Sheet Metal And Air Conditioning Contractors Use Bogus Copyright Takedown To Block Publication Of Federally Mandated Standards

from the shameful dept

Tue, Feb 26th 2013 11:19am — Mike Masnick

We've long been big fans of the work that Carl Malamud has done, helping to make public information actually available. Among his many, many, projects is one important one in which he buys up (often expensive) publications of standards that are built into federal requirements, and makes them public. If you're wondering why he should have to buy publications to access standards that are federal requirements, you've quickly understood the big problem. About a year ago, On The Media actually did a fantastic segment about this particular project of Malamud's.

Of course, sooner or later, you knew someone was going to flip out, and apparently it's the Sheet Metal and Air Conditioning Contractors of the world. Malamud's organization purchased the federally-mandated 1985 standard on air-duct leakage and posted it online as a part of this project. But the Sheet Metal and Air Conditioning Contractors National Association (SMACNA) claimed that the document violated its copyright and demanded it be taken offline, both by an initial DMCA notice (via Attributor) and then via threat of a lawsuit directly from a lawyer representing SMACNA. Malamud's Public.Resource.Org, with help from the EFF, have filed for declaratory judgment that posting such information does not infringe on SMACNA's copyright.

In the filing, the case is made that since these standards are incorporated into federal regulations, they have the force of law, and thus cannot and must not be held in secret.

Technical manuals like the 1985 manual at issue in this case, explicitly adopted by federal regulation, have the force of law and impose affirmative obligations on citizens. As much as landmark health care acts or Supreme Court civil rights decisions, these technical requirements—for building, electrical, plumbing, transportation—touch the lives of Americans every day. Business owners, workers, and consumers need to know these directives in order to operate their businesses lawfully, to avoid penalties, and to determine whether neighbors, contractors, or competitors are in compliance.

The crux of the argument is that as the standard is incorporated into law, it is no longer infringing to make that work available, as one cannot comply with the law without having that information. No matter what happens in the end, this should make for an interesting case to follow.

Publicresourcecomplaint 0 (PDF)Publicresourcecomplaint 0 (Text)

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Filed Under: carl malamud, contractors, copyright, federal standards, sheet metal and air conditioning condtractors
Companies: public resource, smacna

93 Comments

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Ninja (profile), 26 Feb 2013 @ 11:09am

I foresee a lot of SMACNA puns..

If you're wondering why he should have to buy (often expensive) publications to access standards that are federal requirements, you've quickly understood the big problem.

It's so glaringly obvious that it's an insanity that it takes an out_of_the_bob to argue this is right. Or at least one of his maximalist personalities. Freud would be delighted ;)
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Anonymous Coward, 26 Feb 2013 @ 11:27am

If this were to stick, the publishers should totally get into the protection racket. Got a code violation? DMCA the complaint away!
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Anonymous Coward, 26 Feb 2013 @ 11:36am

Tired of being hassled by DMCA notices, Mike Masnick's bosses at Google have directed him to immediately shift his propaganda campaign towards complaining about bad copyright enforcement outliers.

Good luck Google and Mike!
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Anonymous Coward, 26 Feb 2013 @ 11:41am

FROM SMACNA
If anybody can read the standards then members of our organisation lose money because people do have to employ them to stay within the law.
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That One Guy (profile), 26 Feb 2013 @ 11:44am

Looks like someone forgot to consult with their PR department first
It may just be me, but if I heard that a business or group of businesses was trying to lock up or block the publication of federally mandated rules or standards related to their business, the absolute first thing I would think of is that they were failing to meet those standards, knew it, and were trying to hide that fact.

Not exactly something to inspire confidence in their ability to do their jobs, to put it lightly.
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That One Guy (profile), 26 Feb 2013 @ 11:47am

Re:
Sorry, but 'get into'? That's like saying that someone who's an olympic swimmer is planning on 'getting into' professional swimming at some point.
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Anonymous Coward, 26 Feb 2013 @ 11:48am

How can you have a law based on secret standards...oh I forgot his is America
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Anonymous Coward, 26 Feb 2013 @ 11:56am

The crux of the argument is that as the standard is incorporated into law, it is no longer infringing to make that work available, as one cannot comply with the law without having that information. No matter what happens in the end, this should make for an interesting case to follow.

Interesting argument. Is there any authority to support it? Seems to me that FOIA would permit someone to get the information from the government. I don't see how it erases someone's copyright rights, though.
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out_of_the_blue, 26 Feb 2013 @ 11:56am

The interesting thing here is: No position from Mike!
Whew. Is there anything so irrelevant, so trivial, that Mike will actually state his position on it? He ends up here in his characteristic lame manner: "should make for an interesting case to follow."

Gripping stuff. Hard-hitting, take-no-prisoners opinion. -- Is this an opinion blog or just overly cautious weenie "journalism"?

Then there's a "Ninja" up there showing his stupidity by mis-claiming what Mike's opponents will think of this, and that's his characteristic.

Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where the fanboys troll the site with vulgar ad hom, and call anyone disagreeing "trolls"!
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Kevin H (profile), 26 Feb 2013 @ 11:59am

Re:
On a side note I just stapled my ball-sack to my inner thigh.
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NA Protector, 26 Feb 2013 @ 12:00pm

Insanity
That is pure insanity. It is hard to imagine how knowledge that would help people know if there house is built to code or violates the law is not permitted to be known.
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Anonymous Coward, 26 Feb 2013 @ 12:02pm

At this rate, I guess the real question is how long it will be before the US government starts selling the rights of laws to private parties for regulation/enforcement?

Idiocracy here we come!
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Anonymous Coward, 26 Feb 2013 @ 12:05pm

Re: FROM SMACNA
Actually, the argument is: If anyone can *publish* the law, then the people drafting them will have no incentive to write them. (Despite the fact that they're lawyers billing by the hour for writing them.)

I wish I wasn't being serious:
http://yro.slashdot.org/story/01/05/13/1921223/is-law-copyrighted
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Anonymous Coward, 26 Feb 2013 @ 12:08pm

Re: The interesting thing here is: No position from Mike!
Whew. Is there anything so irrelevant, so trivial, that Mike will actually state his position on it?

You're telling me that after reading that article you can't tell what the author thinks of the DMCA notice on federal regulations. I know you've had your moments of stupidity, but sheesh....

As far as this being an opinion blog. Sure, I'd agree to a degree on that. It's more of a tech news blog, but I'll accept opinion as well. But what it isn't is a brainwashing scheme by Mike (et al) to go around telling everyone what exactly is wrong and exactly how it is supposed to work even though that seems to be what you want.
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cpt kangarooski, 26 Feb 2013 @ 12:11pm

Re:
It's a due process argument, basically. I vaguely recall that there have been some successes with it in the past 10 years or so, but I don't recall the details.
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Anonymous Coward, 26 Feb 2013 @ 12:15pm

Re:
I would have thought that in order for a government or agency to enforce a law it has to be available to the person in question of committing the infraction. Otherwise, how would that person have known what they did was illegal?
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Anonymous Coward, 26 Feb 2013 @ 12:16pm

Re:
It's hard to call it secret standard when it's available at your local library.
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Anonymous Coward, 26 Feb 2013 @ 12:18pm

Re: Re:
Plus if you can get some copyrighted information from a FOIA, then what's the difference in just giving it to them? Paperwork? To the best of my understanding there is no NDA involved with FOIA. FOIA is just making information public knowledge right?

In other words if it's copyrighted, a FOIA shouldn't work at all...right?
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Anonymous Coward, 26 Feb 2013 @ 12:18pm

Re: Re: The interesting thing here is: No position from Mike!
AC #14, he's telling you he couldn't be bothered with reading the article. That takes up too much time when your being paid by the hour by the copywrong gang.
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Chris-Mouse (profile), 26 Feb 2013 @ 12:20pm

I can see this case having one of two results. One possibility is that the court decides that anything incorporated into a law must be freely available. This results in publishers suing governments for damages whenever a new law effectively revokes the copyright on their property.
The second possibility is that the government outsources law writing, and turns it into a profit center by charging a fortune for access to the law.

oh wait, they already do outsource the law writing to lobbyists.
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Anonymous Coward, 26 Feb 2013 @ 12:24pm

Re: Re:
I'm not sure I understand the FOIA angle, but I think it makes sense more as just a copyright case with a due process angle as you note (although I think the due process argument cuts the other way). Certainly, any statute or court opinion is public domain. But what if, as here, an administrative agency adopts a copyrighted standards manual by reference in a section of administrative law? Is it fair to then say the work has fallen into the public domain? Wouldn't it violate the due process rights of the copyright holder to take their property interest without just compensation?
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Anonymous Coward, 26 Feb 2013 @ 12:26pm

Re: Insanity
The problem is that the codes are very expensive to create and maintain. Right now, the funding model is selling the text of the codes. If that goes away, then a new model is required, probably a new tax.

I really don't want my taxes going up so that the standards for building nuclear reactors, elevators, and amusement park rides are available for free. I don't mind that the development and maintenance of the standard are paid for by the people who use them.

I think some things like building codes and electrical codes that are useful to lots of people should be free. But most of the codes that Malamud has republished aren't useful to anybody but the businesses that use them.
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Anonymous Coward, 26 Feb 2013 @ 12:27pm

Re: Re:
Actually, it was only in 1988 that professionals were allowed in all sports, so historically, yes, you could talk about an olympic swimmer deciding to take up professional swimming.
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Anonymous Coward, 26 Feb 2013 @ 12:29pm

Re: Re:
I would have thought that in order for a government or agency to enforce a law it has to be available to the person in question of committing the infraction. Otherwise, how would that person have known what they did was illegal?

I get that, and I think that's a good point. My point is that this isn't statutory law, which is surely public domain. This is an administrative agency incorporating by reference someone's copyrighted work in an administrative regulation. It's not clear to me that agencies can erase copyright rights by simply referencing a copyrighted work in this way. If such reference does take away copyright rights, then it seems to me that the due process rights of the copyright owner have been violated if there's no just compensation.
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Anonymous Coward, 26 Feb 2013 @ 12:29pm

Re:
speedtrap cameras say hullo, heres a fine
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Anonymous Coward, 26 Feb 2013 @ 12:29pm

Re: Re:
Well, for some things it's a bit indirect. For many of the things that the code books cover, the law says you have to have insurance. The insurance company requires inspections and the inspectors pass/fail against the code book. So, what you would be fined with is running an unlicensed elevator (for example).
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Anonymous Coward, 26 Feb 2013 @ 12:33pm

Re: Re: Re:
the due process argument is that you cannot be held to a law that is secret. Therefore, if a standards manual has the force of law, then YES, any copyright is necessarily extinguished. The information is necessary to allow compliance with the law!
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Anonymous Coward, 26 Feb 2013 @ 12:34pm

Re: Re:
Here's a bit of case law:
The First Circuit, therefore, has never definitively decided whether privately-developed works, once adopted by government bodies in public enactments, enter the public domain and lose their status as copyrightable works. Three other circuits have, however, and they have all held that such an adoption does not extinguish the copyright interest in the adopted work. Veeck, 241 F.3d at 403-07 (holding that a privately-developed model building code did not enter the public domain by virtue of being adopted by municipal governments); *22 Practice Mgmt., 121 F.3d at 518-20 (holding that an American Medical Association catalogue of medical procedures did not lose its copyright when it was incorporated into federal regulations governing Medicare and Medicaid reimbursement); CCC Info. Servs., 44 F.3d at 73-74 (holding that a privately-developed guide to used car valuation did not enter the public domain after it was incorporated into several states' insurance statutes and regulations). These three circuits have reached a contrary and, in the Court's view, more sensible conclusion than the one reached tentatively by the First Circuit in Building Officials.
John G. Danielson, Inc. v. Winchester-Conant Properties, Inc., 186 F. Supp. 2d 1, 21-22 (D. Mass. 2002) aff'd on other grounds, 322 F.3d 26 (1st Cir. 2003).
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John Fenderson (profile), 26 Feb 2013 @ 12:35pm

Re: Re:
It's hard not to call it a secret standard if you aren't allowed to tell anybody what it is.
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Anonymous Coward, 26 Feb 2013 @ 12:36pm

Re: Re: Re: Re:
I don't think it's that simple: https://www.techdirt.com/articles/20130223/02505322081/sheet-metal-air-conditioning-contractors-use- bogus-copyright-takedown-to-block-publication-federally-mandated-standards.shtml#c360
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Todd Andersen, 26 Feb 2013 @ 12:40pm

I find myself of two minds on this topic. Paying to learn what is the law is not right; failing to pay will mean the NGOs won't be able to function.

In the US most standards used in the construction industry are drafted by non governmental organizations using unpaid volunteer committees. Under an agreement with the US DOJ from the 1980s the primary code groups have agreed to use consensus and be sanctioned by ANSI as complying with certain minimum requirements concerning openness and balance among stakeholders. An organization (usually another NGO or sometimes a governmental agency) takes the role of secretariat and holds the copyright.

While the original post speaks about federal laws, the same situation applies at state and local governmental levels as well. I am a member of the ANSI A117 Committee that drafts the technical standards referenced by the International Building Code and others to make the built environment usable by persons with disabilities. The Secretariat for our committee provides and pays for teleconferencing, reproduction, sign language interpreters, and a host of other costs for our public hearings with a typical code change cycle consisting of a half dozen week long meetings. While I generally support the tone and views of this site, I have to say that not every copyright holder is a bad guy.
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John Fenderson (profile), 26 Feb 2013 @ 12:41pm

Re: Re: Insanity
The problem is that the codes are very expensive to create and maintain.

Then the solution is to make the code process cheaper and easier to maintain. It's not to keep it all locked up. If it has the force of law, it is unethical and bad for society to keep it in private ownership.

If the law is too expensive to create and maintain, then that problem needs to be fixed, not just papered over through the creation of "funding models".
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Kevin H (profile), 26 Feb 2013 @ 12:44pm

Re: Re: Re:
Its hard not to call it a secret standard wen how it is interested is kept a state secret.
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Anonymous Coward, 26 Feb 2013 @ 12:47pm

Re: Re: Re: Insanity
In another comment, Todd Andersen does a pretty good job of explaining the process.

It's expensive to create the regulations for the construction and operation of a nuclear reactor (for example) because the expertise required is significant. There's really no way to do all the testing and engineering and modeling in a bargain basement kind of way.
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Anonymous Coward, 26 Feb 2013 @ 12:49pm

Re: Re:
They have to employ someone who has access to the regulations, and possibly training in their use. Like in the UK, only licensed gas fitters and electricians can certify that work complies with the regulations.
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Anonymous Coward, 26 Feb 2013 @ 12:52pm

Yes and what about ASME and IEEE standards?
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John Fenderson (profile), 26 Feb 2013 @ 12:59pm

Re: Re: Re: Re: Insanity
Right. Then either the parties involved pony up (taxpayers or the industry) or the construction isn't allowed. If the industry ponies up, then the results of their effort are public domain. The industry recoups this expense through their regular business activities, not by creating an undeserved profit center.

Pretty simple, really.
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Anonymous Coward, 26 Feb 2013 @ 1:05pm

i hope that he not only wins the case but then goes on to sue (and win) a case of his own against SMACNA. not only would that, hopefully, make them think twice before doing something like this in the future but it may also give Carl Malamud enough funds to buy up some more 'publications of standards that are built into federal requirements' and then release those as well
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zem, 26 Feb 2013 @ 1:07pm

Re: Re: Insanity
You have a point. However what we have seen over the past few years is that the sale of standards and similar legislative publications have been moved from the model of sale price to cover costs to the distribution rights being moved into independant companies or on sold. Now we see the publications sold for a profit. That is a problem.
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Anonymous Coward, 26 Feb 2013 @ 1:10pm

Union Copy Write Maximalists
More Union copy write extortionists. Why is it that the Union enforced professions emerge as the copy write maximalists?

Hollywood Unions - self explanatory

Publisher Unions (Associations)
Textbook Publisher Pearson Takes Down 1.5 Million Teacher And Student Blogs With A Single DMCA Notice

Entertainment Unions
Jealous Of Copyright Trolls, Entertainment Industry Looks To Move Three Strikes From 'Disconnect' To 'Fines'

Contractor Unions (See SMACNA above)

Govt Unions
��why he should have to buy (often expensive) publications to access standards that are federal requirements,�?�
How Out Of Touch Is The Copyright Office? It Thinks The Authors Guild Is The 'Leading' Advocate For Writers' Interests

Teacher Unions
Copyright Insanity: School Policy Requires Students Hand Over Copyright On All Work
�School Wants To Claim Copyright Over Any Lesson Plans Created By Teachers�
Professors Claiming Copyright Over Their Lectures

There are many more Union lead copy write maximalist examples listed on TechDirt for your reading pleasure.
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Anonymous Coward, 26 Feb 2013 @ 1:13pm

Re: Re: Re: The interesting thing here is: No position from Mike!
or the title?

"Sheet Metal And Air Conditioning Contractors Use Bogus Copyright Takedown To Block Publication Of Federally Mandated Standards"

That's completely neutral right?
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Anonymous Coward, 26 Feb 2013 @ 1:14pm

Im sorry, but on this case, i have to agree that the copyright is valid. First, the organizations establishing the standards (who are independent of the American Government) review them over time. If those had actual "status" of law, so what would happen when they are revised by their emissors?

In the end, it looks like what the intentions of those laws was something along the lines of: "Yeah, you have to contract a professional/specialist". Something that is clearly stated in the law of many countries around the world, without problem.
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Chronno S. Trigger (profile), 26 Feb 2013 @ 1:25pm

Re: Re: Re: Re: Insanity
OK, I don't know much about the nuclear reactor regulations, but I do know that the meat manufacturers have to pay the FDA to come in and rate them. So logically, wouldn't the people who run the reactors have to pay to get the government to come in and inspect them? Wouldn't the fees required to get approval to run a nuclear reactor pay for the creation and updating (how does one maintain code?) of the regulations and codes?

Plus, since they are government mandated codes, how can they be copyrighted?
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ChrisB (profile), 26 Feb 2013 @ 1:29pm

Re: Re: Re: Re: Re: Insanity
You don't understand. I have written industry code. There are many companies who develop standards and codes.

Say I write a code on the proper design of reciprocating compressors. Then some government organization says, "Hey, we're too lazy to develop our own standard, just follow that guys standard." Now I lose my copyright? How does that make sense? Sure, if the government body wants to contribute something to the standard and its development, sure, it can go into public domain. But just because some bureaucrat decrees something, bam, public domain? That makes no sense.
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Chronno S. Trigger (profile), 26 Feb 2013 @ 1:30pm

Re:
Aren't those standards controlled by private organisations, not the government? Plus, aren't those standards freely available to anyone who wants to see them?
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Anonymous Coward, 26 Feb 2013 @ 1:30pm

Re: Re: Re:
Yes, but at least in the states the codes are public so that you can verify while the work is being done that it's proper (if you want to). Additionally, you're able to do the work yourself as long as that licensed person certifies it. The license/certification (again this is for the US) just says that that person is qualified to say that all the regulations have been met.

Though while the codes are public, it's not typical that an average person knows all the codes.
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Anonymous Coward, 26 Feb 2013 @ 1:32pm

Re:
I'm curious about 'the standards of openness and balance among stakeholders'.

For one, I'm assuming that the general public is a stakeholder, correct?

Have these standards for openness been codified and are they available to the general public?

Do they audit openness compliance among members, and are auditing guidelines available to the general public?

I would say, (and good or bad just doesn't matter, in the end we all think we're doing the best we can), its a tight rope to walk when we effectively lock away parts of our law, no matter "who paid for it".
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Anonymous Coward, 26 Feb 2013 @ 1:33pm

Re:
The phrase "...publications of standards that are built into federal requirements..." is the key to voiding your argument.

Thankfully, the US is based on individuals who are willing to work for themselves and not rely on overpaid "professionals".
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jackn, 26 Feb 2013 @ 1:33pm

Re: Re: Re: Re: Re:
I think it is that simple.
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Anonymous Coward, 26 Feb 2013 @ 1:38pm

Re: Re: Re: Re: Re: Re:
If you read the cases mentioned in those appellate level cases I cited, you'll see that the courts rejected that due process argument since the standards were readily available--even if for a price.
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Chronno S. Trigger (profile), 26 Feb 2013 @ 1:42pm

Re: Re: Re: Re: Re: Re: Insanity
"There are many companies who develop standards and codes."

And the vast majority of them aren't required by law. I could build and sell speakers without complying with THX or Dolby. I could make a custom interface for a computer without ever talking to IEEE.

Once that standard becomes law, it gets written down in said law. Someone in the government wrote that down and that is not able to be covered by copyright. If you have a problem with them copying your words, then you should sue them for payment.

I would also point out that if the phrase "Ignorance of the law is no excuse" is to be valid then that law needs to be freely available to anyone who may be subject to said law.
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Anonymous Coward, 26 Feb 2013 @ 1:45pm

Mike--

I'm curious. Since I know how important facts are to you, and I know how much you like to have all the information before you make any sort of claim, how is that you determined that this takedown notice was "bogus"? In fifteen minutes of research, I've found four appellate courts that suggest works so referenced in administrative law DO NOT lose their copyrights. Please explain how you reached a different determination. Or are you just jumping to conclusions again, as per usual?

You see how stuff like this makes it impossible to take you seriously, right? You claim to not be able to have opinions about several fundamental issues of copyright law because you don't have enough information. But then with something like this, you have no trouble forming an opinion based on, apparently, a complaint filed by the EFF (an extremely biased and unreliable source). It's ridiculous to pretend like you're opinions are fact-based when they so clearly are quite often not so.

Care to comment? I won't hold my breath.
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Anonymous Coward, 26 Feb 2013 @ 1:52pm

Seriously...
"I've found four appellate courts that suggest works so referenced in administrative law DO NOT lose their copyrights."

Your claim is based on 4 courts "suggestion", not ruling, right?
"...stuff like this makes it impossible to take you seriously...
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Anonymous Coward, 26 Feb 2013 @ 1:55pm

Re: Seriously...
No, it was holding.
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Todd Andersen, 26 Feb 2013 @ 2:01pm

Re: Re:
This is to respond to questions of openness in the consensus code drafting process. Yes, the standards for openness are available at http://www.ansi.org/about_ansi/accredited_programs/overview.aspx?menuid=1#.US0rd-jx8dU

Under ANSI rules a committee must maintain a balance among stakeholders such that no group can represent more than a third of the membership. My committee is composed of the following stakeholder groups: bldg owners or builders (eg Natl Assoc of Home builders), regulators (think building code officials), advocated for persons with disabilities (eg Natl Assoc of the Deaf), industry (eg Natl Elevator Industry), and professional experts (eg American Inst of Architects).

Yes, my committee must submit to ANSI a complete record of every vote with particular attention to the resolution of opinions by dissenters at the end of our code change cycle for ANSI's audit of the process (ANSI does not review the substance of the standard). No committee is allowed to go to press until ANSI signs off on the audit.
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Todd Andersen, 26 Feb 2013 @ 2:01pm

Re: Re:
This is to respond to questions of openness in the consensus code drafting process. Yes, the standards for openness are available at http://www.ansi.org/about_ansi/accredited_programs/overview.aspx?menuid=1#.US0rd-jx8dU

Under ANSI rules a committee must maintain a balance among stakeholders such that no group can represent more than a third of the membership. My committee is composed of the following stakeholder groups: bldg owners or builders (eg Natl Assoc of Home builders), regulators (think building code officials), advocated for persons with disabilities (eg Natl Assoc of the Deaf), industry (eg Natl Elevator Industry), and professional experts (eg American Inst of Architects).

Yes, my committee must submit to ANSI a complete record of every vote with particular attention to the resolution of opinions by dissenters at the end of our code change cycle for ANSI's audit of the process (ANSI does not review the substance of the standard). No committee is allowed to go to press until ANSI signs off on the audit.
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Anonymous Coward, 26 Feb 2013 @ 2:12pm

Re: Re: Re: Re: Re: Re: Re:
Depends on the price then.
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Anonymous Coward, 26 Feb 2013 @ 2:13pm

Re: Re: Re:
Justice has speciated from the rest of humanity.
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Anonymous Coward, 26 Feb 2013 @ 2:18pm

Re: Re: Re: Re: Re: Re: Insanity
"Then some government organization says, "Hey, we're too lazy to develop our own standard, just follow that guys standard"

IMO, if I had a company that the govt. declared the standard in the industry I feel that I would be able to make a lot more money than was spent on developing that particular standard.

We're XYZ Company and we write standards and codes that become government standards. Pretty good PR if you ask me, but I guess it seems easier to not do anything new and claim copyright.
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Anonymous Coward, 26 Feb 2013 @ 2:18pm

Re: Re: Re:
This is exactly why copyright should just die.

There are very few reasons to grant a monopoly to anyone, it should be a last resort, because of all the pains and troubles it causes.

In this cases I am yet to found "public good" mentioned or "in the public interest" or anything like that, I do know that those too can be abused on the other direction but still, if you are creating standards shouldn't those be automatically free and accessible to everyone in the field, what is the purpose of having a standard that only the people above a certain financial threshold can have knowledge of it?
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cpt kangarooski, 26 Feb 2013 @ 2:19pm

Re: Re: Re:
Who said it wasn't a taking? If the court decides that making a privately written document a law causes it to effectively be in the public domain, it is then up to the former rights holder to sue the government for the damage they caused him by adopting the code. So long as there is not a statute of limitations issue, the rights holder has a decent argument for getting justly compensated.

That the government may be on the hook for their actions doesn't invalidate the copyright argument being made here.
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Anonymous Coward, 26 Feb 2013 @ 2:22pm

Re: Re: Re: Re: Re: Re: Re: Insanity
The government doesn't write them down. When you buy the elevator code book, you aren't buying it from the government and the government doesn't hold the copyright.
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Anonymous Coward, 26 Feb 2013 @ 2:25pm

Re: Re: Re: Re: Re: Insanity
I mentioned this elsewhere, but I think it applies to your comment too. Sometimes the regulations will indirectly require the use of a particular code. For example, there may be a law that in order to operate a reactor, you are required to have insurance and it's the insurers who are going to hire inspectors and inspectors are going to base their inspection on a particular version of the code (usually the year in which construction began).
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Anonymous Coward, 26 Feb 2013 @ 2:27pm

Re: Re:
All of the standards being talked about are freely available to anyone who wants to see them. It's the republishing that's at issue here.
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Anonymous Coward, 26 Feb 2013 @ 2:37pm

Re:
"...complaining about bad copyright enforcement outliers"

Are there any other kind?
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Anonymous Coward, 26 Feb 2013 @ 2:39pm

Re:
" I don't see how it erases someone's copyright rights, though."

You can't copyright the law (or governmental regulations).
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Anonymous Coward, 26 Feb 2013 @ 2:42pm

Re: The interesting thing here is: No position from Mike!
Whew. Is there anything so irrelevant, so trivial, that out_of_the_blue will actually state his position on it?

He's really reaching to get his quota for payment by his corporate masters, isn't he?
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Anonymous Coward, 26 Feb 2013 @ 2:43pm

Re: Re: Re: Re: Re: Re: Re: Insanity
IMO, if I had a company that the govt. declared the standard in the industry I feel that I would be able to make a lot more money than was spent on developing that particular standard.

Not usually. Most of the changes and developments are very incremental. If you came up with something genuinely game changing, then maybe. When you are improving the safety of something or reducing costs 11.5%, there isn't a whole lot of glory.
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GeneralEmergency (profile), 26 Feb 2013 @ 3:03pm

Re: Or better yet, THE NAMING RIGHTS TO LAWS.
.

And in a somber, yet forceful voice the Judge said,

"Mr. John Doe, please rise.

You are hereby charged with 4 counts of the RALSTON PURINA Animal Neglect Act. How do you plead?"

.
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Anonymous Coward, 26 Feb 2013 @ 3:05pm

Re: Re:
You can't copyright the law (or governmental regulations).

But this isn't the work product of the government. It's an administrative agency pointing to a privately-created, copyrighted work and saying, "we like that, so we're adopting it by reference."

Here's the Second Circuit rejecting the argument that referencing a copyrighted work in a regulation thrusts it into the public domain. Note too how they acknowledge the Takings Clause issue of taking the copyright from the owner without just compensation in violation of due process. (Why? Because copyright is "property" as that word is used in the Fifth Amendment.):
3. Public domain.

We disagree also with the district court's ruling sustaining CCC's affirmative defense that the Red Book has fallen into the public domain. The district court reasoned that, because the insurance statutes or regulations of several states establish Red Book values as an alternative standard, i.e., by requiring that insurance payments for total losses be at least equal either to Red Book value or to an average of Red Book and Bluebook values (unless another approved valuation method is employed),29 the Red Book has passed into the public domain. The argument is that the public must have free access to the content of the laws that govern it; if a copyrighted work is incorporated into the laws, the public need for access to the content of the laws requires the elimination of the copyright protection.

No authority cited by CCC directly supports the district court's view. It relied on Building Officials & Code Adm. v. Code Tech. Inc., 628 F.2d 730 (1st Cir.1980) (�BOCA�), which the Magistrate Judge found �virtually indistinguishable� from our case. Although the First Circuit Court of Appeals, in BOCA, indeed expressed sympathy with the arguments here advanced by CCC, its ruling is not a holding to that effect. The Court of Appeals merely vacated a preliminary injunction, expressing doubts as to the *74 plaintiff copyright holder's likelihood of success, and remanding for a full hearing on whether the plaintiff had lost its copyright protection by reason of the adoption of its previously protected work (a construction code) as part of the laws of Massachusetts.

We are not prepared to hold that a state's reference to a copyrighted work as a legal standard for valuation results in loss of the copyright. While there are indeed policy considerations that support CCC's argument, they are opposed by countervailing considerations. For example, a rule that the adoption of such a reference by a state legislature or administrative body deprived the copyright owner of its property would raise very substantial problems under the Takings Clause of the Constitution. We note also that for generations, state education systems have assigned books under copyright to comply with a mandatory school curriculum. It scarcely extends CCC's argument to require that all such assigned books lose their copyright-as one cannot comply with the legal requirements without using the copyrighted works. Yet we think it unlikely courts would reach this conclusion. Although there is scant authority on CCC's argument, Nimmer's treatise opposes such a suggestion as antithetical to the interests sought to be advanced by the Copyright Act. See Nimmer � 5.06 [C] at 5-60.
CCC Info. Services, Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 73-74 (2d Cir. 1994).
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Anonymous Coward, 26 Feb 2013 @ 3:16pm

Re: Re: Re: Re:
Who said it wasn't a taking? If the court decides that making a privately written document a law causes it to effectively be in the public domain, it is then up to the former rights holder to sue the government for the damage they caused him by adopting the code. So long as there is not a statute of limitations issue, the rights holder has a decent argument for getting justly compensated.

That the government may be on the hook for their actions doesn't invalidate the copyright argument being made here.

The fact that it would violate the constitutional rights of the copyright owner is a reason to reject the argument that such administrative references terminate the copyright. The Second Circuit mentioned the Takings Clause issue with such a taking, as I quoted here: http://www.techdirt.com/articles/20130223/02505322081/sheet-metal-air-conditioning-contractors-use-b ogus-copyright-takedown-to-block-publication-federally-mandated-standards.shtml#c920 I don't think your argument that they could sue the government for the constitutional violation, so it's OK to violate their rights that way, is very persuasive. That reasoning would justify all constitutional violations.
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Anonymous Coward, 26 Feb 2013 @ 3:21pm

Re: Re: Re: Re: Re: Re: Re: Re:
Depends on the price then.

It's $73: http://www.smacna.org/bookstore/index.cfm?fuseaction=search_results&keyword=HVAC%20Air%20Duct%20 Leakage%20Test%20Manual,%202nd%20Edition
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Anonymous Coward, 26 Feb 2013 @ 4:19pm

I think I get why the EFF is arguing FOIA. They can't win on a public domain argument, or even on a First Amendment argument, so they're going with FOIA. I'm not a FOIA expert by any means, but I'm pretty sure FOIA doesn't allow people to publish copyrighted works just because that work might be producable via a FOIA request.
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cpt kangarooski, 26 Feb 2013 @ 4:35pm

Re: Re: Re: Re: Re:
I don't think your argument that they could sue the government for the constitutional violation, so it's OK to violate their rights that way, is very persuasive. That reasoning would justify all constitutional violations.

No, that's how it normally works.

If the government decides to take your property, they'll do so and offer you a payment for whatever they think is a just amount. (Which could conceivably be zero, if that's what their experts assess your property to be valued at)

If you disagree, you can't stop them, but you can sue on the grounds that the just compensation would be higher, and ultimately the court decides based on the expert testimony of both sides, basically.

Likewise, if the government infringes on one of your other rights, usually the solution is to sue them (or in a criminal case, attack the other side's prima facie case). All that stops them otherwise, in practice, is knowing that doing so will result in such a lawsuit, and that they'll lose, and not get what they wanted anyway. How did you think the constitution was enforced against government officials who don't voluntarily respect it?
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Anonymous Coward, 26 Feb 2013 @ 4:55pm

Re: Re: Re: Re: Re: Re:
Of course people can sue for a violation of their rights. The point is that, when deciding an issue like this one where the question is whether a copyright is terminated by its reference in administrative law, the fact that holding that it is would violate constitutional rights goes into the con column. It cuts against finding that the copyright is terminated. Countervailing considerations could conceivably win the day, but the four circuit courts I could find that addressed this issue held otherwise.
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Anonymous Coward, 26 Feb 2013 @ 5:26pm

Re: Re: Re: Re: Re: Re: Re: Re: Insanity
"Most of the changes and developments are very incremental"

If this is the case then making the information freely available should not be a big deal.
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Anonymous Coward, 26 Feb 2013 @ 5:36pm

Re: Re: The interesting thing here is: No position from Mike!
When all you get paid in is corporate jizz you need to work a lot in order to get anything out of the experience.
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special-interesting (profile), 26 Feb 2013 @ 6:28pm

The obvious is being obscured by the obvious free (industrial) speech uproar...

from the experience over the years of preparing hundreds of bids on various trades both as an employee and business owner I can tell anyone that getting an advantage over your competitors, however slight, is of the utmost importance. Especially on government jobs where it is not always understood that before the lowest cost bid, is even considered, the job specifications must be met.

Thats right. If the competitor does not meet the job specs you can bid what you want! You can see right away the competitive advantage this gives when your opposition bidders cannot even read the 'Technical Manuals' for whatever reason. From the view point of a contractor the DMCA take-down or the technical specs was brilliant industrial espionage or even sabotage. If it weren't for the (this is just one good example) widespread abuse of copyright one might ever cheer them on.

This is related to technical certification of your firm for the required technology and techniques necessary in the performance of the contract.

Even if the DMCA take-down notice gave a time advantage of even just a few successful contracts it would be tantamount to fraudulent behavior. Suppression of vital construction information technology documents would give a HUGE advantage to the select few who were on the inside. This technique is not limited to the Metal Fabrication Industry it is an industry wide problem as some of the other posts have pointed our examples in the medical field. (thank you post #28)

Not totally unrelated are the cost of publishing the standards themselves. To purchase a copy of the ANSI, even only for your industry, is a substantial investment. Example: ISO 14000 Environmental Management Systems Collection cost from the ANSI site $448usd and there are 44000+ standards.

http://webstore.ansi.org/RecordDetail.aspx?sku=ISO+14000+Collection+1

and thats only collection 1. Is this a monopoly itself? I don't really know but I do wonder at the profit margins and availability of universal standards. Am getting out of my range of knowledge here... but in my old age my lack of trust might borderline on cynicism. Probably worth looking into all by itself. Of course somehow there are real costs involved but where is the dividing line between a good awesome profit margin and extortion? Am not completely against this business model but...

Fair warning. (look out for that truck!) or �Don't get hit by your own industrial stupidity�

I feel that copyright abuse goes too far because it reaches into my bookshelf and I am for abolishing the copyright act in its entirety if only because of the damage to American Cultural Heritage (insert History if you want) by industry abuse regardless of collateral damage. If you don't want this then your industry had better start supporting real copyright reform. (30 year limit, is probably, to much) If you want to argue with me here is my chain of logic: http://www.techdirt.com/articles/20130222/14191722072/six-strikes-officially-begins-monday.shtml#c25 58 but please stick to the topic of, public, (not necessarily American) culture as off topic comments just make my pillow fluffier. Its only my opinion but your business model (whatever, who cares) is NOT more important than the public becoming aware of its history and itself. (a cultural meem? But, I get ahead of myself.)

Mostly all I hear is �the court decides this or that about whatever�. Its almost irrelevant to the, unbelievably vitally important, (Yes that much.) underlying issue of 'eternal copyright'.

Again, all the comments were very helpful. (#69 hilarious!)

Last is best!
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Anonymous Coward, 27 Feb 2013 @ 5:40am

Re: Re: Re: Re: Re: Re: Re: Insanity
Well, if the legislators actually bothered to invoke the fair use doctrine, and included the relevant bits of the standards in the actual text of the law, then yes, it would be alright.
Brazilian Government has been doing it without much trouble.

But if the (lazy written) law only states: whatever the reference entity determines in their manuals - then the entire text shouldn't be in the public domain at all.
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Anonymous Coward, 27 Feb 2013 @ 5:46am

Re: Re: Or better yet, THE NAMING RIGHTS TO LAWS.
"Wait, when did i make a dog eat a dead dog?"
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Frank Parker, 27 Feb 2013 @ 6:46am

SMACNA
The (generally not-for-profit)organizations that write these standards invest millions of (private source) dollars and tens of thousands of staff hours researching and testing the standards. The standards do not exist without funding to do the research, validation and publication. SMACNA, like the NFPA, IBC, and countless others, whose efforts have led to safer and more energy-efficient projects and life-safety issues, need to regain some of these costs by "selling" the manuals on which many state and federal standards are based...the public organizations do not have the wherewithal to organize and diligently carry out, in an expeditions and politically neutral manner, the necessary studies.
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John Tippin, 27 Feb 2013 @ 8:24am

Re: Re: FROM SMACNA
Yes, in fact recent court cases ruled that the actual wording of law is fact and thus does not fall under copyright
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cpt kangarooski, 27 Feb 2013 @ 9:12am

Re: Re: Re: Re: Re: Re: Re:
the fact that holding that it is would violate constitutional rights goes into the con column. It cuts against finding that the copyright is terminated.

Copyright isn't a constitutional right any more than federal farm subsidies are.

And in any event, why would it count as a 'con'? To protect such an interest against the overriding public policy of good due process and free access and use of the law, sounds like the sort of thing that was last fashionable in the Lochner era.
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Andrew D. Todd, 27 Feb 2013 @ 9:45am

Standards and Government Progress
In the long sweep of history, judges were once paid by the litigants, but experience showed that the judges tended to decide in favor of those who paid them the most. So the kings of various countries found it necessary to pay their judges salaries-- and forbid them to take money from anyone else. A certain number of judges had to be removed from office for taking bribes before the reform took hold. The same applied for government officials. In England, in the late seventeenth century, Samuel Pepys was a very efficient Secretary of the Navy-- but-- in order for a contractor to get a contract for work on a ship, the contractor's wife had to visit Pepys, and earn the contract on her backside. Pepys could get competent contractors to work on that basis, and it doesn't seem to have materially hampered him in building up the British Navy. Pepys really didn't even understand that he was doing anything wrong-- the mentality of public service had not yet developed. Over time, the amount of private justice with official standing which can be tolerated decreases, just as institutions such as slavery gradually became intolerable.

Now, the legislative adoption of a private code by incorporation can reasonably be viewed as a "taking," a taking of private property for the public use. The government's right to "take" is fairly absolute, see for example Kelo. Patents and copyrights on published works are not even at the fringe of "taking," since they are merely rights to collect royalties, without the element of "quiet enjoyment" which exists in a home. The property owner, in this case, the copyright holder, is of course entitled to compensation, based on his diminished expectation of revenue. For example, if, let us say, the State of Nebraska were to adopt a Model Building Code, produced by a private party, and to publish it on a state website, the private party would have a justifiable claim to be compensated on a worldwide basis, rather than just on the basis of the diminished revenue in Nebraska. However, when Kansas, the next year, adopted the same Model Building Code, the private party would be entitled to compensation only on so much as remained after Nebraska's purchase. Of course, it is more likely that California, a large, wealthy, and progressive state, would be the first adopter.

Here, we are referring to citing a particular edition of a book of rules. If a legislative body were to make a reference to "the current or latest edition," that would effect a transfer of government powers to a private body, which is obviously not permissible.

There are at least two kinds of standards. For example, there are technical standards for complex electronic and software systems, primarily aimed at ensuring compatibility. These standards are often run by either the ISO or the IEEE. In this case, standards behave very much like software, and the case for open-source software applies. It is better for all parties if twelve-year-old kids can freely download copies, read through them and discover "ambiguities," the equivalent of software bugs. The document can be revised accordingly, and it is less likely that people will build expensive equipment which does not inter-operate. There are some standards organizations which make their documents freely available as a matter of policy. The Universal Serial Bus (USB) organization actually set up a system of blogs for the purpose of publicly talking out the meaning of the USB standards, and decided, as a matter of policy, to make friends with the hardware hackers.

It is a matter of the public good that the government should pay for a lot of this kind of thing, and in fact, the government does pay for a lot of it, indirectly, through such vehicles as publicly financed library budgets, higher prices paid to contractors (the recent West Virginia Internet Scandal is not quite a case in point), etc.
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art guerrilla (profile), 27 Feb 2013 @ 10:00am

Re: Re: Re: Re: Re: Re: Insanity
...but doesn't secrecy and exclusivity go against the VERY PURPOSE of standards and codes WHICH HAVE TO BE KNOWN AND PROMULGATED to be useful ? ? ?

otherwise, it ain't an industry 'standard'...

the ONLY 'reason' to lock up such standards and codes is so that a gatekeeper can profit from it...

frankly, if there are codes and standards that need making, then it seems like the ideal spot for the gummint to fill that role...

also for the reason that private firms/consortiums ARE going to slant the rules/codes to THEIR favor...

being in the construction industry, i know damn good and well how vendors LOVE to have THEIR specifications included in a project, because they know it will lock in THEIR product to the exclusion of others that are appropriate for the application...
IN SPITE of all kinds of guidelines, etc to avoid proprietary solutions, it is SOP to slant the specs so ONLY YOUR PRODUCT 'qualifies'...

its a fucking game to get THEIR STUFF 'approved' and their competitors widgets 'unapproved'...

art guerrilla
aka ann archy
eof
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cpt kangarooski, 27 Feb 2013 @ 10:24am

Re: Re: Re:
As we learned in Real Genius, always... no, no... never... forget to check your references.

What you've quoted there is dicta. The district court had already determined that the copied blueprints were not laws to begin with, and thus not eligible under due process for being placed into the public domain:

Winchester-Willows's reliance on Building Officials is misplaced. In Del Madera Properties v. Rhodes & Gardner, Inc.,637 F.Supp. 262 (N.D.Cal.1985), a court rejected an identical argument, also based on Building Officials, with respect to a subdivision plan that was adopted by a town council. There the court observed that "[u]nlike the building code at issue in [Building Officials], the [subdivision plan] is not a self-executing ordinance.... The [subdivision plan] itself was merely approved and was not transformed by this act into law." Id. at 264. Likewise, here it is not the architectural plans that are the binding law, but rather the Restrictive Covenant, approved by the Town, that requires construction in conformity with the plans. See also County of Suffolk v. First. Am. Real Estate Solutions,261 F.3d 179, 193-95 (2d Cir.2001) (rejecting argument that otherwise copyrightable property tax maps entered public domain when they were adopted by county, in part because "the tax maps themselves do not create the legal obligation to pay property taxes," but instead the statute that incorporates the tax maps creates the obligation). While it may appear to be splitting hairs to distinguish between a law or regulation (here, the Restrictive Covenant) and a work incorporated by reference into the law or regulation (here, architectural drawings), there is a compelling policy reason to make such a distinction in a case like this. In light of the fact that many state and local governments presumably require submission and approval of architectural plans prior to granting permission to build, treating architectural plans the way the First Circuit treated model codes in Building Officials would eviscerate the copyright protection architectural plans have been understood to enjoy for so long. The Court therefore declines to lump architectural plans in with model codes and treat them as the court in Building Officials treated such codes.

The Circuit Court said as much in their opinion, when they declined to weigh in on the issue and made it clear that this case failed to raise the question:

WCP cites BOCA and urges us to adopt the rule suggested there and apply it to the covenant drawings. The district court, after noting that BOCA was not binding on it, Danielson, 186 F.Supp.2d at 21, adopted the opposite rule. Id. at 23 ("[O]therwise copyrightable works ... do not lose copyright protection when they are adopted by government bodies or incorporated by reference into public enactments."). We reject both courses of action. We do not need to consider the broad question we reserved in BOCA, because the facts here do not present it.

...

[C]ontracts entered into by government entities do not raise these weighty issues, and we need not resolve the question we left open in BOCA in order to rule on this case. Because the covenant drawings were not incorporated into any generally applicable laws, we affirm the district court's grant of summary judgment against this defense.

It's not very good dicta either. The district court seems to be falling for the false logic of the sweat of the brow doctrine, albeit in a novel way. The situation is a little different, in that we aren't dealing with whether works are copyrightable initially, but they're still making the classic mistake of putting private profit ahead of public policy, and forgetting that it is entirely possible for such code-authoring entities to be duly compensated without privatizing the law:

Second, the balance of competing interests at stake in such cases favors preserving copyright protection for works incorporated by reference into public enactments. As the First Circuit recognized in Building Officials, private groups who develop model codes and similar works "serve an important public function; arguably they do a better job than could the state alone in seeing that complex yet essential regulations are drafted, kept up to date and made available." 628 F.2d at 736. If private groups were forced to give up their copyright interests once a government entity enacted their works into law, there would be little incentive to create such works, or at least to offer them to the government. Practice Mgmt., 121 F.3d at 518-19; County of Suffolk, 261 F.3d at 194; 1 Nimmer & Nimmer, supra, � 5.06[C]. Government and governance would suffer, as individual governing bodies would be forced to foot the bill to develop their own housing codes and architectural plans, and economies of scale that private groups can achieve would be lost.
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John Fenderson (profile), 27 Feb 2013 @ 2:14pm

Re: Re: Re: Re: Re: Re: Insanity
Then some government organization says, "Hey, we're too lazy to develop our own standard, just follow that guys standard." Now I lose my copyright?

This is a fair point. The government could easily avoid this situation by not copying your text at all, but rewriting it so it says the same thing in different words.

You'd retain your copyright on your text, and nobody else will have to pay an extortion fee to know what the law is.
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special-interesting (profile), 27 Feb 2013 @ 10:32pm

Re: Standards and Government Progress
That was a great read and well reasoned. I agree to this very much but of course the topic of how much does the government purchase such material for. Keep in mind that content creators do not want (need?) a good profit but a great awesome profit. Combine this with a government that routinely takes advantage of its eminent domain capabilities and we have an obvious problem. (it is normal to undervalue an asset. Its normal human nature.)

After thinking about it for some time and with some experience in the realm of abuse of eminent domain of real estate property field it seems necessary to require that a forced purchase must pay more that the fair market value. There are many reasons for this most basic is that when you force someone out of their current (position) property its a potential life wrecking event.

The amount I thought of was 3 times the fair market value. Thus if your local council, city or state wanted your property for some new commercial development they had better want it badly enough.

so. if the government felt the economic need to purchase the technical manuals they had better pay 3 times the cost of creation. (or 3 times the market value of a property real estate or otherwise) This way the market for creation would not be jeopardized.
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cpt kangarooski, 28 Feb 2013 @ 5:27am

After thinking about it for some time and with some experience in the realm of abuse of eminent domain of real estate property field it seems necessary to require that a forced purchase must pay more that the fair market value. There are many reasons for this most basic is that when you force someone out of their current (position) property its a potential life wrecking event.

The amount I thought of was 3 times the fair market value. Thus if your local council, city or state wanted your property for some new commercial development they had better want it badly enough.

Well, feel free to propose laws and amendments to the federal and state constitutions to achieve this goal.

Personally, I'm happy with mere just compensation, and I doubt that a commercial entity like the Sheet Metal and Air Conditioning Contractors National Association is going to lose sleep because it has to explain to the kids that they'll have to move off of the old farmstead. I don't think that an association has much of a life to wreck.
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Anonymous Coward, 28 Feb 2013 @ 6:16pm

Ignorance of the law...
Ignorance of the law is no excuse...
But you must pay a fee to know the law.
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shane (profile), 1 Mar 2013 @ 9:38am

Re: Re: Re:
Then they should not be able to simply reference them. Obviously, regulations need to be openly available. There is no sense having laws no one is allowed to read.
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botanyscrapmetal
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