A New Perspective
by Trey Barrineau
July 27th, 2016

Countdown to a Codes Showdown?

A legal squabble over copyright law and the standards used in state and local building codes is about to move to the next level — and I’m conflicted.

Public-records activist Carl Malamud has been taking on legal challenges for years by posting copies of standards used in building codes online for free. He’s faced multiple lawsuits because of it.

Now, as someone who takes governmental transparency and free access to vital information seriously, part of me is rooting for Carl Malamud.

The man makes a compelling point. If, for example, you’re a contractor, and your job requires you to meet a standard developed by an organization such as ASTM International in order to comply with a state building code, it only seems fair that you shouldn’t have to pay to access the full text of that standard.

But now that I’ve spent time covering this industry and its standard-setting bodies such as AAMA and NFRC, I can definitely sympathize with their side of the argument, too.

These non-profit organizations have invested huge sums of money developing standards that are vital for a safe, well-functioning society. Hiring experts, buying laboratories and test equipment, calibrating the results, codifying the language — these things don’t come cheap, and their value to our nation is incalculable. In fact, it’s hard to imagine how the modern world would function without industrial standards that have been shaped and honed through years of testing in both labs and real-world conditions. The organizations that write these codes should be able to cover their expenses.

So that’s why I’ll pay close attention to Malamud’s latest case. In September, the U.S. District Court for the District of Columbia could render a decision that would have big repercussions for standard-making bodies.

ASTM International, the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and the National Fire Protection Association (NFPA) sued Malamud’s organization, Public Resorce.org, for copyright infringement in August 2013. All three develop codes used in the fenestration industry.

Will this case settle this issue once and for all? I doubt it. In fact, I think the Supreme Court might have to step in eventually to settle this thorny issue.

Stay tuned.

 

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