Tuesday, September 19, 2023

When A Standard is The Law is it Fair Use?

A recent ruling by the DC Circuit court of appeals may challenge the business model of many trade associations which sell business and technical standards specifying the technical requirement for everything from rubber mats to air conditioning. In a significant ruling for fair use, the Court of Appeals for the District of Columbia held that that non-commercial use of standards incorporated by reference into law is fair use and not copyright infringement. Many (if not the majority) of technical standards are created in collaboration with industry experts, associations and other subject matter experts and a primary objective is to have the standard adopted into common use; while the ultimate goal is to have the standard incorporated into legislative law.  

And therein lays a conundrum. If complying with a specific technical standard is de-facto a legal requirement of business, then the business needs to know what the standard is in order to comply. Historically, technical standards must be purchased to reference, understand and comply with the technical specifications in question.

In 2020 Public.Resource.Org, Inc (PRO). was challenged in court for making technical standards free to down load for non-commercial use and also annotated their standards lists with the logo of the organization which originally published the standard.  PRO is non-profit corporation dedicated to publishing and sharing public domain materials in the United States and internationally. It was founded by Carl Malamud a well-known public domain advocate.

In a partial win in 2020, the Georgia court agreed with PRO that because these (specific) standards had been incorporated into law then the concept of ‘government edicts’s applied and that they were also within their rights to associate logos with the standards incorporated into law. However, the court paired their ruling to exclude any of the standards (and associated logos) which were not currently incorporated into law.

Subsequently, American Society for Testing and Materials (ASTM) appealed the Georgia ruling to the DC Circuit court which applied the four requirements of the fair use doctrine: what was the purpose of the use, the nature of the work, the amount used and the effect of the use. The DC court also compared the purposes of use of each of the two parties. In this latter regard, the court found that technical associations such as ASTM are primarily facilitating the advancement of science and industry by the creation and publication of specifications versus PRO which is focused on providing free access to the law. The court ruled that PRO may provide access to standards which the government has incorporated into to law. 

“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.”

With respect to the fourth criteria the court dryly notes that despite PRO having provided access to these standards for many years, the plaintiff did not provide anything but generalities regarding the financial damage caused.

“Public Resource has been posting incorporated standards for fifteen years. Yet the plaintiffs have been unable to produce any economic analysis showing that Public Resource’s activity has harmed any relevant market for their standards. To the contrary, ASTM’s sales have increased over that time; NFPA’s sales have decreased in recent years but are cyclical with publications; and ASHRAE has not pointed to any evidence of its harm.”

While this is a significant win for the public interest and fair use it is not a harbinger of business model collapse for most of these standard’s organizations. For those organizations with comprehensive standards databases with full archives of historical standards information including revisions and technical specs, related and associated technical standards, functional experts and other community benefits will be insulated in the short term from any negative impact from this ruling. If your use case is a one off or you have an infrequent need for a standard, then you will be more likely to visit PRO than purchase or subscribe to a comprehensive service such as ANSI or ASTM. Regardless, there is speculation that the plaintiff may ask for a re-hearing in this case to the whole court.


Hat tip to Todd Carpenter.

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