Expanding copyright for SDOs would crush public access to the law.

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

In the PRO Codes Act, the SDOs offer as a supposed solution to public access their own online “reading rooms” that offer versions of the standards incorporated into law. The bill would purport to preserve an SDO copyright over a standard-made-law so long as the standard was posted in one of these SDO reading rooms.

But, as the D.C. Circuit recognized in its recent opinion, these reading rooms are no substitute for meaningful public access to the law. They are, instead, a grudging response to the efforts by Public Resource and others to make the law available – and a desperate attempt by a special interest group to retain a monopoly over laws.

The SDO “read-only” reading rooms are difficult to use. They require users to register and provide personal information, prevent copying and pasting, don’t provide search functionality, and sometimes require scrolling back and forth in tiny boxes to even read the texts. They also lack basic functionality to allow access for the disabled.

Even the PRO Codes Act’s lead sponsor, Rep. Darrell Issa (R-CA), in 2017 joined Rep. Lofgren in filing an amicus brief supporting Public Resource. That brief detailed the inadequacies of the SDO reading rooms as a substitute for real public access, concluding that the SDO sites “are of little or no use to blind and low vision citizens who use screen readers” and “are incompatible with Internet accessibility tools.” Rep. Issa was certainly entitled to change his opinion on these issues, but he cannot change the facts he previously recounted.

The SDO reading rooms also, fundamentally, are subject to the control of private parties that could shut down or limit access at any time. The facts show that SDOs can’t be trusted to make the law reasonably available to the public. For example:

Giant SDO ASTM once denied a graduate student’s request for permission to use excerpts from a standard in a research paper.

In 2017, the Indiana Supreme Court was unable to obtain a safety code at the heart of a dispute before it because of publisher-imposed limitations on access to the code. The court ultimately found the standard on the Internet Archive—because Public Resource posted it there.

In the wake of the 2010 Deepwater Horizon spill in the Gulf of Mexico, with the oil industry under heavy scrutiny, the American Petroleum Institute eventually posted on its website many of its safety standards, including all of the standards that had been incorporated by reference into federal law. Until that decision by the API, as the Deepwater Horizon poured oil into the Gulf for five months, and in the weeks after, it had been difficult for citizens, and even Members of Congress, to evaluate the adequacy of federal regulations, because key components of those regulations were hidden behind paywalls.

In the regime posited by the PRO Codes Act, if citizens, or advocates, or journalists, or business operators, or lawmakers, or even judges wanted to read, quote, or comment on the law, they would have to register and provide their personal information to a private SDO, hand-copy the words of a standard from a read-only website, and if they quoted too much, they would risk being sued by an SDO for copyright infringement. That’s not the right way to provide public access to our laws.