SDOs Aff - Georgetown 2024

SDOs Aff
File Notes
General File Explanation
“Although it arises in a specialized context, debates over copyright in IBR standards ultimately involve the core policy tradeoff for copyright and other forms of intellectual property: balancing incentives for creation versus access to (and the cost of) creative works.”
This file and the accompanying case neg present the series of controversies surrounding extending copyright protections to standards that are created by Standards Development Organizations (SDOs)/Standard Setting Organizations (SSOs) when the standards that they create are incorporated by the government, most frequently the federal government, into binding law. Although SDOs definitively receive copyright protection when they create standards for private use, the most recent judicial precedent from the D.C. circuit court has found that they lose this protection when their standards are utilized by the government. According to SDOs and their supporters, this decision will be devastating for their future as it will undermine their profitability and incentive to invest in new standards. Conversely, according to supporters of the decision, it is vital for public access to the law and upholding the constitution.
This file remains intentionally focused and balanced enough to remains intentionally focused and balanced enough to facilitate in-depth debates about many complicated subjects. There are more cards on most issues than students could realistically read in a round. Choosing which card(s) to read on a particular issue is part of the challenge, but the file is organized so that students can “plug and play” when necessary.
Copyright, and IP law more generally is very complicated, so students should intentionally focus on understanding the specific and nuanced issues at play here. This is also why arguments like the Fair Use DA are included, as they are central questions of copyright law. Students that do not take the time to fully understand the necessary background knowledge will likely be at a significant disadvantage to their peers.
General Background
Standards
The formal definition of a standard is introduced by the International Organization for Standardization (ISO) – the global standardization authority producing standards that are widely applicable and recognized by most States. Following the ISO’s Guide 2:2004, standards are “[…] documents, established by consensus and approved by a recognized body, that provide for common and repeated use, rules, guidelines or characteristics for activities or their results, aimed at the achievement of the optimum degree of order in a given context.” In other words, standards are “formalized sets of rules with a high degree of specificity” (Djelic & den Hond, 2013) and that exist in almost each and every sector, ranging from environmental protection to clothing measurement to safety requirements of heavy machinery to technological interoperability between devices and networks.
Federal Incorporation
Under federal standards law and policy, agencies are generally required to use available privately developed standards in lieu of developing "government-unique" standards to fulfill standardization needs in regulation and procurement. This policy is embodied in the National Technology Transfer and Advancement Act of 1995 (NTTAA) and 0MB Circular A- 1194. The statute states that "all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments," making exception only for situations in which using the available standard would be "inconsistent with applicable law or otherwise impractical. In addition, the requirement to use private standards extends only to voluntary consensus standards, which are defined according to the process used in their development. OMB Circular A-i 19 broadly defines the attributes of the voluntary consensus process: (1) openness, (2) balance of interest, (3) due process, (4) an appeals process, and (5) consensus, which is defined as general agreement but not necessarily unanimity.3
Federal standards law and policy offers a number of benefits. It saves substantial time and money that federal agencies would otherwise have to invest to develop standards themselves. It gives agencies access to technical and engineering expertise that exists outside of the government. And it promotes uniformity in the standards that are used across the government and in the private sector to address the same subject matter. Most importantly, federal standards law and policy recognizes the reality that the United States has a vast, predominately private standardization system. This system emerged in the late 1800s and as it has grown and become more sophisticated a strong public-private partnership in standards has emerged. In the 1960s and 1970s, federal agency use of private standards in regulation became commonplace.
Relevant Parties
No matter how the courts or Congress address the ambiguities surrounding copyrights in incorporated standards, the solutions will have to carefully balance the interests of four different stakeholders: SDOs, businesses, government regulators, and the public. Not allowing public access to incorporated standards goes against the public’s preeminent interest in knowing the law, as the D.C. Circuit correctly noted. However, the post-decision regime risks discouraging incorporation by reference, which harms the interests of both businesses, who must now comply with two differing standards, and government regulators, who must expend public resources creating their own standards. At its extreme, the regime could result in standards being updated far less frequently, or for some industries not even being developed at all. This not only goes against the interests of SDOs, businesses, and regulators, but also those of the public, which would suffer from lower product quality and safety. Finding the proper balance between all four stakeholders’ interests is therefore crucial to allow public access to the law while also minimizing the negative economic consequences that may ensue from the weakening of copyright protections in incorporated standards.
User’s Guide — 1AC
To construct a 1AC, students should first decide which version they are using: Courts or Congress. For the first several rounds of debates, students should be restricted to the courts version, as there is more options for the negative there. If reading the courts version, the advantages are the SDOs Advantage and the Takings Clause Advantage. If reading the congress version, the advantages are the SDOs advantage and the Leadership Advantage.
Once they have chosen their version, students should pick a plan text depending on how much information they want to specify in the plan.
Things You’ll Need To Know
Essential Background Readings
https://sgp.fas.org/crs/misc/R47656.pdf
https://en.wikipedia.org/wiki/Standards_organization
https://www.abajournal.com/web/article/dc-circuit-decision-is-a-victory-for-public-access-group-that-posts-technical-standards-online
https://www.thebrandprotectionblog.com/2017/02/copyrightability-of-private-standards-in-federal-regulations/
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4473104
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2418&context=law_faculty_scholarship
https://businesslawreview.uchicago.edu/online-archive/incorporated-standards-and-fair-use-remaining-uncertainties-set-stage-further
https://share.ansi.org/Shared%20Documents/News%20and%20Publications/Links%20Within%20Stories/SDO%20Action%20Brief.pdf
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2665174
Essential Concepts to Understand
Copyright
Fair Use
SDOs/SSOs
Standards
Incorporation by Reference
Pro Codes Act
Takings Clause/Regulatory Takings
American Society for Testing and Materials v. Public.Resource.Org
OpenAI vs. New York Times
Case
Recommended Courts 1AC
1AC---SDOs Advantage
Advantage One is SDOs.
Technical standards created by Standards Development Organizations (SDOs) can receive copyright protections when employed for private organizations, but in American Society for Testing and Materials v. Public.Resource.Org (ASTM), the D.C. Circuit Court overturned the district court’s original decision and found that this protection does not exist when they are incorporated into public law by the government based on them being “fair use.”
Brown et al. 23 – Intellectual Property Attorney and Corporate Partner at Seyfarth, J.D. from the University of California, Berkeley.
Arnold E. Brown, II, Kenneth Wilton, Intellectual Property Attorney at Seyfarth, J.D. from the University of California College of the Law, Joseph Myers, Director of Innovation for the Intellectual Property Practice Group at Seyfarth, J.D. from Vanderbilt University, “The District of Columbia Court of Appeals’ Recent Significant Legal Precedent Carries Implications for Standards Organizations,” Seyfarth, 12-19-2023, https://www.seyfarth.com/news-insights/the-district-of-columbia-court-of-appeals-recent-significant-legal-precedent-carries-implications-for-standards-organizations.html
In American Society for Testing and Materials (ASTM), et al. v. Public.Resource.Org, Inc. (PRO), 82 F.4th 1262 (D.C. Cir. 2023), the plaintiffs, ASTM, National Fire Protection Association (NFPA), and American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), are standards development organizations that create and own copyrights for technical standards that establish best practices for various industries and products, including fire safety, electrical systems, and HVAC technologies. These standards often become legally binding when incorporated by reference into federal regulations. However, they are not always easily accessible by the public, as they are not reproduced in the Code of Federal Regulations (CFR). Defendant PRO, a nonprofit organization with a mission to make government records and legal materials more accessible to the public, posted copies of hundreds of these regulation-incorporated standards on its website, allowing free public access. This action led to the plaintiffs suing PRO for copyright infringement in 2013. PRO’s primary defense was based on “fair use,” which allows for unauthorized copying when the four factors codified at 17 U.S.C. § 107 weigh in favor of finding the defendant’s copying to be “fair.”
After years of legal proceedings, the District Court initially ruled in favor of the plaintiffs, finding that PRO had infringed nine standards and rejecting PRO's fair use defense. However, the DC Circuit reversed this decision in 2018, leading to further examination of PRO’s fair use defense. The DC Circuit’s recent opinion ultimately affirmed that PRO’s posting of standards incorporated by reference into law constituted fair use.
This decision is devastating for the future of SDOs. It undermines their profitability, competitiveness, and innovativeness.
Brown et al. 23 – Intellectual Property Attorney and Corporate Partner at Seyfarth, J.D. from the University of California, Berkeley.
Arnold E. Brown, II, Kenneth Wilton, Intellectual Property Attorney at Seyfarth, J.D. from the University of California College of the Law, Joseph Myers, Director of Innovation for the Intellectual Property Practice Group at Seyfarth, J.D. from Vanderbilt University, “The District of Columbia Court of Appeals’ Recent Significant Legal Precedent Carries Implications for Standards Organizations,” Seyfarth, 12-19-2023, https://www.seyfarth.com/news-insights/the-district-of-columbia-court-of-appeals-recent-significant-legal-precedent-carries-implications-for-standards-organizations.html
The Court concluded that when technical standards are incorporated into law, their status effectively shifts from private to public. For standards organizations, this poses several implications:
Financial Impact: Standards organizations that rely on copyright licensing fees to fund their organization’s activities, or whose non-public standards, and access thereto, are the major driving force behind membership may face a reduction in revenue if circumstances result in free public access to their specifications.
Updates and Timeliness: When public-access versions of standards are not published in coordination with the standards organization, such versions of standards could be out of sync with a standards organization’s most current non-public standards, or errata. This could influence the adoption, implementation, relevance, and reliability of standards.
Incentives for Contribution: The ruling may reduce incentives for standards organizations and the participants in standards organizations to invest in the development of standards and overall standardization efforts, as they could lose control over their creations when deemed “required under law or regulation.”
The ASTM opinion raises the specter that when standards are incorporated into law, the risk of them being freely accessible to the public increases significantly. Standards organizations should carefully consider the legal implications and potential strategies to adapt to this changing landscape.
And it’s magnified by the fact that it will be broadened by future litigation, further undermining the protections and rights of SDOs.
Griffin and Saunders 24 – Senior Vice President and General Counsel at the American National Standards Institute, J.D. from Albany Law School; Senior Vice President of Public Policy at the American National Standards Institute.
Patricia A. Griffin and Maury Saunders, “ANSI Publishes Action Brief on IBR Landscape for SDOs,” American National Standards Institute, 05-09-2024, https://www.ansi.org/standards-news/all-news/2024/05/5-9-24-ansi-publishes-action-brief-on-ibr-landscape-for-sdos
Why Is Copyright Protection Essential to Private Standards Development?
SDOs make their works available for use by governmental entities in setting safety and other regulations when those entities deem it in the public interest.
SDOs do so with the understanding that these works will retain their copyright protection.
This provides SDOs the ability to generate revenue from the sale and licensing of the works that they create, which, in turn, enables SDOs to sustain their ongoing standards creation, refinement, and updating.
What Are the Current Trends in IBR?
Notwithstanding federal policy, case law is trending towards limiting copyright protection in IBR’d standards.
What’s Changed?... Adoption of a Fair Use Analysis
As noted, fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder.
This follows a global trend favoring increased access to material free and online.
For example, a recent federal appeals case in a lawsuit brought by ASTM and others held: The non-commercial publication of standards incorporated by reference into law is fair use and not copyright infringement. There are several additional U.S.-based cases that may follow down this same track.
Where Will These Trends Lead?
Trends could continue with fair use dominating IBR analysis in the courts.
The fair use analysis might be extended beyond the ASTM case to include commercial exploitation of IBR’d standards.
The fair use defense may also be extended to the situation where a standard that is incorporated by reference into law itself references another standard that is not so incorporated.
Expansion of fair use analysis could lead to additional exceptions to assertions of copyright in all standards.
If SDOs cannot fund standards development as a result of loss of copyright in IBR’d standards, standards may not be updated as frequently, or for some industries not at all.
Specifically, the court determined that a technology standard that is deemed to be “required under the law or regulation" can become public access, which not only crushes SDOs BUT also undermines the standards themselves by preventing them from being applied uniformly.
Brown et al. 23 – Intellectual Property Attorney and Corporate Partner at Seyfarth, J.D. from the University of California, Berkeley.
Arnold E. Brown, II, Kenneth Wilton, Intellectual Property Attorney at Seyfarth, J.D. from the University of California College of the Law, Joseph Myers, Director of Innovation for the Intellectual Property Practice Group at Seyfarth, J.D. from Vanderbilt University, “The District of Columbia Court of Appeals’ Recent Significant Legal Precedent Carries Implications for Standards Organizations,” Seyfarth, 12-19-2023, https://www.seyfarth.com/news-insights/the-district-of-columbia-court-of-appeals-recent-significant-legal-precedent-carries-implications-for-standards-organizations.html
3. What does it mean for a Technology Standard to be required under the law or regulation?
When a technology standard is deemed "required under the law or regulation," it signifies that the standard is an integral part of legal or regulatory frameworks. In essence, compliance with the standard becomes mandatory for individuals, businesses, or entities operating within the relevant jurisdiction. This requirement may manifest in various forms, such as explicitly specifying the standard in legal texts, regulations, or ordinances. When a standard achieves this status, it blurs the line between a private, copyrighted work and a public requirement, making it more susceptible to being freely distributed and diminishing the standards organization's control over its distribution.
Conclusion
The recent ruling, where standards organizations may lose control of their copyrighted works if determined to be "required under law or regulation," poses several significant dangers. First, it potentially impacts the financial sustainability of organizations that rely on copyright license fees to fund their organization’s activities or that list access to non-public specifications as a member benefit. With free public access being a possibility, their revenue streams could be severely affected. Second, there is a risk of standards being non-uniformly applied, particularly where there is a conflict between an updated standard and the legally mandated, and publicly accessible, standard. Last, this ruling could discourage standards organizations from contributing to industry advancement, as their incentive to invest in research, development, and standardization efforts may diminish when they lose control over their creations.
Standards that are used by the government are uniquely important to the health of SDOs. They’re where a majority of their revenue comes from.
Bremer 19 – Professor of Law at the University of Notre Dame, J.D. from New York University.
Emily S. Bremer, “Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference,” Notre Dame Law School Scholarship, https://scholarship.law.nd.edu/law_faculty_scholarship/1406/
A final point to note about funding is that, as a practical matter, few standards make money. SSOs typically have a small number of standards that are widely used and generate most of their revenue. These successful standards thus cover the SSOs' overall costs, including the costs to develop more minor standards that are needed but could not generate sufficient revenue to support themselves. 76 The most successful standards are also the ones that federal agencies most often need to incorporate by reference. These are the standards most likely to have acquired de facto authoritative status in an industry due to their usefulness, proven quality, and widespread acceptance. 77 Thus, although a small percentage of all standards are used in regulation, the standards incorporated are often the ones that generate the bulk of the revenue necessary to fund standards development more broadly. As a consequence, eliminating the S

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