Appeals Court: Publishing Standards Could Be Fair Use

Last week, a three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit unanimously reversed a lower court decision that prohibited public-records activist Carl Malamud’s organization, Public.Resource.Org (PRO), from publishing copyrighted technical standards that are part of laws such as building codes, including many used in the fenestration and construction industries.

The appeals court returned the case to the U.S. District Court for the District of Columbia, which will have to decide whether the work PRO does — providing free access to standards that have been incorporated into laws — is fair use or a violation of copyright.

Standard developing organizations (SDOs) ASTM International, the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and the National Fire Protection Association (NFPA) originally sued PRO for copyright infringement in August 2013 for posting thousands of pages of technical standards online. PRO had argued that standards become “legal facts” when they’re incorporated into state or federal regulations and thus can’t be copyrighted.

Malamud’s organization said it’s unfair to make businesses and the public purchase access to laws they’re forced to obey. ASTM, ASHRAE and NFPA argued that copyright protection is essential for their work because it takes a lot of money and effort to draw up codes. They also claimed that the standards they develop are “necessary for a well-functioning economy and a safe society.” Additionally, the organizations say they already have “policies for providing interested members of the public access to standards known to have been incorporated by reference into statutes and regulations.”

The lower court agreed with ASTM, ASHRAE and NFPA. In February 2017, it ordered PRO to remove the standards from its website.

In last week’s decision, the appeals court ruled that PRO could rely on a “fair use” defense to publish the standards. However, it didn’t rule on whether copyright can apply to federal laws.

“Although PRO raises a serious constitutional concern with permitting private ownership of standards essential to understanding legal obligations, we think it best at this juncture to address only the statutory fair use issue – which may provide a full defense to some, if not all, of the SDO’s infringement claims in this case – and leave for another day the question of whether the Constitution permits copyright to persist in works incorporated by reference into law,” the court wrote in its ruling.

In a concurring opinion, Circuit Judge Gregory Katsis said SDOs shouldn’t be able to force people to pay to read standards that are used in legally binding codes.

“As a matter of common-sense, this cannot be right: access to the law cannot be conditioned on the consent of a private party, just as it cannot be conditioned on the ability to read fine print posted on high walls,” he wrote.

According to TechDirt’s Cathy Gellis, a lawyer who specializes in technical law, the ruling is a partial win for PRO. She writes that the decision, while not comprehensive, “will still make it harder for future plaintiffs to try to lock people out of sharing the law on copyright grounds, as it is not something that, at least in the D.C. Circuit, will be looked upon with a friendly eye.”

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