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A nonprofit organization that posts legal and regulatory requirements online will face several industry trade groups in a federal appeals court over a court order blocking the organization from posting the texts without permission.
Public.Resource.org Inc. and the trade groups, which set technical standards for their member companies, filed final briefs yesterday with the U.S. Court of Appeals for the District of Columbia Circuit.
Public.Resource.org posts for free industry technical standards that governmental agencies designate as the source of rules and regulations. But the trade groups—the American Society for Testing and Materials, the National Fire Protection Association, and the American Society of Heating, Refrigerating, Air-Conditioning Engineers, the American Educational Research Association Inc., the American Psychological Association Inc., and the National Council on Measurement in Education Inc.—won rulings that Public.Resource.org was infringing their copyrights by publishing their building codes, fire codes and other standards.
This case is important for industry organizations that raise revenue from publishing standards documents, as well as for companies and individuals that are required to comply with standards that government agencies have adopted from private entities.
Public.Resource.org says that the public should have free access when the law or regulation requires compliance with privately drafted codes.
Political speech is the type of speech most protected under the First Amendment, and “no speech is more political than speaking the law itself and educating the public about it,” Public.Resource.org said in its brief.
It is important not only for builders and inspectors to have free access to safety standards, but also anyone who enters a building or uses a product, the brief said.
The publisher said that the texts of the standards should be treated under a historic exclusion from copyright law for “edicts of the government.”
But the industry organizations argue that their model codes don’t lose copyright protection when they are incorporated into law. The organizations also said that Congress’s failure to revoke copyright protection in a statute directing agencies to use standards created by “voluntary consensus bodies” indicated that the legislature intended copyright protection to remain.
The court has not yet scheduled oral argument in the case.
Fenwick & West LLP and the Electronic Frontier Foundation represented Public.Resource.org. Crowell & Moring LLP, Morgan, Lewis & Bockius LLP, Munger, Tolles & Olson LLP, and King & Spalding LLP represented the copyright owners.
The case is Am. Soc. for Testing and Materials v. Public.Resource.Org, Inc., D.C. Cir., No. 17-7035, final briefs filed 2/14/18 .
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