Posting Standards on FCC's Website Would Invite ‘Mass Infringement,’ Say SDOs

Petitioners iFixit, Public Resource and Make Community “seek to dramatically rewrite federal law and agency rules by destroying the copyright” to the standards development organizations’ standards, said 17 SDOs in an amicus brief Tuesday (docket 23-1311) in the U.S. Appeals Court for the D.C. Circuit in support of the FCC.

The petitioners allege that the FCC violated the Administrative Procedure Act when it amended rules incorporating four new equipment testing standards, and did so without the proper notice and comment protocol (see 2403280002). Using a procedure called “incorporation by reference,” they allege the commission informed the public that copies of the rules were available at its headquarters but didn't say that the rules could be read but not copied.

The NPRM also said that copies of the proposed rules were available from the private SDOs that originally published them, say the petitioners. But they allege that these too couldn’t be copied, and that they were available only after making a “substantial payment” to the sponsoring SDO.

The petitioners ask the D.C. Circuit to compel agencies such as the FCC to post a copy of the SDO’s standard on the agency’s website, “where the electronic copy may be copied, downloaded, and further distributed without limitation,” said the amicus brief. According to the petitioners, this is necessary whenever an agency proposes to incorporate by reference such a standard in a final rule or regulation.

But the result would be to make the SDOs’ works, “which indisputably are protected by copyright, available for mass infringement,” said the amicus brief. This would undermine the SDOs’ ability “to fund the creation of these works that yield enormous public benefits,” it said. Joining in the amicus brief were the American National Standards Institute, CTA, IEEE and the Telecommunications Industry Association.

Federal law authorizes and encourages incorporation by reference “in a manner that respects rather than destroys copyright,” said the amicus brief. Congress required only that material be reasonably available, “which all of the standards at issue here were during the notice-and-comment period and after adoption of the relevant rule,” it said.

Federal law “balances the interests on all sides,” said the amicus brief. Agencies can rely on the SDOs’ high-quality standards, it said. The public benefits from the use of the high-quality standards at no cost, it said. The SDOs benefit “because their copyright rights are preserved, enabling them to fund the consensus-oriented process that produces best-in-class, vetted standards that serve public and private goals,” it said.

Consistent with their public-service missions and nonprofit status, SDOs make their standards “easily accessible to the public for free, read-only viewing online,” said the amicus brief. Contrary to the petitioners’ claim, all the standards at issue “were and have been publicly available,” it said. They were available at the NPRM stage, “and they remain available to this day,” for access by the petitioners “and anyone else to read and comment on them,” it said.

A federal statute “lays out the requirements for material that an agency seeks” to incorporate by reference, said the amicus brief. Agencies can incorporate by reference SDOs’ standards and “other extrinsic material in their regulations,” so long as the material is reasonably available to the class of persons affected, it said. That statutory provision “respects the copyrights that SDOs hold in their standards and their corresponding ability to earn revenue to fund their standards development,” it said.

The petitioners “seek to destroy all this,” said the amicus brief. They demand that a federal agency make the full text of any copyright-protected standard that the agency is considering for incorporation by reference available online “without restriction” at the agency’s website, it said.

Under the petitioners’ demands, the standards would be posted to an agency’s website “without regard to the SDO’s consent and without any remuneration to the SDO,” said the amicus brief. That argument is “contrary to federal law,” it said. The result also would raise “serious constitutional concerns” under the Constitution’s takings clause, it said. The petitioners’ argument, if accepted, also “would undermine the infrastructure of U.S. innovation and the incentive system that are essential to our market-driven economy,” it said.