In Blow to Open Law, Court Upholds Private Copyright in Public Safety Laws

A federal court has issued a permanent injunction barring Public.Resource.Org from publishing technical and scientific standards that are written by private standards developing organizations (SDOs) but that are incorporated by reference in the Code of Federal Regulations.

The CFR incorporates some 9,500 of these private standards. They help to regulate a wide range of everyday items, from toys and cribs to vehicle windshields and propane tanks. Yet, while the CFR is freely available online, these so-called IBR (for “incorporated by reference”) rules are not.

Rather, the SDOs copyright their standards and sell access to them, generally at a profit to themselves. The price for access to a single standard can range from $40 to $1,000. The complete set of standards implementing the Pipeline and Hazardous Materials Safety Act costs nearly $10,000.

After Public.Resource.Org’s CEO Carl Malamud began scanning and posting these public safety standards, standards-setting organizations brought two lawsuits against him.

The first, filed by the American Society for Testing and Materials, National Fire Protection Association, and the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, alleged copyright and trademark infringement. The second, brought by the American Psychological Association and the National Council on Measurement in Education, alleged just copyright infringement.

Plaintiffs and defendant all filed motions for summary judgment, and on Feb. 2, U.S. District Judge Tanya S. Chutkan issued a memorandum ruling in favor of plaintiffs and an order permanently barring Public.Resource.Org from posting any of the plaintiffs’ standards.

This court finds that Plaintiffs’ standards have not entered the public domain upon their incorporation by reference into federal regulations and do not lose their copyright protection. This conclusion does not dismiss or diminish the valid public policy concern that citizens benefit from greater access to statutes, regulations, and all materials they must reference in fulfilling their legal obligations. The ability to know, understand, and communicate the law as a broad concept is of paramount importance to the continued success of our democracy. However, changes to the statutory or regulatory framework that reconsider the balancing of interests underlying modern copyright law and incorporation by reference must be made by Congress, not this court.

In a blog post about the case, Mitch Stoltz, senior staff attorney at the Electronic Frontier Foundation, which represented Public.Resource.org, criticized the ruling.

The district court’s decision runs contrary to decisions in other parts of the country, and raises serious constitutional issues. We don’t see how the decision can be reconciled with the due process right to know the law, nor our First Amendment right to share it.

Malamud, in a tweet, said he is appealing the decision.

This issue of public access to privately developed standards was taken up by the American Bar Association at its annual meeting last August. As I described in July in my column at Above the Law, ABA Resolution 112 was put before the House of Delegates as an attempt to find a middle ground between public access and private copyrights.

The final resolution adopted by the ABA urged Congress to enact legislation that would require any federal agency to make available to the public, free of charge, the portion of a standard that a rule or proposed rule incorporates by reference.