Federal Appeals Court Affirms The Right to Publish The Law
The United States Court of Appeals for the District of Columbia Circuit yesterday issued a critical decision in a lawsuit I’ve been working on ever since the non-profit group Public Resource, where I serve as of counsel, was sued in August 2013. Here’s a release from the Electronic Frontier Foundation that explains what happened:
SAN FRANCISCO—Technical standards like fire and electrical codes developed by private organizations but incorporated into public law can be freely disseminated without any liability for copyright infringement, a federal appeals court ruled Tuesday.
Tuesday’s ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upholds the idea that our laws belong to all of us, and we should be able to find, read, and share them free of registration requirements, fees, and other roadblocks. It’s a long-awaited victory for Public.Resource.org, a nonprofit organization founded in 2007 by open records advocate Carl Malamud of Healdsburg, Calif., and represented in this case by the Electronic Frontier Foundation (EFF) with co-counsel Fenwick & West and David Halperin.
“In a nation governed by the rule of law, private parties have no business controlling who can read, share, and speak the rules to which we are all subject,” EFF Legal Director Corynne McSherry said. “We are pleased that the Court of Appeals upheld what other U.S. courts, including the Supreme Court, have said for almost 200 years: No one should control access to the law.”
As part of its mission of promoting public access to all kinds of government information, Public Resource acquires and posts online a wide variety of public documents, such as nonprofits’ tax returns, government-produced videos, and standards incorporated into law by reference. These standards include electrical, fire safety, and consumer safety codes that have been mandated by governments. But without Public Resource’s work, they are often difficult to access, much less share with others, which means that areas of law that profoundly affect our daily life are obscured from our view. Even courts have had trouble accessing the laws that they are supposed to apply.
The American Society for Testing and Materials (ASTM), National Fire Protection Association Inc. (NFPA), and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) are organizations that develop private sector codes and standards aimed at advancing public safety, ensuring compatibility across products and services, facilitating training, and spurring innovation.
ASTM, NFPA, and ASHRAE sued Public Resource in 2013 for copyright and trademark infringement and unfair competition.
Affirming a trial court’s March 2022 decision, the appeals court found Tuesday that Public Resource’s use is for nonprofit, educational purposes, and that this use serves a different purpose than that of the plaintiffs. The plaintiffs “seek to advance science and industry by producing standards reflecting industry or engineering best practices,” the court wrote, while “Public Resource’s mission in republishing the standards is very different—to provide the public with a free and comprehensive repository of the law.”
“Public Resource posts standards that government agencies have incorporated into law—no more and no less,” the appeals court ruled. “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.”
The appeals court also found that although Public Resource has been posting incorporated standards for 15 years, the plaintiffs haven’t shown any evidence that this harmed them financially. And “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,” the court ruled.
The appeals court rejected the plaintiffs’ argument that because they make standards available for free in online reading rooms, Public Resource’s use cannot be transformative fair use. All but one of these rooms opened after Public Resource began posting incorporated standards, the court noted, and those reading rooms fail to provide convenient access. “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.”
Malamud praised the appeals court’s decision and said Public Resource will redouble its efforts.
“It has been over 10 years since plaintiffs filed suit in this case,” he said. “Today, the U.S. Court of Appeals has found decisively in favor of the proposition that citizens must not be relegated to economy-class access to the law. This win would not have been possible without the untiring and dedicated work by the legal team of EFF, Fenwick & West, and David Halperin, as well as the dozens of amicus briefs filed on our behalf. I’m very grateful for all their help.”
For the opinion of the U.S. Court of Appeals for the District of Columbia Circuit: https://www.eff.org/document/opinion-7
For more on the Public Resource case: https://www.eff.org/cases/publicresource-freeingthelaw