April 21, 2022 | Techdirt
of about time department
We have written extensively about Carl Malamud, who devoted so much of his time and energy to freeing the law. Although it may his Ridiculous that the law needed to be “liberated,” Malamud noticed, before most others, different forces that sought to lock down (and often leave) the very text of the laws. And Carl rightly thinks that everyone should be able to read the law freely, otherwise how can people be expected to know what’s legal and what’s not?
For his troubles, Carl was sued in a few big (and important) cases. I’ve seen people “congratulate” Carl on being sued for his efforts to publicize the law, thinking that’s what he wants — but that’s not the case. I’ve spoken to him about it several times, and he just wants the law to be free, to not have to go through the pain and hassle of a trial. Yet when those seeking to uphold the law come after him, Carl is ready to fight back. A few years ago, he freed Georgia’s laws from a mindlessly convoluted scheme, in which the state partnered with a private company to lock down Georgia’s “official” code.
But one of Carl’s biggest projects is to get people to recognize the problems when lawmakers embed some kind of standard into law where the official standard is then locked behind (often expensive) paywalls. There are standards organizations that insist that this is the only way they can afford to keep standards current, making money selling copies. And while some may favor this argument, it is no excuse to hide the standards required by law. If lawmakers say you have to meet a standard to comply with the law, then the standards must be freely available.
A group of standards bodies sued Carl and his organization, Public.Resource.Org, and the case bounced back to court. The standards bodies were incredibly obnoxious about the whole thing, with one standards body board member bizarrely complaining in an email that people calling for the release of the law are “always calling for beer free and free sex too”. Weird to admit that you normally expect to pay for sex, but hey, everyone has their own preferences.
In 2017, a district court ruled against Carl, but thankfully the DC Circuit dismissed the case saying the lower court had to determine whether such standards incorporated by law could be published under fair use. . And as the next round heated up, one of the remaining plaintiffs agreed to drop the case, leaving only one standards body remaining: ASTM – the American Society for Testing and Materials.
Finally, a few weeks ago (I’m catching up on some stories I was planning to write), the district court ruled (mostly) in favor of Carl, but very much in favor of fair use. The parts that the court found against him dealt with a few standards that he had displayed which, for various reasons, were somewhat different from the actual standard embodied in the law. But for those that were the standards used in the law, the court ruled in favor of fair use.
Incredibly enough, the court considered each of the 217 separate standards at issue in the case and conducted a fair use analysis of each in a separate appendix to the decision. I won’t go through every fair use analysis, but it’s worth browsing through and getting an idea. The key, however, is the court’s acknowledgment that where a standard has been incorporated into statute, it should be reasonable to republish those parts of the standard that are relevant to the statute.
One interesting bit of information, however, is that throughout this very, very long legal dispute, the various standards bodies insisted that allowing Carl to do so would destroy their “business” and the ability to continue working on standards. This question arose when determining part of the fourth factor of the fair use test – which is market impact. And the court notes that standards bodies like ASTM have had plenty of time to show the wrong and failed to do so.
Plaintiffs’ evidence falls far short of demonstrating a significant likelihood of future harm. The plaintiffs assume that the defendant’s messages are “unrestricted” and “widely viewed”, and conclude that “[t]this means that its users include persons and entities who would otherwise purchase or license copies of Applicants’ Standards. » Please see.’ 2d MSJ at 27. But plaintiffs’ evidence in support of this proposition is scant: correspondence from an engineer asking defendant if the circuit decision in ASTM, I meant that defendant could “update the site”, Wise Decl. ¶ 174, Ex. 173 at PRO_00267293, and correspondence from an engineering firm telling the defendant that she heard about her organization from a “colleague” and asking the defendant how she could access messages from the defendant, id. ¶ 165, Ex. 164 at Interrog. 22. These communications – showing that two entities wanted access to the Respondent’s publications – do not explain whether the entities wanted to access the Respondent’s publications instead of buying the Plaintiffs’ standards, instead of just accessing them in the halls. read-only access for requesters. .
Plaintiffs also argue that beyond these two engineering entities, there “may also” be “other potential infringers” who could repurpose Defendant’s publications to make a profit for themselves. Please see.’ 2d MSJ at 27. This argument is even more tenuous than the previous one. Plaintiffs point to a third-party website offering users the option to pay to access ASTM standards, but they do not assert – or offer evidence to show – that the third-party’s offerings are the result of defendant’s actions, or if the third party, such as the defendant, purchased the standards from the plaintiffs and then scanned and uploaded them to its website. See id. (quoting Pls.’ 2d SMF ¶¶ 105-06 (quoting Wise Decl. ¶ 154-55)). In other words, evidence that other websites also display plaintiffs’ standards – without any causal connection to defendant’s actions – does not show “the harm caused to the market by the particular actions of the alleged infringer”, nor does it show whether the defendant’s actions enabled “widespread spread”. behavior of the kind practiced [Defendant]which “would have a substantial negative impact on the potential market for the original.” Campbell, 510 US at 590 (internal quotes omitted).
Overall, the end result here is good. The court said that when the standards are incorporated into law, Public.Resource.Org will be able to publish those parts of the standards and be protected under fair use.
Filed Under: carl malamud, copyright, fair use, incorporated by law, incorporated by reference, law lock, standards
Companies: astm, public.resource.org