Over the years, the Cyberlaw Clinic has taken an active interest in cases concerning attempts to use copyright claims to limit access to law. Many of these cases have involved our friends at Public.Resource.org, which actively pushes back in situations where private entities assert that their copyright interests should trump free and open access the text of statutes and related legal documents. Of particular note, the United States Supreme Court ruled last year in Georgia v. Public.Resource.Org that the Official Code of Georgia Annotated is ineligible for copyright protection. (The Clinic had filed an amicus brief in the case for the Caselaw Access Project urging that very result.)
One front on which Public Resource has been especially active has been the incorporation (often into state and local law) of standards promulgated by private standards development organizations (SDOs) — building codes, fire codes, and the like. SDOs develop standards and model codes, encourage their adoption, and then — sometimes — continue to claim a copyright interest even after they have been incorporated into binding law. This can lead to perverse situations, where citizens are obligated to follow the law but access to the legal text is controlled by private parties.
Back in 2016, the Clinic filed amicus briefs on behalf of law scholars in two separate cases before the United States District Court for the District of D.C. — one brought by a group of plaintiffs led by the American Society of Testing and Materials and another brought by a group of plaintiffs led by the American Educational Research Association (AERA). Both briefs expressed the concerns of law scholars. On appeal, the cases were consolidated for consideration before the D.C. Circuit, where the Clinic filed a brief on behalf of Reps. Zoe Lofgren and Darrell Issa.
Litigation has returned to the district court, and we were delighted to receive the news this week that several of the plaintiffs have dismissed their claims against Public Resource. The Electronic Frontier Foundation (which serves as co-counsel for Public.Resource.org in the cases) reports that three of the plaintiff organizations — AERA, along with the National Council on Measurement in Education and the American Psychological Association — dropped their case. Three other groups — ASTM, along with the National Fire Protection Association and the American Society for Heating, Refrigeration, and Air Conditioning Engineers — continue to pursue their claims, and the Clinic will continue to follow those cases with interest.
