AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
81
MOTION for Leave to File Amicus Curiae Brief by PUBLIC KNOWLEDGE (Attachments: #1 Exhibit, #2 Text of Proposed Order)(Duan, Charles)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC.,
and NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.,
No. 1:14-cv-857 (TSC/DAR)
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG,
Defendant.
BRIEF OF PUBLIC KNOWLEDGE AS AMICUS CURIAE IN SUPPORT OF
DEFENDANT/COUNTER-PLAINTIFF PUBLIC.RESOURCE.ORG
Charles Duan (D.C. Bar No. 1013998)
Public Knowledge
1818 N Street NW, Suite 410
Washington, DC 20036
(202) 861-0020
cduan@publicknowledge.org
Counsel for amicus curiae
February 11, 2016
Rev. 1239ca91
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.
As with the ASTM Case, the Texts Here Are Not Entitled To Copyright Protection Due
to Their Incorporation Into Laws and Regulations . . . . . . . . . . . . . . . . . . . . . 1
II.
Claims that the Standards-Setting Process Depends on Copyright Revenues Are Belied
by Numerous Other Standards Organizations that Allow Free Access to Their Standards . . 2
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TABLE OF AUTHORITIES
Statutes
17 U.S.C. § 102(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Other Sources
Scott Bradner, The Internet Engineering Task Force, in Open Sources: Voices from the Open
Source Revolution 47 (Chris DiBona et al. eds., 1999) . . . . . . . . . . . . . . . . . . . . . . 2
HTML 4.01 Specification (Dave Raggett et al., W3C ed., Dec. 24, 1999), https://www.w3.
org/TR/1999/REC-html401-19991224/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
IETF Trust, Legal Provisions Relating to IETF Documents (Mar. 25, 2015), http://trustee.
ietf.org/docs/IETF-Trust-License-Policy.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Int’l Telecomms. Union, ITU-T Recommendations (last visited Feb. 10, 2016), http://www.
itu.int/en/ITU-T/publications/Pages/recs.aspx . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SIF Ass’n, “Access 4 Learning” Toolkit (North America) (Apr. 2014), available
at https://www.sifassociation.org/Resources/Decision-Maker-Resources/Implementing%
20SIF%20%20NA/Access%204%20Learning%20Toolkit.pdf . . . . . . . . . . . . . . . . . . 4
U.S. Dep’t of Educ., Common Education Data Standards: Related Initiatives (last visited
Feb. 10, 2016), https://ceds.ed.gov/relatedInitiatives.aspx . . . . . . . . . . . . . . . . . . . . 3
W3C Document License, World Wide Web Consortium (Feb. 1, 2015), https://www.w3.org/
Consortium/Legal/2015/doc-license . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(i)
INTEREST OF AMICUS CURIAE
Public Knowledge1 is a non-profit organization that is dedicated to preserving the openness
of the Internet and the public’s access to knowledge, promoting creativity through balanced intellectual property rights, and upholding and protecting the rights of consumers to use innovative
technology lawfully. Public Knowledge advocates on behalf of the public interest for a balanced
patent system, particularly with respect to new and emerging technologies.
ARGUMENT
I.
As with the ASTM Case, the Texts Here Are Not Entitled To Copyright Protection Due to
Their Incorporation Into Laws and Regulations
Amicus maintains its views set forth in the brief filed in the companion case ASTM v. Public
Resource (Case No. 13-cv-1215, Doc. No. 147). To avoid unnecessary duplication and repetition
before this Court, those arguments are only briefly summarized here.
The text of the law, including any texts incorporated by reference into and thereby essential
to that law, cannot receive the statutory monopoly of copyright. The lifeblood of statutory law is
exact wording, meaning that each and every word of a statute is operative and functional, rendering copyright protection inappropriate under 17 U.S.C. § 102(b). No paraphrasing of the law can
operate exactly as the original wording does, meaning that no expressive or creative elements—the
requisite elements for copyright protection—inhere in the original wording. Standards incorporated into laws or regulations are indistinguishable from original statutory text in this respect, and
1
This brief is being tendered with a motion for leave to file this brief. Pursuant to Local Rule
7(o)(5) and Federal Rule of Appellate Procedure 29(c)(5), no counsel for a party authored this brief
in whole or in part, and no counsel or party made a monetary contribution intended to fund the
preparation or submission of the brief. No person or entity, other than amicus, its members, or its
counsel, made a monetary contribution to the preparation or submission of this brief.
1
accordingly, incorporated standards cannot be the subject of copyright either.
Furthermore, the proposition that the text of the law is outside the bounds of copyright’s exclusivity is no mere accident, but rather it is a proposition that traces its roots back to the very founding
principles of this nation and its Constitution. Since its inception, courts have held that citizens have
a right to access the law—and not only a right to read it, but also a right to recompile it, redistribute
it, and reconform it for understandability by those of differing abilities such as the blind. Efforts to
secure an exclusive monopoly over the words that govern the citizenry are anathema to this strong
historical tradition of accessibility and due process.
II.
Claims that the Standards-Setting Process Depends on Copyright Revenues Are Belied
by Numerous Other Standards Organizations that Allow Free Access to Their Standards
In briefing in the companion ASTM case, several standards organizations as amici argued that
the viability of their standards-setting activities depended on their revenue stream from copyright
royalties, and to rule that incorporated standards were uncopyrightable would destroy their businesses and the standards-setting process overall. But the larger context of standards setting proves
these fears highly unfounded. Numerous standards-setting bodies—even today—are viable and
successful enterprises, even though they distribute their standards entirely for free.
Many of the most important standards bodies of the digital age gladly offer their standards
unrestrictedly for free, a supposed impossibility if copyright royalties were as essential to standards
organizations’ viability as these amici supporting Plaintiffs suggest. The Internet Engineering Task
Force (IETF), for example, has “created the routing, management, and transport standards without
which the Internet would not exist.” Scott Bradner, The Internet Engineering Task Force, in Open
Sources: Voices from the Open Source Revolution 47, 47 (Chris DiBona et al. eds., 1999). And
2
IETF makes its standards documents available for free to all comers. It grants to all people rights
“to copy, publish, display, and distribute IETF Contributions and IETF documents,” and even “to
translate IETF Contributions and IETF Documents into languages other than English.” IETF Trust,
Legal Provisions Relating to IETF Documents §§ 3(a)(i)–(ii) (Mar. 25, 2015), http://trustee.ietf.org/
docs/IETF-Trust-License-Policy.pdf.
Similarly, the World Wide Web Consortium (W3C) manages numerous technology standards,
such as the specifications for the HTML, CSS, and XML2 languages that underlie every web page
transmitted across the Internet today. See, e.g., HTML 4.01 Specification (Dave Raggett et al.,
W3C ed., Dec. 24, 1999), https://www.w3.org/TR/1999/REC-html401-19991224/. W3C grants to
all people a copyright license to copy and distribute its standards “in any medium for any purpose
and without fee or royalty.” W3C Document License, World Wide Web Consortium (Feb. 1, 2015),
https://www.w3.org/Consortium/Legal/2015/doc-license.
The practice of free licensing of standards is not limited to Internet infrastructure standards
bodies, but appears in fields as diverse as education and conservation. Of particular relevance
to the subject matter of this case, the Schools Interoperability Framework, or SIF, is a freeto-use, “platform independent, vendor neutral” data management protocol and implementation
framework for educational institutions. It has been endorsed by the US Department of Education and is widely adopted in the U.S., U.K., and Australia. U.S. Dep’t of Educ., Common
Education Data Standards: Related Initiatives (last visited Feb. 10, 2016), https://ceds.ed.gov/
relatedInitiatives.aspx. The Access for Learning Community (A4L), which devises the stan2
HTML stands for HyperText Markup Language; CSS stands for Cascading Style Sheets; XML
stands for Extensible Markup Language. These languages are used for formatting of web pages and
other Internet content.
3
dard, is a member-driven nonprofit that engages in a full spectrum of work to develop, promote, and support SIF and SIF implementation. It does this without monetizing the standards
in any form. SIF Ass’n, “Access 4 Learning” Toolkit (North America) (Apr. 2014), available
at https://www.sifassociation.org/Resources/Decision-Maker-Resources/Implementing%20SIF%
20%20NA/Access%204%20Learning%20Toolkit.pdf. Similarly, the International Telecommunications Union’s Telecommunication Standardization Sector (ITU-T) is responsible for a wide range
of telecommunications and audiovisual technologies, and it makes “[t]he vast majority of all Recommendations [] available in electronic (PDF) form free of charge.” Int’l Telecomms. Union,
ITU-T Recommendations (last visited Feb. 10, 2016), http://www.itu.int/en/ITU-T/publications/
Pages/recs.aspx.
Certainly it is true that these organizations are funded through other sources. But so are Plaintiffs
and the other standards organizations acting as amici, all of whom are membership organizations or
at least appear to have other lines of income-generating business. And of particular note: none of the
standards described above are incorporated into law, meaning that the organizations promulgating
those standards benefit neither from royalties of copyright nor from the monopoly lock-in effect of
a legal mandate. Yet they manage to succeed, strongly indicating that copyright royalties are by no
means a necessity for the survival of the standards-setting process.
Accordingly, contrary to the sky-is-falling contentions of some amici, there is little reason to
believe that the beneficial standards-setting process will disappear were this Court to rule correctly
that incorporated standards are not subject to copyright protection.
4
CONCLUSION
For the foregoing reasons, Public Resource’s motion for summary judgment should be granted,
and Plaintiffs’ motion should be denied.
Respectfully submitted,
Dated: February 11, 2016
/s/ Charles Duan
Charles Duan (D.C. Bar No. 1013998)
Public Knowledge
1818 N Street NW, Suite 410
Washington, DC 20036
(202) 861-0020
cduan@publicknowledge.org
Counsel for amicus curiae
5
CERTIFICATE OF SERVICE
I hereby certify that on February 11, 2016, I caused the foregoing Brief of Public Knowledge
as Amicus Curiae in Support of Defendant/Counter-Plaintiff Public.Resource.Org to be electronically filed with the Clerk of the Court using CM/ECF, which will automatically send email
notification of such filing to all counsel of record.
Dated: February 11, 2016
/s/ Charles Duan
Charles Duan
Counsel for amicus curiae
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