Carl Malamud's testimony on copyrighting the law


Cory, ship Mr. Malamud your cape and goggles immediately. He’s earned them. I imagine he already has his own high-altitude balloon.

His statement is well-written and very accessible - easy enough to understand completely, yet it has great impact. I’m keeping my fingers crossed. This should go well…


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  • Suppose we had a law stating everyone must carry a fish when driving their car on the interstate.
  • Suppose an organisation called ANSI starts selling haddock at all the turnpikes
  • Suppose the Federal Register incorporates by reference the fact that haddock are a type of fish.

Malamud would then argue that the only way to satisfy the law is to drive the car with a haddock, and that it’s unfair that ANSI holds a monopoly on haddock.

In fact, all anyone has to to to satisfy the hypothetical law is prove that they also have a fish (mackerel, cod, tuna, etc) in their car. They do not need to use an ANSI approved haddock, even if ANSI has established a robust legal precedent that all haddock are indeed fish.

The same is true of building codes and safety standards.

The standards produced by ANSI and the like are one way, amongst many, of satisfying the law. If you follow their standards, you can be reasonably sure that you have satisfied the legal requirements governing your work, and you might pay for the convenience of having a standard prepared for you.

If Malamud wants to publish free standards that allow compliance with the law, his option is to devise an independent standard that meets the same legal requirements for approval as ANSI and the like have already met. Then after conducting his work, he can give the results of his work away for free.

Way to misstate the case. The law is more likely to say, “drive with an ANSI approved haddock” than mention specifics. Also ANSI doesn’t establish legal precedent.

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You’ve completely mis-stated the situation. The law says you must carry a fish, but the only way for you to find out what kind of fish, or even that you need a fish is to buy a $1800 copy of the law.


Predicted argument: “If these standards become public information, then the terrorists will know how our critical infrastructure works.”

I’m expecting more along the lines of “The publishers and distributors spent a lot of time and effort packaging up the laws for sale, if you put them in the public domain you will destroy our business model.”

Protectionism for outdated business models is generally pretty easy to get through most legislative bodies. You can show direct harm if they pass the law “These voters will lose their job, and we’ll go out of business.” and the other side can only offer nebulous talk about increased efficiencies, justice, and the public good.

You’ve completely mis-stated the situation. The law says you must carry a fish, but the only way for you to find out what kind of fish, or even that you need a fish is to buy a $1800 copy of the law.

It’s possible I’ve misunderstood, but I don’t think so. The law says you must take all steps reasonably practical to be safe when you sell a product (for instance) and then various standards institutes sell codes of practice that they claim represent a consensus on the way to realise safe products.

If you get sued for selling a dangerous product because it injured someone and you’ve not followed a standard, you might have a harder time defending against a claim. But if you know what you’re doing you don’t need to follow any given standard explicitly, since your product is safe, and no one has grounds to sue you.

Stop. Stop now before that hole you’re digging for yourself hits magma.

Dan, you’re wrong, at least for the standards that I deal with. These standards are incorporated by reference into law. The building code becomes the text of the law, not simply a suggestion. The safety standard for protective footware or the transport of flammable gas or for the testing of lead in water is the law, no different than a regulation authored directly by the regulatory agency or building commission.

There are indeed “performance” standards, which indicate one way to fulfill a task, but in the case of standards incorporated by reference into the Code of Federal Regulations, or the codes adopted in toto by state regulators, those are part and parcel of the law, rules of general applicability that are binding on the citizens. As such, citizens must inform themselves.

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