Pro Codes Critics Have It Exactly Backwards
The Protecting and Enhancing Public Access to Codes (Pro Codes) Act was recently reintroduced in the Senate with bipartisan support, and right on cue, a familiar chorus of opposition has risen to warn that the bill threatens public access, endangers safety, and undermines the system that produces the codes and standards Americans depend on every day.
These criticisms deserve a serious response — not because they raise new concerns, but because they get the basic facts exactly backwards. On point after point, the opponents of the Pro Codes Act describe the bill as a threat to the very things it’s specifically designed to protect. And they ignore the real threat entirely: what happens if Congress fails to act?
The System That Works…and the Threat It Faces
For more than 125 years, nonprofit standards development organizations (SDOs) have produced the rigorous safety codes and standards that protect American lives, addressing everything from building safety to wildfires to active shooters. These organizations develop standards through a transparent, consensus-based process at no cost to taxpayers. It’s one of the most successful public-private partnerships in American history.
This system runs on copyright. SDOs fund the painstaking, resource-intensive work of developing and updating standards by selling copies and licensing rights to the builders, developers, and industry professionals who use them in the course of their business. Without that revenue, the system doesn’t work. It’s that simple.
Today, that system is under threat — not from the Pro Codes Act, but from a patchwork of inconsistent lower court decisions that have called into question whether standards lose their copyright protection when governments incorporate them by reference into law. Some of these rulings have found that even for-profit companies could copy and distribute privately developed standards without authorization. If these interpretations take hold broadly, they would cut off the primary funding stream that keeps the entire standards development system running.
There are no alternatives anywhere near as efficient or effective. The federal government’s own track record on standards development is sobering: the Federal Emergency Management Agency (FEMA) hasn’t updated its flood mitigation requirements for the National Flood Insurance Program since the 1970s. The U.S. Department of Housing and Urban Development (HUD) only recently updated property maintenance standards that had been left untouched for decades. It took an act of Congress to get HUD to implement carbon monoxide poisoning prevention measures that model codes had integrated years earlier. The idea that government agencies could step in and replicate what nonprofit SDOs do — on a fraction of the budget, with a fraction of the expertise — is not a serious proposal.
The other alternative is even worse. Without independent, nonprofit SDOs, the cost of developing standards could fall to the industries those standards are meant to govern. That means the parties with the most financial interest in the outcome would be the ones paying for the process. This obvious conflict of interest would compromise the independence and credibility the current system is built on. The reason the consensus-based SDO model has worked for more than a century is precisely that it is insulated from that kind of pressure. Replacing it with an industry-funded model wouldn’t just be less efficient; it would undermine the integrity of the standards themselves.
What the Bill Actually Does
This is where the critics’ arguments really fall apart, because they consistently describe a bill that bears no resemblance to the actual legislation.
One of the most frequently repeated claims is that the Pro Codes Act puts laws “behind a paywall.” This is flatly untrue. The bill explicitly requires that standards incorporated by reference into federal, state, or local law be made available for free online viewing on a publicly accessible website. That is a condition of receiving the copyright protection the bill provides.
The Pro Codes Act would create a new transparency requirement — more public access than the status quo, not less. Characterizing that as a “paywall” isn’t just inaccurate; it inverts reality.
Critics also argue that the bill’s free-access model is somehow insufficient because the online reading rooms don’t support downloading, machine-reading, or redistribution. But this conflates access to the law with the right to commercially exploit someone else’s copyrighted work. The Pro Codes Act ensures every citizen can read the standards they’re expected to follow, for free, online. That’s a meaningful and enforceable access guarantee. U.S. law provides that every citizen should have access to the law, not that they can make copies or distribute it.
The demand to copy, redistribute, and monetize those works is something else entirely, and it’s worth asking who actually benefits from that demand. The answer is not the public. It’s the for-profit companies and special interests that want to exploit intellectual property they did nothing to create.
The Courts Haven’t Settled This — Congress Needs To
Some opponents point to recent court decisions as evidence that the legal questions around codes that are incorporated by reference into the law are already being resolved. But the actual case record tells a very different story.
Lower federal courts have reached inconsistent and sometimes contradictory conclusions about whether and how codes incorporation by reference intersects with copyright. In one case involving the National Fire Protection Association, the court itself acknowledged that there are “substantial policy arguments on both sides of this issue, including the need to preserve a vital public-private partnership between the government and SDOs, and the need for the public to have a full understanding of how to comply with various legal requirements.” That case settled before trial on the merits, underscoring that even after years of litigation, the courts have not produced a definitive resolution.
Other cases have gone in different directions. Some courts have ruled against SDOs at summary judgment. Others have upheld SDOs’ copyright claims. The result is a legal landscape of uncertainty that satisfies no one, least of all the nonprofit organizations trying to plan for the future while their core funding model hangs in the balance.
This is fundamentally a policy question, not a judicial one. The Constitution commits copyright policy to Congress. And Congress is best positioned to create a consistent, fair framework that both preserves the standards development system and guarantees public access to the law. That is exactly what the Pro Codes Act does.
The Real Risk
Strip away the rhetoric, and the opposition to the Pro Codes Act reduces to a single proposition: that copyright protection for standards should evaporate the moment a government body decides those standards are valuable enough to incorporate into law.
Think about the incentive structure that creates.
It would mean that the more successful an SDO is at developing standards that serve the public interest — the more widely its work is adopted — the less protection it receives. That is a recipe for dismantling the very system that produces these standards in the first place.
The Pro Codes Act rejects that perverse outcome. It affirms that the nonprofit organizations doing this critical work can continue to fund it. It guarantees the public free access to every incorporated standard. And it provides the congressional guidance that courts, SDOs, and stakeholders have been asking for.
The real risk isn’t this bill. It’s what happens without it: a slow unraveling of a system that has kept Americans safe for more than a century, with nothing ready to take its place.
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