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Tuesday, March 20, 2012

Questions about "For-Pay Laws"

Carl Malamud has an interesting guest post at Boing Boing entitled, "Liberating America's Secret, For-Pay Laws." Here's a sample:

Did you know that vital parts of the US law are secret, and you're only allowed to read them if you pay a standards body thousands of dollars for the right to find out what the law of the land is?

Public.Resource.Org spent $7,414.26 buying privately-produced technical public safety standards that have been incorporated into U.S. federal law. These public safety standards govern and protect a wide range of activity, from how bicycle helmets are constructed to how to test for lead in water to the safety characteristics of hearing aids and protective footwear. We have started copying those 73 standards despite the fact they are festooned with copyright warnings, shrinkwrap agreements, and other dire warnings. 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.

Some questions: Do the organizations that set these technical standards usually know when they create them that they are likely to be incorporated by reference into law?  In cases where they do not, can we really expect them to lose their copyrights simply because the government has incorporated those standards into law?  Perhaps there is a solution that would both ensure that the information is freely available to the public without commandeering a private entity's copyright.

On a different but related issue, I seem to recall that a significant chunk of a Seinfeld script appeared in a court opinion, and  I believe that in many or most U.S. jurisdictions, court opinions are in the public domain.  If so, are courts limited in the amount of copyrighted material they can put in opinions which subsequently become part of the public domain? Are these "fair use" limits? Has anyone had any success suing a judge or a court for publishing an opinion with too much copyrighted material?

Posted by Adam Kolber on March 20, 2012 at 06:20 AM | Permalink

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These organizations typically not only know but intend that their standards will be adopted into law. Indeed, they frequently lobby government to adopt their standard and codes. A cynic would say that this is because the sales of a standard depend heavily on whether its use is required by law. There's a serious issue here -- how to finance and organize the production of these standards -- but in most cases the problem isn't one of unsuspecting organizations waking up to find that their efforts have been seized by government.

Another thing to think about is that the public domain doesn't have to be all-or-nothing. If a court copies a work into its opinion, it may well be fair use to copy the portion of the work in the opinion as part of copying the opinion, but that doesn't necessarily make the work, or even that portion of it excerpted in the opinion, fair game on its own. Arguably, the public domain is the sum total of the various doctrines that permit the public to make use of works without fear of copyright liability, rather than a stamp that attaches once to a work and then permanently alters its status. The best example of incorporation into an opinion I know of is United States v. United Foods, in which Justice Breyer had a two-page brochure of mushroom recipes physically bound into the United States Reports. The privately drafted codes are a harder case, because they're adopted in toto, so to copy "the law" one must copy the whole thing.

There is also some very good scholarship on these questions. A great starting place is L. Ray Patterson and Craig Joyce's article "Monopolizing the Law" from the UCLA Law Review in 1989.

Posted by: James Grimmelmann | Mar 20, 2012 7:42:01 AM

The Administrative Conference of the United States just recently adopted a recommendation addressing these issues: http://www.acus.gov/research/the-conference-current-projects/incorporation-by-reference/. I wrote the research report underlying the recommendation and have recently reworked it into a law review article that will be forthcoming in a TBD journal.

There's an important distinction here between codes and standards. Codes (e.g., fire codes, building codes) are typically authored by private organizations for the express purpose of being adopted as local law. As one court has held, the government's adoption of such codes can prevent the private author from asserting copyright over the code qua law. See Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002).

In contrast, standards are usually created by private standard development organizations to address industry needs, rather than for the purpose of incorporation into law. The National Technology Transfer and Advancement Act of 1995 and OMB Circular A-119 generally require agencies to use certain kinds of standards (specifically, voluntary consensus standards) in lieu of government unique standards. For a variety of reasons, copyright chief among them, incorporation by reference has long been the preferred means of "using" standards in federal regulations.

As suggested in my report, the Conference recommendation offers a collaborative solution to the copyright conundrum. It urges federal agencies to work with standard developers and use available technological tools, such as read-only access, to improve the public availability of standards without destroying the value of the copyright. This is particularly important--and particularly possible--during the rulemaking stage, when interested parties need short-term access to the standard to file informed comments on a proposed incorporating regulation.

This approach may not be the perfect solution in the long-run, but it has significant promise for addressing a very difficult problem that has only recently come to light. Regulatory use of standards saves agencies from spending significant time and resources creating highly technical standards from scratch. It makes enforcement easier and more efficient because (1) regulated parties are often already in compliance with the standards and (2) incorporation prevents inconsistency between private standards and regulatory requirements. Perhaps most important of all, it gives the government (and, by extension, the public) access to the considerable expertise and technical knowledge available in the private sector. A more aggressive approach to the public access issues, such as stripping copyright protection for any materials incorporated by reference, might improve transparency, but it would do so at the considerable cost of upending a very valuable private-public partnership in standards.

Posted by: Emily Bremer | Mar 20, 2012 8:47:55 AM

A couple of points I should have included:

1) Carl Malamud is a member of the Conference and was on the committee that crafted the incorporation by reference recommendation.

2) Professor Peter Strauss of Columbia Law School, who is also a member of the Conference, recently filed a petition for rulemaking with the Federal Register. The petition was signed by a number of professors, practitioners, and experts, and it asks the Federal Register to revise its incorporation by reference regulations (last revised in 1982) to reflect electronic realities and take a harder line on what constitutes "reasonable availability" of incorporated material. The Federal Register put the petition out for comment, and the current deadline for comments is March 28: http://www.acus.gov/incorporation-by-reference-petition-out-for-comment-now/

Posted by: Emily Bremer | Mar 20, 2012 8:57:58 AM

Thanks Emily and James for these extremely informative comments!

Based on current law, it sounds like Malamud's copying project is on shakier legal ground than his blog post seems to suggest.

Posted by: Adam Kolber | Mar 20, 2012 10:43:44 AM

Theoretically, a copyright owner could sue the U.S. government for inclusion of its work in a federal court opinion, if that satisfied all the requirements for infringement (including surmounting the defense of fair use), but it would have to be brought under the Tucker Act, 28 U.S.C. s 1498, which provides that "the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504 (c) of title 17, United States Code."

I say "theoretically" because I am not aware of anyone actually doing this, but it seems to be only recently that judges have been including entire works in their opinions that are not the works in suit, but rather mere illustrations.

Posted by: Bruce Boyden | Mar 20, 2012 11:49:31 AM

Another question: suppose A gets involved in a field of activity regulated by one of these bodies of law, but doesn't buy it, either because s/he doesn't have the money or because the agency just won't sell it for some bizarre reason (perhaps, for example, the agency believes only members of its professional guild should get to buy it -- from ADA litigation long ago, I know this happens with psych tests, it could happen w/ industry codes too). When A is sued or prosecuted for failing to comply with the code, due process defense?

Posted by: Paul Gowder | Mar 20, 2012 12:47:49 PM

Maybe, but it would be unlikely that you would need to get that far. Standards are usually available from the private developer or publisher, rather than from the agency. Under 5 U.S.C. s. 552(a)(1), an agency can enforce a regulation against someone only if: (1) the person has actual notice of the requirement; or (2) it is published in the Federal Register (the CFR is a special edition of the Federal Register that codifies agency pronouncements having legal effect). For purposes of this requirement, material is deemed published in the CFR if it is incorporated by referenced, provided that the material is 'reasonably available to the class of persons affected' and the Director of the Office of the Federal Register (OFR) approves the incorporation. As a practical matter, OFR approves incorporation only if the material is available for sale somewhere. OFR also requires agencies to include in the regulation information that clearly identifies the incorporation and tells the public where the incorporated material can be found. I've never heard of a situation where a standard developer or publisher refused to sell an incorporated material, but sometimes problems arise if the material is older and no longer available from the publisher or a reseller. OFR has threatened to disapprove an incorporation where the material is no longer available, but my understanding is that they haven't yet had to follow through on the threat.

To my knowledge, no modern court has litigated a due process challenge to an incorporating regulation. In fact, there's almost no caselaw involving challenges to the enforcement of incorporating regulations. The only case I'm aware of is Appalachian Power Co. v. Envtl. Prot. Agency, 566 F.2d 451, 455 (4th Cir. 1977), where the court held that a document EPA intended to incorporate by reference into a regulation was “not a validly issued part of the regulations, because it ha[d] not been published in the Federal Register, nor ha[d] the procedural requisites for incorporation by reference been complied with." EPA was accordingly not permitted to enforce the purportedly incorporated requirement.

All that said, the Federal Register was created in response to a serious due process problem--an agency tried to enforce regulations that, as it turned out, didn't exist. See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). In the early days of the administrative state, there was no central publication of executive and administrative materials, and so it was nearly impossible to know what the law required. Even agency officials sometimes didn't know what their own regulations required. See generally Erwin N. Griswold, Government in Ignorance of the Law—A Plea for Better Publication of Executive Legislation, 48 HARV. L. REV. 198 (1934). The solution was the Federal Register and CFR.

Posted by: Emily Bremer | Mar 20, 2012 1:42:40 PM

Ms. Bremer is incorrect in implying that I favored the ACUS recommendation. There was a significant minority that was quite distressed with procedural flaws in the ACUS proceedings and with an end result that ignored both public comment and minority views.

It should be noted that Ms. Bremer is stating her personal views in the above posts and does not reflect an official position of the Administrative Conference of the United States.

Posted by: Carl Malamud | Mar 20, 2012 1:59:07 PM

Carl is absolutely correct on both points, which I should have stated clearly in my earlier post. By identifying Carl as a member of the committee that worked on the recommendation, I intended only to demonstrate that our process included a wide range of views and expertise.

Posted by: Emily Bremer | Mar 20, 2012 2:54:40 PM

I had to file a FOIA here in Texas to get the explanatory listing of CPT codes for Medicare-covered procedures.

Posted by: Jimbino | Mar 20, 2012 10:02:24 PM

I'm going to ask the naive questions here and let all you IP and Admin sophisticates laugh at me, but, at least in situations in which material is drafted for the purpose of or with the knowledge that it will be incorporated into federal law, why do we care about protecting the copyright? It seems to me that when you are effectively delegated the task of drafting federal law you are undertaking a very different kind of activity that bestows some unique privileges and might rightly be seen as also requiring some unique concessions. Moreover, what would be lost if we adopted a rule that all standards incorporated into law ought to be available free to the public? I suppose it would be expensive and would provide a subsidy mostly to entities and individuals who can afford to pay for the law, but wouldn't the expressive value of announcing to the world that you ought not have to pay to find out the governing law outweigh that cost?

Posted by: Andy Siegel | Mar 21, 2012 12:12:49 PM

With all due respect to Ms. Bremer, there's a far more obvious solution that both preserves the value of the public-private partnership and avoid the egregious due process violations that come about by making people pay for access to the law: forbid any non-freely available law from being enforced. The partnership can still happen, but the government will have to pay the costs of its own delegation, rather than forcing others to pay those costs.

Posted by: Andrew MacKie-Mason | Mar 21, 2012 5:00:23 PM

I agree that government buying the standards is an obvious solution, and it was an option discussed during the Conference's process. In my view, the difficulty with the approach is largely practical. If the goal is to provide a full copy of an incorporated standard online for all to see, the agency has to pay more than just the cost of the standard's regulatory use. It has to buy out the whole market for the standard (because it become available to anyone, even if they want it for a non-regulatory purpose). The potential cost is staggering, especially if you consider that there are thousand of standards already incorporated by reference that would have to bought out at once to implement the solution in the short-term. Particularly in the current budget environment, this is just not a workable solution.

Another concern, beyond the potential for excessive entanglement between government and private standard developers, is the incentives the approach might create for agencies considering incorporating a standard. Standards are regularly updated to reflect evolving technical knowledge. Say Agency A incorporates the 2002 version of a standard by reference and pays for it to be freely available online. A new version comes out in 2005, and its more protective, but perhaps only marginally. When Agency B finds that it needs to incorporate the standard by reference, financial considerations might provide an incentive for it to incorporate the less protective 2002 standard. After all, that one's already been bought by another agency, so why spend scarce resources on the slightly newer version?

Posted by: Emily Bremer | Mar 21, 2012 5:20:19 PM

Ms. Bremer, you've hit upon one of the exact reasons (beyond the violation of due process) that this sort of arrangement is bad governance. It hides the cost of regulation. Of course it would be expensive for the government to honestly subcontract out its job, but no more expensive than it currently is. The only difference is that the cost is now spread across the regulated companies rather than being paid for by the government. And so the true costs of regulation are hidden from taxpayers and voters.

And in the hypo you posed (slightly better, significantly expensive new regulations) your method sets up extremely perverse incentives. In a rational systems, agencies would only put enough effort into writing new regulations as would be worth the cost. In your system, agencies don't pay the cost of writing regulations, and so they're willing to impose significant costs on the economy (all the companies have to pay for the expensive new standard) for an extremely minor gain to the public. Under your model, rational cost benefit analysis goes out the window.

Posted by: Andrew MacKie-Mason | Mar 21, 2012 6:29:45 PM

In principle, this issue strikes me as very simple. If a written rule is going to be enforced by the government, it should be published by the government. If it is not published by the government, it should not be enforced by the government. Does anyone disagree with this, at least as an aspirational principle? What are the real-world considerations that make this principle unrealistic?

Posted by: AF | Mar 22, 2012 2:22:42 PM

AF, that seems exactly right. And the counter-argument seems to be "we want to enforce more laws than we can afford to publish."

Posted by: Andrew MacKie-Mason | Mar 22, 2012 6:49:24 PM

You need to reflect on the probabilities here: What is the likelihood that dissatified client experienced two or more of the above seven lapses in service versus the same likelihood for satisfied clients?

Posted by: Satisfaction Questionnaires | Aug 9, 2012 3:35:44 AM

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