Standards Body Whines That People Who Want Free Access To The Law Probably Also Want 'Free Sex'
from the bad-ansi,-bad dept
You would think that "the law" is obviously part of the public domain. It seems particularly crazy to think that any part of the law itself might be covered by copyright, or (worse) locked up behind some sort of paywall where you cannot read it. Carl Malamud has spent many years working to make sure the law is freely accessible... and he's been sued a bunch of times and is still in the middle of many lawsuits, including one from the State of Georgia for publishing its official annotated code (the state claims the annotations are covered by copyright).But there's another area that he's fought over for many years: the idea that standards that are "incorporated by reference" into the law should also be public. The issue is that many lawmakers, when creating regulations will often cite private industry "standards" as part of the regulations. So, things like building codes may cite standards for, say, sheet metal and air conditioning that were put together by the Sheet Metal and Air Conditioning Contractors National Association (SMACNA), and say that buildings need to follow SMACNA's standards. And those standards may be great -- but if you can't actually read the standards, how can you obey the law. At one point SMACNA went after Malamud for publishing its standards. And while they eventually backed down, others are still in court against Malamud -- including the American Society for Testing & Materials (ASTM), whose case against Malamud is set to go to trial in the fall.
In the midst of all of this, various standards making bodies, along with the American National Standards Institute (ANSI), have been working over time to get the American Bar Association to adopt a proposal that limits publication of standards that are incorporated by reference. ANSI has pushed for a solution it prefers called "reasonable availability," in which the standard-makers decide by themselves how best to make the standards "available." ANSI, for example, hosts a bunch of incorporated by reference standards on its website -- but the only way to read them is to install a special kind of DRM (Windows and Mac only) that makes the documents purely read only. You are not allowed to save them. You are not allowed to download them permanently. You are not allowed to print them. And it's not all standards that are incorporated by reference. Why do they do this? Well, most of them sell their standards to professionals who need to buy them, and they don't want to give up on that revenue source (especially once those standards are incorporated by reference because at that point they become mandatory).
Either way, there was an attempt to push through a bad proposal at the ABA, getting it to take an official stance on standards that were incorporated by reference, but the first attempt was denied when various parts of the ABA pointed out that only a small group had worked on the issue. A larger task force was formed, but oddly, that task force was amazingly one-sided, including a number of people connected to ANSI or its supporters (including its former chair, Oliver Smoot, and its General Counsel, Patricia Griffin). Malamud asked multiple sections of the ABA if he could be a part of the working group and was denied. Not surprisingly, the final recommendation, which the ABA is about to consider next month, does not recognize that standards incorporated by reference should be widely and freely available, since they are the law. Instead, it takes a much more restrictive approach, whereby such standards would need to be made available (an improvement from the current situation), but that availability can still be in a very restrictive and locked down manner (such as with DRM and limitations).
The fact that it takes a small step in the right direction already has ANSI upset, and it's whining to its members asking them to tell the ABA not to support this proposal, dropping all sorts of FUD about how it will kill off various standards bodies, and complaining that the process by which this proposal was created was "closed" (leaving aside that ANSI and its friends made up a decent portion of the folks on the working group). Malamud has now sent a massive book detailing all of the problems with the proposal and noting that supporters of it are trying to rush it through, potentially looking to influence some of the lawsuits that he's currently involved in (such as the one about to go to trial). Some task force members raised the concern that it seems weird for the ABA to stake out a position on an issue that is about to be resolved by the courts. Either way, somewhat amazingly, both Malamud and ANSI agree that they don't want the ABA to accept the current proposal -- but for wildly different reasons.
Malamud's packet is impressive in the details and evidence that it presents. But his major complaint is that the ABA is making a huge mistake in trying to "balance" the interests of standards bodies that get money from locked up standards and the public. There's no need for balance here. General common sense says the public should win here and the law itself should be public and freely accessible. But that's not how the task force looked at this:
Think for a moment about the interests that are being “reconciled.” On the one side are the proprietary interests of a few nonprofit organizations, organizations that eagerly seek to have some of their standards incorporated into law, and also profit greatly from the sale of numerous products, such as the sale of non-mandatory standards, training, and certification. Nonprofit organizations such as ANSI have done quite well under the current system, paying million-dollar salaries to their executives and receiving numerous government subsidies, plus the all-important market positioning they get from being an official provider of an important segment of federal law. This is an enviable market position for a nonprofit, and they have profited handsomely from that position.And really, the principle here is pretty clear and shouldn't involve that much debate. If it's included as part of the law, it needs to be widely and freely available.
What is being balanced against those “proprietary interests” are the rights of the American people to read and speak the law. Joe S. Bhatia, the president of ANSI, put it well when he stated clearly that “a standard that has been incorporated by reference does have the force of law, and it should be available.” These standards are integral to the regulations, no different than any other edict of government. Public safety laws are too important to be carved out as a special category of edict of government, a category subject to arbitrary limitations on use.
The way that “balance” was struck is what disturbs those of us who wished to participate. The task force is asking the ABA House of Delegates to endorse severe restrictions on how citizens can access regulations, in the form of “read-only” documents on the Internet. The term “readonly” is a term that doesn’t make any sense to those of us who work on the Internet. What are being proposed are a series of licensing restrictions created by a click-through terms of use agreement, coupled with technical restrictions enforced by “Digital Rights Management” (DRM) technical measures. But the law is not a Hollywood movie and it is not a Tom Clancy novel. The law is special in our democracy, or in any society that observes the rule of law. The law belongs to the people and edicts of government are not subject to copyright under long-standing doctrines of common law and the clear and unambiguous policy of the U.S. Copyright Office.
For those of us in the American Bar Association, the concept of “read only” flies directly against the work practices of members of the bar who must use the law to do their jobs. Lawyers do not simply read the law, they cite the law and copy it, they publish extracts in documents such as briefs, treatises, and newsletters. If we entertain the notion that a category of our law requires a license in order to repeat those laws—and that is precisely the position today of ANSI and its fellow SDOs—the bar will be faced with a situation where permission to use the law may be granted only after the extraction of unreasonable rents and a request for permission, which may be arbitrarily granted or refused. This is not a theoretical situation; it is the current stance of the organizations that drafted this resolution and they are proposing that Congress codify those restrictions.The packet that Malamud put together also includes some of the emails that were sent around as part of the working group's deliberations, including one rather incredible one in which ANSI board member Dan Bart of Valley View Corporation, completely mocks the idea that standards that are part of the law should be available for free -- saying that "some people are still clamoring for free beer and free sex too." Apparently, this individual feels everyone should pay for sex.
Most disturbing in the resolution that the ABA is being asked to endorse is the idea that the right to speak the law—to post it on the Internet in a transformative fashion that allows others to use it more effectively—belongs to a single private party, and that private party may require a license before others are permitted to work with the material. Just imagine if John B. West had needed a license before including court opinions in his National Reporter System, an innovation that became central to the practice of law in the United States. Allowing only a single party, or those to whom they arbitrarily grant a license, to control access to primary legal materials deliberately retards innovation in order to maximize revenue through a monopoly over crucial components of federal public safety law. Putting the brakes on innovation for presentation of the law not only hurts democracy, it hurts the legal profession, depriving lawyers of better tools and services.
If you go through the emails included in the packet there are even more details, including the co-chair of the ABA's SciTech Technical Standardization Committee stepping down for being effectively ignored during the process of deciding on the resolution and not allowed to join the working group.
The whole thing is a mess. It's not even clear why the ABA should be considering this point at all. And, if it must consider it, why would it not support the most obvious conclusion: if it's a part of the law, it's part of the law and needs to be widely and freely available, not locked down by DRM.
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Filed Under: carl malamud, dan bart, incorporated by reference, joe bhatia, law, public access, standards
Companies: aba, ansi
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Problem is deeper
Try doing that without the ability to cut and paste the particular sentence, table, or value from the standard, firstly because cut and paste is impossible, but also because copyright rears its ugly head.
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Re: Problem is deeper
can't find it in our method.
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Re: Problem is deeper
My thought is - if the DRM is so restrictive that it can actually restrict your ability to work with the standards as a reasonable working document, 3 things are likely. One is that people make mistakes while transcribing. Over a length of time, this is inevitable and so uncaught errors may lead to non-compliance.
Secondly, if you make a job more difficult, some people may opt to do a half-assed job of it. If the DRM is adding hours on to a person's work week unnecessarily, they may skip or do that part of the job poorly.
Thirdly, some will opt to remove the DRM. This isn't dangerous on its own, but if it's not a trivial crack, people will use the outdated cracked versions rather than the up to date version, especially if it's an annual refresh with few major changes in existing standards. The businesses involved probably wouldn't approve doing this, but if you stick an clearly unnecessary obstacle in front of an engineer, he will route around it.
That's all speculation, of course, but I can see where copyright could easily cause problems here, especially when it's so aggressively backed up with the DRM.
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Valley View, not Via View
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In the past, this area has been hidden by the publicing barrier. The old guard is having a hard time adjusting to the much lowered publishing costs.
It is a general trend that the hidden economic insentive in publishing a physical media is causing a lot of resistance to the lowered barrier of publishing.
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Sorry, I can't agree to people being required to follow one of (e.g.) the telecom standards: T-Mobile's standard, Verizon's standard, or AT&T's standard. You see where I'm going with this, right?
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Response to: Anonymous Coward on Jul 7th, 2016 @ 4:43am
Try French. Everything sounds sexier in French.
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Because anything "free" is bad?
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So they want to
Not surprising, Buying laws is hardly a new thing..
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And I'll bet you're going to censor me again, PaulT. You disgusting sleazebag.
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...and who's questioning that? All that's being questioned is why *laws* are being locked behind a private company's paywall. Why not make them freely available, especially since the public will have to pay some degree of costs for their enforcement anyway? The company would still get revenue for actual costs incurred, they just wouldn't be able to extort for profit off a legally mandated purchase.
"But since all Techdirties understand is free and piracy they can't comprehend simple concepts such as "If you can't pay, you don't deserve it"."
Yes, those voices in your head are bad people, as ever. Want to address the actual opinions of people, or did you get another bulk order of straw to build with this week?
"And I'll bet you're going to censor me again, PaulT. You disgusting sleazebag."
Wow, you're not even waiting for me to point out your bullshit this time before throwing a tantrum, huh?
BTW, I've never censored you. I call out your crap, I don't report it.
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Re: Re:
And here I thought that you had some kind of censorship superpower that allowed you to singlehandedly suppress comments you don't like.
I'm a little disappointed.
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Response to: Whatever on Jul 7th, 2016 @ 5:20am
Only an idiot or an insane extremist would find it acceptable to restrict knowledge of what laws you're governed by.
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Flawed logic at hand:
"Putting knowledge, law, content and other created things together requires effort, which in turn requires payment."
It's clear that Whatevernoticed did not read the article. He chooses a side, usually the opposite of TD, sticks with it, and argues his absurd notions to the death. (There was a guy that once claimed to have seen the first plane hit on the morning of 911 on TV. Everyone knows that video was not released until a day later. He defended this particular assertion to the point he got several accounts banned. The writing style and whining are extremely familiar.)
It's common sense that a law or standards imposed for the population to follow should be publicly available. To argue otherwise is just trolling.
And F yeah I want free beer and sex... duh!!!
Ha ha ha Techdirties... might as well just called us all Poo Poo heads. LOL!!!
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Re:
If a law is secret then I cannot be expected to comply with it, it's as simple as that. If I don't know about a law because I cannot afford to pay the writer of it, then it is a secret (to me) by default.
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"Putting knowledge, law, content and other created things together requires effort, which in turn requires payment."
So I would challenge your initial premise. If payment were required than all efforts to create would mandate payment, by the state if no-one else takes responsibility.
People often create without payment. People often deserve things without the ability to pay.
In fact, the direction in which our various charters on human rights does seem to indicate they are entitled to minimum degrees of welfare, which includes access to information.
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Re:
How's that DMCA vote working out for you, chucklefuck?
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How's that DMCA vote working out for you, chucklefuck?
Why was this truth, in Whatever's own terms, censored?
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Seriously, what a nut job - why does sex have to cost you money? Because the rich elite ruling class wants to put a toll on everything. Yes, I am aware of the indirect cost of sexual relationships but I doubt that is what this jerk is referring to.
The phrase "ignorance of the law is no excuse" some how loses its teeth when said law is a government secret. One might assume this to be obvious, but apparently our esteemed leaders are oblivious.
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Re:
Perhaps because its the only way he can have sex with another person.
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Not enough secrets
Forget the secret free sex. How about secret standards.
We could have the National Bureau(cracy) of Secret Standards. Secret weights and measures.
The government needs to get into this secrecy thing. Because terrorists. And pirates.
Secret weather forecasts.
Secret USGS data.
Secret maps.
Secret locations of all government offices. (You just try to find your local DMV - ha ha - I dare you)
Secret government publications
Secret press conferences
Secret identities of all appointed officials
And that leads to . . . secret identities of all elected officials.
If voting ballots already are secret ballots, then the candidates can be secret too.
Please vote for one:
[x] Candidate A (secret political affiliation)
[_] Candidate B (secret political affiliation)
[_] Candidate C (secret independent political party)
[_] Any of the above
[_] All of the above
As my first official act, everything in the Library of Congress is now classified as a secret for national security reasons.
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Re: Not enough secrets
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Re: Re: Not enough secrets
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Re: Re: Not enough secrets
You mean... GASP!!! A CONSPIRACY theory came true? Better be careful, Michael will start calling you a "tinfoil hat wearing type" because conspiracies never ever come true.
Except when they do:
https://www.google.com/search?q=true+conspiracy+theories&ie=utf-8&oe=utf-8
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Re: Re: Not enough secrets
Give any absurd prediction twenty years and no doubt someone will have at least attempted to make it serious law.
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In lies the rub, 'standards' are not 'the law'...
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Re: In lies the rub, 'standards' are not 'the law'...
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Re: In lies the rub, 'standards' are not 'the law'...
I've worked in a field which is covered by both federal and state law. Those laws unambiguously incorporate private standards as part of their language.
How does that work, you ask? The pertinent laws include language similar to the following:
This is a technical phrase, which lawyers and computer programmers both understand instinctively. It means (essentially) 'go to this resource or file, make a copy this part of it, and put that copy here'.
That makes those standards a part of the relevant law. In consequence, copyright goes the way of the dinosaur.
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Re: Re: In lies the rub, 'standards' are not 'the law'...
This undoubtedly then puts the plain text of the standards into the public domain. particular version may get their own copyright for formating, illustrations, and so on, but the legislative intent is to take the particular private standard for public use. The exact sort of taking for which compensation may be due to the writers of the standard.
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Re: In lies the rub, 'standards' are not 'the law'...
ANSI and other US based organizations are effectively doing government's work while establishing standards that suits their members best (read protectionism whenever you want). Adding these "private" standards to law effectively enshrines these (I'm not arguing against their value). The scam, well detailed in the article, is when ANSI (and other standard creating organizations) act like private businesses and decided to create new revenue streams by charging anyone who wants to see the standard. This affects thousands of productive businesses across the country.
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Re: Re: In lies the rub, 'standards' are not 'the law'...
http://www.iso.org/iso/home/store.htm
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Re: In lies the rub, 'standards' are not 'the law'...
Citation please.
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Re: Re: In lies the rub, 'standards' are not 'the law'...
Quote: The board was formed in 1998 as a way to get local and federal officials talking about standards and the type of equipment first responders should be using.
But "if you got a list that says you ought to have one of these detectors, how do you know which of the ten manufacturers is the best?" Pasco asked. "At this point, you're relying on sales pitches and anecdotal evidence."
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Re: In lies the rub, 'standards' are not 'the law'...
One thing I do find challenging is that the Standards bodies do not pay the professionals who sit on the committees that write the Standards, I have been on two ASHRAE standards committees that produce two ANSI standards and don't recall ever being offered compensation, except a free copy of the standard at the end of the process.
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But beware what condoms you buy. Who knows what standard they comply with!
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In most case these various groups became standards body sponsored by one or another trade organizations such as the IEEE, ASME, ASCE because it takes funding, resources, and organization to develop, organize, and coordinate their development.
In most case the only source of funding for such NON government bodies has been donations from corporations and the sale of copies of their standards.
Never have I seen in any of these standards a requirement that the standards be utilized.
What I have always observed is that there are others that wish to use the standards without paying for them.
For example some small city government does not wish to expend the time and resources to develop the money, effort, and resources to develop an equivalent set of rules that would not be a standard anyway because of limited jurisdiction. What happens is that the city decides to incorporate someone elses work into their law without consultation with or payment to the standards body for their work. In fact in almost all cases the standards body is not even aware of their standard has been appropriated.
To the individual this seems unfair. They are required to buy copies of standards from third parties to comply with local law. At times system is very expensive.
There is another system typicality by the EPA and OSHA. Government standards that voluminous. For example compare the size and quality of OSHA standards (government) to the National Electric Code (non government). Having worked with both I will take the non-government standards over the government standards any time. Others may have a different opinion. There are other issue though. The government standards are political based and tax supported with enforcement police while the non-government standards are technical standards with enforcement and finance left to others.
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... unless your purpose is to profit on the standard itself. CSS and HD DRM, for instance.
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Re: (city decides to incorporate someone elses work)
It is not quite as you describe. The standards agencies actually urge the adoption of their standards as law. See, e.g. Veeck v. Southern Building Code Congress Int'l, 293 F.3d 791,794 (US 5th Cir. en banc) (SBCCI urges local govts to adopt its standards as provided).
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But the free sex is already covered by law enforcement
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Where are the t-shirts?
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Sounds Like time for a new law
Of course, that will never happen.
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Re: Sounds Like time for a new law
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Re: Re: Sounds Like time for a new law
Isn't politics wonderful? /s
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A balancing act is needed...
However, there are grey areas: a law could state that "all govt-owned laptops must have 802.x WiFi adapters", or "all Widgets must meet ASTM XYZ". It takes time and money to develop those standards, and if said standards were not intended to be part of the law, and it seems unfair to strip their copyright protection because a legislature chose to reference them.
(To make for a more obvious example, let's say that there was a novel where a law said it had to be incorporated into the 5th-grade curriculum. If I'm the author of said novel, I'm going to be pi$$ed if the Podunk Tri-County Consolidated School District can yank my novel into the public domain without getting my permission.)
Maybe the solution is a rule where a lawmaking body must obtain permission to incorporate a copyrighted work by reference, and once that permission is obtained, the government body must make it available in the same manner it makes it's other laws available (and cannot restrict re-publishing.)
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Re: A balancing act is needed...
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Free Sex
Dude, he clearly does NOT! He's just really pissed (about everything) 'cuz he only gets sex by paying for it, and he doesn't understand our lack of sympathy.
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Free Sex
/s
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Devil's Advocate
Having said that, I will say that there's a counter argument to the current state of affairs. The standards bodies own the standards. They do not have a contract with the government allowing the government to distribute the standards independently. Therefor if this became the legal standard, it would qualify as a taking for Constitutional purposes. Which means that the government would have to pay 'fair market value' for having taken something of economic value from the organization.
Which would lead to it's own interesting series of suits and legal opinions.
Again, I personally think that's the right way to interpret the situation, but it does complicate the issue as a whole, even if that isn't before the court at this time.
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Re: Devil's Advocate
If a standard-creating entity wants their standard to have the force of law, then they have to provide a license that accomplishes royalty-free, unrestricted public access.
If no such third-party standard is available under suitable terms, then legislators must develop their own set of standards that are.
No "taking" is required to accomplish the public good.
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Re: Re: Devil's Advocate
Congress could choose to only select open access standards, or pass a law requiring REGULATORS to only select such standards, but they can't pass a law that says CONGRESS must follow such rules.
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Re: Not a Standard if it has limited access
Prove it.
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Ignorance of the law is not an excuse
The law is locked up behind a paywall.
The speed limit sign near my house said I had to reference the Speed Limit Article for my road to know what the speed limit law is for that particular road.
I first need to go to the assigned government office (the Law DMV), and then pay a fee to access this content. I am then only allowed to read this content while at the Law DMV. I am not allowed to write down or copy this information in any form or I will be prosecuted. This process will need to be repeated for each road I want to know the speed limit for. This is due to each road having their own standards on what is considered the proper speed limit.
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In other words, he supports prostitution?
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Simple Solution
Step 2: Document the exhaustive search to the extent the law is not available to the general public.
Step 3: When it becomes exceedingly obvious the law is not open to the public to view, don't follow the code.
Step 4: When the government files a lawsuit, bring the evidence to court.
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Yeah, can someone tell me the problem with free beer or free sex?
Fuck capitalism. The end product of Capitalism is regional Comcast monopolies and for-profit prisons and regulatory capture of our administration and Supreme Court. And corporations being a higher caste of people than people.
I want free beer.
I want free sex.
I'm willing to give away my stuff for free if that means everyone else will.
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Re: Yeah, can someone tell me the problem with free beer or free sex?
I'll give away my stuff for free to encourage others to do so.
I get there's a lot of distrust.
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Re: Yeah, can someone tell me the problem with free beer or free sex?
You misspelled cronyism.
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All Together Now ...
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Codes apply to schools, medical facilities
Consider this:
The Fire Marshal inspects the baby room in Sept.
In Oct, Corporate has a contest for the best Halloween door decoration.
The girls decorate the doors with tissue paper, etc.
One staff member has a copy of the building code from the library from 20 years previous, saying you can't have flammable items on the fire exits. The staff member confirmed this with the fire marshal the previous year.
The staff member notifies management.
The manager says it doesn't matter because the interior door is not an exit, and there is an exterior door in the room.
Some of the exterior doors have flammable items on them also.
The Center was painted and there are no fire exit plans.
Any place like this will show 2 fire exits, even if one is a window.
Management falsifies fire drill records.
And Corporate gives a prize for the best door decoration, which is baby heads on a tombstone.
People are incompetent enough without encouraging them to not read the rules.
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Identical to the RestoreCSA case
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This is pretty common across all of the trades.
You can't just "study" for anything anymore. Which is true for the BAR exam as well (everywhere but CA). And the only reason CA is different is because some guys studied privately for the BAR and sued in order to be PERMITTED to take the exam.
A standard isn't protectable intellectual property by patent, but it can be excluded from distribution by copyright owned by people who didn't write it? Notice how this always slants the same way? The law is against constraint of trade by technically measurable means, but for constraint of trade on the basis of social means.
It is the same pattern it always is. A bunch of guys who didn't actually do any of the related work, dictate the terms of the distribution of that work, using an abstraction of the law to divest the AUTHOR of their rights.
To the people bitching about how anti-copyright TD is: I have no problem paying the AUTHOR. But a corporate wino party-boy who mixed puke at some frat house as the states attorney DIDN'T write these documents. So him and his pal get together and use the law, to constrain trade in the education sector, and your opinion is: "people just want free shit"?
Cognitive Dissonance much?
This is yet another way that corporate personhood endows additional and cumulative rights to select citizens, creating formal and exclusive classes of citizenship, violating the intent of the titles of nobility clause of article 1 section 9.
This gets fixed when the dictionary act of 1789 gets amended and Citizens United gets overturned. You can be assured that neither of these things will EVER happen under the Demopublican alliance.
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Uh, consent of the organization?
If we take the logic of the article at face value, that means that the State can compel any organization, without their consent, to open up their standards to public by incorporating it by reference into a law. That doesn't seem right either -- an organization should be free to chose to have a closed standard (and, FWIW, others can be wary of adopting that standard) without being compelled to open it up against their will.
[ And of course, bodies that actively supported incorporating their standards into law have nothing at all to complain about. Having cake and all that. ]
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I completely understand their position.
I personally would like to be able to afford the 4th amendment "plus package" where my car, clothes, address indicate that I just might be able to afford a quality lawyer.
Right now I'm on the 4th amendment "basic plan", so its unwise to use phrases like "Am I being detained?", "I don't consent to this search.", "slip the warrant under the door".
Still its better than 4th amendment "lite plan", that's where the police can publically strip search you while trying to earn their amateur proctology merit badge.
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Deer Dan ...
All joking aside while I find the monetization of fundamental legal rights ... I also understand the need for standards and the need for those working on standards to have an income.
And the frustration felt when everyone freely complains what's wrong with the current way of doing things, but no one is proposing a realistic alternative.
I suggest unwinding by handing out with the sorts of people that gift each other with free beer.
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