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Wednesday, February 27, 2013

Courts - Sheet metal and AC contractors demand takedown of federally mandated standards posted online

Recalling earlier ILB entries, such as this one from Aug. 7, 2008 ("Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online"), and this one from May 22, 2012 (""Industry Groups Insist on Charging You $1,195 to Read a Public Law""), Mike Masnick of Techdirt reported yesterday that the Sheet Metal and Air Conditioning Contractors are demanding that Carl Malamud's organization, which purchased the federally-mandated 1985 standard on air-duct leakage and posted it online, take it down. More from the story:

Malamud's Public.Resource.Org, with help from the EFF, have filed for declaratory judgment that posting such information does not infringe on SMACNA's copyright.

In the filing, the case is made that since these standards are incorporated into federal regulations, they have the force of law, and thus cannot and must not be held in secret.

Technical manuals like the 1985 manual at issue in this case, explicitly adopted by federal regulation, have the force of law and impose affirmative obligations on citizens. As much as landmark health care acts or Supreme Court civil rights decisions, these technical requirements—for building, electrical, plumbing, transportation—touch the lives of Americans every day. Business owners, workers, and consumers need to know these directives in order to operate their businesses lawfully, to avoid penalties, and to determine whether neighbors, contractors, or competitors are in compliance.
The crux of the argument is that as the standard is incorporated into law, it is no longer infringing to make that work available, as one cannot comply with the law without having that information.
The post includes a copy of the declaratory judgment complaint filed in the ND Calif. on Feb. 22nd.

Posted by Marcia Oddi on February 27, 2013 08:57 AM
Posted to Courts in general