Considering the competing interests of access to laws and copyright protection, a federal court has come down, in this instance, in favor of copyright protection. Despite efforts of some organizations to simplify the issues in order to criticize the court’s decision, the federal court appears to have carefully considered those competing interests in coming to its conclusion. The result? Organizations such as ASTM may maintain copyright protection for their standards and procedures, even though some of those standards and procedures are incorporated by reference into federal or state laws.
Most readers of this blog will recognize the American Society for Testing and Materials, and the fact that ASTM members (largely volunteers) are responsible for drafting, debating and finalizing thousands of testing standards for use in all sorts of applications. Some of those standards have been incorporated into federal law (per the court decision, there are 257 ASTM standards in this category).
Public.Resource.Org Inc. is a non-profit organization promoting public access to information, including federal and state laws. Public Resource downloaded and made publicly available those ASTM standards that are referenced in federal laws, and ASTM (along with other similar groups) sued for copyright infringement. A federal court judge in the District of Columbia has ruled in favor of ASTM and the other “standards developing organizations” and against Public Resource, and has further issued an injunction against the latter, directing it to cease publication of copyright-protected information.
The court noted that federal agencies are empowered to incorporate voluntary consensus standards into their regulations. This practice, per the court, is intended to promote several goals, “including eliminating the cost to the federal government of developing its own standards, encouraging long-term growth for U.S. enterprises, promoting efficiency, competition and trade, and further the reliance upon private sector expertise.” It also noted federal law, that information “reasonably available to the class of persons affected thereby” is deemed published in the Federal Register if it is incorporated by reference.
As to the ASTM standards so incorporated, they may be obtained or viewed (a) via “reading rooms” on the ASTM website that allow individuals access to the standards in “read-only” format, meaning that they cannot be printed or downloaded, (b) from pdf or hard copy versions available for purchase, or (c) in person at the Office of the Federal Register, or at the incorporating agency. Public Resource argued that this access was not broad enough to serve the public interest; i.e., someone who wanted a readily-available copy to distribute or print would have to pay for it.
The decision addresses a number of issues and factors. But distilled to its essence, the court held:
1. Expression of the methods or procedures may be copyrighted, even if the methods or procedures themselves (the ideas) cannot be copyrighted.
2. Federal law does not bar copyrightability of information that has been incorporated by reference into a statute or regulation.
3. Congress has left to each agency the decision as to whether information sought or commissioned by that agency should be protected by copyright (as opposed to being owned by the agency and thus not protected by copyright).
4. “Congress has similarly determined that online access to the nation’s laws and regulations need not be provided for no cost.” This is a critical element of the court’s decision.
5. The argument by Public Resource that there should be greater access is a policy decision best left to Congress.
6. The standards did not enter the public domain by virtue of being incorporated by reference into laws or regulations.
7. The copying and dissemination of the standards verbatim and in their entirety by Public Resource was not “fair use” under copyright standards.
8. Copying of the ASTM trademark and publication of that trademark together with each standard created “substantial likelihood of consumer confusion,” thus violating trademark protection laws.
In its analysis for injunctive relief, the court engaged in balancing of the harms that either side would suffer, from entering an injunction or refusing to do so. On balance, the court found that this balancing favored ASTM (and the other standard developing organizations that were co-plaintiffs), and barred Public Resource from “distributing, displaying, reproducing, or creating derivative works” for the standards at issue.
Where the standards can be read and viewed, without charge, the court did not accept the argument by Public Resource that greater access is required to protect the public interest, particularly where the copyright laws support the competing interest of promoting and protecting expression of ideas. Others who have weighed in to support Public Resource essentially argue that there should be no restriction of any sort whatsoever on public access to standards that have been incorporated by reference into laws or regulations, and some access, including the ability to read the standard, is not good enough. But the court found that the standards were reasonably available to those who wanted or needed to know about them, even if they could not print copies free of charge via the internet.
The other plaintiffs included the National Fire Protection Agency, Inc. (NFPA), the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc. (ASHRAE), and the American Educational Research Association, Inc. AERA). This case, Am. Society for Testing & Materials v. Public.Resource,Org., Inc., 2017 U.S. Dist. LEXIS 14623 (Feb. 2, 2017), is likely to go to the federal Court of Appeal, and perhaps even to the Supreme Court.