Clinic Works w/Law Scholars to Argue Against Copyright in Legal Codes

This week, the Harvard Law School Cyberlaw Clinic, on behalf of a group of esteemed law scholars, filed an amicus brief (pdf) in the United States District Court for the District of Columbia in American Society for Testing and Materials (ASTM) v. Public.Resource.org. Amici argue in the brief that model codes incorporated into law are not, and should not be, copyrightable. Several standards developing organizations (SDOs) – including ASTM, the National Fire Protection Association (NFPA), and the American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) – filed the lawsuit against Public Resource back in 2013, alleging copyright and trademark infringement. After a lengthy discovery process, the federal District Court in D.C. is currently considering motions for summary judgment from both parties.

SDOs are groups – generally non-profits – that, with the help of experts and volunteers, promulgate model codes and standards to address the needs of particular technical fields. Some of these organizations sell their codes in print and digital formats, often for steep prices.

While compliance with a model code is initially voluntary, compliance becomes mandatory when that code is incorporated into law. Such incorporation means that all citizens of a relevant jurisdiction are obligated to follow the text of the code to the letter.

Defendant Public Resource is a non-profit organization dedicated to making government information accessible to the public. In an effort to advance its stated mission of promoting and protecting, “the right of the public to know and speak the laws that govern it,” Public Resource made the legally binding codes developed by plaintiffs available online.

Amici, writing in support of the defendant, focus on the issue of copyrightability, requesting that the District Court find the model codes at issue are not proper subjects of copyright protection. The brief notes that, historically and pursuant to Supreme Court precedent, the law belongs in the public domain. Public access to the law is critical to ensuring that citizens are aware of the laws to which they are beholden. Such access should not be subject to the whims of a private organization. Additionally, amici argue that copyright’s merger doctrine applies to codes incorporated into law, for “[t]here is only one way to express what the law of a jurisdiction is, and that is the text of the law itself.” As such, legally binding model codes merge with the law, an uncopyrightable fact. This argument garners significant support from the Fifth Circuit’s opinion in Veeck v. Southern Building Code Congress International, in which the court found that legally adopted building codes merged with the “idea embodied in the law.”

The issues in this case are of particular importance because of the range of bad outcomes that could result from a finding that enacted law may be copyrightable. Amici assert that the legislative process involves the perpetual borrowing of ideas from outside experts and interest groups and reformulating and amending existing laws. If each of the parties involved in that process could copyright its contributions to the law, it could inhibit changes to the law by exercising the right to control derivative works, or exercise termination rights as leverage to hold a legislature hostage. Ultimately, amici conclude, “granting SDOs unlimited power to control the terms of use for enacted laws would work an abdication of legislative authority and undermine the public’s interest in reading, discussing, debating, citing and revising the laws by which all are governed.”

Several other amicus briefs filed this week raise similar arguments on behalf of a wide range of constituents. A brief (pdf) filed on behalf of Public Knowledge, Knowledge Ecology International, and the American Library Association argues that binding model codes are not expressive enough to warrant copyright protection. Further, amici emphasize that public access to the laws is a critical part of United States history, government functioning, and fairness. Beyond the right to read the law, access to the law requires the right to distribute in various, user friendly and disability friendly formats.

The Reporters Committee for Freedom of the Press filed another amicus brief (pdf), asserting that a copyright in operable law would put a burden on journalists, who require ready access to government regulations in order to effectively report on important public issues. A copyright in the law would thus inhibit the news media’s ability to check governmental power. Further, by decreasing the effectiveness of journalistic reporting on governmental regulation, the public’s knowledge of potential governmental abuse is diminished. A copyright in the law would thus undermine one of the main purposes of the First Amendment, to ensure an informed public.

Finally, Sina Bahram filed a brief (pdf) arguing that access to the law is critical to maintaining democratic participation and accountability. Bahram is a digital accessibility researcher and chief technology officer and co-founder of International Association of Visually Impaired Technologists. Bahram notes that major gaps in resources can make it difficult for disabled persons, who comprise almost 20 percent of the U.S. population, to participate politically. Assistive technologies, like screen-readers, help to bridge the gap. The brief goes on to assert that plaintiffs, relying on erroneous copyright claims, have restricted access to the law by releasing only limited versions of their incorporated codes that do not permit the use of assistive technologies.

Amici on the law scholars’ brief are prominent law professors in the fields of copyright, cyberlaw, intellectual property, and related fields.  They include David Ardia, Assistant Professor of Law at University of North Carolina School of Law; Stacey Dogan, Professor of Law at Boston University School of Law; Pamela Samuelson, Professor and Co-Director of the Berkeley Center for Law and Technology at UC Berkeley School of Law; Jessica Sibley, Professor of Law at Northeastern University School of Law; Rebecca Tushnet, Professor of Law at Georgetown Law; Jennifer Urban, Clinical Professor and Co-Director of the Berkeley Center for Law & Technology at UC Berkeley School of Law; and Jonathan Zittrain, Professor of Law at Harvard Law School and Faculty Director of the Berkman Center for Internet and Society.

HLS Cyberlaw Clinic students Joseph Posimato, Michael Gocksch, and Miranda Means took the lead on the brief, working closely with Chris Bavitz and Andy Sellars. Attorney Cathy Gellis assisted with the filing.