Building a Slippery Slope to Code

by Jay Marshall Wolman

I’ve been following the efforts of Carl Malamud and Public.Resource.Org to free the law.  In short, and inadequately summarized, sometimes lawmakers incorporate by reference or otherwise make part of the law works that are subject to copyright.  Thus, for example, a state may require electricians to comply with the NFPA National Electrical Code.  And, for the low low price of $98, the NFPA will sell it to you.

“But, wait!” you may say, “why should I have to pay for a copy of the code when the code is the law?”  And that’s the kind of thing Public.Resource.Org has been questioning.  It originally bought copies of these codes and published them.  And, earlier this year, they lost a law suit brought by the publishers of these codes, and they have been enjoined from publishing them.  They also suffered a second defeat, in another case, last month, involving the State of George’s official, but privately published, annotated code (the code is in the public domain, but the annotations are not, despite legal reliance on the annotations).

From a due process standpoint, it is unreasonable to be held accountable for a violation of a law or code, locked up behind a copyright, especially where there is no defense for ignorance.  On the flip side, the fact that code authors should have to give their works away for free just because (even though at their encouragement) some government entity adopts it as law, gives me pause.

Codes sound very law-ish by their nature that it’s easy to mentally treat them as something that shouldn’t even be copyrightable, like a phone book.  But, since there is some creativity involved, with choices made as to what is safe and what is not, it probably is copyrightable.  Thus, there’s no legal reason why one class of copyrightable works should be treated differently than any other.  And republication would, generally speaking, be infringement.

Let’s use a different type of copyrightable work to illustrate.  Assume the State of New Columbia requires all teenagers to graduate from high school.  And let’s say the curriculum, as implemented by the schools and teachers, required every student to read and do a book report.  One teacher chooses “Twilight” for some horrible reason, presumably related to the sorry state of our educational system.  Thus, essentially by law, every student in that teacher’s class must obtain a full copy of Stoker’s ugly stepchild.  Should I, then, be allowed to post a PDF of that book for any of the students to download for free, without permission of the author?  Of course not.  Even if she lobbied the schools.  So long as the schools fairly make the book available to borrow, so students can actually do their assignment, due process should be satisfied.  So, too, with the codes.  So long as an electrician can fairly access and learn what he/she needs to do, that should be sufficient.

The Google Books saga is informative, and there was a fascinating article in The Atlantic yesterday that got me thinking about this again.  About two and a half years ago, Google prevailed in an appeal before the Second Circuit in its case against the Author’s Guild.  Google had embarked on an ambitious project to scan millions of books in order to make snippets of text available in search results.  The Second Circuit found that Google’s reproduction of the works, but limited to the snippets, was fair use.  This is where Google’s outcome differs from the losses of Public.Resource.Org.  The latter published and made available the full texts of the codes online, unlike Google, which restricted the amount of the works displayed.  This was a key distinction made by the courts.

Of course, sometimes you can republish a work wholesale for comment as fair use.  And Public.Resource.Org could well prevail in these arguments on appeal.  It will be interesting to watch, both for freeing the law and, if successful, for whatever else might be freed just because the government made it required reading.

One Response to Building a Slippery Slope to Code

  1. andrews says:

    Ignoring the potentially different result in Veeck v. Southern Building Code Con gress Int’l, 293 F.3d 791 (US 5th Cir. 2002).

    There appears to be an unlawful delegation problem with decisions such as you discuss, but it is not in the decision. The problem arose earlier.

    The state, county, or city government which said that construction must comply with these codes did not debate the elements of the code, and decide on them, making them part of the statute or code of ordinances. Had they done so, the result would have clearly been public domain.

    Instead, the political entity has delegated to, e.g. NFPA, its power to decide what is legal. How the NFPA does it, we cannot say. But surely the process does not involve, either directly or indirectly, elections to choose the people who in effect make the law.

    It is not just that my views on aluminum wire may not be followed. Rather, it is that there is no way in the process for my views on aluminum wire to be considered: the NFPA makes its decision in some distant state, and as it changes that automatically becomes the law in my city or county.

    Normally we should deem this an unauthorized delegation of the legislative power.

    If the NFPA wants us to adopt its code, it ought to furnish a copy to each of our governments at the time the ordinance is being considered. Such a thing would effectively place it in the public record, so that people could make so many copies (at their own expense) as they may need to assist them in knowing and complying with the law. The government entity ought to be required to adopt that copy furnished by the NFPA – and entered into the public record at the NFPA’s instance – rather than just make reference to a distant private code.

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