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

Filing 210

Unopposed MOTION for Leave to File Second Amicus Brief by AMERICAN NATIONAL STANDARDS INSTITUTE, INC. (Attachments: # 1 Exhibit Amicus Brief)(Hochman Rothell, Bonnie) Modified text on 12/6/2019 (ztd).

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
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Case No. 1:13-cv-01215-TSC
Plaintiffs/Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counter-Plaintiff.

BRIEF FOR AMICUS CURIAE THE AMERICAN NATIONAL
STANDARDS INSTITUTE, INC., INTERNATIONAL
ASSOCIATION OF PLUMBING & MECHANICAL OFFICIALS,
NATIONAL ELECTRICAL MANUFACTURERS ASSOCIATION,
AND NORTH AMERICAN ENERGY STANDARDS BOARD

Dated: December 6, 2019.

STATEMENT OF INTERESTED PARTIES
The undersigned counsel of record certifies that the following listed persons have an interest in the
outcome of this case. These representations are made in order that the judgment of this Court may
evaluate possible disqualification or recusal.

American National Standards Institute, Incorporated, Amicus Curiae
International Association of Plumbing & Mechanical Officials, Amicus Curiae
National Electrical Manufacturers Association, Amicus Curiae
North American Energy Standards Board, Amicus Curiae

Morris, Manning & Martin, LLP
1401 Eye Street, N.W., Suite 600
Washington, D.C. 20005
Carter Ledyard & Milburn LLP
Two Wall Street
New York, NY 10005
Attorneys of Record for Amici Curiae

i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
CONCISE STATEMENT OF IDENTITY OF AMICI CURIAE, INTEREST IN THE CASE,
AND SOURCE OF AUTHORITY TO FILE ..................................................................................1
ARGUMENT ...................................................................................................................................4
I.

WORDS AND TEXT MATTER TO THE DOCTRINE OF FAIR USE UNDER THE
COPYRIGHT ACT AND IN THIS PARTICULAR CASE ................................................ 4

II. UNDERSTANDING THE STANDARDS DEVELOPMENT ECOSYSTEM IS
ESSENTIAL TO BALANCING INTERESTS UNDER AN EQUITABLE RULE OF
REASON IN FAIR USE ANALYSIS ................................................................................. 7
If Defendant’s View Of Fair Use Is Accepted, The Loss Of Copyright In Standards
Would Profoundly Harm SDOs, Federal, State And Local Governments And The
Public ......................................................................................................................... 7
1.

SDOs Would Be Unable To Fund Standards Development If Deprived Of
Revenues From Standards Sales ....................................................................... 7

2.

Governments Would Lose The Ability To Adopt Standards Into Law Or
Utilize Standards Themselves ........................................................................... 9

3.

The Public Would Be Harmed By Lost Efficiencies And Increased
Opportunity Costs ........................................................................................... 13

4.

United States Industry Would Be Diminished ................................................ 14

The Federal Government’s Current Policies Relative to Incorporation By Reference
Reflect A Proper Balancing of Interests With The Standards Ecosystem Consistent
With The Fair Use Doctrine..................................................................................... 15
CONCLUSION ..............................................................................................................................15

ii

TABLE OF AUTHORITIES
Cases
Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc.,
2017 U.S. Dist. LEXIS 14623 (D.D.C. 2017) .............................................................................. 20
Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc.,
896 F.3d 437 (D.C. Cir. 2018) .................................................................................................... 5, 7
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ................................................... 6, 7, 8
CCC Information Services v. Maclean Hunter Market Reports, Inc.,
44 F.3d 61 (2nd Cir. 1994) ............................................................................................................. 20
Practice Mgmt. Information Corp. v American Medical Association,
121 F.3d 516 (9th Cir. 1997) ......................................................................................................... 21
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) .................................. 4, 6
Statutes
5 U.S.C. Section 552(a)(1)............................................................................................................ 14
17 U.S.C. § 107 ........................................................................................................................... 5, 6
Regulations
74 Fed. Reg. 63,287, 63,302 (Dec. 3, 2009) ................................................................................. 19
79 Fed. Reg. 66267 (November 7, 2014)...................................................................................... 15
10 C.F.R. § 430.3 ........................................................................................................................... 8
Other Authorities
OMB Circular A-119, 63 Fed. Reg. 8546 (1998) ............................................................. 12, 14, 16
Revised OMB Circular A-119, 81 Fed. Reg. 4673 (January 27, 2016)........................................ 13
Petition submitted by Peter Strauss et al, February 21, 2012 ....................................................... 15
Testimony of Mary H. Saunders Before the House Committee on Science,
Space, and Technology, February 29, 2012 .................................................................................. 16

iii

CONCISE STATEMENT OF IDENTITY OF AMICI CURIAE, INTEREST IN THE
CASE, AND SOURCE OF AUTHORITY TO FILE
The standards and codes involved in the present case are part of a large genre of creative
works, including standards, model codes and other reference works (collectively referred to as
“standards”), that are generally developed by private, not-for-profit organizations and may be
selected, when appropriate, for use and adoption, in whole or in part, by government
instrumentalities throughout the United States. Amici curiae are all organizations that are involved
in the coordination, creation, or use of these socially important works. 1
American National Standards Institute, Incorporated (“ANSI”) is a not-for-profit
membership organization that, for more than 100 years, has administered and coordinated the
voluntary standardization system in the United States. ANSI facilitates the development of
American National Standards (“ANSs”) by accrediting the procedures of standards developing
organizations (“SDOs”). These SDOs work cooperatively to develop voluntary national consensus
standards that are used in virtually every industry sector and in all aspects of daily life, from toys
and food safety to IT and the built environment. Accreditation by ANSI signifies that the
procedures used by the standards developer in connection with the development of ANSs meet
ANSI’s essential requirements for openness, balance, consensus and due process. Each of the
Plaintiffs and each of the other amici are among the 240 ANSI Accredited SDOs (“ASDs”), and
they are representative of ANSI’s broader ASD community.
International Association of Plumbing & Mechanical Officials (“IAPMO”) coordinates the
development of plumbing and mechanical codes and standards to meet the specific needs of

1

Amici appeared as amicus in the earlier part of this case in connection with Plaintiffs’
Motion for Summary Judgment (Document 142, filed January 12, 2016).
1

individual jurisdictions and industry both in the United States and abroad. IAPMO is a not-forprofit membership organization that was founded in 1926.
National Electrical Manufacturers Association (“NEMA”) is the association of electrical
equipment manufacturers, founded in 1926. NEMA sponsors the development of and publishes
over 500 standards relating to electrical products and their use. NEMA’s member companies
manufacture a diverse set of products including power transmission and distribution equipment,
lighting systems, factory automation and control systems, building controls and electrical systems
components, and medical diagnostic imaging systems.
North American Energy Standards Board (“NAESB”) was formed in 1994. NAESB
maintains a membership of over three hundred corporate members representing the wholesale gas,
wholesale electric, retail gas and retail electric markets and has more than two-thousand
participants active in standards development.
Amici curiae represent a wide range of SDOs with varied purposes and different audiences
that exist to benefit our society. The standards created and administered by SDOs are often later
used and adopted by local and state governments and federal authorities throughout the United
States who do not otherwise have the necessary facilities and resources to develop them
independently. IAPMO, NEMA, and NAESB are just three of the hundreds of private SDOs that
support their standards development activities through revenues derived from the publication, sale,
and licensing of standards made possible by the protection of the copyright laws.
The copyrighted standards at issue in this case are part of a large and important ecosystem
of creative works developed by not-for-profit SDOs. SDOs create and maintain at their own
substantial expense their copyrighted standards and make them available to interested parties,
government regulators, and the public at large. Loss of copyright protection for these works would

2

drastically undermine the ability of SDOs to fund the ongoing creation and updating of these
important works and would therefore harm the governments and the public who benefit from and
rely on the work of these SDOs.
Amici address the Court at this time to present two points they believe are important to the
resolution of the fair use question in this case. First, we disagree with the Defendant’s position
that the underlying text of a document subject to copyright does not matter. See Public Resource’s
Memorandum of Points and Authorities to Plaintiffs’ Second Motion for Summary Judgment at 56 (Document 202-2 filed November 12, 2019) (“Documents are the Objects of Incorporation, Not
Their Underlying Text”). Words and text do matter. And they matter greatly in connection with
the fair use doctrine under copyright law.
Second, we describe for the Court the standards ecosystem in which plaintiffs and amici
operate, which we believe the Court must consider in connection with its fair use analysis. Fair
use contemplates a balancing of interests and an equitable rule of reason. In the words of the
Supreme Court, the failure of lower courts to apply “an equitable rule of reason” and balance the
interests of the parties and other members of the public in connection with fair use analysis is
“erroneous.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 454-55 & n.40
(1984) (“Congress has plainly instructed us that fair use analysis calls for a sensitive balancing of
interests.”).
The standards development ecosystem serves a vital public interest in the United States and
internationally and weighs heavily, in the view of amici, in favor of a conclusion that the balancing
of interests does not support the defendant’s view of fair use.

3

ARGUMENT
I.

WORDS AND TEXT MATTER TO THE DOCTRINE OF FAIR USE UNDER
THE COPYRIGHT ACT AND IN THIS PARTICULAR CASE.

The defendant’s position on fair use is that if an entire document is referenced in a
government regulation then defendant is entitled to copy and distribute the entire document
without having to consider whether the entire document is relevant to or essential to understanding
a legal requirement in that regulation. Public Resource’s Memorandum of Points and Authorities
to Plaintiffs’ Second Motion for Summary Judgment at 5-6. In other words, the “underlying text”
of a document referenced in a regulation does not matter. Nor does the text of the regulation
matter. That view is contrary to the law of the case, as articulated by the D.C. Circuit in this case,
and it is contrary to the text of Section 107 of the Copyright Act. 17 U.S.C. §107.
As the Court of Appeals discussed,
As this language makes clear, this inquiry is ill-suited to wholesale
resolution. Rather, PRO’s copying must be considered standard by
standard in light of its purpose of informing the public about the
specific incorporation at issue. If PRO limits its copying to only what
is required to fairly describe the standard’s legal import, this factor
would weigh strongly in favor of finding fair use here, especially
given that precision is ten-tenths of the law.
Am. Soc’y for Testing & Materials v. Public.Resource.Org, Inc., 896 F.3d 437, 452 (D.C. Cir.
2018) (hereinafter “ASTM”). The Defendant’s position is to ignore “precision,” ignore “what is
required to fairly describe the standard’s legal import,” and ignore what “information [is] essential
to comprehending one’s legal duties.” Id. at 450, 452. Defendant’s argument represents a
sledgehammer approach to a legal issue that requires a “sensitive balancing of interests.” Sony
Corp., 464 U.S. at 455, n.40. If most or a portion of a standard referenced in a regulation does not
provide “information that is essential to comprehending one’s legal duties” under the specific
regulation, it is not “fair use” to copy or distribute the entire document. It is unfair use, and in the
4

vernacular of some courts in discussing fair use analysis it is an “unproductive use” providing
information that is not required to comprehend one’s legal duties. See Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569, 579 (1994); Sony Corp, 464 U.S. 417.
The text of the Copyright Act commands this construction of fair use doctrine:
. . . In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of
the copyrighted work.
17 U.S.C. §107. As the Court of Appeals in this case explained,
The second fair use factor, “the nature of the copyrighted work,” 17
U.S.C. § 107(2), also demands an individual appraisal of each
standard and its incorporation.
***
The third fair use factor asks about “the amount and substantiality
of the portion used in relation to the copyrighted work as a whole.”
17 U.S.C. § 107(3). The Supreme Court has explained that “the
extent of permissible copying varies with the purpose and character
of the use” and characterized the relevant inquiry as whether “‘the
amount and substantiality of the portion used [’] . . . are reasonable
in relation to the purpose of the copying.” Campbell, 510 U.S. at
586-87 (quoting 17 U.S.C. § 107(3)). As this language makes clear,
this inquiry is ill-suited to wholesale resolution. Rather, PRO’s
copying must be considered standard by standard in light of its
purpose of informing the public about the specific incorporation at
issue. If PRO limits its copying to only what is required to fairly
describe the standard’s legal import, this factor would weigh
strongly in favor of finding fair use here, especially given that
precision is ten-tenths of the law.
ASTM, 896 F.3d at 451-52.

5

The underlying text matters in this analysis. That is true not only with respect to the text
of a standard, but also the text of the regulation, because the fair use doctrine requires a
determination of whether copying and distributing an entire standard is “reasonable in relation to
the purpose of the copying." Campbell, 510 U.S. at 586. That “reasonable relation” requires a
pairing of the text of the Standard copied by the Defendant to the purpose of the regulation as
expressed in the text of a regulation to determine whether copying the entire document is “essential
to comprehending one’s legal duties.” There are obvious portions of standards that are not
necessary to comply with legal obligations. For example, a standard may contain multiple parts
dealing with numerous aspects about the performance or features of various attributes of a product,
and one part relates to how one should test the product to assess a particular performance
specification. A government regulation pertaining to test procedures that only references the
standard with respect to the part about the test procedure but not the rest of the standard is a clear
example where copying and distributing the entire document is not necessary to comply with the
law. And there are examples of exactly this sort of thing in federal regulations where the regulation
spells out parts of standards, excludes other parts, and the like. See, e.g., 10 C.F.R. §430.3
(Department of Energy regulations referencing specific portions of standards and generally not the
entire standard). And even then, the reference may be informational and not “required” to comply
with the regulation.
The Defendant has the burden of proof 2 in this case to establish --- standard by standard -- that the text and words of an entire standard are “essential to comprehending one’s legal duties”
before it can claim a right to copy and distribute a document in its entirety.

2

Campbell, 510 U.S. at 590 (proponent of affirmative defense bears burden of proof).
6

II.

UNDERSTANDING THE STANDARDS DEVELOPMENT ECOSYSTEM IS
ESSENTIAL TO BALANCING INTERESTS UNDER AN EQUITABLE
RULE OF REASON IN FAIR USE ANALYSIS.

Defendant’s all-or-nothing approach, if accepted by this Court, would have profound
implications for the SDOs that develop those works and the standards ecosystem they support.
Defendant’s argument at this stage is still effectively that because plaintiffs’ privately authored
standards have been referenced in statutes and regulations, including the Code of Federal
Regulations, those works have forever lost their copyright protection. Defendant’s argument has
not changed in response to the Court of Appeals decision. Only now it repackages its argument
under the auspices of “fair use.” If this sweeping contention were accepted, it would devastate
private SDOs, governments – state, local, and federal – who benefit from private standards
development, and the public who benefit from standardization’s efficiencies in hundreds of
industries, including improvements in the way product components interoperate, and the avoided
fiscal burden that would result from government authorship of standards.
If Defendant’s View Of Fair Use Is Accepted, The Loss Of Copyright In
Standards Would Profoundly Harm SDOs, Federal, State And Local
Governments And The Public.
1.

SDOs Would Be Unable To Fund Standards Development If Deprived Of
Revenues From Standards Sales.

Defendant’s position that creative works such as those developed by the SDOs enter the
public domain the moment any government instrumentality adopts them by reference in a law has
the largest implications for copyright holders like amici who develop standards that a government
may elect to use and reference in law. SDOs rely on copyright protection and the ability it affords
to generate revenue from the sale and licensing of the works they create to sustain their ongoing
standards creation, refinement, and updating.

7

The development of useful, high-quality, up-to-date, consensus-based standards is a costly,
time consuming process. Drafting standards requires wide-ranging creative input from a variety of
concerned constituencies and sources of expertise, including representatives of the consuming
public, industry, and the public safety and regulatory community. In addition, the standards
drafting process draws heavily on the administrative, technical, and support services provided by
the organizations that develop them.
NEMA, for example, arranges for hundreds of standards-related meetings that take place
yearly. They provide logistical, administrative, and editorial support to the hundreds of technical
committees that draft and regularly update standards, and maintain a permanent staff of engineers,
technical program managers, and administrative staff who support their standards activities. These
costs are commonly underwritten, in whole or significant part, by the revenues made possible from
the copyright-protected sales and licensing of the standards themselves. For its part, NEMA
allocates half of the royalties earned from the sale of standards developed by a given technical
committee to the committee’s next annual budget thereby reducing the participants’ cost of
supporting the committee’s ongoing work. Similarly, IAPMO uses all sales of codes and standards
to fund its not-for-profit mission. Amicus ANSI, while not an SDO, similarly funds missionrelated activities with revenues derived from the sale of standards under licensing agreements with
the SDO copyright holders.
Without copyright protection, others (not just PRO) would be free to expropriate and sell
or give away the works created or licensed by SDOs, and the ability of ANSI and these SDOs to
sustain their standards coordination and development activities, as well as other mission-related
programs, would be seriously compromised.

8

It is clear that exactly this sort of economic consequence motivated the D.C. Circuit’s
discriminating “standard-by-standard” approach to fair use analysis in this case. Defendant’s
copying and free distribution of standards under the guise that the entire document is the law
encourages people who would normally purchase the entire standard for purposes other than
complying with the law to search out the free copy.
2.

Governments Would Lose The Ability To Adopt Standards Into Law Or
Utilize Standards Themselves.

The impact of copyright destruction, however, would be felt by more than just the SDOs
whose copyrights would be lost. Private standards development provides federal, state, and local
governments with valuable and high-quality codes and standards that are created at no cost to
taxpayers, and governments at all levels have recognized the importance of privately developed
codes and standards by adopting them in great numbers.
In recognition of the benefits of private standards development, the federal government has
long made it a policy to adopt such standards unless there is a valid reason for not doing so. That
policy is expressed by the Office of Management and Budget (“OMB”) in Circular A-119, which
directs all federal agencies to incorporate “in whole, in part, or by reference” privately developed
standards for regulatory and other activities “whenever practicable and appropriate.” OMB
Circular A-119, 63 Fed. Reg. 8546, 8554-55. OMB Circular A-119 expressly acknowledges that
doing so “[e]liminate[s] the cost to the government of developing its own standards.” Id. at 8554.
For this policy to succeed, private authors must have an incentive to create works useful to the
government. OMB thus requires agencies to “observe and protect the rights of the copyright holder
and any other similar obligations.” Id. at 8555. This policy of federal government use of privately
developed standards was codified and fortified in the National Technology Transfer and
Advancement Act of 1995 (“NTTAA”).
9

OMB revised Circular A-119 on January 27, 2016, 81 FR 4673 (January 27, 2016), and
made clear the government’s position on copyright when standards are referenced by federal
agencies in agency regulations. After noting that the Office of Federal Register (“OFR”) had, in
November 2014, developed a rule to ensure that standards referenced in federal agency regulations
were “reasonably available” (see discussion below), OMB stated that OFR had “balanced its
statutory obligations regarding reasonable availability of the standards with: (1) U.S. copyright
law, (2) U.S. international trade obligations, and (3) agencies' ability to substantively regulate
under their authorizing statutes”, 3 and then directed in Circular A-119:
If an agency incorporates by reference material that is copyrighted
or otherwise subject to legal protection and not freely available, the
agency should work with the relevant standards developer to
promote the availability of the materials, consistent with applicable
law, such as through the use of technological solutions, low-costpublication, or other appropriate means, while respecting the
copyright owner’s interest in protecting its intellectual property. 4
Clearly the federal government has engaged in a “sensitive balancing of interests” in
connection with incorporation of standards by reference and explicitly respected and protected
“the copyright owner’s interest in protecting its intellectual property.”
Under defendant’s position, however, government use or adoption of a private work as part
of its regulatory scheme would, by definition, invalidate the author’s copyright in contravention
of OMB A-119 and the NTTAA. Importantly, the Freedom of Information Act (“FOIA”) provides
an effective mechanism to balance the rights of copyright holders in standards incorporated by

3

OMB Circular A-119 at 7, available at
https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/revised_circular_a119_as_of_1_22.pdf.
4

Id. at 21 (emphasis supplied). OMB added, “If a standard is used and published in an
agency document, your agency must observe and protect the rights of the copyright holder . . .”
Id. at 22.
10

reference with the public’s right to access the law. Specifically, FOIA expressly authorizes
reference by the Code of Federal Regulations (“CFR”) to materials incorporated by reference, with
the approval of the OFR, that are “reasonably available to the class of persons affected thereby.”
5 U.S.C. Section 552(a)(1). In other words, a standard is eligible for incorporation by reference
only if the federal agency wishing to include the standard determines it is “reasonably available”
to the class of persons affected by the anticipated public law.
The “reasonably available” approach was reaffirmed by the OFR in response to a petition
signed by a number of petitioners, including defendant. 5 That petition asked the National Archives
and Records Administration (“NARA”) to define “reasonably available” in the regulations to
require free access to standards incorporated by reference into the CFR. The OFR rejected this
request, reaffirming in its Final Rule on November 7, 2014, that “reasonably available” means that
the standard is accessible to any potential user but does not require that the standard be available
without a fee. 79 Fed. Reg. 66267 (November 7, 2014). Instead, the OFR announced nonconfiscatory revisions to its rules, including clarifying that government agencies “should
collaborate with the [SDOs] and other publishers of [incorporated by reference] materials, when
necessary, to ensure that the public does have reasonable access to the referenced documents.” Id.
at 66268. The government's balancing of interests by requiring reasonable access as a precondition
to referencing a standard in a regulation satisfies the Defendant's alleged purpose of making
standards available under Factor 1 of the fair use analysis.
As the federal policy reflected in OMB Circular A-119, the NTTAA, and the OFR’s
rulemaking makes clear, the U.S. government has important interests at stake and the destruction

5

See Petition submitted by Peter Strauss et al, February 21, 2012.
http://www.gpo.gov/fdsys/pkg/FR-2012-02-27/pdf/2012-4399.pdf.
11

of copyright relating to standards incorporated by reference would have a damaging impact on the
federal government. Indeed, according to the U.S. National Institute of Standards and Technology
(“NIST”), federal government agencies engage in standardization in a wide range of mission
specific roles, including contributing to development of standards in the private sector, ensuring
that standards are not used as technical barriers to trade by trading partners, using standards for
procurement or regulatory actions, and addressing competition-related aspects of standards-setting
activities.
The federal government also itself relies heavily on privately developed standards to serve
diverse regulatory objectives. For example, the Federal Energy Regulatory Commission (“FERC”)
uses incorporation by reference to make standards developed by NAESB mandatory for
participants in the wholesale energy markets. The use of consensus standards reduces the cost to
agencies due to economies of scale resulting from using the same standards for government as are
used for the commercial sector, and spurs innovation and greater product choice. 6
At the state and local level, as is the case at the Federal level, it is fair to say that
governments could not effectively function without privately developed standards. Virtually all
safety regulation requires expertise and experience that is beyond the resources of such
governments alone to marshal. A prime example of this reliance is in the regulation of buildings
and their related systems such as heating and cooling, plumbing, and electrical. Virtually all state
and local plumbing and mechanical codes are based on a model building code. Amicus IAPMO

6

See Testimony of Mary H. Saunders, Director, Standards Coordination Office National
Institute of Standards and Technology U.S. Department of Commerce Before the House
Committee on Science, Space, and Technology, Subcommittee on Technology and Innovation,
February 29, 2012, available at
https://science.house.gov/sites/republicans.science.house.gov/files/documents/hearings/HHRG112-SY19-WState-MSaunders-20120228.pdf.
12

has, since its inception in 1926, developed the Uniform Plumbing Code on a three-year cycle. The
2015 edition is a prodigious work exceeding 400 pages and covering the entire plumbing system.
The UPC has been adopted, in totality or with amendments, in 17 states and territories, as well as
in numerous municipalities.
SDOs like amici, in furtherance of their not-for-profit safety and welfare purposes, make
available the use of their works by governmental entities in setting safety and other regulations
when those entities deem it in the public interest. They do so with the understanding that these
works will retain their copyright and have to be made reasonably available to anyone who needs
them in order to comply with the law or to participate in the government programs that incorporate
those works. Indeed, for these works to have any utility for the governments that utilize them, they
must be made generally and reasonably available, and it is in the interests of the SDOs to see that
they are.
3.

The Public Would Be Harmed By Lost Efficiencies And Increased
Opportunity Costs.

The destruction of copyrights in standards ultimately would have the greatest negative
impact on the very group that the defendant in this case purports to represent – citizens whose
access to the law is allegedly compromised because they may have to pay for a standard. Indeed,
the public has the most to lose if copyright is lost every time federal, state, or local governments
incorporate standards into law.
If SDOs lose copyright in standards, they may be forced to increase stakeholder
participation fees in order to offset the loss of revenues from the sale of standards. This would, in
turn, disenfranchise consumers, small businesses, and local governments and potentially result in
a situation where those with money could have disproportionately increased influence over others.
This could also result in fewer and lower quality standards for use by the consuming public. The
13

lack of industry-wide contributions and fewer participants in the standards development process
would result in less transparency, diminished inclusivity, and standards becoming less broadbased.
Equally significant, if SDOs lose copyright in their standards, governments may be
compelled to develop more detailed regulations afresh, resulting in increased regulatory costs that
would be passed on to consumers. If for example NAESB could no longer afford to stay in the
standards-writing space and FERC took over the task of writing standards, it probably would be
done through a substantially less efficient and more costly process. FERC has explained that
“[f]rom our experience, the NAESB process is far more efficient and
cost effective method of developing technical standards for the
industries involved than the use of a notice and comment rulemaking
process involving numerous technical Conferences in Washington
that all believe they have to attend,” concluding that “the benefits of
having a well-established, consensus process outweigh whatever
costs non-members may incur in having to obtain copies of the
standards.” 7
4.

United States Industry Would Be Diminished.

Finally, if SDOs were forced to withdraw from standards development because they could
no longer fund their operations, some standards for new technologies could go undeveloped in the
United States. The United States, as a leader in innovation, would be negatively impacted. This
could result in fewer opportunities for U.S. companies and workers in industries driven by
standardization activities. The issue extends beyond leadership in standards development work:
standards are a tremendous part of market access issues that are being negotiated as part of the
United States Mexico Canada Agreement (USMCA) and other trade agreements.

7

Standards for Business Practices and Communication Protocols for Public Utilities, Final
Rule, 74 Fed. Reg. 63,287, 63,302 (Dec. 3, 2009).
14

The Federal Government’s Current Policies Relative to Incorporation By
Reference Reflect A Proper Balancing of Interests With The Standards
Ecosystem Consistent With The Fair Use Doctrine.
As the foregoing discussion demonstrates, the interests of governments and standards
development are in equipoise under current federal policy that maintains the copyright interests of
standards development organizations while providing public policy with informational resources
that advance government interests. Current federal policy has reasonably and “sensitively”
balanced the private interests of copyright holders and the public. Amici submit that this Court
was right when it concluded in connection with granting Plaintiffs first motion for summary
judgment, “However, changes to the statutory or regulatory framework that reconsider the
balancing of interests underlying modern copyright law and incorporation by reference must be
made by Congress, not this court.” Am. Soc’y for Testing & Materials v. Public.Resource.Org,
Inc., 2017 U.S. Dist. LEXIS 14623 at *47 (D.D.C. 2017). That conclusion is highly relevant to
the balancing of interests contemplated by the fair use doctrine in this case. 8
CONCLUSION
For the forgoing reasons, amici respectfully ask this honorable Court to enter
judgment for Plaintiffs.

8

To this point, we reiterate a point that amici raised in their prior brief on Plaintiffs’ First
Motion for Summary Judgment: the application of the Fifth Amendment’s Takings Clause if
copyrights are destroyed by adopting Defendant’s position in this case. Indeed, while addressing
no actual due process notice problem, a rule that the adoption of a standard by a legislature or
administrative body deprived the copyright owner of its property would, as one court observed,
“raise very substantial problems under the Takings Clause of the Constitution.” CCC Information
Services v. Maclean Hunter Market Reports, Inc., 44 F.3d 61, 74 (2nd Cir. 1994), cert. denied, 516
U.S. 817 (1995); Practice Mgmt. Information Corp. v American Medical Association, 121 F.3d
516, 520 (9th Cir. 1997), cert. denied, 524 U.S. 952 (1998) (same concern). When considering the
construction of Section 107 of the Copyright Act, this Court should balance the interests in a
manner that forecloses a Takings Clause problem.
15

DATED: December 6, 2019.

Respectfully submitted,

MORRIS, MANNING & MARTIN, LLP

CARTER LEDYARD & MILBURN, LLP

/s/ Bonnie Y. Hochman Rothell___
Bonnie Y. Hochman Rothell
D.C. Bar No.: 421606
1401 Eye St., NW, Suite 600
Washington, D.C. 20005
Phone: [phone]
Fax: [phone]
[e-mail]
Local Counsel for Amicus Curiae

/s/ Gerald W. Griffin___
Gerald W. Griffin
Admitted Pro Hac Vice
Two Wall Street
New York, NY 10005
Phone: [phone]
Fax: [phone]
[e-mail]
Counsel for Amicus Curiae

16

CERTIFICATE OF SERVICE
I HEREBY certify that on this 6th day of December 2019, a true and correct copy of the
foregoing document was filed with the Clerk of Court using the Court’s CM/ECF system, which
will serve notice of such filing upon all counsel of record.
/s/ Bonnie Y. Hochman Rothell