D.C. Circuit Reverses Lower Court re: Copyright in Laws and Codes

We previously reported about the Clinic’s amicus advocacy in a pair of cases concerning copyrights in legal standards and model codes incorporated into law. We are pleased to report that the United States Court of Appeals for the District of Columbia Circuit issued a ruling yesterday in favor of Public.Resource.Org, the organization that we supported (on behalf of two different groups of amici) in the district and circuit courts.  By way of background, private standards development organizations (or “SDOs”) promulgate model codes and standards to address the needs of technical fields — for example, model building codes or electrical codes. Those codes may be adopted or incorporated into law by legislative bodies, often at the local level. Some SDOs maintain that they have copyright interests in the codes they create and that such interests persist beyond the point when those codes become law. This can lead to some troubling outcomes for litigants, journalists, researchers, and other members of the general public who seek to use and rely on the text of binding law.

Public.Resource.Org is dedicated to making government information accessible to the public. In an effort to advance its mission of promoting and protecting, “the right of the public to know and speak the laws that govern it,” Public Resource made codes developed by plaintiffs  in these cases available online.  Two sets of plaintiffs — one led by the American Society for Testing and Materials (“ASTM”) and another led by the American Educational Resource Association (“AERA”) — sued Public Resource for copyright and trademark infringement in separate cases in the United States Court of Appeals for the District of Columbia.

The parties cross-moved for summary judgment, and the Clinic filed briefs in both cases (brief in ASTM here, brief in AERA here). Those briefs were filed on behalf of coalitions of law scholars. The briefs focused on the issue of copyrightability, asking that the District Court find the model codes at issue are not proper subjects of copyright protection. The Court ruled in favor of plaintiffs in both cases, finding that Public Resource infringed plaintiffs’ copyrights and trademarks by posting these materials online.

The cases were consolidated on appeal to the D.C. Circuit, where the Clinic filed an amicus brief on behalf of Representatives Zoe Lofgren and Darrell Issa.  The brief for these two  Members of Congress addressed the public policy implications of the lower courts’ decisions, including possible constitutional due process issues relating to SDOs’ use of copyright to restrict access to laws. Amici also expressed concerns about the impact of copyright restrictions on general welfare, noting that allowing SDOs to maintain copyright interests would open the floodgates to litigation and pose threats to public safety.

The D.C. Circuit reversed and remanded to the district court for further proceedings.  Of particular note:

• The Court focused its analysis not on copyrightability but on fair use, noting that the doctrine “may provide a full defense to some, if not all, of the SDO’s infringement claims in this case.”
• Specifically, the Court noted that there is “reason to believe ‘as a matter of law’ that [Public Resource’s] reproduction of certain standards ‘qualif[ies] as a fair use of the copyrighted work.”
• The Court addressed each of the four fair use factors in turn — noting as to the especially important first factor that “[t]he district court . . . failed to adequately consider whether, in certain circumstances, distributing copies of the law for purposes of facilitating public access could constitute transformative use.”

The Court vacated injunctions that the district court issued against Public Resource.

The Clinic will monitor the case and keep tabs on further developments.  In the meantime, we are glad that Public Resource will have the opportunity to continue its advocacy for access to laws as the case returns to the district court.