On Friday, November 22, 2019, the Cyberlaw Clinic and local counsel Marcia Hofmann filed amicus briefs in the United States District Court for the District of Columbia in two related cases, ASTM v. Public.Resource.Org (.pdf), and AERA v. Public.Resource.Org (.pdf). The cases involve copyright infringement claims brought by standards development organizations (SDOs) against Public.Resource.org. The cases are back before the United States District Court for the District of Columbia on remand from the United States Court of Appeals for the District of Columbia Circuit. The core issue in front of the Court is whether PRO’s provision of free online access to codes that were developed by the plaintiffs — but incorporated by reference into binding law — constitutes fair use.
The Clinic filed the amicus briefs on behalf of a group of law scholars (Ann Bartow, Brian Frye, Elizabeth Townsend Gard, James Gibson, Stacey M. Lantagne, Jessica Silbey, and Rebecca Tushnet), who assert that provision to the public of standards incorporated into law is permissible under the fair use doctrine. Fair use (embodied in Section 107 of the United States Copyright Act) must be understood in the light of the ultimate purpose of copyright, which is to benefit public welfare through the dissemination knowledge and ideas. Providing access to the content of our governing laws is fundamental to a just, democratic society and thus goes to the heart of the public interest that fair use seeks to promote.
The Clinic has filed amicus briefs supporting Public.Resource.org in prior stages of the case. In 2016, when the case was initially brought to the district court, the clinic filed two briefs on behalf of law scholars in ASTM v. Public.Resource.Org and AERA v. Public.Resource.Org. The clinic also filed an amicus brief on behalf of two members of Congress, Zoe Lofgren and Darrell Issa, after the two cases were consolidated on appeal.
Fall 2019 Cyberlaw Clinic students Katie Lin, Ari Sillman, and Elizabeth Strassner wrote this amicus brief with assistance from clinical supervisors Mason Kortz and Christopher Bavitz. The Clinic team also worked closely with Professor Rebecca Tushnet to develop arguments in the brief.