Supreme Court lets \"open source law\" decision stand


Thanks to a pointer from SlashDot, I found my way to an article from GTW Associates (a firm that consults on international standards and trade policy) about a relatively obscure, but potentially important decision by the Supreme Court not to hear the appeal in a copyright case. The case deals with the issue of whether copyright is retained when the a publisher (in this case one who does building codes) succeeds in pushing to have their copyrighted work included, either directly or by reference, into a statute.

The original ruling (by the Fifth Circuit) is lengthy but goes through not only the specifics of why they chose to rule in favor of Veeck (RegionalWeb), but also some of the history of the case.

The primary issue is that the organization (the non-profit Southern Building Code Congress Inc.) that had lobbied to have their code adopted into the laws, charges money for people to acquire copies of these codes. The contention of Mr. Veeck is that the codes should be accessible to everyone in this current world of instant information access.

The Fifth Circuit decided that Mr. Veeck was, in effect, correct; that the codes adopted by the jurisdictions were law and that precedent requires that laws not be limited in their distribution.

Arguments from SBCCI were that without the financial incentive of controlling the publication of their codes, they (and other standards organizations) would not be able to continue their work.

I've been to their web site and checked out their prices. They're certainly above the level of costs, but not as excessive as the per-standard costs for ANSI or ISO standards (many of which can run to $100 for 50-100 pages). Instead, they charge $144 for a CD-ROM containing all of the codes that they publish ($115 if you are a member, with individual memberships running from $20-$75).

At this point, I'm inclined to agree with the court. If the purpose of lobbying was to set the standards to be "your" standards, then you cannot expect the government to maintain the copyright monopoly as part of that bargain.

The problem with this approach, though, is that it does leave the question of funding for standards organizations up in the air. Now, to be assured, some of them squander their cash to start with, but there is little evidence that by squeezing the purse the organizations actually use their money more wisely. But for those who don't squander, they need to get their money from somewhere and if it isn't coming from sales, it is coming from "donations", probably from people who are being regulated. Of course, this is how most standards work is already handled, so putting the burden on the capitalists isn't necessarily a bad (or new) idea. They need a common set of standards to be established, and it benefits them financially for those standards to exist.

Further, if you take the Internet as an example, many of the official Internet standards (such as the networking protocols TCP, IP, UDP, etc.) are freely published. This publication has lead to wide availability and similarly wide adoption. Would there have been as many teenagers writing web browsers if it had cost them $20-50 each to buy the 10 standards related to HTML and the 25 related to HTTP?