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Exploring the Bounds of Fair Use: Public.Resource.Org

Exploring the Bounds of Fair Use: Public.Resource.Org by Rachel Kim

March 1, 2018

In most cases, works created by a government are not protected by copyright. As a matter of public policy, the U.S. Copyright Office will not register laws or regulations enacted by any state or local government, and statutorily, copyright law does not extend to most works prepared by the federal government. But in certain instances, such as where privately developed standards are incorporated into the law by reference, or where a state or local government creates annotations that do not have the force of law, copyright protection may be available.

Public.Resource.Org, Inc. (“Public Resource”)—an organization that seeks to make law and other government-related materials more widely available—was sued by at least seven organizations for copyright infringement based on Public Resource’s reproduction and distribution of annotations and standards incorporated by reference.

Public Resource purchased, scanned, and uploaded the entirety of the American Society for Testing and Materials’ (ASTM) and the American Educational Research Association, Inc.’s (AERA) industry standards on its website and on the Internet Archive in PDF and HTML formats and enabled a text searching for the visually impaired for ASTM’s standards. ASTM and AERA are both organizations that voluntarily developed industry standards subsequently incorporated by reference by federal agencies (like the Environmental Protection Agency). ASTM joined two other standard setting organizations and separately, AERA joined two other standard setting organizations to sue Public Resource in 2013 and 2014 respectively for copyright infringement for engaging in these acts.

In 2015, the Code Revision Commission and State of Georgia also sued Public Resource for copyright infringement. The Copyright Office will not register laws and regulations created by state or local governments. However, the Office will register annotations, references, and summaries that help guide users in researching and interpreting the law even if a state or local government creates them as long as the annotations do not, themselves, have the force of law. The State of Georgia contracted with Lexis Nexis to publish the Official Code of Georgia along with annotations, headings, title and chapter analyses, and amendment notes, which were created by Lexis under the agreement as a work made for hire. Public Resource purchased and scanned Lexis Nexis’ printed volumes and supplements of the code and posted the copies of those works on its website and on the Internet Archive.

In all of these cases—the first two filed before the U.S. District Court for the District of Columbia (which issued a consolidated opinion for the two cases), and the third in the Northern District of Georgia—Public Resource argued that their conduct was excused by the copyright law’s fair use doctrine. But the defense failed as each judge in ASTM/AERA’s case and the Code Revision Committee case rejected the organization’s attempts to expand the meaning of what it means to be “transformative” under the fair use doctrine.

Here’s how Public Resource went too far:

1. Providing “Greater” Access to Already, Widely Available Works Without Adding Anything New is Not a Transformative Use

In all three cases, Public Resource argued that its copying, distributing, and uploading was a transformative use because it provided the public with greater access to the law and government works— an argument that was rejected by both courts.

The Code Revision Commission Court explained that Public Resource did not “add, edit, modify, comment on, criticize, or create any more analysis or notes of its own” of the codes and thus did not transform Lexis Nexis’ annotations. It also pointed out that Public Resource’s argument that providing better public access to copyrighted materials has never been found to be a transformative use in any court and that it could not justify Public Resource’s verbatim copying. On the contrary, the Court noted that Public Resource’s exact copies supplanted the Georgia Code “as already distributed and made available online by Lexis Nexis, which is not transformative.”

The ASTM/AERA Court noted that Public Resource had no intention of actually using the standards themselves and found that, similar to the Code Revision Commission Court, instead, Public Resource offered the same, exact standards “for free in competition with Plaintiff’s standards” which were available to the public “for viewing online in ASTM Plaintiff’s reading rooms, at a public library, at the Office of the Federal Register or incorporating agency, or for purchase on Plaintiff’s websites.” The Court held that merely providing access to the same copyrighted materials that were already publicly accessible did not amount to a transformative use of the original work under the fair use doctrine.

2. Alteration In Formatting is Not Sufficiently Transformative

In the ASTM/AERA case, Public Resource tried to push the bounds of “transformative” even further when it argued that its acts of formatting ASTM’s work into HTML and into a text searchable format for blind and visually impaired people and formatting AERA’s standards into a PDF version were transformative. Specifically, it argued that its formatting was transformative because it “enabl[ed] others to use software to analyze the standards” and “enabl[ed] those with visual impairments to use text-to-speech software.”

The Court rejected this argument, noting that Public Resource did not “perform any analysis on the standards, nor [did] it offer the service of providing [the materials] in an accessible way to those visual impairments.” The Court noted that because a visually impaired person needed to use other programs and take additional steps to actually access the standards posted by Public Resource, Public Resource’s initial steps in making the standards accessible to the visually impaired was not sufficiently transformative. Otherwise it would “stretch logic, and certainly the doctrine of fair use, too far.

3. Standards Are Creative Works that Deserve Protection

With regard to the second fair use factor concerning the nature of the copyrighted work in both cases, Public Resource argued that standards and annotations should weigh against fair use and are more factual works because they contain scientific concepts and facts are “highly technical and [are] ‘the law’.” Again, both courts rejected the argument to categorically classify standards and annotations as factual works, undeserving of strong copyright protection.

The Code Revision Commission Court strongly opined that annotations are highly creative and deserved copyright protection. Specifically, it noted that “[t]he selection, writing, editing, statutory commentary, and creativity of the annotations requires skill and analysis” and that “[t]he creation of the annotations requires a tremendous amount of work from a team of editors.”

The ASTM/AERA Court agreed that private standards were deserving of strong copyright protection—standards that takes a few thousand participants, several years, and millions of dollars to develop and finesse into a final publication. The Court highlighted that the Constitutional goal of promoting the progress of science and the useful arts gives even more reason to protect Plaintiff’s standards. The fact that these standards are incorporated by reference into federal regulations does not strip the original works of their expressive value and content, and in the words of the Court, ASTM’s and AERA’s standards are “exactly the type of expressive work that warrants full protection under the Constitution and the Copyright Act.”

Key takeaways:

  • Posting content online for free is not transformative when no new value is added to the original work.
  • Mere format changes alone are insufficient to be considered to be transformative.
  • Standards and annotations though they outline procedures, involve scientific concepts, and discuss facts/information, are still expressive, creative works that deserve copyright protection.

Photo Credit: tumsasedgars/iStock/thinkstock


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