Brief Of Sixty-Two Library Associations, Nonprofit Organizations, Legal Technology Companies, Former Senior Government Officials, Librarians, Innovators, And Professors Of Law As Amici Curiae In Support Of Defendant-Appellant
American Society For Testing And Materials; National Fire Protection Association, Inc.; And American Society Of Heating, Refrigerating, And Air-Conditioning Engineers, Inc., Plaintiffs-Appellees
Parties and Amici include:
American Association of Law Libraries
American Library Association
Association of College and Research Libraries
Association of Research Libraries
Browner, Carol M.
Carrier, Michael A.
Carroll, Michael W.
Courtney, Kyle K.
Dygert, Amy Vanderlyke
Free Law Project
James, Bruce R.
Keele, Benjamin J.
Lee, Sarah Hooke
Levine, Kendra K.
Liebesman, Yvette Joy
Mosley, Raymond A.
Ochoa, Tyler T.
Podesta, John D.
Post, David G.
Reid, Blake E.
R Street Institute
Russell, Judith C.
Skalbeck, Roger V.
Smith, Megan J.
Sorkin, David E.
Wheeler, Ronald E.
Wu, Michelle M
INTRODUCTION AND SUMMARY OF ARGUMENT
To understand the importance of access to the law, consider that it once saved the Roman Republic. About 451 B.C., in an effort to mollify the commoner plebs threatening to secede from the ruling patricii, a council prepared a codification of the law. The resulting Twelve Tables of Law would be remembered across history not so much for their content but for being published—“engraved in bronze, and set  up in a public space.”¹ Public exhibition worked to “make it clear that all citizens were equal before the law” and to eliminate “the complaint on the part of the plebs, that the law was an affair of mystery.”²
A single precept should guide the present case: The right to access the text of the law—the words that define duties carrying the force of government power— is of categorical importance. That right prevented class war in Rome, it laid the foundations for modern representative government, and it ensures basic liberties of free speech and due process today.
Yet it is a right ignored by the appellees, standards organizations who lobby to have their model codes adopted into law, and then assert copyright exclusivities to place artificial limits on access to those now-enforceable (though often outdated) codes. If successful, those organizations would possess sweeping powers to charge tolls for access to the law, rendering the law an affair of mystery to those unable to pay.
This Court should reject the standard organizations’ claims to private control over the text of the law. It should uphold the right of the public to access that law freely, a right of ancient origin and fundamental importance. The decision of the district court to the contrary should be reversed.
1. Full access to the text of the law has practical effects that confer societal benefits of signal importance. Two of these effects are treated in detail. First, access to the text of the law begets innovation. Historical freedom to reprint and use the words of the law engendered a uniquely American tradition of creative tools, such as statutory compilations and case citators. These and more advanced modern tools depend on access to the law.
Second, the right of access has been vital to uncovering biases and implicit discrimination in legal rules. Laws often have unexpected racial or gender biases. Oversight by reporters and the public is essential to rooting out these discriminatory effects, and access to the law is essential to that oversight.
2. Given these important practical benefits, it is unsurprising that the legal doctrine treats access to the law as a fundamental right and important national interest. Access to the law was essential to the system of self-governance that the Framers constructed. Their historical inspirations (including the Roman Republic), writings, and legislative acts suggest that access to the law was—and is still—a basic element of republicanism.
Additionally, unrestricted access to the law is a constitutional right. The First Amendment guarantees a right to receive information, including certain government information, and laws in force fall squarely within that category of information to which access is guaranteed.
3. Certainly the standards organizations’ work is valuable and merits compensation, but there are other, more appropriate ways for them to receive it. A review of other model code and technical standards developers shows that, even without copyright royalties, those developers are successful and well compensated in a number of ways, including state appropriations, member contributions, volunteer efforts, and sale of complementary goods and services. These opportunities are substantial compensation and, more importantly, do not curtail the public’s fundamental rights.
4. The fundamental right of access to the law plays into multiple issues in this appeal. The doctrines of copyright ability and fair use can accommodate, and have accommodated, that right of access. So too can the preliminary injunction standard, and in particular the public interest factor of that standard, effectuate the right of access.
The key, though, is that this Court not allow private entities to diminish any citizen’s right to access the law. Another Roman anecdote illustrates why.
The emperor Gaius (popularly Caligula) sought to finance his lavish lifestyle with oppressive taxes. When the people demanded to have the law behind the taxes posted, the emperor complied, but only “in exceedingly small letters on a tablet which he then hung up in a high place.”³ The historian Suetonius noted the effect of this charade: Like the standards organizations in this case, Gaius sought “to prevent the making of a copy.”⁴
Whether they be high walls or paywalls, artificial limits on the people’s right to access and copy the text of the law are contrary to the essence of government by the people. Copyright law does accommodate, and should accommodate, this right underpinning an accountable democracy.