Knowledge Ecology International joins amicus brief on non-copyrightability of model laws and statutes

Washington, DC — On January 11, 2016, Knowledge Ecology International joined Public Knowledge and the American Library Association in an amicus curiae brief that argued that the contents of model laws, once enacted into statute, cannot be protected by copyright. The brief was filed with the U.S. District Court for the District of Columbia in the case of ASTM International v. Public.Resource.Org.

The case involves the publication of codes and standards that have been fully incorporated into statute, which were then published online by Carl Malamud, the founder of Public.Resource.Org, an advocacy group that pushes for open access and distribution of government publications. Malamud published laws that incorporated the standards of the American Society for Testing and Materials, the National Fire Protection Association, and the American Society of Heating, Refrigerating, and Air Conditioning Engineers.

The amicus brief argued that copyright is not intended to protect the words of statutes, which are precise, deliberate, and determinative, rather than creative. The brief also noted that adopting draft standards into law renders those statutes statements of law, which cannot be protected by copyright.

KEI, PK, and the ALA also explored the the history of access to law in the United States, which requires open distribution and public availability. “The ability to promulgate, copy, and make useful the law is an essential component of modern civic participation,” the brief said.

KEI Counsel for Policy and Legal Affairs Andrew S. Goldman said:

“The law belongs to the public, and requires above all that it be widely promulgated and readily available without restriction. There is a long line of jurisprudence going back to the 1800’s holding as much. It’s pleasant to imagine a world in which the drafting of laws is a creative endeavor, but in the U.S. laws serve purely functional purposes and cannot be protected by copyright without undermining order and civic engagement.”

Meredith Rose, Staff Attorney at Public Knowledge, said:

“Free and unfettered access to the law has long been a cornerstone of American democracy. Plaintiffs’ claims are a blatant attempt to use copyright law as a bulldozer against the public domain. Their claim that incorporated statutory language is eligible for copyright protection because it is ‘creative’ (and can thus be ‘paraphrased’) ignores the fact that the words of the law are definitive; rephrasing the law is no substitute.

“More importantly, the public’s access to the exact text of the law is a fundamental right drawn from the Constitution. The plaintiffs purport to satisfy this critical public need by offering ‘reading room’ websites that make the law available. However, these websites are difficult to use and inaccessible to the visually disabled, therefore hindering true public access to the law. The law cannot be considered truly accessible when (in the words of one legal sage) it is ‘on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.’”

Contact: Zack Struver (zack.struver@keionline.org) or Andrew S. Goldman, Esq. (andrew.goldman@keionline.org), both at 202-332-2670.

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