Copyright in Standards Incorporated by
September 26, 2023
Reference into Law and the Pro Codes Act
Kevin J. Hickey
This report explains the current law and litigation

Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act

Updated August 8, 2025 (R47656) Jump to Main Text of Report

Contents

• Introduction
• Copyright Basics
• Case Law on Copyright in IBR Standards
• Conflicting Decisions by the Federal Courts of Appeals (1980–2002)
• The D.C. Circuit's 2018 Ruling in ASTM v. PRO I
• The Supreme Court's Ruling in Georgia v. PRO (2020)
• Developments After Georgia v. PRO
• Takings Clause Issues
• The Pro Codes Act
• Considerations for Congress

Summary

This report explains the current law concerning copyright protection for technical concerning copyright protection for technical
Legislative Attorney
standards developed by private organizations and subsequently incorporated by reference into standards developed by private organizations and subsequently incorporated by reference into

federal, state, or local law. federal, state, or local law.

Technical standards—such as fire safetyIt reviews the outcomes and reasoning of prominent case law on the issue from the federal courts and the potential effect of legislative proposals introduced in recent Congresses. Technical standards—such as fire prevention and building codes—play an important role in and building codes—play an important role in
protecting public health and safety, as well as ensuring compatibility and interoperability in particular industries. protecting public health and safety, as well as ensuring compatibility and interoperability in particular industries. Current
federalFederal policy generally policy generally requiresencourages federal agencies to use privately developed, voluntary consensus standards, instead of federal agencies to use privately developed, voluntary consensus standards, instead of
“"government-uniquegovernment-unique”" standards. Private standards-developing organizations (SDOs) often standards. Private standards-developing organizations (SDOs) often developcreate these standards by these standards by
bringing together experts and stakeholders in particular areas and reaching consensus on effective technical solutions. SDOs bringing together experts and stakeholders in particular areas and reaching consensus on effective technical solutions. SDOs
may fund their activities by publishing and selling copies of their standards (e.g., an electrical code handbook) to people who may fund their activities by publishing and selling copies of their standards (e.g., an electrical code handbook) to people who
use those standards (e.g., a property developer).use those standards (e.g., a property developer).
Privately developed standards are used by federal, state, and local governments in various ways. In particular, governments Privately developed standards are used by federal, state, and local governments in various ways. In particular, governments
may incorporate such standards into law or regulation by reference. For example, a state or locality may adopt a privately may incorporate such standards into law or regulation by reference. For example, a state or locality may adopt a privately
developed electrical code, making that standard a legal requirement for the electrical design of a building in that jurisdiction. developed electrical code, making that standard a legal requirement for the electrical design of a building in that jurisdiction.
Other incorporated-by-reference (IBR) standards may serve as Other incorporated-by-reference (IBR) standards may serve as a referencereferences or as guidance or as guidance, but do not formally impose legal but do not formally impose legal
obligations.obligations.
Copyright grants the author of a creative work SDOs may rely on copyright protection to fund their standards-development activities. Copyright grants authors of creative works (e.g., books) the exclusive right to copy and sell their work, among other things. As an the exclusive right to copy and sell their work, among other things. As an
original work of authorship, standards are generally entitled to copyright protection if they are created by a private entity. original work of authorship, standards are generally entitled to copyright protection if they are created by a private entity.
Copyright protection, when applicable, allows SDOs to prevent third parties from making and distributing unauthorized Copyright protection, when applicable, allows SDOs to prevent third parties from making and distributing unauthorized
copies of their standards. copies of their standards. SDOs may thus rely on copyright to fund their standards-development activities.
When technical standards are incorporated into law, maintaining copyright protection on them can raise constitutional and When technical standards are incorporated into law, maintaining copyright protection on them can raise constitutional and
otherpolicy concerns about public access to the law. Under federal law, standards incorporated by reference into federal regulations concerns about public access to the law. Under federal law, standards incorporated by reference into federal regulations
must be made reasonably available to interested parties. State and local governments also often must be made reasonably available to interested parties. State and local governments also often rely onuse IBR standards IBR standards, and and
may have differing policies for public access. Many SDOs choose to make their standards available in some form onlinemay have differing policies for public access. Many SDOs choose to make their standards available in some form online, even if they assert copyright ownership over the IBR standards, while charging for printed copies or online versions with greater functionality than the free online versions. .
Some public-access Some public-access and government-transparency organizationsorganizations, as well as commercial entities, have disregarded SDOs have disregarded SDOs’' copyright assertions and posted copyright assertions and posted
technical standards technical standards online, including making them available for free downloadfor free download online. These groups argue that IBR standards lose copyright protection once they are . These groups argue that IBR standards lose copyright protection once they are
incorporated into lawincorporated into law, or that their activities are a permitted fair use of SDOs or that their activities are a permitted fair use of SDOs’' copyrighted material. Several copyright copyrighted material. Several copyright
disputes between SDOs and public-access organizationsdisputes brought by SDOs have led to protracted litigation in multiple forums. have led to protracted litigation in multiple forums.
Despite decades of decisions, courts have not reached consensus on whether technical standards remain protected by Despite decades of decisions, courts have not reached consensus on whether technical standards remain protected by
copyright after they are incorporated into law. copyright after they are incorporated into law. Various U.S. Courts of Appeals for different regional circuits reached U.S. Courts of Appeals for different regional circuits reached
seemingly conflicting conclusions on that question in the 1980s–2000s. Following seemingly conflicting conclusions on that question in the 1980s–2000s. Following a 2018 decision by the D.C. Circuitthe U.S. Court of Appeals for the District of Columbia Circuit's decision in in
American Society for Testing and Materials v. Public.ResourceResource.Org ( (ASTM v. PRO I), 896 F.3d 437 (D.C. Cir. 2018), courts have I), the case law has increasingly focused increasingly focused
on whether copyrighton whether copyright’'s fair use doctrine permits public-access groups s fair use doctrine permits public-access groups or commercial entities to make IBR standards available online. to make IBR standards available online. Following
ASTMAfter ASTM v. PRO I and the Supreme Court and the Supreme Court’s 2020's decision on a related issue in decision on a related issue in Georgia v. Public.Resource.Org, Resource.Org, 590 U.S. 255 (2020), recent cases recent cases
have typicallyhave generally ruled against SDOs ruled against SDOs’' copyright infringement claims, mainly on fair use grounds copyright infringement claims, mainly on fair use grounds.
A bill introduced in the 118th Congress, the, although the results have not been uniform. The Pro Codes Act ( Pro Codes Act (H.R. 4072 in the 119th Congress)H.R. 1631 and S. 835), seeks to address this issue legislatively. seeks to address this issue legislatively.
The Pro Codes Act would explicitly provide that otherwise copyrightable IBR standards retain their copyright protection The Pro Codes Act would explicitly provide that otherwise copyrightable IBR standards retain their copyright protection
even after a government incorporates them into law. At the same time, the bill would require that SDOs make IBR standards even after a government incorporates them into law. At the same time, the bill would require that SDOs make IBR standards
publicly publicly accessibleavailable online in a readable online in a readable, accessible format at no monetary cost to users. The Pro Codes Act would not require SDOs to format at no monetary cost to users. The Pro Codes Act would not require SDOs to
make IBR standards available for printing or download, and SDOs could require users to agree to terms and conditions before make IBR standards available for printing or download, and SDOs could require users to agree to terms and conditions before
accessing the standards.
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Contents
Introduction ..................................................................................................................................... 1
Copyright Basics ............................................................................................................................. 2
Case Law on Copyright in IBR Standards ...................................................................................... 3
Conflicting Decisions by the Federal Courts of Appeals (1980–2002) ..................................... 4
The D.C. Circuit’s 2018 Ruling in ASTM v. PRO I ................................................................... 5
The Supreme Court’s Ruling in Georgia v. PRO (2020) ........................................................... 6
Developments After Georgia v. PRO ........................................................................................ 7
Takings Clause Issues ...................................................................................................................... 9
The Pro Codes Act .......................................................................................................................... 11
Considerations for Congress.......................................................................................................... 13

Contacts
Author Information ........................................................................................................................ 14

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Introduction
accessing the standards.

Introduction

For decades, federal courts weighed competing legal arguments about the copyright status of For decades, federal courts weighed competing legal arguments about the copyright status of
privately authored material that is later privately authored material that is later copied or incorporated by reference into federal, state, or incorporated by reference into federal, state, or
local laws and regulations.local laws and regulations.1 A bill introduced in the 118th Congress, the Pro Codes Act,21 The Pro Codes Act,² a bill introduced in the 118th and 119th Congresses, seeks to seeks to
address this issue legislatively. The address this issue legislatively. The Pro Codes Act would make clearbill would clearly establish that copyright protection that copyright protection
applies to privately authored, incorporated-by-reference (IBR) standards, while also requiring that applies to privately authored, incorporated-by-reference (IBR) standards, while also requiring that
the standards be made publicly accessible online the standards be made publicly accessible online in a readable format at no monetary cost to at no monetary cost to
users.users.33 This report explains the current law and litigation surrounding copyright in IBR standards. This report explains the current law and litigation surrounding copyright in IBR standards.
Current federal policy generally encourages agencies to use privately developed Current federal policy generally encourages agencies to use privately developed “"voluntary voluntary
consensus standardsconsensus standards”" instead of instead of “"government-unique standards.government-unique standards.”4"⁴ Private standards-developing Private standards-developing
organizations (SDOs)organizations (SDOs)55 often develop these standards, which are then used by often develop these standards, which are then used by private parties and the government for the government for
various purposes.various purposes.66 Federal regulations require that standards incorporated by reference into Federal regulations require that standards incorporated by reference into
federal regulations be made federal regulations be made “"reasonably available to interested parties.reasonably available to interested parties.”7"⁷ State and local State and local
governments also often rely on IBR standardsgovernments also often rely on IBR standards, and may have differing policies for public access. and may have differing policies for public access.⁸ 8
Technical standards—such as communications standards or fire safety and building codes—are Technical standards—such as communications standards or fire safety and building codes—are
typically original works of authorship entitled to copyright protection.typically original works of authorship entitled to copyright protection.99 Copyright protection, Copyright protection,
when applicable, allows SDOs to prevent third parties from making and distributing unauthorized when applicable, allows SDOs to prevent third parties from making and distributing unauthorized
copies of their standards.copies of their standards.1010 SDOs may rely on copyright to earn money through selling copies of SDOs may rely on copyright to earn money through selling copies of
their standards (e.g., an electrical code handbook) to people who use those standards (e.g., a their standards (e.g., an electrical code handbook) to people who use those standards (e.g., a
property developer).property developer).1111 Copyright may thus allow SDOs to recoup the cost of developing Copyright may thus allow SDOs to recoup the cost of developing
standards, which includes consulting with experts and stakeholders in particular industries and standards, which includes consulting with experts and stakeholders in particular industries and
technical areas to reach consensus on effective technical solutions.12

1 See, e.g., Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc., No. 22-7063, 2023 WL 5918491, at *5
(D.C. Cir. Sept. 12, 2023) [hereinafter ASTM v. PRO II]; Am. Soc’y for Testing & Materials v. Public.Resource.Org,
Inc., 896 F.3d 437, 444 (D.C. Cir. 2018) [hereinafter ASTM v. PRO I]; Veeck v. S. Bldg. Code Cong. Int’l, 293 F.3d
791 (5th Cir. 2002); Bldg. Officials & Code Adm’rs v. Code Tech., Inc., 628 F.2d 730 (1st Cir. 1980).
2 H.R. 1631, 118th Cong. (2023); S. 835, 118th Cong. (2023). As H.R. 1631 and S. 835 are substantively identical, this
report will hereinafter cite only to H.R. 1631 (as introduced) for simplicity.
3 Id. § 3.
4 WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET, OMB Circular No. A-119: Federal Participation in the
Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities 17 (Feb. 10, 1998)
(revised Jan. 27, 2016), https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-
119_as_of_1_22.pdf.
5 Resources: Standards Developing Organizations (SDOs), AM. NAT’L STANDARDS INST.,
https://www.standardsportal.org/usa_en/resources/sdo.aspx (last visited Aug. 8, 2023).
6 See U.S. Standards System: Government Use of Standards, AM. NAT’L STANDARDS INST,
https://www.standardsportal.org/usa_en/standards_system/government_use_standards.aspx (last visited Aug. 8, 2023).
7 1 C.F.R. § 51.5(b)(2) (2019); 5 U.S.C. § 552(a)(1). See also Incorporation by Reference in the CFR, ADMIN. CONF. OF
U.S. (Dec. 8, 2011), https://www.acus.gov/recommendation/incorporation-reference.
8 See ASTM v. PRO I, 896 F.3d 437, 442 (D.C. Cir. 2018) (reviewing requirements for incorporation of standards by
references in the District of Columbia).
9 17 U.S.C. § 102(a).
10 See 17 U.S.C. § 106.
11 Press Release, Sen. Chris Coons, Protecting and Enhancing Public Access to Codes (Pro Codes) Act of 2023 (Mar.
16, 2023), https://www.coons.senate.gov/imo/media/doc/pro_codes_act_one_pager.pdf.
12 About the ANSI Incorporated by Reference (IBR) Portal, AMERICAN NATIONAL STANDARDS INSTITUTE,
https://ibr.ansi.org (last visited, Aug. 8, 2023).
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technical areas to reach consensus on effective technical solutions.¹² When technical standards become incorporated into When technical standards become incorporated into the law, however, maintaining copyright law, however, maintaining copyright
protection on them may raise a protection on them may raise a “"serious constitutional concernserious constitutional concern”" about public access to the law. about public access to the law.13
13 Various public-access and government-transparency organizations—such as Public.Resource.Org, Various public-access and government-transparency organizations—such as Public.Resource.Org,
Inc. (PRO)—have disregarded SDOsInc. (PRO)—have disregarded SDOs’' copyright assertions and posted technical standards for free copyright assertions and posted technical standards for free
online.online.1414 These groups argue that IBR standards lose copyright protection once they are These groups argue that IBR standards lose copyright protection once they are
incorporated into lawincorporated into law, or that their activities are or that their activities are a permittedpermitted as a fair use of SDOs fair use of SDOs’' copyrighted copyrighted
material.material.1515 Citing both old and recent Supreme Court case law, Citing both old and recent Supreme Court case law,1616 public-access groups argue that public-access groups argue that
because all citizens are entitled to freely access and debate the law under the Constitutionbecause all citizens are entitled to freely access and debate the law under the Constitution’'s Due s Due
Process Clause and the First Amendment,Process Clause and the First Amendment,1717 access to it cannot be conditioned on the consent of a access to it cannot be conditioned on the consent of a
copyright holder (here, the SDO). Several copyright disputes between SDOs and public-access copyright holder (here, the SDO). Several copyright disputes between SDOs and public-access
organizations have led to protracted litigation.organizations have led to protracted litigation.¹⁸ 18
This debate has generated congressional interestThis debate has generated congressional interest as well. On July 19, 2023. In the 118th Congress, the House Committee , the House Committee
on the Judiciary on the Judiciary held a markup hearing on the Pro Codes Act.19
marked up the Pro Codes Act and reported it favorably out of committee.¹⁹ A motion to suspend the rules and pass the bill failed to reach the required two-thirds majority on the House floor.²⁰ The bill was reintroduced in the House in the 119th Congress.²¹ This report provides background on the issue of copyright for IBR standards and explains the This report provides background on the issue of copyright for IBR standards and explains the
ongoing litigation in ongoing litigation in American Society for Testing and Materials v. Public.ResourceResource.Org ( (ASTM
v. PRO) and similar cases.) and similar cases.2022 It also analyzes the potential relevance of the Supreme Court It also analyzes the potential relevance of the Supreme Court’'s 2020 s 2020
decision in decision in Georgia v. Public.ResourceResource.Org ((Georgia v. PRO), which concerned claims of ), which concerned claims of
copyright in the official annotations to Georgiacopyright in the official annotations to Georgia’'s state code.s state code.21
Copyright Basics
23 Finally, it reviews the specific changes proposed by the Pro Codes Act and considerations for Congress.²⁴ Copyright Basics Copyright protects fixed, creative works of authorship, including literary works.Copyright protects fixed, creative works of authorship, including literary works.2225 Although facts Although facts
themselves are not copyrightable, written explanations about facts (e.g., a scientific textbook) and themselves are not copyrightable, written explanations about facts (e.g., a scientific textbook) and
original arrangements of facts are copyrightable.original arrangements of facts are copyrightable.2326 In general, then, a manual of technical In general, then, a manual of technical
standards is an original work to which copyright applies, and the author or copyright holder has standards is an original work to which copyright applies, and the author or copyright holder has
the exclusive right to copy and distribute that work (among other rights).the exclusive right to copy and distribute that work (among other rights).2427 Another person who Another person who
copies that work without the copyright holdercopies that work without the copyright holder’'s permission may infringe the copyright and be s permission may infringe the copyright and be
liable for damages and other legal remedies.25

13 ASTM v. PRO I, 896 F.3d at 447.
14 See, e.g., Global Public Safety Codes, INTERNET ARCHIVE,
https://archive.org/details/publicsafetycode?tab=collection&query=public.resource.org (last visited Aug. 8, 2023).
15 See, e.g., ASTM v. PRO I, 896 F.3d at 446.
16 See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020).
17 See generally Cong. Rsch. Serv., Historical Background on Free Speech Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-1/ALDE_00013537/ (last visited Aug. 16, 2023); Cong. Rsch.
Serv., Overview of Due Process, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt5-5-
1/ALDE_00013721/ (last visited Aug. 16, 2023).
18 See generally Isaiah Poritz, Copyrights Are Murky for Laws Referring to Outside Safety Codes, BLOOMBERG LAW,
Mar. 24, 2023, https://news.bloomberglaw.com/ip-law/copyrights-are-murky-for-laws-referring-to-outside-safety-
codes.
19 Markup of H.R. 1631, H.R. 4250, and H.R. 4639 Before the H. Comm. on the Judiciary, 118th Cong. (2023); H.R.
1631, 118th Cong. (2023), https://judiciary.house.gov/committee-activity/markups/hr-1631-hr-4250-and-hr-4639.
20 597 F. Supp. 3d 213 (D.D.C. 2022).
21 Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020).
22 17 U.S.C. § 102(a)(1).
23 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
24 See 17 U.S.C. § 106.
25 Id. §§ 501–505.
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liable for damages and other legal remedies.²⁸ At least four legal limitations on copyright, however, might apply to At least four legal limitations on copyright, however, might apply to particular IBR standardsIBR standards or uses of them. First, under . First, under
the statutory the statutory “government works”"government-works" doctrine, copyright protection is unavailable for doctrine, copyright protection is unavailable for “"any work of any work of
the United States Government.the United States Government.”26"²⁹ That includes works (such as this report) created by federal That includes works (such as this report) created by federal
officers and employees as part of their official duties.officers and employees as part of their official duties.2730 Second, under the judicially developed Second, under the judicially developed
“government edicts”"government-edicts" doctrine, copyright does not vest in works created by judges and legislators doctrine, copyright does not vest in works created by judges and legislators
(including state officers) in the course of their official judicial and legislative duties.(including state officers) in the course of their official judicial and legislative duties.2831 Third, Third,
under the fair use doctrine, courts under the fair use doctrine, courts may permit certain permit certain socially valuable uses of copyrighted works that uses of copyrighted works that
would otherwise be infringing, based on balancing would otherwise be infringing, based on balancing statutory factors such as the purpose of the use, the factors such as the purpose of the use, the
nature of the copyrighted work, the amount used, and nature of the copyrighted work, the amount used, and anythe potential economic harm from the potential economic harm from the
use.use.2932 Fourth, under the idea/expression distinction and merger doctrine, copyright protection Fourth, under the idea/expression distinction and merger doctrine, copyright protection
does not extend to facts or ideas;does not extend to facts or ideas;3033 when there are only a few ways to express an idea, the when there are only a few ways to express an idea, the
expression is said to expression is said to “merge”"merge" with the idea, and neither is copyrightable. with the idea, and neither is copyrightable.31
34 SDOs may also have trademark rights in the symbols they use to identify themselves as a source SDOs may also have trademark rights in the symbols they use to identify themselves as a source
of goods and services, such as a logo on the cover of a standards manual.of goods and services, such as a logo on the cover of a standards manual.3235 Although trademark Although trademark
claims have also arisen in litigation between public-access groups and SDOs,claims have also arisen in litigation between public-access groups and SDOs,3336 they are not they are not
analyzed in this report.analyzed in this report.
Case Law on Copyright in IBR Standards
The Federal courts have considered the copyright status of IBR standards copyright status of IBR standards has been litigated in a number of significant in a number of significant federal cases
since at least the 1980s. Despite more than 40 years of historydecisions since the 1980s. Despite decades of litigation, courts have not reached a , courts have not reached a
definitive consensus on (1) whether technical standards remain protected by copyright after they definitive consensus on (1) whether technical standards remain protected by copyright after they
are incorporated by reference into laware incorporated by reference into law, or or, (2) if IBR standards are protected, whether the fair use (2) if IBR standards are protected, whether the fair use
doctrine or the Constitution permits third parties to make them publicly available despite the doctrine or the Constitution permits third parties to make them publicly available despite the
copyright.copyright.
On the first issue—whether incorporation by reference into law puts standards into the public On the first issue—whether incorporation by reference into law puts standards into the public
domain—domain—several decisions by the federal courts of appeals have reached seemingly inconsistent decisions by the federal courts of appeals have reached seemingly inconsistent
conclusions.conclusions.34 Following the D.C. Circuit’s 2018 ruling in 37 Following the U.S. Court of Appeals for the District of Columbia Circuit's (D.C. Circuit's) 2018 ruling in the ASTM v. PRO I case I and the Supreme and the Supreme
Court’Court's 2020 decision in s 2020 decision in Georgia v. PRO,,3538 recent cases have increasingly avoided the broader recent cases have increasingly avoided the broader
copyrightability issue and focused instead on the fair use doctrine, while typically ruling against copyrightability issue and focused instead on the fair use doctrine, while typically ruling against
SDOs’SDOs' copyright infringement claims.³⁹ Conflicting Decisions by the Federal Courts of Appeals (1980–2002) Several of the early cases on the copyrightability of IBR standards involve model building codes. For example, Building Officials and Code Administrators International v. Code Technology Inc.⁴⁰ copyright infringement claims.36

26 Id. § 105(a).
27 Id. § 101; see also U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES, § 313.6(C)(1) (3d.
ed. 2021), https://www.copyright.gov/comp3/docs/compendium.pdf [hereinafter COPYRIGHT OFFICE COMPENDIUM].
28 See Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1506 (2020); COPYRIGHT OFFICE COMPENDIUM
§ 313.6(C)(2). As a formal matter, the “government edicts” doctrine is a long-standing judicial interpretation of the
term “author” as used in the Copyright Act. Georgia v. PRO, 140 S. Ct. at 1507. It is motivated by the “animating
principle” that “no one can own the law.” Id.
29 17 U.S.C. § 107. See, e.g., Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1274 (2023).
30 See 17 U.S.C. § 102(b); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 356 (1991).
31 See Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 607 (1st Cir. 1988).
32 See generally CRS In Focus IF12456, An Introduction to Trademark Law in the United States, by Christopher T.
Zirpoli (2023).
33 See, e.g., ASTM v. PRO I, 896 F.3d 437, 454 (D.C. Cir. 2018).
34 See infra “Conflicting Decisions by the Federal Courts of Appeals (1980–2002).”
35 See infra “The D.C. Circuit’s 2018 Ruling in ASTM v. PRO I” and “The Supreme Court’s Ruling in Georgia v. PRO
(2020).”
36 See infra “Developments After Georgia v. PRO.”
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Conflicting Decisions by the Federal Courts of Appeals (1980–2002)
Several of the early cases in this area involve model building codes. For example, Building
Officials and Code Administrators International v. Code Technology Inc.37 concerned a model concerned a model
building code privately developed by the plaintiff, known as BOCA for short, and later adopted in building code privately developed by the plaintiff, known as BOCA for short, and later adopted in
substantial part by the Commonwealth of Massachusetts under a license. BOCAsubstantial part by the Commonwealth of Massachusetts under a license. BOCA, which sold book copies sold book copies
of its model code under the title of its model code under the title Commonwealth of Massachusetts State Building Code and, sued a sued a
competitor for copyright infringement when it published a competing book version of the competitor for copyright infringement when it published a competing book version of the
Massachusetts code.38code.⁴¹ Although the district court awarded a preliminary injunction to BOCA, the Although the district court awarded a preliminary injunction to BOCA, the
U.S. Court of Appeals for the First Circuit U.S. Court of Appeals for the First Circuit reversed.39(First Circuit) reversed.⁴² Without ruling Without ruling “definitively”"definitively" on the issue on the issue
given the given the case's procedural posture, the First Circuit implied that, because procedural posture, the First Circuit implied that, because “"[d]ue process requires [d]ue process requires
people to have notice of what the law requires of them,people to have notice of what the law requires of them,”" Massachusetts Massachusetts’'s adoption s adoption rendered the
of BOCA's model code as its official building code official building code “rendered it "freely available for copying by anyone, notwithstanding BOCAfreely available for copying by anyone, notwithstanding BOCA’s
's copyright.copyright.”40
"⁴³ In In Veeck v. Southern Building Code Congress International, the U.S. Court of Appeals for the , the U.S. Court of Appeals for the
Fifth Circuit (Fifth CircuitFifth Circuit), sitting en banc, largely agreed with the First Circuit, albeit over the dissent of six , sitting en banc, largely agreed with the First Circuit, albeit over the dissent of six
judges.judges.4144 The dispute in The dispute in Veeck involved a model building code adopted by two Texas towns and involved a model building code adopted by two Texas towns and
made available on a noncommercial website run by Peter Veeck.made available on a noncommercial website run by Peter Veeck.4245 The developer of the building The developer of the building
codes sent a cease-and-desist letter to Veeck, which led to litigation.codes sent a cease-and-desist letter to Veeck, which led to litigation.4346 On appeal, the Fifth Circuit On appeal, the Fifth Circuit
held that held that “"as as law, the model codes enter the public domain and are not subject to the copyright , the model codes enter the public domain and are not subject to the copyright
holder’holder's exclusive prerogatives.s exclusive prerogatives.”44"⁴⁷ The court rested its conclusion on two doctrinal rationales: the The court rested its conclusion on two doctrinal rationales: the
Supreme CourtSupreme Court’'s government-edicts cases (discussed below)s government-edicts cases (discussed below),4548 and the merger doctrine and the merger doctrine
(reasoning that (reasoning that the codes' adoption as law made them uncopyrightable "facts").⁴⁹ In contrast to the First and Fifth Circuits, theadoption as law makes the codes uncopyrightable “facts”).46
The U.S. Courts of Appeals for the Second and Ninth Circuits U.S. Courts of Appeals for the Second and Ninth Circuits, in contrast, have held that
reference to or adoption of a work (Second Circuit and Ninth Circuit, respectively) have held that adoption of a privately developed standard by a governmental body does not automatically result in a loss by a governmental body does not automatically result in a loss
of copyright protection. of copyright protection. In CCC Information Services v. MacLean Hunter Market ReportsMarket Reports, the Second Circuit addressed addressed
the copyright in a compendium of used car valuations called the the copyright in a compendium of used car valuations called the “"Red Book."⁵⁰ The courtRed Book.”47 The Second
Circuit rejected an argument that the Red Book fell into the public domain because state law rejected an argument that the Red Book fell into the public domain because state law
referenced Red Book information to set minimum values for car insurance payouts.referenced Red Book information to set minimum values for car insurance payouts.4851 The court The court
notedreasoned that a rule that standards fell into the public domain once incorporated into law that a rule that standards fell into the public domain once incorporated into law “"would would
raise very substantial problems under the Takings Clause of the Constitution.”49 It also suggested

37 628 F.2d 730 (1st Cir. 1980).
38 Id. at 732.
39 Id. at 736.
40 Id. at 732–35.
41 293 F.3d 791 (5th Cir. 2002).
42 Id. at 793.
43 Id. at 794.
44 Id. at 793.
45 See id. at 795–800 (citing Banks v. Manchester, 128 U.S. 244 (1888)); see infra “The Supreme Court’s Ruling in
Georgia v. PRO (2020)” (discussing Banks and the Supreme Court’s other 19th century government-edicts cases).
46 See Veeck, 293 F.3d at 801–03 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) and 17 U.S.C.
§ 102(b)).
47 44 F.3d 61, 63 (2d Cir. 1994).
48 See id. at 74 (“We are not prepared to hold that a state’s reference to a copyrighted work as a legal standard for
valuation results in loss of the copyright.”).
49 Id. at 74. See generally Cong. Rsch. Serv., Overview of the Takings Clause, CONSTITUTION ANNOTATED,
(continued...)
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raise very substantial problems under the Takings Clause of the Constitution"⁵² and suggested that fair use might permit some noncommercial uses of the work, that fair use might permit some noncommercial uses of the work, which could mitigatemitigating due due
process concerns.process concerns.50
53 Finally, in Finally, in Practice Management Information Corp. v. AMAAmerican Medical Association, the Ninth Circuit addressed a , the Ninth Circuit addressed a
copyright claim in the Physiciancopyright claim in the Physician’'s Current Procedural Terminology (CPT), a taxonomy of s Current Procedural Terminology (CPT), a taxonomy of
medical procedures and associated medical procedures and associated numerical codes developed by the American Medical Associationcodes developed by the American Medical Association.51 (AMA).⁵⁴ In In
the 1970s, Congress instructed the Health Care Financing Administration (HCFA) to establish a the 1970s, Congress instructed the Health Care Financing Administration (HCFA) to establish a
system for identifying physicianssystem for identifying physicians’' services for Medicare and Medicaid reimbursement forms. services for Medicare and Medicaid reimbursement forms.52
55 HCFA chose to adopt the CPT and incorporate it by reference into federal regulations.HCFA chose to adopt the CPT and incorporate it by reference into federal regulations.5356 A A
medical book publisher sued for a declaratory judgment that the CPT became uncopyrightable medical book publisher sued for a declaratory judgment that the CPT became uncopyrightable
once HCFA required the use of CPT code numbers.once HCFA required the use of CPT code numbers.5457 The Ninth Circuit held that the The Ninth Circuit held that the Supreme
Court’s government-edictcopyright remained valid because the Supreme Court's government-edicts cases did not apply, relying largely on public policy arguments. cases did not apply, relying largely on public policy arguments.5558 The The
court observed that court observed that “"[n]on-profit organizations that develop these model codes and standards [n]on-profit organizations that develop these model codes and standards
warn they will be unable to continue to do so if the codes and standards enter the public domain warn they will be unable to continue to do so if the codes and standards enter the public domain
when adopted by a public agency.when adopted by a public agency.”56 It also"⁵⁹ It found that any due process concerns were sufficiently found that any due process concerns were sufficiently
addressed by AMAaddressed by AMA’'s own publication of the CPT.s own publication of the CPT.57
60 The D.C. Circuit’'s 2018 Ruling in ASTM v. PRO I
More recent judicial examinations of copyright in IBR standards can be found in More recent judicial examinations of copyright in IBR standards can be found in ASTM v. PRO,
an ongoing, the American Society for Testing and Materials v. Public.Resource.Org (ASTM v. PRO) case, a decade-long litigation in the federal courts of the District of Columbia.decade-long litigation in the federal courts of the District of Columbia.5861 In 2013, In 2013,
several SDOs sued PRO for copyright infringement after PRO made thousands of technical several SDOs sued PRO for copyright infringement after PRO made thousands of technical
standards available for free download online.standards available for free download online.5962 PRO raised several copyright and constitutional PRO raised several copyright and constitutional
defenses, arguing that defenses, arguing that “"citizens must have free access to the law.citizens must have free access to the law.”60 The district court rejected
PRO’"⁶³ At the trial level, the U.S. District Court for the District of Columbia rejected PRO's arguments, holding that the SDOs had valid copyrights that PRO infringed.s arguments, holding that the SDOs had valid copyrights that PRO infringed.61
The U.S. Court of Appeals for64 In ASTM v. PRO I, the D.C. Circuit reversed the district court the D.C. Circuit reversed the district court’'s ruling.s ruling.6265 Its opinion Its opinion
observed that technical standards are observed that technical standards are “"as diverse as they are manyas diverse as they are many,”" and that governmental bodies and that governmental bodies
incorporate them by reference in ways that incorporate them by reference in ways that “"var[y] widely by jurisdiction.var[y] widely by jurisdiction.”63"⁶⁶ In particular, some In particular, some
IBR standards IBR standards “"define onedefine one’'s legal obligations,s legal obligations,”" while others while others “"serve as mere references but have no direct legal effect."⁶⁷serve as mere references but have

https://constitution.congress.gov/browse/essay/amdt5-9-1/ALDE_00013280/ (last visited Aug. 8, 2023); CRS Report
R47562, The Takings Clause of the Constitution: Overview of Supreme Court Jurisprudence on Key Topics, by Adam
Vann (2023).
50 CCC Info. Servs., 44 F.3d at 74 n.30.
51 121 F.3d 516, 517 (9th Cir. 1997).
52 Id. at 518.
53 Id.
54 Id.
55 See id. at 518–20.
56 Id. at 519.
57 Id. (“[T]he due process requirement of free access to the law . . . may be relevant but does not justify termination of
the AMA’s copyright. There is no evidence that anyone wishing to use the CPT has any difficulty obtaining access to
it.”)
58 See 896 F.3d 437 (D.C. Cir. 2018).
59 Id. at 444.
60 Id. at 446.
61 See id. at 444–45.
62 Id. at 458.
63 Id. at 441–42.
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no direct legal effect.”64 In part because of the many different uses of IBR standards, the appeals In part because of the many different uses of IBR standards, the appeals
court chose not to make a broad ruling on the court chose not to make a broad ruling on the “"serious constitutional concernsserious constitutional concerns”" raised by PRO raised by PRO
under the First Amendment and Due Process Clause.under the First Amendment and Due Process Clause.6568 Instead, the court took a Instead, the court took a “"narrower narrower
approach”approach" focused on the fair use doctrine. focused on the fair use doctrine.6669 On that statutory ground, the court held that the On that statutory ground, the court held that the
district court erred in granting summary judgment to the SDOs because there was a genuine district court erred in granting summary judgment to the SDOs because there was a genuine
factual dispute on the fair use issue.factual dispute on the fair use issue.6770 Although the court Although the court’'s analysis of the fair use factors s analysis of the fair use factors
suggested thatsuggested that it thought that PRO that PRO’'s use was likely fair,s use was likely fair,6871 the D.C. Circuit ultimately remanded the D.C. Circuit ultimately remanded
the case to the district court for further proceedings.the case to the district court for further proceedings.69
Later decisions72 Later developments in the in the ASTM v. PRO litigation followed the Supreme Court litigation followed the Supreme Court’'s intervening decision s intervening decision
in in Georgia v. PRO, and so are discussed separately below. and so are discussed separately below.70
73 The Supreme Court’'s Ruling in Georgia v. PRO (2020)
While litigating against ASTM in the D.C. Circuit, PRO was also defending against a separate While litigating against ASTM in the D.C. Circuit, PRO was also defending against a separate
copyright infringement claim by the State of Georgia in a case that ultimately reached the copyright infringement claim by the State of Georgia in a case that ultimately reached the
Supreme Court. Supreme Court. Georgia v. PRO involved the copyrightability of the annotations to the Official involved the copyrightability of the annotations to the Official
Code of Georgia Annotated (OCGA).Code of Georgia Annotated (OCGA).7174 (Annotations to statutes or judicial decisions typically (Annotations to statutes or judicial decisions typically
provide commentary, explanations, or context about the code provision or judicial opinion.provide commentary, explanations, or context about the code provision or judicial opinion.72)
LexisNexis)⁷⁵ LexisNexis (Lexis), a private company, prepared those annotations under a work-for-hire agreement with , a private company, prepared those annotations under a work-for-hire agreement with
a Georgia state entity called the Code Revision Commissiona Georgia state entity called the Code Revision Commission.73 Under that agreement, Lexis did
the work of drafting (the Commission).⁷⁶ Under that agreement, Lexis drafted the annotations, the annotations, butwhile the Commission held the copyright in them. the Commission held the copyright in them.7477 In return, In return,
Lexis received the exclusive right to publish and sell the OCGA and committed to make an Lexis received the exclusive right to publish and sell the OCGA and committed to make an
unannotated version of the code available online for free.unannotated version of the code available online for free.7578 After PRO posted a digital version of After PRO posted a digital version of
thethe full OCGA online OCGA online, the —including the annotations—the Commission sued PRO for copyright infringement.Commission sued PRO for copyright infringement.76
79 Georgia v. PRO focused on whether the focused on whether the OCGA wasannotations were ineligible for copyright under the ineligible for copyright under the
government-edicts doctrine, as developed through a trio of 19th-century Supreme Court cases: government-edicts doctrine, as developed through a trio of 19th-century Supreme Court cases:

64 Id. at 442–43.
65 See id. at 447.
66 Id.
67 Id. at 453.
68 See id. at 449–53 (analyzing the fair use factors as applied to PRO’s distribution of IBR standards and suggesting
that “in many cases, it may be fair use for PRO to reproduce part or all of a technical standard in order to inform the
public about the law”).
69 Id. at 448–49. Judge Katsas’s concurring opinion in ASTM v. PRO I expressed his view that as “a matter of common
sense . . . access to the law cannot be conditioned on the consent of a private party.” Id. at 458 (Katsas, J., concurring).
Citing BOCA and Veeck, he argued that the result may be based on the First Amendment, the Due Process Clause, the
idea/expression distinction, or the fair use doctrine. Id. at 459.
70 See infra “Developments After Georgia v. PRO.”
71 Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020).
72 See id. at 1504 (“[A]nnotations generally include summaries of judicial decisions applying a given provision,
summaries of any pertinent opinions of the state attorney general, and . . . often include editor’s notes that provide
information about the origins of the statutory text . . . . ”); Annotation, BLACK’S LAW DICTIONARY (11th ed. 2019).
73 Georgia v. PRO, 140 S. Ct. at 1505.
74 Id.
75 Id.
76 Id.
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Wheaton v. Peters,77 Banks v. Manchester,78Wheaton v. Peters,⁸⁰ Banks v. Manchester,⁸¹ and and Callaghan v. Myers..7982 Those cases all involved Those cases all involved
copyright in the work product of judges. Under copyright in the work product of judges. Under Wheaton and and Banks, federal and state judicial , federal and state judicial
opinions—or any opinions—or any “"products of the labor done by judicial officers in the discharge of their judicial products of the labor done by judicial officers in the discharge of their judicial
duties”duties"—are not copyrightable and —are not copyrightable and “"free for publication for all.free for publication for all.”80"⁸³ Under Under Callaghan, however, , however,
exposition exposition about judicial opinions authored by private parties (or even a state court reporter)— judicial opinions authored by private parties (or even a state court reporter)—
such as headnotes, tables of contents, case summaries, and the like—are copyrightable.such as headnotes, tables of contents, case summaries, and the like—are copyrightable.81
84 Georgia v. PRO presented the Court with an presented the Court with an “unusual”"unusual" situation in which annotations about the situation in which annotations about the
law—which would be copyrightable if written by a private entity—were published under law—which would be copyrightable if written by a private entity—were published under
Georgia’Georgia's authority as part of the official Georgia state code.s authority as part of the official Georgia state code.8285 Chief Justice Roberts Chief Justice Roberts’s opinion for
the Court read the's majority opinion read the Court's government-edicts cases to establish government-edicts cases to establish “"a straightforward rule based on the a straightforward rule based on the
identity of identity of author.”83the author."⁸⁶ Under that rule, Under that rule, “"copyright does not vest in works that are (1) created by copyright does not vest in works that are (1) created by
judges and legislators (2) in the course of their judicial and legislative duties,judges and legislators (2) in the course of their judicial and legislative duties,”" regardless of regardless of
whether the work is binding (like a statute) or not binding (like an annotation).whether the work is binding (like a statute) or not binding (like an annotation).8487 The The “"animating animating
principle”principle" underlying that rule is that underlying that rule is that “"no one can own the law.no one can own the law.”85
"⁸⁸ Applying Applying itsthat rule, the majority in rule, the majority in Georgia v. PRO found that because Lexis made the annotations found that because Lexis made the annotations
under an agreement with an under an agreement with an “arm”"arm" of the Georgia state legislature, the annotations were of the Georgia state legislature, the annotations were effectively authored authored
by the legislature in the course of its legislative duties.by the legislature in the course of its legislative duties.8689 The Court thus held that the annotations The Court thus held that the annotations
were not copyrightable.were not copyrightable.87
90 Developments After Georgia v. PRO
SDOs and public-access groups dispute SDOs and groups making IBR standards available online have disputed the relevance of the relevance of Georgia v. PRO to their to their ongoing
copyright disputes.copyright disputes.8891 Public-access groups cite the case for its pronouncement that Public-access groups cite the case for its pronouncement that “"no one no one may
can own the lawown the law”" and argue that incorporation by reference transforms privately authored standards and argue that incorporation by reference transforms privately authored standards
into uncopyrightable government edicts.into uncopyrightable government edicts.8992 For their part, SDOs contend that the key to the Court For their part, SDOs contend that the key to the Court’s
's decision in decision in Georgia v. PRO was that the was that the OCGAGeorgia Code annotations were authored annotations were authored by the legislature..9093 In In
contrast, most IBR standards are created independently of the government. Under Georgia v.

77 33 U.S. 591 (1834).
78 128 U.S. 244 (1888).
79 128 U.S. 617 (1888).
80 Banks, 128 U.S. at 253.
81 Callaghan, 128 U.S. at 650; see also Georgia v. PRO, 140 S. Ct. at 1507.
82 Georgia v. PRO, 140 S. Ct. at 1505.
83 Id. at 1506.
84 Id. at 1508.
85 Id. at 1501.
86 Id. at 1508–09.
87 Id. at 1509. Justice Thomas, joined by Justices Alito and Breyer, dissented in Georgia v. PRO, reading the 19th-
century cases to forbid copyright in statutes and regulations, but to permit copyright in nonbinding annotations that
“lack[] legal force.” Id. at 1515 (Thomas, J., dissenting). Justice Ginsburg, joined by Justice Breyer, dissented
separately, arguing that the annotations were copyrightable even under the majority’s rule because, on the facts, the
annotations were not actually made in the course of the legislature’s official duties. Id. at 1523 (Ginsburg, J.,
dissenting).
88 See, e.g., Facility Guidelines Inst. Inc., v. UpCodes, Inc., No. 22-CV-01308, 2023 WL 4026185, at *3 (E.D. Mo.
June 15, 2023).
89 See, e.g., ASTM v. PRO, 597 F. Supp. 3d 213, 231 (D.D.C. 2022), aff’d, No. 22-7063, 2023 WL 5918491 (D.C. Cir.
Sept. 12, 2023).
90 See Facility Guidelines, 2023 WL 4026185, at *3.
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PRO, the government-edicts doctrine does not apply to “private parties” who “lack the authority
to make or interpret the law.”91
At least three federal district courts have decided cases involving copyright in IBR standards
following Georgia v. PRO. All three held that the government-edicts doctrine did not apply, but
largely ruled against the SDOs’ copyright claims on other grounds. One of these decisions was
appealed and upheld by the appellate court.
contrast, most IBR standards are created independently of the government. Georgia v. PRO established that the government-edicts doctrine does not apply to "private parties" who "lack the authority to make or interpret the law."⁹⁴

There have been significant decisions in at least five federal cases involving copyright in IBR standards after Georgia v. PRO. All of the decisions that addressed the issue held that the government-edicts doctrine did not apply to standards privately developed by SDOs and thus concluded that the SDOs retained a valid copyright in their standards. The majority of these cases nonetheless found that the defendant's copying of IBR standards was justified, primarily under the fair use doctrine. This section briefly reviews the facts and holdings in these cases.

The first case, The first case, International Code Council v. UpCodes, Inc.,⁹⁵.,92 involved 40 model building codes involved 40 model building codes
that the defendant UpCodes that the defendant UpCodes (a commercial entity) made available online in both free and paid subscription versions.made available online in both free and paid subscription versions.93
The96 The district court held that the government-edicts doctrine was court held that the government-edicts doctrine was “"not dispositivenot dispositive”" because the codes were because the codes were
privately developed, but still provided privately developed, but still provided “"significant guidance.significant guidance.”94"⁹⁷ Attempting to synthesize the Attempting to synthesize the
“"apparent contradictionsapparent contradictions”" in the case law discussed above, the court found the key issue was in the case law discussed above, the court found the key issue was
whether privately authored model codes had whether privately authored model codes had “"become the law.become the law.”95"⁹⁸ To make that determination, the To make that determination, the
court considered five court considered five “guideposts”:
(1) whether the private author intended or encouraged the work’s adoption into law;
(2) whether the work comprehensively governs public conduct, such that it resembles a
“law of general applicability”"guideposts": (1) whether the private author intended or encouraged the work's adoption into law; (2) whether the work comprehensively governs public conduct, such that it resembles a "law of general applicability"; (3) whether the work expressly regulates a broad area of ; (3) whether the work expressly regulates a broad area of
private endeavor; (4) whether the work provides penalties or sanctions for violation of its private endeavor; (4) whether the work provides penalties or sanctions for violation of its
contents; and (5) whether the alleged infringer has published and identified the work as contents; and (5) whether the alleged infringer has published and identified the work as
part of the law, rather than the copyrighted material underlying the law.part of the law, rather than the copyrighted material underlying the law.96
99 Ultimately, the court relied on Ultimately, the court relied on BOCA, , Veeck, and the fair use doctrine to hold that the plaintiff , and the fair use doctrine to hold that the plaintiff
SDO could not prevent SDO could not prevent theUpCodes's online posting of IBR standards as adopted into law. online posting of IBR standards as adopted into law.97100 The court also The court also
notedfound, however, that the SDO may have an infringement claim for , however, that the SDO may have an infringement claim for UpCodes's copying of material that material that intermingles
intermingled adopted law with unenacted parts of the model codes.adopted law with unenacted parts of the model codes.98
101 The second case is The second case is the district court’s opinion in the ASTM v. PRO. On remand from the D.C. Circuit's decision in ASTM v. PRO I, the district court issued a lengthy opinion addressing the fair use issue.¹⁰²ASTM v. PRO litigation addressing the fair
use issues remanded by the D.C. Circuit.99 That decision held that the SDOs had a valid That decision held that the SDOs had a valid
copyright, reasoning that the government-edicts doctrine did not apply because the government copyright, reasoning that the government-edicts doctrine did not apply because the government
did not author the IBR standards.did not author the IBR standards.100103 At the same time, the court held that PRO At the same time, the court held that PRO’'s use of the s use of the
standards (i.e., making them standards (i.e., making them publicly available to download for free online) was a fair use for 184 of the available to download for free online) was a fair use for 184 of the
217 standards at issue, including all those incorporated by reference into law verbatim.217 standards at issue, including all those incorporated by reference into law verbatim.101
On appeal, the D.C. Circuit affirmed the district court’s fair use determination, holding that “non-
104 The D.C. Circuit affirmed that decision on appeal, holding that "non-commercial dissemination of [IBR] standards, as incorporated by reference into law, constitutes fair use."¹⁰⁵ The D.C. Circuit'commercial dissemination of [IBR] standards, as incorporated by reference into law, constitutes

91 Georgia v. PRO, 140 S. Ct. at 1507.
92 No. 17 Civ. 6261, 2020 WL 2750636 (S.D.N.Y. May 27, 2020).
93 Id. at *2–3.
94 Id. at *8.
95 Id. at *16.
96 Id. (citing Bldg. Offs. & Code Adm. v. Code Tech., Inc., 628 F.2d 730 (1st Cir. 1980) and Veeck v. S. Bldg. Code
Cong. Int’l, Inc., 293 F.3d 791 (5th Cir. 2002)).
97 See id. at *17, *28.
98 See id. at *7, *29.
99 ASTM v. PRO, 597 F. Supp. 3d 213 (D.D.C. 2022), aff’d, No. 22-7063, 2023 WL 5918491 (D.C. Cir. Sept. 12,
2023).
100 597 F. Supp. 3d at 231 (“Unlike in Georgia [v. PRO], there is no evidence here that that state legislators hired
Plaintiffs to draft the standards.”).
101 See id. at 240–41.
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fair use.”102 The D.C. Circuit’s 2023 decision, s 2023 decision, ASTM v. PRO II,, focuses on the fair use issue and focuses on the fair use issue and
follows the analysis that the court sketched in its follows the analysis that the court sketched in its 2018earlier decision. decision.103106 The court emphasized that the The court emphasized that the
purpose of purpose of the use was for non-profit and educational purposes,104PRO's use was nonprofit and educational¹⁰⁷ and that the legal force of IBR and that the legal force of IBR
standards places them standards places them “"at the outer edge of copyrightat the outer edge of copyright’'s protective purposes.s protective purposes.”105"¹⁰⁸ Although the Although the
court acknowledged that court acknowledged that “"[c]ommon sense suggests that free online access to many of the [c]ommon sense suggests that free online access to many of the
[SDOs[SDOs’'] standards would tamp down the demand for their works,] standards would tamp down the demand for their works,”" it found the record evidence of it found the record evidence of
actual market harm equivocal; in any event, that factor did not outweigh the other fair use factors actual market harm equivocal; in any event, that factor did not outweigh the other fair use factors
favoring PRO.106
The finalthat favored PRO.¹⁰⁹ A third case, case, Faculty Guidelines Institute v. UpCodes, Inc.,.,107110 concerned building and design concerned building and design
codes for health care facilities that UpCodes made available codes for health care facilities that UpCodes made available for free online.108online.¹¹¹ As in the other As in the other
post-post-Georgia v. PRO cases, the cases, the district court held that the government-edicts doctrine did not apply court held that the government-edicts doctrine did not apply
because the codes were privately authored, because the codes were privately authored, thoughalthough it noted that the doctrine it noted that the doctrine “"offers important offers important
insight into the analysis.insight into the analysis.”109"¹¹² Expressing sympathy with the Expressing sympathy with the “majority”"majority" view that view that “"model codes model codes
that are adopted into state law, or incorporated by reference, are not subject to copyright that are adopted into state law, or incorporated by reference, are not subject to copyright
infringement,infringement,”110"¹¹³ the court ultimately denied the SDO the court ultimately denied the SDO’'s motion for a preliminary injunction based s motion for a preliminary injunction based
on the fair use doctrine.111
Takings Clause Issues
The Takings Clause of the Fifth Amendment states that “private property [may on the fair use doctrine.¹¹⁴

Another suit against UpCodes, National Fire Protection Association, Inc. v. UpCodes, Inc., concerned electrical codes and other building standards for fire safety developed by the nonprofit National Fire Protection Association (NFPA).¹¹⁵ As in the other lawsuits, UpCodes was sued for copyright infringement after scanning NFPA's standards and making them available online in both free and paid versions.¹¹⁶ (For its part, NFPA makes its standards available in a free read-only version online but requires payment to print or download copies.)¹¹⁷ On cross-motions for summary judgment, the court held that the merger and government-edicts doctrines did not apply, concluding that "NFPA owns a valid copyright in its standards, whether IBR-ed or not."¹¹⁸ Turning to the fair use defense, the court held that factual disputes precluded a grant of summary judgment to UpCodes, noting that its use was commercial and at most "minimally transformative,"¹¹⁹ that the parties disputed whether all of UpCodes's copied content was incorporated into law,¹²⁰ and that UpCodes failed to demonstrate a lack of market harm.¹²¹ The case was settled prior to trial on the fair use issue.¹²²

The final case, Canadian Standards Association v. P.S. Knight Company, involved standards developed in Canada and incorporated by reference into Canadian law.¹²³ After the nonprofit SDO Canadian Standards Association (CSA) successfully sued Gordon Knight for copyright infringement in Canada based on his selling a version of CSA's Canadian Electrical Code, Knight moved his operations to Texas.¹²⁴ CSA then sued Knight and his company in U.S. federal court for infringing its copyrighted model codes.¹²⁵ The CSA case thus adds a choice-of-law complication to the usual copyright-in-IBR-standards litigation. The Fifth Circuit held that Canadian law applied to the issues of copyright validity and ownership,¹²⁶ and it was undisputed that CSA held a valid copyright in its standards under Canadian law, whether or not they were incorporated into law.¹²⁷ However, the court held that U.S. law applied to Knight's alleged infringement and concluded Knight's copying was therefore permissible under binding circuit precedent: namely, the court's prior en banc ruling in Veeck.¹²⁸

Takings Clause Issues If a government's incorporation by reference diminishes or eliminates copyright protection, it arguably raises questions under the Takings Clause of the Fifth Amendment. The Takings Clause states that "private property [shall not] be taken for not] be taken for
public use, without just compensation.public use, without just compensation.”112 "¹²⁹ In simple terms, the Takings Clause In simple terms, the Takings Clause providesprovides that the that the
federal or federal or state governments¹³⁰state governments113 may take an individual may take an individual’'s property only when (1) it is for a public s property only when (1) it is for a public
use;114use¹³¹ and (2) the government pays just compensation to the property owner. and (2) the government pays just compensation to the property owner.115132 For example, For example,
consistent with the Takings Clause, the government may use its eminent domain power to consistent with the Takings Clause, the government may use its eminent domain power to
appropriate real property for the construction of a appropriate real property for the construction of a railroadrailroad or highway, as long as, as long as it pays the owner the fair it pays the owner the fair
market value of the land.market value of the land.116
133 In decisions involving copyright in IBR standards, courts have In decisions involving copyright in IBR standards, courts have sometimessometimes invoked the Takings invoked the Takings
Clause as a reason to be cautious about holding that incorporation into law extinguishes the Clause as a reason to be cautious about holding that incorporation into law extinguishes the
copyright in standards or model codes. For example, a recent district court decision noted that copyright in standards or model codes. For example, a recent district court decision noted that “a

102 ASTM v. PRO II, No. 22-7063, 2023 WL 5918491, at *1, *8 (D.C. Cir. Sept. 12, 2023).
103 See supra “The D.C. Circuit’s 2018 Ruling in ASTM v. PRO I.”
104 ASTM v. PRO II, 2023 WL 5918491, at *3–*4.
105 Id. at *4 (quoting ASTM v. PRO I, 896 F.3d 437, 451 (D.C. Cir. 2018)).
106 Id. at *6–*7.
107 No. 22-cv-01308, 2023 WL 4026185 (E.D. Mo. June 15, 2023).
108 Id. at *1.
109 Id. at *3–4.
110 Id. at *4.
111 See id. at *7–11.
112 U.S. CONST. amend. V; see generally Cong. Rsch. Serv., Overview of the Takings Clause, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/amdt5-9-1/ALDE_00013280/ (last visited Aug. 16, 2023).
113 By in terms, the Fifth Amendment restricts only the federal government, but the Supreme Court has long held that
the Takings Clause applies to state governments under the Due Process Clause of the Fourteenth Amendment. See
Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 231 (1984); Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S.
226, 241 (1897).
114 See Kelo v. City of New London, 545 U.S. 469, 477 (2005).
115 See Knick v. Twp. of Scott, 139 S. Ct. 2162, 2170 (2019).
116 See United States v. Miller, 317 U.S. 369, 370–74 (1943).
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bright line rule that any privately developed model code adopted into state law automatically
becomes part of the public domain . . . may raise significant concerns under the Takings
Clause.”117 Other courts have rejected this reasoning, arguing that because SDOs urge
governments to adopt their standards, the Takings Clause (which usually involves a coercive
seizure of property) is inapplicable.118
Although courts have discussed the Takings Clause in conjunction with other arguments, none of
the cases discussed above involved a formal takings claim, and it does not appear that any court
has directly decided how the Takings Clause applies to IBR standards. Theoretically, if the courts
ruled that IBR standards fell into the public domain upon adoption into law, an SDO might sue
the federal or state government under the Takings Clause for compensation based on the loss of
their copyright. Under federal law, property owners may sue the United States for takings claims
or copyright infringement in the U.S. Court of Federal Claims.119
As a practical matter, SDOs have not sued governments for a taking based on their incorporation
of standards by reference into law, instead suing third parties for copyright infringement based on
their distribution of IBR standards.120 There are many possible reasons why SDOs have not
brought a Takings Clause claim. For one thing, the premise of that claim—that incorporation into
law extinguishes copyright in IBR standards—is one that the SDOs have vigorously disputed in
litigation.121 For takings claims against state governments, another potential barrier is state
sovereign immunity to copyright infringement claims.122
Given the lack of case law, the merits of a potential takings claim in this context are uncertain. To
begin with, it is not completely settled that copyrights are “private property” subject to the

117 Facility Guidelines Inst., Inc. v. UpCodes, Inc., No. 22-CV-01308, 2023 WL 4026185, at *7 (E.D. Mo. June 15,
2023); accord CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reps., Inc., 44 F.3d 61, 74 (2d Cir. 1994).
118 See Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791, 803 (5th Cir. 2002) (“This is not, however, a ‘takings’
"a bright line rule that any privately developed model code adopted into state law automatically becomes part of the public domain . . . may raise significant concerns under the Takings Clause."¹³⁴ Other courts have rejected this reasoning, arguing that because SDOs urge governments to adopt their standards, the Takings Clause (which usually involves a coercive seizure of property) is inapplicable.¹³⁵

Although courts have discussed the Takings Clause in conjunction with other arguments, none of the cases discussed above involved a formal takings claim, and it does not appear that any court has directly decided how the Takings Clause applies to IBR standards. If future court decisions were to rule that IBR standards fell into the public domain upon adoption into law, an SDO might sue the federal or state government under the Takings Clause for compensation based on the loss of their copyright. Under federal law, property owners may sue the United States for takings claims or copyright infringement in the U.S. Court of Federal Claims.¹³⁶

To date, SDOs have not sued governments for a taking based on their incorporation of standards by reference into law, instead suing third parties for copyright infringement based on their distribution of IBR standards.¹³⁷ There are many possible reasons why SDOs have not brought a Takings Clause claim. For one thing, the premise of that claim—that incorporation into law extinguishes copyright in IBR standards—is one that the SDOs have vigorously (and often successfully) disputed in litigation.¹³⁸ For takings claims against state governments, another potential barrier is state sovereign immunity to copyright infringement claims.¹³⁹

Given the lack of case law on these Takings Clause issues, the merits of a potential takings claim in this context are uncertain. To begin with, it is not completely settled that copyrights are "private property" subject to the Takings Clause,¹⁴⁰ although the weight of authority suggests that they are.¹⁴¹ It is also not clear whether a court would view the hypothetical loss of the copyright based on incorporation into law as a per se taking (which must always be compensated)¹⁴² or as a putative "regulatory taking" (which need be compensated only if a court concludes it goes "too far" based on balancing several factors).¹⁴³ The Pro Codes Act

The Pro Codes Act was reintroduced in the 119th Congress with the stated intention to "balance the goals of furthering the creation of standards and ensuring public access to standards that are incorporated by reference into law or regulation."¹⁴⁴ The bill states that federal, state, and local governments "benefit greatly" from SDO-created standards, which "further innovation [and] commerce" and are "critical to protecting public health and safety."¹⁴⁵ The bill also states that SDOs ensure "all interested parties have an opportunity to participate" without "cost to governments or taxpayers" and "rely on copyright protection" to fund the voluntary consensus process for creating and updating their standards.¹⁴⁶

The Pro Codes Act would establish that a standard protected by copyright when it was created "shall retain such [copyright] protection, notwithstanding that the standard is incorporated by reference" into federal, state, or local law.¹⁴⁷ The bill would thus supersede Veeck and similar cases that have held that such standards fall into the public domain once incorporated into law or regulation. To retain their copyright under the Pro Codes Act, SDOs must make "all portions of the standard so incorporated publicly accessible online at no monetary cost" within a "reasonable period of time."¹⁴⁸ A party challenging an SDO's copyright would bear the burden of proving that the SDO failed to comply with this public-access requirement.¹⁴⁹

In short, the Pro Codes Act would make clear that SDOs retain copyright in IBR standards so long as they make that material publicly accessible online. The bill defines "publicly accessible" as "displayed for review in a readily accessible manner on a public website."¹⁵⁰ The bill would not require that the material be made available to print, share, or download. The public-accessibility definition also allows SDO websites to require that users create an account or agree to terms of service to access IBR material, so long as there is no monetary cost to the user and any personally identifiable information collected from the user is not used without their consent.¹⁵¹

Supporters of the Pro Codes Act, including SDOs such as NFPA, argue that their work creating standards provides "critical public benefits."¹⁵² These SDOs maintain that if incorporation by reference destroys copyright protection, they will no longer be able to fund their activities by publishing, selling, and licensing their standards to professionals who use them.¹⁵³ Some SDOs answer public-access concerns by noting that they already permit free viewing of their standards by the public online.¹⁵⁴

Opponents of the Pro Codes Act, including public-access groups like PRO and internet-freedom groups like the Electronic Frontier Foundation, argue that no one should control who can read and distribute the law, including IBR standards.¹⁵⁵ They maintain that SDOs "have charged high fees and imposed other restrictions" to access their standards in the past.¹⁵⁶ They also object to the Pro Codes Act's "limited" public-access requirement, which could allow SDOs to require users to submit personal information to view IBR standards and deny them the ability to print, download, and disseminate standards.¹⁵⁷ Under the Pro Codes Act, these opponents argue, SDOs may choose to make only a limited version of the IBR standards available for free,¹⁵⁸ alongside paid versions with more functionality.

The Pro Codes Act speaks only to the existence of copyright in IBR standards and would not explicitly address the fair use issue or constitutional defenses asserted by public-access groups and others in litigation.¹⁵⁹ Thus, even if the Pro Codes Act were enacted, groups like PRO or UpCodes could still make fair use arguments like those accepted by the court in ASTM v. PRO II.¹⁶⁰ Similarly, public-access groups could still assert First Amendment and Due Process Clause arguments to justify their actions. A statute cannot supersede these constitutional arguments. It is not clear, then, that enactment of the Pro Codes Act would resolve all the issues litigated in the cases discussed above.

Considerations for Congress

Although it arises in a specialized context, debates over copyright in IBR standards ultimately involve the core policy trade-off for copyright: balancing incentives for creation versus access to (and the cost of) creative works.

On the incentive side, Congress may consider whether judicial decisions—which have recently trended against SDOs' copyright claims, albeit not uniformly—have undercut SDOs' ability to fund their operations through publishing and selling their standards. Some may question whether copyright protection for IBR standards is necessary, arguing that SDOs could fund their activities in other ways or combine IBR standards with other material to create an unambiguously copyrightable form of their work. Others, including many SDOs, maintain that copyright is needed for them to recoup the costs of standards creation.¹⁶¹ On that view, uncertainty in current law may undermine SDOs and the social benefits they create for lawmakers, governmental agencies, and the public.

On the access side, Congress may consider what kind of public access to IBR standards is appropriate. As discussed above, different courts have reached different conclusions on the copyrightability of IBR standards or the permitted uses of such standards under the fair use doctrine. As a practical matter, many SDOs have made their work available to the public in some form, while some public-access groups have sought to facilitate greater public accessibility (e.g., permitting free printing or downloads of IBR standards). The Pro Codes Act would require SDOs to provide a level of online access at no cost to users, but it would appear to allow SDOs to impose some conditions on viewing and to restrict downloading and printing. Congress may consider whether the status quo, the Pro Codes Act, or some other alternative provides sufficient public access to IBR standards.

Given that the Copyright Act does not directly speak to the issue, the scope of the copyright in IBR standards has largely been developed by the courts. Another issue that Congress may consider, then, is whether to permit continued judicial development in this area or to intervene through legislation such as the Pro Codes Act. As different regional federal appeals courts have reached different conclusions, legislation may have the benefit of promoting national uniformity on the issue. Alternatively, one may argue courts are better positioned to account for differences in IBR standards and uses of them through case-by-case application of doctrines such as fair use. For example, courts applying the fair use doctrine may distinguish the uses of PRO (a nonprofit public-access organization) and UpCodes (a commercial entity that charges users for some versions of its services) under the first fair use factor.¹⁶²

The Pro Codes Act represents one possible option for legislating in this area. On the inventive end of the spectrum, if Congress found that existing legal provisions¹⁶³ and market incentives are sufficient to facilitate public availability,¹⁶⁴ it might choose to strengthen SDOs' copyright without imposing online-access requirements. On the access end, if Congress found that copyright was unnecessary for SDOs, it could provide that incorporation by reference places an IBR standard in the public domain, perhaps by expanding the reach of the statute denying copyright to government works.¹⁶⁵

Various statutory licensing regimes are another possibility. Under a statutory or "compulsory" license, the government permits a certain use of a copyrighted work—regardless of actual permission from the copyright holder—while setting a royalty rate for that use by law.¹⁶⁶ Such a license could be structured in various ways, depending on whom Congress viewed as the appropriate entity to pay for the IBR standards. For example, one option would be to provide that incorporation extinguishes or diminishes copyright, but require the government to pay SDOs a set royalty when it incorporates a standard into law.¹⁶⁷ Under this approach, some costs of developing standards would shift to the government (and potentially, by extension, onto taxpayers). Another possible statutory license would allow public-access groups and others to make IBR standards publicly available despite SDOs' copyright claims but require such groups to pay a set royalty for the various uses that have been disputed in litigation.

Footnotes

1.

See, e.g., Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc., 82 F.4th 1262, 1265 (D.C. Cir. 2023) [hereinafter ASTM v. PRO II]; Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc., 896 F.3d 437, 444 (D.C. Cir. 2018) [hereinafter ASTM v. PRO I]; Veeck v. S. Bldg. Code Cong. Int'l, 293 F.3d 791 (5th Cir. 2002); Bldg. Officials & Code Adm'rs v. Code Tech., Inc., 628 F.2d 730 (1st Cir. 1980).

2.

H.R. 4072, 119th Cong. (2025); H.R. 4009, 119th Cong. (2025); H.R. 1631, 118th Cong. (2023); S. 835, 118th Cong. (2023). Of the two bills introduced as the Pro Codes Act in the 119th Congress, H.R. 4009 appears to be identical to H.R. 4072, except that H.R. 4009 contains a provision requiring the Comptroller General to prepare a report "on the financial impact to Federal, State, and local governments in the United States associated with acquiring access to standards incorporated by reference into law" within two years of the bill's enactment. See H.R. 4009, § 4. For simplicity, this report will cite to the H.R. 4072 version.

3.

See H.R. 4072, § 3.

4.

White House Office of Management and Budget, OMB Circular No. A-119: Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities at 17 (Feb. 10, 1998) (revised Jan. 27, 2016), https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf [https://perma.cc/TRC3-7YU9].

5.

Resources: Standards Developing Organizations (SDOs), Am. Nat'l Standards Inst., https://www.standardsportal.org/usa_en/resources/sdo.aspx [https://perma.cc/Q9YY-LG8U] (last visited July 8, 2025).

6.

See U.S. Standards System: Government Use of Standards, Am. Nat'l Standards Inst., https://www.standardsportal.org/usa_en/standards_system/government_use_standards.aspx [https://perma.cc/VAW6-QZGD] (last visited July 22, 2025).

7.

1 C.F.R. § 51.5(b)(2) (2023); 5 U.S.C. § 552(a)(1). See also Incorporation by Reference in the CFR, Admin. Conf. of U.S. (Dec. 8, 2011), https://www.acus.gov/recommendation/incorporation-reference [https://perma.cc/FF9H-UEPD].

8.

See ASTM v. PRO I, 896 F.3d 437, 442 (D.C. Cir. 2018) (reviewing requirements for incorporation of standards by references in the District of Columbia).

9.

17 U.S.C. § 102(a).

10.

See 17 U.S.C. § 106.

11.

Press Release, Sen. Chris Coons, Protecting and Enhancing Public Access to Codes (Pro Codes) Act of 2023 (Mar. 16, 2023), https://www.coons.senate.gov/imo/media/doc/pro_codes_act_one_pager.pdf [https://perma.cc/EHZ3-ZL67].

12.

About the ANSI Incorporated by Reference (IBR) Portal, Am. Nat'l Standards Inst., https://ibr.ansi.org [https://perma.cc/2M9T-2XFQ] (last visited July 22, 2025).

13.

ASTM v. PRO I, 896 F.3d at 447.

14.

See, e.g., Global Public Safety Codes, Public.Resource.Org, Internet Archive, https://archive.org/details/publicsafetycode?tab=collection&query=public.resource.org [https://perma.cc/ME9M-5UXX] (last visited July 22, 2025).

15.

See, e.g., ASTM v. PRO I, 896 F.3d at 446.

16.

See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020).

17. See generally Cong. Rsch. Serv., Historical Background on Free Speech Clause, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt1-7-1/ALDE_00013537/ (last visited July 22, 2025); Cong. Rsch. Serv., Overview of Due Process, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt5-5-1/ALDE_00013721/ (last visited July 22, 2025). 18.

See generally Isaiah Poritz, Copyrights Are Murky for Laws Referring to Outside Safety Codes, Bloomberg Law (Mar. 24, 2023), https://news.bloomberglaw.com/ip-law/copyrights-are-murky-for-laws-referring-to-outside-safety-codes [https://perma.cc/4T3L-VAZ8].

19. See H.R. Rep. No. 118-601, at 1 (2024), https://www.congress.gov/118/crpt/hrpt601/CRPT-118hrpt601.pdf [https://perma.cc/9XG6-H6CD]; Markup of H.R. 1631, H.R. 7737, H.R. 3591, H.R. 3269, H.R. 7581, and H.R. 4951, Before the H. Comm. on the Judiciary, 118th Cong. (Apr. 16, 2024), https://judiciary.house.gov/committee-activity/markups/markup-hr-1631-hr-7737-hr-3591-hr-3269-hr-7581-and-hr-4951 [https://perma.cc/NN7F-7HLJ]. 20.

See Clerk of the U.S. House of Representatives, Roll Call 357, 118th Cong., 2d Sess. (July 22, 2024), https://clerk.house.gov/Votes/2024357 [https://perma.cc/5DRL-PRCL].

21.

H.R. 4072, 119th Cong. (2025).

22.

597 F. Supp. 3d 213 (D.D.C. 2022).

23.

Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020).

24.

See infra "The Pro Codes Act" and "Considerations for Congress."

25.

17 U.S.C. § 102(a)(1).

26.

Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

27.

See 17 U.S.C. § 106.

28.

Id. §§ 501–505.

29.

Id. § 105(a).

30.

Id. § 101; see also U.S. Copyright Office, Compendium of U.S. Copyright Office Practices, § 313.6(C)(1) (3d. ed. 2021), https://www.copyright.gov/comp3/docs/compendium.pdf [https://perma.cc/SGM6-NQY4] [hereinafter Copyright Office Compendium].

31.

See Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 263–64 (2020); Copyright Office Compendium § 313.6(C)(2). As a formal matter, the "government-edicts" doctrine is a long-standing judicial interpretation of the term "author" as used in the Copyright Act. Georgia v. PRO, 590 U.S. at 265. It is motivated by the "animating principle" that "no one can own the law." Id.

32.

17 U.S.C. § 107. See, e.g., Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 527–28 (2023).

33.

See 17 U.S.C. § 102(b); Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 356 (1991).

34.

See Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 607 (1st Cir. 1988).

35.

See generally CRS In Focus IF12456, An Introduction to Trademark Law in the United States, by Christopher T. Zirpoli (2023).

36.

See, e.g., ASTM v. PRO I, 896 F.3d 437, 454 (D.C. Cir. 2018).

37.

See infra "Conflicting Decisions by the Federal Courts of Appeals (1980–2002)."

38.

See infra "The D.C. Circuit's 2018 Ruling in ASTM v. PRO I" and "The Supreme Court's Ruling in Georgia v. PRO (2020)."

39.

See infra "Developments After Georgia v. PRO."

40.

628 F.2d 730 (1st Cir. 1980).

41.

Id. at 732.

42.

Id. at 736.

43.

Id. at 732–35.

44.

293 F.3d 791 (5th Cir. 2002).

45.

Id. at 793.

46.

Id. at 794.

47.

Id. at 793.

48.

See id. at 795–800 (citing Banks v. Manchester, 128 U.S. 244 (1888)); see infra "The Supreme Court's Ruling in Georgia v. PRO (2020)" (discussing Banks and the Supreme Court's other 19th-century government-edicts cases).

49.

See Veeck, 293 F.3d at 801–03 (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) and 17 U.S.C. § 102(b)).

50.

44 F.3d 61, 63 (2d Cir. 1994).

51.

See id. at 74 ("We are not prepared to hold that a state's reference to a copyrighted work as a legal standard for valuation results in loss of the copyright.").

52. Id. See generally Cong. Rsch. Serv., Overview of the Takings Clause, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt5-9-1/ALDE_00013280/ (last visited July 22, 2025); CRS Report R47562, The Takings Clause of the Constitution: Overview of Supreme Court Jurisprudence on Key Topics, by Adam Vann (2023). 53.

CCC Info. Servs., 44 F.3d at 74 n.30.

54.

121 F.3d 516, 517 (9th Cir. 1997).

55.

Id. at 518.

56.

Id.

57.

Id.

58.

See id. at 518–20.

59.

Id. at 519.

60.

Id. ("[T]he due process requirement of free access to the law . . . may be relevant but does not justify termination of the AMA's copyright. There is no evidence that anyone wishing to use the CPT has any difficulty obtaining access to it.").

61.

See ASTM v. PRO I, 896 F.3d 437 (D.C. Cir. 2018).

62.

Id. at 444.

63.

Id. at 446.

64.

See id. at 444–45.

65.

Id. at 458.

66.

Id. at 441–42.

67.

Id. at 442–43.

68.

See id. at 447.

69.

Id.

70.

Id. at 453.

71.

See id. at 449–53 (analyzing the fair use factors as applied to PRO's distribution of IBR standards and suggesting that "in many cases, it may be fair use for PRO to reproduce part or all of a technical standard in order to inform the public about the law").

72.

Id. at 448–49. Judge Katsas's concurring opinion in ASTM v. PRO I expressed his view that as "a matter of common sense . . . access to the law cannot be conditioned on the consent of a private party." Id. at 458 (Katsas, J., concurring). Citing BOCA and Veeck, he argued that the result may be based on the First Amendment, the Due Process Clause, the idea/expression distinction, or the fair use doctrine. Id. at 459.

73.

See infra "Developments After Georgia v. PRO."

74.

Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020).

75.

See id. at 260 ("[A]nnotations generally include summaries of judicial decisions applying a given provision, summaries of any pertinent opinions of the state attorney general, and . . . often include editor's notes that provide information about the origins of the statutory text. . . ."); Annotation, Black's Law Dictionary (11th ed. 2019).

76.

Georgia v. PRO, 590 U.S. at 261.

77.

Id.

78.

Id.

79.

Id. at 262.

80.

33 U.S. 591 (1834).

81.

128 U.S. 244 (1888).

82.

128 U.S. 617 (1888).

83.

Banks, 128 U.S. at 253.

84.

Callaghan, 128 U.S. at 650; see also Georgia v. PRO, 590 U.S. at 265.

85.

Georgia v. PRO, 590 U.S. at 262.

86.

Id. at 263.

87.

Id. at 266.

88.

Id. at 265.

89.

Id. at 276–68.

90.

Id. at 269. Justice Thomas, joined by Justices Alito and Breyer, dissented in Georgia v. PRO, reading the Court's 19th-century cases to forbid copyright in statutes and regulations but to permit copyright in nonbinding annotations that "lack[] legal force." Id. at 279 (Thomas, J., dissenting). Justice Ginsburg, joined by Justice Breyer, dissented separately, arguing that the annotations were copyrightable even under the majority's rule because, on the facts, the annotations were not actually made in the course of the legislature's official duties. Id. at 292–93 (Ginsburg, J., dissenting).

91.

See, e.g., Facility Guidelines Inst., Inc. v. UpCodes, Inc., 677 F. Supp. 3d 955, 964 (E.D. Mo. 2023).

92.

See, e.g., Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc., 597 F. Supp. 3d 213, 231 (D.D.C. 2022), aff'd, ASTM v. PRO II, 82 F.4th 1262, 1273 (D.C. Cir. 2023).

93.

See Facility Guidelines, 677 F. Supp. 3d at 964.

94.

Georgia v. PRO, 590 U.S. at 265.

95.

No. 17 Civ. 6261, 2020 WL 2750636 (S.D.N.Y. May 27, 2020).

96.

Id. at *2–3.

97.

Id. at *8.

98.

Id. at *16.

99.

Id. (citing Bldg. Offs. & Code Adm. v. Code Tech., Inc., 628 F.2d 730 (1st Cir. 1980) and Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002)).

100.

See id. at *17, *28.

101.

See id. at *7, *29. Subsequently, the district court's separate dismissal of the false advertising and unfair competition claims was appealed to the Second Circuit, which reversed in part and remanded. See Int'l Code Council, Inc. v. UpCodes Inc., 43 F.4th 46, 64 (2d Cir. 2022). The case returned to the district court and currently remains in discovery. See Order Granting Motion for Extension of Time to Complete Discovery, International Code Council v. UpCodes, Inc., No. 1:17-cv-06261 (S.D.N.Y. Apr. 24, 2025).

102.

Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc., 597 F. Supp. 3d 213 (D.D.C. 2022), aff'd, ASTM v. PRO II, 82 F.4th 1262, 1273 (D.C. Cir. 2023).

103.

597 F. Supp. 3d at 231 ("Unlike in Georgia [v. PRO], there is no evidence here that state legislators hired Plaintiffs to draft the standards.").

104.

See id. at 240–41.

105.

ASTM v. PRO II, 82 F.4th at 1265.

106.

See supra "The D.C. Circuit's 2018 Ruling in ASTM v. PRO I."

107.

ASTM v. PRO II, 82 F.4th at 1267–68.

108.

Id. at 1268 (quoting ASTM v. PRO I, 896 F.3d 437, 451 (D.C. Cir. 2018)).

109.

Id. at 1271–72. On remand, the court entered a stipulated judgment wherein PRO agreed to take down 32 standards and leave online the 184 standards found to be a fair use. See Order, ASTM v. PRO, No. 1:13-cv-012150TSC (D.D.C. July 30, 2024).

110.

677 F. Supp. 3d 955 (E.D. Mo. 2023).

111.

Id. at 961.

112.

Id. at 964.

113.

Id. at 964–69.

114.

See id. at 969–73. The plaintiff voluntarily dismissed the action following the court's denial of a preliminary injunction. See Notice of Voluntary Dismissal, Facility Guidelines Institute, Inc. v. UpCodes, Inc., No. 4:22-cv-01308 (E.D. Mo. June 19, 2023).

115.

753 F. Supp. 3d 933, 942 (C.D. Cal. 2024).

116.

Id. at 943–44.

117.

Id. at 943.

118.

See id. at 946–53.

119.

Id. at 960.

120.

Id. at 963–64.

121.

Id. at 965–66.

122.

Order Retaining Limited Jurisdiction, Nat'l Fire Prot. Ass'n, Inc. v. UpCodes, Inc., No. 21-cv-05262 (C.D. Cal. Mar. 21, 2025).

123.

112 F.4th 298, 300 (5th Cir. 2024).

124.

See id. at 301.

125.

Id. at 302.

126.

See id. at 303.

127.

Id. at 304.

128.

See id. at 304–05. See supra "Conflicting Decisions by the Federal Courts of Appeals (1980–2002)" (discussing the holding of Veeck). In dissent, Judge Douglas argued that Veeck's holding was not binding because it was based on copyright validity, which was governed by Canadian law in the CSA case. CSA, 112 F.4th at 308 (Douglas, J., dissenting). With Veeck distinguished, Judge Douglas would have held that Knight's actions infringed CSA's copyright and were not a fair use. Id. at 308–09.

129. U.S. Const. amend. V; see generally Cong. Rsch. Serv., Overview of the Takings Clause, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt5-9-1/ALDE_00013280/ (last visited July 22, 2025). 130.

By its terms, the Fifth Amendment restricts only the federal government, but the Supreme Court has long held that the Takings Clause applies to state governments under the Due Process Clause of the Fourteenth Amendment. See Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 231 (1984); Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 241 (1897).

131.

See Kelo v. City of New London, 545 U.S. 469, 477 (2005).

132.

See Knick v. Twp. of Scott, 588 U.S. 180, 189–92 (2019).

133.

See United States v. Miller, 317 U.S. 369, 370–74 (1943).

134.

Facility Guidelines Inst., Inc. v. UpCodes, Inc., 677 F. Supp. 3d 955, 968 (E.D. Mo. 2023); accord CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reps., Inc., 44 F.3d 61, 74 (2d Cir. 1994).

135. See Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791, 803 (5th Cir. 2002) ("This is not, however, a 'takings' case, not least because [the SDO] urged localities to adopt its model codes. The issue in the case is not the case, not least because [the SDO] urged localities to adopt its model codes. The issue in the case is not the
voluntariness of the appropriation but the legal consequences . . . .voluntariness of the appropriation but the legal consequences . . . .”"); ); accord IntInt’'l Code Council, Inc. v. UpCodes, Inc., l Code Council, Inc. v. UpCodes, Inc.,
No. 17 CIV. 6261, 2020 WL 2750636, at *13–14 (S.D.N.Y. May 27, 2020).No. 17 CIV. 6261, 2020 WL 2750636, at *13–14 (S.D.N.Y. May 27, 2020).
119 136. See 28 U.S.C. §§ 1491, 1498(b); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984). 28 U.S.C. §§ 1491, 1498(b); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984).
120 137. See, e.g., , Int’'l Code Council, 2020 WL 2750636, at *1., 2020 WL 2750636, at *1.
121 138. See supra "“Case Law on Copyright in IBR Standards.”
122." 139. See Allen v. Cooper, Allen v. Cooper, 140 S. Ct. 994, 999589 U.S. 248, 251 (2020). To the extent that the claim against the state is for a taking in (2020). To the extent that the claim against the state is for a taking in
violation of the Fifth and Fourteenth Amendments (as opposed to an ordinary statutory copyright infringement claim), violation of the Fifth and Fourteenth Amendments (as opposed to an ordinary statutory copyright infringement claim),
Allen is arguably distinguishable. Allen is arguably distinguishable. See Knick v. Twp. of Scott, Knick v. Twp. of Scott, 139 S. Ct. 2162, 2170588 U.S. 180, 189 (2019). (2019).
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Takings Clause.123 The weight of authority suggests that they are, however.124 It is also not clear
whether a court would view the hypothetical loss of the copyright based on incorporation into law
as a per se taking (which must always be compensated),125 or as a putative “regulatory taking”
(under which whether compensation is required depends on judicial balancing of several
factors).126
The Pro Codes Act
The Pro Codes Act was introduced in the 118th Congress with the stated intention to “balance the
goals of furthering the creation of standards and ensuring public access to standards that are
incorporated by reference into law or regulation.”127 Its findings section states that federal, state,

123 140. See Tom W. Bell, Tom W. Bell, Copyright As Intellectual Property <del>Property</del> Privilege, 58 , 58 SYRACUSE L. REVSyracuse L. Rev. 523, 538 (2008) (. 523, 538 (2008) (strikeout in original) (describing describing
the Takings Clausethe Takings Clause’'s applicability to copyright as s applicability to copyright as “"unlitigated and, thus, still subject to disputeunlitigated and, thus, still subject to dispute”"). There is a large ). There is a large
scholarly literature on this question and the closely related question of whether the Takings Clause should apply to scholarly literature on this question and the closely related question of whether the Takings Clause should apply to
patent rights. For arguments supporting the application of the Takings Clause to copyrights and patents, see, for patent rights. For arguments supporting the application of the Takings Clause to copyrights and patents, see, for
example, Note, example, Note, Copyright Reform and the Takings Clause, 128 , 128 HARVHarv. L. . L. REVRev. 973, 981–83 (2015) (arguing that the . 973, 981–83 (2015) (arguing that the
best reading of the Supreme Courtbest reading of the Supreme Court’'s precedent is that s precedent is that “"copyrights are property for takings purposescopyrights are property for takings purposes”"); Terry Hart, ); Terry Hart,
Copyright and the Takings Clause, , COPYHYPECopyhype (Dec. 10, 2012), https://www.copyhype.com/2012/12/copyright-and-the- (Dec. 10, 2012), https://www.copyhype.com/2012/12/copyright-and-the-
takings-clause/takings-clause/ [https://perma.cc/2BTP-PACN] (arguing that (arguing that “it’"it's reasonable to conclude that the Takings Clause would apply to copyrightss reasonable to conclude that the Takings Clause would apply to copyrights”)"); Adam ; Adam
Mossoff, Mossoff, Patents As Constitutional Private Property: The Historical Protection of Patents Under the Takings Clause, ,
87 B.U L. 87 B.U L. REVRev. 689, 691 (2007) (arguing the 19th-centuty jurisprudence established that . 689, 691 (2007) (arguing the 19th-centuty jurisprudence established that “"patents were protected under patents were protected under
the Takings Clausethe Takings Clause”"); Thomas F. Cotter, ); Thomas F. Cotter, Do Federal Uses of Intellectual Property Implicate the Fifth Amendment?, 50 , 50
Fla. L. Rev. 529, 566–68 (1998) (arguing that Supreme Court precedent implies that patents, copyrights, and Fla. L. Rev. 529, 566–68 (1998) (arguing that Supreme Court precedent implies that patents, copyrights, and “"to a to a
lesser extentlesser extent”" trademarks should be covered by the Takings Clause). For arguments against applying the Takings trademarks should be covered by the Takings Clause). For arguments against applying the Takings
Clause to copyrights or patents, see Robin Feldman, Clause to copyrights or patents, see Robin Feldman, Patents As Property for the Takings, 12 N.Y.U. J. , 12 N.Y.U. J. INTELL. PROPIntell. Prop. & Ent. &
ENT. L. 198, 205 (2023) (arguing based on history and theory that . L. 198, 205 (2023) (arguing based on history and theory that “"patents do not fall within the Fifth Amendment's patents do not fall within the Fifth Amendment's
[Takings] Clause[Takings] Clause”"); Bell, ); Bell, supra, at 539 (arguing that because , at 539 (arguing that because “"copyrights exist only by the grace of the Constitution, copyrights exist only by the grace of the Constitution,
the Courtthe Court’'s definition of s definition of ‘property’'property' appears not to shelter copyright appears not to shelter copyright”" under the Takings Clause); Davida H. Isaacs, under the Takings Clause); Davida H. Isaacs, Not
All Property Is Created Equal: Why Modern Courts Resist Applying the Takings Clause to Patents, and Why They Are
Right to Do So, 15 , 15 GEO. MASON L. REVGeo. Mason L. Rev. 1, 3 (2007) (arguing that . 1, 3 (2007) (arguing that “"patentholders are not entitled to a Takings Clause patentholders are not entitled to a Takings Clause
remedy”).
124remedy"). 141. See Copyright Reform and the Takings Clause, , supra note 123, note 140, at 982 (at 982 (“"[T]he weight of scholarly opinion is that [T]he weight of scholarly opinion is that
copyrights are property for takings purposes. And there is some direct evidence that the [Supreme] Court would copyrights are property for takings purposes. And there is some direct evidence that the [Supreme] Court would
agree.agree.”"). The Supreme Court has held that trade secrets, another type of ). The Supreme Court has held that trade secrets, another type of “intangible”"intangible" property, are protected by the property, are protected by the
Fifth Amendment. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003–04 (1984). The Court has also repeatedly stated Fifth Amendment. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003–04 (1984). The Court has also repeatedly stated
that patents are a protected property interest under the Fifth Amendment. that patents are a protected property interest under the Fifth Amendment. See, e.g., Horne v. Dep, Horne v. Dep’'t of Agric., 576 U.S. t of Agric., 576 U.S.
350, 359–60 (2015) (350, 359–60 (2015) (“"[A patent] confers upon the patentee an exclusive property in the patented invention which [A patent] confers upon the patentee an exclusive property in the patented invention which
cannot be appropriated or used by the government itself, without just compensation . . . .cannot be appropriated or used by the government itself, without just compensation . . . .”" (alteration in original) (alteration in original)
(quoting James v. Campbell, 104 U.S. 356, 358 (1881))). The reasoning of these decisions suggests that the Court may (quoting James v. Campbell, 104 U.S. 356, 358 (1881))). The reasoning of these decisions suggests that the Court may
find that copyright is a form of intellectual property sufficiently like trade secrets and patents to be protected under the find that copyright is a form of intellectual property sufficiently like trade secrets and patents to be protected under the
Fifth Amendment. Fifth Amendment. See E. Enters. v. Apfel, 524 U.S. 498, 554 (1998) (Breyer, J., dissenting) ( E. Enters. v. Apfel, 524 U.S. 498, 554 (1998) (Breyer, J., dissenting) (“"The The ‘'private propertyprivate property’
' upon which the [Takings] Clause traditionally has focused is a specific interest in physical upon which the [Takings] Clause traditionally has focused is a specific interest in physical or intellectual property..”
" (emphasis added)). Notably, the Court has recently held that copyrights are a protected property interest under the (emphasis added)). Notably, the Court has recently held that copyrights are a protected property interest under the
Fourteenth AmendmentFourteenth Amendment’'s Due Process Clause. s Due Process Clause. See Allen v. Cooper, Allen v. Cooper, 140 S. Ct. 994, 1004589 U.S. 248, 261 (2020) ( (2020) (“"Copyrights are a Copyrights are a
form of property [protected by the Fourteenth Amendment].form of property [protected by the Fourteenth Amendment].”"). There is also some case law in the lower federal courts ). There is also some case law in the lower federal courts
on these issues. on these issues. See, e.g., Celgene Corp. v. Peter, 931 F.3d 1342, 1358 (Fed. Cir. 2019) (assuming that ., Celgene Corp. v. Peter, 931 F.3d 1342, 1358 (Fed. Cir. 2019) (assuming that “"a valid patent is a valid patent is
private property for the purposes of the Takings Clauseprivate property for the purposes of the Takings Clause”"); Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir. 1983) (); Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir. 1983) (“"An An
interest in a copyright is a property right protected by the due process and just compensation clauses of the interest in a copyright is a property right protected by the due process and just compensation clauses of the
Constitution.Constitution.”).
125"). 142. See, e.g., Tahoe-Sierra Pres. Council v. Tahoe Reg., Tahoe-Sierra Pres. Council v. Tahoe Reg’'l Planning Agency, 535 U.S. 302, 322 (2002) (l Planning Agency, 535 U.S. 302, 322 (2002) (“"When the When the
government physically takes possession of an interest in property for some public purpose, it has a categorical duty to government physically takes possession of an interest in property for some public purpose, it has a categorical duty to
compensate the former owner [under the Takings Clause].compensate the former owner [under the Takings Clause].”"); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 ); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019
(1992) (per se taking when (1992) (per se taking when “"the owner of real property has been called upon to sacrifice all economically beneficial the owner of real property has been called upon to sacrifice all economically beneficial
uses in the name of the common gooduses in the name of the common good”).
126"). 143. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124–25 (1978)Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124–25 (1978).
127 H.R. 1631, 118th Cong. § 2 (2023).
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and local governments “benefit greatly” from SDO-created standards, which “further innovation
[and] commerce” and are “critical to protecting public health and safety.”128 The bill also states
that SDOs ensure “all interested parties have an opportunity to participate” without “costs to
governments or taxpayers,” and “rely on copyright protection” to fund the voluntary consensus
process for creating and updating their standards.129
The Pro Codes Act would establish that a standard protected by copyright when it was created
“shall retain such [copyright] protection, notwithstanding that the standard is incorporated by
reference” into federal, state, or local law.130 The bill would thus supersede Veeck and similar
cases that have held that such standards fall into the public domain once incorporated into law or
regulation. To retain their copyright, however, SDOs must make “all portions of the standard so
incorporated publicly accessible online at no monetary cost” within a “reasonable time.”131 A
party challenging an SDO’s copyright based on a failure to comply with this public-access
requirement would bear the burden of proof.132
In short, the Pro Codes Act would provide that SDOs would retain copyright in IBR standards so
long as they make that material publicly accessible online. The bill defines “publicly accessible”
as “displayed for review in a readily accessible manner on a public website.”133 The bill would
not require that the material be made available to print, share, or download. The public-
accessibility definition also allows SDO websites to require that users create an account or agree
to terms of service to access IBR material, so long as there is no monetary cost to the user.134
Supporters of the Pro Codes Act, including SDOs such as the National Fire Protection
Association, argue that their work creating standards provides “critical public benefits.”135 If
incorporation by reference destroys copyright protection, SDOs maintain that they will no longer
be able to fund their activities by publishing, selling, and licensing their standards to professionals
who use them.136 SDOs also note that they already permit free viewing of their standards by the
public online.137
Opponents of the Pro Codes Act, including public-access groups like PRO and internet-freedom
groups like the Electronic Frontier Foundation, argue that no one should control who can read and
distribute the law, including IBR standards.138 They maintain that SDOs “have charged high fees
and imposed other restrictions” to access their standards in the past.139 They also object to the Pro
Codes Act’s “limited” public-access requirement, which could require users to submit personal

128 Id.
129 Id.
130 Id. at § 3(a).
131 Id.
132 Id.
133 See id.
134 See id.
135 See, e.g., Jim Pauley, Pro-Codes Bill Filed to Preserve Safety Code Copyright, NAT’L FIRE PROT. ASS’N Mar. 3,
2022, 144.

H.R. 4072, 119th Cong. § 2(12) (2025).

145.

Id. § 2(1), (4), (8).

146.

Id. § 2(4), (9), (10)(A)(i).

147.

Id. at § 3(a).

148.

Id.

149.

Id.

150. See id. The definition also requires that the SDOs' public website "conform[] with the accessibility requirements of section 508 of the Rehabilitation Act of 1973." Id. This law requires that federal agencies "make their electronic and information technology (EIT) accessible to people with disabilities." See generally IT Accessibility Laws and Policies, Gen. Servs. Admin., https://www.section508.gov/manage/laws-and-policies/ [https://perma.cc/LC9K-JVG2] (last visited July 22, 2025). 151.

See H.R. 4072, § 3(a).

152. See, e.g., Jim Pauley, Pro-Codes Bill Filed to Preserve Safety Code Copyright, Nat'l Fire Prot. Ass'n, Mar. 3, 2022, https://www.nfpa.org/News-and-Research/Publications-and-media/Blogs-Landing-Page/NFPA-Today/Blog-https://www.nfpa.org/News-and-Research/Publications-and-media/Blogs-Landing-Page/NFPA-Today/Blog-
Posts/2022/03/03/Pro-Codes-bill-filed-to-preserve-safety-code-copyrightPosts/2022/03/03/Pro-Codes-bill-filed-to-preserve-safety-code-copyright.
136 Id.
137 [https://perma.cc/QV9P-363B]. 153.

Id.

154. Id. See, e.g., List of NFPA Codes & Standards, , List of NFPA Codes & Standards, NAT’L FIRE PROT. ASS’N, Nat'l Fire Prot. Ass'n, https://www.nfpa.org/Codes-and-https://www.nfpa.org/Codes-and-
Standards/All-Codes-and-Standards/List-of-Codes-and-StandardsStandards/All-Codes-and-Standards/List-of-Codes-and-Standards [https://perma.cc/9SD4-HY3S] (last visited (last visited Aug. 3, 2023).
138July 22, 2025). 155. See, e.g.,, Letter from Electronic Frontier Foundation et al., to Sens. Lindsey Graham and Dick Durbin, U.S. Senate Letter from Electronic Frontier Foundation et al., to Sens. Lindsey Graham and Dick Durbin, U.S. Senate
Judiciary Comm. (Apr. 27, 2023), https://law.resource.org/pub/us/cfr/regulations.gov.foia/senate.gov.20230427.pdfJudiciary Comm. (Apr. 27, 2023), https://law.resource.org/pub/us/cfr/regulations.gov.foia/senate.gov.20230427.pdf.
139 Id.
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information to view IBR standards, and deny them the ability to print and download standards.140
Under the Pro Codes Act, SDOs may choose to make only an “economy-class version” of the
IBR standards available for free,141 alongside paid versions with more functionality.
The Pro Codes Act speaks only to the existence of copyright in IBR standards, and would not
explicitly address the fair use issue or constitutional defenses asserted by public-access groups in
litigation.142 Thus, even if the Pro Codes Act were enacted, groups like PRO may still assert fair
use arguments like those accepted by the court in ASTM v. PRO II, although the enactment might
be interpreted by courts to inform the fair use analysis. Even if a fair use defense failed, public-
access groups may still rely on First Amendment and Due Process Clause arguments, which a
statute cannot supersede. It is not clear, then, that enactment of the Pro Codes Act would resolve
all the issues litigated in the cases discussed above.
Considerations for Congress
Although it arises in a specialized context, debates over copyright in IBR standards ultimately
involve the core policy tradeoff for copyright and other forms of intellectual property: balancing
incentives for creation versus access to (and the cost of) creative works.
On the incentive side, Congress may consider whether judicial decisions—which have recently
trended against SDOs’ copyright claims—have undercut SDOs’ ability to fund their operations
through publishing and selling their standards. Some may question whether copyright protection
for IBR standards is necessary, arguing that SDOs could fund their activities in other ways or
combine IBR standards with other material to create an unambiguously copyrightable form of
their work. Others, including many SDOs, maintain that copyright is needed for them to recoup
the costs of standards creation.143 On that view, uncertainty in current law may undermine SDOs
and the social benefits they create for lawmakers, governmental agencies, and the public.
On the access side, Congress may consider what kind of public access to IBR standards is
appropriate. As discussed above, different courts have reached different conclusions on the
copyrightability of IBR standards or the permitted uses of such standards under the fair use
doctrine. As a practical matter, many SDOs have made their work freely available to the public in
some form, while some public-access groups have sought to facilitate greater public accessibility
(e.g., permitting free downloads of IBR standards). The Pro Codes Act would require SDOs to
provide a level of online access at no cost to users, but it would appear to allow SDOs to impose
some conditions on viewing and to restrict downloading and printing. Congress may consider
whether the status quo, the Pro Codes Act, or some other alternative provides sufficient public
access to IBR standards.

140 Id.
141 Cf. Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1512 (2020) (expressing concern that allowing copyright
in annotations to the official code of Georgia would create “economy-class” and “first-class” versions of state law).
142 See supra “Case Law on Copyright in IBR Standards.”
143 [https://perma.cc/8G6X-BZAQ] (hereinafter EFF Letter); Joint Letter from the Center for Democracy & Technology to the House Rules Committee Opposing Pro Codes Act (May 23, 2025), https://cdt.org/wp-content/uploads/2025/05/Pro-Codes-letter-May-2025.pdf [https://perma.cc/7H8S-7YB7]. 156.

EFF Letter, supra note 155, at 1.

157.

Id.

158.

Cf. Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 274–75 (2020) (expressing concern that allowing copyright in annotations to the official code of Georgia would create "economy-class" and "first-class" versions of state law).

159.

See supra "Case Law on Copyright in IBR Standards."

160. It is possible courts could rely on the potential enactment of Pro Codes (or another law on the issue) as informing their fair use analysis. On this view, courts might view such an enactment as reflecting a particular balance struck by Congress between copyright protection and access concerns, and so be wary of interpreting fair use to disrupt this balance. As a textual matter, however, the Pro Codes Act says nothing about fair use and does not amend the statutory fair use factors, as Congress has occasionally done in the past. See An Act to Amend Title 17, Pub. L. No. 102-492, 106 Stat. 3145, 3145 (1992) (providing that "[t]he fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors"). 161. See Why Voluntary Consensus Standards Incorporated by Reference into Federal Government Regulations Are
Copyright Protected, , AM. NAT’L STANDARDS INSTAm. Nat'l Standards Inst., .,
https://share.ansi.org/Shared%20Documents/About%20ANSI/Why-Voluntary-Consensus-Standards-Incorporated-by-https://share.ansi.org/Shared%20Documents/About%20ANSI/Why-Voluntary-Consensus-Standards-Incorporated-by-
Reference-into-Federal%20Government%20-Regulations-Are-Copyright-Protected.pdfReference-into-Federal%20Government%20-Regulations-Are-Copyright-Protected.pdf [https://perma.cc/9WTN-X5C2] (last visited (last visited Aug. 16, 2023)
(“July 22, 2025) ("Another [SDO] business model relies on recouping these costs through revenue made possible from the copyright-Another [SDO] business model relies on recouping these costs through revenue made possible from the copyright-
protected sales and licensing of the standards themselves.protected sales and licensing of the standards themselves.”).
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Given that the Copyright Act does not directly speak to the issue, the scope of the copyright in
IBR standards has largely been developed by the courts. Another issue that Congress may
consider, then, is whether it wishes to permit continued judicial development in this area, or to
intervene through legislation such as the Pro Codes Act. As different regional federal appeals
courts have reached different conclusions, legislation may have the benefit of promoting national
uniformity on the issue. Alternatively, one may argue courts are better positioned to account for
differences in IBR standards and uses of them through case-by-case application of doctrines such
as fair use.
The Pro Codes Act represents one possible option for legislating in this area. On the inventive end
of the spectrum, if Congress found that existing legal provisions144 and market incentives are
sufficient to facilitate public availability,145 it might choose to strengthen SDOs’ copyright
without imposing online-access requirements. On the access end, if Congress found that
copyright was unnecessary for SDOs, it could provide that incorporation by reference places an
IBR standard in the public domain, perhaps by expanding the reach of the statute denying
copyright to government works.146
Various statutory licensing regimes are another possibility. Under a statutory or “compulsory”
license, the government permits a certain use of a copyrighted work—regardless of actual
permission from copyright holder—while setting a royalty rate for that use by law.147 Such a
license could be structured in various ways, depending on whom Congress viewed as the
appropriate entity to pay for the IBR standards. For example, one option would be to provide that
incorporation extinguishes or diminishes copyright, but require the government to pay SDOs a set
royalty when it incorporates a standard into law.148 That approach would lose one benefit of the
current system, however, in which technical standards are developed largely without cost to
taxpayers. Another possible statutory license would allow public-access groups and others to
make IBR standards publicly available despite SDOs’ copyright claims, but require such groups
to pay a set royalty for the various uses that have been disputed in litigation.

Author Information

Kevin J. Hickey

Legislative Attorney


144"). 162.

See supra "Developments After Georgia v. PRO."

163. See 1 C.F.R. § 51.5(b)(2); 17 U.S.C. § 107.1 C.F.R. § 51.5(b)(2); 17 U.S.C. § 107.
145 164. See Prac. Mgmt. Info. Corp. v. Am. Med. AssPrac. Mgmt. Info. Corp. v. Am. Med. Ass’'n, 121 F.3d 516, 519 (9th Cir. 1997) (reasoning that there is n, 121 F.3d 516, 519 (9th Cir. 1997) (reasoning that there is “"no no
realistic threat to public accessrealistic threat to public access”" to the IBR standard because the SDO to the IBR standard because the SDO “"has no incentive to limit or forgo publicationhas no incentive to limit or forgo publication”).
146"). 165. See 17 U.S.C. § 105(a). This could raise Takings Clause concerns if applied retroactively. 17 U.S.C. § 105(a). This could raise Takings Clause concerns if applied retroactively. See supra "“Takings
Clause Issues.”
147." 166. Compulsory License, , BLACK'S LAW DICTIONARYBlack's Law Dictionary (11th ed. 2019) ( (11th ed. 2019) (“"A statutorily created license that allows certain A statutorily created license that allows certain
parties to use copyrighted material without the explicit permission of the copyright owner in exchange for a specified parties to use copyrighted material without the explicit permission of the copyright owner in exchange for a specified
royalty.royalty.”).
148 See Facility "). 167. See Guidelines Inst., Inc. v. UpCodes, Inc., Guidelines Inst., Inc. v. UpCodes, Inc., No. 22-CV-01308, 2023 WL 4026185, at *7 (E.D. Mo. June 15,
2023) (“677 F. Supp. 3d 955, 968–69 (E.D. Mo. 2023) ("Perhaps . . . [the] most equitable path forward involves the payment of a reasonable royalty or licensing fee Perhaps . . . [the] most equitable path forward involves the payment of a reasonable royalty or licensing fee
when the government adopts a privately authored model code to offset the economic harm that results from free when the government adopts a privately authored model code to offset the economic harm that results from free
distribution to the public.distribution to the public.”).
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Congressional Research Service
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