Amicus Curiae Brief — Georgia, et al., Petitioners v. Public.Resource.Org, Inc.

Supreme Court briefAug 30, 2019

Ask Donna

What actually matters in this document.

Text

No. 18-1150

IN THE

Supreme Court of the United States

____________________

STATE OF GEORGIA, ET AL.,

Petitioners,

PUBLIC.RESOURCE.ORG, INC.,

Respondent.

____________________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________

BRIEF OF AMICI CURIAE AMERICAN SOCIETY FOR TESTING AND MATERIALS; NATIONAL FIRE PROTECTION ASSOCIATION,

INC.; AMERICAN SOCIETY OF HEATING,

REFRIGERATING, AND AIR CONDITIONING

ENGINEERS, INC.; AMERICAN NATIONAL

STANDARDS INSTITUTE; INTERNATIONAL

ASSOCIATION OF PLUMBING & MECHANICAL OFFICIALS; INTERNATIONAL ELECTROTECHNICAL COMMISSION; INTERNATIONAL ORGANIZATION FOR STANDARDIZATION; NATIONAL ELECTRICAL MANUFACTURERS ASSOCIATION; NORTH AMERICAN ENERGY STANDARDS BOARD; AND

UNDERWRITERS LABORATORIES INC. IN

SUPPORT OF NEITHER PARTY

____________________

DONALD B. VERRILLI, JR.

Counsel of Record

RACHEL G. MILLER-ZIEGLER

MUNGER, TOLLES & OLSON LLP

1155 F Street NW, 7th Floor

Washington, DC 20004-1357

(202) 220-1100

Donald.Verrilli@mto.com

(additional counsel listed on inside cover)

J. BLAKE CUNNINGHAM

KING & SPALDING LLP

500 West 2nd Street,

Suite 1800

Austin, TX 78701

(512) 457-2000

Counsel for Amicus American Society of Heating, Refrigerating, and Air Conditioning Engineers, Inc.

GERALD W. GRIFFIN

CARTER LEDYARD & MILBURN LLP

2 Wall Street

New York, NY 10005

(212) 732-3200

Counsel for Amici American

National Standards Institute, International Association of Plumbing & Mechanical Officials, International Electrotechnical

Commission, International

Organization for Standardization, North American Energy Standards Board, and

Underwriters Laboratories

Inc.

KELLY M. KLAUS

MUNGER, TOLLES & OLSON LLP

560 Mission Street, 27th Floor

San Francisco, CA 94105

(415) 512-4000

ANJAN CHOUDHURY

ROSE LEDA EHLER

MUNGER, TOLLES & OLSON LLP

350 S. Grand Ave., 50th Floor

Los Angeles, CA 90071

(213) 683-9100

Counsel for Amicus National

Fire Protection Association, Inc.

J. KEVIN FEE

JANE WISE

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Ave., NW

Washington, DC 20004

(202) 739-5353

Counsel for Amicus American

Society for Testing and Materials d/b/a/ ASTM International

CLARK SILCOX

NATIONAL ELECTRICAL

MANUFACTURERS ASSOCIATION

1300 N 17th St. NW, 9th Floor

Rosslyn, VA 22209

(703) 841-3290

Counsel for National Electrical

Manufacturers Association

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .................................................... 6

ARGUMENT ............................................................... 7

II.

ESSENTIAL TO PRIVATE STANDARDS

DEVELOPMENT. ............................................ 7

Private standards development is a

resource-intensive process that

depends on copyright protection. .......... 8

The public has long benefited from

privately developed standards

through incorporation by reference. ... 11

private standards development

system. ................................................. 15

Whether copyright subsists in

standards incorporated into law is

being addressed in separate

litigation. ............................................. 19

THE GOVERNMENT EDICTS

DOCTRINE DOES NOT APPLY TO

STANDARDS THAT ARE PRIVATELY

DEVELOPED AND PROPERLY

COPYRIGHTED AT CREATION. ................. 20

The “government edicts” exception

has no application to properly

copyrighted, private standards that

are incorporated by reference. ............ 21

No statute divests standards of

their copyright when they are

subsequently incorporated into

law. ....................................................... 27

The holding in this case need not

reach the copyright issues in cases

involving privately developed

standards. ............................................ 29

CONCLUSION ......................................................... 32

iii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Am. Soc’y for Testing & Materials v.

Public.Resource.Org, Inc.,

896 F.3d 437 (D.C. Cir. 2018) ........................ 20, 30

Am. Soc’y for Testing & Materials v.

Public.Resource.org, Inc.,

No. 13-CV-1215 (TSC), 2017 WL

473822 (D.D.C. Feb. 2, 2017) ................... 19, 26, 29

Banks v. Manchester,

128 U.S. 244 (1888) ........................................ 21, 25

Bldg. Officials & Code Adm. v. Code

Tech., Inc.,

628 F.2d 730 (1st Cir. 1980) ................................. 30

Callaghan v. Myers,

128 U.S. 617 (1888) .............................................. 22

CCC Info. Servs., Inc. v. Maclean Hunter

Mkt. Reports, Inc.,

44 F.3d 61 (2d Cir. 1994) ................................ 26, 30

Code Revision Comm’n for Gen.

Assembly of Georgia v.

Public.Resource.Org, Inc.,

906 F.3d 1229 (11th Cir. 2018) ...................... 22, 23

Fourth Estate Pub. Benefit Corp. v.

Wall-Street.com, LLC,

139 S. Ct. 881 (2019) ............................................ 24

TABLE OF AUTHORITIES

(continued)

Page(s)

Mazer v. Stein,

347 U.S. 201 (1954) .......................................... 8, 19

Oracle Am., Inc. v. Google Inc.,

750 F.3d 1339 (Fed. Cir. 2014)............................. 24

Practice Mgmt. Info. Corp. v. Am. Med.

Ass’n,

121 F.3d 516 (9th Cir. 1997),

amended, 133 F.3d 1140 (9th Cir.

1998).......................................................... 25, 27, 30

Reed Elsevier, Inc. v. Muchnick,

559 U.S. 154 (2010) .............................................. 27

Veeck v. S. Bldg. Code Cong. Int’l, Inc.,

293 F.3d 791 (5th Cir. 2002) ................................ 30

Wheaton v. Peters,

33 U.S. 591 (1834) ................................................ 21

Whitman v. Am. Trucking Ass’ns, Inc.,

531 U.S. 457 (2001) .............................................. 29

FEDERAL STATUTES

15 U.S.C. § 272........................................................... 14

17 U.S.C. § 106........................................................... 24

17 U.S.C. § 204........................................................... 27

17 U.S.C. § 302........................................................... 27

TABLE OF AUTHORITIES

(continued)

Page(s)

Act of June 5, 1967, Pub. L. No. 90-23,

81 Stat. 54 (codified at 5 U.S.C.

§ 552) ..................................................................... 27

Pub. L. No. 104-113, 110 Stat. 775

(1996) .............................................................. 14, 28

FEDERAL REGULATIONS

1 C.F.R. § 51.7(a)(3) ................................................... 25

16 C.F.R. § 1223.2 ...................................................... 11

16 C.F.R. § 1227.2 ...................................................... 11

16 C.F.R. § 1250.2 ...................................................... 12

38 C.F.R. § 17.74 ........................................................ 12

38 C.F.R. § 51.200 ...................................................... 12

40 C.F.R. § 86.113-04 ................................................. 14

42 C.F.R. § 483.90 ...................................................... 12

46 C.F.R. § 161.002-10(b) .......................................... 12

63 Fed. Reg. 8546 (Feb. 19, 1998) ............................. 12

81 Fed. Reg. 4673 (Jan. 27, 2016) ............................. 12

STATE REGULATIONS

Cal. Code Regs. Title 8, § 3406 .................................. 11

TABLE OF AUTHORITIES

(continued)

Page(s)

Minn. R. 7511.6102 .................................................... 14

Nev. Admin. Code § 477.2835 ................................... 14

Tenn. Comp. R. & Regs. 0800-03-04.13(1)(a) ................................................................. 13

Tenn. Comp. R. & Regs. 1200-03-16.27(2)(n) ................................................................. 14

Wash. Admin. Code § 296-305-02002(1) ................... 11

CONSTITUTIONAL PROVISIONS

U.S. Const. article 1, § 8, cl. 8 ............................... 7, 19

LEGISLATIVE MATERIALS

H.R. Rep. 94-1476 .......................................... 27, 28, 29

OTHER AUTHORITIES

ANSI Essential Requirements § 1.0

(Jan. 2019), available at

www.ansi.org/essentialrequirements .................... 9

Emily S. Bremer, On the Cost of Private

Standards in Public Law, 63 U. Kan.

L. Rev. 279 (2015) ................................................. 12

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Emily S. Bremer, Technical Standards

Meet Administrative Law: A

Teaching Guide on Incorporation by

Reference, 71 Admin. L. Rev. 315

(2019) .............................................................. 14, 16

FAA, https://www.faa.gov/uas/resources/

policy_library/section_352_responses/

media/107_39_for_section_352.pdf ...................... 13

NFPA, How to Submit a request for a

NFPA project,

https://www.nfpa.org/Codes-andStandards/Standards-developmentprocess/How-the-process-works/Newprojects-and-draft-documents#How

ToSubmit .............................................................. 23

OMB Circular A-119, 63 Fed. Reg. 8546

(Feb. 19, 1998), as revised 81 Fed.

Reg. 4673 (Jan. 27, 2016), available

at https://www.whitehouse.gov/sites/

whitehouse.gov/files/omb/circulars/

A119/revised_circular_a-119_as_of_

1_22.pdf................................................................. 12

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Plaintiffs’ Memorandum of Law in Support of Their Motion for Summary

Judgment and for a Permanent Injunction, Am. Soc’y for Testing &

Materials v. Public.Resource.org,

Inc.,

No. 13-CV-1215 (TSC) (D.D.C. Nov.

19, 2015), ECF No. 118-1 ..................................... 15

Standards, Conformity Assessment, and

Trade: Into the 21st Century

(National Academy Press 1995),

available at http://www.nap.edu/

read/4921/chapter/1 .............................................. 28

INTEREST OF AMICI CURIAE 1

American Society for Testing and Materials d/b/a/

ASTM International (“ASTM”) is a non-profit organization established in 1898 and headquartered in West

Conshohocken, Pennsylvania. ASTM is dedicated to

the development and publication of international voluntary consensus standards for materials, products,

systems, and services. ASTM has developed more

than 12,500 standards and has more than 30,000

members worldwide. Through its standards, ASTM

positively impacts public health and safety, consumer

confidence, and overall quality of life.

The National Fire Protection Association, Inc.

(“NFPA”) is a self-funded non-profit devoted to reducing the risk of death, injury, and property and economic loss due to fire, electrical, and related hazards.

NFPA has been developing standards since it was

founded in 1896. Today, NFPA’s principal activity is

the development and publication of over 300 standards

in the areas of fire, electrical, and building safety.

NFPA’s flagship work is the National Electrical Code,

which is the world’s leading standard for electrical

safety and provides the benchmark for safe electrical

design, installation, and inspection to protect people

and property from electrical hazards.

American Society of Heating, Refrigerating, and

Air Conditioning Engineers (“ASHRAE”) is a nonPursuant to Supreme Court Rule 37.6, amici affirm that no

counsel for a party authored this brief in whole or in part, and

that no person or entity other than amici, their members, and

their counsel made a monetary contribution intended to fund the

preparation or submission of this brief. The parties have consented to the filing of this brief.

profit organization dedicated to advancing the science

of heating, ventilation, air conditioning, and refrigeration in order to help humanity and promote sustainability. ASHRAE has more than 57,000 members. Its

members volunteer their time to advance the

ASHRAE mission, including through development of

consensus based standards that represent best practices in the relevant industries.

In 2013, ASTM, NFPA, and ASHRAE filed a copyright infringement action against Public.Resource.Org

challenging

Public.Resource.Org’s

unauthorized

online posting of their copyrighted works. That litigation remains pending in the District Court for the District of Columbia and is discussed further in this brief.

The American National Standards Institute, Incorporated (“ANSI”) is a not-for-profit membership organization that, for more than 100 years, has administered and coordinated the voluntary standardization

system in the United States. ANSI facilitates the development of American National Standards (“ANSs”)

by accrediting the procedures of standards development organizations (“SDOs”). These SDOs work cooperatively to develop voluntary national consensus

standards, some of which are incorporated by reference into government regulations, that are used in virtually every industry sector and in all aspects of daily

life, from toys and food safety to electrical codes and

the built environment. Accreditation by ANSI signifies that the procedures used by the standards developer in connection with the development of ANSs meet

ANSI’s essential requirements for openness, balance,

consensus and due process. A number of the amici

here are among the 243 ANSI accredited SDOs. ANSI

thus has an interest in ensuring that this Court’s holding not cast doubt upon the critically important copyright protection for private standards that are subsequently incorporated by reference.

International Association of Plumbing & Mechanical Officials (“IAPMO”) coordinates the development of

plumbing and mechanical codes and standards to meet

the specific needs of individual jurisdictions and industry both in the United States and abroad. IAPMO

is a not-for-profit membership organization that was

founded in 1926.

Founded in 1906, the International Electrotechnical Commission (“IEC”) is a not-for-profit organization based in Geneva, Switzerland. The IEC is the

leading global organization that publishes consensusbased International Standards and manages conformity assessment systems for electric and electronic

products, systems and services, collectively known as

electrotechnology. The IEC represents a global network of 173 countries. Close to 20,000 experts from

industry, commerce, government, test and research

labs, academia and consumer groups participate in

IEC standardization work. IEC International Standards are developed through consensus and in accordance with the World Trade Organization principles.

IEC International Standards also serve as a basis for

national standardization.

The International Organization for Standardization (“ISO”), also based in Switzerland, is a non-governmental non-profit organization with members from

162 national standards bodies. Through its international consensus based processes, consistent with the

World Trade Organization principles on international

standards, ISO has developed and published over

21,000 voluntary International Standards on a number of subjects.

National Electrical Manufacturers Association

(“NEMA”) is the association of electrical equipment

manufacturers, founded in 1926. NEMA sponsors the

development of and publishes over 500 standards relating to electrical products and their use. NEMA’s

member companies manufacture a diverse set of products including power transmission and distribution

equipment, lighting systems, factory automation and

control systems, building controls and electrical systems components, and medical diagnostic imaging systems. To protect its copyright interest in standards

publications that are referenced in federal regulations,

NEMA appeared as amicus curiae, along with ANSI

and other SDOs, in the litigation involving ASTM,

NFPA, and ASHRAE in the Court of Appeals for the

District of Columbia Circuit.

North American Energy Standards Board

(“NAESB”) was formed in 1994 as a not-for-profit

standards development organization dedicated to the

development of commercial business practices that

support the wholesale and retail natural gas and electricity markets. NAESB maintains a membership of

over 300 corporate members representing the spectrum of gas and electric market interests and has more

than 2,000 participants active in standards development. To date, NAESB, and its predecessor organization the Gas Industry Standards Board, have developed over 4,000 standards through its collaborative,

consensus-based process, a majority of which have

been incorporated by reference in federal regulations

by the Federal Energy Regulatory Commission.

Underwriters Laboratories Inc. (“UL”) is an independent, not-for-profit standards developer dedicated

to promoting safe living and working environments

since its founding in 1894. UL’s standards provide a

critical foundation for the safety system in the United

States and around the world, as well as promote innovation and environmental sustainability. With over

125 years of experience and the development of over

1,500 standards, UL advances safety science through

careful research and investigation.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Amici are non-profit standards development organizations (“SDOs”) and other groups that participate in

developing private technical and specialized standards or that benefit from those standards. SDOs invest substantial resources to produce high-quality

standards that are vital to the functioning and safety

of a range of industries, consumer products, and regulatory fields. Consistent with their public-service mission and non-profit status, amici SDOs make these

standards easily and widely accessible to the public.

SDOs fund their work through the sale and licensing

of their standards. The protection of the copyright

laws makes it possible for them to do so.

Governments at every level have long-recognized

the value of privately developed standards, which contribute critical technical expertise and reflect the most

up-to-date methods. Accordingly, legislatures and administrative agencies across the country have, for over

a century, adopted the prescriptive elements of privately published standards into their own statutes

and regulations. In doing so, governments are able to

capitalize on private investment and avoid the significant costs and redundancies of creating their own

standards, as well as decrease regulatory burdens and

increase efficiency and uniformity for industries that

already rely on private standards and that otherwise

would have to conform to a multitude of varying jurisdiction-specific requirements.

Litigation is currently pending in the District

Court for the District of Columbia, between several

amici SDOs and Public.Resource.Org, the Respondent

here. In that case, Public.Resource.Org contends that

any time any jurisdiction makes reference to a privately developed standard in a statute or regulation,

that standard immediately becomes “the law,” and its

works that were undisputedly validly copyrighted at

creation—is distinct from the question presented here.

This case concerns works created by the government,

either because the government directly authors the

works or is deemed the author by the Copyright Act’s

work-made-for-hire provision. Whatever this Court

decides in this case, amici respectfully request that the

Court’s holding not cast doubt upon longstanding and

critically important copyright protection for private

standards that are subsequently incorporated by reference. Those copyright questions should be resolved

in the litigation directly addressing them, based on the

complete record and arguments the involved parties

develop.

ARGUMENT

The Constitution expressly declares the Founders’

goal of “promot[ing] the Progress of Science,” and empowers Congress to further this goal “by securing for

limited Times to Authors * * * the exclusive Right to

their respective Writings.” U.S. Const. art. 1, § 8, cl.

8. As this Court has long recognized:

The economic philosophy behind the clause

empowering Congress to grant patents and

copyrights is the conviction that encouragement of

individual effort by personal gain is the best way to

advance public welfare through the talents of

authors and inventors in ‘Science and useful Arts.’

Sacrificial days devoted to such creative activities

deserve rewards commensurate with the services

rendered.

Mazer v. Stein, 347 U.S. 201, 219 (1954).

For over a century, the incentive structure of the

by SDOs. The process of developing and revising

standards requires an investment of considerable time

and effort. Like other authors, SDOs recoup their investment through the copyrights they hold in those

standards. Governments, in turn, rely on the standards that this system produces by incorporating them

into their governing codes, allowing governments to

obtain the benefit of the private-sector investment and

draw on the considerable expertise that the standardsetting process brings to bear. Eliminating copyright

protection would threaten this well-established system.

Private standards development is a resource-intensive process that depends

on copyright protection.

1. “Standards” are technical works that describe

product specifications, provide methods for manufacturing and testing, and offer recommended safety

practices. Standards provide guidance that can range

from the arcane, e.g., ASTM E2311 (Standard Practice

for QCM Measurement of Spacecraft Molecular Contamination in Space), to the broadly applicable, e.g.,

NFPA 720 (Standard for the Installation of Carbon

Monoxide (CO) Detection and Warning Equipment).

And they cover fields as varied as psychological testing, e.g., Standards for Educational and Psychological

Testing; building design, e.g., ASHRAE 90.2 (EnergyEfficient Design of Low-Rise Residential Buildings);

and toy safety, e.g., ASTM F963 (Standard Consumer

Safety Specification for Toy Safety).

In the United States, standards are principally developed by private SDOs, which have technical expertise in a particular area. Development processes vary,

but most SDOs follow the requirements of the American National Standards Institute (“ANSI”), which accredits and coordinates standards development. To receive accreditation, standards must comply with the

ANSI “Essential Requirements,” which aim to allow

“any person * * * with a direct and material interest”

to participate in standards development by “expressing a position and its basis,” “having that position considered,” and “having the right to appeal.” See ANSI

Essential Requirements § 1.0 (Jan. 2019). 2 An SDO

seeking approval for a standard must show that it did

not impose any “undue financial barriers to participation,” condition voting on membership status, or allow

“any single interest” to exert disproportionate influence on the process. See id. § 1.1-.2. SDOs must establish a written procedure outlining their processes;

solicit input from “diverse interest categories”; publicize standards activity where appropriate to provide

the opportunity for full public participation; and allow

for a “realistic,” “readily available,” and “impartial”

appeals mechanism. See id. § 1.3, 1.5, 1.8-.9.

The National Fire Protection Association’s

(“NFPA”) development process is illustrative. The process begins with the posting of a public notice online

soliciting input from interested persons. After receiving public input, one of NFPA’s over 250 Technical

Committees—consisting of thousands of volunteers

Available at www.ansi.org/essentialrequirements.

from the public, government, academia, and industry—holds a public meeting to consider and respond to

all public comments. The Committee creates a draft

standard that is posted to the NFPA website for another round of public review and comment. After the

second comment period, the Technical Committee creates a revised draft that it submits to the NFPA Standards Council, together with any appeals. The Council

decides appeals and, if appropriate, issues the standard as an official NFPA standard. All told, the process

for NFPA to create a single private standard spans

roughly two years, and NFPA undertakes this process

for each of its over-300 standards every three to five

years.

2. Creating and updating standards is expensive.

While thousands of expert and lay volunteers provide

input, the SDOs themselves must cover the cost of salary and benefits paid to their administrative and editorial staff who oversee the process and assist in drafting the actual text of standards. Some SDOs, like

NFPA, also employ their own expert staff to give technical guidance to volunteer members of technical committees during the standards process. SDOs also pay

for office and meeting space for multi-day meetings

that may involve hundreds of participants. And they

incur significant expenses in publishing various committee reports, collecting public input and comments,

coordinating outreach and education efforts, and managing information technology. In 2018 alone, for instance, the American Society for Testing and Materials (“ASTM”) spent more than $7.8 million on technical committee operations, and NFPA spent over $11

million. SDOs incur still more costs in publishing the

standards.

SDOs are able to fund this considerable investment

because they can generate revenue from selling, licensing, and otherwise distributing their standards to

the professionals who use them in their work. Copyright protection is what makes this possible. NFPA,

for example, generates about 65% of its revenue from

the sale of copyrighted materials; approximately 75%

of ASTM’s revenues derive from the sale of copyrighted standards.

The public has long benefited from privately developed standards through incorporation by reference.

Federal state, and local governments have long

benefited from privately developed standards. Rather

than creating a new set of rules for a particular industry or practice out of whole cloth, legislatures and

agencies can refer to an already existing standard—

that is, incorporate it by reference—when drafting

statutes and regulations. Governmental entities routinely acknowledge that SDOs retain their copyright

protection for standards that have been incorporated

by reference in this manner.

Incorporated standards play a critical role in promoting public health and safety. For example, states

often incorporate NFPA 1971: Standard on Protective

Ensembles for Structural Fire Fighting and Proximity

Fire Fighting to provide guidelines for firefighter protective gear. See, e.g., Cal. Code Regs. Tit. 8, § 3406;

Wash. Admin. Code § 296-305-02002(1). The federal

government has incorporated several ASTM standards that cover children’s health and safety. See, e.g.,

16 C.F.R. § 1223.2 (ASTM F2088-13: Standard Consumer Safety Specification for Infant Swings); 16

C.F.R. § 1227.2 (ASTM F833-15: Standard Consumer

Safety Performance Specification for Carriages and

Strollers); 16 C.F.R. § 1250.2 (ASTM F963-17: Standard Consumer Safety Specification for Toy Safety).

And federal agencies have relied on NFPA 72: National Fire Alarm and Signaling Code, NFPA 99:

Health Care Facilities Code, and NFPA 101: Life

Safety Code to dictate safety requirements for government-operated facilities, as well as minimum safety

requirements for facilities suitable for veterans and

Medicare patients. See, e.g., 38 C.F.R. § 17.74 (NFPA

72 and 101, medical foster homes for veterans); 42

C.F.R. § 483.90 (NFPA 72, 99, and 101, Medicare long

term care facilities); 46 C.F.R. § 161.002-10(b) (NFPA

72, Coast Guard equipment); 38 C.F.R. § 51.200

(NFPA 99 and 101, state nursing home care facilities

for veterans).

Incorporation by reference offers enormous public

benefits. Governments are spared the cost and administrative burden of assembling the expertise and conducting the processes necessary to produce and update

the standards—which in turn spares taxpayers from

funding the endeavor. Emily S. Bremer, On the Cost

of Private Standards in Public Law, 63 U. Kan. L. Rev.

279, 294 (2015). Moreover, because standards already

often dictate industry norms, incorporation decreases

“the burden of complying with agency regulation.”

OMB Circular A-119, at 5, 63 Fed. Reg. 8546, 8554

(Feb. 19, 1998), as revised 81 Fed. Reg. 4673 (Jan. 27,

2016). 3 The prospect of incorporation encourages private organizations to develop “standards that serve

national needs” and promotes “efficiency, economic

competition, and trade.” Ibid.

Available at https://www.whitehouse.gov/sites/whitehouse.gov/

files/omb/circulars/A119/revised_circular_a-119_as_of_1_22.pdf.

Additionally, the development and use of privately

developed standards allows the government to be more

nimble in addressing industry needs and emerging

technologies. For example, as private and commercial

use of drones began increasing exponentially, ASTM

established a committee to address issues related to

design, performance, quality acceptance tests, and

safety monitoring for unmanned air vehicle systems.

ASTM worked with industry, government officials,

safety advocates, and others to develop numerous

standards that increase drone and aircraft safety

when drones operate in regulated airspace. The Federal Aviation Administration (“FAA”) considers compliance with one of these standards—ASTM F332218—as one way for a drone manufacturer to demonstrate that it implemented risk mitigation techniques

sufficient to merit waiving certain FAA regulations.

See https://www.faa.gov/uas/resources/policy_library/

section_352_responses/media/107_39_for_section_352

.pdf.

The incorporation process also affords governments a great deal of flexibility. Typically, jurisdictions incorporate only portions of a standard relevant

to the particular subject matter they seek to regulate.

See, e.g., Tenn. Comp. R. & Regs. 0800-03-04-.13(1)(a)

(requiring documentation to include at a minimum

that specified in section 4.1 of ASTM F 1159-03a). 4

Government can also choose to incorporate standards

Even where a jurisdiction does purport to incorporate a standard in full, many standards include background material, explanatory guidance, and other elements that do not provide any sort

of regulatory requirements. See, e.g., NFPA 70 (2014) at 70-772

to 867 (informational annexes that “do[] not form a mandatory

part of the requirements of this Code” but are “intended only to

provide * * * informational guidance).

in different ways to serve different goals: as one permissible method for performing a task; to provide definitions; or to establish a standard for compliance.

Compare, e.g., 40 C.F.R. § 86.113-04 (listing various

ASTM standards as reference procedures for testing

fuel), with Tenn. Comp. R. & Regs. 1200-03-16.27(2)(n) (defining “standard ferromanganese” as the

alloy described in ASTM designation A99-66), and

Nev. Admin. Code § 477.2835 (requiring aspects of

firefighting training to comply with NFPA 1041 and

1403). Further differences arise because sometimes

government entities make their own modifications to

private standards. See, e.g., Minn. R. 7511.6102 (incorporating NFPA 58 subject to a number of amendments and deletions).

Because the benefits of incorporation by reference

are so numerous and so obvious, Congress has mandated that federal agencies rely on privately developed

standards whenever possible. In the National Technology Transfer and Advancement Act of 1995, Congress declared that “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards

bodies, using such technical standards as a means to

carry out policy objectives or activities.” Pub. L. No.

104-113 § 12(d), 110 Stat. 775, codified at 15 U.S.C. §

272.

Given all this, it is unsurprising that the practice

of incorporating SDO-developed standards by reference is incredibly widespread. The Code of Federal

Regulations contains over 23,000 sections incorporating standards by reference. Emily S. Bremer, Technical Standards Meet Administrative Law: A Teaching

Guide on Incorporation by Reference, 71 Admin. L.

Rev. 315, 316-17 (2019). Every state employs the practice too: NFPA standards alone have been incorporated by reference, either directly or indirectly, in over

16,000 state and local statutes and regulations.

1. As noted, it is the availability of copyright protection that enables SDOs to recoup the bulk of the investment they make in the standards development

process. Without it, their revenues would drop precipitously. See Plaintiffs’ Memorandum of Law in Support of Their Motion for Summary Judgment and for a

Permanent Injunction at 40, Am. Soc’y for Testing &

Materials v. Public.Resource.org, Inc., No. 13-CV-1215

(TSC) (D.D.C. Nov. 19, 2015), ECF No. 118-1 (quoting

expert economist’s conclusion that SDO “[p]laintiffs

are likely to stand to lose a majority of their revenue

and gross profits from the loss of copyright protection

here”).

Amici SDOs are non-profits. Like most businesses,

they have to make difficult choices about where to invest their limited resources. Losing the revenue they

have historically earned from the sale and licensing of

works they create would force them to alter their business practices (to the extent they could survive at all)

in ways that would gravely undermine their mission.

First, SDOs could well be forced to reduce the rigor of

their development process. That might mean less public participation, fewer technical experts, and less comprehensive discussion and review.

Second, SDOs might be forced to charge fees or to

increase existing fees to those who wish to participate

in the development process. Currently, SDOs receive

and respond to input from a broad range of interested

parties, including individuals and entities who are unlikely to pay hefty fees to participate in the development process. For example, ASTM created ASTM D

4236: Standard Practice for Labeling Art Materials for

Chronic Health Hazards in response to advocacy efforts by teachers who were concerned that their young

students were eating crayons that could contain toxic

or hazardous materials. If SDOs had to cover their

costs through fees, it would likely reduce participation

from public interest groups, academics, and interested

members of the public. That decreased participation

would likely lead to a commensurate increase in the

power of regulated industries to influence standard

setting. See Bremer, 71 Admin. L. Rev. at 329.

Third, the absence of copyright protection would

threaten the breadth of standard-setting work that

SDOs now engage in. Like many creative industries

that rely on a few copyright “hits” to generate the revenue needed to support the full range of their expressive works, SDOs often rely on a few flagship standards to generate most of their revenues, and the sales

of these standards effectively subsidize the production

of standards that serve narrower markets and, accordingly, cannot generate enough revenue to cover the

cost of their creation. See id. at 329-30. For example,

ASTM generates 80% of its standards revenue from

only about 20% of its standards. For NFPA, only

roughly a dozen of its 300 standards generate any

meaningful revenue. But the fact that a standard is

not profitable does not mean that it is unimportant.

For example, NFPA 1971: Standard on Protective Ensembles for Structural Fire Fighting and Proximity

Fire Fighting generates very little revenue but provides lifesaving specifications for firefighter protective

gear.

Currently, amici SDOs do not consider whether a

standard will be profitable in deciding whether to develop or update it. If SDOs’ revenues decreased substantially, this approach might no longer be sustainable. Standards that are less in demand, like NFPA

1971 (the guidelines for firefighter protective gear),

might not be updated on a regular basis, and jurisdictions that have incorporated the standard would no

longer be able to rely on NFPA as the go-to for industry-leading safety guidelines.

Further, SDOs would be unlikely to engage in the

kind of innovation needed to develop new standards

that respond to emerging issues. For example, responding to the string of mass shootings in this country, NFPA set out to develop a standard for active

shooter incidents in 2017. To create that standard,

NFPA solicited input from first responders, emergency

personnel, medical professionals, and hospital staff,

and put together a Technical Committee of about 80

members. The result was the 2018 release of NFPA

3000: Standard for an Active Shooter/Hostile Event

Response (ASHER) Program—the first and only

standard in the world addressing active shooter responses. From the outset, NFPA recognized that it

would be unlikely to ever recoup its investment—the

standard will primarily be used to develop protocols

and train staff, rather than as a day-to-day guidebook.

NFPA 1600: Standard on Continuity, Emergency, and

Crisis Management is similar: NFPA revised the

standard in the wake of the September 11 attacks to

guide communities in responding to future crises. Far

from planning to profit from the standard, NFPA

made a decision to give away the standard following

the attacks on 9/11; NFPA estimates it has given approximately 120,000 copies of NFPA 1600 to individu-

als and entities who might be called upon to participate in emergency response. NFPA was able to complete these critically important projects because of

sales and licensing of its more profitable standards.

Without those revenues—and the copyright that allows for them—these crisis-management standards

might never have been created.

2. If private standard setting were crippled by the

elimination of copyright protection for standards that

governments incorporate by reference, government institutions might attempt to fill the void themselves.

But it is highly unlikely that they would possess (or be

able to generate) the capacity to invest the time and

resources that SDOs now invest.

The absence of meaningful nationwide standard

development by SDOs would also threaten dis-uniformity as each individual jurisdiction made its own

judgments about particular standards. Moreover, rather than a single standard, multiple jurisdictions

would likely set out to develop their own rules for a

particular field. This would be particularly likely for

standards that have relevance only at the local level—

for example, ASTM’s rollercoaster standards are

widely incorporated by states and localities, but have

never been the subject of federal regulation. The process would be doubly inefficient, duplicating efforts on

the front end, and requiring industries to meet multiple jurisdictions’ requirements on the back end. And,

while national SDOs solicit broad input from leading

experts and participants with a wide variety of interests, an individual jurisdiction would be unlikely to attract the same intensity or diversity of views, worsening the resulting regulation it crafted.

3. In short, copyright protection for privately developed standards is working exactly as this Court and

the Constitution intended—as an efficient economic

incentive “To promote the Progress of Science * * * by

securing for limited Times to Authors * * * the exclusive Right to their * * * Writings.” U.S. Const. art. 1,

§ 8, cl. 8; see also Mazer, 347 U.S. at 219. Removing

this incentive would distort the current system of

standards development through some combination of

a less robust process, more capture by industry, and

fewer and less frequently updated standards. Government entities would be forced to choose between continuing to rely on the resulting inferior standards, or

attempting to craft and update their own rules

through a process that would impose significant public

expense and would introduce substantial inefficiencies

for industry that would have to conform to multiple

states’ and localities’ requirements.

Whether copyright subsists in standards incorporated into law is being addressed in separate litigation.

Public.Resource.Org (Respondent here) has made

it its mission to post thousands of privately developed

and copyrighted standards online. Its position is that

any standard incorporated by reference has become

“the law” and automatically loses copyright protection.

In 2013, several amici SDOs filed an infringement

lawsuit against Public.Resource.Org in the District

Court for the District of Columbia, challenging its verbatim copying and distribution of their copyrighted

standards. See Docket No. 1:13-CV-01215. After over

a year of discovery, the district court granted summary judgment to plaintiff SDOs. Am. Soc’y for Testing & Materials v. Public.Resource.org, Inc., No. 13CV-1215 (TSC), 2017 WL 473822 (D.D.C. Feb. 2, 2017)

(“ASTM”). The district court concluded that nothing

in the Copyright Act divested copyrighted works of

their copyright upon incorporation by reference, nor

did this Court’s precedent forbidding copyright in government authored works bar copyright in privately developed standards. See id. at *9-14.

On appeal, the Court of Appeals for the District of

Columbia Circuit remanded for additional factual development regarding fair use. Am. Soc’y for Testing &

Materials v. Public.Resource.Org, Inc., 896 F.3d 437

(D.C. Cir. 2018). The court of appeals recognized that,

if it concluded that incorporated standards could never

retain copyright, it would mean opening the doors not

just to entities like Public.Resource.Org that seek to

“serve[] a public end,” but also to any competitor who

“merely sell[s] duplicates at a lower cost.” Id. at 447.

The court of appeals saw fair use as a potential means

of resolving the case in a narrower way that would

avoid allowing anyone to profit off of plaintiffs’ millions of dollars of investment in thousands of copyrighted standards.

The case is now on remand to the district court for

additional fact development regarding fair use. The

further factual development and briefing in that court

will provide a fuller basis for evaluating the extent to

which a fair use defense accommodates the concerns

raised by Public.Resource.Org, and the extent to

which the plaintiffs’ provision of access to all of its

standards addresses those concerns.

II.

THE GOVERNMENT EDICTS DOCTRINE

DOES NOT APPLY TO STANDARDS THAT

ARE PRIVATELY DEVELOPED AND

PROPERLY COPYRIGHTED AT CREATION.

For the reasons discussed above, the question of

whether and to what extent incorporation by reference

affects copyright in privately developed standards is

one of genuine importance. Amici believe the answer

to that question is straightforward: nothing in the

proposition that privately developed standards incorporated into law lose their copyright.

But the Court need not, and amici respectfully submit should not, answer that question here, because the

case does not present it. The question in this case is

whether a work prepared with government direction

and supervision is eligible for copyright protection.

The separate litigation that certain amici are pursuing against Public.Resource.Org presents a different

question: whether incorporation of a privately developed work that is unquestionably copyrighted at the

time of fixation terminates the copyright. Accordingly,

whatever the Court decides on the question presented,

this Court should be careful not to cast doubt on the

legally distinct—and exceedingly consequential—

question raised by incorporation by reference.

The “government edicts” exception has

no application to properly copyrighted,

private standards that are incorporated by reference.

In a trio of 1800s decisions, this Court laid out what

has come to be known as the “government edicts” exception to copyright. First, in Wheaton v. Peters, 33

U.S. 591 (1834), the Court held that a reporter could

not “have any copyright in the written opinions delivered by this court.” Id. at 668. Half a century later,

the Court extended that rule to state judicial opinions

in Banks v. Manchester, 128 U.S. 244 (1888). Then, in

the same year as Banks, the Court recognized a significant limitation on these cases, holding that while judicial opinions could not be copyrighted, annotations

to such opinions were amenable to copyright. See Callaghan v. Myers, 128 U.S. 617 (1888).

These cases—which for shorthand we refer to as

the Banks line of cases—do not call into doubt the continued copyright protection in privately authored

standards incorporated into law as the inquiry in each

was whether there was direct government authorship

at the time of creation of the work.

1. To begin, the Banks cases speak to an entirely

different scenario—one where the government was responsible for the work’s creation. As the Eleventh Circuit framed the issue below, “just as the uncopyrightable works in Banks were created by the Ohio Supreme Court, the annotations [at issue] are, in a powerful sense, a work created by the Georgia state legislature.” Code Revision Comm’n for Gen. Assembly of

Georgia v. Public.Resource.Org, Inc., 906 F.3d 1229,

1243 (11th Cir. 2018); id. at 1245-46 (“That Georgia’s

legislators are in a very real way the creators of the

annotations is a powerful indication that the annotations are subject to the Banks rule.”). Privately developed standards are not authored by any government—

they are developed by private SDOs. SDOs make independent decisions about when and whether to develop a new standard or update a previous one. Sometimes government officials will request that an SDO

develop a standard to address a particular problem.

For example, following the 2016 Pulse nightclub shooting, the Orlando fire chief approached NFPA to see if

the organization could do anything to help communities prepare for similar events in the future. That request led NFPA to develop its active shooter standard,

NFPA 3000. But NFPA made that choice based on its

independent assessment that there was a pressing

need for guidance in this area and that it had the expertise to address that need. Moreover, NFPA solicits

and considers requests for new standards not just from

government officials like the Orlando fire chief, but

from any member of the public. 5

Further, the content of standards is based on technical and policy judgments—not government dictate.

Contra, e.g., 906 F.3d at 1244 (finding “great significance” in state commission’s “intimate involvement in

the creation of the annotations”). Individuals affiliated with government institutions may provide feedback during the standards development process but—

true to SDOs’ commitment to seek to ensure a balanced process—their voices are given the same weight

as the voice of any member of the public.

When an SDO produces a standard, the work represents one expression of what its authors consider to

be the state-of-the-art practices in the industry. But

that is just one view. The standard is not the only way

to express the matter described—for example, both

NFPA 5000: Building Construction and Safety Code

and ICC International Residential Code provide rules

and guidance for residential building. Nor does the

developed standard represent a legally authoritative

view. Contra, e.g., 906 F.3d at 1248 (focusing on “authoritative” nature of annotations). 6

See NFPA, How to Submit a request for a NFPA project,

https://www.nfpa.org/Codes-and-Standards/Standards-develop

ment-process/How-the-process-works/New-projects-and-draftdocuments#HowToSubmit (providing online form for requesting

that NFPA develop a standard).

For this reason, the merger doctrine is inapposite. Contra Georgia Br. 54. That doctrine looks to whether, at the time a work is

created, there is essentially one (or an extremely limited number

Unlike a government edict, at the time of a standard’s creation, it is just a privately developed, expressive work—and it unquestionably can be copyrighted.

See Fourth Estate Pub. Benefit Corp. v. WallStreet.com, LLC, 139 S. Ct. 881, 887 (2019) (“An author gains ‘exclusive rights’ in her work immediately

upon the work’s creation” (quoting 17 U.S.C. § 106)).

It is only once a jurisdiction subsequently incorporates

a privately authored standard that government makes

any decisions vis-à-vis the already created and copyrighted expressive work. At that point, though, the

question is not whether the standard can be copyrighted, but instead whether the standard loses its

copyright. Indeed, even the Respondent—which is embroiled in litigation related to incorporation by reference and which would, accordingly, have strong reasons to lump that practice into this case—recognizes

that “[t]he copyrightability of” privately developed

works incorporated by reference “is distinct from the

central issue in this case.” Br. in Opp. 16. Just as

nobody suggests that song lyrics quoted in a judicial

opinion or a book designated as required reading in a

school district suddenly become “government edicts,”

standards that have been incorporated do not lose

their private authorship once the government decides

to reference them.

of ways) to express the idea. The merger doctrine does not divest

limited at the time she created the work. See Oracle Am., Inc. v.

Google Inc., 750 F.3d 1339, 1361 (Fed. Cir. 2014). The fact that a

work, post-creation, becomes a popular or even standard way of

expressing an idea does not bring the merger doctrine into play;

a contrary approach would undermine copyright laws’ incentives

for creating new expressive works.

2. Beyond being directed to a distinct situation, the

government edicts cases raise public policy concerns

not implicated by incorporation by reference. First,

the Banks cases rest on an acknowledgment that

where the public directly funds the work’s creation,

the public—and not a private entity—should have full

ownership and control of that work. See Banks, 128

U.S. at 253 (explaining that copyright could not “be secured in the products of the labor done by judicial officers in the discharge of their judicial duties”); Practice Mgmt. Info. Corp. v. Am. Med. Ass’n, 121 F.3d 516,

518 (9th Cir. 1997), amended, 133 F.3d 1140 (9th Cir.

1998) (“the public owns the opinions because it pays

the judges’ salaries”). Privately developed standards

are the product of private, not public, investment. Indeed, they are precisely the sort of works where copyright protection is most appropriate because, as explained, without the economic incentive copyright provides, they would cease to exist in their current form.

Second, the Banks cases rest on a “due process requirement of free access to the law.” Practice Mgmt.,

121 F.3d at 519; see Banks, 128 U.S. at 253 (“The

whole work done by the judges constitutes the authentic exposition and interpretation of the law, which,

binding every citizen, is free for publication to all”).

Ensuring widespread and ready access to standards is

core to amici SDOs’ organizational missions and nonprofit status. For this reason, like other copyright creators who control access to their creations, many amici

SDOs choose to make their standards accessible in a

range of ways. 7 Most notably, many of the amici SDOs

Indeed, at least at the federal level, incorporation by reference

actually requires that the incorporated standards be reasonably

accessible. See, e.g., 1 C.F.R. § 51.7(a)(3) (a standard is “eligible

make any standard they are aware has been incorporated into law available on their websites for reading

free of charge. And some SDOs go even further:

NFPA, for example, makes all of its standards available online. 8 The SDOs that provide this access do not

make their standards available for wholesale download, as Public.Resource.Org does. In this way, members of the public interested in reading what an incorporated standard says may readily do so. The readonly restriction ensures that people may not download

the entirety of the published work—including many elements that are explanatory rather than prescriptive,

see supra note 4—which would substitute for the

SDO’s work. 9

In the pending litigation involving amici SDOs,

Public.Resource.Org turned up and the district court

found “no evidence” that amici’s standards were “unavailable to the public.” ASTM, 2017 WL 473822, at

*11; see also id. (cataloguing “undisputed record evifor incorporation by reference” only if it “[i]s reasonably available

to and usable by the class of persons affected”).

By default, NFPA puts the current and prior version of every

standard online, as well as any version that it is aware has been

incorporated by reference. NFPA occasionally receives requests

to put other versions of its standards online, and it puts those

standards online as well.

Far from remedying any due process issue, any holding that incorporation by reference renders standards “government edicts”

that no longer have copyright protection could create constitutional issues. See CCC Info. Servs., Inc. v. Maclean Hunter Mkt.

Reports, Inc., 44 F.3d 61, 74 (2d Cir. 1994) (“[A] rule that the

adoption of such a reference by a state legislature or administrative body deprived the copyright owner of its property would raise

very substantial problems under the Takings Clause of the Constitution.”).

dence” showing ways in which standards were accessible). As there is no “evidence that anyone wishing to

use [amici’s standards] ha[d] any difficulty obtaining

access to [them],” due-process concerns have no relevance with respect to such standards. Practice Mgmt.,

121 F.3d at 519.

No statute divests standards of their

incorporated into law.

Congress’s statutory scheme “govern[s] the existence and scope of copyright protection.” Reed Elsevier,

Inc. v. Muchnick, 559 U.S. 154, 157 (2010) (citation

and alteration omitted). Whether incorporated standards lose copyright is, thus, ultimately a question of

statutory interpretation. Nothing in the Copyright

Act—or any other statute—suggests that Congress

thought incorporation should divest standards of copyright.

Congress enacted the Copyright Act of 1976

against a backdrop of incorporation by reference: ten

years prior to its passage, Congress had authorized

federal agencies to incorporate works into federal regulations. See Act of June 5, 1967, Pub. L. No. 90-23,

§ 552, 81 Stat. 54, 54 (codified at 5 U.S.C. § 552). The

1976 Act specifies various ways that copyright could

be divested. See, e.g., 17 U.S.C. §§ 204, 302; contra

H.R. Rep. 94-1476 at 60 (“[P]ublication or other use by

the Government of a private work would not affect its

thought incorporation by reference should affect copyright status, it would presumably have listed such incorporation as a basis for losing copyright. That it did

not suggests that Congress did not view the alreadyfamiliar practice as creating any issue for continuing

Indeed, far from treating incorporation as the end

of copyright, Congress has endorsed incorporation by

reference. In 1991, Congress enacted Public Law 102245, requesting that the National Research Council

study standards development. The resulting study

concluded that standards development “serves the national interest well” and that “[f]ederal government

use of the standards developed by private standards

organizations in regulation and public procurement

has many benefits” including “lowering the costs to

taxpayers and eliminating the burdens on private

firms from meeting duplicative standards in both government and private markets.” Standards, Conformity Assessment, and Trade: Into the 21st Century 3

(National Academy Press 1995). 10 The study further

noted standards developers “offset expenses and generate income through sales of standards documents, to

which they hold the copyright.” Id. at 32 (emphasis

added). And the study recommended that Congress

enact legislation that would encourage federal agencies to use privately developed standards in their regulations.

Congress followed that guidance in the National

Technology Transfer and Advancement Act of 1995

(“NTTAA”), which requires federal agencies to use privately developed standards whenever possible. Pub.

L. No. 104-113, § 12, 110 Stat. 775, 782-83 (1996). Arguing that incorporation by reference strips works of

their copyright protection thus requires pressing the

claim that Congress directed all federal agencies to engage in a practice that would result in the loss of copyright in thousands of private works—a suggestion

Available at http://www.nap.edu/read/4921/chapter/1.

that has never been made by Congress despite the long

history of incorporation of privately developed standards. 11 Even more untenably, it requires arguing that

Congress encouraged agencies to engage in an entirely

self-defeating practice—one that would strip standards developers of their ability to “offset expenses and

generate income” through sales of copyrighted standards.

If Congress had “intended to revoke the copyrights

of * * * standards when it passed the NTTAA, or any

time before or since, it surely would have done so expressly.” ASTM, 2017 WL 473822, at *11 (citing Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468

(2001) (Congress “does not * * * hide elephants in

mouseholes.”)). That it has, instead, seen fit to promote incorporation by reference suggests that it does

not see the practice as creating any threat to copyright

protection.

The holding in this case need not reach

the copyright issues in cases involving

privately developed standards.

Over the past four decades, five courts of appeals

have had the opportunity to conclude that incorporation by reference strips privately developed standards

of their copyright. None have so held. Instead, every

court of appeals has either conclusively decided that

The legislative history of the Copyright Act of 1976 runs directly contrary to this view. See H.R. Rep. 94-1476 at 60 (“The

committee here observes: (1) there is nothing in section 105 [of

the Copyright Act of 1976] that would relieve the Government of

its obligation to secure permission in order to publish a copyrighted work; and (2) publication or other use by the Government

of a private work would not affect its copyright protection in any

way.”).

incorporated standards retain their copyright 12 or has

declined to reach the issue—often out of recognition of

the important work that SDOs perform and out of a

concern for upending the longstanding system of privately developed standards. 13

This Court will have the opportunity to address the

should it wish to do so, if the current litigation against

Public.Resource.Org in the District Court for the District of Columbia reaches this Court. At that point, the

Court will be able to decide this question not only

when cleanly presented, but on a fully developed record. Amici respectfully submit that the holding in this

case should avoid any suggestion that privately devel-

See Practice Mgmt., 121 F.3d at 521 (copyright holder did not

lose copyright “when use of [its work] was required by government regulations”); CCC Info. Servs., Inc., 44 F.3d at 74 (rejecting

argument “that a state’s reference to a copyrighted work as a legal standard for valuation results in loss of the copyright”).

See Am. Soc’y for Testing & Materials, 896 F.3d at 447 (declining to decide copyrightability, in part, to “limit[] the economic

consequences that might result from the SDOs losing copyright”

and to “avoid[] creating a number of sui generis caveats to copyright law”); Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791,

793 (5th Cir. 2002) (holding that “as law” model codes that had

been incorporated into law “enter the public domain and are not

subject to the copyright holder’s exclusive prerogatives,” while

“[a]s model codes” they “retain their protected status”); Bldg. Officials & Code Adm. v. Code Tech., Inc., 628 F.2d 730, 736 (1st

Cir. 1980) (declining to resolve copyrightability issue and noting

that “the rule denying copyright protection to judicial opinions

and statutes grew out of a much different set of circumstances

than do * * * technical regulatory codes” developed by groups that

“serve an important public function”).

oped standards that are later incorporated by reference are analogous to works developed at the government’s direction and under its supervision.

CONCLUSION

For the foregoing reasons, amici respectfully request that the Court not issue any decision that would

cast doubt on copyright protection in privately developed standards that have been incorporated by reference.

Respectfully submitted,

J. BLAKE CUNNINGHAM

KING & SPALDING LLP

500 West 2nd Street,

Suite 1800

Austin, TX 78701

(512) 457-2000

DONALD B. VERRILLI, JR.

Counsel of Record

RACHEL G. MILLER-ZIEGLER

MUNGER, TOLLES & OLSON LLP

1155 F Street NW, 7th Floor

Washington, DC 20004-1357

(202) 220-1100

Donald.Verrilli@mto.com

Counsel for Amicus American

Society of Heating, Refrigerat- KELLY M. KLAUS

ing, and Air Conditioning En- MUNGER, TOLLES & OLSON LLP

gineers, Inc.

560 Mission Street, 27th Floor

San Francisco, CA 94105

GERALD W. GRIFFIN

(415) 512-4000

CARTER LEDYARD & MILBURN

LLP

ANJAN CHOUDHURY

2 Wall Street

ROSE LEDA EHLER

New York, NY 10005

MUNGER, TOLLES & OLSON LLP

(212) 732-3200

350 S. Grand Ave., 50th Floor

Los Angeles, CA 90071

Counsel for Amici American Na- (213) 683-9100

tional Standards Institute, International Association of

Counsel for Amicus National Fire

Plumbing & Mechanical OffiProtection Association, Inc.

cials, International Electrotechnical Commission, International J. KEVIN FEE

JANE WISE

Organization for StandardizaMORGAN, LEWIS & BOCKIUS LLP

tion, North American Energy

1111 Pennsylvania Avenue, NW

Standards Board, and UnderWashington, DC 20004

writers Laboratories Inc.

(202) 739-5353

CLARK SILCOX

Counsel for Amicus American SoNATIONAL ELECTRICAL

ciety for Testing and Materials

MANUFACTURERS ASSOCIATION

d/b/a/ ASTM International

1300 N 17th St. NW, 9th Floor

Rosslyn, VA 22209

(703) 841-3290

Counsel for National Electrical

Manufacturers Association

August 30, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.