Legal uncertainty surrounding standards now..
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
Despite decades of decisions, courts have not reached consensus on whether technical standards remain protected by copyright after they are incorporated into law. Various U.S. Courts of Appeals for different regional circuits reached seemingly conflicting conclusions on that question in the 1980s–2000s. Following a 2018 decision by the D.C. Circuit in American Society for Testing and Materials v. Public.Resource.Org (ASTM v. PRO I), the case law has increasingly focused on whether copyright’s fair use doctrine permits public-access groups to make IBR standards available online. Following ASTM v. PRO I and the Supreme Court’s 2020 decision on a related issue in Georgia v. Public.Resource.Org, recent cases have typically ruled against SDOs’ copyright infringement claims, mainly on fair use grounds.