Be skeptical. The PCA is intentionally deceptive.

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.

Pro Codes’ main provision requires that:

An original work of authorship otherwise subject to protection under this title that has been adopted or incorporated by reference, in full or in part, into any Federal, State, or municipal law or regulation, shall retain such protection only if the owner of the copyright makes the work available at no monetary cost for viewing by the public in electronic form on a publicly accessible website in a location on the website that is readily accessible to the public.

Sounds good, right? In fact, it sounds obvious: mandatory regulations should be made available online, for free, so people can more easily know, share, and comment on them. Here’s the trick: this language would effectively endorse the claim that SDOs can “retain” copyright in the law, as long as they let the public read it online.

There are many problems with this approach. First and foremost, “access” here means read-only, and subject to licensing limits. We already know what that looks like: currently the SDOs that make their codes available to the public online do so through clunky, disorganized, siloed websites, largely inaccessible to the print-disabled, and subject to onerous contractual terms (like a requirement to give up your personal information). The public can’t copy, print, or even link to specific portions of the codes. In other words, you can look at the law (as long as you aren’t print-disabled and you know what to look for), but you can’t share it, compare it, or comment on it. As multiple amici who filed briefs in support of Public Resource explained, the public needs more.