Court Says Carl Malamud Can Keep Freeing The Law

We’ve written a bunch about Carl Malamud, who has devoted so much of his time and energy towards freeing the law. While that may sound ridiculous that the law needs to be “freed,” Malamud noticed, before most others, different forces that were looking to lock up (and often from) the actual text of the laws. And Carl, rightly, believes that everyone should be able to read the law freely, otherwise how can people be expected to know what’s legal and what’s not?

For his troubles, Carl has been sued in a few big (and important) cases. I’ve seen people “congratulate” Carl on getting sued for his efforts to publish the law, thinking that this is what he wants — but it’s not. I’ve spoken to him about this multiple times, and he just wants the law to be free, not to have to go through the pain and hassle of a lawsuit. Yet, when those who seek to lock up the law come after him, Carl is willing to fight back. A few years ago, he freed the laws of Georgia from a stupidly convoluted setup, in which the state partnered with a private company to lock up the “official” code of Georgia.

But one of Carl’s biggest projects is getting people to recognize the problems when lawmakers incorporate some sort of standard into the law where the official standard is then locked up behind (often expensive) paywalls. There are standards-making bodies out there that insist that this is the only way that they can afford to keep the standards going, by making money selling copies of it. And while some may be sympathetic to that argument, it’s no excuse for hiding standards that are required by law. If lawmakers are saying that you have to meet a standard to be in compliance with the law, then the standards must be freely available.

A bunch of standards bodies sued Carl and his organization, Public.Resource.Org, and the case has bounced around the courts. The standards bodies were incredibly obnoxious about it all, with one board member of a standards body bizarrely whining in an email that the people clamoring to free the law “are still clamoring for free beer and free sex too.” Weird to admit that you normally expect to pay for sex, but, hey everyone has their own preferences.

Back in 2017, a district court ruled against Carl, but thankfully the DC Circuit sent the case back saying that the lower court needed to consider if such standards that are incorporated by law can be posted under fair use. And as the next round heated up, one of the remaining plaintiffs agreed to drop the case, leaving just one remaining standards body: ASTM — the American Society for Testing and Materials.

Finally, a few weeks ago (I’m catching up on some stories that I’ve been meaning to write up), the district court ruled (mostly) in favor of Carl, but very much in favor of fair use. The parts that the court ruled against him were on a few standards he had posted that, for a variety of reasons, were somewhat different than the actual standard incorporated into the law. But for the ones that were the standards used in the law, the court found in favor of fair use.

Somewhat incredibly, the court went through each of the separate 217 standards at issue in the case and did a fair use analysis on each of them in a separate appendix to the ruling. I’m not going to go through each fair use analysis, but it’s worth skimming through and getting a sense. The key part, though, is the recognition by the court that when a standard has been incorporated into the law, it should be fair use to republish the parts of the standard that are relevant to the law.

One interesting tidbit, though, is that throughout this very, very long legal dispute, the various standards bodies have insisted that allowing Carl to do this would destroy their “business” and the ability to keep working on standards. This issue came up in determining part of the fourth factor of the fair use test — which is the impact on the market. And the court notes that the standards bodies like ASTM have had lots of time to show harm, and have failed to do so.

Plaintiffs’ evidence falls well short of showing some meaningful likelihood of future harm. Plaintiffs begin with the premise that Defendant’s postings are “unrestricted” and “widely viewed,” and conclude that “[t]his means its users include those individuals and entities who would otherwise purchase or license copies of Plaintiffs standards.” See Pls.’ 2d MSJ at 27. But Plaintiffs’ evidentiary support for this proposition is meager: correspondence from an engineer asking Defendant if the Circuit’s decision in ASTM I meant Defendant could “update the site,” Wise Decl. ¶ 174, Ex. 173 at PRO_00267293, and correspondence from an engineering firm telling Defendant it heard about its organization from a “colleague” and asking Defendant how it could access Defendant’s postings, id. ¶ 165, Ex. 164 at Interrog. 22. Those communications—showing that two entities were interested in accessing Defendant’s posting —do not explain whether the entities were interested in accessing Defendant’s postings in lieu of purchasing Plaintiffs’ standards, as opposed to simply accessing them in Plaintiffs’ read-only access rooms.

Plaintiffs also argue that beyond those two engineering entities, there “may also” be “further would-be-infringers” who could repurpose Defendant’s postings to turn a profit for themselves. See Pls.’ 2d MSJ at 27. This argument is even more tenuous than the former. Plaintiffs point to a third-party website offering users the ability to pay to access ASTM standards, but they do not assert—or offer any evidence to show—that the third party’s offerings are a result of Defendant’s actions, or whether the third party, like Defendant, purchased Plaintiffs’ standards and then scanned and uploaded them to its website. See id. (citing Pls.’ 2d SMF ¶¶ 105-06 (citing Wise Decl. ¶ 154-55)). In other words, evidence that other websites are also posting Plaintiffs’ standards—without any causal connection to Defendant’s actions—does not show “market harm caused by the particular actions of the alleged infringer,” nor does it show whether Defendant’s actions enabled “widespread conduct of the sort engaged in by [Defendant]” that “would result in a substantially adverse impact on the potential market for the original.” Campbell, 510 U.S. at 590 (internal quotation marks omitted).

All in all the end result here is good. The court has said that when standards are incorporated into law, Public.Resource.Org will be able to publish those parts of the standards and be protected under fair use.