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Court Vacates Injunction Against Publishing The Law

A federal appeals court ruled Tuesday that industry groups cannot control publication of binding laws and standards.

This decision protects the work of Public.Resource.org, a nonprofit organization that works to improve access to government documents. PRO is represented by the Electronic Frontier Foundation; the law firm of Fenwick & West; and attorney David Halperin.

Six large industry groups that work on building and product safety, energy efficiency, and educational testing filed suit against PRO in 2013.

These groups publish thousands of standards that are developed by industry and government employees.

Some of those standards are incorporated into federal and state regulations, becoming binding law.

As part of helping the public access the law, PRO posts those binding standards on its website.

The industry groups, known as standards development organizations, accused PRO of copyright and trademark infringement for posting those standards online.

In effect, they claimed the right to decide who can copy, share, and speak the law.

The federal district court for the District of Columbia ruled in favor of the standards organizations in 2017, and ordered PRO not to post the standards.

On Tuesday, a three-judge panel of the Court of Appeals for the D.C. Circuit reversed that decision, ruling that the district court did not properly consider copyright's fair use doctrine.

It rejected the injunction and sent the case back to district court for further consideration of the fair use factors at play.

"[I]n many cases," wrote the court, "it may be fair use for PRO to reproduce part or all of a technical standard in order to inform the public about the law."

"Our mission at PRO is to give citizens access to the laws that govern our society," said PRO founder Carl Malamud. "We can't let private industry control how we access, share, and speak the law. I'm grateful that the court recognized the importance of fair use to our archive."

This is an important ruling for the common-sense rights of all people. As Judge Gregory Katsas wrote in his concurrence, the demands of the industry groups for exclusive control of the law "cannot be right: access to the law cannot be conditioned on the consent of a private party."

Based on today's unanimous ruling, EFF is confident we can demonstrate that Public Resource's posting of these standards is protected fair use.

"Imagine a world where big companies can charge you to know the rules and regulations you must follow," said EFF legal director Corynne McSherry. "The law belongs to all of us. We all have a right to read, understand and share it."

More background here.

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Posted on July 18, 2018


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