Protecting and Enhancing Public Access to Codes Act

Floor Speech

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Ms. LOFGREN. Mr. Speaker, I claim the time in opposition.

Mr. Speaker, I rise in opposition to this bill to defend Americans' right to access, understand, and debate the law. The Pro Codes Act threatens public access to the law and undermines due process by keeping essential legal standards hidden behind restrictive barriers. Instead of providing open access, the bill offers only limited public access.

Under this flawed bill, individuals would be forced to forfeit personal information just to view the standards. The standards would not be available in useful formats, preventing users from searching, copying, pasting, printing, downloading, or retweeting.

To get full access to the law, some people would have to pay, creating a two-tiered system, a free but limited economy-class access, and a full-access version for those who can afford to pay. This is neither fair nor just not in keeping with our tradition of everybody who is going to be held accountable under the law has to be able to fully access the law.

Despite bipartisan concerns, we had no hearings, we had multiple failed Judiciary Committee markups, and finally, a sparsely attended markup. Some are working to rush the Pro Codes Act through here in the suspension format.

Ranking Member Nadler himself, although he supports the bill, did note during the markup that since we began consideration of this legislation, we missed many opportunities to strengthen the bill through a better process. If there was a compromise to be had, we would not know because, unfortunately, we were not given an opportunity to find out. We should not be bypassing regular order, especially for a bill with such far-reaching implications like the Pro Codes Act.

For years, I fought to preserve the fundamental right of the public to access the law. I submitted amicus briefs in multiple court cases where certain Standards Development Organizations sued the nonprofit Public Resource Organization for posting online legal standards.

The courts repeatedly side with Public Resource and me, enforcing the idea that no one should control who can read and distribute the law.

In these cases, the SDOs argued that free and full access to the codes would financially harm them. Despite Public Resource posting incorporated standards for 15 years, the court observed that the SDOs produced no quantifiable evidence of past or future market harms. The court concluded that free and easy access to the law provided a substantial public benefit.

I would note that while the standard-setting organizations were complaining during the years that they were unable to prevent the posting of these standards, they made substantial revenue. For example, the American Society for Testing and Materials, the year after the decision, had a net income of $36 million.

Mr. Speaker, I include in the Record a link to the records from the American Society for Testing and Materials.

Https://projects.propublica.org/nonprofits/ organizations/231352024.

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Ms. LOFGREN. When a member of the House Judiciary Committee asked Shira Perlmutter, the Register of Copyrights and the Director of the U.S. Copyright Office, for her opinion of the Pro Codes Act, this is what she said: ``The public should have access to standards when they are incorporated into the law, because the public does have the right of access to the law. While the standards themselves may be protected by copyright, the use of them generally falls under fair use as it is for the purpose of understanding, using, and applying the law. So at present we think the courts are handling this in an appropriate way.''

If the Copyright Office believes the courts are handling this issue appropriately, why are we pushing this bill? We are trying to solve a problem that doesn't exist.

Despite repeatedly losing in courts, some SDOs have turned to Congress, using the same failed arguments about financial harm that failed to persuade the courts. One of the SDOs that sued has gained substantial revenue using other means, manuals and other things that they do.

The proponents claim that the experts who develop these codes should be able to charge the public for access once the codes become law. Using that same logic, public interest lobbyists would be entitled to charge the public to read the laws that they drafted.

In addition to these flaws, the Pro Codes Act disproportionately affects marginalized communities, particularly poor and disabled tenants who need access to building codes.

Organizations like the NAACP have highlighted how inaccessible standards would leave low-income communities vulnerable in disputes, stating that access to these standards is access to justice.

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Ms. LOFGREN. Mr. Speaker, I include in the Record an article by David Halperin from this March titled: ``Congress Should Reject Bill to Let Private Groups Control Access to U.S. Laws.''

The article can be found at the following link: https:// www.republicreport.org/2024/congress-should-reject-bill-to-let-private- groups-control-access-to-u-s-laws/.

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Ms. LOFGREN. Mr. Speaker, here is a paragraph that is important and really places the question before us succinctly: ``In the regime posited by the Pro Codes Act, if citizens, or advocates, or journalists, or business operators, or lawmakers, or even judges wanted to read, quote, or comment on the law, they would have to register and provide their personal information to a private SDO, hand-copy the words of a standard from a read-only website, and if they quoted too much, they would risk being sued by an SDO for copyright infringement. That is not the right way to provide access to our laws.''

Mr. Speaker, I include in the Record a letter signed by 21 groups, ranging from the American Library Association to the American Federation of State, County and Municipal Employees, or the AFSCME union, Center for Democracy and Technology, Electronic Frontier Foundation, iFixit, and repair.org. Yes, the right to repair movement is threatened by the Pro Codes Act.

Here is what they said, although the bill does make some publicly accessible material online available, this bill would likely `` . . . entrench some of the most obstructive current practices. . . . ''

They note further that courts have recognized ``no one can own the law.''

Last year, the D.C. Circuit stated that legal text falls plainly outside the realm of copyright protection, and in 2020 the Supreme Court of the United States reaffirmed that if every citizen is presumed to know the law, it needs no argument to show that all should have free access to its contents. April 9, 2024. Re: Opposition to H.R. 1631, the ``Protecting and Enhancing Public Access to Codes Act'' (Pro Codes Act) Chairman Jim Jordan, Committee on the Judiciary, House of Representatives, Washington, DC. Ranking Member Jerry Nadler, Committee on the Judiciary, House of Representatives, Washington, DC.

Dear Chairman Jordan, Ranking Member Nadler, and members of the Committee: The undersigned organizations write to express our strong opposition to the ``Protecting and Enhancing Public Access to Codes Act'' (Pro Codes Act). The trade associations and civil society groups that signed this letter agree with the findings of Congress in the Pro Codes Act that technical standards are critical to the public interest. Our interest is in ensuring that copyright law is not exploited to create a monopoly in which private standards development organizations (SDOs) control access to the codes and regulations that govern public health and safety. Further, courts have found there is no evidence to support the SDOs' claims that they have lost revenue due to the public dissemination of their standards. In addition to the substantive issues outlined in this letter, the undersigned organizations are concerned that the committee has never held an actual hearing on this bill. Pro Codes would limit access to publicly beneficial standards

Under this bill, standards development organizations would retain their copyright in a standard that is incorporated by reference into law, so long as the standard is made ``publicly accessible'' online. However, SDOs often require users to provide their personal information to access the standards, raising privacy concerns. Pro Codes would also entrench some of the most obstructive current practices of standards development organizations, providing read-only access to the codes and limiting their use through restrictive licenses that prohibit copying, printing, and linking. When standards are made available in this way, they are often inaccessible to people with print disabilities; the public is restricted in how they can use and share to the standards; and they must sacrifice their personal privacy for the privilege.

Providing free public access to the law furthers the purposes of copyright: to allow public access to knowledge. Consider Section 508 of the Rehabilitation Act, which requires federal agencies to make websites and other information technology offerings accessible to people with disabilities. Section 508 incorporates by reference the Web Content Accessibility Guidelines (WCAG) standards set by the World Wide Web Consortium (W3C). Because the public can access these standards, they can look up exactly what federal agencies are required to adhere to when making information available. Without access to the WCAG standards, the public would have fewer tools to hold website owners accountable. No one owns the law

Although a standard might be developed by an industry group to promote its interests, once it is incorporated into law by reference--typically at the request of the industry group--it belongs to everyone. Courts have recognized that no one can own the law. Last year, the D.C. Circuit stated that legal text ``falls plainly outside the realm of copyright protection.'' In 2020, the Supreme Court of the United States reaffirmed that ``if every citizen is presumed to know the law, it needs no argument to show . . . that all should have free access to its contents.'' By extending copyright protection to the law, Pro Codes is unconstitutional under the First, Fifth, and Fourteenth Amendments, which guarantee the public's right to read, share, and discuss the law. Providing access to the law is fair use

Even if standards incorporated into the law by reference could retain copyright protection, their reproduction would be a fair use. In September 2023, the D.C. Circuit ruled that making standards incorporated by reference publicly available is a lawful fair use that serves a nonprofit, educational purpose of providing the public with a free and comprehensive repository of the law. The court correctly applied copyright law in determining that the substantial public benefits of free and easy access to the law, including government- mandated codes and standards, must be considered against any potential monetary losses to the copyright holders.

The court found that although Public.Resource.org has been posting incorporated standards for fifteen years, ``the plaintiffs have been unable to produce any economic analysis showing that Public Resources activity has harmed any relevant market for their standards. To the contrary, ASTM's sales have increased over that time. . . .'' The court explained that because governments did not update their regulations incorporating standards as frequently as SDOs updated their standards, industry players continued to license the standards, even before their adoptions as laws, to keep current.

Pro Codes assumes that the fundamental purpose of copyright law is to create monopolies for rights holders, when in fact it is to promote the dissemination of knowledge for the public good. SDOs do not need a copyright incentive; the development of standards advances the economic interests of their members. Although Pro Codes by its terms would not overturn decisions such as ASTM v. PublicResources that found that fair use permitted the third-party posting of an incorporated standard, the intent of the legislation is clearly to put the thumb on the scale against a fair use finding.

We urge Congress to engage with our organizations and the public to meet its ostensible goal of making mandatory regulations available online for free so people can know, share, and comment on them. Pro Codes will only serve to unnecessarily ration public access to US law. Sincerely,

American Council of the Blind, American Federation of State, County and Municipal Employees (AFSCME); American Foundation for the Blind, American Library Association (ALA), Association of Research Libraries (ARL), Authors Alliance, Center for Democracy & Technology, Copia Institute, eBook Study Group, Electronic Frontier Foundation (EFF), Fight for the Future, Foundation for American Innovation, iFixit, Library Futures, NYU Engelberg Center, Public.Resource.Org (PRO), Repair.org, Program on Information Justice and Intellectual Property Project on the Right to Research, Public Citizen, Public Knowledge, Public.Resource.Org (PRO), Society of American Archivists (SAA), SPARC, Wikimedia Foundation.

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Ms. LOFGREN. Mr. Speaker, I just note that when the standards setting organization sued Public.Resource.Org, the D.C. Circuit Court said this in ruling for freedom of the law: ``Once a standard is incorporated by reference into the law, it effectively becomes part of the law, and the public has a right to access it. The court noted that the public's need to access the law outweighs the financial interests of the SDOs.''

As to fair use, the court concluded that Pro's use of the standards constituted fair use. The decision considered the nature of the work, the purpose and character of the use (nonprofit educational purposes), and the effect on the market. It found that the public benefit of free and easy access to the law was substantial.

Finally, the U.S. Supreme Court told us: ``Officials who speak with the force of law cannot claim copyright in the works they create in the course of their official duties.'' They emphasized that the public must have free access to the law, as these works are in the public domain once they are incorporated into legal statutes.

They reaffirmed the government edicts doctrine that held that annotations in Georgia's Official Code created by the State legislature could not be copyright protected.

The rule of law needs to be enforced, but also the rule of law means that people need to have full access to the law to copy it, to debate it, to know it, to understand it, to transmit it. This pro code bill would violate those fundamental principles.

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Ms. LOFGREN. Does the gentleman have additional speakers?
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Ms. LOFGREN. Mr. Speaker, I note that in Veeck v. Southern Building Code, in the 5th Circuit, a more conservative circuit, they ruled that model building codes adopted by reference into law could be copied freely. The court reasoned that once a standard is incorporated into the law, it becomes public domain material, underscoring the need for free access to legal standards.

I note also the First Circuit, not exactly a liberal bastion, in Building Officials & Code Administrators v. Code Technology, found that once a model building code has been adopted into law, it enters the public domain.

This case highlighted the importance of public access to laws and regulations, reinforcing the notion that such standards should not be restricted by copyright claims.

The proponents of this bill suggest that should we not overturn the court decisions, that somehow these standard-setting organizations will fail to do the standards that they have done traditionally. There is no evidence for that whatsoever.

As I mentioned earlier in my remarks, the standard-setting organizations continue to make millions and millions of dollars in revenue even though they lost in court and failed to maintain their copyright protection on these incorporated-by-reference measures. That is going to continue. There is no evidence whatsoever that that will not continue.

Further, it is very evident--and I think most of the Members of the House who served in State legislatures where this usually occurs know-- that the standard-setting organizations usually approach the legislative bodies, asking them to incorporate the standards by reference. They are not unwilling participants in this measure. They are just trying to profit by owning the law, which should not be permissible.

Once a standard developed by an industry group is incorporated by reference into law, it belongs to everyone. I will give an example of why that would matter.

In the wake of the 2010 Deepwater Horizon spill in the Gulf of Mexico, the oil industry was under heavy scrutiny. The American Petroleum Institute eventually posted on its website many of its safety standards, including all the standards that had been incorporated by reference into Federal law. That was in 2010, before the court decisions.

However, until that decision by the American Petroleum Institute, as the Deepwater Horizon poured oil into the Gulf for 5 months, and in the weeks after, it had been difficult for citizens, even Members of Congress, to evaluate the adequacy of Federal regulations because key components of those regulations were hidden behind paywalls.

In the regime, as I mentioned earlier, even with the Pro Codes Act exceptions, in order to comment on or gain access to information, you have to give up your data. There may be reasons why a journalist or a Member of Congress might not want to give up all of their personal information to find out what the law is. That is not the way America should work.

Once you pass the law, the law is owned by the people. It is not owned by corporations. It is not owned by associations. It is not owned by anybody who developed the standards.

The people of the United States own the law that governs them, and to impinge or impede in any way their access to fully understand the law, to debate it, to post it, to complain about it, to be fully American in the discussion of that law, that is really contrary to what the Court has told us, to what Justice Roberts has told us, and to our history as a nation. It is a big mistake.

I do not challenge the good intentions of the proponents of this bill. I am sure they are well-intentioned. It is just that the outcome is not permissible. It flies in the face of due process, the First Amendment, and the Fifth Amendment, and we should not adopt this bill today.

Mr. Speaker, I would like to note that the idea that you could conceal your identity to access this material is not really a full answer to the fact that the Supreme Court has told us no one can own the law.

The point about the revenue going into these associations, it is not because the revenue for a copyright holder is material to their rights. It is because those who have suggested that violating due process and putting the law behind doors is justified because of the financial need of the standard-setting organizations are not correct. They don't have that need. Even if they did, it would not be sufficient to overcome the public's right to know what the law is.

The Electronic Frontier Foundation put together a little analysis: ``Access to Law Should Be Fully Open: Tell Congress Not to Be Fooled by the Pro Codes Act.''

Mr. Speaker, I include that analysis in the Record. [From eff.org, Oct. 25, 2023] Access to Law Should Be Fully Open: Tell Congress Not To Be Fooled by the Pro Codes Act (By Corynne McSherry) Tell Congress: Access To Laws Should Be Fully Open

At EFF, we are especially proud of the work we have done helping our client, Public.Resource.Org (PRO), improve public access to the law. Public Resource's mission is to make all government information available to the governed. As part of that mission, it posts safety codes such as the National Electrical Code, on its website, for free, in a fully accessible format--where those codes have been adopted into law by reference.

You didn't learn about incorporation by reference from Schoolhouse Rock, but it's one of the key ways policymakers create law. A huge portion of the regulations we all live by (such as fire safety codes, or the National Electrical Code) are initially written--by industry experts, government officials, and other volunteers--under the auspices of standards development organizations (SDOs). Federal, state, or municipal policymakers then review the codes and decide whether the standard is a good broad rule. If so, it is adopted into law ``by reference.'' In other words, the regulation cites the code by name but doesn't copy and paste the entire thing into law (useful when the code is long and detailed). For example, if a regulation requires compliance with the National Fire Safety Code, it might simply refer to specific provisions or the code as a whole, rather than copying it in directly. But that doesn't make compliance any less mandatory.

When a pipeline bursts, journalists might want to investigate whether the pipeline complied with federal regulations, or compare federal, state, and local rules. When a toy is recalled, parents want to know whether its maker followed child safety rules. When a fire breaks out, homeowners and communities want to know whether the building complied with fire safety regulations. Online access to safety regulations helps make that review--and accountability--possible.

The rub: the SDOs claim to own copyright in these rules, even after they become law, and that they are therefore allowed to sell and otherwise control access to them. Based on that claim, they sued Public Resource for copyright infringement.

But court after court has recognized that no one can own the law. The Supreme Court held as much in its very first copyright case, and recently reaffirmed it: if ``every citizen is presumed to know the law,'' the Court observed, ``it needs no argument to show . . . that all should have free access to its contents.'' And in September 2023, after a decade of litigation, a federal appeals court held that Public Resource's database was a lawful fair use.

Which brings us to the latest threat. Having lost in court, the SDOs are now looking to Congress to shore up their copyright claim, via the Pro Codes Act. It's a tricky bit of legislation that seems innocuous if you don't know the context.

Pro Codes' main provision requires that:

An original work of authorship otherwise subject to protection under this title that has been adopted or incorporated by reference, in full or in part, into any Federal, State, or municipal law or regulation, shall retain such protection only if the owner of the copyright makes the work available at no monetary cost for viewing by the public in electronic form on a publicly accessible website in a location on the website that is readily accessible to the public.

Sounds good, right? in fact, it sounds obvious: mandatory regulations should be made available online, for free, so people can more easily know, share, and comment on them. Here's the trick: this language would effectively endorse the claim that SDOs can ``retain'' copyright in the law, as long as they let the public read it online.

There are many problems with this approach. First and foremost, ``access'' here means read-only, and subject to licensing limits. We already know what that looks like: currently the SDOs that make their codes available to the public online do so through clunky, disorganized, siloed websites, largely inaccessible to the print-disabled, and subject to onerous contractual terms (like a requirement to give up your personal information). The public can't copy, print, or even link to specific portions of the codes. In other words, you can look at the law (as long as you aren't print-disabled and you know what to look for), but you can't share it, compare it, or comment on it. As multiple amici who filed briefs in support of Public Resource explained, the public needs more.

Second, it doesn't really make sense. The many volunteers who develop these codes neither need nor want a copyright incentive. The SDOs don't need it either--they don't do anything creative (convening volunteers is important work, but not creative work), and they make plenty of profit though trainings, membership fees, and selling standards that haven't been incorporated into law.

Third, it's unconstitutional under the First, Fifth, and Fourteenth Amendments, which guarantee the public's right to read, share, and discuss the law.

Finally, there is no need for this bill. It simply mandates that SDOs do badly what Public Resource is already doing, better, for free.

The Pro Codes Act is a deceptive power grab that will help giant industry associations ration access to huge swaths of U.S. law. Tell Congress not to fall for it.

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Ms. LOFGREN. Mr. Speaker, here is what they say: ``You didn't learn about incorporation by reference from Schoolhouse Rock, but it is one of the key ways policymakers create law. A huge portion of the regulations we all live by, such as fire safety codes, or the National Electric Code, are initially written by industry experts, government officials, and other volunteers under the auspices of standards development organizations, SDOs. Federal, State, or municipal policymakers then review the codes and decide whether the standard is a good broad rule. If so, it is adopted into law `by reference.' In other words, the regulation cites the code by name but doesn't copy and paste the entire thing into law (useful when the code is long and detailed). For example, if a regulation requires compliance with the National Fire Safety Code, it might simply refer to specific provisions or the code as a whole, rather than copying it directly, but that doesn't make compliance any less mandatory.

``When a pipeline bursts, journalists might want to investigate whether the pipeline complied with Federal regulations, or compare Federal, State, and local rules. When a toy is recalled, parents want to know whether its maker followed child safety rules. When a fire breaks out, homeowners and communities want to know whether the building complied with fire safety regulations. Online access to safety regulations helps make that review--and accountability--possible.''

The SDOs claim copyright in these rules, but the courts have found otherwise. They come to us because they don't like the answers that the court has given them. They don't like the fact that the Supreme Court held as much in its very first copyright case and recently reaffirmed it, saying this: ``'Every citizen is presumed to know the law,' and `it needs no argument to show . . . that all should have free access' to its contents.''

In September 2023, after a decade of litigation, the Federal appeals court held that Public Resource's database was lawful fair use, which brings us to the threat that this bill poses for us. It is a bit tricky.

The Pro Codes Act's main provision is that the code that has been adopted is protected by copyright. It provides some weak ability to access, but the access means read only, subject to licensing limits. We know already that when that is done, they are ``clunky, disorganized, siloed websites, largely inaccessible to the print-disabled, and subject to onerous contractual terms, like a requirement to give up your personal information. The public can't copy, print, or even link to specific portions of the codes. In other words, you can look at the law, as long as you aren't print-disabled and you know what to look for, but you can't share it, compare it, or comment on it. As multiple amici''--and I helped with some of those briefs--``who filed briefs in support of Public Resource explained, the public needs more.

``Second, it doesn't really make sense. The many volunteers who develop these codes neither need nor want a copyright incentive. The SDOs don't need it either.'' As I mentioned earlier, they are doing things very well even without the ability to harness improperly, I would say, copyright law for profit.

Finally, it is unconstitutional. There are some who say that this bill is important, but it is questionable that Congress can actually even overturn through legislation the longstanding court doctrine that mandates free and full access to the law. That is primarily because those decisions are firmly rooted in the constitutional doctrine of due process as outlined in the Fifth and 14th Amendments.

Additionally, the concept of fair use has been interpreted through judicial precedent to align with the freedoms protected by the First Amendment.

I will conclude by saying that to protect public access to the law, we should oppose the Pro Codes Act. We should uphold the principles of due process and ensure that everyone has a right to access, discuss, and understand the laws that govern them.

We should not turn over owning the law to private-sector entities. The law belongs to all of us. It belongs to the public and should not be withheld from the American public.

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Ms. LOFGREN. Mr. Speaker, on that I demand the yeas and nays.

The yeas and nays were ordered.

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