The plaintiffs are three organizations that created and own the copyright in technical standards that establish best practices for various industries and products – such as, for example, standards addressing the prevention of fire, electrical, and related hazards. These standards often are incorporated by reference by Federal agencies in rules and regulations. How often? All the time. The Code of Federal Regulations contains more than 27,000 incorporations of privately developed standards by reference. When these standards are incorporated by reference, they have the force and effect of law. However, because the text of the standards are not themselves reproduced in the CFR, they are not always easily accessible by the public.

Enter, defendant Public.Resource.Org (PRO), a nonprofit with a mission to make government records and legal materials more available to the public. (See this post.) PRO posted copies of hundreds of incorporated standards on its website, including many belonging to the plaintiffs. As a result, the public can view, download, or print these standards for free rather than purchasing a license from the plaintiffs. 

In 2013, the plaintiffs sued for copyright infringement in the District of Columbia. Initially, the district court granted summary judgment to the plaintiffs, finding that nine of the standards had been infringed by PRO, and rejecting the PRO's fair use defense. In 2017, the DC Circuit reversed and remanded with instructions to redo the fair use analysis after developing a fuller factual record. On remand, the district court held that PRO's posting of standards that had been incorporated by reference into the law was fair use, but that its posting of standards that were not so incorporated was not fair use. The plaintiffs appealed.

The DC Circuit affirmed the decision below in all respects.

The Purpose and Character of the Use:Google v. Oracle). Moreover, PRO's use was transformative “because it serves a different purpose than the plaintiffs' works.” Specifically, the plaintiffs “seek to advance science and industry by producing standards reflecting industry or engineering best practices”; PRO's purpose is “to provide the public with a free and comprehensive repository of the law.” PRO's use is transformative even though it did not alter or add to the standards because “Public Resource's message (‘this is the law’) is very different from the plaintiffs' message (‘these are current best practices for the engineering of buildings and products’).”

The first factor favors a finding of fair use. PRO's use is for nonprofit, educational purposes, and “there is no doubt that a finding that copying was not commercial in nature tips the scales in favor of fair use” (quoting

The Nature of the Copyrighted Work: 

The second factor “heavily” favors PRO. The plaintiffs’ standards "fall at the factual end of the fact-fiction spectrum.” Moreover, when a standard is incorporated by reference into law without limitation," the result is "virtually indistinguishable from a situation in which the standard had been expressly copied into law.”

The Amount and Substantiality of the Portion Used:

Although PRO used the standards in their entirety, that fact must be considered "in light of [PRO's] purpose of informing the public” about the law. “If an agency has given legal effect to an entire standard, then its entire reproduction is reasonable in relation to the purpose of the copying, which is to provide the public with a free and comprehensive repository of the law.” Thus, the third factor also favors a finding of fair use.

The Effect of the Use Upon the Potential Market: could suffer but made “no serious attempt to quantify past or future harms.” Finally, even if PRO's publication of the standards was likely to lower demand for the plaintiffs' standards, the court "would also have to consider the substantial public benefits of free and easy access to the law.” As the court put it: "Every citizen is presumed to know the law, and it needs no argument to show that all should have free access to it" (quoting Georgia v.

The court found that the updated record was “equivocal” regarding whether there was a likelihood of market harm, and that the fourth factor was essentially neutral. While there was “intuitive appeal” to the argument that sales would be hurt if the public could download a copy of the standards for free, there were several indications that this was not necessarily true here. First, the plaintiffs update their standards frequently; lawmakers do so much less often. This means that the version of the standards incorporated in the CFR often is not the current version published by the plaintiffs. As a result, professionals who need up to date standards for their businesses will not find the free copy made available by PRO to be an adequate substitute. Moreover, despite the fact that PRO has been posting incorporated standards for fifteen years, the plaintiffs could not produce any economic analysis showing that PRO's activity had harmed any relevant market for their standards. The plaintiffs’ expert described only the harms the plaintiffs

American Society for Testing & Materials v. Public.Resources.Org., Inc., th __, 2023 WL 5918491 (D.C. Cir. Sept. 12, 2023)

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