Welcome to the Free Online Scholarship Newsletter
     June 25, 2001   

When public laws are in the public domain, and when they are not

If there is a good reason for the primary literature in physics or philosophy to be online free of charge, then there are two good reasons for public laws to be online free of charge.  The first is the same reason that applies in physics, since law is an intellectual discipline in which research depends on access to the primary sources.  The second and more important reason is democracy.  Citizens should not have to pay to read the laws that bind them. Or conversely, laws which citizens must pay to read should not bind anyone.

Consider the case of Peter Veeck.  While rehabilitating an old building in Denison, Texas, he tried to get a copy of the local building code. Unsuccessful in a print library, he bought an electronic copy for $300. Since he also ran a regional ISP, he thought he'd make life easier for others in his situation by posting the code online.

Immediately he received an email from a lawyer for the Southern Building Code Congress International (SBCCI), informing him that SBCCI owned the copyright on the building code and demanding that Veeck remove it from his web site. Veeck went straight to federal court for what he thought would be an easy declaration that statutes adopted by the legislature were in the public domain.  He lost in district court and he lost again in the Fifth Circuit Court of Appeals.  Veeck is permanently enjoined from putting the building code on the web, and must pay SBCCI $2,500 in damages for violating its copyright.

Regulations governing industries must contain voluminous and frequently changing technical detail, of which legislators are understandably ignorant.  This creates a market niche which private organizations like SBCCI spring up to fill.  They write technical regulations in the areas of their expertise and propose them to the state.  When a legislature adopts a building code written by SBCCI, then SBCCI insists on retaining the copyright.  Even after making it the law of the land, the state cannot reprint the code in its own statute books.  Those who want to read it must buy copies from SBCCI.

SBCCI is a non-profit organization, but it needs the sales revenue from its statutes to subsidize its legislative research, drafting, and lobbying.  How much revenue are we talking about?  In court documents, SBCCI revealed that it projects $6.7 million in building code sales over the next 10 years.  In Peter Veeck's case, this meant $738 for a printed copy of the building code, or $300 for an electronic copy on a CD.

According to the San Diego Union-Tribune, the building codes in 48 states are copyrighted by one of three private organizations.  The electrical code in all 50 states is copyrighted by the National Fire Protection Association. The code governing medical billing in all 50 states is copyrighted by the American Medical Association.

We may see more privately written and privately owned public laws in the future.  In 1998 the Office of Management and Budget recommended that all federal agencies incorporate regulations developed by private organizations "whenever practicable and appropriate" in order to save the government money.

This trend would please Caligula, who practiced at tyranny by posting the Roman laws on the top of a tall pole where no one could read them.

Kathryn Balint, Public Laws Owned by the Public?
From the _San Diego Union-Tribune_

Jason Brooks, Who Owns the Law?
From _ZDNet_

Fifth Circuit's 2/2/01 decision for the defendant

Links to legal documents in the case, from Veeck's web site

SBCCI home page

OMB recommendation, 63 CFR 8554-8555

* Postscript.  Veeck lost in the Fifth Circuit Court of Appeals on February 2, 2001.  On February 15 he asked the Court for a rehearing in front of its full panel of 18 judges.  On March 27, SBCCI filed its response, which Veeck cannot put on the web because SBCCI would not provide an electronic copy. Watch for the outcome of his renewed petition and for the possibility that he'll appeal to the  Supreme Court.

** Post-postscript.  All the statutes and cases of the United States (except the privately copyrighted statutes like the SBCCI building codes) are available online for pay from Lexis-Nexis and WestLaw.  Each company paid to digitize the entire corpus and needs revenue to amortize its investment. However, this content is in the public domain and every week more and more of it appears on the web without charge.



FindLaw (one good example of a free guide to free online law)


FOS issues aired on NPR

The June 22 iteration of NPR's _Science Friday_ devoted one of its two hours to a discussion of free online scientific research.  The guests represented scientific research (Harold Varmus from NIH and Sloan-Kettering), academic libraries (Ann Okerson from Yale), and commercial publishing (Karen Hunter from Elsevier).  The host, as usual, was Ira Flatow.
In one hour the show successfully conveyed the arguments for free online scholarship, the objections or reservations from the commercial publishing world, and the replies to those objections.  If you have RealPlayer, you can hear the broadcast through the link below.  If you have colleagues who wonder what the FOS movement is all about, this may be the quickest and most painless introduction.

Free Access to Published Scientific Research
From NPR Science Friday


P2P approach to long-term digital preservation

Printed paper has a good track record at enduring in readable form for centuries.  Digital information has no such track record and its potential is uncertain.  If printed scholarship can guarantee long-term preservation and access, and online scholarship cannot, then print will always have a powerful advantage.
One way to preserve digital texts is to make back-up copies.  But when a publisher, journal, or library does this in some centralized way, then it must pay for large-capacity storage, staff to oversee the operation, and risk failure at the central location and its outlying storage sites.  The Stanford libraries wondered how to decentralize the preservation process and at the same time make it less expensive and more secure than its centralized alternative.  The result is project LOCKSS --Lots Of Copies Keep Stuff Safe.
LOCKSS users stick a self-booting floppy in a desktop PC.  The software configures the machine to create a web cache of some portion of the user's digital property, such as the issues of an electronic journal to which the user subscribes.  The PC then becomes a node in a peer-to-peer (P2P) network of similar repositories.  Using the LOCKSS software, these nodes check on one another continuously over the internet.  When one repository is corrupted or deleted, it is automatically repaired by its peers.
LOCKSS repairs a damaged repository from the publisher's original source, if possible, and only turns to peer caches if the publisher is unavailable, say, because it has gone out of business.  This is a great boon to libraries, which want permanent access to purchased online journals in the same way that they have permanent access to purchased print journals.
If an institution sets its local search engine to crawl its LOCKSS cache, then it can search all its online journals at once.  Without LOCKSS or other special software, users would have to search the web sites of each online journal separately.
Since 1999 Stanford has been testing LOCKSS on a 160 MB cache of content duplicated 15 times around the country.  The system has successfully weathered such non-simulated disasters as hardware failure and a lab fire. In April of this year, Stanford launched a world-wide beta test on 60 different caches duplicated at more than 40 locations with the cooperation of more than 35 publishers.  The current test uses larger databases subjected to more severe threats to data integrity and security.
When the beta test is complete, Stanford will release the software as open source and work on a robust production version to be launched sometime in 2002.  Presumably the production version will also be open source.
LOCKSS was developed with support from NSF and Sun Microsystems, and is currently funded by the Mellon Foundation.

LOCKSS home page

Vicky Reich and David Rosenthal, LOCKSS
From _D-Lib Magazine_



* ingenta.com is the world's largest purveyor of for-pay full-text online scientific research articles.  For the six months ending March 31, 2001, ingenta reports that its profits were up 348% over the previous six months, and that its profit margin rose from 67% to 76%.  Because less than 10% of scientific research is online, ingenta's CEO sees prospects for substantial future growth.


In other publications

* In the June 1 issue of _D-Lib Magazine_, Simon Tanner has a short note on the UK's Higher Education Digitisation Service (HEDS) and its new Mellon grant to explore pricing models for digital cultural heritage collections.

* On June 8, Charles W. Bailey put Version 37 of his Scholarly Electronic Publishing Bibliography online.  This version lists the FOS Newsletter. Thanks, Charles.

* In a June 13 article in C|Net's News.com, Joshua Bauchner argues that copyright law was originally intended to promote public discourse but now inhibits it.  The problem isn't protection from plagiarism, but protection of profits, which allows copyright holders to limit the circulation of ideas to paying customers.  Bauchner praises the internet for allowing civil disobedience against a corrupt copyright regime.


Language questions

* The more I read about these issues, the more I encounter electronic publishers and content brokers using the phrase "monetize your content". This means "charge money for your content".  If you were a publisher, you might want to generate revenue from your publications.  But wouldn't you also want to give the impression that you were literate?
* The more I write on these issues, the more I need a good, plain English adjective which means the opposite of "free" (as in "free of charge").  Help me out here.  If scholarship isn't free of charge, then it's ________ (no points for "inaccessible", "confined", or "unread").  The best we have are awkward compounds like "for-cost" or "for-pay".  This is a sad hole in the language.  Is the presumption that everything of value costs money so ingrained that we haven't felt a need to give this state a name?
It's ironic to ask for a "coinage" to fill this hole.  But if existing words won't do it, then we should look for new ones.  Send me your suggestions.



If you plan to attend one of the following conferences, please share your observations with us through our discussion forum.

* International Conference on Electronic Publishing 2001
Canterbury, July 5-7

* First DELOS International Summer School on Digital Library Technologies
Pisa, July 9-13

* Developing an agenda for institutional e-print archives
London, July 11

* Biological Research with Information Extraction & Open-Access Publications
Copenhagen, July 26


Reminder.  Since the previous issue,  I've separated the newsletter from the discussion forum.  Now you may subscribe to one without subscribing to the other.  If you want both, you must subscribe to  both.  Of course, both subscriptions are free.
When I made the change, I regarded subscribers as newsletter subscribers, not discussion subscribers.  Hence, I left all of you subscribed to the newsletter and signed up none of you for discussion.
You may read discussion postings on the web site without subscribing.  But to post your own comments, or to receive discussion postings by email, you must subscribe.  If you like, you can subscribe to the discussion forum and choose not to receive postings by email.

For more details, including subscription forms, see


This is a sporadic newsletter, so I can't feel too guilty about the comparatively long interval between the last issue and this one.  But I'm very conscious of the long interval in this case because of its frustrating cause.  I recently moved to my '01-02 sabbatical location (Brooksville, Maine) and counted on the timely delivery of a new computer.  If timely, it would have arrived a couple of weeks before my move.  As it happens, it didn't arrive until a week after and it couldn't (and still can't) read my data disks.  Since I mailed the last issue, I've had poor access to email and no access at all to the bookmarks I use to scour the web for FOS news.  I'm still not back on track, but I do expect to be soon.  In the future when the interval between issues grows long because I'm preoccupied by a writing project, or a beautiful spell of kayaking weather, then I won't feel the same need to explain myself.  Enjoy your summers.


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Peter Suber

Copyright (c) 2001, Peter Suber

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