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

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:

Financial Impact: Standards organizations that rely on copyright licensing fees to fund their organization’s activities, or whose non-public standards, and access thereto, are the major driving force behind membership may face a reduction in revenue if circumstances result in free public access to their specifications.

Updates and Timeliness: When public-access versions of standards are not published in coordination with the standards organization, such versions of standards could be out of sync with a standards organization’s most current non-public standards, or errata. This could influence the adoption, implementation, relevance, and reliability of standards.

Incentives for Contribution: The ruling may reduce incentives for standards organizations and the participants in standards organizations to invest in the development of standards and overall standardization efforts, as they could lose control over their creations when deemed “required under law or regulation.”

The ASTM opinion raises the specter that when standards are incorporated into law, the risk of them being freely accessible to the public increases significantly. Standards organizations should carefully consider the legal implications and potential strategies to adapt to this changing landscape.