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.

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?

When a technology standard is deemed "required under the law or regulation," it signifies that the standard is an integral part of legal or regulatory frameworks. In essence, compliance with the standard becomes mandatory for individuals, businesses, or entities operating within the relevant jurisdiction. This requirement may manifest in various forms, such as explicitly specifying the standard in legal texts, regulations, or ordinances. When a standard achieves this status, it blurs the line between a private, copyrighted work and a public requirement, making it more susceptible to being freely distributed and diminishing the standards organization's control over its distribution.

Conclusion

The recent ruling, where standards organizations may lose control of their copyrighted works if determined to be "required under law or regulation," poses several significant dangers. First, it potentially impacts the financial sustainability of organizations that rely on copyright license fees to fund their organization’s activities or that list access to non-public specifications as a member benefit. With free public access being a possibility, their revenue streams could be severely affected. Second, there is a risk of standards being non-uniformly applied, particularly where there is a conflict between an updated standard and the legally mandated, and publicly accessible, standard. Last, this ruling could discourage standards organizations from contributing to industry advancement, as their incentive to invest in research, development, and standardization efforts may diminish when they lose control over their creations.