EFF to Court: Don’t Let Private Organizations Control Access to the Law

Public.Resource.Org has one simple mission: to improve public access to government documents, including our laws. Public Resource believes—and EFF agrees—that everyone should be able to read, analyze, and share the laws that govern us, without having to pay a gatekeeper or sign a contract. Sounds uncontroversial, right? Not for the standards organizations that sued Public Resource, claiming that they have the right to control access to a huge chunk of the law because they convened the people who drafted it.

As a practical matter, the core issue is how these particular laws became legal mandates. In these cases, the works started out as voluntary standards on topics like fire safety, energy efficiency, and test design. Those once-voluntary standards were then adopted as binding law by various city, state, and federal agencies through “incorporation by reference.”

When a standard is incorporated “by reference,” that means its text is not actually reprinted in the body of the government’s published regulations. Instead, the regulations just include a citation to the standard, which means you have to track down a copy somewhere else if you want to know what the law requires. And for many incorporated standards, this is no easy task. In fact, there have even been cases where a court couldn’t determine what the law said because it couldn’t find an incorporated standard.

That’s where Public Resource comes in. Public Resource purchases copies of standards that have been incorporated into law and posts them online, where anyone can read and download them for free. In 2013, six standards organizations sued Public Resource for performing this public service, accusing it of copyright and trademark infringement.

Last year, a panel of appellate court judges recognized that allowing private actors to control access to the law raises serious constitutional concerns. Seeing copyright’s fair use doctrine as a potential solution to those concerns, the appeals court sent the case back to the district court for further consideration of the fair use factors at play.

In two briefs filed this month, EFF, along with co-counsel at Fenwick & West and attorney David Halperin, argues that the public interest must be the touchstone of the copyright fair use analysis where the works in question are the law. A finding of infringement in this case would not just disserve the public; it would violate the First Amendment’s free speech guarantee and the due process protections of the Fifth and Fourteenth Amendments.

We hope the district court will heed EFF’s arguments and the appeals court’s guidance, and will shut down these attempts to block uninhibited public access to the law.