Jul 122017
 

The following was also posted on Techdirt.

It’s always hard to write about the policy implications of tragedies – the last thing their victims need is the politicization of what they suffered. At the same time, it’s important to learn what lessons we can from these events in order to avoid future ones. Earlier Mike wrote about the chilling effects on Grenfell residents’ ability to express their concerns about the safety of the building – chilling effects that may have been deadly – because they lived in a jurisdiction that allowed critical speech to be easily threatened. The policy concern I want to focus on now is how copyright law also interferes with safety and accountability both in the US and elsewhere.

I’m thinking in particular about the litigation Carl Malamud has found himself faced with because he dared to post legally-enforceable standards on his website as a resource for people who wanted ready access to the law that governed them. (Disclosure: I helped file amicus briefs supporting his defense in this litigation.) A lot of the discussion about the litigation has focused on the need for people to know the details of the law that governs them: while ignorance of the law is no excuse, as a practical matter people need a way to actually know what the law is if they are going to be expected to comply with it. Locking it away in a few distant libraries or behind paywalls is not an effective way of disseminating that knowledge.

But there is another reason why the general public needs to have access to this knowledge. Not just because it governs them, but because others’ compliance with it obviously affects them. Think for instance about the tenants in these buildings, or any buildings anywhere: how can they be equipped to know if the buildings they live in meet applicable safety standards if they never can see what those standards are? They instead are forced to trust that those with privileged access to that knowledge will have acted on it accordingly. But as the Grenfell tragedy has shown, that trust may be misplaced. “Trust, but verify,” it has been famously said. But without access to the knowledge necessary to verify that everything has been done properly, no one can make sure that it has. That makes the people who depend on this compliance vulnerable. And as long as copyright law is what prevents them from knowing if there has been compliance, then it is copyright law that makes them so. 

Of course, there are lots of standards at issue in the Public Resource cases, and not all of them necessarily would threaten mortal peril if they were not complied with. But the federal court’s decision in these cases, if allowed to stand, means that all sorts of standards, including those bearing on public safety, can be kept from ready public view through a claim of copyright. As the resulting injunctions ordering Carl Malamud to delete accurate and operable law from his website makes clear, no matter how accurate or operable the legal standard, no matter how critical compliance with the standard is to ensure the health and safety of the public, people can be prevented from sharing the knowledge of what that standard contains.

And it not only prevents people in one jurisdiction from knowing what that standard is. It prevents people anywhere in the world from knowing. If an American jurisdiction has made innovations in public safety standards, no one else in the world can freely benefit from that knowledge in order to figure out whether their own local standards are sufficient. It’s an absurd result – the purpose of copyright law is, after all, all about developing and disseminating knowledge – and it’s one that hurts people. It is not something we should be encouraging copyright law, or any law, to do.

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