“Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes. It is said that one of emperor Nero’s nasty practices was to post his edicts high on the columns so that they would be harder to read and easier to transgress.” That observation was penned by the late Justice Antonin Scalia. Following a recent D.C. Circuit decision allowing non-profits to post online technical standards that have been incorporated into regulations, it should now be easier for those subject to the law to know what it prescribes.
In American Society for Testing and Materials v. Public.Resource.Org, Inc., No. 22-7063 (D.C. Cir. Sept. 12, 2023), the D.C. Circuit addressed copyrighted technical standards that are embedded in federal law. As Judge Gregory Katsas—the opinion author—explained, “[m]any private organizations develop and copyright suggested technical standards for an industry, product, or problem,” and
“[f]ederal and state governments often incorporate such standards into law.” Generally, however, regulators do not copy the standards into the regulations; instead, they simply incorporate them by reference. Notably, “[t]he Code of Federal Regulations contains more than 27,000 incorporations of privately developed standards by reference.”
This practice of incorporating standards by reference—rather than copying them directly into the Code of Federal Regulations—prompts two questions: Do third-party non-profits violate copyright law in posting those standards for free online? Or can creators of technical standards prevent such public dissemination of copyrighted material?
According to Katsas, because of copyright’s fair-use doctrine, non-profit organizations can make incorporated standards available to the public without fear of liability.
Public Resource is a non-profit organization that posts copies of technical standards on its website, including copyrighted standards. Public Resource does not charge the public for access to these standards. Upset, certain copyright holders sued Public Resource, alleging that this practice infringes on their copyrights. Following years of litigation, the D.C. Circuit has now held that, so long as standards are incorporated by reference into law, Public Resource can publicly disseminate copies. In reaching that conclusion, Katsas emphasized that such dissemination is transformative: “Public Resource publishes only what the law is, not what industry groups may regard as current best practices.” Furthermore, Katsas explained that “legal text ‘falls plainly outside the realm of copyright protection,’” which principle has some force with respect to standards that have been incorporated by reference into legal texts. And to be clear, “Public Resource posts standards that government agencies have incorporated into law—no more and no less.”
The D.C. Circuit also rejected various counterarguments. The copyright holders, for example, stressed that even if technical standards have been incorporated by reference, fair use should only apply to those portions of the standards that are “essential to comprehending legal duties,” rather than to portions that contain, for example, “introductory or background material.” Judge Katsas disagreed: “[A]ll material that has been validly incorporated by reference carries the force of law and is treated as having been published in the Federal Register and Code of Federal Regulations,” and, regardless, because “law is interpreted contextually,” it follows that “even explanatory and background material will aid in understanding and interpreting legal duties—especially when the promulgating agency references it.”
The D.C. Circuit also disagreed that making copies of standards available in a reading room is sufficient. After all, “the plaintiffs’ reading rooms do not provide equivalent or even convenient access to the incorporated standards. Among other things, text is not searchable, cannot be printed or downloaded, and cannot be magnified without becoming blurry.”
Finally, what about the incentive to create technical standards in the first place? If the public can access standards without paying for them, then perhaps standards-creating companies will not invest in their creation. Judge Katsas acknowledged that this objection may be the strongest argument against fair use. Nonetheless, he observed that this argument may not be supported by compelling real-world evidence, especially because regulators are slow to update regulations. Accordingly, “many of the builders, engineers, and other regular consumers of the plaintiffs’ standards may simply purchase up-to-date versions as a matter of course,” even if Public Resource makes publicly available more outdated versions that remain incorporated into the law.
Incorporating standards by reference isn’t the same as posting edicts high on columns. But the principle holds true: The public should be able to know what the law says.
