When the government adopts into law a privately-developed standard, should the public have access to it for free?


Later this month, the U.S. Court of Appeals for the D.C. Circuit will hear oral argument in a case challenging the idea that the law should be freely available to the public. In American Society for Testing & Materials v. Public.Resource.Org, Inc.,[1] private organizations that produce technical standards that have been incorporated by reference into law brought a copyright infringement suit against a non-profit devoted to the free publication of laws not otherwise freely and widely available. The federal appeals court will now decide if the trial court correctly determined that these incorporated standards can be freely published.

Who is the defendant Public.Resource.Org?

Public.Resource.Org (PRO) publishes online for free to the public various legal documents, including annotated state statutes, federal court decisions, and numerous other sources of law. As relevant in this case, PRO also publishes copies of standards created and sold by private entities that legislators and agency officials have incorporated into law. PRO typically adds a cover sheet to the published documents which outlines PRO’s purpose and mission, and frequently it modifies the documents to make them more accessible—more easily searched, enlarged, etc.

Who are the plaintiffs who own the copyrights?

The plaintiffs in this case are three non-profit entities who produce technical standards: American Society for Testing and Materials; National Fire Protection Association, Inc.; and American Society of Heating, Refrigerating, and Air-Conditioning Engineers. Each of these organizations develops standards governing practices in various industries, including technical specifications, safety requirements, testing mandates, etc. These standards developing organizations (SDO) generally charge a fee for access to their standards, either in hard or electronic copy. SDOs typically also raise funds through training, certification, consulting, and other services related to their standards, and often they develop and intend their standards to be incorporated into law by state and federal governments.

What issues are before the D.C. Circuit Court of Appeals?

The lower court determined that, for most of the documents at issue, PRO’s publication of the standards constituted “fair use”—and therefore was not infringement. The federal copyright statute defines “fair use” of a copyrighted work as use “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” 17 U.S.C. § 107. Notably, a finding that a particular publication is fair use does not disturb the underlying copyright, and the copyright holder could still restrict access to its work in the future.

Thus, deciding the case on PRO’s fair use allows the court to avoid extinguishing the standards companies’ copyrights while still ensuring the public has free access to the laws governing its conduct. In this case, PRO provides access to all its published content for free, a fact that weighs in favor of fair use. But if another entity instead sought to profit from the sale of the same standards, a court could find that such publication is infringement and not fair use.

The court here may also consider an alternate legal theory based on the nature of the underlying copyright interest itself. That is, if the court disagrees with the lower court and decides that PRO’s publication does not constitute fair use, the court could affirm the judgment for PRO on the grounds that privately developed standards lose copyright protection once they are incorporated into law. If the standards organizations hold no copyrights, PRO’s publication cannot be infringement. Other courts have come to this conclusion in analogous circumstances, basing their decision on the rationale that the public owns the law and is entitled to free access to it.

The court avoided this issue during the first appeal, instead directing the district court to reexamine the fair use analysis. The court is likely to adopt this approach again, avoiding this thorny copyright question if possible. The current appeal represents this case’s second trip to the D.C. Circuit, after the appeals court previously reversed the lower court’s finding of infringement in favor of the standards developers.

Oral argument in the U.S. Court of Appeals for the D.C. Circuit is scheduled for March 20, 2023 at 9:30 am. The parties’ briefs can be found here:

If this case raises issues that you or your organization are interested in or have questions about, please contact The Cullen Law Firm PLLC at info@cullenlaw.com


[1] D.C. Cir. No. 22-7063

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