It seems like a no-brainer that everyone should be able to read, copy, and share the laws we all must follow, but few things are simple in the internet age. Public.Resource.Org’s victory at the D.C. Circuit appeals court in September, in which the court ruled that non-commercial copying of codes and standards that have been incorporated into the law is not copyright infringement, was ten years in the making.
The American Society for Testing and Materials (ASTM), National Fire Protection Association Inc. (NFPA), and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) are non-governmental organizations that develop codes and standards for building and product safety, compatibility, and spurring innovation. Regulators at all levels of government frequently incorporate these codes and standards into regulations, making them law. Public Resource, a nonprofit organization founded by Carl Malamud, collects and posts these laws online as part of its mission to make government more accessible to all. ASTM, NFPA, and ASHRAE sued Public Resource in 2013 for copyright and trademark infringement and unfair competition.
A federal trial court in Washington, D.C. initially ruled against Public Resource, and a three-judge panel of the D.C. Circuit then returned the case to the trial court for more fact-finding. This year, another panel of the D.C. Circuit found that Public Resource’s use of the standards is for nonprofit, educational purposes, that this use serves a different purpose than that of the plaintiffs, and that the evidence did not show significant harm to the standards organizations’ commercial markets. “Public Resource posts standards that government agencies have incorporated into law—no more and no less,” the court ruled. “If an agency has given legal effect to an entire standard, then its entire reproduction is reasonable in relation to the purpose of the copying, which is to provide the public with a free and comprehensive repository of the law.” Posting these codes online is therefore a fair use.
The decision also preserved equitable online access to the law. While the standards organizations put some of their standards into online “reading rooms,” the text “is not searchable, cannot be printed or downloaded, and cannot be magnified without becoming blurry. Often, a reader can view only a portion of each page at a time and, upon zooming in, must scroll from right to left to read a single line of text.” These reading rooms collect information about people who come to read the law and present access challenges for people who use screen reader software and other accessibility tools. The court recognized that Public Resource had stepped in to address this problem.
The internet lets more people understand and participate in government than ever before. It also enables new ways for powerful organizations to control and surveil people who simply want to do this. That’s why Public Resource’s work, and a balanced copyright law that protects access to law and participation in government, is so important.
This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.
