Texas Lawmaker Proposes Bill To Strip Funding From Schools That Abuse Zero Tolerance Weapons Policies

Sheet Metal & Air Conditioning Contractors Agree Not To Use Bogus Copyright Claims To Block Publication Of Official Standards

from the about-time dept

Tue, Jul 16th 2013 11:03pm — Mike Masnick

Back in February, we wrote about how the Sheet Metal and Air Conditioning Contractors National Association (SMACNA) had gone after Carl Malamud's PublicResource.org for buying the federally-mandated 1985 standard on air-duct leakage and posting it online. Among a variety of other things, Malamud and PublicResource.org have been trying to free up private "standards" that have been incorporated into the law. You'd be amazed at how common this is. The government more or less points to an industry organization's official standards and says "that's the law." But, the bodies who create those standards then try to keep them locked up, proprietary and expensive. However, as Malamud has pointed out, that's crazy, because it means that the law itself is locked up, proprietary and expensive.

To deal with this, PublicResource.org seeks to legitimately buy up these resources, and then publish them online, arguing that you can't have a secret, proprietary law that needs to be purchased. The air-duct leakage standard is just one of many that he's done this with (Malamud has already published approximately 11,000 such standards), with many more to go. But, SMACNA actually threatened him with copyright infringement, leading PublicResource.org to file for declaratory judgment, with the help of lawyers from EFF and Fenwick & West (including Andrew Bridges -- whose name you might recognize).

It appears that SMACNA for a while just ignored the whole thing, leading to an attempt to get a default judgment... and ask for attorneys' fees. That finally woke up SMACNA who claimed that it had "made an economically rational decision not to litigate its legitimate copyright claims," but that it did not want to pay any attorneys' fees. In the end, a settlement was reached, and SMACNA has stipulated that it will not sue PublicResource.org and that it will "not make any future assertion or representation that it claims any copyright interest" in a list of standards that it has published. While SMACNA did not have to pay attorneys' fees, it did pay PublicResource a token fee of one dollar.

EFF is, rightly, celebrating this as a victory. While it may not have set a precedent establishing that such things are legal to publish, it is still a step in the right direction, and hopefully makes it clear to others that PublicResource is willing to fight against such attacks.

“Whether it’s the Constitution or a building code, the law is part of the public domain,” said EFF Intellectual Property Director Corynne McSherry. “We’re glad SMACNA is abandoning its effort to undermine that essential principle.”

In today’s technical world, public-safety codes are some of the country’s most important laws. Public access to such codes can be crucial when, for example, there is an industrial accident, a disaster such as Hurricane Katrina, or when a homebuyer simply wishes to independently consider whether her house was built to code standards. Publishing the codes online, in a readily-accessible format, also makes it possible for reporters and other interested citizens to search, excerpt, compare, and copy them.

“It’s about time Standards Development Organizations recognized that if a technical standard has been incorporated into federal law, the public has a right to read it, speak it and copy it freely,” said Public.Resource.Org founder Carl Malamud. “We hope SMACNA has finally learned that lesson.”

Gov Uscourts Cand 263568 39 0 (PDF)Gov Uscourts Cand 263568 39 0 (Text)

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Filed Under: carl malamud, copyright, standards
Companies: publicresource.org, smacna

20 Comments

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Atkray (profile), 16 Jul 2013 @ 10:25pm

�Whether it�s the Constitution or a building code, the law is part of the public domain,� said EFF Intellectual Property Director Corynne McSherry.

If FISA and the Obama administration catch wind of this Corynne McSherry may end up sitting in a Russian airport.
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Woadan (profile), 17 Jul 2013 @ 3:04am

SSo, essentially, SMACNA got a shakedown.
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Anonymous Coward, 17 Jul 2013 @ 3:26am

Re:
McSherry is just a symptom, these degenerates can always find a lawyer to take their case.

No, Carl Malamud is the problem. He has knowingly and willingly passed specifications of thousands of products to the Internet and by extension al-Qaeda. This has irreparably compromised the security of the US.
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Ninja (profile), 17 Jul 2013 @ 3:45am

Gotta love the EFF. If someone deserves my money it's those guys. Awesome!
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JustMe (profile), 17 Jul 2013 @ 3:53am

Win for the good guys
Just donated to the EFF, too.
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Anonymous Coward, 17 Jul 2013 @ 3:53am

Just wanted to say is it not publicresource.org that is a squatter site. but public.resource.org
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Anonymous Coward, 17 Jul 2013 @ 6:02am

EFF is, rightly, celebrating this as a victory. While it may not have set a precedent establishing that such things are legal to publish, it is still a step in the right direction, and hopefully makes it clear to others that PublicResource is willing to fight against such attacks.

�Whether it�s the Constitution or a building code, the law is part of the public domain,� said EFF Intellectual Property Director Corynne McSherry. �We�re glad SMACNA is abandoning its effort to undermine that essential principle.�

You and McSherry are still ignoring the actual legal precedent on this.

I first mentioned it here back in February: 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

And then I reiterated it back in May: http://www.techdirt.com/articles/20130516/01413623104/one-simple-copyright-reform-idea-government-ed icts-should-never-be-subject-to-copyright.shtml#c27

I know you guys don't like the law on this point, but to pretend like it doesn't exist is to ignore reality. I thought you disliked those who ignore reality, Mike.

Here's what the Second Circuit said:
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, 74 (2d Cir. 1994).

Other courts have said so as well. That's fine if you think the law should be different, but it gets us nowhere by ignoring the parts you don't like.

Any chance that you'll substantively address my point now that I'm posting it for the third time? Don't worry, I know you won't. You don't do that.
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art guerrilla (profile), 17 Jul 2013 @ 8:10am

Re:
not for nuthin'...

how 'bout YOU, cowpoke, do YOU respond to ANY/ALL queries, whether salient or not ? ? ?

we know the answer, don't try your default tactic of lying...

so, assuming your blabbage is not another lie, you are BOTH hypocrites, is what you are saying ? ? ?

i know which 'hypocrite' i will want to hear from...

urine idjit

art guerrilla
aka ann archy
eof
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Anonymous Coward, 17 Jul 2013 @ 9:21am

Can we apply this to Aerospace as well?
As a network administrator, the copyright BS on specifications that we pay for is nothing short of extortion.

These specifications that dictate exactly how we are supposed to be building that airplane part now cannot even be opened unless it has access to the Internet to call home and verify that the file is residing on the hardware it was originally downloaded on.

So now you are forcing computers that have no business having Internet access to access the Internet in order just to view the specification that we ALREADY PAID FOR to make parts PER THE WAY THE FAA REQUIRES US TO.

Here. Why don't we just give all our blueprints to 4chan while we are at it.

Morons.
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Anonymous Coward, 17 Jul 2013 @ 9:50am

Re:
Typical Union thuggery...SMACNA has been unreasonable, heavy handed, jackholes.
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The Groove Tiger (profile), 17 Jul 2013 @ 10:27am

"...you can't have a secret, proprietary law that needs to be purchased."

Hey, it works for the Content Lobbyists... oh, not that kind of "purchase".

Carry on then.
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Anonymous Coward, 17 Jul 2013 @ 10:51am

Someone needs to contact FUKA & OFFA and set these jokers straight.
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techwriter (profile), 18 Jul 2013 @ 12:15pm

Publ;ic Resource. org v SMACNA
so, those of you that think that public.resources.org and the EFF is on the side of the angels here are actually ok with the government taking your income? As a techwriter I create some documents that are valuable and that others are willing to pay for when they use them. So, as in the SMACNA case, the government decided those documents and standards were good, and incorporated them into a regulation. EFF and PRO are saying that the creator is now not entitled to get anything for the product and users get it for free. That's stealing and freeloading. Why should anyone bother to create the product in the first place? Seems like there should be a reasonable debate around the ownership rights of content creators and whether the government or thieves like PRO should have the right to sieze that property and give it away. At least have the issue litigated in open court instead of PRO just economically overwhelming a group like SMACNA that couldn't afford to defend itself or the principle.
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psuedo anonymous nitpicker, 19 Jul 2013 @ 1:11am

In the article, it's currently written ".. had gone after Carl Malamud's PublicResource.org for .."

If you highlight "PublicResource.org" in your browser and right click to open the link in a new tab/window, it brings you to one of those spammy, click harvesting ad search pages. The proper URL is "public.resorce.org"

Jest sayin'
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Kenneth Lawrence, 24 Oct 2013 @ 8:35am

i agree,EFF is in the right direction. awesome job! i take it http://www.quantechenv.co.uk/ also knows about this. thanks!
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Elites Chance, 14 Mar 2014 @ 10:31am

"EFF is on the side of the angels" - I agree, it will never happen.
Government is never on your side.
It doesn't matter if you live in US, Russia or China.
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Angela, 5 Dec 2014 @ 10:34pm

I think that will benefit both the air conditioner manufacturers and consumers. Not all consumers prefer the same aircon.
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Judy Alex, 9 Dec 2014 @ 11:21pm

Re:
Yes Angela that can help many manufacturers and also mobile air conditions exporters and other traders will get benefit from this.
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Aaron, 14 Mar 2016 @ 4:59am

Getting these standards out into the public domain can only benefit consumers - quality standards rise and costs fall as competition for those consumers increased. Keeping these matters secret known only to a few is anti-competitive and harmful to ordinary people.
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John Hager, 16 Jun 2016 @ 10:06pm

I agree,EFF is in the right direction. awesome job!
So now you are forcing computers that have no business having Internet access to access the Internet in order just to view the specification that we ALREADY PAID FOR to make parts PER THE WAY THE FAA REQUIRES US TO.
Thank for share this awesome post !
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