The Pro Codes Act Is a Wolf in Sheep’s Clothing

When a pipeline bursts, journalists might want to investigate whether the pipeline complied with federal regulations. When a toy is recalled, parents want to know whether its maker followed child safety rules. When a fire breaks out, homeowners and communities want to know whether the building complied with fire safety regulations. Online access to safety regulations helps make that review – and accountability – possible. But a new dangerous and deceptive bill will undermine existing efforts to make that happen: the Pro Codes Act. 

The proposal looks simple enough. A huge portion of the regulations we all live by (such as fire safety codes, or the national electrical code) are initially written — by industry experts, government officials, and other volunteers — under the auspices of standards development organizations (SDOs). Federal, state, or municipal policymakers then review the codes and decide whether the standard is good broad rule. If so, it is adopted into law “by reference.” In other words, the law cites the code by name but doesn’t copy and paste the entire thing into law (useful when the code is long and detailed). For example, if a regulation requires compliance with a provision in the National Fire Safety Code, it might simply refer to that provision, rather than copying it in directly. But that doesn’t make compliance any less mandatory.

Currently, SDOs have to make such incorporated codes available to the public somehow, in keeping with the basic principle that everyone has a right to know the law that binds them. But the requirements are far out of date. For example, a hard copy of a standard that is incorporated into federal law by reference must be deposited with the National Archives in Washington, DC – not exactly an easily accessible location.

The main provision of the Pro Codes Act pretends to address this problem by requiring 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 the people to which they are subject can more easily know, share, and comment on them.

But this proposal isn’t really intended to facilitate public access. Here’s the trick: the bill is attempting to codify a flawed assumption that a code incorporated by reference into law has any copyright protection to “retain.”

The SDOs that develop codes, and lobby for their adoption into law, love this assumption. That’s because they often want to be able to assert a monopoly over those codes – and profit from them – even after they become law.  Paywalls and restrictive licensing on texts that the public needs can be as lucrative as putting up private tollbooths on a major highway.

Unfortunately for them, court after court has recognized that no one can own the law.  The Supreme Court held as much in its very first copyright case, and recently reaffirmed it: if “every citizen is presumed to know the law,” the Court observed, “it needs no argument to show . . . that all should have free access to its contents.”

SDOs insist that mandatory codes are a glaring exception to this longstanding rule if those codes were initially drafted under the supervision of nongovernmental entities. If private group develops the rules, in other words, that group retains the copyright in even after the rules become law – including the ability to restrict access to them. In other words, if a group writes a good rule, and asks the government to make it law, they should be able to control access to that rule for decades.

Based on this theory, they are suing a nonprofit, Public.Resource.Org (PRO). PRO’s mission is to improve public access to the law. As part of that mission, it posts safety codes on its website, for free, in a fully accessible format — including codes adopted into law by reference. The SDOs claim that public service is copyright infringement.

The Pro Codes Act would effectively, and sneakily, bless the SDOs’ copyright theory by suggesting that they can indeed “retain” copyright in codes, even after they are made law, as long as they make the codes available through a “publicly accessible” website.

There are many problems with this approach. First, lobbyists (who often draft laws which are then enacted by legislatures) could make the same claim, placing any number of laws in private hands. Second, the many volunteers who develop those codes neither need nor want a copyright incentive. Third, it’s unconstitutional under the First, Fifth, and Fourteenth Amendments, which guarantee the public’s right to read, share and discuss the laws by which we govern ourselves.

Finally, there is no need for this bill, because it simply mandates that SDOs do what Public.Resource.Org is already doing. The difference is, under the bill, the SDOs would get a statutory monopoly in return, which they can use to extract royalties from anyone who wants to share the law in a different way. Which many will: currently the SDOs that make their codes available to the public online do so via clunky, disorganized websites, often inaccessible to the print-disabled, subject to onerous contractual terms. Anyone wishing to make the law accessible in a better format would suddenly find themselves either paying a rent to the SDOs or in legal jeopardy.

The PRO Codes Act is a deceptive power grab that will help giant industry associations put up tollbooths in front of huge swaths of U.S. law. Congress, and anyone who cares about public access, should refuse to be fooled by this wolf in sheep’s clothing.