Aaron Swartz was a digital rights champion who believed deeply in keeping the internet open. His life was cut short in 2013, after federal prosecutors charged him under the Computer Fraud and Abuse Act (CFAA) for systematically downloading academic journal articles from the online database JSTOR. Facing the prospect of a long and unjust sentence, Aaron died by suicide at the age of 26. EFF was proud to call Aaron a friend and ally.

Today, November 8, would have been his 38th birthday.  On November 9, the organizers of Aaron Swartz Day are celebrating his life with a guest-packed podcast featuring those carrying on the work around issues close to his heart. Hosts Lisa Rein and Andre Vinicus Leal Sobral will speak to: 

• Ryan Shapiro, co-founder of the national security  transparency non-profit Property of the People
• Nathan Dyer of SecureDrop, Newsroom Support Engineer for the Freedom of the Press Foundation.
• Tracey Jaquith, Founding Coder and TV Architect at the Internet Archive
• Tracy Rosenberg, co-founder of the Aaron Swartz Day Police Surveillance Project and Oakland Privacy
• Brewster Kahle founder of the Internet Archive
• Ryan Sternlicht, VR developer, educator, researcher, advisor, and maker
• Grant Smith Ellis, Chairperson of the Board, MassCann and Legal Intern at the Parabola Center
• Michael “Mek” Karpeles, Open Library, Internet Archive

The podcast will start at 2 p.m. PT/10 p.m. UTC. Please read the official page of the Aaron Swartz Day and International Hackathon for full details.

If you're a programmer or developer engaged in cutting-edge exploration of technology, please check out EFF's Coders' Rights Project.

Our laws belong to all of us, and we should be able to find, read, and comment on them free of registration requirements, fees, and other roadblocks. That means private organizations shouldn’t be able to control who can read and share the law, or where and how we can do those things. But that’s exactly what some industry groups are trying to do.

EFF has been fighting for years to stop them. The most recent instance is ASTM v. Upcodes. ASTM, an organization that develops technical standards, claims it retains copyright in those standards even when they’ve become binding law through “incorporation by reference.” When a standard is incorporated “by reference,” that means its text is not actually reprinted in the body of the government’s published regulations. Instead, the regulations include a citation to the standard, which means you have to track down a copy somewhere else if you want to know what the law requires.

 Incorporation by reference is common for a wide variety of laws governing the safety of buildings, pipelines, consumer products and so on. Often, these are laws that affect us directly in our everyday lives—but they can also be the most inaccessible. ASTM makes some of those laws available for free, but not all of them, and only via “reading rooms” that are hard to navigate and full of restrictions. Services like UpCodes have emerged to try to bridge the gap by making mandatory standards more easily available online. Among other things, UpCodes has created a searchable online library of some of the thousands of ASTM standards that have been incorporated by reference around the country. According to ASTM, that’s copyright infringement.

 EFF litigated a pair of cases on this issue for our client Public.Resource.Org (or “Public Resource”). We argued there that incorporated standards are the law, and no one can own copyright in the law. And in any event, it’s a fair use to republish incorporated standards in a centralized repository that makes them easier to access and use. In December 2023, the D.C. Circuit Court of Appeals ruled in Public Resource’s favor on fair use grounds.

 Based on our experience, we filed an amicus brief supporting UpCodes, joined by Public Knowledge and iFixit, Inc. and with essential support from local counsel Sam Silver and Abigail Burton at Welsh & Recker.  Unlike our cases for Public Resource, in UpCodes the standards at issue haven’t been directly incorporated into any laws. Instead, they’re incorporated by reference into other standards, which in turn have been incorporated into law. As we explain in our brief, this extra degree of separation shouldn’t make a difference in the legal analysis. If the government tells you, “Do what Document A says,” and Document A says, “Do what Document B says,” you’re going to need to read Document B to know what the government is telling you to do.

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Tell Congress: Access To Laws Should Be Fully Open

At the same time that we’re fighting this battle in the courts, we’re fighting a similar one in Congress. The Pro Codes Act would effectively endorse the claim that organizations like ASTM can “retain” copyright in codes, even after they are made law, as long as they make the codes available through a “publicly accessible” website—which means read-only, and subject to licensing limits. The Pro Codes Act recently fell short of the necessary votes to pass through the House, but it’s still being pushed by some lawmakers.

Whether it’s in courts or in Congress, we’ll keep fighting for your right to read and share the laws that we all must live by. A nation governed by the rule of law should not tolerate private control of that law. We hope the court in UpCodes comes to the same conclusion.

It’s bad enough when a patent holder enforcing their rights in court try to exclude the public from those fights. What’s even worse is when courts endorse these secrecy tactics, just as a federal court hearing an EFF unsealing motion ruled in May. 

EFF continues to push for greater transparency in the case, Entropic Communications, LLC v. Charter Communications, Inc.,  and is asking a federal court of appeals to reverse the decision. A successful appeal will open this case to the public, and help everyone better understand patent disputes that are filed in the U.S. District Court for the Eastern District of Texas.

Secrecy in patent litigation is an enduring problem, and EFF has repeatedly intervened in lawsuits involving patent claims to uphold the public’s right to access court records. And in this case, the secrecy issues are heightened by the parties and the court believing that they can jointly agree to keep entire records under seal, without ever having to justify the secrecy. 

This case is a dispute between a semiconductor products provider, Entropic, and one of the nation's largest media companies, Charter, which offers cable television and internet service to millions of people. Entropic alleged that Charter infringed its patents (U.S. Patent Nos. 8,223,775; 8,284,690; 8,792,008; 9,210,362; 9,825,826; and 10,135,682) which cover cable modem technology. 

Charter has argued it had a license defense to the patent claims based on the industry-leading cable data transmission standard, Data Over Cable Service Interface Specification (DOCSIS). The argument could raise a core legal question in patent law: when is a particular patent “essential” to a technical standard and thus encumbered by licensing commitments?  

But so many of the documents filed in court about this legal argument are heavily redacted, making it difficult to understand. EFF filed to intervene and unseal these documents in March. EFF’s motion in part targeted a practice that is occurring in many patent disputes in the Texas district court, whereby parties enter into agreements, known as protective orders. These agreements govern how parties will protect information they exchange during the fact-gathering portion of a case. 

Under the terms of the model protective order created by the court, the parties can file documents they agree are secret under seal without having to justify that such secrecy overrides the public’s right to access court records. 

Despite federal appellate courts repeatedly ruling that protective orders cannot short-circuit the public’s right of access, the district court ruled that the documents EFF sought to unseal could remain secret precisely because the parties had agreed. Additionally, the district court ruled that EFF had no right to seek to unseal the records because it filed the motion to intervene and make the records public four months after the parties had settled. 

EFF is disappointed by the decision and strongly disagrees. Notably, the opinion does not cite any legal authority that allows parties to stipulate to keep their public court fights secret. As said above, many courts have ruled that such agreements are anathema to court transparency. 

Moreover, the court’s ruling that EFF could not even seek to unseal the documents in the first place sets a dangerous precedent. As a result many court dockets, including those with significant historic and newsworthy materials, can become permanently sealed merely because the public did not try to intervene and unseal records while the case was open. 

That outcome turns the public’s right of access to court records on its head: it requires the public to be extremely vigilant about court secrecy and punishes them for not knowing about sealed records. Yet the entire point of the presumption of public access is that judges and litigants in the cases are supposed to protect the public’s right to open courts, as not every member of the public has the time and resources to closely monitor court proceedings and hire a lawyer to enforce their public rights should they be violated.

EFF looks forward to vindicating the public’s right to access records on appeal. 

We should all have the freedom to read, share, and comment on the laws we must live by. But yesterday, the House Judiciary Committee voted 19-4 to move forward the PRO Codes Act (H.R. 1631), a bill that would limit those rights in a critical area. 

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Tell Congress To Reject The Pro Codes Act

A few well-resourced private organizations have made a business of charging money for access to building and safety codes, even when those codes have been incorporated into law. 

These organizations convene volunteers to develop model standards, encourage regulators to make those standards into mandatory laws, and then sell copies of those laws to the people (and city and state governments) that have to follow and enforce them.

They’ve claimed it’s their copyrighted material. But court after court has said that you can’t use copyright in this way—no one “owns” the law. The Pro Codes Act undermines that rule and the public interest, changing the law to state that the standards organizations that write these rules “shall retain” a copyright in it, as long as the rules are made “publicly accessible” online. 

That’s not nearly good enough. These organizations already have so-called online reading rooms that aren’t searchable, aren’t accessible to print-disabled people, and condition your ability to read mandated codes on agreeing to onerous terms of use, among many other problems. That’s why the Association of Research Libraries sent a letter to Congress last week (supported by EFF, disability rights groups, and many others) explaining how the Pro Codes Act would trade away our right to truly understand and educate our communities about the law for cramped public access to it. Congress must not let well-positioned industry associations abuse copyright to control how you access, use, and share the law. Now that this bill has passed committee, we urgently need your help—tell Congress to reject the Pro Codes Act.

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TELL CONGRESS: No one owns the law

It’s Open Access Week in the United States, which means it’s a chance to celebrate the accomplishments of the Open Access movement—and reinforce the need to keep fighting. We’ve come a long way, with governments, universities, and research funders all successfully pressuring publishers to improve access to knowledge and finding ways to do it themselves. 

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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. 

 EFF is proud to celebrate Open Access Week. 

TAKE ACTION

Tell Congress: Access To Laws Should Be Fully Open