A recent decision by the U. S. Court of Appeals District of Columbia Circuit clearly demonstrates the importance of issues raised by unauthorized publishing of codes and standards. The court issued its decision in a copyright and trademark infringement case brought by three standard development organizations – NFPA, along with ASTM International and American Society of Heating, Refrigerating and Air Conditioning Engineers – against Public.Resource.Org, Inc.

The Appeals Court returned the case to the District Court in the District of Columbia for further fact-finding.

The Appeals Court did not adopt PRO’s argument that publishing standard development organizations’ codes and standards in whole is permitted whenever a jurisdiction anywhere incorporates a standard by reference.

Instead, the Appeals Court directed the District Court to consider additional facts before determining whether PRO’s claim of fair use would justify the unauthorized publication.

As standard development organizations, we look forward to providing additional facts for review in this case. The facts will show:

• Every day, companies, consumers and government entities depend on standards developed by mission-driven, not-for-profit SDOs. Without those privately developed, expert standards, people would be less safe and commerce would be hurt.
• These standards include a wide variety of highly technical works, ranging from product specifications and installation methods to model safety codes and standards. They address a wide range of health and safety subjects, and they serve the needs of a rapidly evolving and innovative modern economy.
• Continued, unauthorized publication of these standards threatens the existence and quality of these standards. Unauthorized posting can lead to false, flawed and dangerous versions of these standards. It also will lead SDOs to invest less in the expert development of these needed standards – shifting the burden and costs of developing them to state, local or federal governments or the very industries these standards are supposed to regulate.