This Week In Legal Tech: Showdown At The ABA Over Free Law And Free Sex

Ignorance of the law excuses no one; is it fair, then, that citizens should have to pay for the law they are obliged to know?

gavel money cash clerk clerkship bonus bonusesIgnorance of the law excuses no one. So says the long-established legal principle. Is it fair, then, that citizens should have to pay for the law they are obliged to know, as much as $10,000 in some cases?

A showdown over that issue is expected during the American Bar Association annual meeting in San Francisco in two weeks, when the ABA’s House of Delegates takes up debate over a resolution concerning public access to technical and scientific standards written by private standards developing organizations (SDOs).

Some 9,500 private standards are incorporated by reference in the Code of Federal Regulations. While the CFR is freely available online, these so-called IBR (for “incorporated by reference”) rules are not. Rather, the SDOs copyright their standards and sell access to them, generally at a profit to themselves. The price for access to a single standard can range from $40 to $1,000. The complete set of standards implementing the Pipeline and Hazardous Materials Safety Act costs nearly $10,000.

For lawyers as well as the public, these standards are tremendously important. They help regulate the safety of toys, cribs and strollers, vehicle windshields, food additives and propane tanks, to name just a few of the everyday items. Lawyers need to consult them to advise clients, ensure compliance, prepare lawsuits, draft contracts and any number of other reasons.

ABA Resolution 112 attempts to address this issue by finding a middle ground between public access and private copyrights. Drafted by a 15-member ABA task force, it asks Congress to enact legislation that would require any federal agency to make available to the public, free of charge, the portion of a standard that a rule or proposed rule incorporates by reference.

At a minimum, the public access must include online, read-only access to the incorporated portion of the standard. It need not include access to the incorporated material in hard-copy form. If the standard is subject to copyright protection, the resolution says, the agency must obtain authorization from the copyright holder for public access to that material.

“This resolution seeks to protect and promote two essential public interests:  the ability of the public to ascertain the requirements imposed by binding regulations governing private conduct, and the intellectual property interests of private entities whose standards may be incorporated by reference into those regulations,” says the report accompanying the resolution, which was signed by Kirkland & Ellis partner Jeffrey A. Rosen, chair of the ABA’s Section of Administrative Law and Regulatory Practice.

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So where does free sex fit in? Let me explain.

Try as this task force may have to find middle ground, advocates on either side staunchly oppose the resolution and are gearing up to battle against it in San Francisco.

On one side is Carl Malamud, the Public.Resource.Org founder who has spent much of his career advocating for public access to law, who calls the resolution “antithetical to our core values.” Malamud makes his case in an Appeal to the ABA House of Delegates and cover letter that he wrote and circulated to 114 ABA officials, law professors, lawyers and members of the media (including me).

For the other side, standards consultant Dan Bart, a board member of the American National Standards Institute (ANSI), has become the inadvertent poster child, thanks to an email he wrote (and which Malamud included in his packet) in which he likens those in the free-law camp to people who “are still clamoring for free beer and free sex too,” adding, “I want free Smartphones!”

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Malamud’s appeal makes no mention of free beer or free sex, but he does argue for free and open access to IBR rules and against the limited, read-only access proposed by Resolution 112.

“Most disturbing in the resolution that the ABA is being asked to endorse is the idea that the right to speak the law – to post it on the Internet in a transformative fashion that allows others to use it more effectively – belongs to a single private party, and that private party may require a license before others are permitted to work with the material,” he writes.

Malamud takes issue not only with the resolution, but also with the task force that drafted it. The task force was dominated by members representing standards organizations, Malamud says, and devoid of anyone who works professionally on the dissemination of legal materials such as law librarians and legal publishers.

Lobbying on the other side of the issue, ANSI President S. Joe Bhatia recently sent out an alert to his members urging them to contact ABA delegates and oppose the resolution. “This significant change could not only jeopardize the U.S. standardization system, but may also put some SDOs out of business.”

“It strikes me as ironic that those who advocate so strongly for the public’s right to information are now trying to force a significant decision through a closed forum,” Bhatia says.

As for me, I find that ANSI member’s comparison of free law to free sex to be apt, if perhaps unintended. Most would, I hope, agree that free sex, as opposed to paid sex, is the natural order of things. In fact, last I checked, paying for sex is illegal in most states.

The same should be true of law. Public access to primary legal materials should be the natural order of things and having to pay for primary law should be no more legal than paying for sex.


Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

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