Germany threatens to jail Carl Malamud for making the law available for free

http://boingboing.net/2013/11/21/germany-threatens-to-jail-carl.html

by Amadou • 13 years ago

131 80 13 years ago

Tomte7• 13 years ago

I know, you're enraged, but truthfulness is still not optional.

The defendant did not "make the law available for free", he (allegedly) distributed a copyrighted standards text. Which is not law. At all.

And no, it is not incorporated into law, either. Despite what some people usually claim.

(There are a few DIN standards that are actually incorporated, but I've never come across those, I think they are used in some building construction code or whatever).

I know, I also think it's bad that there is no way to read and use standards freely (or cheaply), but the headline is totally misleading.

Amadou5• 13 years ago

And no, it is not incorporated into law, either. Despite what some people usually claim.

So you are disputing the part of the article that says: "Every country in the EU is required to implement and publish these standards."

I've followed Malamud's work in the USA and there he has been 100% accurate in his claims that the standards he publishes are incorporated into law by reference. You seem to be saying that he's wrong about how it works in the EU, and that what he published is not incorporated into law by reference. I'm inclined to give him the benefit of the doubt given his history.

http://legalresearchplus.com/2008/09/27/carl-malamud-liberat...

If you have an explanation for how it is that he has mistakenly assumed that the standards he published are incorporated into EU law by reference, I'm all ears.

Don't forget the cited document here:

http://ec.europa.eu/enterprise/policies/european-standards/h...

Which is a directive of the European Parliament and Council that specifies DIN EN 1400, the baby pacifier standard he's being sued for publishing.

Tomte7• 13 years ago

Look, I know, EU "law" is difficult. I happen to have a little bit of knowledge about that, because I work on safety-related systems in industrial automation, where the same legal mechanisms apply (although "my" directive is 2006/42/EG, not Directive 2001/95/EC).

Legally it works like this:

1. The EU issues a directive. Directives are not directly binding (some gray areas have developed over the years) and must be implemented by national legislatures into national law. The directive is the base line, national legislators may go above and beyond what the directive calls for.

2. In Germany we have implemented this directive (as well as "my directive", that's why I claim to have some knowledge about this issue, as well) in the "Produktsicherheitsgesetz" (Product Safety Act). You can find a translation here: http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/pro...

3. The law enables quite a few ministers to issue regulations that deal with specific things (in my example: the Ninth Regulation deals with machinery safety).

Those regulations usually refer back to the EU Directive, incorporating it partly.

For example, in the Ninth you can see (http://www.gesetze-im-internet.de/gsgv_9/__3.html) that some requirements are basically just worded as "must meet requirements A, B and C from 2006/42/EG" or "must provide documentation as per Annex I of 2006/42/EG)".

4. Law and Regulations must be obeyed. Not some "EU law". This law. And only this law.

The key insight is: how you fulfill the requirements is up to you. Also, the burden of proof that you fulfilled those requirements is yours.

5. Because those requirements are rather vague and abstract, and this burden of proof is not easily met, the law provides for some "convenience avenue" (well, and because that's the idea behind the EU's "New Approach"):

You may demonstrate that you meet the requirements of certain applicable standards. If you do this (and you still have the burden of proof here!), you are automatically assumed to be in compliance with the law and the regulations.

That's the so-called assumption of conformity.

6. That's where your linked table comes in: those are standards that are "harmonized under the Directive".

If you find a standard that's (partly) applicable (you may not use a nuclear reactor standard to claim conformance of your children's toys...) on that list, you may shift your burden of proof from the law and the regulations to the standard (as far as it's applicable).

7. So far it doesn't sound very exciting. You just swapped one set of requirements where you bear the burden of proof with another set of requirements where you also bear the burden of proof.

The thing is, those standards are tailored to your field, so they are much more practical and manageable.

And the real kicker is this: you can get certification by TÜV, BG and other "notified bodies" provided for by EU law, that you met the requirements of the standard. You probably won't get TÜV or BG to certify that you met the requirements of the law itself.

8. Okay, but isn't that "incorporation"?

No, it's not. Not legally. And not practically.

First, remember: you have to follow the German law. Not some Directive. The latter isn't directly binding to anyone, except the national states insofar, as they are required to implemented it.

The decision which standards are "harmonized" and thus invoke this assumption of conformity lies with EU organs, not national organs. So there is a real division of authority there.

And, most important: you're always free to disregard any and all harmonized standards. If you feel good about meeting the requirements of the national law and regulations without the help of harmonized standards (and in some fields you mostly have to do that anyway, because no really applicable harmonized standards exist), you're free to do so.

HarryHirsch• 13 years ago

There is a problem: traditionally standardizing bodies finance themselves by selling copies of the standard. I can see why someone might liberate the standards, but they should at least offer up alternative models for financing. The financing model may be obsolete, but the body that issues the standards is not.

Amadou5• 13 years ago

The body that creates the standards is typically a creation of the industry that implements the standards. It is a cost of doing business. Compare them to RFCs which are quite similar in that they are generally created by authors who work for the companies implementing the RFCs.

rowyourboat7• 13 years ago

That does not make it legal to publish a work without the copyright holder's consent.

ChuckMcM• 13 years ago

I love this guy (Carl Malamud). I get that standards bodies like the monopoly they get by charging for their 'standards' but they rarely pay for the time of the people making these standards or their airfare to attend the meetings. Judging by the salaries of the "management" in these outfits I'm guessing the profits are pretty good.

flexie4• 13 years ago

If the law mandates use of (privately manufactured) safety mechanisms it doesn't mean that you are entitled to get those safety mechanisms for free. Similarly, if the law mandates that manufacturers comply with certain (privately manufactured) technical standards it doesn't mean that everybody is entitled to get a copy of those standards for free.

That being said it is unfortunate that the law refers to non open standards. And the penalties this guy risks are outrageous.

DannyBee4• 13 years ago

"it doesn't mean that everybody is entitled to get a copy of those standards for free."

Can you cite some case law for this assertion?

At least in the US, every court i'm aware of to confront the issue has decided that if they incorporate a standard by reference into a law, you must be allowed to access it for free, or it cannot be enforced against you.

Some even go further, and state it is no longer copyrightable. See, e.g., VEECK v. SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL, INC (293 F.3d 791)

"Our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works retain their protected status."

If you have contrary authority, i'd love to see it (veeck has, last i looked, 283+ citations).

Even those commentators who criticize the Veeck decision all agree that the public must be given access to the code, for free. The only portion they disagree on is whether incorporation causes the copy to enter the public domain or not (IE whether it's still copyrightable).

flexie4• 13 years ago

You are quoting an American ruling. This is a European case.

rsingel• 13 years ago

What kind of citizen thinks that required legal standards can be private property and uses the word "entitled" to refer to public standards?

The answer: a corporatist with no sense of the notion of public goods.

This generation scares the shit out of me.

flexie4• 13 years ago

There's nothing new in this. Publishing of laws and court rulings has been a mostly private industry for a couple of hundred years - also in the US. In fact, with Internet now is the only time ever that you are able to find most laws and a large number of important court rulings for free. If you are scared of generations you should be more scared of the older ones.

Now, laws and court rulings were not copyrighted, but what good did that do before the digital age made it free to copy them. In 1790, 1890 or even 1990 you had little chance of knowing the law if you didn't buy magazines or books with laws and court rulings.

bowlofpetunias• 13 years ago

Worst linkbait title ever? In fact, the entire post ridiculously manipulative. Doctorow is not doing anybody any favors by going into full tin-foil-hat-speak to disguise the facts.

"Germany" is not "threatening" anybody. Malamud is getting sued by what is only referred to as the mysterious "the code people". (Which is actually DIN, an internationally well known standardisation institution, not need to refer to them as some shady gang.) All of this happens to take place in Germany.

The facts are bad enough without this kind of nonsense.

thomasz• 13 years ago

DIN is the German ANSI

chalst2• 13 years ago

Like ANSI, DIN is not a branch of government, but a self-regulated non-profit institute (an e.V.) Their FAQ describes their relationship to the government:

What is the role of the government or the European Commission in standardization?
Standardization is a form of economic self-regulation, relieving the state of the responsibility for developing detailed technical specifications while ensuring that a standard reflects the state of technology. Because the state has an interest in standardization, particularly in the occupational safety and health sectors, it funds DIN projects in sectors which are in the public interest.

http://www.din.de/cmd?cmsrubid=55343&menurubricid=55343&leve...

thirdsun• 13 years ago

It might be relevant to mention that Hamburg's district court is the court of choice for copyright holders - this court has quite a long history of ruling in favor of media corporations when it comes to issues of piracy, copyright disputes and similar subjects.

nhebb• 13 years ago

I used to work for a medical device manufacturer that had to comply with IEC 60601 (among others standards). Compliance with these standards was required by law, but the IEC and ISO documentation was not free. However, the underlying principal is that by purchasing copies of the standards, companies are subsidizing the creation and maintenance of the safety standards. In short it's kind of regulatory fee.

I applaud Malamud's efforts for some of the documents he has made available, but since the DIN is not a government agency, this is basically like making a copy of the ISO 9000 standards available for free download.

Zenst• 13 years ago

Or you could view it as a monopoly with no competition. In effect it is a protection system. When viewed that way it is easy too see how people could become upset entering into these areas.

With that it is easy to see how such articles get written in such styles on the internet or indeed tabloids as it is a formula of panic that has served media well for too long.

throwawaykf• 13 years ago

I really wish people would realize outlets like BoingBoing, Techdirt and the like are just trolling for rage-views.

crististm2• 13 years ago

Only a few months ago I was looking specifically for the European safety regulations for children tables and - to my surprise - they were nowhere to be found or were hidden behind some pay wall.

iSnow• 13 years ago

I see it as a violation of copyright case, not some obscure Kraut conspiracy.

po• 13 years ago

Additional fines of €250,000 are being requested and, if I can't pay, a maximum total period of detention of two years is possible

Good to know that you can buy your way out of prison.

tomohawk• 13 years ago

If it walks like a duck and talks like a duck, it's a duck.

Once a 'safety standard' is incorporated into a law, it becomes the law. At this point, it should be made freely available just like any other law. If it is important that some standards body get paid for their effort, then the gov't should pay at the time of transaction (when the standard is incorporated).

It's a bit rich to levy a tax on people (fee to see the law), when the people have no representation or input into the creation of the law. This goes against long established norms.

The US Constitutions forbids the federal government from copyrighting laws, the principle being that free people should be able to freely see the laws that govern them.

Germany threatens to jail Carl Malamud for making the law available for free

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