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Open-access website faces infringement suit for posting safety and technical standards

Posted Aug 15, 2013 10:05 AM CDT
By Debra Cassens Weiss

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A website operated by open-records advocate Carl Malamud is facing a lawsuit claiming copyright and trademark infringement for posting safety and technical standards developed by nonprofit groups.

Public.Resource.Org is accused of copying standards that were incorporated by reference in federal regulations and then posting them in their entirety, reports 3 Geeks and a Law Blog. The plaintiffs are three private groups that develop technical standards for consumer products, fire and electrical safety, and heating and air conditioning.

The Aug. 6 suit (PDF) says development of standards by the plaintiffs is a costly process underwritten by sales of the content, but Public Resource is encouraging others to use that work without regard to copyrights. Public Resource has argued that the standards lost copyright protection when incorporated by reference in any federal or state regulation—an argument that imperils the groups’ work and raises constitutional questions of government liability under the takings clause, the suit says.

Malamud, an ABA Journal Legal Rebel, has posted cases downloaded from PACER and the Securities and Exchange Commission’s EDGAR database. He told the ABA Journal in 2009 that he wants to liberate public safety codes incorporated by reference into state regulations.

The suit includes an explanation of why consistent standards are important. “For example, at the turn of the twentieth century, the size of the threads on fire hydrants and hoses varied across the major cities of the Atlantic seaboard. When a large fire burned out of control in Baltimore in 1904, fire brigades from Washington, D.C., New York, Philadelphia, and elsewhere arrived to lend assistance. But because the threads on their hoses did not match the Baltimore fire hydrants, they stood by helplessly as the conflagration consumed 70 blocks of downtown Baltimore.”

The plaintiffs are the American Society for Testing and Materials; the National Fire Protection Association Inc.; and the American Society of Heating, Refrigerating, and Air-Conditioning Engineers Inc.

Besides copyright infringement, the suit accuses Public Resource of reproducing the groups’ trademarks when distributing the standards. The complaint also says some of the posted standards are out of date, which could mislead and harm consumers.

Malamud responds in a Tweet: “These codes are laws.” At Public.Resource.Org, Malamud says: “The law belongs to the people, and cannot become the private property of some governmental or nongovernmental organization.”

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