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Yesterday—in a unanimous decision of the US Federal Court of Appeals for the DC Circuit (CADC) in ASTM v. Public.Resource.Org—- some of the worst standards paywalls came tumbling down. The court definitively determined that where governmental authorities incorporate private organisation technical standards into law by reference, non-commercial dissemination of those standards “constitutes fair use and cannot support liability for copyright infringement.” Because of its venue and jurisdiction covering all Federal government agencies—the court enjoys perhaps the highest stature among the US Federal appellate courts. In a world of open information systems, the decision effectively has global applicability.
The court’s decision is also a companion—also brought by Public.Resource.Org—to the recent Opinion of Advocate General Medina—which similarly held that harmonised EU regulatory standards not only cannot be protected by copyright for non-commercial dissemination, but also that the imposition of paywall access is a denial of fundamental European human rights.
These judicial actions finally initiate a process of change which has been badly needed for decades. Thirty years ago, the emergence of new, industry-led standards bodies such as the IETF, ETSI, and 3GPP began changing how standards bodies function. Transparency was significantly increased, a broader array of participants was engaged, and the standards themselves significantly improved as they became freely available on websites along with code, with permanent URIs and well-versioned iterations that were subject to greater scrutiny and operational testing. As the standards-making ecosystems expanded to encompass new products, sectors, and participants, most organisations followed this pattern of success.
Some standards bodies, however, tried to maintain heirloom practices of the past by diminishing transparency, erecting ever more costly paywalls, threatening unapproved sharing with copyright infringement notices, and getting regulatory bodies to effectively provide a monopoly regulatory status for their products. Some legacy national standards bodies were even reduced to sales agents. The effect often diminished the value of the standards to “cyber dogfood” that could be marketed at enormous costs, whatever the quality or effectiveness, because the organisations producing them enjoyed exclusive regulatory approval—and standards consumers paid the price.
The new era of open, competitive standards-making may create short-term adjustments to regulatory practices and business models of some organisations, but everyone will benefit from the improved standards development and availability, from enhanced human rights of consumers, and more effective use of the intellectual property contributed by government and industry participants. The world also owes a debt to the indefatigable Carl Malamud a/k/a Public.Resource.Org who over the past thirty years laboured to bring about countless judicial and executive actions and projects worldwide to make the people’s resources available.
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The vestigial paywall standards organisations and their apologists for years have created the myth that their enormous paywalls are essential – even as the costs to actually produce standards have approached near zero. Participants from both industry and government provide the IPR, format the materials, and frequently support the meeting costs. Documents and code are increasingly hosted on GitHub. Meetings have frequently become virtual. Email list and document hosting online is essentially free. Indeed, the real subject matter experts today are often not those going to dedicated organisation meetings, but people whose knowledge and productivity keeps them “at home.”
These fundamental shifts in costs and dynamics have resulted in the dramatic expansion of the standards making ecosystem to include all manner of specialised development groups – which has greatly benefited everyone. The largest and highly influential standards activities today are those hosted by industry product groups that engage enormous numbers of end user directly to evolve the associated standards and code.
When you consider the profound descent in standards production costs, it gets really interesting as the profit margins are near 100 percent. The costs of actually producing standards today have approached zero – which is why so many new forms of SDOs have emerged. Yet the remaining paywall SDOs have continued to ramp up their prices to over 6 Euros per page in some instances. See https://circleid.com/posts/20191113_cyber_security_standards_practices_as_cyber_threats
Where is all that money going from the paywalls? The short answer is propping up the paywalls – payment processing, intense lobbying, gratuitous marketing, paid travel, lawyers to send threatening letters and litigating against Public.Resource.Org, high salaries for staff, plush offices. Ultimately, everyone wins by ending these paywall perversities – especially end users.
Yes, Carl M. deserves a mountain of credit, and more.
This trail began with the publication of building codes by Peter Veeck in the late 1990’s.
There is a follow on issue, which is that some of these technical standards, particularly things like building codes, are expensive to develop. Somehow those costs will need to be covered.
Remember, “fair use” is a defense to a claim of copyright infringement; fair use does not invalidate the underlying copyright. That copyright can be asserted against those who can not use fair use as a defense.
It may be interesting in that this decision appears to expand fair use by extending that defense to non-commercial downstream copying even if that downstream usage may not be as clearly non-commercial and publicly beneficial as the copying done by Public Resources. In other words consider republication in a book that is sold for a price or republication on a website that carries advertising, situations in which the presence of the material may serve as a for-profit attraction. (E.g. Is Google search, which is used as a draw for advertising revenue, going to be able to benefit from this decision?)
Going back to costs - Remember, the purpose of copyright under our Constitution is to promote future creativity by the original author or, importantly, by others. This Constitutional goal may influence how this new decision is used in new situations as authors of things like building codes and technical standards begin to complain that they have lost the incentive to create.
Despite my concerns, Carl has done us a great service. Laws and things incorporated into those laws must be free and readily available to those who are affected by those laws.
As Lessig noted - “Code is law”. So the next stage in this may be to question the copyright status of code that is used by governments.
In my comments above I did not adequately distinguish between the actual text of laws and regulations and things that they incorporate by reference (often things like building codes or technical standards.)
To my mind, in this era of inclusion via link, the rules about fair use ought to extend to every thing that is mandatory, whether primary law/regulation text, or things it incorporates by reference.