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What Are the Resources at Public.Resource?

We’ve written quite a bit in this newsletter and in others about Public.Resource.Org. While one might get the impression that “PRO” exists primarily to engage the kind of litigation that led to, for example, its 2020 Supreme Court win in Georgia v. Public.Resource.Org, there is much more to the organization than going to court to fight for Free Law. While we’ve also written recently about the PRO-led coalition that puts the regulations of all 50 states on our website, we thought we’d use this installment in our series of spotlighting other free legal resources online to talk about some of what PRO makes available to the public directly through its webpage.  

PRO is largely the work of one person, Carl Malamud–though he’s always quick to give credit to other contributors to his projects, no matter how small their role. The homepage at features mostly Carl’s activism on behalf of freeing the law from behind paywalls. There, you can explore current and past PRO projects and watch videos where Carl articulates the problems and his solutions. 

At the top of the page is a second tab labeled “” Clicking on that will take you to a new page. From there, you’ll find hyperlinks to official state codes, thousands of global safety codes, and even the public safety codes of India. Many of these collections are actually housed at the Internet Archive though furnished by PRO. Some are “bulk access” downloads of the text or data associated with the entire collected statutes of a particular state (like this), and others are individual volumes of a state’s codes (like this). And, yes, of course the Official Code of Georgia Annotated is among PRO’s offerings.  

Fair Use & Free Law

We’re examining subsequent developments in Free Law related to the Supreme Court’s Georgia v. Public.Resource.Org decision on the occasion of its secondary anniversary. An accompanying article highlights three pieces of ongoing litigation that all cite to that case; but, this one dives a little deeper on one particular issue– fair use.  

In the PRO case, the Supreme Court noted that the copyright defense of fair use was far from a perfect solution for testing the limits of copyright. In hypothesizing about a world where the non-binding work product of courts and legislators enjoyed the “instant and automatic” protection of copyright unless expressly disclaimed by the state, the Court noted that “citizens, attorneys, nonprofits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties.” The Court continued,  “Some affected parties might be willing to roll the dice with a potential fair use defense. But that defense, designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial.” It concluded, “The less bold among us would have to think twice before using official legal works that illuminate the law we are presumed to know and understand.”  

In each of the three active copyright cases involving Free Law copies of standards or model codes incorporated by reference into law, fair use is likely to play an outcome-determinative role. In NFPA v. UpCodes, the trial court denied the plaintiff’s request for a preliminary injunction specifically because the fair use defense was too fact-specific to be overcome in an early motion before development of the factual record. In ICC v. UpCodes, the fair use defense was among the reasons (but not the sole reason) the court denied the plaintiff’s motion for summary judgment.  

But it is in ASTM v. Public.Resource.Org where fair use gets its most thorough day in court. In ruling that the defendant could not be liable for copyright infringement of any industry standard authored by the plaintiff that was both incorporated by reference into law and accurately reproduced by the defendant because that re-publication was fair use, the court included a 187-page Appendix that runs through the fair use analysis for each of the 217 standards that PRO reproduced. 

Federal law, particularly 17 USC Sect. 107, articulates four fair use factors:  

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

On the first factor, the court noted that the most important inquiry was whether or not the defendant stood to profit from the copying and concluded that PRO had no profit motive but was instead driven by its mission to make the law freely accessible to the public.  It also considered on a standard-by-standard basis in the Appendix whether each standard “provides information essential to comprehending one’s legal duties,” as part of the inquiry whether facilitating public access to that standard might be construed as a transformative use of the copyrighted work.

On the second factor, the court again analyzed each standard individually with an eye toward whether its text was incorporated “into law in a manner akin to copying all of the standard’s text into law,” or was instead “incorporated into law in a more nuanced way, such that the standard’s text is not an easy substitute for what is incorporated into law.” The court explained that the former would more likely weigh in favor of fair use than the latter.

On the third factor, the court also needed to consider for each of the 217 standards in controversy whether PRO had reproduced more of the standard than the law had actually incorporated and found that “most of the standards at issue have been incorporated by reference into regulations that do not specify that only certain provisions of the standards are incorporated by reference into law, nor do the regulations indicate which specific provisions of the standards relate to regulatory compliance, suggesting that ‘a greater amount of the standard’s text might be fairly reproduced.’”

The court was able to take a more holistic approach to the fourth factor–the economic harm to the plaintiff. Noting that it had been 14 years since PRO had first started reproducing the standards in question and that 4 years had elapsed since the plaintiff’s expert had first opined on the possible future harm, the court found that on the evidence before it “a reasonable jury could not return a verdict” that PRO’s actions had caused or would likely cause economic harm to the plaintiff with regard to the specific standards at issue.  

The district court’s detailed and thorough analysis is a stark reminder of the Supreme Court’s warning that fair use is not the ideal vehicle for solving these disputes. As the Supreme Court warned, the fair use defense is extremely fact-specific and creates high-stakes litigation that can seldom be resolved short of a trial. And yet, the limitations of the Government Edicts Doctrine keep driving trial courts to resort to the fair use analysis to solve these disputes. Perhaps one day both the authors of standards and model codes on one hand and Free Law advocates on the other will get a clear set of “as a matter of law” rules that will guide these disputes; but, until then, it seems that the fair use defense will play exactly the role that SCOTUS warned us about.

Free Law Litigation since Georgia v. PRO

April 27th marked the two-year anniversary of the Supreme Court ruling in favor of open access to the law in Georgia v. Public.Resource.Org. So it seems like a good time to examine how that ruling has influenced subsequent litigation relevant to Free Law efforts.

To recap, the Supreme Court examined the Government Edicts Doctrine and in a 5-4 vote held that the annotations prepared by LexisNexis at the direction of the Georgia Legislature and adopted as part of the Official Code of Georgia Annotated could not be the subject of copyright because the legislature, vested with the power to make law, could not be an “author” for the purpose of the copyright statute. The Court explained at length why legislators cannot claim copyright in their “non-binding legal works” just as they cannot hold copyright in the statutes themselves.  

As is often the case with Supreme Court decisions, many questions remain.  One issue, already the subject of prior litigation, has been impacted by this guidance from SCOTUS. That issue is whether outside entities who (unlike LexisNexis in the Georgia case) were not working under contract with and under the supervision of a state government can still claim copyright in works like industry standards or model codes when governments incorporate those works by reference into statutes or regulations.  

There are three active pieces of litigation on this issue, all at different stages, where the court has looked to the rule and reasoning of the Georgia v. Public.Resource.Org.  

  • American Society for Testing and Materials v. Public.Resource.Org., Inc., 13-cv-1215 (D. D.C.) 

This case features Public Resource.Org (PRO) defending its publication of various industry standards privately developed by the plaintiffs and later incorporated into law in various jurisdictions. Initially, the trial court granted the plaintiffs summary judgment, but the Court of Appeal for the D.C. Circuit remanded the case for further development of the factual record. After both parties again moved for summary judgment, the Supreme Court decided Georgia v. Public.Resource.Org.; and, the trial court requested more briefing in light of that ruling. The trial court held that the Government Edicts Doctrine did not apply to privately-authored standards, even once those standards are incorporated into law, because they were not authored by a government official or agency. Nevertheless, the court’s mixed ruling was largely favorable to PRO, finding that its publication of most of the standards at issue was protected under the copyright doctrine of fair use. (See the accompanying article, Fair Use & Free Law)

  • International Code Council, Inc. v. Upcodes, Inc., 17 Civ. 6261 (S.D. NY)

The International Code Council (ICC) is a standards development organization that develops model codes with the intent that jurisdictions will adopt them into the law. ICC accused defendant UpCodes of copyright infringement when the latter published on its website various ICC-authored model codes that had been incorporated by reference into the building codes of several jurisdictions. Just weeks after the Georgia v. Public.Resource.Org decision, the court here denied the parties’ competing motions for summary judgment. In harmonizing what SCOTUS had just done with various relevant prior decisions related specifically to the issues of model codes and incorporation by reference, the court deemed it significant that it was the intent of standard developments organizations like ICC that their model codes be adopted by governments and incorporated directly into the law. Consolidated with another case involving a related dispute between the parties, trial on the copyright claims awaits review of the dismissal of that other case by the Second Circuit Court of Appeal.   

  • National Fire Protection Association v. Upcodes, Inc., CV-21-5262 (C.D. Cal.)

In this case, a second standards setting organization (the NFPA) also sued UpCodes over the latter’s publishing of its standards that have been incorporated by reference into the law and sought a preliminary injunction. While the court found that differences in the facts between this case and Georgia v. Public.Resource.Org called into question whether the Government Edicts Doctrine should even apply, it nevertheless denied the injunction because NFPA had not carried its burden of proof at that early stage of litigation to demonstrate that it was likely to prevail against UpCode’s defense of fair use.  
This continuing litigation provides specific examples of what seemed to be clear in the immediate aftermath of the Georgia v. Public.Resource.Org decision: that it, like most decisions, left open more questions than it answered.

Putting the pieces together: How the research fits in

As we’ve mentioned more than once recently, in 2020, Public.Resource.Org included LII in a five-year project to free the regulations of all 50 U.S. states. The first step was to conform the content to meet the standards set forth in the Web Content Accessibility Guidelines so that they would be fully machine readable and therefore equally accessible to text-to-speech users as to visual website users. But that was just the beginning.

LII has always focused on helping people find and *understand* the law. In the early days, we enhanced understanding by showing the structure of and interconnections between legal texts. We later made progress on connecting legal texts to the real-world objects they address. Most recently, we have brought to bear emerging human language technologies to help simplify and summarize legal text.  

Members of LII’s engineering team participating in the Law-and-AI research project Fairness in Artificial Intelligence, led by scholars Kevin Ashley and Diane Litman, have been exploring techniques that provide alternate approaches to summarizing complex legal texts. We have also been working with students to refine the techniques we innovated for the CFR and research new approaches to address the much broader range of definition styles used across the dozens of departments of each of the 50 states. Taken together, these projects provide the next set of tools to help us increase understanding of state regulations — and all of the other legal texts we publish.

We’re hiring: DevOps Engineer

Not since the early days of the World Wide Web have there been so many opportunities for technologists, and we’re not alone in having one on offer. We’re looking for an experienced DevOps engineer to join our small team. The posting is here and the answers to the most common questions are under “Job Profile Attributes” here.

The posting is currently open through May 31 – please spread the word!