Public.Resource.Org Sues for Declaratory Judgement on Standards Incorporated by Reference

March 5, 2013 Updated: March 5, 2013 by Courtney Minick

Last week, Public.Resource.Org, through their counsel at the Electronic Frontier Foundation, filed an action for declaratory judgement against the Sheet Metal and Air Conditioning Contractors’ National Association, Inc. [SMACNA]. In its complaint, Public.Resource.org asserts that since SMACNA’s copyrighted standards were explicitly incorporated into federal and state law, they have become part of the public domain and are no longer subject to copyright restrictions.

This saga began when Carl Malamud of Public.Resource.Org began buying copies of privately issued, copyrighted building codes and putting them up online. These codes were incorporated by law into federal and state statutes, so Carl believed that they should be publicly available – a proposition we agreed with.

When Attributor, an agent for SMACNA, discovered the codes on Public.Resource.Org, they sent a DMCA takedown notice. Public.Resource.Org now seeks a declaratory judgment from the federal courts that it is not infringing. It asserts that since these standards were incorporated by reference into federal law, the manual is now “the law of the United States and compliance with the 1985 manual is mandatory,” and thus is part of federal law – which is not subject to copyright.

In addition to seeking this declaratory judgment, Public.Resource.Org is asking the court for an injunction against SMACNA from asserting copyright claims against it, and costs.

I’ll be following this suit closely. At Justia, our mission is to provide access to the laws of the United States – all cases, codes, and regulations. As I’ve written about before, it seems obvious that these things should be available free of charge and copyright restrictions – but they’re not. Privately owned building codes are just one small part of the corpus of law that is locked behind a paywall. Many final appellate decisions and many state codes are only published in their official form by a private publisher. In order to cite to them, you must access a copyrighted, paid version of the statute or case.

You can follow the case here.