EFF warns public safety laws could be put behind paywalls

A federal district court ruled that private organizations can block online publication of some federal and state statutes under copyright law.

Shutterstock image: government access keyboard.
 

Are there limits to the availability of government information in the public domain?

At least one court says there are. A federal district court in Washington, D.C. ruled that private organizations can use copyright protections to control access to state and federal laws when those statutes contain standards they have developed.

On Feb. 2, nonprofit group Public.Resource.Org was ordered to stop providing public access to some laws that contained material it said was developed by private organizations.

The Electronic Frontier Foundation said the "decision suggests that laws can be copyrighted and put behind paywalls as long as they were first written down by someone outside of government."

Public.Resource.org regularly posts federal and state documents with an aim to improve public access to government documents, by finding and electronically posting a wide variety of public documents. The site, said EFF, includes regulations that have been created through private standards organizations though "incorporation by reference."

The associations in the suit maintain they still have copyright protections even though their standards are part of binding regulations. In making their "original works" standards available at no cost on the group's website, the groups said the site infringed on copyrights.

The American Society for Testing and Materials, National Fire Protection Association, Inc. and American Society of Heating, Refrigerating, and Air-Conditioning Engineers sued Public.Resource.org for copyright infringement.

The court accepted the argument that plaintiffs develop standards through their own processes and resources for purposes other than their adoption into law, and that revenues for the sale of document versions of the standards support their standard-setting activity.

EFF said it was disappointed in the ruling, adding that the association's regulations are often difficult to access because they aren't published in the federal code. The group said the regulations involved can govern the safety of buildings and consumer products, promote energy efficiency, and control the design of standardized tests for students and employees.

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