Appeals court rules in tech standards case
- By Derek B. Johnson
- Jul 18, 2018
A federal appeals court has overturned a decision that granted private-sector organizations control over the use and publication of technical standards they developed after such standards have been incorporated into U.S. law.
In a 3-0 decision released July 17, the U.S. Court of Appeals for the District of Columbia vacated a previous ruling by the D.C. District Court, which found that a non-profit organization had violated the copyright of industry standards organizations by publishing its technical standards side by side with U.S. laws.
At issue is whether the government and other organizations can recreate or publish privately developed standards when referencing U.S. law without running afoul of copyright protections.
Local, state and federal government lawmakers often draw on such standards to craft laws based the best available private-sector resources. One of the most common forms is incorporation by reference, where a law will not directly quote, but reference, external standards. The plaintiffs challenged whether a third-party organization -- in this case the non-profit organization Public Resource Org -- could copy and paste those standards alongside the legal text as a public resource without infringing on their copyright to the material.
The panel determined that the previous decision did not properly account for "fair use" exemptions designed to serve the public interest before sending the case back to the lower court for reconsideration. The judges didn't decide whether standards are still under copyright after being incorporated into law.
The initial lawsuit was brought by six Standards Developing Organizations, groups composed of private companies and other non-public-sector groups that pool resources to develop technical standards for any number of products and industries.
The six industry standards groups argued that Public Resource Org did violate copyright.
Public Resource Org claimed that its actions constituted a fair use under copyright law because the combined documents were meant to elicit criticism and comment on such laws and, further, that because such standards had been incorporated into U.S. law, they become necessarily public.
Electronic Frontier Foundation, which joined the lawsuit in defense of Public Resource Org, argued that the actions by the Standards Developing Organizations represented an abuse of copyright law that impedes the public's understanding of legal standards.
"Imagine a world where big companies can charge you to know the rules and regulations you must follow," said EFF Legal Director Corynne McSherry, who argued the appeal in court. "The law belongs to all of us. We all have a right to read, understand and share it," she said in a statement following the release of the opinion.
Derek B. Johnson is a senior staff writer at FCW, covering governmentwide IT policy, cybersecurity and a range of other federal technology issues.
Prior to joining FCW, Johnson was a freelance technology journalist. His work has appeared in The Washington Post, GoodCall News, Foreign Policy Journal, Washington Technology, Elevation DC, Connection Newspapers and The Maryland Gazette.
Johnson has a Bachelor's degree in journalism from Hofstra University and a Master's degree in public policy from George Mason University. He can be contacted at [email protected], or follow him on Twitter @derekdoestech.
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