A decade-long copyright battle over safety standards and industry codes written by private groups and incorporated into public laws continues to rage in court as lawmakers also look to address the issue.
During oral arguments this week, a federal appeals court in Washington, D.C., seemed more focused on the contours of copyright fair use than the broader “government edicts doctrine,” which establishes that laws, ordinances, and judicial opinions fall within the public domain and are ineligible for copyright protection.
The dispute arose when three standards-setting organizations sued government-transparency group Public.Resource.Org Inc., which uploaded hundreds of codes online for free in 2012. The clash raises what the circuit court in a 2018 opinion called a “serious constitutional concern” about whether private standards retain copyright shields once they’re incorporated into public law. The three judge panel didn’t address the constitutional question at that time.
The issue has also found its way to Congress, where a bipartisan group of senators led by Sen.
The suing organizations, including the National Fire Protection Association Inc., create and sell codes that establish voluntary standards in their respective industries. If you want to build a fire-safe building, you might thumb through the NFPA’s nearly thousand-page “National Electrical Code,” which was developed by industry experts and committees to detail best practices for electrical installations.
Government agencies often defer to industry groups when creating safety regulations, to leverage private-sector expertise and reduce taxpayer costs. Both federal and local governments have incorporated privately crafted standards into the law by reference. The Code of Federal Regulations, for example, frequently refers to certain parts of the National Electrical Code—but doesn’t include the text itself.
Public Resource’s making and distributing free cover-to-cover copies of the standards online infringes the organizations’ copyrights and undermines the economic incentives they have to develop the standards, the groups argued. Kelly Klaus of Munger Tolles & Olson LLP, representing the standards organizations, likened Public Resource to the “Napster of the standards world” at oral arguments.
But digital rights groups including the Electronic Frontier Foundation have come to Public Resource’s side, arguing that private standards that carry the weight of the law must be freely accessible and can be copied and distributed without restrictions.
“If something is law, no matter how it became law, everyone has the right to copy and read excerpts of it,” EFF attorney Mitch Stoltz, who represents Public Resource, said last year after a district court ruling in favor of Public Resource.
Sledgehammer or Scalpel?
At oral arguments, the three-judge panel appeared to be looking for a “practically workable” rule that could differentiate between which standards can be copied—and how much can be copied—said Scott Sholder of Cowan DeBaets Abrahams & Sheppard LLP, who represented the Copyright Alliance in an amicus brief supporting the standards organizations.
Erik Stallman, a law professor at the University of California, Berkeley, noted that Judge
Stallman authored an amicus brief alongside other intellectual property law professors supporting Public Resource.
Sholder said the government edicts issue wasn’t the question before the court in the latest appeal, and a ruling on that would override any fine-tuned fair use rule the panel appeared to be looking for. “It would be kind of a sledgehammer type solution as opposed to a scalpel.”
NFPA, along with the American Society for Testing and Materials and the American Society for Heating, Refrigerating, and Air-Conditioning Engineers, filed suit against Public Resource in D.C. federal court in 2013 over more than 250 different regulatory standards they’d developed that were incorporated into law.
A district court judge granted summary judgment to the organizations, finding that they had valid copyrights for the standards that Public Resource copied. The nonprofit appealed, and the US Court of Appeals for the District of Columbia Circuit in 2018 returned the case with instructions for the lower court to reconsider Public Resource’s fair use defense.
The district court ruled in 2022 that 184 of the regulations in question can be copied and distributed without permission. The judge applied the four fair use factors to each standard in a nearly 200-page appendix published alongside her opinion. The standards organizations appealed the decision a month later.
Public Resource’s supporters have argued that the organizations’ goal of distributing the standards for the purpose of facilitating public access and knowledge about the law falls clearly within fair use.
Nina Srejovic, a visiting professor at Georgetown University Law Center, said that the organizations’ strict control over safety codes can undermine state employees who must implement those regulations. She co-authored an amicus brief for the American Federation of State, County and Municipal Employees supporting Public Resource.
“If local governments are forced to choose between whether they spend their injury prevention budgets on safety goggles or access to the law, it’s the union members that pay the real price,” Srejovic said in an interview.
The standards organizations said they have made their codes available online through free “reading rooms,” but Srejovic argued that such access isn’t sufficient. The reading rooms don’t allow downloads or printing and generally require the reader to sign up with an account.
The standards organizations, for their part, view wholesale copying of privately created materials as undermining the work and resources they put into drafting the standards.
An over-broad fair use ruling could have ramifications outside of the standards industry, Sholder said.
“You’ve got folks across the creative spectrum, from authors to musicians and filmmakers” who could be implicated in a broad ruling, he said. “It could have a kind of domino effect.”
Stallman said that regardless of how the court rules, “this issue isn’t necessarily going away. The next forum in which we’re having this conversation might not be the court, it might be Congress.”
The case is American Society for Testing and Materials v. Public.Resource.Org Inc., D.C. Cir., No. 22-07063, oral arguments 3/20/23.
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