A nonprofit organization that works to make government documents available to the public has been given permission to release copies of various safety, energy efficiency and other industry standards, many of which are routinely adopted by legislatures and made into law.
The Electronic Frontier Foundation is defending Public.Resource.org, or PRO, in a lawsuit brought by six large industry groups that address product safety, education testing and other fields in which standards are routine.
The groups sued PRO in 2013, alleging they controlled the standards, even after they become law.
But now a federal appeals court says they must allow PRO to post them on its website.
“These groups publish thousands of standards that are developed by industry and government employees,” EFF said. “Some of those standards are incorporated into federal and state regulations, becoming binding law.
“As part of helping the public access the law, PRO posts those binding standards on its website. The industry groups, known as standards development organizations, accused PRO of copyright and trademark infringement for posting those standards online. In effect, they claimed the right to decide who can copy, share, and speak the law,” EFF said.
A judge in Washington agreed.
However, a three-judge panel of the Court of Appeals for the D.C. Circuit reversed the decision, ruling that the district court did not properly consider copyright’s fair use doctrine.
The appeals court sent the case back to district court for further consideration of the fair use factors at play.
“[I]n many cases,” wrote the appeals court, “it may be fair use for PRO to reproduce part or all of a technical standard in order to inform the public about the law.”
Carl Malamud, a spokesman for PRO, said his organization’s objective is to give Americans access to the laws they must follow.
“We can’t let private industry control how we access, share, and speak the law. I’m grateful that the court recognized the importance of fair use to our archive,” he said.
“Imagine a world where big companies can charge you to know the rules and regulations you must follow,” said EFF Legal Director Corynne McSherry. “The law belongs to all of us. We all have a right to read, understand and share it.”
A concurrence with the majority said: “The plaintiffs here claim a copyright over binding legal texts, which would enable them to prevent anyone from gaining access to that law or copying it for the public. … 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.”
It’s not the only time such an issue has arisen. A court fight erupted when an activist bought a hard copy of the official laws of Georgia, scanned them and loaded them on a thumb drive, conflicting with state policy that requires the documents to be purchased.
Also, the state of California considered a law that would claim a copyright on everything produced by the state, from films of city council meetings to legislation.
However, the plan later was dropped.
EFF said at the time it was “never made clear why the state needed sweeping new copyright and trademark powers and new limitations on open government.”