Which is a prerequisite to SDO legitimacy. Court action fails.

Olia Kanevskaia Whitaker, “The Saga of Copyrighted Standards: a Perspective on Access to Regulation,” The Research Handbook on Law & Technology, 06-19-2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4473104

5. Concluding remarks

Standards as a form of expert-driven rulemaking are becoming increasingly important for the research agenda of legal scholars. Especially for those working in the field of law technologies, where increased digitalization and the rapid pace of technological development risk unclear and ambiguous rules and where the regulation tends to move from public bodies to expertdriven communities, standardization presents an interesting and much needed field of study. The phenomenon of blending the borders between private standards and laws raises important concerns of legitimacy and accountability of private regulatory regimes; when left unaddressed, these concerns pave the way to inserting commercial strategies into the law.

The issue of copyrighted standards reference in law is but one of such concerns, the one that clearly demonstrates the continued need to balance between private and public interests in the modern regulatory landscape: the private, voluntary nature of standards tilts this balance towards the former, while the role of standards as an emerging form of regulation can be no longer ignored. While the courts in the EU and US have addressed this issue on a number of occasions, they did not provide a solution: in fact, they sometimes make the complex legal puzzle behind copyrighted standards even more confusing, not least by isolating the issue of access to standards from their legal value and linking the former to the commercial nature of standards bodies. Indeed, standards bodies are not law-making institutions: the job of experts in standards committees is to make standards, while the job of judges and parliamentarians is to make laws. This does not take away the fact that when compliance with the law becomes conditional upon compliance with standards, the organizations developing these standards acquire public functions.