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22 Jul 2018
Carl Malamud's Public.Resource.Org has for over 20 years been putting public documents online so they are easier to find and use. He's been quite successful in getting documents online that were formerly available only on paper, or only by paid subscription.
One project involves putting US laws online. In a lot of cases, laws refer to standards maintained by private organizations. For example, most state building codes require new construction to comply with the National Electrical Code published by the private National Fire Protection Association. There are thousands of standards used in laws around the US, and in many cases the only way to find out what the standard says, and hence what the law says, is to buy a copy from the publisher, or at best to go to a library and read a paper copy.
PRO has been scanning and publishing standards on the theory that in the US, laws are not copyrighted, so if a standard's part of the law, it's not copyrighted either. Unsurprisingly, the standards publishers disagreed.
Five years ago the American Society for Testing and Materials (ASTM) and other standards bodies sued PRO in federal district court in Washington DC. The court found in favor of ASTM and against PRO, they're copyrighted, republishing them is not fair use. PRO appealed and the DC appeals court published its decision last week. In a carefully reasoned opinion, the court disagreed with nearly all of the district court's decision and sent it back for a do-over.
PRO made several arguments, including that the standards aren't copyrightable because they're part of the law, and even if they are copyrighted, republishing them as part of a law collection is fair use. The court declined to address the question of whether standards used in laws can be copyrighted because as they explained at length, it is a constitutional issue that would open huge cans of worms. (For example, if the law changes and no longer refers to a standard, does the standard retroactively get un-de-copyrighted?)
Fortunately, the worms can stay in the can because the court found there was a high likelihood that if the district court looked harder, they'd find that much of PRO's use of standards was fair use. The appeals court scolded both parties for arguing that a long list of standards should all be considered together:
As we have emphasized, the standards here and the modes of their incorporation vary too widely to conclusively tell goose apart from gander, and the record is just too thin to tell what went into the sauce. On remand, the district court will need to develop a fuller record regarding the nature of each of the standards at issue, the way in which they are incorporated, and the manner and extent to which they were copied by PRO in order to resolve this "mixed question of law and fact."
Another part of the case involved ASTM arguing that PRO was illegally using ASTM's trademarks on the copies of the standards they distributed. The appeals court sent that back for reconsideration too, noting that PRO said they were willing to remove any trademarks the court said they had to.
The next round of legal skirmishing will likely take another couple of years as the two sides try to find groups of standards that are used in particular ways, then develop legal arguments about why that is (PRO) or is not (ASTM) OK. Stay tuned.
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