What if reading the law required a subscription—or quoting a Treasury Regulation had copyright infringement implications? That’s the premise, promise, and peril of the so-called Pro Codes Act, H.R.4072, now before Congress under the thin policy mask of transparency and balance.
At first glance, the bill reads like a reasonable compromise: it allows private organizations that develop technical standards—things like building codes, electrical codes, and potentially tax compliance protocols—to retain their copyrights even after those standards are incorporated by reference into the law. In exchange, they’re supposed to make the material “publicly accessible” online and they can’t overtly charge for it.
This isn’t a win for transparency; it is a legislative shell game that transforms public legal obligations into privatized commodities—public domain law into copyrighted code. For lawyers, tax practitioners, businesses, and most importantly the public at large, it is a direct threat to access, accountability, and justice.
The Pro Codes Act has been floated in the past with the same promise: that any incorporated standards will be available and “publicly accessible online.” In practice, “accessible” is defined as being roughly synonymous with “visible”—that is to say, users can look, once they’ve made an account and agreed to clickwrap terms—but the act says nothing about allowing for download, printing, copying, or integration into practitioner tools.
This is a particularly galling development in fields like tax, where reference to technical standards can be a prerequisite for understanding the law—and integration into third party tools all but demanded by the realities of practice. If the Pro Codes Act becomes law, however, building energy efficiency standards that determine whether a given development is entitled to a tax credit could be locked behind a web viewer with no search function.
Access to justice concerns emerge when one realizes that these third-party standards, once incorporated by reference, carry every bit of the force of law. Individuals are required to comply with them but promised only a glance at them; it begins to feel akin to being bound by the contents of a folder tucked away in a locked filing cabinet.
American jurisprudence has long turned on the notion that the law belongs to the people. This has taken practical effect in general rules like the inability to copyright the law. Judges don’t own the copyright in their drafted opinions, legislatures don’t retain rights to their written statutes. This isn’t some high-minded philosophical opinion – it’s Supreme Court doctrine.
Most recently, in a 2020 decision involving Public.Resource.Org, Inc., the Supreme Court held that the annotations to Georgia’s official code—there written by a legislative commission—could not be copyrighted. The logic was they were created in the course of official legal duties and carried the force of law.
The Pro Codes Act would undermine that second prong—allowing private Standards Development Organizations to retain copyright over technical standards that have been explicitly incorporated by reference into statutes and regulations and carry the force of law. Congress would thus be allowing for a two-tiered system of laws: public obligations under private control.
Commodifying the law turns the rules of civil society into a private enterprise’s product tipping the scales of justice against taxpayers, tax practitioners, underfunded legal aid clinics, and community nonprofits serving low-income families. For these professionals, access to the law is the difference between serving a client and turning them away.
Imagine, for instance, trying to advise a client on energy-efficient property deductions under Section 179Donly to discover the applicable standard is only available in a non-searchable format behind a login. Cross-referencing a second building standard would present the same challenge. Further, you’ll need to make sure you check the license agreement for both SDOs before you post on your website lending guidance to other prospective clients—you may not be able to quote the law without violating the licensing agreement.
Larger firms and accounting agencies will simply buy a commercial license that folds access to these copyrighted standards in to a larger database—small public interest advocates will be left navigating a legal system with rules behind walls they can’t afford a ladder to scale.
The Pro Codes Act doesn’t just introduce inconveniences; it makes the law inequitable. The law becomes stratified, with one version for VIPs and another for those relying on incomplete access.
Proponents of the Pro Codes Act, including Congressman Darrell Issa that introduced the bill, would argue this is about fairness—structuring a careful balance between public access and private enterprise. A moment’s reflection, however, illustrates it is nothing more than an attempt to monetize one of the last great commons in American democracy: the law itself.
SDOs present themselves as noble and underfunded stewards of technical knowledge and safety. Many are, in reality, multimillion-dollar enterprises. What they see in incorporated-by-reference standards is the potential for a legally-sanctioned monopoly, and with it the opportunity to extract rents from the very people who are legally required to follow their rules. That isn’t about preserving innovation—it’s about cordoning off a corner of the commons and charging admission.
SDOs are not taxpayer-funded organizations. They thrive because taxpayers are compelled to follow their rules and, if the Pro Codes Act passes, may have to pay to see them in any meaningful and useful way. The proposal is privatization in its most cynical form.
If lawmakers are serious about ensuring equal access to the law, they don’t need to draft a new compromise. They need only honor the principle that has been with us all along: that once something carries the force of law, and folks are expected to abide by it, it belongs to all of us.
If SDOs want to build better versions of the law, be that adding annotations, making it interactive, or releasing value-add editions of some stripe, they are free to do so. The baseline must remain, however, that the rules themselves are free.
The Pro Codes Act doesn’t enhance public access, it restricts it in the name of profit and behind a thin veneer of balance.
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