[Congressional Record Volume 170, Number 118 (Monday, July 22, 2024)]
[House]
[Pages H4658-H4665]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECTING AND ENHANCING PUBLIC ACCESS TO CODES ACT
Mr. ISSA. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 1631) to amend title 17, United States Code, to reaffirm the
importance of, and include requirements for, works incorporated by
reference into law, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 1631
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting and Enhancing
Public Access to Codes Act'' or the ``Pro Codes Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Congress, the executive branch, and State and local
governments have long recognized that the people of the
United States benefit greatly from the work of private
standards development organizations with expertise in highly
specialized areas.
(2) The organizations described in paragraph (1) create
technical standards and voluntary consensus standards through
a process requiring openness, balance, consensus, and due
process to ensure all interested parties have an opportunity
to participate in standards development.
(3) The standards that result from the process described in
paragraph (2) are used by private industry, academia, the
Federal Government, and State and local governments that
incorporate those standards by reference into laws and
regulations.
(4) The standards described in paragraph (3) further
innovation, commerce, and public safety, all without cost to
governments or taxpayers because standards development
organizations fund the process described in paragraph (2)
through the sale and licensing of their standards.
(5) Congress and the executive branch have repeatedly
declared that, wherever possible, governments should rely on
voluntary consensus standards and have set forth policies and
procedures by which those standards are incorporated by
reference into laws and regulations and that balance the
interests of access with protection for copyright.
(6) Circular A-119 of the Office of Management and Budget
entitled ``Federal Participation in the Development and Use
of Voluntary Consensus Standards and in Conformity Assessment
Activities'', issued in revised form on January 27, 2016,
recognizes the benefits of voluntary consensus standards and
incorporation by reference, stating that ``[i]f a standard is
used and published in an agency document, your agency must
observe and protect the rights of the copyright holder and
meet any other similar obligations.''.
(7) Federal agencies have relied extensively on the
incorporation by reference system to leverage the value of
technical standards and voluntary consensus standards for the
benefit of the public, resulting in more than 23,000 sections
in the Code of Federal Regulations that incorporate by
reference technical and voluntary consensus standards.
(8) State and local governments have also recognized that
technical standards and voluntary consensus standards are
critical to protecting public health and safety, which has
resulted in many such governments--
(A) incorporating those standards by reference into their
laws and regulations; or
(B) entering into license agreements with standards
development organizations to use the standards created by
those organizations.
(9) Standards development organizations rely on copyright
protection to generate the revenues necessary to fund the
voluntary consensus process and to continue creating and
updating these important standards.
(10) The people of the United States have a strong interest
in--
(A) ensuring that standards development organizations
continue to utilize a voluntary consensus process--
(i) in which all interested parties can participate; and
(ii) that continues to create and update standards in a
timely manner to--
(I) account for technological advances;
(II) address new threats to public health and safety; and
(III) improve the usefulness of those standards; and
(B) the provision of access that allows people to read
technical and voluntary consensus standards that are
incorporated by reference into laws and regulations.
(11) As of the date of enactment of this Act, many
standards development organizations make their standards
available to the public free of charge online in a manner
that does not substantially disrupt the ability of those
organizations to earn revenue from the industries and
professionals that purchase copies and subscription-access to
those standards (such as through read-only access), which
ensures that the public may read the current, accurate
version of such a standard without significantly interfering
with the revenue model that has long supported those
organizations and their creation of, and investment in, new
standards.
(12) Through this Act, and the amendments made by this Act,
Congress intends to balance the goals of furthering the
creation of standards and ensuring public access to standards
that are incorporated by reference into law or regulation.
SEC. 3. WORKS INCORPORATED BY REFERENCE INTO LAW.
(a) In General.--Chapter 1 of title 17, United States Code,
is amended by adding at the end the following:
``Sec. 123. Works incorporated by reference into law
``(a) Definitions.--In this section:
``(1) Circular a-119.--The term `Circular A-119' means
Circular A-119 of the Office of Management and Budget
entitled `Federal Participation in the Development and Use of
Voluntary Consensus Standards and in Conformity Assessment
Activities', issued in revised form on January 27, 2016.
``(2) Incorporated by reference.--
``(A) In general.--The term `incorporated by reference'
means, with respect to a standard, that the text of a
Federal, State, local, or municipal law or regulation--
``(i) references all or part of the standard; and
``(ii) does not copy the text of that standard directly
into that law or regulation.
``(B) Application.--The creation or publication of a work
that includes both the text of a law or regulation and all or
part of a standard
[[Page H4659]]
that has been incorporated by reference, as described in
subparagraph (A), shall not affect the status of the standard
as incorporated by reference under that subparagraph.
``(3) Standard.--The term `standard' means a standard or
code that is--
``(A) a technical standard, as that term is defined in
section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note); or
``(B) a voluntary consensus standard, as that term is used
for the purposes of Circular A-119.
``(4) Standards development organization.--The term
`standards development organization' means a holder of a
copyright under this title that plans, develops, establishes,
or coordinates voluntary consensus standards using procedures
that incorporate the attributes of openness, balance of
interests, due process, an appeals process, and consensus in
a manner consistent with the requirements of Circular A-119.
``(5) Publicly accessible online.--
``(A) In general.--The term `publicly accessible online',
with respect to material, means that the material is
displayed for review in a readily accessible manner on a
public website that conforms with the accessibility
requirements of section 508 of the Rehabilitation Act of 1973
(29 U.S.C. 794d), including the regulations implementing that
section as set forth in part 1194 of title 36, Code of
Federal Regulations, or any successor regulation.
``(B) Rule of construction.--If a user is required to
create an account or agree to the terms of service of a
website or organization in order to access material online,
that requirement shall not be construed to render the
material not publicly accessible online for the purposes of
subparagraph (A), if--
``(i) there is no monetary cost to the user to access that
material; and
``(ii) no personally identifiable information collected
pursuant to such a requirement is used without the
affirmative and express consent of the user.
``(b) Standards Incorporated by Reference Into Law or
Regulation.--A standard to which copyright protection
subsists under section 102(a) at the time of its fixation
shall retain such protection, notwithstanding that the
standard is incorporated by reference, if the applicable
standards development organization, within a reasonable
period of time after obtaining actual or constructive notice
that the standard has been incorporated by reference, makes
all portions of the standard so incorporated publicly
accessible online at no monetary cost and in a format that
includes a searchable table of contents and index, or
equivalent aids to facilitate the location of specific
content.
``(c) Burden of Proof.--In any proceeding in which a party
asserts that a standards development organization has failed
to comply with the requirements under subsection (b) for
retaining copyright protection with respect to a standard,
the burden of proof shall be on the party making that
assertion to prove that the standards development
organization has failed to comply with those requirements.''.
(b) PRO Codes Act Reporting Requirement.--
(1) In general.--The United States Copyright Office is
required to prepare and submit a comprehensive report to the
House Judiciary Committee, which shall include--
(A) a detailed assessment of this Act's effect on case law;
(B) an analysis of this Act's effectiveness in achieving
its stated goals;
(C) a review of any challenges or obstacles encountered
during the implementation process;
(D) recommendations for legislative or regulatory
modifications to improve the effectiveness of this Act; and
(E) an overview of the impact of this Act on the public,
including access to legal information and compliance costs
for governments, businesses, and individuals.
(2) Timeline for submission.--
(A) The initial report must be submitted within two years
of the enactment of this Act.
(B) Subsequent reports shall be submitted every five years
on the anniversary of the first report's submission.
(c) GAO Study on Disadvantaged Communities.--
(1) Study directed.--The Comptroller General of the United
States shall conduct a study on the potential disparate
impact of this Act on historically disadvantaged communities.
(2) Elements of the study.--The study shall include, but
not be limited to:
(A) An analysis of how limited access to technical
standards incorporated in the PRO Codes Act could
disproportionately hinder the ability of historically
disadvantaged communities to assert their legal rights and
advocate for legal reforms.
(B) An assessment of how the potential costs associated
with accessing standards could create additional barriers for
residents of historically disadvantaged communities seeking
to understand and enforce their rights.
(C) An examination of potential disparities in outcomes for
historically disadvantaged communities arising from the
implementation of the PRO Codes Act.
(D) Recommendations on ways to mitigate any identified
disparate impacts on historically disadvantaged communities.
(3) Report.--The Comptroller General shall submit a report
to Congress within two years of the enactment of this Act,
detailing the findings of the GAO Study on the impact of PRO
Codes on historically disadvantaged communities from
paragraphs (1) and (2).
(d) Study of Costs for States, Cities, Municipalities,
Counties, Special Districts, Associated With Standards
Incorporated by Reference (SIBR).--
(1) Requirement for cost analysis.--The Comptroller General
of the United States shall conduct a comprehensive study of
the costs associated with the implementation of this Act.
This study will encompass levels of government, including
state, cities, municipalities, counties, and special district
governments, to ensure a complete understanding of the
potential financial impact.
(2) Scope of analysis.--The analysis shall include, but not
be limited to:
(A) Fees charged by Standard Development Organizations to
state, cities, municipalities, counties, and special district
governments for access to standards incorporated by
reference.
(B) An analysis of indirect costs to state, cities,
municipalities, counties, and special district governments
associated with compliance with this Act.
(3) Reporting.--The Comptroller General shall submit a
report to Congress within two years of the enactment of this
Act, detailing the findings of the cost analysis required
under paragraph (2). The report shall include recommendations
on potential actions to improve cost-effectiveness related to
SIBRs.
(e) U.S. Government Accountability Office (GAO) Study on
Consumers.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on consumers.
(2) Elements of the study.--
(A) Implications for consumer protection under this Act.
(B) Potential for increased costs or confusion among
consumers due to new regulations.
(C) Accessibility of information about rights and
protections for consumers under this Act.
(D) Recommendations to enhance consumer protection and
information accessibility.
(3) Report.--The Comptroller General shall submit a report
to Congress within one year of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on consumers.
(f) U.S. Government Accountability Office (GAO) Study on
Digital Privacy and Data Protection.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on digital privacy and data protection.
(2) Elements of the study.--
(A) Analysis of how this Act affects the protection of
personal data.
(B) Evaluation of the Act's compliance requirements related
to data security.
(C) Recommendations for strengthening digital privacy
protections.
(3) Report.--The Comptroller General shall submit a report
to Congress within 18 months of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on digital privacy and data protection.
(g) U.S. Government Accountability Office (GAO) Study on
Access to the Law.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the impact of this Act
specifically on platforms that offer legal codes online at no
cost to the public. The study will assess how the Act
influences these platforms' operations and the public's
access to and understanding of the law.
(2) Elements of the study.--
(A) Assessment of how this Act influences the operations of
online platforms that provide public access to legal codes
and other regulatory documents.
(B) Evaluation of the Act's provisions that may limit or
enhance public accessibility to legal information via these
platforms.
(C) Analysis of potential barriers introduced by the Act
that could hinder public understanding of legal standards and
codes.
(D) Recommendations for amendments or new provisions to
ensure continued and enhanced public access to legal codes
and standards, fostering transparency and legal literacy.
(3) Report.--The Comptroller General shall submit a report
to Congress within two years of the enactment of this Act,
detailing the findings of the GAO Study.
(h) U.S. Government Accountability Office (GAO) Study on
Inclusive of Accessibility and Usability Standards for People
With Disabilities.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the impact of this Act on
disabled populations, specifically assessing whether the
Act's definition of ``publicly accessible'' is sufficiently
inclusive of accessibility and usability standards for people
with disabilities.
(2) Elements of the study.--
(A) Evaluation of how the accessibility provisions of this
Act impact the ability of people with disabilities to access
and use public codes and standards.
(B) Examination of current gaps in accessibility that may
prevent full participation of disabled individuals in public
and legal affairs as affected by the Act.
(C) Recommendations to ensure this Act aligns with federal
accessibility standards and effectively serves the needs of
the disabled community.
(3) Report.--The Comptroller General shall submit a report
to Congress within 18 months of the enactment of this Act,
detailing the findings of the GAO Study on the accessibility
of this Act for disabled populations.
(i) U.S. Government Accountability Office (GAO) Study on
Affordable Housing.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on the development and accessibility of affordable
housing.
(2) Elements of the study.--
(A) Analysis of this Act's impact on the costs and
regulatory barriers to building affordable housing.
(B) Evaluation of the Act's impact on the availability of
affordable housing units in urban and rural areas.
(C) Assessment of the Act's cost on affordable housing
projects.
[[Page H4660]]
(3) Report.--The Comptroller General shall submit a report
to Congress within two years of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on affordable housing.
(j) U.S. Government Accountability Office (GAO) Study on
SDO Access Conditions.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on whether Standards Development
Organizations (SDOs) condition access to standards under this
Act by requiring users to create accounts, agree to
restrictive terms of service, or meet other potentially
burdensome conditions.
(2) Elements of the study.--
(A) Assessment of the extent to which SDOs impose
conditions that could restrict public access to standards and
legal codes, such as account creation, agreement to terms of
service, or other barriers.
(B) Evaluation of the impact of these conditions on the
public's ability to freely access, distribute, share, and
print essential legal information.
(C) Analysis of potential violations of the fundamental
principle that laws should be accessible without undue
restrictions, considering the implications for transparency
and accountability.
(D) Recommendations for legislative or regulatory measures
to ensure that access to legal information under this Act is
not conditioned on undue or discriminatory terms.
(3) Report.--The Comptroller General shall submit a report
to Congress within 18 months of the enactment of this Act,
detailing the findings of the GAO Study.
(k) U.S. Government Accountability Office (GAO) Study on
Executive Compensation at SDOs.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on executive compensation within
Standards Development Organizations (SDOs), particularly
those with substantial revenue streams and tax-exempt status.
(2) Elements of the study.--
(A) Analysis of the revenue sources of large SDOs,
including details on income from sales of publications, fees
for training and certification services, and membership dues.
(B) Examination of the scale of executive compensation at
these organizations, including total executive compensation
as a proportion of total revenues and in comparison to
industry standards.
(C) Evaluation of the governance practices related to
executive compensation at SDOs, including transparency,
accountability, and alignment with nonprofit organization
standards.
(D) Recommendations for potential regulatory or legislative
actions to ensure that executive compensation at tax-exempt
SDOs remains within reasonable limits and aligns with best
practices for nonprofit management.
(3) Submission.--The Comptroller General shall submit this
report to Congress within 18 months of the enactment of this
Act, detailing the findings of the GAO.
(l) U.S. Government Accountability Office (GAO) Study on
This Act and Homeowner Costs for Building Code Access.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on how this Act would affect the
costs imposed on homeowners' access to building codes.
(2) Elements of the study.--
(A) Examination of the financial impact on homeowners,
particularly focusing on how these costs might deter
necessary maintenance, safety upgrades, and other costs
associated with renovations.
(B) Evaluation of how this Act would affect the
availability and affordability of building codes across
different regions and income groups.
(C) Recommendations for improving this Act to make building
codes more accessible and affordable for homeowners.
(3) Report.--The Comptroller General shall submit a report
to Congress within 18 months of the enactment of this Act.
(m) U.S. Government Accountability Office (GAO) on Small
Businesses.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on small businesses.
(2) Elements of the study.--
(A) The extent to which compliance burdens are affected by
this Act.
(B) Analysis of small businesses' ability to compete with
larger entities under the new regulatory framework.
(C) Availability and effectiveness of legal resources for
small businesses navigating this Act.
(D) Recommendations to mitigate any identified negative
impacts on small businesses.
(3) Report.--The Comptroller General shall submit a report
to Congress within one year of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on small businesses.
(n) U.S. Government Accountability Office (GAO) Study on
First Amendment Rights.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on First Amendment rights, specifically the public's
ability to access, read, share, and debate the law, including
codes incorporated by reference.
(2) Elements of the study.--
(A) Analysis of how this Act may lead standard development
organizations to place the law behind paywalls, thus
restricting public access to essential legal information and
potentially violating First Amendment rights.
(B) Evaluation of the economic, legal, and social impacts
of restricting public access to codes and standards
referenced in the Act.
(C) Examination of precedents and legal interpretations
regarding public access to laws and how they align with First
Amendment protections.
(D) Recommendations for legislative or regulatory changes
to ensure that all laws and standards referenced in the Act
are accessible without undue financial or procedural
barriers.
(3) Report.--The Comptroller General shall submit a report
to Congress within one year of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on First Amendment rights.
(o) Technical and Conforming Amendment.--The table of
sections for chapter 1 of title 17, United States Code, is
amended by adding at the end the following:
``123. Works incorporated by reference into law.''.
SEC. 4. STUDY OF STANDARDS COST TO GOVERNMENTS.
(a) In General.--The Comptroller General of the United
States shall conduct a study on the financial impact to
federal, state, and local governments in the United States
associated with acquiring access to standards incorporated by
reference into law.
(b) Scope.--The study under subsection (a) shall--
(1) Analyze the total expenditure by government entities
for accessing these standards;
(2) Assess any financial burdens or resource constraints
these costs impose on governments, particularly for smaller
municipalities;
(3) Evaluate the cost-effectiveness of current mechanisms
for acquiring these standards; and
(4) Examine the impacts on public services due to the costs
associated with accessing these standards.
(c) Report.--Not later than 2 years after the date of the
enactment of this Act, the Comptroller General shall submit a
report to Congress that includes--
(1) The findings of the study conducted under subsection
(a); and
(2) Recommendations to mitigate any adverse financial
impacts identified by the study, including suggestions for
legislative or administrative actions as appropriate.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
California (Mr. Issa) and the gentleman from New York (Mr. Nadler) each
will control 20 minutes.
Ms. LOFGREN. Mr. Speaker, I claim the time in opposition.
The SPEAKER pro tempore. Is the gentleman opposed to the motion?
Mr. NADLER. Mr. Speaker, no.
The SPEAKER pro tempore. As such, the gentlewoman from California
(Ms. Lofgren) will control 20 minutes in opposition.
General Leave
Mr. ISSA. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks and
include extraneous material on H.R. 1631.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this bill is not without controversy. You will see it
here today, but this bill couldn't be more important because it
maintains the balance that for more than 100 years has allowed people
to have access to the right material necessary to understand the
complex laws of the building code, the fire code, automotive standards,
and the like.
There have been complaints from one side that we don't go far enough,
that we allow any free access to these copyrighted materials. As you
will hear today, there are those who believe that they should all be
free, throwing out more than 200 years of tradition that those who
produce materials are entitled to their copyright and the protection
that comes with it.
Mr. Speaker, I reserve the balance of my time.
Ms. LOFGREN. Mr. Speaker, I yield myself such time as I may consume.
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.
[[Page H4661]]
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.
{time} 1715
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.
Mr. Speaker, I reserve the balance of my time.
Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, where do I begin? The gentlewoman is aware that in
previous Congresses we have held hearings, and this bill is not new,
but in fact is in its third iteration before the Congress.
Additionally, she is right, we did schedule a markup, and the
gentlewoman objected. We waited, and we scheduled it again. A quorum
being present, by a vote of 19-4, overwhelmingly it was passed out of
the Judiciary Committee, the committee of jurisdiction for copyright.
Just for the purpose of the Speaker, I want to read one clause of the
Constitution. Article I, Section 8, Clause 8: ``[The Congress shall
have power] to promote the progress of science and useful arts, by
securing for limited times to authors and inventors the exclusive right
to their respective writings and discoveries.''
Mr. Speaker, that is a solemn obligation of the Constitution. For
nearly 250 years, we have made sure that, in fact, authors, musicians,
anyone producing copyrighted material, have had protection. We have
not, historically, even partially opened that up.
In this case, we have gone much further on this legislation. We have
provided a form of fair use. Any citizen can go online and read any
part of any of these documents, thousands of pages. They can look at
them, they can take notes. They can do any number of things. What they
can't do is distribute it to others, circumventing the copyright.
To put it in perspective, for the first 100-plus years of this, there
was no controversy. They printed books, and they sold the books, and it
was a copyright violation if you copied the book, if you made a
duplicate of it. Nobody argued that because it made common sense.
This makes common sense, too. We are making 100 percent of the
material contained in any of these pro codes available. What we are not
doing is allowing people to say they are giving something that in fact
they have stolen from the author.
Mr. Speaker, I reserve the balance of my time.
Ms. LOFGREN. Mr. Speaker, I reserve the balance of my time.
Mr. ISSA. Mr. Speaker, I yield 5 minutes to the gentleman from New
York (Mr. Nadler), the ranking member of the full committee.
Mr. NADLER. Mr. Speaker, the Pro Codes Act is sensible, bipartisan
legislation that strikes a balance between copyright protection and
public access to information, thus resolving a clear uncertainty in the
law.
This legislation would allow standards developing organizations, or
SDOs, to retain their copyrights when their standards are incorporated
by reference into the law, so long as they make a copy freely available
online.
SDOs are organizations that develop and publish standards to govern
certain highly technical industries. These best practices govern
everything from consumer safety and household utility installation to
home electrical wiring and plumbing planning.
SDOs make sure that your house won't catch on fire, your plumbing is
up to code, your water boiler is installed correctly, and everything in
between. You rely on your local contractor, and your contractor relies
on their SDO standards.
State and local legislatures, which generally do not have the
requisite experts on staff to write highly technical standards, often
choose to incorporate rigorously developed and diligently updated SDO
standards by reference into the law. In this way, legislators can key
their State's laws to codes that are regularly updated, as mistakes are
fixed, new methods are developed, and technological advancements are
incorporated into best practices.
However, this practice exists at the crux of a dilemma in American
intellectual property law today. On one hand, everyone typically
benefits when local, State, or Federal legislators adopt content
developed by SDOs into their laws. The law benefits from dynamic safety
codes created by experts in their fields, and SDOs in turn benefit from
more customers for their published works. If the copyright to that
material were taken away, the incentives for the SDOs would disappear
and the mutually beneficial relationship would no longer exist.
On the other hand, Americans also have an essential interest in
knowing that they can access the laws that govern them. Because of this
principle, once a code is enacted into law, Americans must have access
to this information because if you can't find the code, you don't know
how it will affect you.
The Pro Codes Act seeks to find the middle ground between these two
competing interests. This legislation would
[[Page H4662]]
allow SDOs to retain their copyrights when their standards are
incorporated by reference into the law so long as they make a copy
available online at no cost.
Although I support this legislation, I do want to note that the bill
could have been improved further had we held a hearing, as I and others
had requested. A hearing would have enabled Members to ask questions of
stakeholders with various viewpoints, to make any necessary
refinements, and to convince more of our colleagues that this bill is
the right path forward. Unfortunately, that process did not occur. Be
that as it may, I still believe that this legislation would improve our
laws by protecting SDOs' intellectual property rights while ensuring
that Americans have access to the laws that bind them.
I thank Chairman Issa and Congresswoman Ross for introducing this
bipartisan legislation. I urge all Members to support this legislation.
Ms. LOFGREN. Mr. Speaker, I reserve the balance of my time.
Mr. ISSA. Mr. Speaker, I yield 2 minutes to the gentlewoman from
North Carolina (Ms. Ross).
Ms. ROSS. Mr. Speaker, I rise in support of the Pro Codes Act, which
I am proud to lead alongside Representative Issa.
The Pro Codes Act is a commonsense solution that balances providing
free, public access to codes and standards that have been incorporated
into law with ensuring that important code development work can
continue.
The industry codes and standards that keep us healthy and safe every
day are created by standards development organizations, SDOs, which
regularly convene experts to write and modify standards to ensure
electrical codes, building codes, crisis management codes, and more are
up to date.
Importantly, the standards the SDOs put out are approved by consensus
and adopted by industries voluntarily. However, Congress and Federal
agencies have recognized repeatedly that government should rely on
these standards whenever possible, which has led to their incorporation
into law.
I firmly believe that codes that have been incorporated into law
should be available to the public at no cost, and this bill recognizes
that. It is why it requires these codes to be available online. That
said, code development costs money, and SDOs cannot operate without
funding, and they earn that funding by maintaining copyrights to their
codes, which allows them to sell print copies and access to their work.
These sales fund code development at no cost to the taxpayer.
Ultimately, this bill strikes a critical balance between having good,
safe codes and having public access.
Mr. Speaker, I urge my colleagues to support this bill.
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/.
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
[[Page H4663]]
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.
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. We should not support the
bill, and I reserve the balance of my time.
Mr. ISSA. Mr. Speaker, I continue to reserve.
Ms. LOFGREN. Does the gentleman have additional speakers?
Mr. ISSA. Mr. Speaker, I do not have additional speakers at this
time.
Ms. LOFGREN. Mr. Speaker, may I inquire how much time is remaining.
The SPEAKER pro tempore. The gentlewoman has 11 minutes remaining.
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.
{time} 1730
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 reserve the balance of my time.
Mr. ISSA. Mr. Speaker, may I inquire as to how much time is
remaining.
The SPEAKER pro tempore. The gentleman has 11\1/2\ minutes remaining.
Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, there are a couple of things I want to set straight. The
gentlewoman regularly talks about cost. The bill clearly says at no
cost. This material has to be available at no cost.
The gentlewoman continues talking about private information. It makes
it clear, in the amended portion of this bill, that private information
is safeguarded. Notwithstanding that, for everyone in America who has
used a computer, all these entities ask for is, in fact, to log in with
a name and identification. This facilitates better service when you
return.
However, we also all know that anybody can get a free Gmail account
under any name, so the idea that you are giving out personally
identifiable information, that is a choice if you use yours rather than
a one-time-use Gmail or other mail you may have just gotten.
As a matter of fact, this is no more invasive than when I log in to
do my
[[Page H4664]]
Wordle daily with The New York Times, and I feel pretty comfortable
that I am safe there.
Lastly, I want to make sure we understand that these books and their
digital versions are not just laws. These books, by testimony even from
Mr. Massie, a distinguished member of the committee, are how-to books.
Extensively, Mr. Massie, one of the four votes that sided with Ms.
Lofgren, in fact, told us how he used the book as a guideline to do
construction of his own home.
In open court, he said that he didn't go to get a permit. He wasn't
trying to comply with the law. He used the book because it taught him
how to do a good job. He used it sometimes and didn't use it others.
I am paraphrasing my colleague, and I hope I have done it accurately,
but in fact, it is clear that there is so much more information than
just a law.
We all pore through laws in this body. We know what laws look like.
Laws are so complex in the way they are written that usually you need a
separate book to understand them, and this is no exception.
If we do not protect the copyright here as the Constitution requires,
we will regret it because, in fact, a building code that says, yes, you
must have so many electrical plugs between a certain place doesn't tell
you that you can have more, doesn't tell you how to do more, doesn't
teach you.
These books published by the standard-setters for generations have
been how-to. They have been available in libraries to read, but not to
make copies of. They have been available online, as the gentlewoman
said, but, in some cases, without the protections we seek today.
I want to close this portion of my statement by saying one thing: The
gentlewoman made a point that some of these organizations do have large
revenues. Most are nonprofits, and they exist for the benefit of
producing these standards. This body does not look at a copyright
holder and say that because a songwriter or musician is making good
money, his song should be given away for free. How much you make and
how you spend it, especially for a nonprofit, should never be
questioned as to whether or not they are entitled to a copyright.
Mr. Speaker, I reserve the balance of my time, and I am prepared to
close.
Ms. LOFGREN. Mr. Speaker, I yield myself the balance of my time.
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.
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
[[Page H4665]]
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.
Mr. Speaker, I yield back the balance of my time.
Mr. ISSA. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, there are a number of things that I think we want to
settle for the record here today.
First of all, the protecting of privacy is important, but let's
understand, for the first 230 years or 220 years of our existence, we
didn't have an internet. We printed documents.
Only the ability to digitally copy somebody's copyrighted material
and then put it out on the internet created this situation. The courts
have tried to grapple with the internet, but they failed in this case.
Let me give you a good example. If you were to open those books or
the online version of them, you would see diagrams. I am going to tell
you, Mr. Speaker, I have gone through a few lawbooks in my time. I have
never seen a diagram. A diagram is more than a law. A diagram or a
picture or details of how to or multiple alternatives of how one can
safely do something, all of those things are, in fact, not within the
law.
{time} 1745
As a matter of fact, the calculation, the formulas on which you can
calculate different uses, how much, what size wire to use for a certain
amount of amps over a certain distance, all of those things are
teaching. These teaching books have been around now for most of our
time.
In fact, these organizations have books that they sell in vast
amounts. It is only those books that basically continue to give them
revenue. The idea that over time we may obsolete books is an idea that
we would over time obsolete the ability of these people to create these
how-to guides without the government paying for them.
The gentlewoman may be comfortable with the government paying for
people to meet and produce these things. She may even be comfortable
with the idea that these things would be printed as the document itself
in the law, but I am sure she would be uncomfortable looking at that
much law sitting there and then somebody saying: It doesn't tell me how
to do it.
I will tell you one thing about the government. They passed the IRS
laws, but it takes a legion of private-sector companies to teach you
how to file your income tax. That is really where we are.
Whether it is the diagrams or our constitutional responsibility which
we are meeting here today to ensure that the authors are fairly
compensated, this bill narrowly provides a balance that enables us to
continue to support copyright for those who create it and those who
provide this important service.
Mr. Speaker, I urge passage, and I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from California (Mr. Issa) that the House suspend the rules
and pass the bill, H.R. 1631, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Ms. LOFGREN. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
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