PCA unpopular with politicians and organizations

More than a decade ago, the non-profit group Public.Resource.Org sought to remedy this serious flaw in our system. Public Resource started buying standards that were incorporated by reference into law and then posting the standards online, in order to share the law with the public without charge.

Public.Resource.Org (sometimes abbreviated to PRO, seemingly reflected in the name “PRO Codes Act”) is headed by Carl Malamud; I have advised Public Resource, and helped represent the organization in court, since 2012.

The SDOs sued Public Resource for copyright infringement in 2013. But last year, after a long legal battle, the SDOs lost. Or, as Malamud succinctly tweeted, “I bought the law, and the law won.”

Now, having been denied what they demanded from the courts, the SDOs have come to Congress with an effort apparently aimed at deterring others from freely communicating the texts of our laws.

Senator Ron Wyden (D-OR) earlier this year blocked an effort to rush the PRO Codes Act through the Senate without a hearing or even a markup, via a unanimous consent procedure. In blocking the bill, Wyden issued a statement warning that the proposed measure “would hinder, rather than enhance, the public’s access to technical or voluntary consensus standards that have been incorporated into law by reference.” Wyden said the bill “raises concerns of privacy and fairness” and “risks creating barriers to access for many Americans, including researchers and reporters, those without reliable internet service, and individuals with visual impairments.”

More than 20 organizations — including the American Council of the Blind, American Library Association, Association of Research Libraries, Electronic Frontier Foundation, Public Citizen, and Wikimedia Foundation — sent a letter to senators in February urging them to reject the Pro Codes Act. The letter argued that the bill “will only serve to unnecessarily ration public access to US law.” The same groups, plus others including the state and local government employees union AFSCME, sent a similar letter to House Judiciary leaders. Groups sent a comparable letter last year.

Among others who have filed briefs with the federal courts supporting Public Resource’s right to post the law online are the NAACP, the libertarian Cato Institute, Reporters Committee for Freedom of the Press, California’s Sonoma County, AFSCME, law professors who are experts in copyright, and former senior government officials like ex-White House chief of staff John Podesta, former EPA administrator Carol Browner, and former OSHA head David Michaels.

What have the courts said?

The PRO Codes Act goes against numerous judicial decisions dating back to 1834, a line of precedent that has been powerfully reaffirmed in the past few years.

A unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit, with judges appointed by George H.W. Bush, Barack Obama, and Donald Trump, ruled in September 2023, after ten years of litigation, that Public Resource’s posting on its website standards that have been incorporated by reference into federal regulations is protected by fair use. Fair use is a doctrine rooted in common law and the 1st amendment, as well as enshrined in the Copyright Act. The standards organizations did not petition the Supreme Court for review, presumably because they thought they would lose.

(The European Union Court of Justice this month reached a similar result, holding, in another case involving Public Resource, that the rule of law requires free public access to technical standards incorporated into EU law.)

The PRO Codes Act is particularly troubling because just recently, the U.S. Supreme Court reaffirmed, in Georgia v. Public Resource (2020) that copyright claims cannot block the right of the people to communicate their own laws or other edicts of government. In that case, the Court rejected an effort by the state of Georgia to stop Public Resource from posting online the Official Code of Georgia — the state’s book of its laws and annotations explaining those laws. Writing for the Court, Chief Justice John Roberts declared, “no one can own the law.”

These cases suggest that denying the public the right to speak the laws – which the PRO Codes Act would purport to do – is beyond the copyright power of Congress.

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.