Cases Shed Light on Copyright Protection of Standards Developers

A California-based public records activist continues to fight for the right to publish building standards and legal codes for free access of the public.

courthouseCarl Malamud’s organization, Public.Resource.org, is involved in multiple ongoing lawsuits—one filed by the state of Georgia and another by multiple standards bodies. Malamud is currently the defendant in a copyright infringement suit by the American Society for Testing and Materials (ASTM), the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and the National Fire Protection Association (NFPA). All of these organizations develop construction standards involving glass, glazing and fenestration.

Public.Resource.org aims to make public domain materials more accessible, as it obtains, scans and publishes online documents accordingly. Documents it has re-published include standards and codes the organization purchased, which can be accessed for free by visitors to the website. In their suit, filed in August 2013, the standards development organizations contend that copyright protection is essential because they spend a lot of money and effort working on codes. Their lawsuit also states that the standards they develop are “necessary for a well-functioning economy and a safe society.”

“The development of standards by private organizations allows for private actors to bear the significant costs of creating standards,” the plaintiffs wrote in their lawsuit. “Plaintiffs underwrite—either entirely or in substantial part—the costs they incur in creating the standards through the revenues derived from the sales or licensing of their copyright-protected standards.” The organizations also claim in the lawsuit to have “developed policies for providing interested members of the public access to standards known to have been incorporated by reference into statutes and regulations.”

Malamud’s organization, which first published California’s building code online in 2008, claims it is unfair to make businesses and the public purchase complete access to laws they’re forced to obey. “Legislatures and administrative agencies have frequently enacted into law, and enforced, construction, fire, and other public safety codes,” Public.Resource.org wrote in its answer to the lawsuit. “Public safety codes govern essential aspects of everyday life. They often carry civil or criminal penalties. They are laws.”

Activist organization Public Knowledge, as well as Knowledge Ecology International and the American Library Association, filed an amicus curiae brief  in the case this month, siding with Public.Resource.org.

“Free and unfettered access to the law has long been a cornerstone of American democracy. Plaintiffs’ claims are a blatant attempt to use copyright law as a bulldozer against the public domain,” Meredith Rose, staff attorney at Public Knowledge, said in a statement. “Their claim that incorporated statutory language is eligible for copyright protection because it is ‘creative’ (and can thus be ‘paraphrased’) ignores the fact that the words of the law are definitive; rephrasing the law is no substitute.

“More importantly, the public’s access to the exact text of the law is a fundamental right drawn from the Constitution. The plaintiffs purport to satisfy this critical public need by offering ‘reading room’ websites that make the law available. However, these websites are difficult to use and inaccessible to the visually disabled, therefore hindering true public access to the law.”

Economist John C. Jarosz submitted a report on behalf of the standards organizations “explaining the economic benefits to extending copyright protection to Standard Development Organizations, such as Plaintiffs, and irreparable harm that would be caused and economic costs to governments and the public if copyright protection were denied,” according to court documents. Public.Resource.org motioned to strike Jarosz’s report from the record, “accusing Mr. Jarosz of lacking experience, considering ‘biased’ sources, opining on ultimate issues, and employing ‘unsupported assumptions.’”

Litigation for the lawsuit is ongoing, as is Malamud’s case in Georgia.

In July, the state of Georgia filed a lawsuit against Malamud for publishing the state’s entire legal code online. The Georgia lawsuit claims that making the annotated code available online for free violates copyright law. The annotated code is more comprehensive than the basic code, which carries no copyright restrictions. It includes summaries of cases and legal opinions interpreting the law, and the state of Georgia claims that each of those is “an original and creative work of authorship that is protected by copyrights owned by the state of Georgia.”

Last October, Malamud filed a counterclaim seeking a ruling in his favor. “The people are the authors of the law, regardless of who first pens the words that later become law through enactment by a legislature or public agency,” the counterclaim reads. “The legal principle that ignorance of the law is no defense presumes that all citizens have access to the laws.”
Stay tuned to USGNN.com™ for future updates on the cases.

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