Can the Law Be Copyrighted?

I had no idea code bodies have been doing this... incredible. Requiring private individuals to pay a private entity for access to the law under which they are bound is unconscionable, to say the least.

The ICC v. UpCodes lawsuit is clearly one important front in this battle. Another potential route to ending this would be for a licensed contractor to sue the government for failing to make freely available the building codes under which he/she is legally bound. The legal argument (and thus the government's legal duty) would be crystal clear in a case like that, especially because both civil and criminal law requires such adherence.

I'm glad these guys are working on the problem but I'm sorry this article makes it seem like these guys suddenly discovered this problem.

Jim Warren is the reason all of the California code was opened up and put online in the 1990s.

Carl Malamud has been working on this for decades, and among other things is the reason SEC filings are all online. He's been working hard on building codes for many years too. His nonprofit is Public.Resource.Org

Another nonprofit, free.law, has several programs to free up other legal resources needed to understand the law.

So according to my reading - the ICC is an organization that makes building codes. Then they lobby state and federal governments to adopt them into law. Then they make their money by charging people for access to those codes. Talk about twisted incentives. No wonder building codes are becoming complex faster and faster.

Either the law forcing you to follow it no longer can force such a thing, or the thing it is forcing you to follow is free to examine and understand. Forced ignorance of the law sounds like an excuse to me.

If "codes" can be held in secret by corporations until you pay them, could any law be a such? Could the rules of the road be shifted from the law books to secret laws too?

Secret laws trouble me greatly. They go fundamentally against the rule of law.

I've run directly into this with regards to the National Electrical Code. As an engineer doing your own home wiring is dead simple, but does require reading the specific practices if you want your work to be "to code", which is a generally good idea for liability reasons and your own safety. Public.resource.org used to have the NEC up, but took it down I think out of prudence/capitulation rather than a hard legal judgment. It's of course still easily available through torrents.

The only sensible model is that in order for a state (or other AHJ) to incorporate a code into law, then it must license it for the purpose of doing so. States would then directly pay code bodies for writing the codes, and could weigh for themselves whether it really makes sense to pay for revisions every 3 years.

Of course the code bodies don't actually want to just do this. What they want to do is the classic rent seeking model of installing their hook into government "for free", and then extracting a toll on each individual user in the form of official code books, prep manuals, etc. But this is directly incompatible with the rule of law, as the case law has been casually demonstrating.

(PS if you want an example of how much sway trade guilds still hold over local governments, check out Ernst Meyer vs Town of Nantucket. It's not about code per se, but about the general right to work on one's own home)

In California, all the codes have an open-access version online (https://www.dgs.ca.gov/BSC/Codes). On the state website, some codes are more user-friendly than others; for example, the ICC Building Code has PDFs of each chapter that prohibit copying and printing, whereas the IAPMO Uniform Plumbing Code is a javascript app that allows you to flip between inaccessible images but not select or copy. Archive.org also has scans of the PDFs (https://archive.org/search.php?query=subject%3A%22bsc.ca.gov...) (from Public.Resource.Org, described by other comments here), which allows saving. Up.codes is much more user-friendly than either (https://up.codes/codes/california), since it allows you to search for a word and link to a specific code section and is mobile-friendly. I am very thankful that up.codes exists and has been expanding rapidly.

I am curious how far the open access decisions will reach. The building standards are incorporated into the law with amendments, so the state collaborates with the standards bodies to publish them. But these codes also reference many other standards published by ASTM, ASME, NSF, etc. by reference only (e.g. the pipe geometries, thread widths, manufacturing and testing methods). Do open access decisions cover these standards bodies’ publications too? I wish they did.

Copyright doesnt always mean no-one else has rights to it.

The idea of copyrighting a publication of legal statutes or codes could have some good, but the idea of obstructing the publics access to regulations, laws, or codes, and then somwhere down the line this problem goes away in exchange for money, is absolute despotic kruft.

so finacially challenged people have impaired opportunity to understand the law, its already an issue when there are mainly online disseminations of statues, and no physical text in easy reach. The technically challenged people have no access to the text of law in digital form, furthermore there is an issue with privacy that could come about. No-one should have to Pay, login, sign up or give PII in exchange for access to text of legal statutes, something that is public property and derived from public monies remitted to an elected government acting within its bounds of authority.

UpCodes cofounder here, glad to see people care about this! Happy to answer any questions.

Under Catholic social teaching (not that it matters here in particular, but using it as an example of a system of thought that's been around for a while), a law that has not been promulgated (i.e., been made generally available) cannot hold the weight of law.

Generalizing a bit, it's fascinating that it's possible to break the law without being able to afford knowing the law.

You guys are definitely doing something that is innovative and a win for everyone (except ICC). Best of luck on the lawsuit!

The State of Oregon tried to claim copyright on state law:

https://www.washingtontimes.com/news/2008/apr/19/oregon-clai...

but they decided "not to enforce any" after word got out:

https://lawblog.justia.com/2008/06/19/oregon-decides-not-to-...

If I can't freely access building codes when/where I want them, then I shouldn't have to comply to them. If you cannot know the law, you shouldn't be required to comply with it.

This reminds me of another story which came out today: Congress Is About to Ban the Government From Offering Free Online Tax Filing. [1] This is a privatization of the government.

https://www.propublica.org/article/congress-is-about-to-ban-...

I commented on this down thread but decided it deserved to top level post: when Carl Malamud tried to publish the Georgia civil code he was accused of terrorism: https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St...

Who on earth is trying to make any kind of argument that laws constitute creative expression? From the laws I've read, they seem to embody a perfect example of the polar opposite of creative expression.

If the law be copyrighted, I can violate the law without getting the chance of knowing it since it's copyright protected. In that situation, I won't be responsible for the violation since the law is effectively secret to the public.

> "Now ICC has made its codes available online for free. All you need is a phone in your hand or internet access to know what the codes say,” says Fee.

> Its codes

But they aren't the ICCs codes, they are laws. If they were non-legal industry standards a builder agreed to uphold as part of guild membership, then sure, they're ICCs property. But they're not.

Is a lawyer allowed to copy-paste or take screenshots "ICC laws" for use as evidence? One doesn't need private party permission to cite other sections of the law, and it's a damn slippery slope to start treating sections of the law differently.

The ICC seems like a racket.

>Its model codes and standards are developed by committees made up of volunteers from its membership and ICC staff. The ICC lobbies for the code to be enacted into law, and earns revenue by selling code books and running accreditation programs.

They are the ones that come up with rules to follow, then they lobby the government to make the rules into law, and then sell access to the rules/law. How is this not a racket?

Not only that - aren't they also a monopoly that is abusing their monopoly position?

And on the other end of the spectrum the EU has just decided to publish all its documents in CC-BY to avoid any such rights nightmare ..

There are two cases dealing with a directly analogous issues about to come up for argument in front of the Supreme Court of Canada.

The AG of Canada has taken the position that they're immune to copyright and can do whatever they want. By contrast, some amicus filings indicate they want these types of documentation to fall within the public domain.

It'll be interesting to see what solution is adopted, but I believe that there's a more intellectually-consistent, scaleable solution which is not in front of the courts that addresses the issues directly and with minimal fall-out to other stakeholders. Unfortunately, I only caught the ear of a few of the counsel after their filings were already done, so I don't think the proper solution will even be in front of the court.

That said, there's plenty of hope, and I'm glad the issue is in front of the courts. I do, however, find it strange that UpCodes settled while the founders were named directly but not included in the settlement.

In fact an average citizen or a resident of a particular country usually doesn't know even 1% of its laws and can't get the laws to read for free - you have to either buy books or a DRM-ed database, all these are copyrighted. I actually find this ridiculous, if a state wants people to comply to its laws it should make all these laws easily available to everybody for free.

Another possibility is for the states to publish the codes on their web sites, then the state would pay the copyright holder (out of their state budgets) for each person that accesses the code. Full copyright would still be in force, and per copy royalties would still be sent to the rights holder, yet free access is still available to those who the law applies to.

Not only is it covered under copyright, the vast majority of ours is the intellectual property of UNIDROIT and it's merely licensed to member countries. Our legislators merely approve with the weight of authority, or disapprove, on behalf of their constituents. See Uniform Commercial Code et al.

The article suffers from misuse of the term "the law", which throws the wrong focus on things.

In common law countries, copyright developed in England, which has always had a concept of Crown copyright.[1]

Legislation has always been subject to Crown copyright. So the answer to the article's heading is "yes, as has always been the case".

However, the real problem is different: legislation often gives binding force to things not produced by the legislature. This includes texts of international treaties (in common law countries other than the US, legislation is needed to give them municipal effect), and sometimes even laws of other jurisdictions (eg many Australian legislative regimes are based on the laws of one State being "picked up" and applied as if they had been enacted by another State).[2]

The particular problem is when legal force is given to a document that is produced by private parties. That document isn't a "law" in the usual sense, but legal obligations (and rights) can be imposed/created by actual laws by reference to its contents. eg: you must build to a standard, which is defined as a document produced by standards body X, and suffer a penalty or have your building liable to be demolished if you don't.

The problem addressed in the article is when those non-laws are given legal effect by actual laws. It should be the case that a citizen can find the entire contents of laws that bind them. There are areas of discourse in jurisprudence about it being fundamentally unfair if there are "secret" laws that a person may contravene but cannot know about to avoid contravening. The present topic comes close - the person has to pay to know the full extent of the law that binds them.

This is a policy issue, not a copyright one. Private documents like this will be subject to copyright because they are literary works.[3] The question is how to avoid the moral unfairness in one having to pay to know what one is required to do. Many solutions exist, eg compulsory licensing, a payment by the government in exchange for a creative commons style licence, etc.

The counter argument is that it takes expertise, time and money to create and maintain these standards, and if standards don't cover things to do with everyday life (eg obligations for driving, laws about what you can and can't do on the street) but are restricted to things like building or industrial activities (eg earthing requirements for high voltage installations), then these aren't standards that can be contravened by chance, but only apply if you undertake project X. So if someone wants to do project X and needs to comply with a paid standard to do project X, then doing so is a cost of doing project X.

TFA discusses this issue: building codes are relevant if you want to undertake building work. Should there be an extra cost of doing so, noting that you will already incur application/permit costs, inspection costs, etc in addition to the materials and labour?

We have exactly this issue in Australia: things often have to be done according to Australian Standards (which now often also double as New Zealand standards), but these are supplied by a private company that produces and charges for them. eg if you want to buy the standard AS 1926.1-2012 - Swimming pool safety-Safety barriers for swimming pools, a hard copy is A$152.66 and a soft copy is A$137.39.

So the question is - if someone wants to put in a swimming pool, is it wrong that they have to pay and extra amount to get a copy of the standards that they must build to?

1. https://en.wikipedia.org/wiki/Crown_copyright 2. This is a dark art, and has all sorts of conceptual and practical problems, but it is done. 3. I leave aside the massive expansion in what is protected under copyright, another policy question but one that content creators have decisively won.

In Australia, the answer is clear. The regulations and standards used by the law ARE PRIVATE.

It costs several hundred dollars to get a standard. The profit margins are similar to Reed Elsevier.

It sounds like UpCodes is making the argument that access to the building codes shouldn't be restricted so that they can build a business selling access to it. Yes, they will have a free version, but their idea is that people will pay them instead of ICC.