Yet Another Court Says Yes You Can Publish The Law

We’ve talked about this case – American Society for Testing and Materials et al v. PublicResource.org – a few times before. It was one of two cases brought against Carl Malamud’s Public Resource organization for posting the Code of Federal Regulations on its website, and including with the CFR language the standards promulgated by various standards development organizations (like ASTM) that had been incorporated by reference into the CFR as part of that operative law. The standards development organizations claimed that their standards were copyrighted and that publishing them amounted to infringement, whereas Public Resource argued that since those codes had the force of law, it could not be infringement to publish what the law is.

Originally the district court disagreed with Public Resource and found publishing the incorporated standards to be infringing. But the DC Circuit reversed that decision and sent it back down to the district court to consider more closely whether what Public Resource was doing in posting the incorporated standards amounted to fair use, which it did. Meanwhile, the companion case settled and went away. Also, while we were waiting for the DC Circuit to revisit this case (the standards development organization appealed the district court’s finding of fair use) the Supreme Court also issued two important decisions that bore on this one: Georgia v. Public Resource, another case where Public Resource had posted operative law, which the Supreme Court found to be non-infringing. And the Warhol case, where the Supreme Court also addressed fair use head-on, but with less protective results.

All of which led up to this new ruling by the DC Circuit, affirming the district court’s finding that what Public Resource had done in publishing the standards that are part of what the law requires is fair use.

Many private organizations develop and copyright suggested technical standards for an industry, product, or problem. Federal and state governments often incorporate such standards into law. This case presents the question whether third parties may make the incorporated standards available for free online. We hold that the non-commercial dissemination of such standards, as incorporated by reference into law, constitutes fair use and thus cannot support liability for copyright infringement.

In its decision, the court found that the first three factors favored Public Resource. On the first factor, the “purpose and character of a use, including whether such use is of a commercial nature or is for nonprofit educational purpose,” the court found in favor of Public Resource, partly because it was engaged in nonprofit, rather than commercial use, and partly because the use was transformative.

Second, Public Resource’s use is transformative because it serves a different purpose than the plaintiffs’ works. […] The plaintiffs seek to advance science and industry by producing standards reflecting industry or engineering best practices. For example, ASHRAE says its mission is to “advance the arts and sciences of heating, ventilation, air conditioning and refrigeration to serve humanity and promote a sustainable world.” Public Resource’s mission in republishing the standards is very different—to provide the public with a free and comprehensive repository of the law. This distinction is fundamental: Public Resource publishes only what the law is, not what industry groups may regard as current best practices.

The court also found in favor of Public Resource on the second factor, the nature of the copyrighted work.

Application of this factor often depends on whether the work is factual or fictional, for “the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.” Harper & Row, 471 U.S. at 563. [Here t]his factor strongly supports a finding of fair use. As we explained in ASTM II, standards “fall at the factual end of the fact-fiction spectrum, which counsels in favor of finding fair use.” 896 F.3d at 451. Moreover, legal text “falls plainly outside the realm of copyright protection.” Id. And because incorporated standards have legal force, they too fall, “at best, at the outer edge of copyright’s protective purposes.” Id.

The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). This factor “turns on whether the extent of the copying is “reasonable in relation to the purpose of the copying” and here the court found that it did.

This factor strongly supports fair use because the standards at issue have been incorporated and thus have the force of law. Public Resource posts standards that government agencies have incorporated into law—no more and no less. 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.

Finally, on the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” the court says that it doesn’t tip in favor of one side or another, but at the same time it expresses skepticism that there is a true harm incurred by the standards development organizations.

The plaintiffs press heavily on what seems to be a common-sense inference: If users can download an identical copy of an incorporated standard for free, few will pay to buy the standard. Despite its intuitive appeal, this argument overlooks the fact that the plaintiffs regularly update their standards—including all 185 standards at issue in this appeal. And regulators apparently are much less nimble in updating the incorporations. So, many of the builders, engineers, and other regular consumers of the plaintiffs’ standards may simply purchase up-to-date versions as a matter of course. Moreover, some evidence casts doubt on the plaintiffs’ claims of significant market injury. 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.

Furthermore, even if there were a measurable harm, it would need to be balanced against the public interest.

[O]ur analysis of market effects must balance any monetary losses to the copyright holders against any “public benefits” of the copying. Oracle, 141 S. Ct. at 1206. Thus, even if Public Resource’s postings were likely to lower demand for the plaintiffs’ standards, we would also have to consider the substantial public benefits of free and easy access to the law. As the Supreme Court recently confirmed: “Every citizen is presumed to know the law, and it needs no argument to show that all should have free access” to it. Georgia v. Public.Resource.Org., Inc., 140 S. Ct. 1498, 1507 (2020)

In sum, this is a good decision: solid, readable, and one that advances the public interest in being able to know what the law is because someone has published it in a way that is practically accessible. The decision even comments on how necessary it was for the public that Public Resource published it like it had.

[T]he plaintiffs argue that, because they make standards available for free in online reading rooms, Public Resource’s use cannot be transformative. Yet all but one of these rooms opened after Public Resource began posting incorporated standards. Moreover, the plaintiffs’ reading rooms do not provide equivalent or even convenient access to the incorporated standards. Among other things, 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. Public Resource’s postings suffer from none of these shortcomings.

It does, however, leave for another day whether standards are even material that is eligible for copyright. Or exactly what happens when people do make what should be fair uses and commercially benefit, which also should be protected but in the wake of the Warhol case may not still be. But it is good that at least these sorts of non-commercial, educational fair uses today remain protected by decisions like this one.