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Public.Resource.Org is a nonprofit corporation focused on increasing public access to government information. The organization provides a platform for sharing government documents and multimedia, such as building codes and government videos, in the public domain. Public.Resource.Org primarily serves sectors that require access to legal and government documents, including the legal community, educational institutions, and the general public. It is based in Sebastopol, California.

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Sebastopol, California, 95472,

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United States: The District Of Columbia Court Of Appeals' Recent Significant Legal Precedent Carries Implications For Standards Organizations - Seyfarth Shaw LLP

Jan 2, 2024

To print this article, all you need is to be registered or login on In American Society for Testing and Materials (ASTM), et al.v. Public.Resource.Org, Inc. (PRO), 82 F.4th 1262 (D.C. Cir.2023), the plaintiffs, ASTM, National Fire Protection Association(NFPA), and American Society of Heating, Refrigerating and AirConditioning Engineers (ASHRAE), are standards developmentorganizations that create and own copyrights for technicalstandards that establish best practices for various industries andproducts, including fire safety, electrical systems, and HVACtechnologies. These standards often become legally binding whenincorporated by reference into federal regulations. However, theyare not always easily accessible by the public, as they are notreproduced in the Code of Federal Regulations (CFR). Defendant PRO,a nonprofit organization with a mission to make government recordsand legal materials more accessible to the public, posted copies ofhundreds of these regulation-incorporated standards on its website,allowing free public access. This action led to the plaintiffssuing PRO for copyright infringement in 2013. PRO's primarydefense was based on "fair use," which allows forunauthorized copying when the four factors codified at 17 U.S.C.§ 107 weigh in favor of finding the defendant's copying tobe "fair." After years of legal proceedings, the District Court initiallyruled in favor of the plaintiffs, finding that PRO had infringednine standards and rejecting PRO's fair use defense. However,the DC Circuit reversed this decision in 2018, leading to furtherexamination of PRO's fair use defense. The DC Circuit'srecent opinion ultimately affirmed that PRO's posting ofstandards incorporated by reference into law constituted fairuse. Here are key takeaways for standards development organizations("standards organizations"): The Purpose and Character of the Use; Whether it isTransformative: The court first found that PRO's usewas for nonprofit, educational purposes. It then determined thatPRO's use of these standards was transformative because itserved a different purpose than that of the standardsorganizations. While the plaintiffs aimed to advance industry bestpractices, PRO's mission was to provide free and comprehensiveaccess to the law. This transformative aspect favored a finding offair use. Nature of the Copyrighted Work: The courtemphasized that standards fall on the factual end of the"fact-fiction" spectrum, which favors fair use. Moreover,standards that are incorporated by reference into law withoutmodification become virtually indistinguishable from the situationwhere the text of the standard was copied into the law. Becausegovernment documents (.e.g. laws) are not protected by copyright,this factor heavily favored PRO's fair use argument. Amount and Substantiality of Use: DespitePRO's copying the entirety of the plaintiffs' standards,the court considered this reasonable because it aligned withPRO's purpose of informing the public about standards that havebeen incorporated into law. This factor also favored fair use. Effect on Potential Market: The court foundthe evidence regarding the potential market harm to be equivocal.It noted that frequent updates by standards organizations and lessfrequent updates by lawmakers meant that the free copies providedby PRO might not be adequate substitutes for current standards.Additionally, no significant economic analysis was presented todemonstrate harm to the market. The court also recognized thesubstantial public benefits of free access to the law. The Court concluded that when technical standards areincorporated into law, their status effectively shifts from privateto public. For standards organizations, this poses severalimplications: Financial Impact: Standards organizations thatrely on copyright licensing fees to fund their organization'sactivities, or whose non-public standards, and access thereto, arethe major driving force behind membership may face a reduction inrevenue if circumstances result in free public access to theirspecifications. Updates and Timeliness: When public-accessversions of standards are not published in coordination with thestandards organization, such versions of standards could be out ofsync with a standards organization's most current non-publicstandards, or errata. This could influence the adoption,implementation, relevance, and reliability of standards. Incentives for Contribution: The ruling mayreduce incentives for standards organizations and the participantsin standards organizations to invest in the development ofstandards and overall standardization efforts, as they could losecontrol over their creations when deemed "required under lawor regulation." The ASTM opinion raises the specter that when standards areincorporated into law, the risk of them being freely accessible tothe public increases significantly. Standards organizations shouldcarefully consider the legal implications and potential strategiesto adapt to this changing landscape. Questions and Answers that might be of interest to StandardsOrganizations 1. Under what conditions are technology standards thatare published by standards organizations likely to be subject tothe public's right to freely access them? In light of the ASTM decision, technology standards published bystandards organizations are more likely to become accessible to thepublic when certain conditions are met. A crucial factor is whetherthe standards are of such a nature that they could form the basisfor legally binding regulation. This should be a consideration whenstandard organizations are defining their ultimate mission, and theactions they take to ensure adoption of their standards. While theplaintiffs in ASTM all establish standards that relate to publicsafety, not all organizations do so. Nonetheless, the ASTM decisioncould be broadened in future litigation. For example, if an entity,like Public.Resource.Org, provides access to standards fornonprofit, educational purposes, it might argue that there isanother basis – other than providing access to the law– for finding that access should be considered to betransformative. 2. If standards organizations would like to preventtheir technology standards from being subject to US fair userights, what steps can be taken to, for example, prevent referencesby the government in laws or regulations? To safeguard their technology standards from becoming freelyaccessible and reproducible under the fair use doctrine, standardsorganizations may consider taking proactive measures. One strategywould involve minimizing government references to their standards.If a standard is not expressly required by law or regulation and isnot extensively cited by government agencies, under ASTM it becomesless susceptible to being treated as a public document. By keepingstandards free of government mandates, organizations can maintaingreater control over their copyrighted works and potentially limitfree public access. In addition, standards organizations could takeadditional precautions to ensure that their non-publicspecifications are kept confidential by their membership, includingadding a personalized watermark to their specifications orrestricting access terms within their membership. 3. What does it mean for a Technology Standard to berequired under the law or regulation? When a technology standard is deemed "required under thelaw or regulation," it signifies that the standard is anintegral part of legal or regulatory frameworks. In essence,compliance with the standard becomes mandatory for individuals,businesses, or entities operating within the relevant jurisdiction.This requirement may manifest in various forms, such as explicitlyspecifying the standard in legal texts, regulations, or ordinances.When a standard achieves this status, it blurs the line between aprivate, copyrighted work and a public requirement, making it moresusceptible to being freely distributed and diminishing thestandards organization's control over its distribution. Conclusion The recent ruling, where standards organizations may losecontrol of their copyrighted works if determined to be"required under law or regulation," poses severalsignificant dangers. First, it potentially impacts the financialsustainability of organizations that rely on copyright license feesto fund their organization's activities or that list access tonon-public specifications as a member benefit. With free publicaccess being a possibility, their revenue streams could be severelyaffected. Second, there is a risk of standards being non-uniformlyapplied, particularly where there is a conflict between an updatedstandard and the legally mandated, and publicly accessible,standard. Last, this ruling could discourage standardsorganizations from contributing to industry advancement, as theirincentive to invest in research, development, and standardizationefforts may diminish when they lose control over theircreations. The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

Jun 26, 2019
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