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.”

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.”

After years of legal proceedings, the District Court initially ruled in favor of the plaintiffs, finding that PRO had infringed nine standards and rejecting PRO's fair use defense. However, the DC Circuit reversed this decision in 2018, leading to further examination of PRO’s fair use defense. The DC Circuit’s recent opinion ultimately affirmed that PRO’s posting of standards incorporated by reference into law constituted fair use.