1. IBR Status Report ASTM, NFPA and ASHRAE v. PublicResource.Orgby
Patricia A. Griffin, ANSI VP and General Counsel
February 22, 2017

2. Status of ASTM v. PublicResource.Org
On February 2, 2017, the United States District Court for the District of Columbia, Judge Tanya Chutkan, issued a long-awaited decision in ASTM v. PublicResource.Org., a case in which three US SDOs alleged that Carl Malamud’s organization violated the copyright law by posting to a publicly-available website standards that were incorporated by reference (“IBR’d”) into federal regulations. A copy of the decision can be found here.
PublicResource.Org raised a number of arguments in defense of its actions, including that standards incorporated into law became the law and could not be protected any longer by US Copyright Law, that due process required the public have access to IBR’d standards and that the doctrine of “fair use” protected its publication of plaintiffs’ standards to its website.
ANSI, along with a number of US SDOs filed an Amicus Brief supporting plaintiffs’ SJ motion.
February 22, | ESO Meeting

3. Summary Judgment Order
In a victory for ASTM, NFPA and ASHRAE, the District Court granted Plaintiffs’ motion for summary judgement and denied Public Resource’s cross motion for summary judgment, permanently enjoining Malamud’s organization “from all unauthorized use, including through reproduction, display, distribution, or creation of derivative works, of” the standards at issue in the suit and “from all unauthorized use of Plaintiffs’ registered trademarks.”
February 22, | ESO Meeting

4. Summary Judgement Decision – Key Points
Regarding the alleged loss of copyright protection because of IBR, the Court said: 
This suit is not about access to the law in a broad sense, but instead about the validity of copyrights for these standards under current federal law. Copyright protection is a creature of statute, and as such is the result of careful policy considerations by Congress. In the view of this court, Congress has already passed on the question of revoking copyright protection for standards that have been incorporated by reference into regulations, and any further consideration of the issue must be left to Congress for amendment.
Under current federal regulations issued by the Office of the Federal Register in 1982, a privately authored work may be incorporated by reference into an agency’s regulation if it is “reasonably available,” including availability in hard copy at the OFR and/or the incorporating agency. There was no evidence that the Plaintiffs’ standards were not reasonably available to the public.
February 22, | ESO Meeting

5. Summary Judgement Decision – Key Points (cont’d)
Regarding due process (balancing of interests), the court said: 
Plaintiffs and supporting amici highlight that without copyright protection for all of their standards, they will face significant difficulty raising the necessary revenue to continue producing high-quality voluntary consensus standards.
Given the existing statutory, regulatory, and judicial framework, 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.
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.
February 22, | ESO Meeting

6. Summary Judgement Decision – Key Points (cont’d)
Regarding Fair Use, the Court said:
That Plaintiffs’ works involve technical scientific concepts and guidelines does not push it away from the core of intended copyright protection, but actually brings it closer. Plaintiffs’ standards are vital to the advancement of scientific progress in the U.S. and exactly the type of expressive work that warrants full protection under the Constitution and the Copyright Act.
Whatever merit there may be in Defendant’s goal of furthering access to documents incorporated into regulations, there is nothing in the Copyright Act or in court precedent to suggest that distribution of identical copies of copyrighted works for the direct purpose of undermining Plaintiffs’ ability to raise revenue can ever be a fair use.
February 22, | ESO Meeting

7. Appeal
On February 15, 2017, PublicResource.Org filed an appeal of the Court’s decision and a scheduling order will be issued by the Court of Appeals;
It is likely that a decision will be rendered by the Court of Appeals by year end.
February 22, | ESO Meeting

8. ANSI General Counsel & Senior VP
Patricia A. Griffin
ANSI General Counsel & Senior VP