The Washington PostDemocracy Dies in Darkness

Should legal codes be copyrighted? Let’s sue to find out!

Knowing how to build this will cost you. (Tom Jackman/The Washington Post)

Whenever you build a building, most states require you to obey thick books full of standards for all the specs that make it safe and sturdy. Those standards are developed by professional societies and trade associations, like ASTM International, whose members are contractors and equipment manufacturers and other technical experts. State and local governments then incorporate them into building codes, which have the force of law. But the standards aren't usually replicated in full — you have to buy them from the standards development organizations, which derive most of their operating revenue from sales.

Wait a second: Why should you have to pay to read the laws you have to obey? Usually, they're not copyrightable. For a couple years now, open government activist Carl Malamud has been posting building codes on his Web site, deliberately undermining that revenue stream. In the spring, the Sheet Metal and Air Conditioning Contractors National Association got fed up, and asked him to stop. With the help of the Electronic Frontier Foundation, Malamud sued for relief, and a few months later got a judgment in which SMACNA basically agreed to let him post a few of their older standards online.

Well, the battle just kicked up a notch. Not satisfied with that half-measure, three of the country's biggest standards development organizations — ASTM International, the air quality group ASHRAE and the National Fire Protection Association — sued in U.S. District Court for the District of Columbia for copyright infringement. How the case proceeds could have far-reaching implications for the viability of institutions that write the rules, as well as the rights the public has to read them.

The 51-page complaint is interesting reading, going through the history of the public standards movement over the past century. It's not just building codes — there are also standards for protective clothing, manufacturing, chemical ingredients, you name it. It's truly a story of international progress on safety and health, and has been encouraged by governments as an efficient way to channel the knowledge of industry into detailed laws that bureaucrats wouldn't know how to write. And it takes a long time: Most of ASTM's standards are on a five-year development timeline, requiring the participation of hundreds of subject-matter experts. The standards development organizations contend that they wouldn't be able to do all that work without maintaining an exclusive copyright on the end product.

The cost isn't prohibitive; price tags on digital and printed standards usually fall between $25 and $125. And all three plaintiffs have made copies of their standards available free online in read-only format.  But Malamud argues that's not enough: Independent developers should be able to make even more user-friendly editions of the standards, and they should be totally free. Besides, he told me during the SMACNA proceedings, many other industries have found different ways of making money in the Internet age. Why shouldn't the one that writes rules?

There are various pieces of administrative precedent and case law in different courts that support either side. Essentially, though, it's a question of principle vs. practicality: Code is law, Malamud says, and it's owned by the public. But good code is also expensive, the standards development groups maintain, and charging for copies is the least bad way to pay for it. The complaint reads:

Depriving Plaintiffs and other SDOs of this important, independent source of revenue would substantially diminish the quality of future standards, including those in the health and safety areas which are most suitable for use by government entities. To the extent that Plaintiffs were able to continue their standards development activities without copyright revenues, they could be forced to rely on funding from interested parties, or to charge fees to participate in the process of developing the standards, which would inhibit the participation of small businesses, consumers, academics, and other important stakeholders in the standards development process.

Most copyright disputes involve some question of whether creators should be compensated for their work, thereby fostering more of it. But this one is unusual in running up against the fundamental right to ownership of the laws you have to obey. The court will have a tricky job in balancing the two.