The 3rd U.S. Circuit Court of Appeals has recently ruled in favor of UpCodes, a legal tech startup known for publishing building codes and technical standards online. In its decision, the court concluded that posting copyrighted standards is likely fair use, particularly in this interim stage of the litigation.
This decision affirms a lower court’s refusal to grant a preliminary injunction to ASTM International, a non-profit standards organization. ASTM had sued UpCodes alleging copyright infringement. The case, American Society for Testing & Materials v. UpCodes, Inc., underscores an ongoing legal debate regarding public access to technical standards that have been incorporated into law.
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Background:
ASTM publishes technical standards that are frequently incorporated by reference into government codes, informing methods and practices in various professional sectors. UpCodes, a for-profit legal tech business, began publishing ASTM’s building-related standards without a license, aiming to facilitate public access and compliance with these regulations.
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Fair Use Analysis:
The appeals court reviewed four statutory fair use factors, finding that three favor UpCodes and the fourth is ambivalent. The court agreed that UpCodes’ dissemination of historical versions of standards as legal requirements serves a different, transformative purpose compared to ASTM’s intent. The court found the second and third factors of the fair use assessment—nature of the work and amount of copy used—also favored UpCodes. On the question of market harm, the court acknowledged potential revenue impacts on ASTM but found no definitive evidence of substantial economic damage caused by UpCodes’ actions.
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Broader Implications:
This ruling adds to a series of cases exploring the balance between copyright protections and public access to legal materials. Relatedly, a Supreme Court decision in 2020 addressed similar issues regarding the public’s right to access incorporated legal materials under the government edicts doctrine. While ASTM remains a private body, complicating the application of that doctrine, the current ruling reflects growing judicial support for broader public accessibility.
Despite the case being at a preliminary stage, the decision allows UpCodes to continue its operations while the legal proceedings unfold. This development is significant in the context of public access to legal standards and potentially offers a precedent for future cases involving private versus public legal materials.
The ruling also highlights the complexity of copyright law as it intersects with issues of public accessibility and the private creation of standards incorporated into law. While not conclusive, the decision provides a substantial degree of optimism for advocates of free access to the law.
More about the case and its broader implications can be found in further analysis by Mitch Stoltz, IP Litigation Director at the Electronic Frontier Foundation, in a piece on the EFF’s website.