AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 209

Unopposed MOTION for Leave to File Second Amicus Brief of American Property Casualty Insurance Association in Support of Plaintiff's Second Motion for Summary Judgment and Permanent Injunction by AMERICAN INSURANCE ASSOCIATION (Attachments: # 1 Second Amicus Brief of American Property Casualty Ins. Association ISO Plaintiff's Second Motion for Summary Judgment and Permanent Injunction)(Hollywood, Meegan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING AND
MATERIALS D/B/A ASTM INTERNATIONAL:
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

1:13-CV-01215-TSC

AMERICAN SOCIETY OF HEATING
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.
Defendant/
Counter-Plaintiff.

SECOND AMICUS CURIAE BRIEF OF AMERICAN PROPERTY CASUALTY
INSURANCE ASSOCIATION IN SUPPORT OF PLAINTIFF’S SECOND MOTION FOR
SUMMARY JUDGMENT AND A PERMANENT INJUNCTION
ROBINS KAPLAN LLP
Meegan F. Hollywood
399 Park Ave #3600
New York, NY 10022
[phone]
[e-mail]
Bar No. NY0206
Of Counsel:
Jonathan D. Mutch
800 Boylston Street Suite 2500
Boston, MA 02199
[phone]
[e-mail]
Attorneys for American Property Casualty
Insurance Association

TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
STATEMENT OF INTEREST IN THE CASE.............................................................................. 2
ARGUMENT .................................................................................................................................. 3
1.

The NFPA is essential not only to the insurance industry that formed it, but also to
the architects, sprinkler designers and installers, builders, fire departments,
building owners and many others who rely on its published standards.............................. 4

2.

The copyright protection of the works of NFPA, ASTM and ASHRAE serves the
important societal goal of funding the fire prevention and safety engineering work
of these organizations. ...................................................................................................... 13

CONCLUSION ............................................................................................................................. 16

TABLE OF AUTHORITIES
Page(s)
Cases
Am. Soc’y for Testing & Materials v. Public.Resource.org, Inc.,
No. 13-CV-1215 (TSC), 2017 WL 473822 (D.D.C. Feb 2, 2017) ............................................3
Apple Computer, Inc. v. Franklin Computer Corp.,
714 F.2d 1240 (3d Cir.1983)......................................................................................................9
Brosville Community Fire Dept. v. Navistar, Inc.
2014 U.S. Dist. Lexis 173422 (W.D. Va. 2014) ......................................................................14
Fox Television Stations, Inc. v. FilmOn X LLC,
966 F.Supp.2d 30 (D.D.C. 2013) .........................................................................................9, 15
Sarro v. Philip Morris USA,
857 F.Supp.2d 182 (D. Mass. 2012) ........................................................................................14
Veeck v. Southern Building Code Congress International,
293 F.3d 791 (5th Cir. 2002) (Judge Wiener’s dissenting opinion) ........................................14
Statutes
National Technology and Transfer Act of 1995, P.L. 104-113, § 12(d), 110 Stat.
783 (1996) ................................................................................................................................13
Other Authorities
A Partial Record of the Transactions at First Annual Meeting of the National Fire
Protection Association, Executive Committee Report, National Fire Protection
Association, Standard Publishing Company, 1897, p. 13 ..........................................................6
Bryner, Nelson, Reconstructing the Station Nightclub Fire – Computer Modeling
of the Fire Growth and Spread, National Institute of Standards and
Technology, 2006, p.1, fire.nist.gov/bfrlpubs/fire07/PDF/f07062.pdf ....................................12
Bugbee, P., Men Against Fire: The Story of the National Fire Protection
Association, 1896-1971, National Fire Protection Association, 1971, pp. 1-4..........................5
Cheit, Ross E., Setting Safety Standards: Regulation in the Public and Private
Sectors, Berkeley: University of California Press, c. 1990.
http://ark.cdlib.org/ark:/13030/ft8f59p27j/ ................................................................................3

ii

Page(s)
Cote, Arthur E., (Ed.), Organizing For Fire and Rescue Services, National Fire
Protection Association, http://www.worldcat.org/title/organizing-for-fire-andrescue-services-a-special-edition-of-the-fire-protectionhandbook/oclc/54832159/viewport............................................................................................8
Cote, Arthur E., History of Fire Protection Engineering, Fire Protection
Engineering Magazine, October 2008, http://magazine.sfpe.org/professionalpractice/history-fire-protection-engineering ............................................................................12
Grosshandler, William L, et al., Report of the Technical Investigtion of the
Station Nightclub Fire, National Institute of Standards and Technology, NIST
NCST Act Report 2, Government Printing Office, June 2005, pp. 8-7 and 8-8,
www.nist.gov/manuscript-publication-search.cfm?pub_id=100988 .......................................11
Home Fire Sprinklers, NFPA.org, fn. 13, https://www.nfpa.org/PublicEducation/Staying-safe/Safety-equipment/Smoke-alarm;
https://www.nfpa.org/Public-Education/Staying-safe/Safety-equipment/Homefire-sprinklers .............................................................................................................................9
National Safety Council, Injury Facts, National Safety Council Publications, 2000 .....................8
NFPA Articles of Organization, www.nfpa.org\about-nfpa\nfpaoperations\articles-of-organization ............................................................................................6
Station Nightclub Fire, NFPA.org, http://www.nfpa.org/safety-information/forconsumers/occupancies/nightclubs-assembly-occupancies/the-stationnightclub-fire............................................................................................................................12

iii

STATEMENT OF INTEREST IN THE CASE
The American Property Casualty Insurance Association (“APCIA”) is the primary
national trade association for home, auto, and business insurers. APCIA was recently formed
through a merger of two longstanding trade associations, the American Insurance Association
(which previously filed an amicus brief in this case) and the Property Casualty Insurance
Association of America. APCIA promotes and protects the viability of private competition for
the benefit of consumers and insurers, with a legacy dating back 150 years. APCIA members
represent all sizes, structures, and regions – protecting families, communities, and businesses in
the U.S. and across the globe. On issues of importance to the insurance industry and
marketplace, APCIA advocates sound and progressive public policies on behalf of its members
in legislative and regulatory forums at the federal and state levels and submits amicus curiae
briefs in significant cases before federal and state courts, including this Court.
APCIA remains interested in this lawsuit because of the continuing risks posed by
Defendant’s arguments to the availability of research and guidance provided in the standards
promulgated by NFPA, ASTM and ASHRAE, not to mention those promulgated by other
standards development organizations (SDOs). These standards play a central role in the
prevention and control of losses and the reduction of insurance risk. PRO’s view of “fair use”
would result in SDOs losing control over the free copying and posting of their standards, an
outcome just as severe as finding that they lost copyright altogether. APCIA is uniquely
positioned to explain (as amicus curiae) the industry’s use of NFPA and other safety standards
and the importance of these standards in protecting the public from fire and other safety hazards.
The Court authorized the filing of amicus curiae briefs in this matter by its October 2,
2019 Minute Order setting a filing deadline of November 25, 2019, subsequently amended to
2

December 6, 2019. APCIA submits, without objection from Defendant, this amicus curiae brief
in support of the Plaintiff’s Second Motion for Summary Judgment and a Permanent Injunction.
ARGUMENT
The insurance industry is an active consumer of the standards written and copyrighted by
the NFPA, ASTM and ASHRAE. The insurance industry relies on the objective, high quality
research and guidance that underpins the safety standards promulgated by NFPA and other
organizations. As one commentator explained “[s]afety standards help insurers in two ways: (1)
they provide convenient underwriting criteria, and (2) they promote general loss control.” 1
This brief is substantially similar to that filed with this Court by the American Insurance
Association in 2016 because the importance of safety standards to the insurance industry remains
unchanged. This brief, as before, explains the role that the standards of NFPA and the other
organizations play in the prevention and reduction of insured losses, particularly fire losses.
Revenue from the sale of standards has enabled NFPA and other SDOs to broaden the scope of
their standard development activities, contributing to public safety.
This brief shows the importance of the continued availability of fire protection and safety
standards to the insurance industry – and to maintaining fire safety in the United States.
Organizations that produce these standards fund research and development work, to a significant
extent, by licensing and selling their copyrighted standards. This Court observed that without
copyright protection, these organizations “will face significant difficulty raising the necessary
revenue to continue producing high-quality voluntary consensus standards.” Am. Soc’y for
Testing & Materials v. Public.Resource.org, Inc., No. 13-CV-1215 (TSC), 2017 WL 473822 at
1

Cheit, Ross E., Setting Safety Standards: Regulation in the Public and Private Sectors,
Berkeley: University of California Press, c.1990. http://ark.cdlib.org/ark:/13030/ft8f59p27j/.
3

*13 (D.D.C. Feb 2, 2017). This impact on revenue is, in fact, occurring due to PRO’s actions.
As stated by the Plaintiffs, some consumers of safety standards who would otherwise “either
purchase a copy or access the relevant standard through Plaintiffs’ free access websites” instead
look to Defendant to obtain a competing copy. Plaintiffs’ Memorandum of Law in Support of
Their Second Motion for Summary Judgment and for a Permanent Injunction at p. 10. Some
professionals using standards find the free access already provided by the standard developers
sufficient to meet needs for occasional reference. But those using standards day-to-day purchase
them as part of their professional work. Some or many of those day-to-day professional users
could and would use unrestricted, no-cost copies if PRO is permitted to post online wholesale,
complete copies of these standards.
Thus, the APCIA submits that the Court’s 2016 observation was accurate then and
remains so today. Standard development organizations rely on the sale of those standards to
support the substantial cost of development.  Defendant’s actions, left unchecked, would likely
have a ruinous effect on a nearly two hundred year old partnership between government and
standard development organizations. If Defendant’s actions force SDOs to limit development, or
even into insolvency, government entities that currently incorporate privately developed
standards by reference at no cost (instead of engaging in the massive, complex and costly
undertaking required to produce them) will almost certainly be unable to update or maintain
existing safety standards because they do not have the experience, means, or capability to do so.
This will inevitably reduce, not enhance, safety and put the general public at risk.
1.

The NFPA is essential not only to the insurance industry that formed it, but also
to the architects, sprinkler designers and installers, builders, fire departments,
building owners and many others who rely on its published standards.
The property and casualty insurance industry relies heavily on the standards of the NFPA
4

and similar organizations. In fact, “[s]everal major standards setting organizations, including . . .
NFPA, trace their origins to the insurance industry.” 2
In November 1896, twenty fire insurance companies came together at the offices of the
New York Board of Fire Underwriters and formed the National Fire Protection Association. At
the time, automatic fire sprinklers were growing in popularity as a means to extinguish fires,
reduce fire deaths, and limit fire damage to factories and warehouses. Sprinkler system failures
were common, however, as there was no consensus standard for the design and installation of
such systems. The insurance industry recognized the need for reliable sprinkler systems to
effectively control fire losses, and the first order of business for the National Fire Protection
Association was its 1896 approval of a consensus standard for the design and installation of
automatic fire sprinkler systems – the standard that became NFPA 13. 3
NFPA 13 and related standards, as continuously amended, have been synonymous with
the state of the art in fire sprinkler design and installation for more than a century. But from the
beginning, the NFPA’s mission was broader than sprinklers – the continued improvement and
standardization of all aspects of fire protection:
To bring together the experience of different sections and different bodies
of underwriters, to come to a mutual understanding, and if possible an
agreement in general principles governing fire protection, to harmonize
and adjust our differences, so that we may go before the public with
uniform rules and conditions which may appeal to their judgment, is the
object of this Association.

2

Id.

3

Bugbee, P., Men Against Fire: The Story of the National Fire Protection Association,
1896-1971, National Fire Protection Association, 1971, pp. 1-4.
5

Executive Committee Report, National Fire Protection Association. 4 True to its broader mission,
in the 119 years since its formation, the scope of the NFPA’s research and guidance has grown
with technology and experience to include all aspects of fire prevention, fire protection, and
firefighting.
The breadth of reliance upon NFPA research and guidance has grown in tandem with the
scope of its work. Along with the work of ASTM and ASHRAE, NFPA’s published research
and guidance are now relied on by insurers, architects, sprinkler professionals, builders, fire
departments, building owners and many others.
NFPA’s mission statement, unchanged since well before the commencement of this
litigation, is contained in its current Articles of Organization:
The purposes of the . . . Association . . . shall be to promote the
science and improve the methods of fire protection and prevention,
electrical safety and other related safety goals; to obtain and
circulate information and promote education and research on these
subjects and to secure the cooperation of its members and the
public in establishing proper safeguards against loss of life and
property.
Article 2, NFPA Articles of Organization. 5 The broad mission of today’s NFPA is reflected in
the more than 300 consensus codes and guidance standards published by NFPA, all sharing the
goal of minimizing the risk and effects of fire and related safety hazards. The following
examples, drawn from the current list of NFPA codes and standards, illustrate the breadth of
industries and professions that (like the property insurance business) have come to routinely rely
on the research and guidance of the NFPA:
4

A Partial Record of the Transactions at First Annual Meeting of the National Fire
Protection Association, Standard Publishing Company, 1897, p. 13.
5

The NFPA (1995) Articles of Organization are available at https://www.nfpa.org/AboutNFPA/NFPA-overview/NFPA-operations/Articles-of-organization.
6

NFPA 13:
NFPA 31:
NFPA 37:
NFPA 45:
NFPA 51B:
NFPA 59A:
NFPA 70:
NFPA 86:
NFPA 99:
NFPA 101:
NFPA 120:
NFPA 312:
NFPA 407:
NFPA 513:
NFPA 730:
NFPA 900:
NFPA 1192:
NFPA 1616:
NFPA 1700:
NFPA 1984:
NFPA 1994:
NFPA 1999:
NFPA 5000:

Standard for Installation of Sprinkler Systems
Standard for Installation of Oil-Burning Equipment
Standard for the Installation and Use of Engines and
Gas Turbine
Standard on Fire Protection for Laboratories Using
Chemicals
Standard for Fire Prevention During Welding, Cutting
and Other How Work
Standard for the Production, Storage, and Handling of
LNG
National Electrical Code
Standards for Ovens and Furnaces
Health Care Facilities Code
Life Safety Code
Standard for Fire Prevention and Control in Coal Mines
Standard for the Fire Protection of Marine Vessels
Standard for Aircraft Fuel Servicing
Standard for Motor Freight Terminals
Guide for Premises Security
Building Energy Code
Standard on Recreational Vehicles
Standard for Mass Excavation and Sheltering
Guide for Structural Firefighting
Standard on Respirators for Wildland Firefighting
Operations
Standard on Protective Ensembles for CBRN Terrorism
First Responders
Standard on Protective Clothing for Emergency
Medical Operations
Building Construction and Safety Code

Some of these standards and codes have been selectively incorporated by reference in law or
governmental regulations, where they have served the public interest in fire safety. One such
example is NFPA 70, the National Electrical Code, which has been incorporated in whole or in
part in the statutes or regulations of 47 states. The National Electrical Code maximizes the
electrical fire safety of tens of millions of homes and businesses in the United States. While
relatively few NFPA standards have been selectively incorporated in statutes or rules in this
7

manner, all of the standards serve the interests of the public and insurers alike by providing upto-date best practice guidance.
The work of NFPA and the other organizations saves lives and property. Consider the
reduction in lives lost in fires over the last century. In 1918, there were 9.1 fire deaths per
100,000 people in the United States. By 1998, the fatality rate had been reduced by 87% to 1.1
fire deaths per 100,000 people. 6

U.S. Fire and Burn Deaths, 1913-99

National Center for Health Statistics, National Safety Council as reprinted in Cote, Arthur E.,
Organizing For Fire and Rescue Services, National Fire Protection Association, 2003, p. 6. 7 A
major fire protection advance in the earlier twentieth century was the improvement and
increasing adoption of automatic fire sprinklers through NFPA 13, while a major fire protection
advance since 1980 was the improvement and increasing adoption of smoke and fire alarms in

6

National Safety Council, Injury Facts, National Safety Council Publications, 2000, pp.
38-41; Cote, Arthur E., Organizing for Fire and Rescue Services, National Fire Protection
Association, 2003, p. 6, available at http://www.worldcat.org/title/organizing-for-fire-andrescue-services-a-special-edition-of-the-fire-protection-handbook/oclc/54832159/viewport.
7

Available at http://www.worldcat.org/title/organizing-for-fire-and-rescue-services-aspecial-edition-of-the-fire-protection-handbook/oclc/54832159/viewport.
8

commercial and residential space through NFPA 72. 8 Both were driven by NFPA standards.
Fire and materials safety advancements are driven by the learning, research, guidance and
updated standards of independent standard organizations like NFPA, ASTM and ASHRAE.
Advancements are brought forward through voluntary consensus standards developed by leading
technical experts and then adopted by government and/or the marketplace. See e.g. NFPA 13
(Sprinklers); NFPA 72 (Fire and Smoke Alarms); NFPA 101 (Life Safety); NFPA 1500
(Firefighter Safety), NFPA 5000 (Building Safety). These advancements reduce fire losses and
save lives and property.
The “copyright system is intended both to encourage innovation” and “to protect
innovative content.” Fox Television Stations, Inc. v. FilmOn X LLC, 966 F.Supp.2d 30, 39
(D.D.C. 2013). It is hard to imagine innovation more worthy of copyright protection than the
life-saving work of NFPA and other SDOs, or circumstances more prone to irreparable harm in
the absence of vigorous copyright enforcement than the circumstances before the court. This is a
case in which truly “the public interest can only be served by upholding copyright protections
and correspondingly, preventing the misappropriation of skills, creative energies, and resources
which are invested in the protected work.” Id. at 51, quoting Apple Computer, Inc. v. Franklin
Computer Corp., 714 F.2d 1240, 1255 (3d Cir.1983).
One example proves the extent to which NFPA standards represent the “gold standard”
for fire prevention, fire protection and life safety. After the Station nightclub fire took 100 lives

8

In the residential context, NFPA’s published estimate are that working smoke alarms
reduce the occupant’s risk of dying in the fire by about 50 percent while automatic fire sprinklers
reduce the risk of dying by about 80 percent. https://www.nfpa.org/Public-Education/Stayingsafe/Safety-equipment/Smoke-alarm; https://www.nfpa.org/Public-Education/Stayingsafe/Safety-equipment/Home-fire-sprinklers.
9

in Rhode Island in 2003, the U.S. Department of Commerce’s National Institute of Standards and
Technology (“NIST”) Fire Research Division undertook a comprehensive, technical
investigation of the fire. The investigation compared the conditions in the building to the fire
protection requirements of NFPA 13 (Sprinklers); NFPA 101 (Life Safety); NFPA 255 (Burn
Characteristics of Building Materials); NFPA 1126 (Pyrotechnics); NFPA 5000 (Building
Safety), ASTM E84 (Burn Characteristics of Building Materials), and to sections of the
International Building Code.
As illustrated by these excerpts from NIST’s final report, investigators found that failures
to follow the guidance of NFPA and ASTM were “highly relevant and [following the guidance
of these standards] would almost certainly have reduced substantially the loss of life”:

10

National Institute of Standards and Technology, Report of the Technical Investigation of the
Station Nightclub Fire. 9
There is probably no more powerful, and poignant, example of the value of the existing
independent standards of NFPA and the other organizations than NIST’s finding that if the
Station nightclub had been equipped with NFPA 13 compliant sprinklers, the nightclub fire
would have been extinguished in 114 seconds without ever generating the excessive heat or loss
of breathable air quality that took 100 lives. In the absence of sprinklers, the club reached
9

Grosshandler, William L, et al., Report of the Technical Investigation of the Station
Nightclub Fire, National Institute of Standards and Technology, NIST NCST Act Report 2,
Government Printing Office, June 2005, pp. 8-7 and 8-8, available at www.nist.gov/manuscriptpublication-search.cfm?pub_id=100988
11

excessive temperatures and lost breathable oxygen within 90 seconds, causing 100 deaths. 10
It is important to note that the standards of NFPA and the other organizations are not
static. The key value of the standards is that they are regularly updated by committees of
technical experts, particularly in response to major incidents and changes in technology. As
noted in a Society of Fire Protection Engineers’ publication,
many of the advances in fire protection were brought about as a
reaction to disastrous fires, and NFPA and its technical committees
were instrumental. . . . Much of the knowledge for fire protection
engineering came from loss experience, the development of
property loss prevention innovations and fire research conducted
by these founding organizations.
Cote, Arthur E., History of Fire Protection Engineering. 11 The Station Nightclub Fire led to
several almost immediate changes to NFPA 101 and NFPA 5000. These included guidance
requiring automatic fire sprinklers in new nightclubs and for existing clubs that accommodate
more than 100 persons, a requirement that building owners maintain records documenting that
building exits are free of obstructions, a requirement for one trained crowd manager per 250
persons, and a ban on standing assemblies of crowds over 250 unless a fire department life-safety
evaluation has been performed. 12
As demonstrated by the reliance of NIST’s Station Nightclub investigation on NFPA and
ASTM, it is not just insurance companies, architects, sprinkler designers and installers, builders,
10

Id., pp. 5-19, 5-52, 5-61, 8-3; Bryner, Nelson, Reconstructing the Station Nightclub Fire
– Computer Modeling of the Fire Growth and Spread, National Institute of Standards and
Technology, 2006, p.1, available at fire.nist.gov/bfrlpubs/fire07/PDF/f07062.pdf.
11

Fire Protection Engineering Magazine, October 2008, available at http://magazine.
sfpe.org/professional-practice/history-fire-protection-engineering.
12

The text of the amendments is available through a link at http://www.nfpa.org/safetyinformation/for-consumers/occupancies/nightclubs-assembly-occupancies/the-station-nightclubfire.
12

electricians, fire departments, and building owners that benefit from the research and guidance of
the NFPA and the other organizations. In a very real way, the public at large benefits because
the NFPA and the other organizations lead the way in advancing fire and materials safety, while
government and others follow.
The American system of generating fire and safety standards is a private one. This
system can incorporate new knowledge and developments quickly and effectively, and create
standards embodying new guidance available almost immediately. The system depends on
funding the development of these timely, high quality, and independent standards through the
licensing or sale of copyrighted works. The system costs the public almost nothing. There is no
ready substitute for it. The federal government acknowledges its reliance on private voluntary
consensus standards. 13 State governments have not done the job either. States struggle to pass
fire safety legislation now, even with the research, guidance and standards provided by NFPA
and others.
2.

The copyright protection of the works of NFPA, ASTM and ASHRAE serves
the important societal goal of funding the fire prevention and safety
engineering work of these organizations.
The standards developed by NFPA and similar SDOs are in the first instance drafted or

amended by a committee of technical experts (including insurance industry professionals) who
work as volunteers. SDO approval and amendment processes are evaluated and accredited by
the American National Standards Institute for their consensus decision-making, openness,
balancing of interests, and fairness. Because of the prestige of serving on an SDO committee,

13

National Technology and Transfer Act of 1995, P.L. 104-113, § 12(d), 110 Stat. 783
(1996)(“Federal agencies and departments shall use technical standards that are developed or
adopted by voluntary consensus standards bodies . . .”).
13

committee expertise is very high, explaining why the standards of organizations like NFPA are
often referred to as the “gold standard.” E.g. Brosville Community Fire Dept. v. Navistar, Inc.
2014 U.S. Dist. Lexis 173422 at *21, n. 9 (W.D. Va. 2014); Sarro v. Philip Morris USA, 857
F.Supp.2d 182, 186, n. 3 (D. Mass. 2012).
While the written work product of SDOs is generally referred to as a standard or code, 14
these terms encompass a variety of technical best practices, guidelines, suggested rules, design
and installation procedures, test methods, and specifications. As with the NFPA’s original fire
sprinkler standard or code, the goal is standardization around best practices, not necessarily
legislation. The SDOs work to integrate standards and codes in related areas, providing safety,
reliability and interoperability.
SDOs pay for the substantial administrative research and engineering support costs of
developing standards, in whole or significant part, with revenue generated from the sale or
licensing of their copyrighted standards. This funding mode keeps SDOs independent, objective
and in business, and avoids potential compromises (real and perceived) arising from seeking
funding from industries interested in modifying standards to suit their own special interest.
Veeck v. Southern Building Code Congress International, 293 F.3d 791, 817 (5th Cir. 2002)
(Judge Wiener’s dissenting opinion).
By guaranteeing independence, the funding-by-sale-of-publication model also allows
SDOs the freedom to focus on best practices and fire safety without political distraction – a
freedom that has resulted in:
14

Both standards and codes should be entitled to copyright protection as “privately
organized and authored collections of hyper-technical data for use in a specialized segment of
today’s complex society that benefits from uniformity in those data.” Veeck v. Southern Building
Code Congress International, 293 F.3d 791, 814, n.20 (5th Cir. 2002) (Judge Wiener’s
dissenting opinion).
14

o High quality, objective standards that save lives and money;
o Fast and efficient updating of standards to meet emerging fire and life safety
issues;
o Access to state-of-the-art research and guidance for stakeholders and the public
at reasonable or no cost;
o Standardization of practices and products internationally around standards
produced by U.S.-based SDOs, fueling foreign demand for U.S. products.
APCIA members and others with a business or professional interest in mitigating fire-related
losses of life and property directly benefit from the copyright protection that makes possible the
high quality standards produced by SDOs. The importance of copyright protection for SDO
works, however, is far broader. Copyright protection funds the fire and life safety standards
upon which the public relies, and protects the nation’s access to published research and guidance
that saves lives.
But copyright protection is only as strong as its enforcement. Here, enforcement will best
serve the goals of our copyright system -- to encourage innovation and protect innovative
content. Fox Television Stations, supra at 39. Copyright enforcement will in this case preserve
the system of fire and life safety standards upon which the public relies and encourage
continuous innovation and improvements in the standards. Only copyright enforcement can
“prevent the misappropriation of skills, creative energies, and resources which are invested in
the” standards.” Id. at 51.

15

CONCLUSION
The research and guidance of SDOs and the resulting standards contribute directly to the
fire and life safety of the public, while also benefitting numerous stakeholders including the
members of APCIA. The Court should uphold copyright protection for the life-saving and
property-preserving work of SDOs.
Dated: December 6, 2019
ROBINS KAPLAN LLP
By: /s/ Meegan F. Hollywood
Meegan F. Hollywood
601 Lexington Avenue
Suite 3400
New York, NY 10022
[phone]
[e-mail]
Bar No. NY0206
Of Counsel:
Jonathan D. Mutch
800 Boylston Street, Suite 2500
Boston, MA 02199
[phone]
[e-mail]
Attorneys for American Property Casualty
Insurance Association

16

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served this 6th day of
December, 2019 via CM/ECF upon all counsel of record in this matter.

/s/ Meegan F. Hollywood

17