No One Can Own the Law—So Why Is Congress Advancing a Bill to Extend Copyright to It?

ARL Policy Notes 2024-04-19

Last Updated on April 19, 2024, 12:46 pm ET

photo of Scales of Justice statue at Old Baileyphoto CC BY 2.0 by James Cridland via Wikimedia Commons

This week, the US House of Representatives Judiciary Committee voted to advance the Protecting and Enhancing Public Access to Codes Act, or the Pro Codes Act (H.R. 1631), to the full House. The bill would extend copyright protection to codes (such as building codes) that are developed by standards development organizations (SDOs) and incorporated by reference into local, state, and federal laws, as long as the SDOs make the codes “available to the public free of charge online in a manner that does not substantially disrupt the ability of those organizations to earn revenue.”

This is the latest development in a long-running battle between SDOs and public interest groups that have posted online standards incorporated by reference. SDOs have sued these public interest groups for copyright infringement, and the public interest groups have argued that once the standards are incorporated by reference, they lose their copyright protection. The public interest groups have argued in the alternative that the fair use right permits the online posting of the standards. The courts have ruled in favor of the public interest groups on the fair use theory without addressing the protectability argument. The Pro Codes Act seeks to foreclose the protectability argument without directly implicating the fair use theory.

The SDOs supporting the Pro Codes Act assert that it would increase access to the law by incentivizing the SDOs to provide online “reading rooms” where the public could read the standards incorporated by reference. However, such reading rooms are unnecessary because public interest groups already provide free online access to the standards in more usable formats. As Corynne McSherry, legal director at the Electronic Frontier Foundation (EFF), stated: “This legislation is a solution in search of a problem: at least one public interest organization is already providing much better access to the law, also for free, with no financial impact on the standard organizations.” In 2023, McSherry successfully represented Public.Resource.Org in ASTM v. Public.Resource.Org, where the US Court of Appeals for the DC Circuit held that fair use permitted Public.Resource.Org to post online codes incorporated by reference because it served a nonprofit, educational purpose.

During this week’s markup of the Pro Codes Act, Representative Zoe Lofgren (D-CA) introduced dozens of amendments to improve the bill, one of which would codify the ASTM precedent established by the DC Circuit. Unfortunately, the committee rejected this amendment. (In fact, the committee voted down all of Lofgren’s amendments, except for one that would require the Government Accountability Office to study the effects of the bill.)

Rep. Lofgren also entered into the record an opposition letter in which a coalition of libraries, civil society, disability rights groups, and others argue that providing free access to the law furthers the fundamental purpose of copyright, which is to allow public access to knowledge. Some of the letter’s signers also made this point in an amicus brief in ASTM v. Public.Resource.Org:

The Copyright Act ultimately aims to achieve the Constitutional goal to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art 1, cl. 8, sec. 8.

During this week’s markup, some members of the House Judiciary Committee displayed a fundamental misunderstanding of copyright law. Proponents of Pro Codes claimed that the bill would strike a balance between copyright law and public access to information. But copyright law and access to information are not in tension; facilitating access to information is the constitutional purpose of copyright, as the library and civil society groups wrote in their brief in support of Public.Resource.Org.

Some members of the committee tried to parse standards incorporated by reference from other elements of the law. But as Rep. Lofgren rightly noted, in 2020 the Supreme Court reaffirmed the “government edicts doctrine” that works created by government officials in the course of their official duties are not copyrightable. Accordingly, when a work is incorporated by reference into an official government document it has the force of law and belongs in the public domain. In 2019, the Library Copyright Alliance (LCA) filed an amicus brief in State of Georgia v. Public.Resource.Org asking the Supreme Court to affirm this reasoning, and explaining how libraries rely on the government edicts doctrine to preserve and provide access to the cultural record, including all elements of the law.

Another flawed argument by lawmakers at the Pro Codes markup is that standards incorporated by reference is an unfair “taking” of the SDOs’ copyrights under the Fifth Amendment. As the lawmakers’ argument goes, governments must compensate property owners when they take over private property for public use under eminent domain; similarly, the government should extend copyright to the SDOs in exchange for the use of their standards. But this analogy falls apart because there is no reluctance on the part of the SDOs for the adoption of their standards; in fact, the SDOs actively lobby governments to adopt their standards.

A related argument by supporters of the Pro Codes Act is that the SDOs provide a valuable service, and therefore they deserve a revenue stream in exchange for their contribution to the public good. But copyright law does not grant copyright to reward hard work (Feist Publications v. Rural Telephone Service). Further, the DC Circuit Court found that although Public.Resource.Org has been posting incorporated standards for 15 years, “the plaintiffs have been unable to produce any economic analysis showing that Public Resource’s activity has harmed any relevant market for their standards. To the contrary, ASTM’s sales have increased over that time.” The SDOs can also derive significant revenue from selling training materials and programs. SDOs do not need a copyright incentive; the development of standards advances the economic interests of their members.

Additionally, Rep. Lofgren pointed out that, in 2020, the Supreme Court in Georgia v. Public.Resource.Org found constitutional limits to legislatures’ ability to expand copyright. Chief Justice Roberts stated “no one can own the law” and reaffirmed that if “every citizen is presumed to know the law, … it needs no argument to show … that all should have free access” to its contents. Pro Codes would be unconstitutional under the First, Fifth, and Fourteenth amendments, which guarantee the public’s rights to read, share, and discuss the law.

It is worth noting that several House Judiciary Committee members made nearly identical arguments in favor of the bill, and I assume the standards development organizations circulated talking points in advance of the markup. We know that passing the Pro Codes Act is a major legislative priority for the SDOs.

ARL and our fellow advocates are disappointed that the Pro Codes Act will advance to the House, particularly since the House did not hold a hearing on the bill. We remain grateful to Representative Lofgren, who has defended copyright law against overprotection for decades.

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