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The Paywall
and the Crack
Add to Cart: The Law You Owe
The following are real prices for standards that have been incorporated by reference into state or federal law — meaning they are, in every jurisdiction that has adopted them, legally binding obligations on every person or entity they govern. They are also copyrighted private property, sold by private organizations as commercial documents.
The combined price of the standards a licensed electrical contractor needs to operate in full compliance across multiple jurisdictions runs into hundreds of dollars annually — and that is before accounting for the compliance cost of each three-year revision cycle, which may require purchasing updated editions, completing re-certification training, and updating the technical libraries that form the baseline of professional practice.
For the public — the citizens whose safety these standards govern, who live in the buildings they regulate, who use the products they certify — the situation is more fundamental. There is no official government resource through which an American can freely read the law that governs the electrical system of their home. The law is behind a paywall. The paywall is legal. Until recently, it was also uncontested.
How "Reasonably Available" Became the Shield
The Administrative Procedure Act — the foundational statute governing federal rulemaking — requires agencies to publish their rules. Section 552(a)(1) mandates that the Federal Register contain substantive rules of general applicability. The publication requirement is a due process guarantee: citizens must be able to know the law that binds them.
Incorporation by reference creates a tension with that guarantee that the legal system has managed, for decades, through a single phrase: "reasonably available." The Office of the Federal Register's regulations at 1 CFR Part 51 permit agencies to incorporate external materials by reference when those materials are "reasonably available" to the class of persons affected by the rule. The agency must identify where the material can be obtained and confirm its availability.
"Reasonably available" has meant, in practice: you can buy it. The OFR has approved incorporation by reference for documents costing hundreds of dollars because those documents could, in principle, be purchased. That an individual citizen might not be aware of the existence of the standard, unable to afford it, or have no professional reason to know it existed did not affect the legal availability determination. The due process concern is formal. The practical concern is structural. For thirty years, the formal concern satisfied the legal requirement, and the practical concern was no one's legal problem.
Two decisions — one in 2022–2023, one in 2024 — changed that calculus. The first put copyright directly in conflict with the government edicts doctrine. The second removed the judicial deference that had insulated agency IBR decisions from scrutiny. Together, they opened what this post calls the crack.
ASTM v. Public.Resource.Org — The Government Edicts Doctrine
Carl Malamud is a technologist and public access advocate who founded Public.Resource.Org, a nonprofit dedicated to making government documents freely accessible. Beginning around 2013, Malamud began systematically downloading incorporated-by-reference standards from government agency websites and re-posting them at law.resource.org — making them freely searchable and accessible to anyone. His argument was direct: if these documents are the law, they belong to the public. Copyright cannot attach to the law.
ASTM International, the American Society of Civil Engineers (ASCE), and the National Fire Protection Association sued for copyright infringement. The litigation, consolidated under ASTM v. Public.Resource.Org, produced one of the most significant rulings on the intersection of copyright and government authority in decades.
Loper Bright — The Deference That Held Everything Together
For forty years, Chevron USA v. Natural Resources Defense Council (1984) governed how federal courts reviewed agency interpretations of ambiguous statutes. The Chevron doctrine said: when Congress has delegated authority to an agency and the statute is ambiguous on a specific question, courts should defer to the agency's reasonable interpretation. Agencies had expertise. Courts did not. Deference was the functional solution to that asymmetry.
Chevron deference was the invisible load-bearing wall of the IBR architecture. When an agency incorporated a private standard by reference, and a challenger argued that the incorporation violated the APA's publication requirements or exceeded the agency's statutory authority, the court deferred to the agency's determination that the standard was appropriate, reasonably available, and within the agency's mandate. The agency's expertise — including its expertise in evaluating private consensus standards under NTTAA — was entitled to judicial deference. Challenges rarely succeeded.
On June 28, 2024, the Supreme Court decided Loper Bright Enterprises v. Raimondo. The Court overruled Chevron. Courts must now independently determine whether agency actions are consistent with the authorizing statute — without deference to the agency's interpretation of ambiguous provisions. The decision applies to the entire body of administrative law, including the IBR framework.
What Loper Bright held: Courts must exercise independent judgment in determining the meaning of statutes governing agency action. When a statute is ambiguous, the answer is not automatic deference to the agency. The answer requires the court to determine, based on the statutory text, structure, history, and purpose, what the law actually means. Chevron's two-step framework — find ambiguity, defer to agency — is gone.
What this means for IBR: Agency incorporations of private standards rest on statutory authority — typically NTTAA's mandate to use voluntary consensus standards, plus the APA's publication requirements, plus the OFR's "reasonably available" standard. Post-Loper Bright, courts reviewing a challenged incorporation must independently determine: Did Congress authorize this form of incorporation? Does the incorporated standard satisfy the APA's publication requirements without deference to the agency's "reasonably available" determination? Is the specific incorporated standard within the scope of what Congress intended when it passed NTTAA?
The combined effect with ASTM v. PRO: The first crack established that incorporated standards carry reduced copyright protection against free public posting. The second crack removed the judicial deference that protected agency IBR decisions from scrutiny. Together, they leave the IBR architecture exposed on two fronts simultaneously: copyright challenges from below, APA/statutory challenges from above, with no Chevron shield protecting either flank.
Who has standing to challenge: Small businesses and contractors who can demonstrate economic harm from compliance with specific incorporated standards. Public interest organizations challenging the "reasonably available" determination for expensive incorporated documents. Regulated parties arguing that the specific incorporated edition — not the current edition, but the edition actually enforcing — exceeds what the adopting statute authorized.
Chevron deference was the mortar holding the IBR architecture together. It meant that when a regulated party challenged an agency's decision to incorporate a private standard — a document written by industry, sold for profit, inaccessible without payment — the court would defer to the agency's judgment that the arrangement was appropriate. That deference is gone. The mortar is gone. What remains are the bricks, and bricks without mortar are a structural condition.
Where the Architecture Is Now Vulnerable
The two cracks do not operate independently. The ASTM litigation established that incorporated standards are not fully shielded by copyright when they carry the force of law. Loper Bright established that agency determinations about IBR are not shielded by deference when they rest on ambiguous statutory authority. The combination creates a zone of legal vulnerability that the IBR architecture has never faced before — and that the Pro Codes Act is specifically designed to close before a circuit court or the Supreme Court fully exploits it.
The architecture's defenders have a coherent response. The IBR system has functioned for decades without generating the public access crisis that its critics describe — because the people who need these standards professionally are the people who purchase them professionally. The "reasonably available" standard was designed for regulated parties, not for individual citizens who have no practical need to read the technical specifications for reinforcing steel. The system works for the people who use it.
This response is honest as far as it goes. What it does not address is the democratic legitimacy argument that Post I raised and that the crack now makes legally actionable: when private documents carry the force of law, the constitutional principle that law must be publicly accessible applies regardless of whether any individual citizen has a practical reason to read it. The principle is not utilitarian. It is structural. The crack is structural. The Pro Codes Act exists because the SDOs understand that the structural argument, post-Loper Bright, is now within reach of a federal court willing to take it seriously.
What it would do: Amend the Copyright Act to explicitly provide that incorporation by reference into a federal or state statute or regulation does not affect the copyright status of the incorporated material. Standards organizations would retain full copyright in their documents even after wholesale incorporation into law.
What it would close: The ASTM v. PRO fair use finding. The government edicts doctrine's application to incorporated standards. The legal trajectory toward free public access to incorporated-by-reference law.
What it would not close: The Loper Bright crack. APA challenges to specific incorporations. State due process claims. The "reasonably available" question under OFR regulations. The Pro Codes Act addresses the copyright front; it does not address the deference front.
The political signal: The fact that this legislation was drafted, introduced, and lobbied for is the most direct evidence in this series that the SDOs understand their legal position has materially weakened. Organizations that confidently hold the legal high ground do not need defensive legislation. The Pro Codes Act is the standard architecture's response to a threat it did not face — and did not need to face — for the first hundred years of its existence.
What This Post Establishes
The paywall is a structural feature, not an incidental one. The revenue model of the standards development organizations depends on document sales. Document sales require copyright protection. Copyright protection on incorporated standards creates a paywall on law. The paywall is not a side effect of the revenue model. It is the revenue model — applied to documents that simultaneously carry the force of public law. The tension between those two things is constitutional in character, not merely administrative.
The "reasonably available" standard has never meant freely accessible. The OFR's regulatory framework for IBR approval created a legal availability determination that satisfied the APA's publication requirement without requiring public access. The determination was never tested under independent judicial scrutiny because Chevron deference insulated it. Post-Loper Bright, it is no longer insulated. A court willing to apply independent judgment to the question of whether a $438 UL standard is "reasonably available" to affected citizens may reach a different answer than agencies reflexively provided under Chevron.
The two cracks are additive, not independent. The ASTM litigation reduced copyright protection for incorporated standards. Loper Bright removed the deference that protected IBR decisions from APA scrutiny. Together, they expose the architecture simultaneously from its intellectual property foundation and its administrative law foundation — while the Pro Codes Act, still unenacted, represents the SDOs' recognition that legislative intervention is now necessary to preserve an arrangement that was previously self-sustaining.
This is the most legally dynamic moment in the Standard Architecture's history. For over a century, the paywall on incorporated-by-reference law was legally uncontested. The ASTM litigation contested it. Loper Bright changed the judicial framework for evaluating the contest. The post documents where the crack runs. The series does not predict how the courts will resolve it. It documents that the resolution is now required — and that the architecture's response to that requirement has been to seek legislation rather than to open the documents.
Next: Post V · The Rent Layer. The paywall is visible. The revenue from standard-essential patents embedded in those standards is not. Post V documents the hidden licensing economy inside the architecture — the royalty flows that make the paywall's price a floor, not a ceiling.
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