Court: Posting Standards Online Violates Copyright Law

February 7th, 2017 by Trey Barrineau

Last week, the U.S. District Court for the District of Columbia ruled that public-records activist Carl Malamud’s organization, Public.Resource.Org, violated copyright law by publicly sharing technical standards that are used in laws such as building codes. It also said organizations that develop standards, including those used in the fenestration industry, have the right to charge reasonable fees to access them. Malamud told DWM in an e-mail that he’ll appeal the ruling.

Carl Malamud.

The court ruled in favor of ASTM International, the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and the National Fire Protection Association (NFPA), which had originally sued Public.Resource.Org for copyright infringement in August 2013.  It ordered Malamud’s group to take down thousands of pages of technical standards it has posted online and barred the organization from sharing any more.

Public.Resource.Org had argued that standards become “legal facts” when they’re incorporated into state or federal regulations and thus can’t be copyrighted. The court rejected that argument. It said technical standards differ from other laws because they’re not written by government officials and thus are not covered under the Copyright Act.

The court also rejected Public.Resource.Org’s argument about unfettered access to standards.

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 court sided with ASTM, ASHRAE and NFPA, noting that Congress allows the Government Publishing Office to charge fees to access the Federal Register or congressional records. It also said it’s the responsibility of Congress to make laws that might increase public access to standards.

“There are weighty policy arguments on both sides of this issue, including the need to preserve a vital and complicated public-private partnership between the government and SDOs (standard developing organizations), and the need for an informed citizenry to have a full understanding of how to comply with the nation’s legal requirements,” the court wrote in its decision. “However, this suit is not about access to the law in a broad sense, but instead about the validity of copyrights for these standards under current federal law. Copyright protection is a creature of statute, and as such is the result of careful policy considerations by Congress. In the view of this court, Congress has already passed on the question of revoking copyright protection for standards that have been incorporated by reference into regulations, and any further consideration of the issue must be left to Congress for amendment.”

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