Website Fights Standard-Setting Groups for Right to Post Free Copies

  • United States
  • 05/14/2018
  • Bloomberg Law

The public’s right to know will be pitted against the right of private groups to charge money for copyrighted information during a May 14 federal appeals court hearing.

A not-for-profit website is asking the U.S. Court of Appeals for the District of Columbia Circuit to allow the site to publish regulatory standards created by private groups for government agencies.

Two competing public benefits are at stake: free access to regulatory standards and the financial health of the system that pays experts to create the standards.

Government agencies often rely on experts in private, not-for-profit groups—known as standards development organizations—to produce building codes, electrical codes and other health and safety standards.

Many of those groups charge for printed copies of their work of the texts. The government rarely publishes the work, instead incorporating them into law by reference. For example, a state agency might say an industry must follow a standard issued by a particular organization.

Public.Resource.Org Inc. collects such standards and posts them online for free. The standards development organizations say the Copyright Act gives them the right to control and charge for access to them.

The U.S. District Court for the District of Columbia sided with the standards development organizations in two separate cases and ordered Public.Resource.Org to stop posting the texts. The federal appeals court consolidated the cases.

Fair Use or Legislative Action
The full protection of copyright law gives standard development organizations too much leverage, because the public is required by law to abide by them, Annemarie Bridy, a law professor at the University of Idaho, told Bloomberg Law.

Affirming the lower court’s rulings “would be a win for private organizations that develop standards, lobby the government to adopt them, and then profit from a statutory monopoly on the sale of copies to a captive consumer market,” Bridy said.

A similar case involving Public.Resource.Org is before the U.S. Court of Appeals for the Eleventh Circuit in Atlanta.

Public.Resource.Org might get a more sympathetic hearing before the D.C. Circuit because that court has more experience with regulatory agencies, Charles Duan told Bloomberg Law. Duan, of the R Street Institute public policy think tank, filed a friend-of-the-court brief for several law professors.

“One would hope that that experience with agency litigation would make them well-informed about how important it is for people to understand the nature of the rules that regulate them,” he said.

The courts might be in a bind, because the copyright protection seems clear, David S. Gold, a copyright lawyer with Cole Schotz PC, Hackensack, N.J., told Bloomberg Law. He said it’s up to Congress to amend the Copyright Act if it wants texts like these to be free of copyright restrictions.

“There are times when judges are pinned in the corner, and I think that’s what happened in this case,” Gold said.

Copyright Funds Standard-Setting
Public interest groups and legal scholars have signed friend-of-the-court briefs asking the appeals court judges to overturn the lower court’s rulings. They argue the public’s right to know about the standards overrides copyright law.

“These cases concern a fundamental principle: whether the law should be freely available to the public,” Washington-based copyright lawyer Jonathan Band told Bloomberg Law. “In a democratic society, the answer should be yes.”

If the ruling is overturned, the public will lose the benefit of what National Fire Protection Association head Jim Pauley called an “enormously effective public-private partnership.”

Pauley told Bloomberg Law that charging for complete hard copies helps the standard development organizations such as his pay for their work .

Pauley’s group has issued more than 300 standards, the latest being a provisional standard for active shooter and hostile event situations.

“What that standard was able to do was bring together around the table law enforcement, fire services, emergency medical services, and the physicians that work in hospitals,” Pauley said. If his group can’t charge for written copies of the texts they produce, “then the standards don’t exist, or it falls on the individual governmental bodies to do it, and they can’t do that efficiently on their own.”

Adina H. Rosenbaum of the Public Citizen Litigation Group, which is supporting Public.Resource.Org’s position, told Bloomberg Law that the standard development organizations tend to require people to accept terms of a click-through agreement and then block printouts of the material.

Pauley said that that is a reasonable practice.

“People that use them day-in and day-out actually purchase copies of the standard,” Pauley said. “That is the way that the system in total minimizes any cost to the government or to the taxpayer, because it’s spread across that spectrum.”

The cases are Am. Soc’y for Testing and Materials v. Public.Resource.Org, Inc., D.C. Cir., No. 17-7035, argument scheduled 5/14/18 and Am. Educ. Research Ass’n, Inc. v. Public.Resource.Org, Inc., Jud. Council D.C. Cir., No. 17-7039, argument scheduled 5/14/18.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at amazumdar@bloomberglaw.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloomberglaw.com

https://biglawbusiness.com/website-fights-standard-setting-groups-for-right-to-post-free-copies/