Future litigation will widen the AMST precedent.
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
An additional ambiguity lies in the precise scope of the fair-use defense under the D.C. Circuit’s holding: when a standard that is incorporated by reference into law itself references another standard that is not so incorporated, would a fair-use defense protect the publishing of this second standard? While the court did say that “Public Resource may not copy unincorporated standards—or unincorporated portions of standards only partially incorporated,”35 the court also stated:
[B]ecause law is interpreted contextually, even explanatory and background material will aid in understanding and interpreting legal duties—especially when the promulgating agency references it. Courts routinely consult congressional findings, statements of purpose, and other background material enacted by Congress to decipher the meaning of ambiguous statutory provisions . . . . The introductory and background material of an incorporated standard—along with rules addressing how the standard operates in other contexts besides the one directly at issue—may prove similarly important for resolving ambiguities in the portions of standards that set forth the directly binding legal obligations.36
Under this reasoning, it seems quite plausible that fair use would protect publishing unincorporated standards that are referenced by an incorporated standard. This in turn would widen the scope of the economic disincentives discussed above.