Congress Wants To Put The Law Behind A Paywall. Again.

Every relevant court that has looked at this question — including the Supreme Court — has agreed: no one can own the law. When private standards get incorporated into binding legal requirements, the public has a right to access them freely. The Fifth Circuit, the DC Circuit, and the First Circuit have all reached the same conclusion through different cases over the past two decades.

So naturally, a bipartisan group of senators has reintroduced a bill to override all of that.

Senators Coons, Cornyn, Hirono, and Tillis have brought back the Pro Codes Act, a bill that would grant copyright protection to standards that have been incorporated by reference into law. That means building codes, fire safety codes, electrical codes, accessibility guidelines — the kind of stuff that governs whether your house is up to code and violations of which can carry civil or criminal penalties — would remain the copyrighted property of the private standards development organizations (SDOs) that wrote them.

That would be really, really bad — and also, according to multiple federal courts, unconstitutional.

The press release from these senators is really something. Tillis says the bill “protects a commonsense system that keeps Americans safe without costing taxpayers a dime.” Coons worries about “a penalty for the non-profit organizations that developed them and stand to lose their intellectual property.” The Copyright Alliance (a copyright maximalist org funded by the usual suspects in Hollywood) CEO calls it “a clear win for public safety, transparency, and economic growth.”

You’d think we were talking about some beleaguered group of nonprofits on the verge of financial collapse, valiantly producing safety standards out of the goodness of their hearts, about to be crushed by pernicious freeloaders daring to read the laws for free. The reality, as Katherine Klosek and Garrett Reynolds detailed here on Techdirt, is rather different. The main SDOs pushing this bill — the International Code Council and the National Fire Protection Association — are making more money than ever, with CEO salaries upward of $1,000,000, compared to a median nonprofit CEO salary of around $115,682. Their revenues have grown even as organizations like Public.Resource.Org and UpCodes have been providing free, unfettered access to these incorporated standards for years.

As the Fifth Circuit noted way back in 2002:

“It is difficult to imagine an area of creative endeavor in which the copyright incentive is needed less. Trade organizations have powerful reasons stemming from industry standardization, quality control, and self regulation to produce these model codes; it is unlikely that, without copyright, they will cease producing them.”

Twenty-four years later, the prediction holds up perfectly. The SDOs kept producing standards. They kept growing their revenue. They just also want Congress to hand them a monopoly over public law, because the courts wouldn’t.

And the bill is sneaky about it: it includes a provision requiring that incorporated standards be made “publicly accessible online,” which the bill’s supporters point to as proof of their commitment to transparency. But the bill explicitly says this access must be provided “in a manner that does not substantially disrupt the ability of those organizations to earn revenue.” That’s Congress writing profit protection directly into the definition of “public access to the law.” In practice, as Klosek explained last year, this means read-only access where you can’t download, copy, print, or link to the standards. That’s not access to the law. That’s a peek at the law through a keyhole, on terms set by a private corporation.

Meanwhile, the organizations actually providing genuinely useful, free public access to these laws — Public.Resource.Org, UpCodes, and others — would be exposed to copyright liability under this bill. So the Pro Codes Act doesn’t just fail to improve public access to the law. It actively threatens the entities that are already doing a better job of providing that access than the SDOs ever have.

So when the senators pushing this bill talk up the need for “non-profits” to make money, what they’re really doing is choosing which nonprofits deserve to survive — the (already extremely well-resourced) ones that write the standards, rather than ones like Public.Resource.Org that actually make those standards available to the public.

This bill has never received a committee hearing. Not in this Congress. Not in any previous Congress. The last time around, it was brought to the House floor under suspension of the rules — a process reserved for non-controversial legislation — and still couldn’t muster the two-thirds majority needed to pass. A growing coalition of libraries, journalists, civil society organizations, disability rights groups, and the NAACP has lined up against it.

They’ve lined up against this law because it’s bad. It locks up the law behind copyright.

The Supreme Court. Multiple circuit courts. A broad coalition of public interest groups. All saying the same thing: the law belongs to the public. But as long as the SDOs keep spending millions on lobbying, Congress will apparently keep trying to give it away.