This piece was originally published in the March 2017 issue of electroindustry.
Clark R. Silcox, Legal Counsel, NEMA
A federal judge in Washington, D.C., ruled in favor of standards development organizations (SDOs) who sought an injunction against PublicResource.Org, an entity that copies entire standards developed by SDOs and makes them available at no cost on the internet.
The court held that PublicResource.Org had infringed each of the SDO’s copyrights and issued an injunction against PublicResource.Org and its principal, Carl Malamud, directing that the copyrighted standards be removed from their website within five days. Mr. Malamud has championed the idea that standards incorporated by law lose their copyright protection the minute they are referenced in federal regulations and law.
Several federal agencies, including the Office of Federal Register (OFR) and the Office of Management and Budget, have looked at this issue several times in recent decades and each time concluded that the copyright was not lost by reference in federal law as long the standard was reasonably available. Reasonable availability did not mean that the standards had to be made available for free. The court noted that each SDO had online reading rooms where the standards could be read at no cost in read-only mode.
NEMA, ANSI, UL, IEEE, ASSE, IAPMO, and NAESB—all SDOs—filed a joint amicus brief with the court last year in support of the request for an injunction. The court’s opinion relied on portions of the amicus brief:
“… [T]his 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 regulations issued by the OFR 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 or from the incorporating agency.
The National Technology Transfer and Advancement Act of 1995 directed federal agencies to incorporate privately developed technical voluntary consensus standards, and Congress excluded incorporated works from Section 105 of the Copyright Act. Furthermore, Congress has remained silent on the question of whether privately authored standards would lose copyright protection upon incorporation by reference, choosing instead to maintain the scheme it created in 1966 that such standards must simply be made reasonably available.