American Society for Testing and Materials v. Public.Resource.Org

Court: U.S. Court of Appeals for the D.C. Circuit

Date Filed: Dec. 12, 2022

Update: On Sept. 12, 2023, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court’s ruling in favor of Public Resource. The appeals court held that the non-commercial publication of incorporated standards is protected from copyright liability under fair use grounds.

Background: Local, state, and federal governments often incorporate into statutes technical standards written by private organizations. These so-called “incorporated standards” impose obligations on product manufacturers, landlords, employers, and many other groups.

Between 2012 and 2014, the nonprofit organization Public Resource purchased hundreds of privately written standards and published them on its website for visitors to access at no cost. The American Society for Testing and Materials and other industry groups sued Public Resource, claiming copyright and trademark infringement.

In 2017, the U.S. District Court for the District of Columbia granted summary judgment for the industry groups, but the U.S. Court of Appeals for the D.C. Circuit later reversed and remanded on fair use grounds.

In 2022, with a more developed factual record, the district court held that Public Resource’s reproduction of the standards was largely fair use, except for its reproduction of the trademarked logos. The industry groups appealed to the D.C. Circuit.

Our Position: The D.C. Circuit should affirm the district court’s decision.

• By compiling and publishing incorporated standards free of charge, Public Resource has empowered the press and the public to fulfill the important function of scrutinizing and disseminating the law.
• A decision that deprives the press and public the opportunity to freely access and review incorporated standards will harm the public interest and is inconsistent with the other legal protections for robust access to similar materials.

The University of Virginia School of Law First Amendment Clinic and the Cornell Law School First Amendment Clinic represented the Reporters Committee for Freedom of the Press and 11 media organizations in this friend-of-the-court brief.

Quote: “Free access to incorporated standards promotes transparency and accountability. It makes incorporated standards — which have the force of law — open to public assessment and more accessible for reporting, and allows the press and public to view, evaluate, and comment on the law.”

Related: In 2019, a copyright dispute between Public Resource and the state of Georgia reached the U.S. Supreme Court. The case concerned whether the state could copyright its official annotated code. In a friend-of-the-court brief in support of Public Resource, the Reporters Committee urged the Court to deny copyright protection to the official annotated code. And in 2020, the Supreme Court ruled that the annotations in the annotated code are ineligible for copyright protection.