SAN FRANCISCO—As part of its ongoing work to ensure that people can know and understand the laws they live under, Public.Resource.org, a nonprofit organization, on Thursday vindicated its ability to publicly post important laws online in standard formats, free of copy protections and cumbersome user interfaces.
The win for Public Resource—represented by the Electronic Frontier Foundation (EFF) with co-counsel Fenwick & West and David Halperin—in the U.S. District Court for the District of Columbia reinforces the critical idea that our laws belong to all of us, and we should be able to find, read, and comment on them free of registration requirements, fees, and other roadblocks.
“This is a crucial victory for the public as well as Public Resource,” said Corynne McSherry, EFF’s legal director. “We are pleased that the court recognized and affirmed that no private entity should be able to dictate how we learn about and comment on the law.”
The American Society for Testing and Materials (ASTM), National Fire Protection Association Inc. (NFPA), and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) are among organizations that develop private sector codes and standards aimed at advancing public safety, ensuring compatibility across products and services, facilitating training, and spurring innovation. ASTM, for example, has developed more than 12,000 standards used in fields ranging from consumer products to construction to medical services and devices. Federal, state, and local governments have incorporated by reference thousands of such standards into law, making them binding upon everyone.
Public Resource—a tiny California nonprofit founded by open records advocate Carl Malamud, whose mission is to make government more accessible—acquires and posts online a wide variety of public documents that the public should have ready access to but often does not, such as nonprofits’ tax returns, government-produced videos, and codes and standards incorporated into law by reference.
“Technical standards incorporated into law are some of the most important rules of our modern society,” said Malamud. “In a democracy, the people must have the right to read, know, and speak about the laws by which we choose to govern ourselves.”
ASTM, NFPA, and ASHRAE sued Public Resource in 2013 for copyright and trademark infringement and unfair competition.
In a decision issued Thursday, U.S. District Judge Tanya S. Chutkan agreed that Public Resource’s sharing of the vast majority of standards is a lawful fair use, although she ruled that Public Resource should not use the plaintiffs’ trademarked logos in such posts.
“In today’s world, the ability to access our laws online, without paywalls or technical barriers, is vital,” said EFF attorney Mitch Stoltz. “That’s why this fair use decision that allows Public Resource to continue its work, is so important.”
EFF and Mr. Malamud have worked together to free the law for public use for many years. EFF and its co-counsel also represented Public Resource in a separate but similar lawsuit filed in 2014 by the American Educational Research Association Inc., the American Psychological Association, and the National Council on Measurement in Education. Those groups dropped their lawsuit in October 2020.
And Public Resource also prevailed in a 2013 lawsuit that EFF filed on its behalf against a sheet metal and air conditioning contractor group that tried to force Public Resource to take down a federally mandated standard on air-duct leakage. The group backed down and agreed to publicly affirm that it will no longer claim copyright in the standards.
For the opinion:
https://eff.org/document/astm-v-publicresourceorg-summary-judgment-opinion
For background on the case:
https://www.eff.org/cases/publicresource-freeingthelaw
