ASTM et al. v. Public Resource, Civil Action No. 13-cv-1215 (D.D.C Feb. 2, 2017) involved 257 of ASTM’s standards and the 1999 AERA standards that have been incorporated by reference into federal law. Public Resource posted these standards on the internet. ASTM sued for copyright and trademark infringement, and Public Resource counterclaimed for a declaration that its conduct did not violate copyright law or trademark law. The parties cross-moved for summary judgment.
At the heart of Public Resources Defendant’s defense is the argument that Plaintiffs’ standards lost their copyright protections the instant they were incorporated by reference into federal regulations. The district court found that Congress has already passed on the question of revoking copyright protection for standards that have been incorporated by reference into regulations, and any further consideration of the issue must be left to Congress for amendment. Specifically, the court looked to Section 105 of the Copyright Act, which states that “[c]opyright protection under this title is not available for any work of the United States Government.” Section 101 defined a work of the United States Government as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” The court concluded that:
These are the only government-related works that outright lack copyright under the law. For other types of works, such as those commissioned by the government or created under government contract by private parties, Congress chose to make case-by-case decisions and leave the determination of whether private copyright should exist to the federal agency that commissioned or contracted for the work.
Significant to the court was the fact that Congress was aware of the practice of incorporating standards by reference into regulations when it passed the current copyright law, but made no mention of these incorporated works. Moreover, the court noted that Congress has determined that online access to the nation’s laws and regulations need not be provided for no cost.
The court concluded that the situation invoves policy balancing that Congress is presumed to have already engaged in, and any further changes to the law in light of new technological developments and resulting changes in public expectations of access to information are best addressed by Congress, rather than this court.
Public Resource also raised due process requirements of access the text of “the law,” including the standards at issue here. The court noted taht four Circuit Courts have considered similar arguments regarding copyrighted works incorporated by reference into state and federal regulations. The First, Second, Fifth, and Ninth each dealt with similar issues, with mixed results. The court found that the ASTM standards have not entered the public domain upon their incorporation by reference into federal regulations and do not lose their copyright protection.