WASHINGTON (CN) – Does the law belong to the people or to those who write it? The D.C. Circuit wrestled with this question Monday as a nonprofit publisher of technical laws insisted that the First Amendment shields its work from copyright claims.
“As a matter of public policy and long-standing judicial consensus, the law is not copyrightable,” said Electronic Frontier Foundation attorney Corynne McSherry, arguing this morning before a three-judge panel in Washington. “And that applies whether it’s a judicial opinion, a statute, an ordinance, a regulation or – as this circuit tells us – a regulation that’s been incorporated by reference into law.”
McSherry’s client, the nonprofit Public.Resource.org Inc., is lobbying the D.C. Circuit for a reversal after a federal judge found last year that federal copyright law barred it from distributing the safety regulations written by private organizations, and which later get incorporated into federal laws like building codes.
But McSherry argued Monday that such materials are fair use because they serve the public interest.
“I think we have a situation here where we have a prior restraint on my client’s speech,” McSherry said. “And that is of deep concern to us, and I think has a very negative effect on the rest of the world.
Arguing on behalf of the National Fire Protection Association meanwhile, attorney Donald Verrilli said that fair use is no substitute for legislative revision.
“And that’s essentially what’s happening here,” he argued.
A former U.S. solicitor general with the firm Munger Tolles, Verrilli maintained that the requirement to assert a fair-use defense in a copyright case is that the public is barred or restricted from being able to access the regulations his client writes.
“All of the standards at issue here are widely available, and there’s no evidence in the record that anybody has ever had any problem finding any of these standards,” he said.
The National Fire Protection Association brought the underlying challenge with the American Society for Testing and Materials and the American Society of Heating, Refrigerating, and Air-Conditioning Engineers in 2013. They say that federal agencies have for years relied on such private organizations like them to develop standards, some of which the government incorporates into regulations.
In their brief to the D.C. Circuit this past February, the groups argued that they recover their investments in this work by selling their copyrighted works to businesses that use them, like builders, contractors and engineers.
Verrilli urged the D.C. Circuit on Monday to affirm the lower court’s injunction.
He said removing the economic incentive from the private parties that write standards would burden the government, which would have to do that work itself, and would harm the bottom line of the private parties that write the standards.
U.S. Circuit Judge Robert Wilkins pressed Verrilli to explain why teachers can reproduce copyrighted materials to teach students, while organizations like Public.Resource.org can’t do the same to educate a home owner about something like building codes.
Verrilli failed to satisfy the judge, however, with his response that the home owner could go to his clients’ websites to access materials.
“Why shouldn’t he be able to go to the D.C. government website and find the same thing,” Wilkins asked.
Verrilli noted that Congress outlined restrictions for fair-use reproduction for teaching.
“That’s a legislative judgment,” he said. “It’s not the kind of thing that should be accomplished under fair use.”
Public.Resource.org contends that copyrighting laws amounts to putting them behind a pay wall, out of reach to the public that needs them to comply with safety standards.
Accessing the documents on the websites of entities like National Fire Protection Association is hardly straightforward, said Carl Malamud, the president and founder of Public.Resource.org in a phone interview.
He said these nonprofits compel users to furnish their email addresses and other identifying information, and to agree to terms-of-use and an arbitration agreement. There are also no accommodations for the visually impaired, Malamud added.
“If you have the law, you can’t allow a private party to arbitrarily decide who will read the law and under what conditions,” Malamud said in a phone interview.
The average internet user may not deal with criminal law, but Malamud said everyone is concerned about things like playground and toy safety, and the safe transport of hazardous materials.
“I think it’s a fundamental principle of U.S. democracy that the law belongs to the people,” he said.
Without knowing the law, citizens can’t change or obey it, he added.
“What we are experiencing today is the internet, which allows us to make the law more accessible to ordinary citizens. And that’s what we were trying to do,” Malamud said. “And to say we’re not allowed to do that is frankly un-American.”
Attorney Verrilli did not respond to an email seeking comment on the case.
The three-judge panel did not indicate before concluding the hearing Monday when they expect to rule.