SDOs Neg - Georgetown 2024

SDOs Neg
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 aff 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 — Negative Options
There are several aff-specific negative options available to students:
Always Available:
No matter what version of the aff, students will always be able to say the Ban the Plan CP, the Incorporation by Reference CP, and the Democracy DA.
The Ban the Plan CP argues that SDOs having copyright protections in all instances, not just when incorporated by the government, is bad because it will lead to a fracturing of the internet. Losing these copyright protections would hence encourage SDOs to make their standards publicly available, which is good for internet unity. It also claims to solve the aff by arguing that copyright discourages innovation from SDOs, which is bad for all of the advantages.
The Incorporation by Reference CP argues that instead of giving SDOs copyright protections, the government should just incorporate select parts of the standard that give the public enough knowledge to avoid the Democracy DA but solves the advantages by ensuring that public actors can’t freely reproduce standards, which means that SDOs can still make money. There is a second version of the CP that would ensure that these standards are made freely available to the public, which you should read if you care concerned about Links to the Net Benefit.
The Democracy DA argues that giving SDOs copyright protections for government standards would hinder public access to the law, which is bad for democracy for several reasons. This DA is a net benefit to all of the CPs in the file.
Available Vs the Courts Version
There are two options that are specific to the courts version of the aff: the Prizes CP and the Fair Use DA.
The Prizes CP claims to solve the Takings Advantage. Instead of altering sovereign immunity, the CP says that the government should give monetary prizes to the companies that have the best/most significant pharmaceutical and life sciences innovation, which claims to solve competition without altering IP.
The Fair Use DA argues that overturning the ASTM case would shift how the courts view Fair Use, which would have negative implications for OpenAI in its upcoming suit against the New York Times: OpenAI vs. New York Times. This DA is a net benefit to all of the CPs.
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 Answers
SDOs Advantage Answers
1NC---SDOs Fine
SDOs will be fine. All economic analysis flows neg, and other sources of revenue solve.
Klosek 24 – Director for Information Policy and Federal Relations at the Association of Research Libraries, former Director of the Center for Applied Public Research at Johns Hopkins University, M.A. in Public Policy from Johns Hopkins University.
Katherine Klosek, “No One Can Own the Law—So Why Is Congress Advancing a Bill to Extend Copyright to It?,” Association of Research Libraries, 04-19-2024, https://www.arl.org/blog/no-one-can-own-the-law-so-why-is-congress-advancing-a-bill-to-extend-copyright-to-it/
A related argument by supporters of the Pro Codes Act is that the SDOs provide a valuable service, and therefore they deserve a revenue stream in exchange for their contribution to the public good. But copyright law does not grant copyright to reward hard work (Feist Publications v. Rural Telephone Service). Further, the DC Circuit Court found that although Public.Resource.Org has been posting incorporated standards for 15 years, “the plaintiffs have been unable to produce any economic analysis showing that Public Resource’s activity has harmed any relevant market for their standards. To the contrary, ASTM’s sales have increased over that time.” The SDOs can also derive significant revenue from selling training materials and programs. SDOs do not need a copyright incentive; the development of standards advances the economic interests of their members.
2NC/1NR---SDOs Fine
More than a decade of evidence flows neg. AND government standards aren’t key.
Halperin 24 – member of the Board of Directors of Public Citizen, J.D. from Yale Law School.
David Halperin, “Congress Should Reject Bill To Let Private Groups Control Access To U.S. Laws,” Republic Report, https://www.republicreport.org/2024/congress-should-reject-bill-to-let-private-groups-control-access-to-u-s-laws/
The “reading room” rationing of law is unnecessary
Not only is the reading room approach grossly inadequate, it’s also completely unnecessary. The PRO Codes Act, justified by its advocates as a way to preserve revenues for SDOs, is, in fact, aimed at a non-existent problem. The standards organizations had more than a decade in the federal court litigation to demonstrate that they have suffered financially from Public Resource posting the standards. They never did.
Many entities also have continued to buy standards from SDOs, even if Public Resource has posted them online. That’s not surprising. Some people want the physical book, or a version packaged by the original publisher. Many texts that are found for free online still have a big market for private sellers of print books – start with the Bible, or the works of Shakespeare.
One specific reason why SDOs can still make big money selling standards, as the D.C.Circuit noted, is that the standards that become law have often, by the time they are incorporated into law, been superseded by the newest SDO-published versions of the standards, and those are the ones that dominate sales at any given time.
The SDOs also bring in revenue from selling manuals and other explanatory materials and holding training sessions — and from selling the many standards that are not incorporated into law.
The court found no proof that it would hurt SDOs..
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
Effect on Potential Market: The court found the evidence regarding the potential market harm to be equivocal. It noted that frequent updates by standards organizations and less frequent updates by lawmakers meant that the free copies provided by PRO might not be adequate substitutes for current standards. Additionally, no significant economic analysis was presented to demonstrate harm to the market. The court also recognized the substantial public benefits of free access to the law.
Most SDOs don’t want copyright.
McSherry 23 – Legal Director at the Electronic Frontier Foundation, J.D. from Stanford University.
Corynne McSherry, “Access to Law Should Be Fully Open: Tell Congress Not to Be Fooled by the Pro Codes Act,” Electronic Frontier Foundation, 10-25-2023, https://www.eff.org/es/deeplinks/2023/10/access-law-should-be-fully-open-tell-congress-not-be-fooled-pro-codes-act
Second, it doesn’t really make sense. The many volunteers who develop these codes neither need nor want a copyright incentive. The SDOs don’t need it either—they don’t do anything creative (convening volunteers is important work, but not creative work), and they make plenty of profit though trainings, membership fees, and selling standards that haven’t been incorporated into law.
SDOs will still be able to protect certain standards.
Whitaker 23 – Postdoctoral Resaercher at the Center for IT and IP Law of the KU Leuven, PhD in Law and an LL.M in International and European Public Law from Tilburg University.
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
While certainly not every governmental use of standards would quality as a “fair use,”63 and while it is only the use of some portions of standards documents that can benefit from Section 107 of the Copyright Act, one may see how a standard that has become a part of law and is made available to public without any commercial motives may be covered by the fair use doctrine. At the same time, whereas the doctrine protects the use of incorporated standards, it is inept to protect those who seek spreading information (Sweeney, 2017). In the recent PRO v ASTM appeal, PRO claimed a fair use defence since it believed to have provided free access to law, served the statutory and non-commercial purposes, and aimed to accomplish a transformative purpose.64 The D.C. Circuit Court declined to directly address the issue on the ground of constitutional avoidance, but held that the online publication of standards by PRO, while may be a fair use, should be further evaluated by the District Court case-by-case, or a “standard-by-standard”, basis.
ICC case proves.
Shu 19 – Startups and Technology Journalist at TechCrunch, M.A. in Journalism from the Columbia University School of Journalism.
Catherine Shu, “Can the law be copyrighted?,” TechCrunch, 04-09-2019, https://techcrunch.com/2019/04/09/can-the-law-be-copyrighted/
“Copyright protection of our codes is essential to our ability to continue to update our codes,” says Oncu. She adds that the ICC believes if the lawsuit is ruled in UpCodes’ favor, it may potentially set a precedent that will make it difficult for it to have a revenue stream and continue creating high-quality codes.
Scott and Garrett Reynolds, however, say that the ICC appears to have healthy revenue. In its 2016 annual report, the ICC said its consolidated revenue in 2015 was $66 million, an increase of $4.3 million compared to 2014, and that it “consistently records over $1 million in sales per month” through its online store. Then from 2015 to 2016, ICC’s revenue increased by $12 million, according to a report presented by chief executive officer Dominic Sims at an annual meeting. (The ICC did not disclose an amount for consolidated revenue in its 2017 annual report, and hasn’t released its 2018 annual report yet.)
The UpCodes founders also note that Sims, the ICC’s CEO, was paid $709,000 in 2016, according to a tax filing, much more than the $104,000 median annual salary for nonprofit CEOs. (Oncu says that ICC’s salaries are comparable to other standards organizations.)
1NC---Copyright Violation Inevitable
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.
2NC/1NR---Copyright Violation Inevitable
Groups will ignore their copyright.
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 become incorporated into the law, however, maintaining copyright protection on them may raise a “serious constitutional concern” about public access to the law.13 Various public

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