Who “Owns” Legally Binding Construction Codes?July 28th, 2015 by Trey Barrineau
The state of Georgia has filed a lawsuit against public-domain activist Carl Malamud for publishing the state’s entire legal code online. It’s the latest legal battle for a man who is currently being sued by organizations that develop construction standards — including those for glazing, doors and windows — that then become part of state building codes.
The Georgia lawsuit, filed last week, claims that making the annotated code available online for free violates copyright law. The annotated code is more comprehensive than the basic code, which carries no copyright restrictions. It includes summaries of cases and legal opinions interpreting the law, and the state claims that each of those is “an original and creative work of authorship that is protected by copyrights owned by the state of Georgia,” according to the Los Angeles Times. The annotated version costs up to $378 to download from Lexis Nexis, according to Engadget.
The lawsuit is nothing new for Malamud’s organization, Public.Resource.org, which buys copies of building standards and legal codes and allegedly reposts them online for free.
Public Resource.org is currently being sued for copyright infringement by the American Society for Testing and Materials (ASTM), the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and the National Fire Protection Association (NFPA). All three develop codes used in the fenestration industry.
In the suit, filed in August 2013, the organizations contend that copyright protection is essential because they spend a lot of money and effort working on codes, according to a report from the Washington Post. Their lawsuit also states that the standards they develop are “necessary for a well-functioning economy and a safe society.”
“The development of standards by private organizations allows for private actors to bear the significant costs of creating standards,” the plaintiffs write in their lawsuit. “Plaintiffs underwrite—either entirely or in substantial part—the costs they incur in creating the standards through the revenues derived from the sales or licensing of their copyright-protected standards.” The organizations also claim in the lawsuit to have “developed policies for providing interested members of the public access to standards known to have been incorporated by reference into statutes and regulations.”
Malamud’s organization, which first published California’s building code online in 2008, claims it’s not fair to make businesses and the public purchase complete access to laws they’re forced to obey.
“Legislatures and administrative agencies have frequently enacted into law, and enforced, construction, fire, and other public safety codes,” Public.Resource.org writes in its answer to the lawsuit. “Public safety codes govern essential aspects of everyday life. They often carry civil or criminal penalties. They are laws.”
A decision in the case is still pending.
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I Agree, laws or standards adopted into a state’s building code, civil or criminal law, should not be created or published by private organizations that subsequently require payments for the right to read and understand such laws and standards. In the case of the Window and Door Industry, it goes further by requiring companies to get certification by those same private organisation that have created the code to begin with!
There are a lot of parallels to this that one can draw, and none are very pleasant.
I agree to the extent that the codes should be free, accessible and available. (I have always been annoyed when told I have to “buy” a copy of a government standard that is code.)
However, the annotated notes are truly the intellectual property of their creators and are not part of the law. The expertise and efforts of the individuals who did the research and wrote the comments can not be considered public domain.