[A2k] Re: ] Open Access to the Law in the U.S.
George Willingmyre
George Willingmyre" <gtw@gtwassociates.com
Tue Sep 9 20:26:10 2008
This is a multi-part message in MIME format.
--
[ Picked text/plain from multipart/alternative ]
I support a "full daylight" policy for public access to laws and regulation=
s with which compliance is mandatory. Indeed there are such transparency o=
bligations on central and local governments within the WTO Agreement on Te=
chnical Barriers to Trade. http://www.wto.org/english/docs_e/legal_e/17-tb=
t_e.htm
"2.11 Members shall ensure that all technical regulations which =
have been adopted are published promptly or otherwise made available in suc=
h a manner as to enable interested parties in other Members to become acqua=
inted with them."
See also Legislative and Regulatory Underpinnings of US Government use of S=
tandards in Technical Regulations and Procurements and the development by G=
overnment of voluntary standards http://www.gtwassociates.com/answers/Leg=
islativeunderpinning.html
So for "technical regulations" with which compliance is mandatory, centra=
l and local governments could meet this expectation by posting them to the =
web. Central and local governments could also charge reasonable fees for p=
aper copies of such "technical regulations" when requested.
However the issue becomes complicated when "technical regulations" embody=
text of standards from private sector standards developers. There is a pr=
ecedent case http://www.gtwassociates.com/answers/veeck.htm In the Supr=
eme Court of the United States Southern Building Code Congress Internationa=
l, Inc, Petitioner Peter Veeck, D/B/A Regional Web No. 02-355. I have copi=
ed below relevant text:
"This case concerns model codes written and copyrighted by a private organi=
zation. The codes apply to the construction, alteration, use, occupancy, an=
d maintenance of buildings and the electrical, plumbing, mechanical and gas=
systems in them and provided criminal misdemeanor penalties for failure to=
comply. The private organization offers the codes to government entities f=
or enactment into law. Two municipalities enacted ordinances that adopted t=
he model codes by reference. The question presented is: Whether copyright =
law gives the private organization the right to restrict individuals from m=
aking copies of the material incorporated by reference in the municipal cod=
es of the two municipalities."
The Supreme court in making its decision not to hear the case essentially a=
ccepted the US solicitor General's advice about a June 10, 2002 decision o=
f the court of appeals from the Fifth Circuit
"Supreme Court need not reconsider a June 10, 2002 decision of United St=
ates Court of Appeals for the Fifth Circuit (293 F.3d 791 (5th Cir. 2002)).=
The Fifth Circuit had concluded that SBCCI retains the copyright in its =
standard, but that "[w]hen those codes are enacted into law ... they become=
to that extent 'the law' of the governmental entities and may be reproduce=
d or distributed as 'the law' of those jurisdictions." The Fifth Circuit f=
urther observed that laws are not subject to federal copyright law, and "pu=
blic ownership of the law means that 'the law' is in the 'public domain' fo=
r whatever use the citizens choose to make of it."
Many private sector standards organizations depend on the sale of standards=
to support their infrastructure. The implication for such SDOs was id=
entified by Dissenting opinion to the Fifth court decision by WIENER, Circ=
uit Judge, joined by KING, Chief Judge, and HIGGINBOTHAM, DAVIS, STEWART, a=
nd DENNIS, Circuit Judges, dissenting:
"Technical codes and standards have become necessary, pervasive, and indisp=
ensable ingredients of Twenty-First Century life in this country; regrettab=
ly, today's majority opinion has a real potential of drastically changing t=
he societal landscape through that opinion's predictably deleterious effect=
s on these codes and standards, their authors, and the public and private e=
ntities that daily use and depend on them"
Many standards developers whose standards become mandatory by law or regula=
tion strive to minimize the risk their standards will become public domai=
n by seeking that laws and regulations do not copy the standard's text but =
refer to the standard by reference. See Regulatory Adoption by Reference =
of standards Copyright Considerations at http://www.gtwassociates.com/ans=
wers/RegulatoryAdoptionbyReference.htm
Carl Malamed has posted to http://bulk.resource.org/codes.gov/ links to th=
e text of many copyrighted private sector standards whose requirements may =
have been incorporated word for word in the technical regulations of many=
local governments.
There is no clear path forward except inevitable litigation revisiting the=
Veeck decision. I am not an attorney and this is not legal advice. Standa=
rds developers already face "pirate" organizations who resell their copyrig=
hted standards without permission. See for example in China: http://www.bz=
02.com/ Such litigation affirming the Veeck decision will dramatically im=
pact the SDOs' business models of SDOs the text of whose standards are inco=
rporated in laws and regulations. It remains to be seen how such a decisio=
n would impact the copyright of standards incorporated by reference in law=
s and regulations
Best Regards,
George T. Willingmyre, P.E.
President, GTW Associates
1012 Parrs Ridge Drive
Spencerville, MD 20868 USA
www.gtwassociates.com 1.301.421.4138
----- Original Message -----
From: "Jeffrey A. Williams" <jwkckid1@ix.netcom.com>
To: "Pranesh Prakash" <the.solipsist@gmail.com>; "icann legal" <jeffrey@ica=
nn.org>
Cc: "A2K Discussion List" <a2k@lists.essential.org>; "Ga" <ga@gnso.icann.or=
g>; "GAC Rep" <ssene@ntia.doc.gov>; "Greg Abbott" <greg.abbott@oag.state.tx=
.us>; "DOC/NTIA ICANN Rep" <aheineman@ntia.doc.gov>; "icann board" <icann-b=
oard@icann.org>; "ICANN Dan Halloran" <halloran@icann.org>; "ICANN Kim Davi=
es" <kim.davies@icann.org>; "ICANN Marc Salvatierra" <marc.salvatierra@ican=
n.org>; "ICANN Policy staff" <policy-staff@icann.org>
Sent: Thursday, September 04, 2008 12:25 AM
Subject: Re: [A2k] Open Access to the Law in the U.S.
> Pranesh and all,
>
> Yes, slasdot's articles are normally in the lead and very intereting.
> This one especially. Interesting enough, California is ICANN's
> headquarters. Food for thought, eh? But than again seems like
> maybe California and ICANN along with Google are birds of
> feather, along with the RIAA and MPAA, eh?
>
> But seriously, such a notion that a State can claim it's
> written law is not open to free and full access by it's
> citizens due to a copywrite claim by the state, which after
> all ARE the people of that state, is horribly an irresponsible
> claim. Utter nonsense and not Constitutional.
>
> Pranesh Prakash wrote:
>
>> Dear All,
>> >From /.
>> http://news.slashdot.org/article.pl?sid=3D08/09/03/181251
>>
>> The comments, as always on Slashdot, are interesting.
>>
>> - Pranesh
>>
>> -------------
>>
>> Nathan Halverson <http://www.pressdemocrat.com/> writes
>> "California claims copyright to its laws, and warns people not to
>> share them. And that's not sitting right with Internet gadfly, and
>> open-access hero, Carl Malamud
>> <http://en.wikipedia.org/wiki/Carl_Malamud>. He has spent the last
>> couple months scanning tens of thousands of pages containing city,
>> county and state laws think building codes, banking laws, etc.
>> Malamud wants California to sue him
>> <http://www.pressdemocrat.com/article/20080903/NEWS/809030309/1350&title=
=3DGetting_access__one_document_at_a_time>,
>> which is almost a given if the state wants to continue claiming
>> copyright. He thinks a federal court will rule in his favor: It is
>> illegal to copyright the law since people are required to know it.
>> Malamud helped force the SEC to put corporate filings online in 1994,
>> and did the same with the patent office. He got the Smithsonian to
>> loosen its claim of copyright, CSPAN to stop forbidding people from
>> sharing its videos, and most recently Oregon to quit claiming
>> copyright on state laws."Malamud's talk at Google ("All the
>> Government's Information"
>> <http://video.google.com/videoplay?docid=3D2633159172413478267>) is also
>> well worth watching.
>> _______________________________________________
>> A2k mailing list
>> A2k@lists.essential.org
>> http://lists.essential.org/mailman/listinfo/a2k
>
> Regards,
>
> Spokesman for INEGroup LLA. - (Over 281k members/stakeholders strong!)
> "Obedience of the law is the greatest freedom" -
> Abraham Lincoln
>
> "Credit should go with the performance of duty and not with what is
> very often the accident of glory" - Theodore Roosevelt
>
> "If the probability be called P; the injury, L; and the burden, B;
> liability depends upon whether B is less than L multiplied by
> P: i.e., whether B is less than PL."
> United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
> =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
> Updated 1/26/04
> CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS.
> div. of Information Network Eng. INEG. INC.
> ABA member in good standing member ID 01257402 E-Mail
> jwkckid1@ix.netcom.com
> My Phone: 214-244-4827
>
> _______________________________________________
> A2k mailing list
> A2k@lists.essential.org
> http://lists.essential.org/mailman/listinfo/a2k
>
>
--