Circumvention --- copyright violation inevitable.
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
When technical standards are incorporated into law, maintaining copyright protection on them can raise constitutional and other concerns about public access to the law. Under federal law, standards incorporated by reference into federal regulations must be made reasonably available to interested parties. State and local governments also often rely on IBR standards, and may have differing policies for public access. Many SDOs choose to make their standards available in some form online.
Some public-access and government-transparency organizations have disregarded SDOs’ copyright assertions and posted technical standards for free download online. These groups argue that IBR standards lose copyright protection once they are incorporated into law, or that their activities are a permitted fair use of SDOs’ copyrighted material. Several copyright disputes between SDOs and public-access organizations have led to protracted litigation in multiple forums.