July 20, 2018

A federal appeals court has ruled in favor of Carl Malamud’s Public.Resource.Org, ordering a trial court to reconsider his fair use claims


We’ve written about Carl Malamud and PRO (a charitable organization he founded to disseminate articles of public interest on the internet) several times over the last few years. Malamud’s been a tireless advocate for transparency and open access to legal and civic documents, publishing thousands and thousands of pages of material online at public.resource.org and law.resource.org.

Since we live in a cartoonish dystopia, where utterly shameless—and incompetent—corporations more or less dictate public policy to a craven political class, Malamud has been repeatedly sued for this activity. Though he’s had plenty of victories over the years, our coverage has, by unhappy coincidence, been primarily of a particularly galling defeat in Georgia. The state had sued Malamud, at the behest of LexisNexis, for providing its annotated laws for free online.

It is with outright glee then, that we share with you the news of Malamud’s big win in a federal appeals court, where a panel of three judges has unanimously reversed a 2017 injunction handed down by a DC federal trial court, barring Malamud and PRO from publishing proprietary standards for a variety of industries, even though those standards have been incorporated into federal, state, and local law.

The decision resolved a 2013 suit brought by a consortium of industrial organizations working in building and product safety, energy efficiency, and educational testing, collectively known as the American Society for Testing and Materials (ASTM). This group of groups decides on technical guidelines, industry standards, and norms within those industries; because, in turn, legislators are often ignorant of the technical specs that they encode, the law often simply refers to those standards obliquely. They occupy a strange intermediate zone, legally — proprietary documents without access to which public law cannot really be followed.

Despite this, the trial court chose to uphold the copyright on the proprietary information. The most recent decision does not completely invalidate the earlier one; instead, it finds that the trial court erred in failing to consider PRO’s fair use claims, and orders the case back to court.

As Judge David Tatel writes in his opinion:

Across a diverse array of commercial and industrial endeavors, from paving roads to building the Internet of Things, private organizations have developed written standards to resolve technical problems, ensure compatibility across products, and promote public safety. These technical works, which authoring organizations copyright upon publication, are typically distributed as voluntary guidelines for self-regulation. Federal, state, and local governments, however, have incorporated by reference thousands of these standards into law. The question in this case is whether private organizations whose standards have been incorporated by reference can invoke copyright and trademark law to prevent the unauthorized copying and distribution of their works…

In his concurrence, Judge Gregory Katsas adds:

The plaintiffs here claim a copyright over binding legal texts, which would enable them to prevent anyone from gaining access to that law or copying it for the public. Moreover, saying what that law is, without plaintiffs’ permission, would expose an individual to injunctive relief, impoundment, damages, attorneys’ fees, and potentially even criminal liability. As a matter of common-sense, this cannot be right: access to the law cannot be conditioned on the consent of a private party, just as it cannot be conditioned on the ability to read fine print posted on high walls.

This is a necessarily complicated way of saying something that should be an obvious and foundational principle of any democratic society: it is not reasonable for the law of the land to be owned as one person or group’s intellectual property — even when it starts out as such.

Book publishers necessarily depend on copyright to maintain a sustainable business producing, promoting, and selling books. This case is about something different: the power of certain parties to own—literally own—the right to know what the law is. However one feels about intellectual property, it is very hard to imagine a good-faith defense of its deployment in the service of reducing general capacity to comply with the law.

Many thanks to Carl Malamud for his trailblazing work. We’ll be keeping an eye on further hearings in this and other cases.



Simon Reichley is the Director of Operations and Rights Manager at Melville House.