Nope, the law lists those standards as a guideline, that if you follow that standard you fulfill the law, which basically is the easy route. You are allowed to go the hard way and defining your own standard, but then you are obliged to prove that it still fulfill the requirements of the law.
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I cannot be the only person who keeps confusing Carl Malamud with Bernard Malamud.
Anyone? Donāt be embarrassed, Iām sure itās pretty common.
There are no ālegal factsā All lawyers do is argue. And they argue with the intent to win, unlike, say, scientists (like NDGTyson) who may argue about the interpretation of data, but with the intent to get to the truth, not to win. If the law were a set of facts, we wouldnāt need the bleeping lawyers in the first place.
Itās perfectly clear that these DIN standards are not law. If someone sues you claiming that your product caused injury, then your defence is helped if your product conformed to the latest standards. You can make a product thatās not specifically compliant with a standard - if itās nevertheless safe, no one will be injured and no-one will have grounds to sue you. You can read the standards in public copyright libraries if you need to. If youāre serious about a business venture then the cost of a standard ($100-$200) is negligible. More to the point, if you get sued and turn up in court with your stated defence being that you think your product is compliant with a pirated, possibly out-of-date copy of a safety standard that you found on the web somewhere, do you still have a viable defence? Surely the prosecutors will have a field day painting you as the individual who was so cavalier and negligent of your customers safety, that you didnāt even bother to buy the relevant safety literature first hand.
If Carl Malamud publishes pirated copies of these standards, does he become a co-defendant if someone who used a pirated copy of a standard that he released, and is subsequently sued for negligence?
I hope the courts do grant a summary judgement in favour of the publishers. I also have a morbid curiosity as to what defence Carl Malamudās lawyers could possibly offer? The standards are guidelines but not laws. The copyright is obviously breeched. Carl Malamud has boasted that heās responsible for posting them on the internet. That leaves ā¦ insanity?
The damages the publishers are asking for are high, but the court isnāt required to follow the plaintiffs request when determining damages. A suitable redress would be the forfeiture of all assets (scanners, cameras, equipment, computers, servers, domain registrations) that were used to violate the copyright here, a moderate but not life-ruining fine, and a court order not to publish further copyrighted material online, on pain of say 5 years in jail, to try to get the message across to him.
Itād be tragic if Carl Malamud has to re-mortgage his house for the sake of publishing a standard that likely no-one will ever refer to, out of a misguided belief that heās carrying out a public service.
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In this case, there are facts.
First, it is a legal fact that the published documents are not laws.
Second, it is also a legal fact, that they are copyrighted documents protected under national and international copyright legislation.
Third, it is a fact that this is not the German state or government threatening someone.
This blog post is a joke and reeks of bad fact checking.
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Do you know whether āfair useā might allow Malamud an exception under German law? Itās clear that in the USA, publishing the full text of a copyrighted standard is not fair use, because:
- reproducing the text verbatim is neither transformative nor creative,
- whereas publishing short extracts verbatim can be fair use, publishing the whole copyrighted work is generally never fair use, and
- A complete verbatim copy can be expected to negatively impact owners of the copyright in the original work, because they have invested creative effort in producing the original, and they reasonably expect to recoup payment from the sales of their efforts.
Possibly if Malamud has done a much better effort in marking up the text and making it searchable, he could argue that his presentation of the work is ātransformativeā in function and therefore qualifies as fair use. ā¦ but if there was a betting market in court case outcomes, on this Iād be wagering that either they settle out of court, or Malamud goes to the wall.
There is nothing quite comparable to the fair use doctrine in German copyright law; technically, that (āGerman copyright lawā) is a bit of a misnomer in any case because the entire legal construct of intellectual property and its ownership is quite different.
One striking difference being that you cannot disclaim or transfer your intellectual property rights granted by virtue of being the author/originator, you can only license them to someone else.
This case is entirely clear cut: Malamud will have to settle or lose.
His activism was, in my opinion, misguided.
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Well, finding a physical library that has copies of them is not going to be easy, and interlibrary loan is not a whole solution. Houstonās public library system stopped updating their ANSI standards collection several years ago due to cost, space, and lack of interest. (That last one is kind of chicken-and-egg, but itās still a real issue.)
Actually, the Federal Register is currently taking comments (until Dec 31st 2013) from the public on a revision to the āincorporation by referenceā rules.
The proposal is that any text that creates a fixed obligation on the public cannot be incorporated by reference unless it is available at no cost on a public website.
I think that neatly captures the difference between āstandardsā that are non-obligatory but nevertheless sensible to follow, and laws, that must be followed (and must be freely disseminated)
A more basic problem with this case is that the DIN standards Malamud posted are not actually incorporated by reference in the OJEU(!) - even if the court accepted Malamudās argument that standards incorporated by reference should be exempt from copyright, heās got the problem that the specific standards heās chosen to publish have never actually been incorporated by reference.
Might be a cultural thing here - common law vs. civil lawā¦ But in most jurisdictions it is pretty clear what a ālawā is, and at least by exclusion what is not a law, and I call that a ālegal factāā¦ though I agree that scientific facts do have a lot more substance 
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