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2024 Georgetown Affirmative
Case › SDOs Advantage › 2AC---AI Add-On

Strong SDOs are key to regulating AI in a way that maximizes upsides while minimizing downsides.

Pouget 23 – Research Analyst in the Technology and International Affairs Program at the Carnegie Endowment for International Peace, M.A. in Technology Policy from the University of Cambridge, M.A. in Computer Science from the University of Oxford.

Hadrien Pouget, “What will the role of standards be in AI governance?,” Ada Lovelace Institute, 04-05-2023, https://www.adalovelaceinstitute.org/blog/role-of-standards-in-ai-governance/

A tool for regulating AI?

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

Trade collapse causes World War III – interdependence prevents major wars

Drezner, 19 -- Tufts University international politics professor

[Daniel W. Drezner, "Will Today's Global Trade Wars Lead to World War III?," Reason, May 2019, https://reason.com/2019/04/04/will-todays-global-trade-wars/, accessed 6-23-2021]

Will Today's Global Trade Wars Lead to World War III?

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

U.S. competitiveness is critical to maintaining US posturing across the globe---failure risks nuclear conflict.

Henricksen 17

Thomas H. Henricksen, emeritus senior fellow at the Hoover Institution, Post-American World Order, 23 March 2017, https://www.hoover.org/research/post-american-world-order

It is obvious that that our world has pivoted from the immediate post-Cold War order. Gone is yesterday’s unipolar dispensation with the United States sitting unchallenged atop other powers. It still possesses immense conventional and unconventional strength, but it is hardly unrivaled in various geographic corners. The big questions remain: What kind of global order is unfolding and how does America respond? President Donald J. Trump’s frequent voicing of isolationist sentiments during and after the election campaign has been blamed by some critics for this international transformation. Yet he alone is not responsible for the shift. The international order has been undergoing a transformation for years, and the signs of that change began to materialize soon after Barack Obama assumed office. Trump’s move into the White House is more a consequence of this altered global scene than its cause. Obama initiated America’s international pullback with the military withdrawal from Iraq and severe cutbacks in Afghanistan, as well as blinking when Syria crossed his red line while “leading from behind.” China’s Not So Peaceful Rise A series of dramatic events took place in response to Obama’s growing disengagement policies, as world powers noted Washington’s burgeoning inwardness. China switched from its “peaceful rise” policy to aggressively asserting and expanding its international presence. Xi Jinping, the all-powerful Chinese leader, moved to advance Beijing’s political and military suzerainty over the South China Sea (SCS) by seizing and reconstructing the disputed shoals into artificial islands with dredged ocean sands in 2014. Next, China militarized three micro-isles of the Spratly Islands (also claimed by the Philippines, Malaysia, and Vietnam) with runways, radars, and surface-to-air missile sites—actions that broke Beijing’s earlier promise not to militarize the waterway. Since then, Chinese officials have made it clear that the SCS is now their exclusive lake. Other states are expected to recognize China’s claims to most of the energy-rich waters, through which $5 trillion of trade passes annually, roughly half the world’s merchant fleet tonnage. China backs its assertions by modernizing the arsenals of its advanced warships, aircraft, missiles, and ground forces. Xi and company seem bent on restoring the ancient tribute system in which South Korea and Vietnam would become modern-day vassals, while more distant Asian states become supplicants in a Sinocentric sphere. In short, China has become a revisionist juggernaut. Along with its fortifying of these artificial islands, the world’s second largest economy and military spender has emerged as an economic, political, and ideological competitor of the United States not only in Southeast Asian maritime zones but globally. China is maneuvering to set up bases or harbors in Pakistan, Sri Lanka, and Greece—and is even extending its reach to the long U.S.-allied Portuguese Azores in the mid-Atlantic. In reaction to Beijing’s SCS actions, the Trump administration has stepped up America’s own show of force by sending warships, fighter jets, and submarines to the waters. To underline its not-too-subtle counter-signal to China, the United States also test-fired four Trident II submarine-launched ballistic missiles over 4,000 miles into the Pacific Ocean from the California coast last month, the first four-missile salvo in the post-Soviet era. The western Pacific is becoming a tinderbox. Russia’s Resurgence At the other end of the Asian continent, Russia longs to restore its lost prestige and political influence, forfeited with the breakup of the Soviet Union in 1991. Under Vladimir Putin, Russian forces backed the seizure of Crimea from Ukraine before taking over its eastern borderlands. Earlier, Moscow perfected its “frozen war” tactics against two provinces in the Republic of Georgia, thereby yanking them from Georgian sovereignty. Russia’s bullying and intimidation of its Baltic and Eastern European neighbors have become commonplace. Meanwhile, the Russian foreign minister, Sergei Lavrov, called for “a post-West world” at the Munich Security Conference in mid-February. What China and Russia have in common is that both are engaged in advancing their spheres of influence in their neighborhoods and beyond. Both also seek to crack the Western liberal world order. The United States, meanwhile, has become blasé about its former leadership position in the Western hemisphere, where China’s companies have entered into business deals, some with strategic implications. Washington, without a hint of nostalgia, treats the Monroe Doctrine as a relic of yesteryear’s Yankee imperialism in Latin America. These newly assertive major powers are not alone in shattering the post-Cold War order, which witnessed the unrivaled predominance of the United States—the “indispensable nation,” in the words of the Clinton administration. Trouble-making regional powers, such as Iran, Syria, and North Korea either spread terrorism, provoke instability, or arm themselves with longer-range missiles and nuclear weapons. While they were independent actors a few years ago, each of these pariah regimes increasingly aligns with the two chief U.S. adversaries. Iran and Syria cozy up to Russia, and North Korea depends for fuel and food on a China that hypocritically protests that it lacks influence over a nuclear-armed Pyongyang. Western Europe, once a powerful but independently minded U.S. ally, has faltered. Its slippage is evident in the refugee crisis, its sagging economies, its 20 percent youth unemployment rate, and its reluctance to fund an adequate military defense in the face of Russia’s continuing provocations, including cyber-attacks, disinformation campaigns, and fake news stories. Europe’s paltry defense reflects the continent’s lost belief in its own purpose—and even, some might say, its own civilization. Sino-Russian Partnering Little of this threatening world existed when the United States enjoyed its unipolar moment after the eclipse of its Soviet nemesis, and even after the 9/11 terrorist attacks. The emergent world, divided between the United States, China, and Russia, points to the new global order. Particularly worrisome are the warming relations between Beijing and Moscow, despite Chinese designs on Siberian lands and resources. Overcoming a centuries-old rivalry, the recent Sino-Russian rapprochement compounds Washington’s difficulties. Separating Russia from China, as Kissinger and Nixon did, would be a sensible goal for President Trump. It has always been a wise recourse to divide one’s adversaries. Besides, the United States and Russia have worked together in the past. During the World War II, they collaborated against the Third Reich. And during the Cold War, they cooperated in nuclear arms treaties and wheat deals, while mutually trying to skirt a flashpoint that could end in a nuclear war. Washington can work to steer the Kremlin, as it has done before, toward acceptable conduct with its neighbors before Russia can be more than a tactical ally in the great game with China. In the immediate future, the United States can adopt international and domestic approaches to cope with Russian and Chinese territorial expansionism. The tensions stoked by the assertive regimes in the Kremlin or Tiananmen Square could spark a political or military incident that might set off a chain reaction leading to a large-scale war. Historically, powerful rivalries nearly always lead to at least skirmishes, if not a full-blown war. The anomalous Cold War era spared the United States and Soviet Russia a direct conflict, largely from concerns that one would trigger a nuclear exchange destroying both states and much of the world. Such a repetition might reoccur in the unfolding three-cornered geopolitical world. It seems safe to acknowledge that an ascendant China and a resurgent Russia will persist in their geo-strategic ambitions. What Is To Be Done? The first marching order is to dodge any kind of perpetual war of the sort that George Orwell outlined in “1984,” which engulfed the three super states of Eastasia, Eurasia, and Oceania, and made possible the totalitarian Big Brother regime. A long-running Cold War-type confrontation would almost certainly take another form than the one that ran from 1945 until the downfall of the Soviet Union. What prescriptions can be offered in the face of the escalating competition among the three global powers? First, by staying militarily and economically strong, the United States will have the resources to deter its peers’ hawkish behavior that might otherwise trigger a major conflict. Judging by the history of the Cold War, the coming strategic chess match with Russia and China will prove tense and demanding—since all the countries boast nuclear arms and long-range ballistic missiles. Next, the United States should widen and sustain willing coalitions of partners, something at which America excels, and at which China and Russia fail conspicuously. There can be little room for error in fraught crises among nuclear-weaponized and hostile powers. Short- and long-term standoffs are likely, as they were during the Cold War. Thus, the playbook, in part, involves a waiting game in which each power looks to its rivals to suffer grievous internal problems which could entail a collapse, as happened to the Soviet Union. Some Chinese and Russian experts predict grave domestic problems for each other. They also entertain similar thoughts about the United States, which they view as terminally decadent and catastrophically polarized over politics, ethnicity, and the future direction of the country. So, the brewing three-way struggle also involves a systemic contest, which will test the competitors’ economic and political institutions. At this juncture, the world is entering a standoff among the three great and several not-so-great powers. Averting war, while defending our interests, will prove a challenge, calling for deft policy, political endurance, and economic growth, as well as sufficient military force to keep at bay aggressive states or prevail over them if ever a war breaks out.

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

Independently, declining SDOs will crush U.S. competitiveness and international trade. Only expanding copyright solves.

NFPA 24 – a U.S.-based international nonprofit organization.

National Fire Protection Association, “Benefits of Standards Development Organizations,” NFPA, 04-18-2024, https://www.nfpa.org/for-professionals/codes-and-standards/standards-development/the-value-of-standards-development-organizations/benefits-of-sdos#

*Date obtained with carbon dating the internet

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

Extinction.

Wansley, Climenko Fellow and Lecturer on Law – Harvard Law School, ‘16

(Matthew T., “Regulation of Emerging Risks,” 69 Vand. L. Rev. 401)

In addition to the moral case for the Precautionary model, some scholars argue that there are empirical reasons to take a precautionary approach. They point to the complexity of natural systems and the inherent uncertainty of scientific predictions about how the natural environment will respond to changes.80 Some risks, they contend, involve the possibility of irreversible damage.81 Other risks are catastrophic, on such a scale that any non-precautionary approach would be disastrous.8 2 With the diversity of arguments supporting the Precautionary model, it is unsurprising that there is no consensus on how to operationalize it. What action does the Precautionary Principle require when a technology, like nuclear power, both causes and mitigates risks to the environment or when a new technology, like genetically modified foods, has the potential to both benefit and harm human health? Critics of the Precautionary Principle argue that the Principle is indeterminate in these risk-risk tradeoff scenarios, in which regulators cannot simply choose the course of action that avoids all health or environmental costs. 83

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

Which is key to effective emerging tech regulations.

Hagemann et al. 18 – Senior Fellow in Regulatory Governance of Emerging Technologies, Niskanen Center

Ryan Hagemann, senior fellow in regulatory governance of emerging technologies at the Niskanen Center, Jennifer Skees, legal research associate in the technology policy program at the Mercatus Center at George Mason University, and Adam Thierer, senior research fellow at the Mercatus Center at George Mason University, former President of the Progress & Freedom Foundation, Director of Telecom Studies at the Cato Institute, and Fellow in Economic Policy at the Heritage Foundation, Soft Law for Hard Problems: The Governance of Emerging Technologies in an Uncertain Future, 2018, Forthcoming – Colorado Technology Law Journal,

Regulatory certainty is key for commercial deployment of any new technology. As Robert Hoerr notes: "uncertainty in the regulatory environment has the potential to increase both the costs and time needed for development, thereby making the commercialization process unpredictable and, in the worst case, incapable of being financed."45 Of course, not all certainty is created equal. A rule that significantly constrains or preemptively prohibits the deployment of a new technology establishes certainty, but may very often fail to account for beneficial trade-offs. By contrast, given the existence of a regulatory apparatus intended to serve the public interest, a total lack of rules governing a new technology doesn't create any certainty for innovators and entrepreneurs. 46 [Footnote 46] This is in part because industry actors recognize the ephemeral nature of an unregulated market given the size and scope of the authorities granted to the breadth of modern federal regulatory agencies. Regulations inevitably materialize in some form, sometimes driven by exogenous pressures on regulators (from Congress directly, or indirectly via shifts in public opinion or advocacy groups), other times by a variety of industry incentives that clamor for navigable rules (whether to establish the certainty necessary for commercial operations or to crowd out future entrants). [End Footnote] Pervading uncertainty is further compounded by the nature of many modern digital technologies potentially falling under the authority of any number of regulatory agencies. Regulatory uncertainty for such technologies can have a severe impact on commercial investment and development, given that more than one agency could conceivably claim authority over a potential technology. This problem of "two parents, two [*246] rules" 47Link to the text of the note is further exacerbated by competing scopes of authority, as well as different institutional cultures that are more or less averse to regulating high-risk innovations. If regulators express an affirmative desire to regulate a particular technology, they are inevitably confronted with the political realities of overlapping jurisdictions, further complicating the already difficult task of governance and oversight. An additional barrier to regulatory efficiency is the lack of empirical frameworks for appropriately assessing the costs and benefits of a particular course of action. In theory, evidentiary-based justifications should serve as the rationale for regulatory action, focusing on known harms to consumers or public safety. In practice, this is not always the case, and despite possessing broad delegated authorities - such as the Federal Trade Commission's ("FTC") Section 5 authority over consumer protection standards 48Link to the text of the note and the FDA's authority to define "safe and effective" drugs and biologics 49Link to the text of the note - many federal agencies fail to narrowly target their enforcement efforts based on clear taxonomies of harm. While a lack of clear rules can contribute to market uncertainty, so can judicial review of any rules that are created. A number of judicial deference standards touch on the statutory authority of agency action and resultant promulgated regulations, some of which may end up being implicated in future court challenges to soft law governance. The Chevron standard is among the more deferential of these standards because, for the most part, it defers to agencies on pure questions of statutory interpretation, provided agency interpretation is a reasonable and permissible construction of the statute. 50Link to the text of the note Whether the congressional delegation of authority is explicit or implicit slightly changes the standards of evaluation, but by and large the courts have tended to defer to an agency's interpretation of an ambiguous statute in these contexts. 51Link to the text of the note [*247] In the context of soft law, Skidmore v. Swift & Co. 52Link to the text of the note is perhaps the most relevant judicial deference standard and has been held to apply in situations that specifically implicate soft criteria. 53Link to the text of the note Skidmore applies when an "agency is applying special expertise and using its understanding of the facts to carry out congressional purposes," 54Link to the text of the note and affords deference in proportion to the agency's power to persuade. 55Link to the text of the note Offering recommendations for improving the consistency of applying deference, William Eskridge and Lauren Baer suggest that: Skidmore should be the default regime under which the Court considers agency inputs, with those inputs being especially valued when (a) the agency has expertise on issues as to which judges do not; (b) the agency has rendered a reasoned judgment after input from the public; and/or (c) there has been public or private reliance on agency rules or guidances. 56Link to the text of the note Such an approach has important implications for the future of soft law, as any legal challenge to soft criteria in general, or multistakeholder proceedings in particular, would likely fall under the deference purview of a Skidmore analysis. As of this writing, however, no soft criteria or soft law activity focusing on emerging technology regulations has been challenged in the courts, which makes the task of evaluating how deference may apply in such a circumstance difficult to portend. Such an analysis would involve a dedicated law review article all to itself. 57Link to the text of the note For the purposes here, it will suffice to note that the legal uncertainty surrounding the use of soft criteria as governance mechanisms casts a long and dark shadow over the long-term viability of a soft law regime. Because of the consensus-based nature of many soft criteria delivered through government-convened multistakeholder processes, the likelihood of a serious legal challenge diminishes in proportion to the level of openness and transparency afforded to the process, as well as the involvement of more stakeholders with a vested interest in the outcome of such a proceeding. [*248] The likelihood of willing stakeholder engagement is also a function of the level of trust and legitimacy such actors are willing to grant to the proceeding. These are the topics of the next section.

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

That ends the administrative state.

Burroughs 24 – J.D. Candidate at the University of Chicago School of Law.

John Burroughs, “Incorporated Standards and Fair Use: Remaining Uncertainties Set the Stage for Further Litigation,” The University of Chicago Business Law Review, https://businesslawreview.uchicago.edu/online-archive/incorporated-standards-and-fair-use-remaining-uncertainties-set-stage-further

Ordinarily, compliance with the standards developed by SDOs is voluntary,4 but governments sometimes incorporate them into law by reference, thus giving privately developed standards legal force.5 Incorporation by reference occurs when a rule promulgated by a government agency references, but does not reprint, other material as containing the requirements for regulatory compliance.6 This benefits both government regulators, who can adopt efficient industry standards without having to devote public resources to developing their own, as well as businesses, who no longer have to worry about complying with two different standards in the form of industry standards and government regulations.7 In fact, “agency personnel who were interviewed unanimously reported that, without the work of private standard-development organizations (SDOs), agencies would not have the time, resources, or technical expertise to fulfill their regulatory missions.”8 However, SDOs have copyrights in their technical standards—as the standards are original works of authorship—which SDOs traditionally retain even after incorporation occurs, leading to potentially substantial constitutional issues concerning public access to the law.9

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

It will lead to a collapse of the SDO market, which ruins the ability of the government to use standards.

Burroughs 24 – J.D. Candidate at the University of Chicago School of Law.

John Burroughs, “Incorporated Standards and Fair Use: Remaining Uncertainties Set the Stage for Further Litigation,” The University of Chicago Business Law Review, https://businesslawreview.uchicago.edu/online-archive/incorporated-standards-and-fair-use-remaining-uncertainties-set-stage-further

Such a result seems unlikely if the first three factors still weighed strongly in favor of fair use, but this would mean that SDOs that substantially depend on revenue from sales of their standards would likely be driven out of the market. This would eventually result in economic harm to businesses and consumers alike—as the standards for the industries served by those SDOs would become progressively more out of date without an SDO to continuously revise them. Moreover, these potential losses could even discourage SDOs that don’t substantially depend on revenue from sales of their standards from investing additional resources in the development of new standards or the continuous updating of old ones. SDOs may also seek to avoid losses by lobbying for governments to not incorporate—or even unincorporate—their standards, which would deprive businesses and government regulators of the efficiencies that result from incorporation by reference. Finally, the potential loss of revenue from sales of standards would deter new SDOs (who would not yet be established enough to “profit though [sic] trainings [or] membership fees”34 ) from emerging in new and developing industries, precisely where industry standards could have the greatest positive economic impact.

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

Standards that are used by the government are uniquely important to the health of SDOs. They’re where a majority of their revenue comes from.

Bremer 19 – Professor of Law at the University of Notre Dame, J.D. from New York University.

Emily S. Bremer, “Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference,” Notre Dame Law School Scholarship, https://scholarship.law.nd.edu/law_faculty_scholarship/1406/

A final point to note about funding is that, as a practical matter, few standards make money. SSOs typically have a small number of standards that are widely used and generate most of their revenue. These successful standards thus cover the SSOs' overall costs, including the costs to develop more minor standards that are needed but could not generate sufficient revenue to support themselves. 76 The most successful standards are also the ones that federal agencies most often need to incorporate by reference. These are the standards most likely to have acquired de facto authoritative status in an industry due to their usefulness, proven quality, and widespread acceptance. 77 Thus, although a small percentage of all standards are used in regulation, the standards incorporated are often the ones that generate the bulk of the revenue necessary to fund standards development more broadly. As a consequence, eliminating the SSOs' ability to rely on the revenue that these most prominent standards generate would likely have significant ripple effects throughout the entire standardization system. 78

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

Specifically, the court determined that a technology standard that is deemed to be “required under the law or regulation" can become public access, which not only crushes SDOs BUT also undermines the standards themselves by preventing them from being applied uniformly.

Brown et al. 23 – Intellectual Property Attorney and Corporate Partner at Seyfarth, J.D. from the University of California, Berkeley.

Arnold E. Brown, II, Kenneth Wilton, Intellectual Property Attorney at Seyfarth, J.D. from the University of California College of the Law, Joseph Myers, Director of Innovation for the Intellectual Property Practice Group at Seyfarth, J.D. from Vanderbilt University, “The District of Columbia Court of Appeals’ Recent Significant Legal Precedent Carries Implications for Standards Organizations,” Seyfarth, 12-19-2023, https://www.seyfarth.com/news-insights/the-district-of-columbia-court-of-appeals-recent-significant-legal-precedent-carries-implications-for-standards-organizations.html

3. What does it mean for a Technology Standard to be required under the law or regulation?

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

And it’s magnified by the fact that it will be broadened by future litigation, further undermining the protections and rights of SDOs.

Griffin and Saunders 24 – Senior Vice President and General Counsel at the American National Standards Institute, J.D. from Albany Law School; Senior Vice President of Public Policy at the American National Standards Institute.

Patricia A. Griffin and Maury Saunders, “ANSI Publishes Action Brief on IBR Landscape for SDOs,” American National Standards Institute, 05-09-2024, https://www.ansi.org/standards-news/all-news/2024/05/5-9-24-ansi-publishes-action-brief-on-ibr-landscape-for-sdos

Why Is Copyright Protection Essential to Private Standards Development?

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

This decision is devastating for the future of SDOs. It undermines their profitability, competitiveness, and innovativeness.

Brown et al. 23 – Intellectual Property Attorney and Corporate Partner at Seyfarth, J.D. from the University of California, Berkeley.

Arnold E. Brown, II, Kenneth Wilton, Intellectual Property Attorney at Seyfarth, J.D. from the University of California College of the Law, Joseph Myers, Director of Innovation for the Intellectual Property Practice Group at Seyfarth, J.D. from Vanderbilt University, “The District of Columbia Court of Appeals’ Recent Significant Legal Precedent Carries Implications for Standards Organizations,” Seyfarth, 12-19-2023, https://www.seyfarth.com/news-insights/the-district-of-columbia-court-of-appeals-recent-significant-legal-precedent-carries-implications-for-standards-organizations.html

The Court concluded that when technical standards are incorporated into law, their status effectively shifts from private to public. For standards organizations, this poses several implications:

2024 Georgetown Affirmative
Case › SDOs Advantage › 1AC---SDOs Advantage

Technical standards created by Standards Development Organizations (SDOs) can receive copyright protections when employed for private organizations, but in American Society for Testing and Materials v. Public.Resource.Org (ASTM), the D.C. Circuit Court overturned the district court’s original decision and found that this protection does not exist when they are incorporated into public law by the government based on them being “fair use.”

Brown et al. 23 – Intellectual Property Attorney and Corporate Partner at Seyfarth, J.D. from the University of California, Berkeley.

Arnold E. Brown, II, Kenneth Wilton, Intellectual Property Attorney at Seyfarth, J.D. from the University of California College of the Law, Joseph Myers, Director of Innovation for the Intellectual Property Practice Group at Seyfarth, J.D. from Vanderbilt University, “The District of Columbia Court of Appeals’ Recent Significant Legal Precedent Carries Implications for Standards Organizations,” Seyfarth, 12-19-2023, https://www.seyfarth.com/news-insights/the-district-of-columbia-court-of-appeals-recent-significant-legal-precedent-carries-implications-for-standards-organizations.html

In American Society for Testing and Materials (ASTM), et al. v. Public.Resource.Org, Inc. (PRO), 82 F.4th 1262 (D.C. Cir. 2023), the plaintiffs, ASTM, National Fire Protection Association (NFPA), and American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), are standards development organizations that create and own copyrights for technical standards that establish best practices for various industries and products, including fire safety, electrical systems, and HVAC technologies. These standards often become legally binding when incorporated by reference into federal regulations. However, they are not always easily accessible by the public, as they are not reproduced in the Code of Federal Regulations (CFR). Defendant PRO, a nonprofit organization with a mission to make government records and legal materials more accessible to the public, posted copies of hundreds of these regulation-incorporated standards on its website, allowing free public access. This action led to the plaintiffs suing PRO for copyright infringement in 2013. PRO’s primary defense was based on “fair use,” which allows for unauthorized copying when the four factors codified at 17 U.S.C. § 107 weigh in favor of finding the defendant’s copying to be “fair.”

2024 Georgetown Affirmative
Case › Recommended Congress 1AC › 1AC---Standards Leadership Advantage

Standards leadership must come from SDOs. Otherwise, the U.S. and EU governments will intervene, which ruins their perceived independence --- that undermines the liberal international order.

Kerry 24 – Ann R. and Andrew H. Tisch Distinguished Visiting Fellow for Governance Studies in the Center for Technology Innovation at the Brookings Institute, former Acting Secretary for the U.S. Department of Commerce.

Cameron F. Kerry, “Small yards, big tents: How to build cooperation on critical international standards,” Brookings Institute, 03-11-2024, https://www.brookings.edu/articles/small-yards-big-tents-how-to-build-cooperation-on-critical-international-standards/

Heightened government attention does not mean that improving standards development systems to meet challenges of emerging technologies should be done primarily by governments. It is incumbent on the U.S. and EU in particular to avoid a national standards development arms race because they are leaders in promoting consensus, research-driven standards, and in upholding a rules-based international order. SDOs, the private sector, civil society, and academia need not only to participate, but to take the lead.

2024 Georgetown Affirmative
Case › Recommended Congress 1AC › 1AC---Standards Leadership Advantage

Declining U.S. tech leadership undermines strategic stability --- nuclear war.

Kroenig and Gopalaswamy 18 – Associate Professor of Government and Foreign Service at Georgetown University, Deputy Director for Strategy in the Scowcroft Center for Strategy and Security at the Atlantic Council, PhD and M.A. in Political Science from the University of California, Berkeley; Director of the South Asia Center at the Atlantic Council, PhD in Mechanical Engineering from Trinity College, Dublin.

Matthew Kroenig and Bharath Gopalaswamy, “Will disruptive technology cause nuclear war?,” Bulletin of the Atomic Scientists, 11-12-2018, https://thebulletin.org/2018/11/will-disruptive-technology-cause-nuclear-war/

International politics often presents states with conflicts that they can settle through peaceful bargaining, but when bargaining breaks down, war results. Shifts in the balance of power are problematic because they undermine effective bargaining. After all, why agree to a deal today if your bargaining position will be stronger tomorrow? And, a clear understanding of the military balance of power can contribute to peace. (Why start a war you are likely to lose?) But shifts in the balance of power muddy understandings of which states have the advantage.

2024 Georgetown Affirmative
Case › Recommended Congress 1AC › 1AC---Standards Leadership Advantage

Which is a prerequisite to SDO legitimacy. Court action fails.

Whitaker 23 – Postdoctoral Resaercher at the Center for IT and IP Law of the KU Leuven, PhD in Law and an LL.M in International and European Public Law from Tilburg University.

Olia Kanevskaia Whitaker, “The Saga of Copyrighted Standards: a Perspective on Access to Regulation,” The Research Handbook on Law & Technology, 06-19-2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4473104

5. Concluding remarks

2024 Georgetown Affirmative
Case › Recommended Congress 1AC › 1AC---Standards Leadership Advantage

Only the PCA resolves confusion created by competing court decisions.

Hickey 23 – Legislative Attorney at the Congressional Research Service, former Fellow at the University of California, Berkeley, J.D. from New York University School of Law.

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

Given that the Copyright Act does not directly speak to the issue, the scope of the copyright in IBR standards has largely been developed by the courts. Another issue that Congress may consider, then, is whether it wishes to permit continued judicial development in this area, or to intervene through legislation such as the Pro Codes Act. As different regional federal appeals courts have reached different conclusions, legislation may have the benefit of promoting national uniformity on the issue. Alternatively, one may argue courts are better positioned to account for differences in IBR standards and uses of them through case-by-case application of doctrines such as fair use.

2024 Georgetown Affirmative
Case › Recommended Congress 1AC › 1AC---Standards Leadership Advantage

The Pro Codes Act (PCA) is goldilocks. It guarantees copyright protections while increasing transparency.

NFPA 24 – a U.S.-based international nonprofit organization.

National Fire Protection Association, “NFPA Praises Overwhelming Bipartisan Passage of Pro Codes Act,” ASPE Pipeline, 05-06-2024, https://aspe.org/pipeline/nfpa-praises-overwhelming-bipartisan-passage-of-pro-codes-act/

Rigorous voluntary consensus-based standards, developed by nonprofit standards development organizations (SDOs) like NFPA, are critical to the safety of Americans and people around the world. This standards development system has worked effectively and efficiently for more than 125 years.

2024 Georgetown Affirmative
Case › Recommended Congress 1AC › 1AC---Standards Leadership Advantage

That must be done through clear and consistent copyright protections. They’re a prerequisite to outcompeting China for influence in standards innovation and international SDOs, which will determine who wins the competition for emerging technology leadership.

Shivakumar 22 – Director and Senior Fellow of the Renewing American Innovation Project at the Center for Strategic and International Studies, former Director of the Innovation Policy Forum at the National Academies of Sciences, PhD in Economics from George Mason University.

Sujai Shivakumar, “Securing Global Standards for Innovation and Growth,” Center for Strategic and International Studies, 01-27-2022, https://www.csis.org/analysis/securing-global-standards-innovation-and-growth

China’s Growing Influence in Technology Standards

2024 Georgetown Affirmative
Case › Recommended Congress 1AC › 1AC---Standards Leadership Advantage

BUT profitability must be balanced with transparency to gain leadership. Increasing transparency is key to international legitimacy, but maintaining the current revenue structure is vital for the survival of the SDO industry.

Kerry 24 – Ann R. and Andrew H. Tisch Distinguished Visiting Fellow for Governance Studies in the Center for Technology Innovation at the Brookings Institute, former Acting Secretary for the U.S. Department of Commerce.

Cameron F. Kerry, “Small yards, big tents: How to build cooperation on critical international standards,” Brookings Institute, 03-11-2024, https://www.brookings.edu/articles/small-yards-big-tents-how-to-build-cooperation-on-critical-international-standards/

Ultimately, it will fall on standards development organizations to do the most to broaden participation. The increased importance and visibility of standards places SDOs at a watershed—especially with respect to AI. No technology has ever achieved the level of adoption and awareness generative AI has over the past 18 months and, as the 2023 pace of initiatives on AI policy demonstrates, demand for technologies that are safe and trustworthy is widely felt. This puts a spotlight on major SDOs that deal with information technology.