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IP and Incorporation into Law


The U.S. District Court for the District of Columbia recently granted summary judgment to plaintiffs in a copyright and trademark infringement case involving technical standards that were incorporated by reference into law.  The case, American Society for Testing and Materials, d/b/a ASTM International v. Public.Resource.Org, Inc., is of possible interest to legal researchers given its implications for the accessibility of legal documents.

In this case, the defendant was a website dedicated to providing the public with access to free copies of federal, state and local government codes.  Some of the federal codes hosted by the defendant incorporated voluntary industry standards and best practices into federal law by reference, as is permitted under 5 U.S.C. § 552(a)(1)(E).  The defendant hosted free copies of these standards on its website along with the federal codes, and was sued by the organizations that drafted and published the standards. The district court granted summary judgment to the plaintiffs, holding that copyrighted material does not lose its protection when incorporated by reference into law.

This case does not result in the complete unavailability of free legal materials, as the plaintiffs in this case also provide their respective standards to the public online, and at no charge. However, the free versions of these materials lack the search functionality of the paid versions, and the precedent of preserving intellectual property rights in materials incorporated into law may become a concern in the future.

For further reading, interested parties might be interested in this Government Technology article discussing the case.  For a more general introduction to the topic, researchers may want to consider the law review article cited by the court, Incorporation by Reference in an Open-Government Age by Emily Bremer.

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