Lawsuite by NFPA, ASHRAE, ASTM

[fireguy]

Media Statement

Three standard orgs, NFPA, ASRAE and ASTM have brought suit against Public Resource.

 

[mark handler]

Sorry to hear that. Good Resource, for "publicly" adopted stds.

 

[cda]

So why Is nfpa suing when it allows free access?

 

[Fort]

I believe that is a public agency adopts a code written by a private company, the license agreement with that private company must allow for the code to be published freely online, along as it is properly cited as similar to the Creative Commons.

I love publicresource

 

[Mark K]

In the case of ICC the free public access version is not very useful if you need more than an occasional reference.

Note that the focus in the lawsuit is about cost recovery. It suggests that they are not challenging the basic proposition that codes need to be free.

 

[Mark K]

"Section 24 states ‘‘Section 60102, as amended by this Act, is further amended by adding at the end the following: ‘(p) Limitation on Incorporation of Documents by Reference.—Beginning 1 year after the date of enactment of this subsection, the Secretary may not issue guidance or a regulation pursuant to this chapter that incorporates by reference any documents or portions thereof unless the documents or portions thereof are made available to the public, free of charge, on an Internet Web site.’"

https://law.resource.org/pub/us/cfr/regulations.gov.docket.03/PHMSA-2012-0142-0001.pdf

What this means is that the Feds are clear that reference standards do not have copyright. What NFPA, ASTM, and ASHRE are trying to do is to limit our free access to the standards to a form that is not user friendly.

 

[Phil]

I will be happy if the copyright dilemma is resolved. I like the idea of having ready access to all standards. But, I respect the intellectual property rights of the standards organization. And, I would not trade free access for up-to-date and ever improving standards. One interesting concept that is rarely mentioned is in the NFPA, ASTM, ASHRAE filling that states:

"If Public Resource were to prevail in its argument that Plaintiffs’ Standards lost

their copyright protection whenever incorporated by reference in any federal or state regulation,

this would raise serious questions of government liability under the Takings Clause of the Fifth

Amendment to the United States Constitution, made applicable to state and local governments

through the Fourteenth Amendment."

Does this mean that if the Standards Organizations loose this lawsuit, that it might open the door to a lawsuit against the federal, state and local governments for seizure of their intellectual property?

 

[Mark K]

The standards developing organizations have known about the Veeck opinion for years but continued to promote the adoption of their standards. A taking only exists if the owner had an expectation that the property had value. Ignorance of the law is no excuse. Thus since there was no change in the law, only and understanding of the law, there was no taking. The standards developing organizations simply chose a flawed business model based on erroneous assumptions and have no right to have themselves made good.

 

[TheCommish]

NFPA= No Free Publication anytime

 

[Phil]

Mark K

I am not an attorney. I will wait and see what the courts decide. I can guarantee that the attorneys for ASTM, ASHRAE, and NFPA know a lot more about the law than I do. However, the Veeck decision seems to explicitly exclude (some, many, all) referenced standards. The "Discussion" portion of the ruling states:

"Several national standards-writing organizations joined SBCCI as amici out of fear that their copyrights may be vitiated simply by the common practice of governmental entities' incorporating their standards in laws and regulations.[n20] This case does not involve references to extrinsic standards. Instead, it concerns the wholesale adoption of a model code promoted by its author, SBCCI, precisely for use as legislation. Caselaw that derives from official incorporation of extrinsic standards is distinguishable in reasoning and result."

VEECK v. SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL, INC., 293 F.3d 791 (5th Cir. 2002)

 

[Phil]

The federal court granted a summary judgement against Public.Resource.org. Now we need to wait and see if Public Resources will appeal.

http://www.nfpa.org/news-and-resear...excellence-in-development-of-public-standards

https://assets.documentcloud.org/documents/3443056/117-Opinion.pdf

 

[mark handler]

NFPA= No Free Publication anytime

California Electrical Code- Free from NFPA

http://www.nfpa.org/codes-and-stand...-of-codes-and-standards/free-access?mode=view

 

[JCraver]

The federal court granted a summary judgement against Public.Resource.org. Now we need to wait and see if Public Resources will appeal.

http://www.nfpa.org/news-and-resear...excellence-in-development-of-public-standards

https://assets.documentcloud.org/documents/3443056/117-Opinion.pdf

I didn't read the opinion but judging by the way NFPA is slathering praise upon it, I disagree with it. Hopefully Public Resource will appeal.

IMO, once adopted by any legit governing body, that code/standard is public knowledge/property and free to all. Should be available every way any other public document is available.

 

[fatboy]

I believe what is at issue, is that they not only allowed it to be viewed, but also copied, pasted, saved, printed, no limits.

Whereas ICC allows it to be viewed, but without the other privileges.

 

[cda]

I believe what is at issue, is that they not only allowed it to be viewed, but also copied, pasted, saved, printed, no limits.

Whereas ICC allows it to be viewed, but without the other privileges.

Well under open records request seems like you could ask for a page or two??

Plus with electronics, it might be on a city web site


Seems ridiculous for NFPA to put it out to view freely and than complain about it???


Plus I know there is a copy of the codes in our city library. All a person has to do is go there and hit the Xerox machine.

 

[CityKin]

What percentage of NFPA, ASHRAE, and ASTM's budget is made from selling books? And how else can they re-coup their costs? At our building dept, we have a room that the public can use to look at codes if they request, and we also buy extra copies for the public library near our office. But very very few people look at them. 99.99% of the time only engineers and architects look at these codes, and they buy their own copy.

I agree that these should be freely available online and should be indexed and searchable.

 

[JCraver]

I believe what is at issue, is that they not only allowed it to be viewed, but also copied, pasted, saved, printed, no limits.

Whereas ICC allows it to be viewed, but without the other privileges.

I understand that's the issue. Only I don't see it as an issue, I see it as right, and to be expected. One of the few things I agree with "government" ever getting right are open records laws.

I'm writing a new zoning ordinance right now for recreational vehicle use in mobile home parks. Once/if that is approved by the City Council, then it will go into the records of the City for all time (or until repealed/replaced/updated/etc., you know how it works). Once that happens anyone can request a copy of that ordinance and we (the City) have to provide it. Or they can ask to see it and we have to provide that, too. We also contract with a company to include it in our compiled ordinances, which is available online. Any one can see, read, print, copy it any time.

Building/energy/fire/property maintenance codes should be no different. Once my Council approves and adopts them for use by the City, they are law. Laws should not be copyrighted and anyone/everyone who has to live under them should have all common forms of access to them.

If the letter agencies are asking us to adopt their product then they have to acknowledge/accept that we must make that product available to our consumers to use, not just view.

I think all of them sometimes they forget that they're not-for-profit organizations.

 

[Mark K]

Public Resource is on record as planning to appeal.

My understanding is that the ruling does not disagree with Veeck but rather that focuses on standards adopted by reference. This creates a possible situation where if the state adopted the IBC and published it with state amendments there would be no copyright but if an adjacent state were to adopt the code by reference there would be a copyright. Note that in both instances those wishing to build must comply with the regulations.

If the standards development organizations priced the standards to recover the costs related to the development of the standard the cost of the standards would be much less.

 

[mtlogcabin]

Any one can see, read, print, copy it any time.

As an AHJ state law says I can charge by the page for any copy of a law or ordinance or a person can purchase the code book. Yes they are available free to look at and read but not print or copy.

If you want a copy to read other than online then buy it.

 

[Mark K]

There is no problem with having to pay the costs of printing. The problem is the excess profit and the ways in which a copyright limits how you can use the document.

 

[mtlogcabin]

There is no problem with having to pay the costs of printing. The problem is the excess profit and the ways in which a copyright limits how you can use the document.

There are no excess profits in a non-profit organization.

The International Code Council (ICC) was established in 1994 as a non-profit organization dedicated to developing a single set of comprehensive and coordinated national model construction codes. NFPA, ASHRAE, ASTM are also non-profit

We have a municipal code which must be codified and updated when new ordinances are adopted. The city contracts with a publishing company to do this. Is your jurisdiction willing to pay to have all the adopted codes and standards published by non-profit organizations codified and then published into your local municipal code to make it available free to everyone online? Is your jurisdiction required by law to provide their codes on line or in an electronic format? Do you see where this can go if a publishing company cannot protect there property through the copyright process.

 

[Mark K]

If the there was no copyright on standards referenced from the adopted building code this would not require the jurisdiction to publish those standards rather it would allow others to do so. Individuals could then obtain the standards from the organization that authored the standard or from another source.

This would likely constitute a taking requiring the state or local organizations pay for the use. There are a number of ways this could happen but one way would be for there to be a small surcharge on all building permit fees that would be used to fund this obligation. California already uses a similar mechanism to fund certain costs associated with the state building code.

If this is considered a taking the reimbursement would be for the real costs of producing the standard and not for the inflated costs currently charged in many cases.

If you will look at the history you will see that fees from sale of standards are not the primary or even secondary reason why organizations develop standards.

 

[conarb]

There are no excess profits in a non-profit organization.

Not true, there are no more profitable institutions than non-profit corporations because the profits are not taxed, they just can't be distributed so must build up in the corporation, while there they can be invested and build larger all tax free. Non-profits have to pay their officers reasonable salaries for their services and the officers pay normal taxes on their salaries.

Ten years ago I looked into a non-profit affordable housing corporation thinking of setting up a non-profit family charitable corporation, the one I looked into had a web of non-profits with the same interlocking officers, each corporation was paying it's president $100,000 a year, there were 5 corporations under the main umbrella so the president was drawing down $500,000 a year. My interest was that since we have to either build affordable housing or pay a fee with our permits, a family charitable corporation has to donate a minimum of 7% per year to charity, if I made 7% of my units affordable that satisfies both my charitable corporate requirement and my city affordable housing requirement. I didn't go ahead with my scheme because I feared the IRS would close the loophole on me midstream, but it's a good thing I didn't because I looked at Lafayette's request for proposals and the site is still vacant with neighbors suing over bringing affordable housing into the neighborhood, satisfy them and affordable housing groups sue because there isn't enough affordable housing, I'd still be there paying millions in architectural and legal fees had I gone ahead with nothing to show for it but a lot of work, money, and aggravation over the last 10 years.

 

[cda]

If the there was no copyright on standards referenced from the adopted building code this would not require the jurisdiction to publish those standards rather it would allow others to do so. Individuals could then obtain the standards from the organization that authored the standard or from another source.

This would likely constitute a taking requiring the state or local organizations pay for the use. There are a number of ways this could happen but one way would be for there to be a small surcharge on all building permit fees that would be used to fund this obligation. California already uses a similar mechanism to fund certain costs associated with the state building code.

If this is considered a taking the reimbursement would be for the real costs of producing the standard and not for the inflated costs currently charged in many cases.

If you will look at the history you will see that fees from sale of standards are not the primary or even secondary reason why organizations develop standards.

Not sure the copyright is the problem.

I think a city has to have available for viewing any laws, zoning, ordinances, etc

If the public wants to view it.

Maybe the problem is Al Gore. He furnished a means to put entire books online avaiable to anyone that wants to see them.