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Public domain advocate gets appellate win in bid to publish copyrighted standards referenced in laws

Carl Malamud is the founder of Public.Resource.org. ABA file photo by Tony Avelar.

A federal appeals court on Tuesday told a federal judge to reconsider whether the fair use doctrine allows a nonprofit to post technical standards created by private industry groups that are later referenced in government regulations.

The U.S. Court of Appeals for the D.C. Circuit vacated injunctions that had prevented Public.Resource.org, known as PRO, from publishing copyrighted best-practice standards developed by six organizations.

PRO had purchased copies of the technical standards that had been incorporated into laws, scanned them into digital files, and posted them online. Its founder, public domain advocate Carl Malamud, tweeted this about the appellate decision: “I bought the law, and the law won.”

The appeals court ruled in a combined appeal of two lawsuits. A federal judge had ruled the standards organizations held valid and enforceable copyrights, and PRO failed to create a triable issue of fact on whether its publication of the materials constituted fair use.

On appeal, PRO argued incorporation of the standards by reference make the works a part of the law, and the law can never be copyrighted. PRO asserted that allowing private ownership of the law is inconsistent with the First Amendment principle that citizens should be able to freely discuss the law and a due process notion that citizens must have free access to the law.

PRO also argued that, even if the standards remain copyrighted, its copying qualifies as a fair use because it facilitates public discussion about the law.

The appeals court said PRO “raises a serious constitutional concern,” but it is better to first address the fair use issue. The district court had concluded PRO distributed the standards to undermine the organizations’ ability to raise revenue. According to the appeals court, the record does not support that blanket conclusion.

“Rather, by all accounts, PRO distributed these standards for the purpose of educating the public about the specifics of governing law,” the court said in an opinion by Judge David Tatel.

In addition, Tatel said, the district court failed to account for the variation among the standards at issue and consider the legal status of each incorporated work.

In a concurrence, Judge Gregory Katsas strongly supported PRO. “As a matter of common-sense, this cannot be right: access to the law cannot be conditioned on the consent of a private party, just as it cannot be conditioned on the ability to read fine print posted on high walls,” he wrote, referencing a book about the Roman emperor Caligula.

PRO was represented by the Electronic Frontier Foundation, the law firm of Fenwick & West, and attorney David Halperin. An EFF press release is here. How Appealing links to stories by the Register and Law360.

I bought the law, and the law won. The 3-0 opinion is at the bottom of the docket:https://t.co/9Xh252VIWB https://t.co/ZzPfTn1kvj — Carl Malamud (@carlmalamud) July 17, 2018

See also:

ABAJournal.com: “After debate, ABA House calls for publication of privately drafted standards used in legislation”

ABAJournal.com: “DC court enjoins Public.Resource.org from printing public safety regulations online”

ABA Journal: “Who owns the law? Technology reignites the war over just how public documents should be”