poids et Measures (BIPM) under the Treaty of the Meter, drafted in Washington, DC, in 1884. Many standards in that one.

By Dave Finkleman on 2013 08 28, 7:31 pm CDT

Much misinformation here. See AND especially for real reasoning on this issue.

By dthompso on 2013 08 29, 7:16 pm CDT

The information #14 points to lays out the case by the standards setting organizations. I'll take them at their word that administrators in that business are not paid fat salaries, of the sort which periodically embarrass charities which rely on donations.

And they point to the standard view of these standards vis a vis copyright and their status as part of the positive law: come in and read, but don't copy.

Not for the first time, changing technology changes expectations. At one point, you could go to the courthouse and read up in its library to see what legislatures had enacted. Or your local law school library to read the CFR. And no one cared if somehow you copied those. Private printers even published laws, and you had to buy their books if you wanted them in your office's library.

Now we have the Internet, and its hugely more effective ways of finding and communicating important (as well as much that is unimportant) information. And the copy machine. And, to add to the issues, the ubiquitous digital camera (those more up to date than me have them in their fancy phones, though my flip one is too clunky for this job) which allows you to capture page after page of information from a book far more easily and reliably than writing it out by hand.

If I go into my local repository of this kind of information, and photograph 50 pages of copy protected material for my own use, am I in violation of the copyrights of the information's owners?

I'll propose cutting the Gordian knot: what if every government and agency which wants to use a referenced standard paid the copyright owner a fee? Those fees ought to support the organizations good works, and shouldn't have to be high, as the needs of those organizations are proclaimed to be modest, though real. Maybe even pay an annual license? Again, not high. But a cost of regulation properly laid at the feet of those who adopted it.

There is precedent in the copyright world. There are several organizations in the music world (ASCAP being one) which pay agents to find violations of the copyrights which the holders of the individual copyrights to those works have in a sense assigned to the organization for licensing. Radio stations, for instance, buy licenses which allow them to play the songs and so on. If an agent finds someone who plays to the public their licensed works, but doesn't have a license, they take enforcement action. I think these agents get paid based on how many licenses they sell, so they are zealous and inventive.

A recreation center which pipes a local radio station into its various rooms has to have a license, as the fancy audio constitutes a rebroadcast. But if each exercise class leader uses a boombox just in a particular room, that's OK. Assertions have been made that letting library patrons play videos on library machines which passers by can observe is a violation, though I think that one didn't get anywhere. Neither did a demand that a city pay a fee for the music buskers were playing on a public mall get any traction. But this system works - revenue comes in to the copyright holders.

The standards industry could develop a similar organization or organizations, which could license their standards for adoption. Then it wouldn't be up to the governed to pay to learn what is in the laws which govern them. I cannot think of anything more antithetical to the rule of law than a requirement that you have to pay to know what the law is. Or, given the efficiencies of technology, to have a copy of it at your fingertips.

But I'm not counting on seeing any government stepping up to the plate. Though decisions like Veek, if the Supremes take up a case and uphold that reasoning, might force some actual thought into the process. Little is harder than to make a legislative or rules making body change something which seems to work well for it just to make things better for someone else. But it can be done, and you see good administrators from time to time trying just that.

By Walt Fricke on 2013 08 29, 8:16 pm CDT

Note that the Veek case only involves and SDO that creates a "model" code that the government entity adopts. This model code was made specifically for code adoption. It does not affect the multitude of voluntary standards created by the private sector SDOs and then adopted later by reference in government code. This distinction does make a difference.

By dthompso on 2013 08 29, 8:28 pm CDT

Well, I'd not be ashamed to make the argument that the model code feature was simply a fact in that case, and the court did not need, and thus did not go, beyond the facts of the case at hand, but was not dispositive on the broader issue. It just did not have to be decided. And that the fundamental issue, not directly raised there, is really not related to the copyright. It is a question of the Constitutionality of laws and regulations written in such a way that the governed have to pay to make copies or obtain the information needed to comply with the law in a reasonable way. Up until the age of the Internet, this wasn't so much of an issue. Anybody who decided to reprint and sell a copy protected work had to have known that was going to get him in trouble. The copyright holders didn't seem to mind "fair use" of parts of their works, as in books telling you how to plumb your house in compliance with the codes.

But that was then.

By Walt Fricke on 2013 08 29, 9:48 pm CDT

As for "Sale of those standards is their bread and butter...." argument, why can't they just sell targeted internet ads--like every other site?

By BMF on 2013 08 29, 11:45 pm CDT

Most SDO's are not-for-profit orgs and must maintain legitimacy to the marketplace, government entities and international SDOs that are, in many cases, United Nations/treaty based. Also many SDO are small niche operations that have been providing specific standards for a specific industry since the early 20th century and they do not have expensive fees for members so as to encourage participation by small entities with material interest. Sales of the standards mostly pays for operational expenses, not filing the linings of its officers. If they lose their $ support model than the US and the world could lose many standards that help run the global machine since they could not afford to stay in business to support the standards (must be reviewed/revised every 5 years usually) and the government would not have them to reference anymore. The cost of the US to recreate and maintain all these standards would be in the billions. Note also that many standards are now being made available on-line for free (as view-only) and if you need the standard, you can also buy it. This trend especially relates to safety-related standards. The whole process can be confusing and seem unfair to some but the US has the best standards system in the world.

By dthompso on 2013 08 30, 1:08 pm CDT

I do not know if any legal publications have adopted the ReadCube model, renting content for limited periods with saving and reproducing privileges according to a graduated payment scale. This would allow access at varying levels at very modest cost. I will suggest this to ISO. There are many standards organizations. They earn credibility through objective and enforced development processes, unchallengeable configuration and content control, and recognized technical expertise. None certify or enforce adherence, since that would be a conflict of interest.

By Dave Finkleman on 2013 08 30, 3:17 pm CDT

I don't dispute the value of good standards. The engineering standards, or standardization standards, are pretty much unquestionable. The governmental standards (building codes), because they involve decisions on safety, are far less scientific. A retroactive elevator code makes thousands of elevators in low rise condo/apartment buildings illegal despite the fact that the required changes are not based on elevator failures - apparently a single issue in a public housing building produced hugely expensive changes. But that's different.

But the legal issue here is not the benefit of good standards, but a requirement that the governed must pay to read them. To the extent that read only versions are available on the Internet, that concern pretty much goes away, and that is a good thing. If all were available in that way, and governments purchased enough of them to stock their libraries and officials offices, that's the best of all situations. After all, the assertion here is that these NGOs are bearing a burden properly that of government.

By Walt Fricke on 2013 08 30, 5:45 pm CDT

"They develop Industrial Consensus Standards. Sales of standards are their major revenue source. Without this revenue there might be no standards. The NTTAA of 1996 mandates that Federal agencies adopt consensus industrial standards and not develop their own without cause." This seems circular to me. The government can't adopt their own (and publicly owned) standards by law so (according to the law) they must seek such standards from private entities, which itself creates the problem that there would none of these legally-required standards if the private entities didn't receive revenue from them.

By SME on 2013 09 03, 2:41 pm CDT

Generally speaking, the argument that sales of copies is the only way for an organization to make money does not wash. Indeed, giving away content can be a more successful money-making strategy. And to the degree these organizations are performing a useful function that they would not otherwise perform, the governments that make use of the standards can pay them for their effort. I go back to my earlier point that this revenue model simply betrays a lack of creativity. If they would not be developed but for financial support, the support is available.

But, again, that is hogwash. At least a few standards are developed by (formal or informal) consortia of interested parties. Those standards would be developed whether or not there is money in it, because the development of the standards and the resulting interoperability permit greater returns to the members of the consortium. The Internet developed this way. Others are developed by convention or as a result of competitive practices. To the degree any of these standards are being packaged up and sold, the organizations responsible are extracting money for nothing.

In any event, copyright should not (and arguably does not) protect codes. What, say, builders are interested in in the building code is not how the organization expressed the idea that hurricane clips must be used to secure joists to beams in areas that are wind-rated above a certain level. Instead, they are interested in that idea itself. That is not protectable. And because the idea is supposed to be recorded in the code in the most direct, clear, and factual presentation, there is no creativity in the expression either. It is like a phone book arranged alphabetically, and should enjoy the same copyright protection - which is to say, none. And as the <i>Veeck</i> case points out, it has long been the law that the law is not subject to copyright.

@3 - the PACER fee is a convenience charge. The papers can be reviewed and copied at the courthouse without paying a fee, and the papers themselves are publicly available outside of PACER. I do not think there is any objection to paying a convenience fee, and the defendant here did so.

By PenguinAdLitem on 2013 09 03, 6:10 pm CDT

You are correct. If standards are that important, why don't normative authorities pay to develop them and make them available to all? To an extent they do by allowing government employees to participate at government expense. It also costs for an entity to administer standards developments, and the ISO member bodies pay ISO central for the "privilege." That money comes from donations and endowments. None of these cover all of the costs. In my opinion, the most important inhibition is the perception of control or even actual influence by virtue of financial dependence. There is a big difference between consensus, industrial voluntry standards and building codes or similar civil requirements. The latter should or even must be available to all. They deal greatly with safety of life and public welfare. Industrial standards apply by definition to expanding markets and technical or engineering progress. There are safety considerations, but mainly to enhance confidence in products. How in this thread can we discriminate "standards" from "STANDARDS?"

By Dave Finkleman on 2013 09 03, 6:46 pm CDT

@14 - I agree that there is much misinformation on those sites. For instance, ANSI says:
3. Intellectual property and commercial value issues.
The information contained in a standard is the intellectual property of the developing organization. When others want to use this property, they are expected to pay a fair value for it. If incorporating the content of a standard is deemed necessary in the development of a product or service, obtaining this intellectual property should be seen as no different from obtaining any other component of the product

This is plainly false. Information is not IP. In the other page to which you linked, ANSI relies on copyright protection as the particular brand of IP that protects its standards. But there are several problems with this. First, copyright cannot protect information, only expressions. Second, as I noted above, there is no creative work to protect. There are others.

The issue is not whether adoption by government vitiates a copyright. That is an interesting question, but not one relevant to this discussion. The questions are whether copyright protects standards at all, and whether the governed should have to pay any amount in order to learn the laws by which they are governed, and the answer to both is, "no."

By PenguinAdLitem on 2013 09 04, 5:12 pm CDT

@24 - I believe I understand the distinction you seek to make. It appears to me to be the distinction between standards that must be complied with and standards that are voluntary. You can produce an optically recorded disc if you like that utilizes a blue/green laser to record and read the information. It need not be a Blueray disc. In order for it to be, you would have to comply with Blueray standards, but those standards are not mandatory except for participation in the consortium. On the other hand, if you use the wrong fasteners when building your house the city may require you to tear it down. You are not permitted to use the wrong fasteners.

The difference, as I understand it, is that one is made mandatory by incorporation into law. On my view, that changes little - the Blueray standard is also not protected by copyright. Certainly copyright does not protect the consortium from the use of the standard by someone who has come to know it lawfully, nor can it protect against someone acquiring the knowledge. At most it protects against reproduction of the standard, creation of derivative works from it, and distribution of it. And because there is absolutely no way to express the standard except by using the language of the standard (because the language itself is part of the standard,) there is no creativity in the expression - it mergers with the idea being expressed, and there is no copyright.

But I'll propose a novel solution that at least makes the question less likely to come up, and honors the distinction you point out. If the Constitution makes it permissible for a private individual to keep some language from being distributed (whether or not SDOs actually choose to exercise that power, it is within the power granted by the Copyright Act,) doesn't the Constitution thereby prohibit the government from adopting that language into law? The simple solution, then, is this: states and the federal government are Constitutionally prohibited from adopting privately-developed standards or model codes, regardless of how they are licensed. That raises the cost of rule-making, but should satisfy the SDOs.

By PenguinAdLitem on 2013 09 04, 5:29 pm CDT

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