Should standards that become a part of a law be free to the public?

[thinwater]

This came up on a thread on installing generators. But it is a separate issue that comes up all the time.

I'd like to not state my opinion, but I will fail. I have been active on committees that developed standards applicable to boaters, including producing drafts and commenting. I know how much time and expense is involved. I have also been frustrated trying to research standards from organizations I do not belong to.

Developing standards cost money. Lots of money. Although there is a membership fee, many of these organizations are funded primarily through the sale of standards. Additionally, most of the development work is actually funded by member companies. A typical standard could cost 5-7 figures to develop, if actual costs were tracked. On the other hand, some of these groups sell a LOT of standards.

The standards are copyrighted. True enough. But if they are pushed forward into law, does that action not expand the scope of "fair use," effectivly voiding the copyright? The SCOTUS has a heard a few cases along this line, generally ruling that law must be accessible.

Standards are developed for many reasons. Uniformity. Level playing field. Safety. But also, standards are developed to secure business. Companies lobby that laws incorporate standards by reference, which insures they will have some ability to steer the future course of those standards. standards are written in a way that favors the sponsors. I know this because that was my job.

Many of the organizations are relatively cheap to join. True enough. However, there are a lot of standards organizations and some are expensive.

Only professionals need to know the content of many standards. Nonsense IMO.

IMO, if a standards group allows a standard to be incorporated by reference--and they do have to allow this--then they have given up the copyright. It seems self-evident.

[Paul L]

Is there actual examples where standards are incorporated into laws, or these more federal regulations?

Gives a whole lot more complexity to the statement that ignorance of the law is no excuse.

[wsmurdoch]

Here is an example of a standard incorporated into law that I posted on this forum a couple of days ago. https://law.resource.org/pub/us/cfr/....A-01.1993.pdf

[Paul L]

Originally Posted by wsmurdoch

Here is an example of a standard incorporated into law that I posted on this forum a couple of days ago. https://law.resource.org/pub/us/cfr/....A-01.1993.pdf

Wow, that makes no sense. How can you have legally binding on citizens and residents that then starts out
"These voluntary technical practices and engineering
standards are guides for the design, constmction and
installation of..".
So legally they are voluntary.

[bletso]

There is a bunch of them by the Compressed Gas Association as regards DOT required testing of low and high pressure gas cylinders under CFR 49. You can pay $100's for their thin little pamphlets of which you must have copies.

[Chotu]

I am the one that was talking about this a lot. On the other thread.

All laws are required to be made public. If you cannot search for and find a law, it does not apply to you. That’s pretty much the end of it.

You cannot have a secret law and expect that to stand up in court. You also cannot have a secret law and expect any type of enforcement.

All laws are, by definition, published so they can be enforced, looked up and reviewed.

[thinwater]

Originally Posted by Chotu

I am the one that was talking about this a lot. On the other thread.

All laws are required to be made public. If you cannot search for and find a law, it does not apply to you. That’s pretty much the end of it.

You cannot have a secret law and expect that to stand up in court. You also cannot have a secret law and expect any type of enforcement.

All laws are, by definition, published so they can be enforced, looked up and reviewed.

Apparently yes... and at the same time no.

[Checkswrecks]

It can be a pain and a problem.

At least in the US, codified laws have transparency requirements. For example, Federal Laws are published in the Federal Register and as far as I am aware, every State does the same. They may be dreary and overwhelming to research, but you can find them all with effort.

The problems I've seen are where standards become required by agencies empowered by regulations, and where standards are required by non-Government powers we are essentially required to comply with.

For example, the Govt delegates authority to NHTSA to make car regulations, and for the Consumer Product Safety Commission to regulate other products. Some of those regs cite standards which may be used as a means of compliance, and at that point those standards become de facto requirements. Now you need to purchase the standards from SAE, UL, etc or pay for a membership.

[thinwater]

Originally Posted by Checkswrecks

It can be a pain and a problem.

At least in the US, codified laws have transparency requirements. For example, Federal Laws are published in the Federal Register and as far as I am aware, every State does the same. They may be dreary and overwhelming to research, but you can find them all with effort.

The problems I've seen are where standards become required by agencies empowered by regulations, and where standards are required by non-Government powers we are essentially required to comply with.

For example, the Govt delegates authority to NHTSA to make car regulations, and for the Consumer Product Safety Commission to regulate other products. Some of those regs cite standards which may be used as a means of compliance, and at that point those standards become de facto requirements. Now you need to purchase the standards from SAE, UL, etc or pay for a membership.

In fact, this is the case with selected ASTM, ISO, ABYC, NFPA... standards etc. For example, the deadman switch on the boat must meet an ABYC standard. Tethers must meet an ISO standard. The most of the rule is typically hidden in standards that are included by reference. And who, do you think, is most involved in writing standards? Not the government and not users like us. Manufacturers.

[coopec43]

In Australia all Parliamentary Acts are published on-line and are available free to anyone who has access to the Internet. But I used to teach statute law (ie enacted law by Parliament or by a body empowered to do so) and it was necessary to buy the relevant printed act and that cost serious money.

If an Act was passed by Parliament to adopt certain industry accepted standard (for example) a transcript of the Act would be found on the Internet. What happened before the advent of the Internet? I suppose you had to go to Parliament and read the Statute.

The US of A and Australia adopted Common Law (unwritten law) which was English law based on the outcome of previous legal decisions. I suppose you could do extensive research yourself or get advice from a legal practitioner to ensure you were not breaking the law.

Ignorance of the law is no excuse though. If you are going to undertake certain actions it is up to you to ensure you are not breaking laws.

[Dsanduril]

[RANT]

This is a pet peeve of mine. If a law applies to me then I should be able to read and comprehend the law in its entirety. If that law references some other document then that document must be freely available. Otherwise how can I comply? The speed limit is XX - please pay $5 to see the number.

What really gets me riled me up is when an organization directly lobbies to have their standards adopted into law. ABYC, NFPA, ISO are all guilty. They deliberately position themselves with lawmakers to have their copyrighted “standards” incorporated by reference. And then charge to read the standards they created and wangled into law. Detestable and reprehensible. (At least the NFPA has recently caved and made the NEC somewhat available).

[/RANT]

[coopec43]

Surely this is relevant?

https://www.archives.gov/federal-reg...ws/access.html

https://www.loc.gov/law/

https://www.senate.gov/legislative/H...ow_to_laws.htm

[Dsanduril]

There’s an interesting case working its way through the courts right now regarding building codes (the most egregious violators). Fairly good article here, with citations of previous cases that have led to a mixed environment and will likely lead to a Supreme Court review (sorry, only really applicable to US CFers).

[JPA Cate]

Originally Posted by coopec43

In Australia all Parliamentary Acts are published on-line and are available free to anyone who has access to the Internet. But I used to teach statute law (ie enacted law by Parliament or by a body empowered to do so) and it was necessary to buy the relevant printed act and that cost serious money.

If an Act was passed by Parliament to adopt certain industry accepted standard (for example) a transcript of the Act would be found on the Internet. What happened before the advent of the Internet? I suppose you had to go to Parliament and read the Statute.

The US of A and Australia adopted Common Law (unwritten law) which was English law based on the outcome of previous legal decisions. I suppose you could do extensive research yourself or get advice from a legal practitioner to ensure you were not breaking the law.

Ignorance of the law is no excuse though. If you are going to undertake certain actions it is up to you to ensure you are not breaking laws.

For me, one big problem is that some of the Australian laws are not made clear on the relevant websites, but one is still held to be responsible for knowing and obeying the content.

For me, this points to what thinwater originally mentioned, that sometimes, the normal sources for the law sometimes are opaque--impossible to get right. And it seems to me, that one should not be held legally responsible for behaviour you can't even figure out!

Ann

[coopec43]

Originally Posted by JPA Cate

For me, one big problem is that some of the Australian laws are not made clear on the relevant websites, but one is still held to be responsible for knowing and obeying the content.

For me, this points to what thinwater originally mentioned, that sometimes, the normal sources for the law sometimes are opaque--impossible to get right. And it seems to me, that one should not be held legally responsible for behaviour you can't even figure out!

Ann

In Australia we have three levels of Government - Federal Laws (governing all Australians), State Laws affecting everyone withing a State and Local Government by-laws (governing everyone within a shire/council/city). Federal Government laws over-rule State Laws in Australia but in the US of A State Laws over-rule Federal Laws(?). I agree that would be confusing.



Can you give me an example "some of the Australian laws are not made clear on the relevant website"

Clive