Private Ownership of Public Law

by on October 26, 2010 · 7 comments

Carl Malamud is a breakthrough thinker and doer on transparency and open government. In the brief video below, he makes the very interesting case that various regulatory codes are wrongly withheld from the public domain while citizens are expected to comply with them. It’s important, mind-opening stuff.

It seems a plain violation of due process that a person might be presumed to know laws that are not publicly available. I’m not aware of any cases finding that inability to access the law for want of money is a constitutional problem, but the situation analogizes fairly well to Harper v. Virginia, in which a poll tax that would exclude the indigent from voting was found to violate equal protection.

Regulatory codes that must be purchased at a high price will tend to cartelize trades by raising a barrier to entry against those who can’t pay for copies of the law. Private ownership of public law seems plainly inconsistent with due process, equal protection, and the rule of law. You’ll sense in the video that Malamud is no libertarian, but an enemy of an enemy of ordered liberty is a friend of liberty.

  • http://srynas.blogspot.com/ Steve R.

    I'm in full agreement. Government regulations should be fully accessible (on-line) to the public. I would also extend that concept (where it has not been implemented) to court decisions.

  • http://enigmafoundry.wordpress.com eee_eff

    As an Architect, I have long thought the capture of Building Codes by a private entities copyright to be very unfortunate, and I applaud Carl Malamud's actions. But I am surprised how many (other Architects) still don't believe me when I tell them that the Building Code can be downloaded for free.

    The operative decision is Veeck vs. SBCCI

    http://bulk.resource.org/courts.gov/c/F3/293/293.F3d.791.99-40632.html#foreign

    I like that in their holding they go right to the Constitution:

    “Third, to enhance the market value of its model codes, SBCCI could easily publish them as do the compilers of statutes and judicial opinions, with “value-added” in the form of commentary, questions and answers, lists of adopting jurisdictions and other information valuable to a reader. The organization could also charge fees for the massive amount of interpretive information about the codes that it doles out. In short, we are unpersuaded that the removal of copyright protection from model codes only when and to the extent they are enacted into law disserves “the Progress of Science and useful Arts.” U.S. Const. art. I. § 8, cl. 8.”

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