Building Codes legal battle heats up

The American Bar Association (ABA) will vote in August on a resolution urging Congress to pass legislation that provides limited free online access to standards incorporated into state and local construction codes, including those related to fenestration.

But public-records activist Carl Malamud argues in a recent report he sent to the ABA that the proposal doesn’t go far enough. Malamud, whose organization, Public Resorce.org, has faced legal challenges for posting codes and standards for free online, says the ABA resolution “plays havoc with the rule of law by attempting to put limits on how and when citizens may read and speak these laws to inform their fellow citizens.”
Ironically, the American National Standards Institute (ANSI) also wants ABA members to reject the proposal — because it feels it goes too far. ANSI says the resolution “could not only jeopardize the U.S. standardization system, but may also put some SDOs (standard developing organizations) out of business,” according to a letter ANSI president and CEO Joe Bhatia sent to the organization’s members in late June.
ANSI argues that free, read-only access could “devastate the market for purchasing the standards from the SDO, and will eliminate the primary source of funding for the development of these standards,” according to comments the organization submitted to the ABA in June. That’s because technology is surpassing the ability of SDOs to safeguard their copyrighted material, ANSI says.  “Professionals increasingly access and work in the field with documents on mobile devices, as opposed to desktop computers or hard copies. Calling up a standard on a tablet or a personal phone to ‘read’ its contents is precisely how such standards tend to be utilized.”
Because of that, ANSI “agrees that public and private interests must be balanced and, to that end, everyone should have the right to access standards referenced into law and be able to review such work at government facilities and libraries on a read-only basis. Depending on the nature of the standard and its intended use, many such standards could also be electronically available for viewing for free on either a long- or short-term basis, but a blanket ‘one size fits all’ mandate is not in the public interest.”
Malamud argues that citizens must have full access to laws they’re forced to obey — including building codes that incorporate standards developed by organizations such as ANSI.
“On the one side are the proprietary interests of a few nonprofit organizations, organizations that eagerly seek to have some of their standards incorporated into law, and also profit greatly from the sale of numerous products, such as the sale of non-mandatory standards, training, and certification,” he writes in his report to the ABA. “What is being balanced against those ‘proprietary interests’ are the rights of the American people to read and speak the law. … What are being proposed are a series of licensing restrictions created by a click-through terms of use agreement, coupled with technical restrictions enforced by ‘Digital Rights Management’ (DRM) technical measures. But the law is not a Hollywood movie and it is not a Tom Clancy novel. The law is special in our democracy, or in any society that observes the rule of law.”
While next month’s debate over the ABA resolution bears watching, a major case  over copyright and codes goes before the U.S. District Court for the District of Columbia in September.
ASTM International, the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and the National Fire Protection Association (NFPA) sued Malamud’s organization, Public Resorce.org, for copyright infringement in August 2013. All three develop codes used in the fenestration industry.
The organizations contend that copyright protection is essential because they spend a lot of money and effort working on codes, according to a report from the Washington Post. Their lawsuit also states that the standards they develop are “necessary for a well-functioning economy and a safe society.” Additionally, the organizations say they have “developed policies for providing interested members of the public access to standards known to have been incorporated by reference into statutes and regulations.”
Malamud’s organization says it’s not fair to make businesses and the public purchase complete access to laws they’re forced to obey.
“Legislatures and administrative agencies have frequently enacted into law, and enforced, construction, fire, and other public safety codes,” Public Resource.org writes in its answer to the lawsuit.  “Public safety codes govern essential aspects of everyday life. They often carry civil or criminal penalties. They are laws.”