AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
1
COMPLAINT against PUBLIC.RESOURCE.ORG, INC. ( Filing fee $ 400 receipt number 0090-3425373) filed by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC.. (Attachments: #1 Exhibit Exhibit A, #2 Exhibit Exhibit B, #3 Exhibit Exhibit C, #4 Exhibit Exhibit D, #5 Exhibit Exhibit E, #6 Exhibit Exhibit F, #7 Exhibit Exhibit G, #8 Exhibit Exhibit H, #9 Exhibit Exhibit I, #10 A0121 Form, #11 Civil Cover Sheet Civil Cover Sheet, #12 Summons Summons)(Clayton, Michael)
EXHIBIT D
Liberating America's secret, for-pay laws - Boing Boing
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Liberating America's secret, for-pay laws
Carl Malamud at 10:29 pm Mon, Mar 19, 2012
[Editor's note: This morning, I found a an enormous, 30Lb box waiting for me at my post-office box. Affixed
to it was a sticker warning me that by accepting this box into my possession, I was making myself liable for
nearly $11 million in damages. The box was full of paper, and printed on the paper were US laws -- laws that
no one is allowed to publish or distribute without permission. Carl Malamud, Boing Boing's favorite rogue
archivist, is the guy who sent me this glorious box of weird (here are the unboxing pics for your pleasure). I
was expecting it, because he asked me in advance if I minded being one of the 25 entities who'd receive this
law-bomb on deposit. I was only too glad to accept -- on the condition that Carl write us a guest editorial
explaining what this was all about. He was true to his word. -Cory]
BOING BOING OFFICIAL GUEST MEMORANDUM OF LAW
TO:
The Standards People
CC:
The Rest of Us People
FROM:
I.
Carl Malamud, Public.Resource.Org
IN RE:
Our Right to Replicate the Law Without a License
“Code Is Law”—Lessig
Did you know that vital parts of the US law are secret, and you're only allowed to read them if you pay a
standards body thousands of dollars for the right to find out what the law of the land is?
Public.Resource.Org spent $7,414.26 buying privately-produced technical public safety standards that have
been incorporated into U.S. federal law. These public safety standards govern and protect a wide range of
activity, from how bicycle helmets are constructed to how to test for lead in water to the safety
characteristics of hearing aids and protective footwear. We have started copying those 73 standards despite
the fact they are festooned with copyright warnings, shrinkwrap agreements, and other dire warnings. The
reason we are making those copies is because citizens have the right to read and speak the laws that we are
required to obey and which are critical to the public safety.
When Peter Veeck posted the Building Code of Savoy, Texas on the Web, the standards people came after
him with a legal baseball bat. The standards people run private nonprofit organizations that draft model
laws that states then adopt as law, through a mechanism known as incorporation by reference.
Peter thought the people of his town should be able to read the law that governed them. But the standards
people were adamant that the model building codes were their copyright-protected property and that
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nobody could post this information without a license, nobody could copy their property without paying
the tollmaster.
The U.S. Court of Appeals disagreed, saying that there is a “continuous understanding that ‘the law,’
whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus
not amenable to copyright.” Veeck v. Southern Building Code Congress, 293 F.3d 791 (5th Circuit, 2002).
II. “If a Law Isn't Public, It Isn't a Law”—Justice Stephen Breyer
Based on the Veeck decision—and a long line of other court opinions that steadfastly maintain that public
access to the text of the laws that govern us is a fundamental aspect of our democratic system—
Public.Resource.Org has been posting the building, fire, plumbing, and other state public safety codes since
2007. For the last two years, we've taken the public safety codes of California and converted them to HTML.
A group of students in the RDC rural mentoring program have converted the formulas and graphics to SVG
and MATHML, and we put the whole thing into an open code repository.
However, the building, fire, and plumbing codes are just a subset of the technical standards that have
become law. Despite the 2002 Veeck decision, standards incorporated by reference continue to be sold for
big bucks. Big bucks as in $65 for a 2-page standard from the Society of Automotive Engineers, required as
part of the Federal Motor Vehicle Safety Standards in 49 CFR § 571. Big bucks as in $847 for a 48-page 1968
standard from Underwriters' Laboratories required as part of the OSHA workplace safety standards in 29
CFR § 1910.
Public.Resource.Org has a mission of making the law available to all citizens, and these technical standards
are a big black hole in the legal universe. We've taken a gamble and spent $7,414.26 to buy 73 of these
technical public safety standards that are incorporated into the U.S. Code of Federal Regulations. We made
25 print copies of each of these standards and bound each document in a red/white/blue patriotic
CERTIFICATE OF INCORPORATION stating that the documents are legally binding on citizens and residents of
the United States and that “criminal penalties may apply for noncompliance!”
III.
Our $273.7 Million Gamble on Print
Why print copies you may ask? Frankly, because we're scared and wanted to take a cautious and prudent
first step in duplicating these legal documents. With a print edition, we are able to limit distribution with
none of those infinite-copy side effects we know and love about our digital world. Print seemed to be a
medium the standards people and the legal people could relate to.
We know from all the copyright warnings, terms of use, scary shrink wrap agreements, and other red-hot
rhetoric that accompanies theses documents that the producers continue to believe that copies may not be
made under any circumstances. Those of you familiar with copyright math know that statutory damages
for unlawful replication of a document is $150,000 per infraction. So, even though we strongly believe that
the documents are not entitled to copyright protection, and moreover that our limited print run is in any
case definitely fair use, if a judge were to decide that what we did was breaking the law, 25 copies of 73
standards works out to $273,750,000 in potential liability. While whales may make bigger bets, we draw the
line at $273 million.
Those copies were bound up in 27.9-pound boxed sets and dispatched to 3 classes of recipients:
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10 sets were sent to the Standards Development Organizations (SDOs) with a NOTICE OF
INCORPORATION, stating that comments must be received by Public.Resource.Org by May 1, 2012. The
recipients include the American National Standards Institute, American Society of Mechanical
Engineers, American Society for Testing and Materials, British Standards Institute, IEEE,
International Organization for Standardization, National Fire Protection Association, National
Sanitation Foundation, Society of Automotive Engineers, and the Underwriters' Laboratories. 7 sets
were sent to U.S. government offices, including the White House, Senate (Senators Grassley and
Whitehouse), House (Representatives Issa and Lofgren), National Archives, Administrative
Conference of the United States, Federal Trade Commission, and the Copyright Office raising 21
points of law and policy ranging from excessive CEO compensation to cahootenizing in restraint of
trade.The remaining copies have been reserved for public exhibition and legal defense, including
copies furnished to EFF, the Harvard Law School faculty, two copies for the Mainstream Media, and
one to our legal counselor, David Halperin.
Upon the close of the May 1 comment period, it is our intention to begin posting these 73 standards in
HTML and begin the process of providing a unified, easy-to-use interface to all public safety standards in
the Code of Federal Regulations. It is also our intention to continue this effort to include all standards
specifically incorporated by reference in the 50 states. That the law must be available to citizens is a
cardinal principle of law in countries such as India and the United Kingdom, and we will expand our efforts
to include those jurisdictions as well.
IV.
A Poll Tax on Access to Justice
The argument for the status quo is that it costs money to develop these high-quality standards and that it
is the stated public policy of government that these standards shall be developed by the private sector
using a voluntary, consensus-based approach. (Having spent a lot of time with these documents, we can
vouch that many of these standards are very high-quality technical documents. This is important stuff and
groups like ASME and NFPA do a great job.)
All nonprofits need money and SDOs are no exception. But, no matter how you slice the cheese, you can't
do this on the backs of the informed citizenry. Access to the law is a fundamental legal right.
Do these organizations need the revenue from standards sales in order to keep making high-quality
standards? While SDOs have come to rely on this very lucrative monopoly over pieces of the public domain,
a look at their revenue streams and executive compensation levels indicates that perhaps they don't need
quite as much as they're getting. They all have a variety of revenue streams in addition to document sales
ranging from membership fees to conferences to training and directed research (often done with grants,
subsidies, or direct support from government). As 501(c)(3) nonprofits with an explicit goal of making their
standards into law, SDOs have moral and legal obligations to make those standards that have already
become law available to the public and in no case can they prohibit others from doing so.
The scale of these operations is indicated in Table 1, which lists the CEO compensation for ten leading
standards-making nonprofits. (ISO refuses to divulge executive compensation despite their status as a
nongovernmental organization based in Switzerland.)
Table 1: Compensation of Major Nonprofits Involved in Standards Setting
Rank
Name of Nonprofit
Organization
Name of Leader
Year
1. Underwriters' Laboratories
K. Williams
2009 $2,075,984
2. National Sanitation Foundation
Kevin Lawlor
2009
$1,140,012
3. British Standards Institution
Howard Kerr
2010
$1,029,161
James M.
Shannon
2009
$926,174
4.
National Fire Protection
Association
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Amount
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5. American National Standards
Institute
Saranjit Bhatia
2010
$916,107
6. ASTM International
James A. Thomas 2009
$782,047
7. IEEE
James
Prendergast
2009
$422,412
8.
Society of Automotive
Engineers
David L. Schutt
2009
$422,128
9.
American Society of Mechanical
Engineers
Thomas G.
Loughlin
2009
$420,960
Barack Obama
2011
$400,000
10. The United States of America
The status quo assumes that the only way to fund a standards-making process is
to charge lots of money for the end product. But that is a self-serving selfdelusion. The SDOs would actually grow and prosper in an open environment, and they would certainly
carry out their mission more effectively. They might need to change their business models, but hasn't the
Internet made the rest of us change our business models?
V. “Let Every Sluice of Knowledge Be Set A-Flowing”—John Adams
The Internet was built on open standards that are freely available. Many readers may not realize it, but
there were originally two Internets. The one we use is based on TCP/IP and was developed by the IETF and
other groups such as the W3C. But, there was another Internet called Open Systems Interconnection (OSI)
which was being pushed in the 1980s and early 1990s by the International Organization for Standardization
(ISO) and other SDOs. The OSI Internet was based on very expensive standards and it failed miserably. It
was open that won and open that scaled.
It is our contention that the physical standards that we're posting are just as important as Internet
standards. By making things like the National Fuel and Gas Code, the standard for safety in wood and
metal ladders, or the standards for safety and hygiene in water supplies readily available to all without
restriction, we make society better. People can read the standards and learn, they can improve upon them
by making searchable databases or better navigational tools, they can build new kinds of businesses.
Innovation and education are just two of the benefits of opening up this world, but at the root are basic
issues of democracy and justice. We cannot tell citizens to obey laws that are only available for the rich to
read. The current system acts as a poll tax on access to justice, a deliberate rationing and restriction of
information critical to our public safety. That system is morally wrong and it is legally unconstitutional.
VI.
Supporting Materials
In response to a petition drafted by Professor Strauss of Columbia Law School, the Office of the
Federal Register is taking comments from the public as to whether they should provide greater
public access to standards incorporated by reference. You have until March 28 to respond. Please
let them know what you think! The Administrative Conference of the United States recently
considered the issue of Incorporation by Reference, but ended up not taking any significant action.
A particularly strong letter of protest was submitted by EFF. For makers and doers interested in the
craft of public printing, we posted photographs of the construction of these boxes of in our print
factory. A copy of the packing slip that was in the boxes, including the NOTICE OF INCORPORATION,
the shipping manifest, and the 7 letters of transmittal to government officials is available for your
review as a PDF file as is a sample CERTIFICATE OF INCORPORATION.
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