On September 25, 2017, the Cyberlaw Clinic and local counsel Catherine Gellis filed an amicus brief on behalf of members of Congress Zoe Lofgren (D-CA 19th District) and Darrell Issa (R-CA 49th District) in the United States Court of Appeals for the District of Columbia Circuit. The brief supports defendant-appellant Public.Resource.org (Public Resource) in the case American Society of Testing Engineers (ASTM) et. al. v. Public.Resource.org, Case No. 17-7035 (D.C. Cir.). The appeal — a consolidation of two district court cases, both filed by standard developing organizations (SDOs) — addresses the copyrightability of the law and standards incorporated therein. The crux of the case is whether the text of applicable law may be shared freely by non-profit organizations like Public Resource.
When model codes and standards become part of federal, state, or local regulations, the text is often not reproduced in the location where the law is published. Rather, citizens interested in reading the content of enacted statutes and regs must access the incorporated materials via the SDOs’ publication channels. These may come with high access fees or remain incompatible with online accessibility tools for the disabled. Public Resource acquired copies of a number of standards and codes, made them public, and was sued for copyright and trademark infringement by the SDOs.
The Clinic previously filed amicus briefs on behalf of legal scholars in support of Public Resource in both cases brought in the United States District Court for the District of Columbia. The district court ruled in favor of both sets of plaintiffs-appellees, the “ASTM Plaintiffs”—ASTM, National Fire Protection Association, Inc. (NFPA), and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE)—and the “AERA Plaintiffs”—American Education Resource Association (AERA), American Psychological Association (APA), and the National Council on Measurement in Education (NCME), finding copyright and trademark infringement in the publication on Public Resource’s website of model codes and standards incorporated into law.
In this brief, Members of Congress weighed in to discuss the public policy implications of the lower courts’ decisions. The brief discusses possible constitutional due process implications of SDOs’ using copyright to restrict on access to laws, noting that “[a] citizen’s ability to take notice of a law or regulation depends on that citizen’s ability to access the text of such law or regulation,” and that “[t]here can be no due process when people cannot remain informed of the laws by which they are bound.”
Amici also expressed concerns on the dual impact of copyright restrictions on general welfare, namely: (1) allowing SDOs to maintain their copyright interest in incorporated model codes “would open the floodgates to claims of joint authorship by all the various stakeholders who contribute to drafting laws,” tampering with the lawmaking process by undermining the fundamental principle that the law belongs to the public; and (2) restricting access to the law also poses a threat to public safety—the poor may have trouble paying the high model code access fees to ensure that their housing is safe; the disabled may not be able to access the model codes due to the incompatibility of the SDO platforms with accessibility tools.
Finally, the brief argues that, even if SDOs maintain an interest in the law, Public Resource’s open publication of the law is fair use. The model codes and standards are factual—not creative—in nature, and online reproduction of relevant material is reasonable and necessary, because “increasing public access to information constitutes a public benefit.”
Other Amicus Briefs in Support of Public Resource:
Four other amicus briefs were filed in support of Public Resource. Public Knowledge filed a brief on behalf of a group of library associations, non-profit organizations, legal technology companies, former government officials, librarians, innovators, and law professors addresses the societal detriment of restricting access to the law—stifling innovation, fostering discrimination and bias, and violating the First Amendment right to information.
Non-profit organizations Public Citizen, Center for Science in the Public Interest, Consumers Union, National Employment Law Project, and United StatesPublic Interest Research Group, filed a brief discussing the importance of open access to regulatory texts in preserving public and environmental safety. These organizations argue that restricting access to the law would “impede the public’s ability to participate in rulemaking proceedings, engage in discussion of regulatory requirements, challenge illegal regulations, and hold those who violate regulations accountable for their actions.”
The Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School filed a brief on behalf of Sina Bahram, a digital accessibility researcher and advocate for disabled individuals. Bahram argues that Public Resource publication of model codes constitutes fair use because it provided a transformative service to the disabled in creating an accessible online format of regulatory codes. He asserts that SDO-provided online reading platforms are incompatible with accessibility tools and hence, violate the American Disabilities Act requirement that prohibits discrimination against the disabled.
Finally, a group of intellectual property filed an amicus brief addressing the trademark arguments advanced by plaintiffs-appellees, arguing that the trademark infringement claims should be barred because the SDOs objections do not create a separate trademark cause of action distinct from copyright.
Special thanks to HLS Cyberlaw Clinic students Evelyn Chang, Jillian Goodman, and Anderson Grossman who worked closely with clinical supervisors Kendra Albert and Chris Bavitz to write the brief. (Evelyn also played a key role in drafting this blog post!) Cyberlaw Clinic summer interns Steven Deolus and Teddi Josephson did a lot of the legwork that led to the filing of the brief, and Clinical Instructor Jessica Fjeld was instrumental in crafting and honing the arguments. The Clinic is also grateful to students Michael Shafer and Ben Shiroma for their assistance with filing.
Court of Appeals Image courtesy of the United States Court of Appeals for the District of Columbia Circuit website, https://www.cadc.uscourts.gov/internet/home.nsf (last accessed September 26, 2017).