When laws are shielded from public scrutiny, the potential for government accountability diminishes.
It may be hard to believe, but there is a small group of very powerful industry organizations attempting to copyright the law. The groups first started by fighting in the courts, and when that wasn’t working, they turned to Congress to pass H.R.1631, the Pro Codes Act.
The Pro Codes Act aims to allow private companies to control access to building codes—the very codes that regulate our schools, hospitals, and homes. This unprecedented attempt to monopolize the law has far-reaching implications for all Americans.
Incorporation by reference
Like a large swathe of public law in the United States, building codes come into effect by a process called incorporation by reference. First a private organization will convene committees of volunteers (industry professionals, government officials and interested third parties) to create model laws. These are documents written like laws and intended to become laws.
The organizations then lobby state and local governments to enact these documents into law by reference. For example, the New York state government may pass legislation effectively saying “All residential structures must comply with the International Residential Code 2021, by the International Code Council (ICC)”. Even after this becomes public law, organizations like ICC aim to maintain a monopoly over it.
Courts already concluded the law should be free
For decades, law publishers like the ICC have attempted and failed to copyright the law in the courts. Perhaps said most succinctly by the Supreme Court:
Justice Roberts: “No one can own the law”
Justice Thomas: “Statutes and regulations cannot be copyrighted”
Justice Ginsburg: “Beyond doubt, state laws are not copyrightable”
In these nine rulings, it has been reinforced that no one should own the law.
Pro Codes Act aims to copyright the law
After failing in the courts, the publishers are now trying to overrule the legal system, turning to Congress to pass the Pro Codes Act.
The bill states that “a standard … shall retain such [copyright] protection, notwithstanding that the standard is incorporated [into law] by reference”. The bill requires that the law publishers provide free access, but in reality, the publishers have a history of providing extremely limited versions of the law through hamstrung “reading rooms.” These are designed to make the public pay for proper access.
As the Electronic Frontier Foundation noted this about one such law publisher: “The texts are not searchable, cannot be printed, downloaded, highlighted, or bookmarked for later viewing, and cannot be magnified without becoming blurry. Cross-referencing and comparison is virtually impossible. Often, a reader can view only a portion of each page at a time and, upon zooming in, must scroll from right to left to read a single line of text.”
The law publishers argue they need a copyright on the law to make money and stay in business, but court after court has ruled against them. In fact, some law publishers are making more money than they ever have, such as ICC, which is close to breaking through $100M in revenue according to their last Form 990, despite UpCodes giving the public free and unfettered access to their adopted laws.
Why it matters
Having a monopoly on the law and allowing a single company to control access would create serious due process concerns. Ignorance of the law is not an excuse, but it’s tough if there’s a gatekeeper to that same law. Furthermore, monopolized law massively hinders innovation. Imagine if a single corporation owned the tax code — Americans would still have no software to help them navigate the complex code and would have to apply to the corporation for access.
Moreover, when laws are shielded from public scrutiny, the potential for government accountability diminishes.
That’s why UpCodes is not alone in opposing this bill. Several notable public interest groups including the American Library Association (ALA), Association of Research Libraries (ARL), American of Federation State (AFS), County and Municipal Employees (AFSCME), American Foundation for the Blind (AFB), Electronic Frontier Foundation (EFF), the Wikimedia Foundation, and many others publicly oppose the Pro Codes Act.
Representatives are open to letters and are listening to concerns about the potential impact of this bill. UpCodes has set up a tool that takes less than one minute to contact your representatives here.
Join the conversation!