December 14, 2022

Library Futures Files Collaborative Amici in American Society for Testing and Materials, et al. v. Public.Resource.Org

Library Futures is excited to announce that we have filed a collaborative amici brief—joined by EveryLibrary Institute, Authors Alliance, and Public Knowledge—in American Society for Testing and Materials, et al. v. Public.Resource.Org, a case currently pending in the DC Circuit Court of Appeals. 

Many agency regulations incorporate reference standards developed by private organizations, such as ASTM. Although these standards have the force and effect of law once they are incorporated in agency regulations, they are not printed in the Federal Register or the Code of Federal Regulations and they can often be difficult for the public to access. ASTM sells hard copies and digital versions, and makes their standards available for free online in “read-only” mode.—an organization devoted to making laws and other government documents available to the public—purchased physical copies of the plaintiffs’ standards and scanned and digitized copies to make them freely available online to the public. All of these standards have been incorporated by reference into federal law. ASTM and other standard development organizations sued Public.Resource.Org for copyright infringement. 

LF and several other library and civil society organizations filed a brief in support of, arguing that when a law-making entity incorporates a standard by reference into legally-binding rule or regulation, the contents of the whole of that publication must be freely and fully accessible by the public. We argue that no one can own the law and all should have free access to its contents, particularly when the need for the public to be able to access the content of regulations affecting health, safety, and the environment is implicated. 

We ask the Court to consider how this litigation will affect the ability of libraries to continue to provide open, non-discriminatory access to books and reading materials for their readers. As libraries, we rely on unrestricted access to the text of the official law to give effect to our collective missions of facilitating equal and equitable access to legal information, serving legal professionals as well as the general public, who both govern and are governed through the law. Our brief informs the Court that, for this mission, we rely on full access and reuse of official legal texts for purposes such as conducting and supporting legal research and scholarship, teaching legal research, preserving critical legal materials, providing access to the public, and preserving legal materials for future study. 

LF’s brief also argues that ASTM’s “online reading rooms” are not a sufficient substitute for unrestricted access to the law, because they are not actually “free.” In order to obtain access, ASTM requires users to register with their personal information, and agree to a voluminous, multi-part privacy policy and a nearly 1000-word contract that restricts users from transmitting the documents or performing simple cut and paste tasks. ASTM’s version of free access stands in stark contrast to the protected and careful means through which libraries provide access to researchers and other users of legal information. 

Were ASTM to prevail, libraries would be unable to provide any of these types of privacy protections for researchers. Granting copyright protection over these legal materials would harm librarians and by extension researchers and the public. We will keep our community members informed as this case moves forward. 

We thank EveryLibrary, Authors Alliance, and Public Knowledge for their collaborative work on this brief, and the community members who provided feedback and support. You can read our full brief here. 

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