American Society for Testing and Materials v. Public.Resource.Org
Many agency regulations incorporate by reference standards developed by private organizations. Although these standards have the force and effect of law once they are incorporated in agency regulations, they are not printed in the Federal Register or the Code of Federal Regulations and they can often be difficult for the public to access.
In this case, the U.S. District Court for the District of Columbia held that Public.Resource.Org—an organization devoted to making laws and other government documents available to the public—violated private standards development organizations’ copyrights by making available online copies of standards that had been incorporated by reference in agency regulations.
On appeal, we filed a brief in support of Public.Resource.Org, focusing on the need for members of the public to be able to access the content of regulations affecting health, safety, and the environment, and the practical consequences of barriers to such access. Our brief was on behalf of Public Citizen, Center for Science in the Public Interest, Consumers Union, National Employment Law Project, and U.S. Public Interest Research Group.
The D.C. Circuit reversed and remanded, holding that the district court did not properly apply the Copyright Act’s “fair use” doctrine. The Court recognized that “in many cases, it might be fair use for [Public.Resource.Org] to reproduce part or all of a technical standard in order to inform the public about the law,” and remanded to the district court to determine whether Public.Resource.Org’s use of each standard at issue qualifies as fair use.