Many of the principles in the rulings also apply to the OpenAI case.
Opposition Letter 24 – an Opposition Letter to the Pro Codes Act, written and co-sponsored by 19 civil society organizations such as Center for Democracy & Technology and Public Citizen. Authors included Mallory Knodel, Chief Technology Officer at the Center for Democracy & Technology, and Aliya Bhatia, Policy Analyst at the Center for Democracy & Technology, M.A. from Columbia University.
Opposition Letter, “Re: Opposition to S. 835, the ‘‘Protecting and Enhancing Public Access to Codes Act’’ (Pro Codes Act),” 02-07-2024, https://cdt.org/wp-content/uploads/2024/02/Letter-Opposing-Pro-Codes-Act.pdf
Providing access to the law is fair use
Even if standards incorporated into the law by reference could retain copyright protection, their reproduction would be a fair use. In September 2023, the D.C. Circuit ruled that making standards incorporated by reference publicly available is a lawful fair use that serves a nonprofit, educational purpose of providing the public with a free and comprehensive repository of the law.4 The court correctly applied copyright law in determining that the substantial public benefits of free and easy access to the law, including government-mandated codes and standards, must be considered against any potential monetary losses to the copyright holders.
The court found that although Public.Resource.org has been posting incorporated standards for fifteen years, “the plaintiffs have been unable to produce any economic analysis showing that Public Resources activity has harmed any relevant market for their standards. To the contrary, ASTM’s sales have increased over that time….”5 The court explained that because governments did not update their regulations incorporating standards as frequently as SDOs updated their standards, industry players continued to license the standards, even before their adoptions as laws, to keep current.
Pro Codes assumes that the fundamental purpose of copyright law is to create monopolies for rights holders, when in fact it is to promote the dissemination of knowledge for the public good. SDOs do not need a copyright incentive; the development of standards advances the economic interests of their members. Although Pro Codes by its terms would not overturn decisions such as ASTM v. PublicResources that found that fair use permitted the third-party posting of an incorporated standard, the intent of the legislation is clearly to put the thumb on the scale against a fair use finding.