Who Owns the Law? The Pro Codes Act’s Copyright Conundrum; The Federalist Society, July 26, 2024

Jill Jacobson , The Federalist Society;  Who Owns the Law? The Pro Codes Act’s Copyright Conundrum

"Voluntary consensus standards have become an essential but unseen part of everyday life. From ensuring your apartment building’s elevator is safe to enabling your router to get online, privately developed standards greatly impact modern life. A bill quietly percolating in Congress may impact this typically quiet intersection of law, policy, and regulation. The Protecting and Enhancing Public Access to Codes Act (“Pro Codes Act” (H.R. 1631)) permits standards development organizations (SDOs) to retain copyright protection when their standards are incorporated by reference into law, so long as they make a free version of the code available online. I take no position on this legislation and acknowledge the thoughtful arguments on both sides of this debate. I instead write to highlight how this below-the-radar legislation raises interesting and unintended intellectual property and takings issues with potentially far-reaching consequences.

The key players here are SDOs—typically private groups of industry experts who draft technical standards. Given the expertise that goes into drafting these standards, local, state, and federal governments often incorporate them into regulations by reference. Often, SDOs do not write standards for government use; many standards are authored for private sector guidance. Many SDOs derive significant revenues from licensing or selling copies of the standards. For example, many standards are only available for private viewing behind paywalls. However, government agencies may incorporate these same standards into regulations without the SDOs’ knowledge or consent. This creates tension between SDOs’ understandable wish to be compensated for the fruits of their labor and the regulated public’s need for open access to these standards.

SDOs also face uncertainty about whether the government edicts doctrine—which denies copyright protection to works created by government officials—extends to private entities’ work when it is incorporated into government regulations. At least some cases suggest it may. As the D.C. Circuit stated in American Society for Testing and Materials v. Public.Resource.Org, legal text “falls plainly outside the realm of copyright protection.”

On the surface, the Pro Codes Act aims to strike a fair balance between competing concerns over fair compensation and public access."

California Bill Is a Win for Access to Scientific Research; Electronic Frontier Foundation (EFF), August 30, 2018

Elliot Harmon, Electronic Frontier Foundation (EFF); California Bill Is a Win for Access to Scientific Research

"In Passing A.B. 2192, California Leads the Country in Open Access

The California legislature just scored a huge win in the fight for open access to scientific research.

Now it’s up to Governor Jerry Brown to sign it. Under A.B. 2192—which passed both houses unanimously—all peer-reviewed, scientific research funded by the state of California would be made available to the public no later than one year after publication. There’s a similar law on the books in California right now, but it only applies to research funded by the Department of Public Health, and it’s set to expire in 2020. A.B. 2192 would extend it indefinitely and expand it to cover research funded by any state agency...

Finally, it’s time for Congress to pass a federal open access bill. Despite having strong support in both parties, the Fair Access to Science and Technology Research Act (FASTR, S. 1701, H.R. 3427) has been stuck in Congressional gridlock for five years. Take a moment to celebrate the passage of A.B. 2192 by writing your members of Congress and urging them to pass FASTR."

Librarians apply scrutiny to Google Books at Berkeley con; ZDNet Government, 8/27/09

Richard Koman via ZDNet Government; Librarians apply scrutiny to Google Books at Berkeley con:

"If you’re in the Bay Area and you want a full day of wonky debate, check out UC Berkeley’s Google Books Conference. It features panels on how the Google Books settlement affect data mining, privacy, information quality and public access.

The conference comes hard on the heels of the formation of the Open Book Alliance, an organization driven by the Internet Archive and including Amazon, Yahoo and Microsoft, as well as library and small publishing groups among its members. Most of the speakers are opposed to the deal but Google’s Tom [sic] Clancy will be there to make the company’s argument....

But if Google is the last library, as Berkeley linguist Geoff Nunberg says, it’s a pretty bad one. That means serious library science must be applied to the online collection before we should outsource the history of human (or at least Western) knowledge to Google:

Google Book Search is almost laughably unusable for serious research, UC Berkeley’s Nunberg said. For example, he pointed out that the Charles Dickens classic “A Tale of Two Cities” is listed in Google Book Search as having been published in 1800; Dickens was born in 1812."

http://government.zdnet.com/?p=5309

Op-Ed: Is Google playing by the book?; Christian Science Monitor, 8/7/09

Op-Ed: Christian Science Monitor; Is Google playing by the book?:

The search giant is on its way to becoming the world's digital library, but a private monopoly raises questions.:

"The idea of digitizing the world's written record and making it freely available to everyone is exhilarating. The ability of a student in Alabama or Albania to have access to the contents of the world's libraries online at their fingertips, for example, is a powerful concept and just one of the ways a free and open Web can lift humanity.

But history shows that when a company – even one with talent and good intentions – acts like a monopoly, it is subject to abuses. Despite the potentially monumental effects of this settlement, it has had little public scrutiny. Yet it needs a rigorous examination.

If it stands, the agreement must include long-term safeguards that allow public access to the full collection at reasonable cost, maintain the rights of copyright holders, and ensure the necessary privacy of those who use the service."

http://www.csmonitor.com/2009/0807/p08s01-comv.html

At Panel on Google Book Settlement, Support, Criticism, Contentiousness, Library Journal, 1/29/09

Via Library Journal: At Panel on Google Book Settlement, Support, Criticism, Contentiousness:

• "Pricing issues unresolved
• Is public library access “product placement”?
• Will city managers think Google is a library?
  
  In a lively, sometimes contentious discussion Saturday at the American Library Association (ALA) Midwinter Meeting in Denver, Dan Clancy, engineering director for the Google Book Search Project, diligently explicated the proposed settlement with publishers and authors over books scanned from libraries, but was unable to answer some pressing questions from librarians, noting that the settlement itself remains unresolved."

http://www.libraryjournal.com/article/CA6633319.html

Google book search deal is good news for copyright law, London Times, 11/19/08

Via London Times: Google book search deal is good news for copyright law, The search giant's settlement with publishers could be a game-changing legal event, says the MP for Intellectual Property:

"Many US libraries are intending to make out of print material available to Google on this basis. The impact on access to such works in the US is likely to be significant, enabling consumers to access works they previously would have struggled to find.

The effect of this agreement will in the most part be limited to the US. And yet the announcement is of interest to users of the copyright system worldwide. Why? Because this is an agreement that, if it works as it should, will strike a middle ground between the need for public access to works and the right of authors and publishers to control and be paid for the use of their creations.

The result, if it works, will be an evolution in the way copyright licensing for printed works is administered and a revolution in the freedom of access to harder-to-find works — all within a system that will remunerate rights holders fairly and give them control over the use of their works. "

http://business.timesonline.co.uk/tol/business/law/article5187385.ece