Germany threatens to jail Carl Malamud for making the law available for free(boingboing.net)
boingboing.net
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
9 comments
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.
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.
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.
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.
It's not exactly a monopoly You can buy it from ANSI or BSI, as well. If you don't insist on the German language version (even then, the Austrians probably have another version).
Remember those C and C++ PDF standards, that ANSI sold for $18, later $30, despite the competition selling for two hundred or whatever?
But sure, it's not a really competitive market.
Remember those C and C++ PDF standards, that ANSI sold for $18, later $30, despite the competition selling for two hundred or whatever?
But sure, it's not a really competitive market.
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.
DIN is the German ANSI
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...
> 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...
So let me see if I understand this right.
The EU has created several safety laws that each countries must follow. The laws then in turn reference proprietary written standards by DIN, which people need to buy in order to actually follow and understand the law.
Is that correct?
The EU has created several safety laws that each countries must follow. The laws then in turn reference proprietary written standards by DIN, which people need to buy in order to actually follow and understand the law.
Is that correct?
Yes, and no. DIN basically takes European and international norms and translates them so that they conform to the German law and can thus be used in Germany. This is not just a matter of simple translation but of adaptation since all documents issued by the European Union are published in all languages of the member states anyway. Companies could of course just take the European norms and implement them by themselves, but since adapting these norms to German law is complicated they choose to buy a certified DIN report which provides them legal security. Now you can of course argue if this service should be provided for free or not. On their website, DIN points out a few reasons why they charge money for their reports:
http://www.din.de/cmd?cmsrubid=197041&menurubricid=197041&le...
So basically it's not Germany that "threatens" the guy which published these norms, but a company suing an individual for publishing copyrighted work.
http://www.din.de/cmd?cmsrubid=197041&menurubricid=197041&le...
So basically it's not Germany that "threatens" the guy which published these norms, but a company suing an individual for publishing copyrighted work.
Is the standard referencing the law, or the law referencing the standard?
The distinction between those two are quite important.
The distinction between those two are quite important.
The law references the standard(s), but only as optional.
See the link to the English translation of the Product Safety Act that I posted in another comment. Article 4 is relevant.
See the link to the English translation of the Product Safety Act that I posted in another comment. Article 4 is relevant.
Thanks, but the more I read about this, the more I start to dislike it.
Just because its optional doesn't make it less of an secret law. It simply mean that the secret law can be ignored, and where those with privileged access can gain an market advantage.
Either the law makers is in fault here for making part of the law secret, or DIN should loose their copyright to the standard. You can not have laws with open and secret parts, or you creates a law enforced unfair market.
If DIN has proprietary ownership of the optional part of the law, DIN can then at their choice exclude companies at will. After all, proprietary ownership means the right to not sell a license to companies of your choice. This is clearly incompatible with a fair and free market.
In my view, the law should be rewritten so the standard is not included there. If the market want to make the standard an industry practice, or lawyers want to view it as the defined compliance to the law, then thats fine. That would mean that a competing standard writing body (or lawyer firm) could come up with a new standard, and compete in an fair and free market with the first one. As it is now, no such competition can happen since the standard is written into the actually law as a way to optional be in compliance. Thats an clear unfair advantage, and facilitates antitrust.
Just because its optional doesn't make it less of an secret law. It simply mean that the secret law can be ignored, and where those with privileged access can gain an market advantage.
Either the law makers is in fault here for making part of the law secret, or DIN should loose their copyright to the standard. You can not have laws with open and secret parts, or you creates a law enforced unfair market.
If DIN has proprietary ownership of the optional part of the law, DIN can then at their choice exclude companies at will. After all, proprietary ownership means the right to not sell a license to companies of your choice. This is clearly incompatible with a fair and free market.
In my view, the law should be rewritten so the standard is not included there. If the market want to make the standard an industry practice, or lawyers want to view it as the defined compliance to the law, then thats fine. That would mean that a competing standard writing body (or lawyer firm) could come up with a new standard, and compete in an fair and free market with the first one. As it is now, no such competition can happen since the standard is written into the actually law as a way to optional be in compliance. Thats an clear unfair advantage, and facilitates antitrust.
Actually, the fee to get access to the standard is fairly reasonable. We're talking roundabout 100 euros here - this is in no way an unfair advantage or worthy of an antitrust case. The money that standard will cost you is not the fee, but reading and understanding piles of papers and then getting certified that you're in compliance.
Yes I think a $100 investment to build a consumer product is not high on anyones radar. I think that will buy 1 hour of an engineers time.
And when DIN refuses to let you buy their proprietary standard for $100 because it would compete with their businesses interest, I wonder how high the cost is then.
from that link: "Throughout Germany there are standards "repositories", or libraries, where the public can view standards for free. For more information go to
http://www.beuth.de/de/rubrik/auslegestellen (German only)"
Anyone can go into one of those libraries listed here and have a look into the Standard Documents, most commonly with a desktop computer connected over the internet to access the online database.
It's still free, just not free as in free on the internet.
Beuth is the DIN owned publisher.
Anyone can go into one of those libraries listed here and have a look into the Standard Documents, most commonly with a desktop computer connected over the internet to access the online database.
It's still free, just not free as in free on the internet.
Beuth is the DIN owned publisher.
I don't know about ANSI, but the IEEE is a US non-profit standards body, and you need to buy its standards to claim compliance with them.
This, and fees for testing products, is generally how non-governmental standards institutes fund themselves.
This, and fees for testing products, is generally how non-governmental standards institutes fund themselves.
You also have to pay for ANSI/NIST standard texts, ITU, ISO standards, and for EU industrial standard texts. It's nothing out of ordinary.
EDIT: I see ITU has made their standards free of charge since 2007.
EDIT: I see ITU has made their standards free of charge since 2007.
I really wish people would realize outlets like BoingBoing, Techdirt and the like are just trolling for rage-views.
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.
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.
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.
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.
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.
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.
Thank you for the explanation.
Let me offer a tl;dr: Standards bodies found a bureaucratic loophole allowing them to make their standards into de facto-law while avoiding that those standards then become part of the public domain as they ought to be.
Sounds like a classic case where the law has not caught up with morality.
Let me offer a tl;dr: Standards bodies found a bureaucratic loophole allowing them to make their standards into de facto-law while avoiding that those standards then become part of the public domain as they ought to be.
Sounds like a classic case where the law has not caught up with morality.
No, you are wrong, the whole reason the GP is so long is because EU law is much more complicated than the average nerds' vision of what law should be like (i.e., a rule-based decision tree). It is no 'loop hole', it is a fundamental feature of EU law to not be a federal system where the Commission sets the law in a uniform way across the territory.
Your point about the complexity of EU law is irrelevant.
If there is even one single EU country in which the law is implemented in such a way that the standard referenced by the EU document becomes de facto law, then that standard ought to enter the public domain at least within that country. The detour via the EU is irrelevant.
If there is even one single EU country in which the law is implemented in such a way that the standard referenced by the EU document becomes de facto law, then that standard ought to enter the public domain at least within that country. The detour via the EU is irrelevant.
Look, just read everything that was said above again until you understand it and then come back, there's no point in me repeating the same thing several times. You're literally talking nonsense - 'de facto law', 'public domain within that country', 'detour via the EU' - everything you say indicates you don't understand the points being made here.
Not to be an asshole about it, but between you and me, there is only one person with a law degree.
Not to be an asshole about it, but between you and me, there is only one person with a law degree.
Not to be an asshole about it, but if you really have a law degree, then perhaps that explains your inability to see the moral dimension of what is going on here. Time to take off your lawyer hat and read again what I wrote.
I have not written whether I believe the publication of those standards is legal under current (copyright) law or not. The point is that it ought to be legal because it is moral. It is moral because (at least for some of the standards, according to everything I have read about the topic) the de facto way of following a certain law is to follow the standard that was published. Whether there are other ways of following that law is made irrelevant by common practice (again, from a moral point of view, thought perhaps not according to current copyright law).
If necessary, the (copyright) law should be changed so that the law follows morality.
I have not written whether I believe the publication of those standards is legal under current (copyright) law or not. The point is that it ought to be legal because it is moral. It is moral because (at least for some of the standards, according to everything I have read about the topic) the de facto way of following a certain law is to follow the standard that was published. Whether there are other ways of following that law is made irrelevant by common practice (again, from a moral point of view, thought perhaps not according to current copyright law).
If necessary, the (copyright) law should be changed so that the law follows morality.
>bureaucratic loophole allowing them to make their standards into de facto-law while avoiding that those standards then become part of the public domain
I get this kind of doublespeak a lot in Germany.
For example, if a police officer suspects you of drunk driving, you are not required by law to take a breath test. You are required to take a blood test back at the station. The breath test is considered voluntary.
Then there is the public health system. Insurance companies are not really part of the government, so you can't vote them out of office. But somehow they are still have a mandate to issue legally binding orders of seizure if you happen to disagree with the math in their invoices. They also act as their own oversight department. You are mandated to do business with at least one of them.
Also, traffic tickets are not fines. They are just a voluntary payment to convince the city not to issue you a real fine, which is about 10x higher. Of course, you can't contest it, because you agreed to it.
Guess DIN is just another wagon in the gravy train...
I get this kind of doublespeak a lot in Germany.
For example, if a police officer suspects you of drunk driving, you are not required by law to take a breath test. You are required to take a blood test back at the station. The breath test is considered voluntary.
Then there is the public health system. Insurance companies are not really part of the government, so you can't vote them out of office. But somehow they are still have a mandate to issue legally binding orders of seizure if you happen to disagree with the math in their invoices. They also act as their own oversight department. You are mandated to do business with at least one of them.
Also, traffic tickets are not fines. They are just a voluntary payment to convince the city not to issue you a real fine, which is about 10x higher. Of course, you can't contest it, because you agreed to it.
Guess DIN is just another wagon in the gravy train...
> Standards bodies found a bureaucratic loophole allowing them to make their standards into de facto-law while avoiding that those standards then become part of the public domain
I encounter this kind of wiggling a lot in Germany. What surprises me most is how readily these kinds of explanations are accepted by people, no matter how absurdly complicated they are.
I encounter this kind of wiggling a lot in Germany. What surprises me most is how readily these kinds of explanations are accepted by people, no matter how absurdly complicated they are.
In Germany we have implemented this directive
Sounds like you are agreeing with Malamud. Regardless of whether or not various certification authorities trust the word of the companies that implement products to match the directive, the directive is the law in Germany. Right?
Sounds like you are agreeing with Malamud. Regardless of whether or not various certification authorities trust the word of the companies that implement products to match the directive, the directive is the law in Germany. Right?
Emphatically no.
First, the Directive itself is not the issue here, the harmonized standards are. Please don't mix it up.
Nobody would sue for copying the text of the Directive.
And second, it's really, really important to understand that only the national law must be followed and that it is not identical to the Directive.
I know it sounds like nitpicking, but this difference is important. Not in the day-to-day development work (because you use Directive and standards as references, but mostly your company-internal process). But as soon as you're dicussing legal matters, it's important.
[edited: fixed typo]
First, the Directive itself is not the issue here, the harmonized standards are. Please don't mix it up.
Nobody would sue for copying the text of the Directive.
And second, it's really, really important to understand that only the national law must be followed and that it is not identical to the Directive.
I know it sounds like nitpicking, but this difference is important. Not in the day-to-day development work (because you use Directive and standards as references, but mostly your company-internal process). But as soon as you're dicussing legal matters, it's important.
[edited: fixed typo]
That's the kind of talk that will lead to lawyers being the first against the wall when the revolution comes, right after the Marketing Department of the Sirius Cybernetics Corporation.
The morality of the situation is very clear: Those standards are de facto law because they are treated by common practices as if they were the law. Hence they need to be in the public domain.
This is not an arbitrary sentiment either. You can draw a parallel to how trademarks can lose their protection by becoming part of regular language.
The morality of the situation is very clear: Those standards are de facto law because they are treated by common practices as if they were the law. Hence they need to be in the public domain.
This is not an arbitrary sentiment either. You can draw a parallel to how trademarks can lose their protection by becoming part of regular language.
The morality of the situation is very clear: Those standards are de facto law because they are treated by common practices as if they were the law. Hence they need to be in the public domain.
I agree that if those standards are indeed de facto law, they should be treated like law. But that is not the case the article makes. The articles makes a case around being surprised about getting sued for publishing copyrighted material without the owner's consent. Which is not suprising at all.
I agree that if those standards are indeed de facto law, they should be treated like law. But that is not the case the article makes. The articles makes a case around being surprised about getting sued for publishing copyrighted material without the owner's consent. Which is not suprising at all.
The entire point of this post is that there's a difference between the law and the standard. The law is publicly published, of course. What Malamud did was publish the standard.
And, this distinction is important: You have to follow the law, but how you do so is up to you. Implementing the standard is just one way of doing that. So the standard is not, in fact, part of the law, just a shortcut to compliance in some cases.
And, this distinction is important: You have to follow the law, but how you do so is up to you. Implementing the standard is just one way of doing that. So the standard is not, in fact, part of the law, just a shortcut to compliance in some cases.
You have to follow the law, but how you do so is up to you. Implementing the standard is just one way of doing that.
That sounds like doublespeak to me. What other way is there to follow the law besides implementing the standard referenced by the law?
That sounds like doublespeak to me. What other way is there to follow the law besides implementing the standard referenced by the law?
Example: The law says that the pacifier must be made in such a way that it cannot be swallowed.
Your options are: 1. Develop your own way of ensuring that the pacifier cannot be swallowed and prove that it's effective 2. Buy the standard, follow it and prove that you are following it.
Option (2) is generally cheaper. Hence the market for these standards.
Your options are: 1. Develop your own way of ensuring that the pacifier cannot be swallowed and prove that it's effective 2. Buy the standard, follow it and prove that you are following it.
Option (2) is generally cheaper. Hence the market for these standards.
Ask those who work in fields that don't have a harmonized standard at their disposal.
No, and that is made clear in the comment. The directive is the supranational law that mandates nations of the EU to create national law, only this is binding and applicable to citizens.
Let me suggest a new law: You have to either factor this product of two 8192 bit primes or implement standard X. It's not incorporation, or is it?
Laws tend to be general. For example a lay might say something like: Communication between two parties needs to be secure.
Now, what is secure, how do you define it? Like tomte said you have the burden of proof. One way is to say you followed a standard because standards are formulated by "experts" and thus your communication is clear.
An alternative is to develop your own secure algorithm - you might have to proof this at some point that it really is secure.
If a law says that all communication needs to be encrypted using technique x, then it will be outdated as soon as this technique is broken. Thus a law specifying that communication should be secure is something that can last much longer
Besides, this information is very technical and not in the slightest consumer oriented! After looking at the first document I certainly don't want to read further. That is why we have standard bodies, law makers and journalists to do this stuff for is. I don't think that a raw dump would help anybody
If a law says that all communication needs to be encrypted using technique x, then it will be outdated as soon as this technique is broken. Thus a law specifying that communication should be secure is something that can last much longer
Besides, this information is very technical and not in the slightest consumer oriented! After looking at the first document I certainly don't want to read further. That is why we have standard bodies, law makers and journalists to do this stuff for is. I don't think that a raw dump would help anybody
No, actually, you don't have the burden of proof, that's the point. If that was the case, following a US standard, say, should probably be as good a defence as following an EU standard. Instead, one particular proprietary standard is exempted from you having to prove anything, except for the fact that you do follow the standard. That special treatment is what is being criticized here.
Also, laws don't cease to be laws because they are not consumer oriented. Your argument applied analogously essentially would mean that it would be perfectly fine for all laws concerning the taxation of corporations to be secret because those are highly technical and not consumer oriented. These dumps are not meant for consumers, but for people who are required to follow the rules set by those standards.
Also, laws don't cease to be laws because they are not consumer oriented. Your argument applied analogously essentially would mean that it would be perfectly fine for all laws concerning the taxation of corporations to be secret because those are highly technical and not consumer oriented. These dumps are not meant for consumers, but for people who are required to follow the rules set by those standards.
Doesn't change your argument (I think), but please note that the standards in question are neither "US" nor "EU".
They are International Standards (ISO, IEC) that just get reprinted (and translated) with different front matter by ANSI, DIN, BS and whatnot.
They are International Standards (ISO, IEC) that just get reprinted (and translated) with different front matter by ANSI, DIN, BS and whatnot.
I agree the situation is not ideal, and I applaud any effort to try to show that the way the law and the standard are intertwined make for a de facto incorporation of the standard into law (which would mean the standard would have to be accessible for free).
It is not clear from the article that that's going on, and it's also not made clear why starting with a copyright violation is a good way to bring about this change. To me, this reeks much more of trying to get publicity than actually trying to change things.
It is not clear from the article that that's going on, and it's also not made clear why starting with a copyright violation is a good way to bring about this change. To me, this reeks much more of trying to get publicity than actually trying to change things.
Well, how do you bring about change in a democratic republic without publicity? Bribery?
The problem is that the article has its facts all mixed up and glosses over the central point, which is the difference between a law and a standard. Without getting that point across, this is just publicity for its own sake.
I think you got it all backwards. They are contesting that very distinction, so their position is that there is none, so why should they write as if there was?
Their stance is that the other side's distinction is merely in their choice of words, but the facts of the situation are such that the standard plays the same role as a law would, and as such choosing to call it a "standard" rather than a "law" only serves to confuse people, not to describe the actual situation, and so they instead choose words that accurately and clearly describe things as they are from their perspective.
Their stance is that the other side's distinction is merely in their choice of words, but the facts of the situation are such that the standard plays the same role as a law would, and as such choosing to call it a "standard" rather than a "law" only serves to confuse people, not to describe the actual situation, and so they instead choose words that accurately and clearly describe things as they are from their perspective.
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.
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.
That being said it is unfortunate that the law refers to non open standards. And the penalties this guy risks are outrageous.
"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).
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).
You are quoting an American ruling. This is a European case.
Please cite any european decision to the contrary to support your decision ...
Germany's official copyright law (which i only have english translations of, so apologies) says:
"(3) The copyright on private collections of standards is not affected by section 1 and 2 if they are referred to in laws, regulations, decrees or official announcements without reproduction of their wording. In this case, the originator is obliged to grant each and every publisher the right to copy and distribute on reasonable terms. If a third party is the holder of the exclusive right to copy and distribute, that party is obliged to grant the license of use in accordance with sentence 2."
I doubt 103 euros per copy is going to be found to be reasonable terms ...
(And if it was not by reference, it would be covered by the sentence one that i didn't copy, which would just make it plain old not copyrightable)
But enough of this, you made an assertion (and not even about german law, mind you, but about 'the law'), it's your job to support it.
Germany's official copyright law (which i only have english translations of, so apologies) says:
"(3) The copyright on private collections of standards is not affected by section 1 and 2 if they are referred to in laws, regulations, decrees or official announcements without reproduction of their wording. In this case, the originator is obliged to grant each and every publisher the right to copy and distribute on reasonable terms. If a third party is the holder of the exclusive right to copy and distribute, that party is obliged to grant the license of use in accordance with sentence 2."
I doubt 103 euros per copy is going to be found to be reasonable terms ...
(And if it was not by reference, it would be covered by the sentence one that i didn't copy, which would just make it plain old not copyrightable)
But enough of this, you made an assertion (and not even about german law, mind you, but about 'the law'), it's your job to support it.
I made an assertion and now it's my "job to support it"?! How is that for an assertion. Stating that everybody is not entitled to get a free copy of copyrighted material is hardly an assertion in the first place and I think you maybe have a very strong sense of entitlement if you think you should tell me what my job is ;-)
I am not a German lawyer but a Danish one. The Danish copyright law doesn't have such provision but in Denmark charging manufacturers 100 euro for a standard would not upset any judge. 100 Euro is the price of a meal at an average restaurant, 20 minutes of lawyer time or a text book on insolvency law (if you can't pay for it). Things are cheaper in Germany so maybe 100 Euro is too much. I don't know.
Lawmakers often prefer that technical standards are made by private and semi private bodies because politicians and government clerks have absolutely no clue about technicalities. manufacturers prefer it for the same reason.
Even if these technical bodies sell 1,000 "baby pacifier standards" all over Germany, and I doubt they sell that many, the proceeds barely cover the direct cost of creating the standards, including hiring lawyers, engineers and other experts, negotiating with different interest groups, printing etc.
If the alternative would be to let the taxpayers bear the full price I think it's fine to have manufacturers pay a few hundred euros yearly to get the standards they need.
In most of Europe compliance with product safety regulations is not ensured through the courts by lawyers hired by those who have suffered damage. Yes, these cases exist but in much smaller numbers than in the US. The real enforcement of the rules is carried out by public agencies that control that the rules are followed, issue fines and bans, close factories etc. So there are very few readers of most of these standards.
As for court cases, I don't know of any on this subject.
I am not a German lawyer but a Danish one. The Danish copyright law doesn't have such provision but in Denmark charging manufacturers 100 euro for a standard would not upset any judge. 100 Euro is the price of a meal at an average restaurant, 20 minutes of lawyer time or a text book on insolvency law (if you can't pay for it). Things are cheaper in Germany so maybe 100 Euro is too much. I don't know.
Lawmakers often prefer that technical standards are made by private and semi private bodies because politicians and government clerks have absolutely no clue about technicalities. manufacturers prefer it for the same reason.
Even if these technical bodies sell 1,000 "baby pacifier standards" all over Germany, and I doubt they sell that many, the proceeds barely cover the direct cost of creating the standards, including hiring lawyers, engineers and other experts, negotiating with different interest groups, printing etc.
If the alternative would be to let the taxpayers bear the full price I think it's fine to have manufacturers pay a few hundred euros yearly to get the standards they need.
In most of Europe compliance with product safety regulations is not ensured through the courts by lawyers hired by those who have suffered damage. Yes, these cases exist but in much smaller numbers than in the US. The real enforcement of the rules is carried out by public agencies that control that the rules are followed, issue fines and bans, close factories etc. So there are very few readers of most of these standards.
As for court cases, I don't know of any on this subject.
To add a bit to flexie's comments, I'm not from Denmark but from Iceland, which used to be a Danish colony, so it shares some of the same legal framework. But what I'm about to point out is true in much of Europe.
Much of the culture clash you're seeing between comments from Europeans and Americans in this thread comes down to the difference in how the funding for public institutions is managed when it comes to copyrighted works.
In the US it's federal law that any work the government produces be placed in the public domain, no questions asked. So e.g. when the USGS produces a map it's fully funded by the government and placed in the public domain.
In Europe it's common for public (and pseudo-public, like the DIN) institutions to have a hybrid funding model, they're partially funded by taxpayers, but are expected to collect a nominal fee from the public or industry that expects to directly use some of their work.
Both models have their advantaged and disadvantages. One obvious one over in Europe is that if you partially depend on direct public funding you're more likely to actively serve the public, whereas in the US institutions would me more likely to gravitate towards serving the government itself, since it's only the government they depend on for funding.
Another aspect is that hypothetically it costs around the same thing to produce a map in Europe and America, but in Europe the general population will be taxed less for it, but people who directly use it (and buy it) will disproportionally pay for it.
Much of this is changing over in Europe, e.g. the National Land Survey of Iceland now gives out its map data under a free license, because indirect value to society of having freely available maps was judged greater than the sum of the nominal fee they previously charged for a license to use those maps.
This gets especially hairy in cases like these where some of this data being charged for is referenced directly or indirectly by law.
In the Reykjavík area in Iceland you can't do significant construction work without spending a relatively trivial sum to buy a ridiculously accurate map from the city (I think it's accurate down to 1-2 millimeters) showing where all the pipes and electrical cabling is installed. The surveying effort is mostly funded by private construction companies.
Would it be better if the average citizen just paid more in taxes and that map was made freely available, is some private citizen who isn't going to build a whole road but just do some significant yard work being overcharged because he has to legally comply with proprietary information?
I don't know, but the trade-offs involved aren't very clear in my mind.
Much of the culture clash you're seeing between comments from Europeans and Americans in this thread comes down to the difference in how the funding for public institutions is managed when it comes to copyrighted works.
In the US it's federal law that any work the government produces be placed in the public domain, no questions asked. So e.g. when the USGS produces a map it's fully funded by the government and placed in the public domain.
In Europe it's common for public (and pseudo-public, like the DIN) institutions to have a hybrid funding model, they're partially funded by taxpayers, but are expected to collect a nominal fee from the public or industry that expects to directly use some of their work.
Both models have their advantaged and disadvantages. One obvious one over in Europe is that if you partially depend on direct public funding you're more likely to actively serve the public, whereas in the US institutions would me more likely to gravitate towards serving the government itself, since it's only the government they depend on for funding.
Another aspect is that hypothetically it costs around the same thing to produce a map in Europe and America, but in Europe the general population will be taxed less for it, but people who directly use it (and buy it) will disproportionally pay for it.
Much of this is changing over in Europe, e.g. the National Land Survey of Iceland now gives out its map data under a free license, because indirect value to society of having freely available maps was judged greater than the sum of the nominal fee they previously charged for a license to use those maps.
This gets especially hairy in cases like these where some of this data being charged for is referenced directly or indirectly by law.
In the Reykjavík area in Iceland you can't do significant construction work without spending a relatively trivial sum to buy a ridiculously accurate map from the city (I think it's accurate down to 1-2 millimeters) showing where all the pipes and electrical cabling is installed. The surveying effort is mostly funded by private construction companies.
Would it be better if the average citizen just paid more in taxes and that map was made freely available, is some private citizen who isn't going to build a whole road but just do some significant yard work being overcharged because he has to legally comply with proprietary information?
I don't know, but the trade-offs involved aren't very clear in my mind.
'I made an assertion and now it's my "job to support it"?! ' - Yep - that's how it goes.
Actually no. Stating the fact that random rulings in the US don't apply to this case here is nothing that needs further support. Even if the general idea ('those documents should be free') would be supported in a German court that observation would still be true: Those court cases aren't relevant. Interesting maybe, related for people asking themselves how the US handles this. But they don't mean a thing for the case in the article.
Nothing to "support" any further.
Nothing to "support" any further.
I think you are confused.
The original assertion was (basically): "Just because you make something part of the law, doesn't make it free".
Note it was not even an assertion made about german law, but the law in general. There was no support for this statement offered, just a bare assertion that this was true.
I pointed out this was not true in the US, and probably not true in plenty of places. I specifically asked if there was any caselaw to support the assertion.
The response, rather than to offer support for the bare assertion, was to point out i cited the US. Which was kind of besides the point.
So I went to the trouble of looking up german copyright law, and posting what it says about it. At that point, I felt like I was essentially doing the work of the parent for them, and pointed out again that maybe they'd like to support their still bare assertion about the law.
So yes, there was something to support, and at least as of this writing, it's still not supported.
The original assertion was (basically): "Just because you make something part of the law, doesn't make it free".
Note it was not even an assertion made about german law, but the law in general. There was no support for this statement offered, just a bare assertion that this was true.
I pointed out this was not true in the US, and probably not true in plenty of places. I specifically asked if there was any caselaw to support the assertion.
The response, rather than to offer support for the bare assertion, was to point out i cited the US. Which was kind of besides the point.
So I went to the trouble of looking up german copyright law, and posting what it says about it. At that point, I felt like I was essentially doing the work of the parent for them, and pointed out again that maybe they'd like to support their still bare assertion about the law.
So yes, there was something to support, and at least as of this writing, it's still not supported.
"I made an assertion and now it's my "job to support it"?! How is that for an assertion. "
You made a bare assertion about the law. If you are going to simply assert things as true, yes, you get to support them. As a lawyer, you should know you can't just walk into court and say "bob is not guilty" (or the reverse, depending on where you live). You actually have to support this thesis.
I pointed out your assertion was quite incorrect in several countries, and specifically asked you for some caselaw to the contrary, in the hopes of getting some that may be directly applicable. Rather than support your assertion, you just pointed out these were not US rulings, which was kind of besides the point.
" Stating that everybody is not entitled to get a free copy of copyrighted material is hardly an assertion in the first place "
???? There are a very large number of situations where a a lot of people are entitled to free copies and use of copyrighted material, in both the US, and Europe, so yes, it is quite an assertion. It's also the case that there are a lot of situations where such material would become uncopyrightable, again, in the US, and Europe. So it's not "hardly an assertion in the first place".
The rest does not seem to be quite on point, which is the question of whether or not what Carl did is going to be found to be a violation, and not about who should bear the cost.
The only thing I see here that answers the question I asked directly is "As for court cases, I don't know of any on this subject." I take it then you don't have any legal support for your assertion? Cases, laws, etc, that would say that what Carl is doing is illegal, rather than policy arguments?
You made a bare assertion about the law. If you are going to simply assert things as true, yes, you get to support them. As a lawyer, you should know you can't just walk into court and say "bob is not guilty" (or the reverse, depending on where you live). You actually have to support this thesis.
I pointed out your assertion was quite incorrect in several countries, and specifically asked you for some caselaw to the contrary, in the hopes of getting some that may be directly applicable. Rather than support your assertion, you just pointed out these were not US rulings, which was kind of besides the point.
" Stating that everybody is not entitled to get a free copy of copyrighted material is hardly an assertion in the first place "
???? There are a very large number of situations where a a lot of people are entitled to free copies and use of copyrighted material, in both the US, and Europe, so yes, it is quite an assertion. It's also the case that there are a lot of situations where such material would become uncopyrightable, again, in the US, and Europe. So it's not "hardly an assertion in the first place".
The rest does not seem to be quite on point, which is the question of whether or not what Carl did is going to be found to be a violation, and not about who should bear the cost.
The only thing I see here that answers the question I asked directly is "As for court cases, I don't know of any on this subject." I take it then you don't have any legal support for your assertion? Cases, laws, etc, that would say that what Carl is doing is illegal, rather than policy arguments?
I don't think the article is concerned about manufacture, but about the rest of us. How can you as a consumer know the safety assurances a product has when it claims to conform to a given standard? If you can't read that standard... Maybe it isn't unreasonable to expect manufacturers pay a hundred euros for a standard (though I'd hate to), but it is unreasonable to expect the general public to do the same.
I hope I needn't explain why safety standards (as well as laws, regulations, and anything we rely on) should be open to public scrutiny.
I hope I needn't explain why safety standards (as well as laws, regulations, and anything we rely on) should be open to public scrutiny.
> Stating that everybody is not entitled to get a free copy of copyrighted material is hardly an assertion in the first place
Yes, it is. Especially when that "copyrighted material" is part of the law.
Yes, it is. Especially when that "copyrighted material" is part of the law.
| 100 Euro is the price of a meal at an average restaurant
Wow!!! Something is rotten in the kingdom of Danemark...
The life seems to be very expensive. In France it'll be like 30 Euro (3 courses and wine)
I visited Copenhagen as recently as this summer, and I think what flexie considers the average restaurant would feel pretty upscale to me. Then again I'm not a lawyer. :)
> I doubt 103 euros per copy is going to be found to be reasonable terms ...
§32 of the law seems to apply here for "reasonable terms", which states in (2):
(2) (...) Any other remuneration shall be equitable if at the time the agreement is concluded it corresponds to what in business relations is customary and fair, given the nature and extent of the possibility of exploitation granted, in particular the duration and time of exploitation, and considering all circumstances.
Which is quite unspecific, but I think (sorry, no case I can quote) that 103 will be seen as "ok".
Notes: * IANAL Source: http://www.gesetze-im-internet.de/englisch_urhg/englisch_urh...
§32 of the law seems to apply here for "reasonable terms", which states in (2):
(2) (...) Any other remuneration shall be equitable if at the time the agreement is concluded it corresponds to what in business relations is customary and fair, given the nature and extent of the possibility of exploitation granted, in particular the duration and time of exploitation, and considering all circumstances.
Which is quite unspecific, but I think (sorry, no case I can quote) that 103 will be seen as "ok".
Notes: * IANAL Source: http://www.gesetze-im-internet.de/englisch_urhg/englisch_urh...
Not all countries have the nice US standard of it all being free. Frequently Irish law refers to maps that are heavily copyrighted by Irish semi-state bodies.
You seem to be correct, for others reading along here is a reference to the law you quoted - starts at the bottom of page 5:
https://law.resource.org/pub/us/cfr/regulations.gov.docket.0...
However, while that appears to be the law in Germany, that doesn't mean it ought to be the law in Germany (or anywhere else). Sounds like iRights.Law is looking to get that changed.
https://law.resource.org/pub/us/cfr/regulations.gov.docket.0...
However, while that appears to be the law in Germany, that doesn't mean it ought to be the law in Germany (or anywhere else). Sounds like iRights.Law is looking to get that changed.
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.
The answer: a corporatist with no sense of the notion of public goods.
This generation scares the shit out of me.
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.
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.
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.
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.
That does not make it legal to publish a work without the copyright holder's consent.
Perhaps, but it does make it moral to publish the work.
And law ought to follow morality rather than the other way around.
And law ought to follow morality rather than the other way around.
If your point is that these standards are in fact de-facto laws and should be treated accordingly (free access and all), then make that point directly. It is unclear to me how copyright violation helps here, apart from publicity.
If the law requires implementation of {STANDARD} then {STANDARD} is part of the law, and should not be subject to copyright... the end.. no copyright violation for standards that are part of the law.
Note that not all countries hold the idea that the U.S. does where something published by the government is not copyrighted.
http://en.wikipedia.org/wiki/Crown_copyright
http://en.wikipedia.org/wiki/Crown_copyright
I realize this... the core principles of liberty are, however, universal. Even if a specific local government doesn't believe in it. Even in the U.S. it appears to be less and less supported by law each year.
Which is totally not the case here. The law mandates certain actions. If you're certified to comply with the standard, then you're in compliance with the law, however you can be in compliance with the law without implementing the standard - you just carry the burden of proof.
I think the problem here is that the standards become law - it's a grey area, because the law ought to be free for everyone to read.
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.
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.
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.
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.
Good to know that you can buy your way out of prison.
I see it as a violation of copyright case, not some obscure Kraut conspiracy.
"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.