Thank you Daniel X. O'Neil and Joe Germuska for organizing tonight's event and for your amazing work here in Chicago. All of you in this room are following in the footsteps of a long line of Good Government pioneers from Chicago. The Goo Goo movement started here in response to the lack of fire codes and the tragic consequences from the 1874 fire.
I'm going to return to the subject of the availability of fire codes and the implications for Goo Goo 2.0 in a minute, but first I also want to say what a real and rare pleasure it is to be sharing this podium tonight with the Honorable Susana Mendoza, your City Clerk.
For over 20 years, I've spent most of my time putting government data on the Internet, and I can count on the fingers of one hand the number of times government officials have stood next to me in public.
There have been a few exceptions. I got a nice letter from the Chairman of the SEC when they took over my EDGAR service after a 2-year struggle. The Judicial Conference of the United States sent me a very nice thank you note for pointing out thousands of privacy violations in district court dockets.
And, while that thank you was very gratifying, it is also true that the court administrators called out the Chicago Office of the FBI to stake us out and try to make our whistle blowing into some kind of criminal conspiracy, so that sort of cancelled out that nice thank you letter from the judges.
What Clerk Mendoza has described is a process of codification that goes on in every city, county, and state in the United States. Codification, and the periodic updates to the codes, is part of a pipeline. The end result of that pipeline has usually been a big thick document you could buy for a few hundred dollars—your municipal code.
More recently, the codification companies have started selling CD-ROMs and most of them now have a web site where citizens can view their codes. Unfortunately, that pipeline has in the past stopped with these web sites, most of which are frankly pretty bad. Most of them are a frames-based interface. Cross links and navigation and search are sorely lacking. There are no permanent URLs. There is no bulk access facility.
These code web sites are not valid or accessible, they have not been touched, as surely they should be, by the better angle brackets of our Internet.
Earlier this year, I placed an order with American Legal for the Chicago code and a half-dozen others. Whenever I buy a code, I always gulp hard because vendors have been quite prickly at times, a subject I'll touch on shortly. When I got my half-dozen CDs from the vendor, there was a handwritten note asking me to call their director.
I called the director, Todd Meyers, and he knew immediately who I was. “Oh, you're the one that ordered a bunch of codes, aren't you? Are you planning on building a web site?” I confessed that this was indeed my aim and to my great shock, he asked if there was anything he could do to help out, like signing me up for update services or making older versions of the codes available.
Then, when I sent a note over to city officials in Chicago, I got the same reaction from Clerk Mendoza's office. “This is great! What can we do to help?” I'm pleased to report that we now have quarterly revisions of your code from 2007 on available in bulk, plus codes for Evanston, Cook County, and a dozen other locations in the area.
With the bulk data on the net, we were able to unblock that virtuous pipeline of code, and the data started to flow. You're going to hear about the minor miracles that occurred with the code when Seamus Kraft and his team started using the tools from Waldo Jaquith and other Goo Goo 2.0 volunteers across the country. It really is quite special what happened.
I was shocked this was so easy. Now, you may be shocked that I was shocked that this was so easy. After all, this data is your municipal code, it's the law.
Believe it or not, the default when it comes to codes is not that these are the laws that the people have to know. The default is that codes are a profit opportunity used to extract rent. It is not unusual to see prices of $500 or more if you wish to own your personal copy of your code, and grave warnings tell you under no circumstances may you share your copy.
Do you know that over 50% of cities in the great state of California have a copyright notice on their municipal codes? Many states exert firm copyright control over their state regulations. This is despite long-standing Supreme Court precedent that says the law has no copyright, because it belongs to the people, not to the bureaucrats.
You may think this is hyperbole, so I want to give you some very specific examples of how screwed up the situation is in places that aren't lucky enough to have dedicated public servants like Clerk Mendoza.
Take for example the great state of Idaho. Earlier this year, I spent a few thousand dollars and bought the Official Idaho Code, the law of the great Potato State. I scanned the 85 volumes, uploaded them to the Internet Archive, and sent a copy to the Speaker of the House with a letter telling him how happy I was to be able to help.
Speaker Bedke never answered my letter, but he did hire an outside law firm to put a stop to this wanton promulgation of the law. The Potato Law People sent a sternly worded letter demanding I remove the law from the entire Internet. And, by Potato Law People, let me be very clear—I mean a few hired guns, not the good people of Idaho and their elected representatives who believe in the rule of law. Those lawyers said the annotations to the code—things like the legislative history and case notes—were their private property and under no circumstances was I to publish them.
Even more shocking, the fancy lawyer from Boise that the Idaho Law People hired said that even the words of statutes passed by the legislature—the naked and unadorned law—could not be published unless I first obtained a license.
The Idaho Law People are not alone. The same thing happened with the great state of Georgia when I published 138 volumes of the Official Code of Georgia Annotated.
The Georgia Law People—those misguided few who wish to deny the good people of Georgia their right to read the law—didn't even hire an outside law firm. The Honorable Josh McKoon, Chairman of the Senate Judiciary Committee, personally wrote to me and demanded—in an all uppercase missive—that I immediately CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT and that my failure to comply would be EVIDENCE OF WILLFUL INFRINGEMENT and that he would SEEK MONETARY DAMAGES AND EQUITABLE RELIEF.
Ouch.
I determined to stand up to the power of the Idaho Law People and I sent Idaho back a polite letter that explicitly and clearly refused to comply with their demand. Likewise, I choose not to be cowed by the power of the Georgia Law People and declined to comply with Senator McKoon's repeated demands.
Demanding a license to read the law is un-American, it is undemocratic, it is unbecoming. Since the days of the Magna Carta, we have sworn “to none will we sell, deny, or delay right or justice.” Charging for the law is a poll tax on access to justice, and it is wrong.
The Georgia Law People and the Idaho Law People and their brethren in the 8 states that assert copyright over state laws are not alone. There is an even more insidious force in America, the cartel of the code people.
Chicago is quite special in many ways, and one is that your building code is—and has been—available for everybody to read. That is highly unusual.
All across the country, most jurisdictions incorporate by reference model codes that have stringent copyright restrictions. These public safety codes are the most important laws in our modern technical society. They touch our lives every day.
All cities and states require a number of safety codes, a movement that is a direct outgrowth of that tragic fire in 1874 here in Chicago and of the equally horrific Triangle Shirtwaist Factory Fire in New York. Today, we have fire, electrical, building, plumbing, mechanical, fuel and gas, elevator, boiler, and many other technical codes that are mandated by law.
Our cities could not work without these public safety codes. When these codes are ignored, we see the catastrophic consequences. We saw that with the devastating fire at the Tazreen Fashion Factory in Bangladesh. We saw that when the refinery in Texas City exploded shattering windows a mile away. We saw that when BP dumped 205 million gallons of oil into the Gulf. We saw that in San Bruno when a natural gas line burst and created a wall of fire 1,000 feet high.
In 2008, I started publishing state-mandated public safety codes despite the stringent copyright restrictions. I based my actions on the heroic work of Peter Veeck, a Texas citizen who in 2002 started to post his local building codes and was promptly sued by the code people.
Texas, like other states, had incorporated a model code as the law, and the 5th Circuit of the U.S. Court of Appeals said what Peter did was perfectly legal.
The model code perhaps had copyright, but the Building Code of Texas was the law, and the Veeck Court affirmed that the law—be it a Supreme Court opinion, a state statute, a municipal regulation, or a building code—has no copyright because the law belongs to the people.
In 2012, I started to expand our work to begin publishing safety codes that are incorporated into federal law. These include technical specifications for pipeline safety, the transport of hazardous materials, codes required by OSHA to guarantee the safety of the workplace, environmental testing protocols for water and air, codes that guarantee the safety of toys and baby strollers and electrical appliances.
Before we started publishing federally mandated codes in 2012, it is fair to say that a large part of the U.S. Code of Federal Regulations was simply unavailable unless you spent huge amounts of money.
City officials wanting to enforce public safety have to buy these codes—this is a huge line item in their budget. Federal bureaucrats have to buy these codes, and they spend hundreds of millions of dollars.
Students, journalists, and consumer groups don't have the codes because the costs are so high. Almost no libraries in the United States have a decent collection of these codes because the prices are well beyond their means.
My objection to the codes is not that they cost money—as obscene as those costs are—it is that once we have purchased them, the code people maintain we cannot speak the law. If I want to build a web site that compares the building codes in two adjoining states, that is illegal according to the code people. If I want to put codes from different organizations in a common format, the code people maintain that is illegal.
They say publishing the law is a violation of the law. They say you must have a license to speak the law.
Since I began this work at the federal level, we have expanded our efforts to publish over 28,000 codes from around the world, including 18,000 standards published by the government of India, and several hundred crucial standards mandated by the European Union.
In August, the code people brought their hammer down. Three of the organizations filed suit in federal court, accusing me of a “massive copyright conspiracy.” They have 3 very fancy law firms representing them, a dozen lawyers are working on this prosecution.
The lead on this suit is the National Fire Protection Association, the publisher of the National Electrical Code, a document required by law in all 50 states and by the federal government. If you violate the National Electrical Code, prepare to go to jail. If you violate the National Electrical Code, you are endangering human life and putting property at risk.
The NFPA is led by Big Jim Shannon. The NFPA is a nonprofit organization, but Big Jim pays himself $1 million per year. He maintains that he has to control who can read the National Electrical Code and under what circumstances, because he says they need the money.
He says if they don't get that money, if they don't require a license to read and speak the law, they won't be able to continue publishing the National Electrical Code, and people will get hurt.
Now, let me be clear, Big Jim does good work. The NEC is a great code. It is a wonderful standard. But, when they develop the electrical code, and all the wonderful fire safety codes they produce, their aim is that these documents become the law of the land. That's their explicit goal, it isn't some afterthought.
And, when the codes become the law of the land, Big Jim and the NFPA get a wonderful gift, the gold seal of approval of the American people.
The NFPA can use that gold seal of approval to sell handbooks, certification, training, annotated codes, membership, and many other lucrative products. Having the law become available to all to use is not a problem, it is a huge marketing advantage.
Big Jim wants the exclusive right to control an important law and that's simply un-American. He says he needs the money to pay for his salary and meetings and other good work they do, but he can't do that on the backs of the American people.
The law is public property, he can't build fences around a public park just because he wants his cattle to get fatter.
Big Jim and the NFPA are part of a gang of code people. There are a couple hundred such organizations all scrambling for the official seal of approval of the government, so they can get a license to print money. The leader of the code people is Joe Bhatia, the CEO of the nonprofit American National Standards Institute.
Joe also treats himself well, taking down $1 million per year and lists himself as working only 35 hours per week so he has time for his outside interests. ANSI has made me their number one policy issue this year and have launched a full frontal assault.
Million Dollar Joe understands that he's not going to get away any longer with hiding all technical laws behind a paywall. He's even on record as saying, and I quote, “A standard that has been incorporated by reference does have the force of law, and it should be available.”
Indeed.
He says it, but he says it like somebody saying “all I want is world peace.”
Just a week ago, Million Dollar Joe unveiled, to great fanfare, the official ANSI alternative to our site. Here's what they came up with for their so-called “Law Reading Room.”
They're going to make all standards incorporated into federal law available, but there are a few conditions, because there's no free lunch at ANSI.
First, you have to pre-register to read the law. Then, you have to install a PDF DRM plugin on your computer. You have to agree to terms of service that say you will not under any circumstances do anything useful with the standard. Then, you may read the law on your computer but you may not print, save, search, copy, take a screen dump, or bookmark the document.
But wait, there's more!
As a condition for reading the law, ANSI will monitor your usage and send regular reports to organizations such as the International Electrotechnical Commission. They will use your personal details to up-sell you on products and services.
And, even if you upgrade from the read-only lowly ordinary citizen level to the big bucks pay-per-view standards professional level, you still can't share the law you read or make it more useful.
Million Dollar Joe reminds me of the Emperor Caligula, who passed laws imposing huge taxes on the Roman people. When the tribunes—the representatives of the people—forced him to publish those laws, he wrote them in a very small hand and posted them so high on the walls of the forum nobody could read them or copy them. Caligula did the very least he could for the people, and ANSI has done the same, putting private profit over public service.
The code people represent a multi-billion dollar industry. They may have to adjust their business model to face the reality of the Internet, but then so has every other industry on the planet. They'll do just fine even if we're all promulgating the law.
The code people, and their provincial cousins like the Idaho Law People and the Georgia Law People, are not taking to this Internet stuff, they're fighting reality tooth and nail. If they want to continue to be law makers, they better figure out how to be law givers.
The stakes are big. You've probably all heard of statutory damages. If I pirate a copy of a movie or a book and a judge says I'm guilty, I will face statutory damages of $150,000 per incident.
Now, I want to be very clear. I'm absolutely not a pirate. I haven't violated any copyright. There is no way a judge would look at the 28,000 standards we've published and in any way believe the jingoism of the code people when they accuse me of a “massive copyright conspiracy.” But from the point of view of the code people, they see 28,000 standards at $150,000 per work, and you can see the $4.2 billion statutory threat I'm facing in my work.
When I see the code people wielding their pitchforks, I can only hope that more people will stand up like you have here in Chicago to take control of your code, to say this law is our law.
When the code people try and extract rent, I hope you will tell them what LBJ told his civil servants: “Let the venal and the self-seeking and the tawdry and the tainted fear to enter your building and fear even more to knock on your door.”
Your work here in Chicago is important because you can make your code available in a much better way. You can show what happens when that virtuous pipeline of code is allowed to flow.
You are not very far away from being able to compare the code at two points in time and see a redline as to how they differ. You are not very far away from being able to compare a similar ordinance in neighboring towns. Because your code is available in bulk with no restrictions on use, Chicago will get random innovation, that marvelous Internet effect.
But, this is about more than Chicago. As with the Good Government movement of the last century, Chicago can blaze a trail and teach the nation by your example.
By making your code better, you can send a message to Big Jim and Million Dollar Joe—you can send a message to the Idaho Law People and the Georgia Law People—that the law belongs to the people, that our government belongs to the people, and that the people will not be intimidated and cowed into submission when it comes to the rule of law
It was Jane Addams who said “the good we secure for ourselves is precarious and uncertain until it is secured for all of us and incorporated into our common life.” We have to own our law, make it better, make it part of our common life.
This law is your law, not some petty profit opportunity. We can send a message to the code people that Chicago cares about code, that this country cares about code, that when it comes to the rules of our society, open source is the only way to ensure the rule of law.
That is the only way to have equal protection under the law. That is the only way to have due process under the law. That is the only way to ensure access to justice, the right to free speech, and an informed citizenry.
It's the way we do it here in Chicago, it's the American way.
Copy that code.
Thank you.