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Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

On the access side, Congress may consider what kind of public access to IBR standards is appropriate. As discussed above, different courts have reached different conclusions on the copyrightability of IBR standards or the permitted uses of such standards under the fair use doctrine. As a practical matter, many SDOs have made their work freely available to the public in some form, while some public-access groups have sought to facilitate greater public accessibility (e.g., permitting free downloads of IBR standards). The Pro Codes Act would require SDOs to provide a level of online access at no cost to users, but it would appear to allow SDOs to impose some conditions on viewing and to restrict downloading and printing. Congress may consider whether the status quo, the Pro Codes Act, or some other alternative provides sufficient public access to IBR standards.

Corynne McSherry, “Access to Law Should Be Fully Open: Tell Congress Not to Be Fooled by the Pro Codes Act,” Electronic Frontier Foundation, 10-25-2023, https://www.eff.org/es/deeplinks/2023/10/access-law-should-be-fully-open-tell-congress-not-be-fooled-pro-codes-act

Which brings us to the latest threat. Having lost in court, the SDOs are now looking to Congress to shore up their copyright claim, via the Pro Codes Act. It’s a tricky bit of legislation that seems innocuous if you don’t know the context.

Corynne McSherry, “The Pro Codes Act Is a Wolf in Sheep’s Clothing,” Electronic Frontier Foundation, 03-28-2022, https://www.eff.org/deeplinks/2022/03/pro-codes-act-wolf-sheeps-clothing

Finally, there is no need for this bill, because it simply mandates that SDOs do what Public.Resource.Org is already doing. The difference is, under the bill, the SDOs would get a statutory monopoly in return, which they can use to extract royalties from anyone who wants to share the law in a different way. Which many will: currently the SDOs that make their codes available to the public online do so via clunky, disorganized websites, often inaccessible to the print-disabled, subject to onerous contractual terms. Anyone wishing to make the law accessible in a better format would suddenly find themselves either paying a rent to the SDOs or in legal jeopardy.

Aslı Aydıntaşbaş, “Trump Can’t Be Dictator on ‘Day One’ — Or in a Second Term. Here’s Why.,” Politico, 01-28-2024, https://www.politico.com/news/magazine/2024/01/28/a-trump-dictatorship-is-possible-but-not-in-four-years-00137949

Still, four years pass quickly and even in another four years as president, Trump will not gain the organizational capacity, popular mandate, or institutional consensus to build a dictatorship or prolong his tenure past a second term. What I have seen in Turkey, Poland and Hungary suggests there is a turbulent time between the election of an illiberal leader and the establishment of a dictatorship when resistance will flourish. Any attempt at state capture by Trump will face a pushback from media, bureaucracy, major cities and the judiciary.

Gideon Rachman, “America has seen it all – another Trump term won’t destroy it,” Financial Review, 01-09-2024, https://www.afr.com/world/north-america/america-has-seen-it-all-another-trump-term-won-t-destroy-it-20240109-p5ew04

That is why so much rides on my second form of belief in America – the belief that the US will come through in the end. For the past 80 years, America really has been the “leader of the free world” – both an example of democracy in action and as the protector of its fellow democracies, through a network of alliances with other free countries in Europe and Asia.

Gary Fields and Amelia Deveaux, “Yes, we’re divided. But new AP-NORC poll shows Americans still agree on most core American values,” Associated Press, 04-03-2024, https://apnews.com/article/ap-poll-democracy-rights-freedoms-election-b1047da72551e13554a3959487e5181a

Despite the country’s deep political polarization, most Americans share many core beliefs about what it means to be an American, according to a new poll.

Nina Mendelson, “Public Access to the Law Must Be Taken More Seriously,” The Regulatory Review, 01-28-2015, https://www.theregreview.org/2015/01/28/mendelson-public-access/

In an earlier The Regulatory Review essay, I wrote that not only do regulated entities need to know the law with which they must comply, but the public needs to know the law to make informed decisions about where to live, what medical treatments to choose, and whether to buy particular products. Perhaps most importantly, the public must also be able to hold government accountable for making regulatory decisions in a reasoned and democratically responsive manner. Requiring a significant payment or travel to read these standards stands in tension with constitutional values of fair notice and the public’s ability to debate government policy.

Bruce Sterling, “Secret laws and copyrighted technical standards,” Wired, 02-24-2013, https://www.wired.com/2013/02/secret-laws-and-copyrighted-technical-standards/

"The public has a right to meaningful access to the laws that govern their lives," said Carl Malamud, the president and founder of Public Resource. "Technical standards like the ones in this document have the force of law, and people need to know them in order to comply with regulatory obligations, keep the public safe, and avoid costly penalties. The right of citizens to read and speak the law is fundamental to an informed citizenry in the United States and throughout the world. Ignorance of the law is no excuse, which means we have to be able to read the law."

Catherine Shu, “Can the law be copyrighted?,” TechCrunch, 04-09-2019, https://techcrunch.com/2019/04/09/can-the-law-be-copyrighted/

“I think citizens being able to freely access and discuss laws is critical to democracy and to hold the government accountable,” says Garrett Reynolds. “If one private entity controls access to the law and they get to decide who can access it when and how, it might be appropriate in a dictatorship, but not in a democracy. The people are the owners of the law.”

Meredith Rose, “Cases Shed Light on Copyright Protection of Standards Developers,” US Glass, 01-26-2016, https://www.usglassmag.com/cases-shed-light-on-copyright-protection-of-standards-developers/

Malamud’s organization, which first published California’s building code online in 2008, claims it is unfair 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 wrote 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.”

Opposition Letter, “Re: Opposition to S. 835, the ‘‘Protecting and Enhancing Public Access to Codes Act’’ (Pro Codes Act),” 02-07-2024, https://cdt.org/wp-content/uploads/2024/02/Letter-Opposing-Pro-Codes-Act.pdf

Under this bill, standards development organizations would retain their copyright in a standard that is incorporated by reference into law, so long as the standard is made “publicly accessible” online. However, SDOs often require users to provide their personal information to access the standards, raising privacy concerns. Pro Codes would also entrench some of the most obstructive current practices of standards development organizations, providing read-only access to the codes and limiting their use through restrictive licenses that prohibit copying, printing, and linking. When standards are made available in this way, they are often inaccessible to people with print disabilities; the public is restricted in how they can use and share to the standards; and they must sacrifice their personal privacy for the privilege.

Robert Ambrogi, “This Week In Legal Tech: Showdown At The ABA Over Free Law And Free Sex,” Above the Law, 07-25-2016, https://abovethelaw.com/2016/07/this-week-in-legal-tech-showdown-at-the-aba-over-free-law-and-free-sex/?rf=1

Ignorance of the law excuses no one. So says the long-established legal principle. Is it fair, then, that citizens should have to pay for the law they are obliged to know, as much as $10,000 in some cases?

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

Opponents of the Pro Codes Act, including public-access groups like PRO and internet-freedom groups like the Electronic Frontier Foundation, argue that no one should control who can read and distribute the law, including IBR standards.138 They maintain that SDOs “have charged high fees and imposed other restrictions” to access their standards in the past. 139 They also object to the Pro Codes Act’s “limited” public-access requirement, which could require users to submit personal information to view IBR standards, and deny them the ability to print and download standards.140 Under the Pro Codes Act, SDOs may choose to make only an “economy-class version” of the IBR standards available for free, 141 alongside paid versions with more functionality.

Corynne McSherry, “The Pro Codes Act Is a Wolf in Sheep’s Clothing,” Electronic Frontier Foundation, 03-28-2022, https://www.eff.org/deeplinks/2022/03/pro-codes-act-wolf-sheeps-clothing

The Pro Codes Act would effectively, and sneakily, bless the SDOs’ copyright theory by suggesting that they can indeed “retain” copyright in codes, even after they are made law, as long as they make the codes available through a “publicly accessible” website.

David Halperin, “Congress Should Reject Bill To Let Private Groups Control Access To U.S. Laws,” Republic Report, https://www.republicreport.org/2024/congress-should-reject-bill-to-let-private-groups-control-access-to-u-s-laws/

The SDO “reading rooms” deny necessary public access to the law

Jeffrey A. Rosen, “Report to the House of Delegates,” American Bar Association, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/ebook-of-resolutions-with-reports/2016_hod_annual_meeting_electronic_report_book1.pdf#page=403

It should be noted that the public needs access to IBR material in proposed regulations no less than in adopted regulations. As well-established principles governing the rulemaking process require, an agency's notice of a proposed rule must be published in the Federal Register with the detail needed to facilitate a meaningful opportunity to comment. 35 These procedural requirements, which serve to maintain the legitimacy of agency rulemaking, require that "interested persons" be able to participate in rulemaking by submitting "data, views, or arguments" -public comments - to the agency.36 Yet an "interested person" cannot meaningfully exercise his or her right to comment without access to the substance of the standard on which comment is to be filed. 37 Requiring an "interested person" to pay a fee to learn the content of a proposed rule is a genuine obstacle impeding that person's right to comment under the Administrative Procedure Act.

Nina Mendelson, “Public Access to the Law Must Be Taken More Seriously,” The Regulatory Review, 01-28-2015, https://www.theregreview.org/2015/01/28/mendelson-public-access/

Bremer’s assessment of PHMSA’s predicament emphasizes that the agency lacked the technical expertise to replace or evaluate the details of this “technically sophisticated and highly complex” standard. This is deeply troubling for a different reason than the one Bremer suggests. In this sort of public-private partnership, we count on agencies to act on the public’s behalf. If an agency lacks the relevant expertise to assess a particular privately-drafted rule, including whether it meets the statutory standards Congress has asked the agency to implement, the need for public accountability – and, thus, meaningful public access to the law’s text – is even more compelling.

David Halperin, “Congress Should Reject Bill To Let Private Groups Control Access To U.S. Laws,” Republic Report, https://www.republicreport.org/2024/congress-should-reject-bill-to-let-private-groups-control-access-to-u-s-laws/

There is a better way forward

We cannot “make America great again” unless America is secure both at home and in its global position. But what does this have to do with democracy? During the first decade after the 1991 fall of the Soviet Union, President George H. W. Bush’s goal of “a Europe whole and free” and a wider world largely at peace seemed within reach. The deadly threats of the Cold War were gone, and the democratic revolutions that appeared to be sweeping through eastern Europe and elsewhere created optimism as to the continuing progress of a liberal international order. Now, two and a half decades later, that promising trend is being reversed. The authoritarian resurgence in Europe and elsewhere over the past decade has shaken our confidence that liberal democracy, free markets and peaceful borders will continue to dominate the post–Cold War international order. From our being the “sole superpower” in the 1990s, U.S. global influence and effective power are now challenged by China and Russia, the weakening of the European Union and the sharp domestic divisions revealed by the U.S. presidential campaign. The United States and Europe are threatened by radical terrorists, challenged by territorially expansionist autocracies, and targeted by covert action, massive disinformation and propaganda offensives. Russia and China, the world’s two principal autocratic powers, lead the way in consolidating their model domestically, but also in advocating internationally for an alternative authoritarian model based on strident nationalism, autocratic leadership, and repression of human rights and the rule of law. Russia, through its covert intervention in the U.S. election, military actions in Ukraine and support of right-wing populist forces in Europe, is working to undermine the system of liberal institutions, laws and behavioral norms that have bound Europe and the United States. Sadly, this alternative model is gaining ground in Europe and elsewhere. The list includes formerly promising new democracies such as Hungary, Turkey, Thailand, the Philippines—and now even Poland. What is the connection between America’s security and the state of democracy in the world? Democratic countries rarely, if ever, go to war with each other or prey on their neighbors. Democratic systems and free markets support each other and sustain individual and group freedoms. Also, the rule of law, which subsumes all, is best guaranteed by democratic systems. Protection of the democratic order, now under challenge, must therefore be one of the priorities weighed in our strategic decisionmaking analysis and policy process. And democracy promotion via a revised, realistic and targeted approach must remain a fundamental national-security objective for the United States and its allies. At a recent conference at the Woodrow Wilson International Center for Scholars in Washington, DC on this subject, eleven experts of varying political and operational perspectives all concluded that the national-security interests of the United States and its allies not only permit, but require, America to support democracy abroad. Not to do so would ignore an existential threat to democracies, and to the international order that has allowed the United States to remain secure and prosper. The new administration will need a democracy-promotion strategy. We suggest a triage approach, which will concentrate on three categories of countries where external support is most likely to succeed. Excluded from these efforts will be countries like Russia and Uzbekistan, where the effort would be futile and/or discredit democracy promotion by validating regime propaganda that equates these programs with aggressive intrusion into domestic affairs. The most promising cases are found in countries where autocratic regimes have recently fallen or have agreed to a negotiated transition (e.g., Tunisia, Ukraine, Myanmar and Indonesia) or where semi-autocratic governments are visibly weak and opposed by broad-based indigenous movements (Venezuela). The second group is made up of countries undergoing democratic regression resulting from the aggressive nature and partial success of the authoritarian counteroffensive. Existing democracies such as Poland and Hungary must be helped from falling backwards. Emerging democracies such as Ukraine, Moldova and Georgia need assistance in fending off foreign attempts to subvert them. The third group is comprised of nondemocratic countries that fall in between regimes transitioning to democracy and consolidated dictatorships. This category includes autocratic countries such as Armenia, Thailand and Belarus, where the regimes have retained some democratic trappings such as controlled elections to maintain a degree of popular legitimacy. These openings may be used to lay the groundwork for democratic transition through carefully calibrated democracy promotion programs. Understandably, much of the focus of the new U.S. administration will be on countering terrorist threats and dampening the appeal of radical ideology to susceptible young people. Yet, we must pay attention to prospects for democratic transition and meet the authoritarian counteroffensive. At the same time, Americans must reaffirm their own democratic commitments and standards as they manage their economic divisions and challenges. If democracy is to continue to flourish, nothing is more important than being true to American values and principles and protecting them globally.

Jill Patton, citing Diamond and other scholars, An Existential Moment for Democracy? As American leadership falters, scholars say, autocrats are on the rise., December 2019, https://stanfordmag.org/contents/an-existential-moment-for-democracy

Don’t get too comfortable, warns Stanford political scientist Larry Diamond, ’73, MA ’78, PhD ’80. In his new book, Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency, Diamond describes how liberty is under assault in the United States and abroad, following more than a decade in which democracies globally have weakened or failed. And he asserts that without dramatic and immediate efforts to arrest the trend, democracy as a system of government is in peril.