[00:00:00] Speaker 05:
Case number 17-7035 at L, American Society for Testing the Materials at L versus Public Resource Board, 8th Appellant.

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Ms.

[00:00:11] Speaker 05:
McSherry for the Appellant, Mr. Verrilli for the Appellees.

[00:01:36] Speaker 05:
Good morning, Your Honors.

[00:01:38] Speaker 05:
Karim McSherry for Public Resource.

[00:01:41] Speaker 05:
May it please the Court?

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The Court question in this case is whether a private party can use copyright to prevent a nonprofit from helping the public access and share the law.

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And the answer to that question is no, for at least three reasons.

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First of all, as a matter of public policy and longstanding judicial consensus, the law is not copyrightable.

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And that applies whether it's a judicial opinion, a statute,

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an ordinance, a regulation, or as the Fifth Circuit tells us, a regulation that's been incorporated by reference into law.

[00:02:13] Speaker 03:
So is it your position that any standard

[00:02:21] Speaker 03:
incorporated by reference loses its copyright protection or does it depend standard by standard depending upon whether or not the standard imposes mandatory obligations or simply as the courts in the Red Book and the AMA case found simply

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set standards or provide options for other things.

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In other words, what is your position?

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Is it everything automatic, everything incorporated is the law and can't be copyrighted?

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Is that your position?

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Not precisely, Your Honor.

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So something that is simply- I'm sorry, what?

[00:03:04] Speaker 05:
Our position is that anything that has been expressly incorporated into law and made mandatory, as has every standard at issue in this case, usually after an extensive notice and comment period where there was ample opportunity for parties to come in and talk about whether that was the appropriate regulatory standard.

[00:03:24] Speaker 03:
That's helpful.

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So it has to be, in your view, for it to be

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to become the law and therefore subject to copyright, has to impose mandatory standards, right?

[00:03:36] Speaker 03:
It can't just be sort of a random site to an external piece of information, right?

[00:03:42] Speaker 05:
That's correct, Your Honor.

[00:03:43] Speaker 03:
Okay, so let me just ask you about a couple of these.

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For example, okay, so ASTM D121793, okay?

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It provides an alternative method for complying with the clean area.

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That's what it does.

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It doesn't tell you which one you have to do.

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It just gives you alternative methods.

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Now, is that mandatory?

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Because that standard has followed that process of being expressly incorporated into law, it is part of the law.

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You might think of this as the tax code provides multiple ways of complying with one's obligations if you own a penalty.

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But all of that is part of the code, and all of that is part of the law.

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So can you give me an example of a standard that wouldn't

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be considered, quote, the law if incorporated by reference.

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I know your position is that every one of these falls into the category, but give me an example of one that wouldn't be.

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So I think the CCC case actually provides an example of one that wouldn't be, and that's a situation where we had the Red Book simply referred to as an option.

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It was not expressed, there was no language where

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any agency or government entity expressly incorporated the red book into law and followed that language.

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There was no comment period or anything like that.

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I got that.

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But I understand.

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I don't want to push you beyond the position you want to take.

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I just want to be sure I understand it.

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Of course.

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I understand that argument from a due process point of view.

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But you also make a First Amendment argument, right?

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And I was curious to know whether, like, for example, on these standards that aren't mandatory but give the choices, your position might be, well, you know, it can't be that for people interested parties to try to encourage the agency to change its position or go to Congress to get the position changed.

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It can't be that, you know, that they don't have free access

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to the standards and free access to duplicate them as much as they need in order to pursue their first amendment interests.

[00:06:16] Speaker 05:
So the way that I would approach that hypothetical situation, I think the easier path forward in that situation would be to look at not just the First Amendment, but look at fair use.

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And I think that a party might have a strong fair use argument that they should have the ability to share documents that have been referred to in regulations in order to understand those better.

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And I think in an appropriate circumstance, you could find that use to be a fair use.

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I think when you're talking about regulations that have been made mandatory, you have a combined strong and even stronger First Amendment and due process interest and they join together.

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The SDOs argue you don't have standing to raise a due process argument.

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So I think the SDOs are misunderstanding how we are raising due process.

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What we are saying is copyright defendants

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is that you need to follow Howell and Banks and Wheaton and interpret copyright law in light of the due process concerns that all of those courts have recognized, due process concerns that have then informed copyright law itself and our edicts of government doctrine, the merger doctrine, and Section 102B.

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So we are not raising a due process challenge as such,

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explaining how you need to understand copyright law.

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So if you're not a regulated party, a party that is subject to sanction for, you know, violating one of these regulations or codes, it puts you in a little bit different position vis-a-vis

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the standard than the Supreme Court opinion or something that just is generally applicable to everyone.

[00:08:10] Speaker 05:
That's correct, Your Honor.

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We're a party that has been accused of copyright infringement for making it possible for others to exercise their due process rights to access the law.

[00:08:21] Speaker 01:
That sounds more like First Amendment than due process.

[00:08:25] Speaker 05:
I think these are really inextricable, and I think here of the situation discussed in our briefing involving the Supreme Court of Indiana, where the Supreme Court of Indiana went looking for a standard, not one of the standards at issue in this case, fortunately, but ultimately couldn't find it.

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Now, that wasn't a party that was

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That was a court that was charged with interpreting the law and understanding the law.

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And that court also had a need to access the line, was unable to do so at first, ultimately was able to because the standard at issue was not one of those that was enjoined in this case.

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So I think that the, I guess I view the due process and First Amendment concerns here as being really inextricably linked.

[00:09:12] Speaker 01:
Why isn't the better way to analytically look at this is to look at fair use first?

[00:09:21] Speaker 01:
Even assuming that there is copyright protection still, that in the context of a standard that is incorporated into a statute of regulation,

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that is binding on the public, that to the extent someone wants to reproduce that statute of regulation and reproduce solely the text, not the trademark,

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of the standard that's been incorporated by reference, that's a fair use.

[00:09:50] Speaker 01:
The copyright owners don't lose all of their protection.

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We don't have to reach these constitutional arguments.

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But to the extent that the district court needed to enter an injunction, which is what we're reviewing, and an injunction that's no broader than necessary, that that's what the district court should have done.

[00:10:15] Speaker 05:
Well, thank you for bringing me to my second point.

[00:10:18] Speaker 05:
So, I mean, I do think that the court can find it in our favor on the first point, but if not, absolutely, the use in question is a lawful fair use.

[00:10:27] Speaker 05:
If you look at the purpose of the use, it's transformed as creating an archive, a universally accessible archive for the public benefit.

[00:10:35] Speaker 03:
Suppose we don't agree that it's transformative.

[00:10:37] Speaker 05:
I'm sorry?

[00:10:38] Speaker 03:
I said, suppose we don't agree that it's transformative.

[00:10:40] Speaker 03:
I mean, you're welcome to make your argument, but assume for purposes of answering Judge Wilkins' question, we don't think it's transformative.

[00:10:47] Speaker 03:
How do you make your argument then?

[00:10:49] Speaker 05:
Okay, well, I think when you look at the purpose of the work, you look not just at whether it's transformative, you also look at the public benefit, and I think here we have tremendous public benefit.

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There are also numerous cases that have concluded that while transformativeness is important, it's not the only aspect of the factor one that you should consider.

[00:11:08] Speaker 05:
You also, in addition to public benefit, you look at whether the use was commercial.

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was quite surprised to read the district court's opinion and have the district court conclude that my client's purpose was somehow commercial.

[00:11:22] Speaker 05:
It's a non-profit making an archive of law available for free and making it more accessible to the world than it would be entirely for free.

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We can then turn to the second factor, which I think is important here when you're talking about legal facts.

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Factor two becomes quite important, which has been recognized by various cases, and I think the nature of the work cuts squarely in favor of my client.

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With respect to the third factor,

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Of course, it is true that my client reproduced the entirety of these standards as they were incorporated into law because he needed to do so, public resources needed to do so in order to have a complete archive, which is the goal.

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And finally, on market harm, there was no evidence whatsoever in the record of any market harm that could be attributed to anything that my client did.

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There were a couple examples where sales of the standards dropped, but they were when new standards were coming out, and the plaintiffs themselves admitted that when new standards are coming out, the old standards tend to not sell as well.

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And in one case with ERA, they took it off the market altogether.

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And then the final thing I would say around fair use is, again, when you're looking at fair use, you look at the factors together and then you look in light of the public interest and the greater purposes.

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And we have a situation where, absent fair use, absent this archive, the plaintiffs in this case have been very clear

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that they believe they have the ability to take these standards off the market altogether and would like to do so.

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They believe that they have the right to set the conditions for access to the law, whether it's incorporated by reference or not.

[00:13:11] Speaker 01:
What do we know about market harm from the aftermath of the Veek case?

[00:13:17] Speaker 05:
Well, what we know from them is that there has been no market harm.

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As far as we can tell, the standards organizations insisted that the sky was going to fall if that decision was upheld or wasn't reviewed by the Supreme Court.

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That didn't happen.

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They're doing very, very well.

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And there's been no market harm whatsoever, which makes sense.

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Because where they actually make most of their money, to be honest, is from newer versions of the standards, not the ones that have been incorporated into law.

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And they benefit tremendously from, when their standards are incorporated into law, they have educational seminars, they sell annotated notions, they train people up and they tell people, do you want to know how to comply with California law?

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Come to us, we can tell you.

[00:14:02] Speaker 05:
Why?

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Because they wrote the law.

[00:14:08] Speaker 03:
Okay, I just wanted to go back to my basic question about whether your position is that all of these standards that were part of the summary judgment proceedings fall into the mandatory category or not.

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I just want to understand your position.

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Take the 1999 educational standards, okay?

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They are used just to determine eligibility for grants.

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So does that fall into your category?

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It's not mandatory.

[00:14:35] Speaker 05:
It does fall within my category for two reasons, Your Honor.

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One is that it, too, the 1999 standards, in their entirety, were incorporated by reference into law, just like every other one.

[00:14:45] Speaker 03:
Right.

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In addition... When I asked you the question earlier, you said that wasn't enough.

[00:14:49] Speaker 03:
It had to also be mandatory or impose obligations.

[00:14:53] Speaker 05:
Well, they are mandatory in the sense that you have to comply with them.

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And if you represent... Only if you're seeking a government grant.

[00:15:00] Speaker 05:
Well, but all kinds of, actually, people engaging in any kind of testing with respect to the government have to comply with those standards.

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And if they don't and they misrepresent that they have, they're subject to civil fines and penalties.

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In addition, the 1999 standards was integral to the 2010 educational regulation reform engaged by the Obama administration.

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It was not simply an offshoot.

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It was actually a fundamental part of that entire regulatory system.

[00:15:30] Speaker 03:
No, no, don't worry.

[00:15:33] Speaker 03:
I think we have some more questions.

[00:15:37] Speaker 02:
Yeah, so you haven't challenged the proposition that when a private entity promulgates either a model code or a set of standards that that can be copyrighted prior to the point when it's incorporated by reference?

[00:16:00] Speaker 05:
If it's otherwise copyrightable prior to incorporation by reference then it's copyrightable.

[00:16:05] Speaker 02:
Do you have a position on whether this kind of material is copyrightable?

[00:16:10] Speaker 05:
I think it depends.

[00:16:11] Speaker 05:
We were concerned below that

[00:16:14] Speaker 05:
the standards at issue really were so factual that copyright protection was minimal at best, but we haven't raised that on it yet.

[00:16:21] Speaker 02:
Because once you say, once you assume that the standards were copyrighted, were properly copyrighted when they were created, then

[00:16:33] Speaker 02:
It seems to me there's a pretty good argument against you that the statute talks, statute addresses how existing copyrights, a holder of a copyright can be divested of his or her copyright interest and incorporation by reference is not on that list.

[00:16:53] Speaker 05:
So, with respect, I would disagree with you, Your Honor.

[00:16:57] Speaker 05:
I think that we have, what we have is 200 years of tradition that says that law is not copyrightable.

[00:17:04] Speaker 05:
And, you know, I think you could think of it this way.

[00:17:05] Speaker 05:
If a lobbyist drafts a law, as often happens, and submitted it to a legislative staffer and it was made into the law.

[00:17:13] Speaker 03:
You don't think that really happens, do you?

[00:17:17] Speaker 05:
I think that if that lobbyist came forward later and said, well, it was initially, when I first wrote it, it was copyrightable, and therefore I retain a copyright interest in that document now that it's been made into the law.

[00:17:30] Speaker 05:
I think that we would find that preposterous.

[00:17:32] Speaker 05:
But that's not so very different from what we're talking about here, particularly given that we have a record

[00:17:37] Speaker 05:
where the plaintiffs don't just have their standards incorporated haphazardly.

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They know they're going to be incorporated.

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They draft them so that they can be easily incorporated.

[00:17:49] Speaker 02:
They work closely with government officials.

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Some do, some don't.

[00:17:53] Speaker 02:
And that maybe gets into the distinction that

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The Fifth Circuit drew and said model codes are different from voluntary standards that are promulgated for other reasons, and you're asking us to go even beyond what the Fifth Circuit

[00:18:17] Speaker 05:
So I think, again, I think we have a very strong record in this case that the plaintiffs, every one of them, work closely with government officials to have their standards incorporated into law.

[00:18:29] Speaker 05:
Not all of their standards.

[00:18:31] Speaker 02:
I mean, understand that... Even if the document is written as a, I don't know what you'd call it, best practices for the industry document as opposed to expressly being written as a model code.

[00:18:45] Speaker 05:
But I think for every standard in this case, it was expressly adopted into regulation and was intended to be so in the sense that we have government officials participating in it.

[00:18:56] Speaker 02:
Yeah, but I mean, I thought from your brief you were advocating for a pretty broad, bright line rule and now you seem to be moving towards

[00:19:06] Speaker 02:
a position Judge Tatel was suggesting that maybe these, maybe everything depends on the particular facts and the intent of the drafter and so on in a, with regard to particular standards.

[00:19:19] Speaker 05:
So I think the Brightline rule and sort of the core rule that we can start with and

[00:19:24] Speaker 05:
adhere closely to is if it has been expressly and deliberately incorporated into life.

[00:19:30] Speaker 05:
So you can start there.

[00:19:31] Speaker 02:
And I thought your position on that was regardless of whether the drafter was exclusively in the business of drafting codes and then pitching them to governments as codes or was a private entity that just wants

[00:19:49] Speaker 02:
standard rules for engineers or whatever, and they're completely indifferent about incorporation by reference.

[00:19:56] Speaker 05:
So thank you for the opportunity to clarify, Your Honor.

[00:19:59] Speaker 05:
What I was trying to do is respond to the question of whether what we are advocating for here and whether our case follows firmly under VEC or not.

[00:20:08] Speaker 05:
So I'm trying to explain why I actually think that the distinction that the VEC court was trying to draw does not actually apply in this case.

[00:20:22] Speaker 03:
trademark issue and the nominal fair use question.

[00:20:28] Speaker 03:
Position in your brief is that you have no way of identifying these standards except by using the trade name, the trademarks.

[00:20:37] Speaker 03:
But why couldn't you just refer to it as the standard adopted by reference in 1823 U.S.

[00:20:49] Speaker 03:
Code XXX?

[00:20:52] Speaker 03:
Wouldn't that do it?

[00:20:53] Speaker 05:
Well, because, Your Honor, what Public Resource was trying to do and did is reproduce what was incorporated by reference into the law.

[00:21:04] Speaker 05:
So the Public Resource did not want to put itself in the position of making a whole host of decisions of what should count and what should not count.

[00:21:12] Speaker 03:
Well, but as a result of doing that, the argument is you've run afoul of the trademark laws.

[00:21:18] Speaker 05:
I think that the strongest argument why that's not correct actually starts with Daystar.

[00:21:23] Speaker 03:
But their argument about Daystar is this is very different because here the version of the standard that PRO put online was a different, it was a degraded version.

[00:21:36] Speaker 03:
It had mistakes in it, it was modified for other purposes and

[00:21:40] Speaker 03:
and it identified it as Plainus by using the logos.

[00:21:45] Speaker 03:
So it was very different from Fox.

[00:21:49] Speaker 05:
Well, so with respect to the errors point, Your Honor, I... Well, isn't that right?

[00:21:52] Speaker 03:
I mean, they have a point about that, right?

[00:21:54] Speaker 03:
This is not that case.

[00:21:56] Speaker 03:
This is not a case where, I mean, in that case, the video, the film was virtually identical.

[00:22:05] Speaker 03:
It was identical in all respects, and there was no identifying information to associate it with the author.

[00:22:12] Speaker 05:
So I think, actually, what my client did here is really more akin to, say I screened a public domain movie.

[00:22:19] Speaker 05:
And the movie included some movie credits that included some logos that might still be on their trademark.

[00:22:26] Speaker 05:
Would a trademark owner want to come and bring a claim?

[00:22:29] Speaker 05:
I think not.

[00:22:30] Speaker 05:
I think that it would be, and especially if they also brought a copyright claim at the same time, I think if they found it was public domain, that would be the end of the case.

[00:22:37] Speaker 05:
I think that's what happened here.

[00:22:39] Speaker 03:
Assume we think that it's a problem.

[00:22:43] Speaker 03:
Couldn't your client do this just as effectively without using

[00:22:48] Speaker 03:
the logos and the word marks?

[00:22:51] Speaker 03:
Why couldn't you do it just as effectively?

[00:22:54] Speaker 05:
I think it would be very difficult to do this without using the word marks because that is how the standards are identified.

[00:23:00] Speaker 03:
You could take the logos off, right?

[00:23:02] Speaker 03:
You wouldn't need those.

[00:23:05] Speaker 05:
I think my client had good reason for including the logos because he was trying to reproduce them in total.

[00:23:11] Speaker 05:
But as we said with the district court, if the court wanted to direct an injunction that applied solely to editing out the logos at the court's direction, we would do that.

[00:23:22] Speaker 05:
My client didn't want to do that as the get-go because he has another purpose of reproducing the law in its entirety.

[00:23:27] Speaker 05:
And Public Resource did not want to put itself in the position of basically editing the law.

[00:23:32] Speaker 05:
And that's how it viewed editing out the logos.

[00:23:36] Speaker 05:
I mean, frankly, I think that whether we had included the logos or not, the standards organizations would have bought a trademark claim anyway, because this is sort of a full board press.

[00:23:46] Speaker 03:
Well, the question is, who would have bought it if you didn't use the logos?

[00:23:49] Speaker 03:
Right.

[00:23:51] Speaker 05:
So my view, again, is I think we have a strong argument on the trademark claim at all.

[00:23:56] Speaker 05:
The logos, I will concede, are a closer question.

[00:24:00] Speaker 05:
And if we walked out of this situation with an injunctive solely as to the logos, my client would be satisfied with that.

[00:24:06] Speaker 03:
And what about your disclaimers?

[00:24:09] Speaker 05:
And we are more than happy to...

[00:24:12] Speaker 05:
modify those claimers in a way that makes it more clearly.

[00:24:15] Speaker 05:
My client has no interest in any confusion about this question.

[00:24:18] Speaker 03:
I understand.

[00:24:19] Speaker 03:
So what you care about most is using the word mark, right?

[00:24:22] Speaker 03:
The same mark that's in the Federal Register.

[00:24:25] Speaker 05:
Public resource has to use the word mark because that's how they are identified.

[00:24:30] Speaker 02:
Can I just take you back to the Fifth Circuit case?

[00:24:33] Speaker 02:
Sure.

[00:24:35] Speaker 02:
I had thought that court drew a fairly straightforward line between things that are drafted as model codes and things that are drafted as everything else, industry standards, in which case you would fall on the wrong side of that line.

[00:24:55] Speaker 02:
So why am I misunderstanding the line that the Fifth Circuit drew, and how do you follow on the right side of its line?

[00:25:05] Speaker 05:
Sure.

[00:25:05] Speaker 05:
So I think what the VEC court did is it laid out the path for thinking about the problem of incorporation by reference.

[00:25:12] Speaker 05:
And it looked to the merger doctrine, which I understood following the Boca case, the fundamental due process problems, and discussed those at great length.

[00:25:21] Speaker 05:
And it looked to the merger doctrine

[00:25:23] Speaker 05:
and also the fact expression dichotomy as a path for thinking about the quandary that's created when you have a private copyright in the law.

[00:25:33] Speaker 05:
And that's the path that Public Resource tried to follow in making sure that its activities were lawful.

[00:25:42] Speaker 05:
Public Resource, you know, looked very closely at the VET case and tried very carefully to fall within its parameters

[00:25:50] Speaker 05:
The reality of the situation is that there's a very vast amount of material, important material, like the national electoral code and the national fire safety code that have been made part of the law.

[00:26:02] Speaker 05:
So my point is that VEC gives the court a path for thinking about the quandary that is the same quandary here as it was in VEC.

[00:26:12] Speaker 05:
which is the public policy situation, a problem that's created when you have a copyright in the law.

[00:26:18] Speaker 02:
These were not drafted as model codes.

[00:26:22] Speaker 02:
So what is, can you give me a sentence or two for the rule of law that would determine under the Fifth Circuit framework when something that doesn't look like a model code should be treated as a model code?

[00:26:40] Speaker 05:
When you have a document that has been made into a mandatory regulatory document and expressly incorporated into law, it is the law and has to be treated like any other law under the copyright laws.

[00:26:56] Speaker 02:
That turns exclusively on the nature of the incorporation.

[00:27:02] Speaker 02:
not on the intent of the drafters when they draft the code, right?

[00:27:11] Speaker 02:
That's correct, and I actually... So that seems to me actually what you're really arguing is not that you fall on the right side of the Fifth Circuit line, but that the Fifth Circuit was wrong to suggest a distinction between private standards and model codes.

[00:27:30] Speaker 05:
I think that where the district court, I don't want to say erred, but perhaps placed too much emphasis was on the question of intent.

[00:27:38] Speaker 05:
But as I suggested, I think we have a situation here where even if they're not called model codes, they're treated as model codes.

[00:27:47] Speaker 02:
Even if the private group never comes to the government,

[00:27:50] Speaker 02:
and says please incorporate and has no government people involved in the process of developing the standard and is completely indifferent or even hostile to incorporation, your position is once it's incorporated, if it's incorporated into binding law that affects private parties, then it's copyright over.

[00:28:19] Speaker 05:
That's correct.

[00:28:19] Speaker 05:
But to be clear, that is not how it happens.

[00:28:22] Speaker 05:
Um, in practice, all of the standards here work.

[00:28:27] Speaker 02:
I'm just fighting.

[00:28:30] Speaker 02:
Okay.

[00:28:31] Speaker 02:
Okay.

[00:28:37] Speaker 03:
Thank you.

[00:28:37] Speaker 05:
Thank you.

[00:28:50] Speaker 00:
May it please the Court, Don Verrilli, for appellees.

[00:28:53] Speaker 00:
Public resource seeks to extinguish in one stroke the copyright in thousands of standards that protect public health and safety.

[00:29:02] Speaker 00:
There is nothing in the text of the Copyright Act in fair use principles or in the Constitution that justifies that radical step.

[00:29:09] Speaker 00:
It would upend the Act's incentive structure

[00:29:12] Speaker 00:
for this very substantial and particularly significant category of works and would put at risk the private standard development process on which governments at all levels rely.

[00:29:26] Speaker 03:
Can I ask you, I just want to ask you a question, the same kind of question I started with the other side, just to make sure I understand your position on two aspects in this case.

[00:29:36] Speaker 03:
Suppose in this case the standards had been incorporated word for word into the Federal Register and therefore the code, the CFO, the Code of Federal Regulation, the CFR.

[00:29:52] Speaker 03:
Well, just like in V, would you concede then that they're not subject to copyright protection?

[00:30:00] Speaker 00:
I have to give you a complicated answer to that, Judge Tabel.

[00:30:04] Speaker 00:
That's okay.

[00:30:04] Speaker 00:
Bear with me, I will.

[00:30:06] Speaker 00:
I do want to point out, I understand that that's a hypothetical question.

[00:30:08] Speaker 00:
Completely.

[00:30:09] Speaker 00:
Because if you look at page 2086, you'll see the district court

[00:30:13] Speaker 00:
said that none of the standards that issue here were verbatim.

[00:30:17] Speaker 00:
I think in most situations you're going to find that there isn't a copyright infringement problem, but it's not because verbatim incorporation results in the standards becoming part of the public domain.

[00:30:30] Speaker 00:
Very often, their standard-setting organizations that probably get model codes grant express licenses.

[00:30:37] Speaker 00:
If you look at the American Law Institute, that's exactly, if you look at the website, you'll find that that's exactly what the American Law Institute does with the UCC.

[00:30:45] Speaker 00:
It grants government entities that want to reprint it verbatim.

[00:30:49] Speaker 00:
a royalty-free license, and then it says that anybody else who wants to reprint it in a book has to enter into a license agreement with us.

[00:30:56] Speaker 00:
That all presupposes that copyright is not extinguished even in verbatim incorporation.

[00:31:02] Speaker 00:
So the existence of an express license is often going to take care of that.

[00:31:07] Speaker 00:
Situations where there isn't an express license, I think there'd be a very strong argument that there's an implied license.

[00:31:13] Speaker 03:
Even if a standard, a privately developed standard,

[00:31:17] Speaker 03:
that was incorporated word for word into the regulation that had mandatory effects, affected rights or obligations, would still retain its copyright?

[00:31:28] Speaker 00:
We think the copyright wouldn't be extinguished.

[00:31:30] Speaker 00:
And I do think that the whole federal system is really... So are the regulations, are they somehow different from statutes?

[00:31:36] Speaker 03:
I mean, statutes, we all understand, can't be copyrighted.

[00:31:40] Speaker 00:
Yes, I think the key difference, and I do think this goes to a really important point,

[00:31:45] Speaker 00:
The key difference with respect to this government doctrine.

[00:31:49] Speaker 00:
It's about the origin with respect to a statute regulation or judicial opinion.

[00:31:56] Speaker 00:
If it originates with government actors.

[00:31:59] Speaker 00:
then it's not subject to copyright.

[00:32:02] Speaker 00:
But the reason, as the Supreme Court said in Banks, because in the case of a judicial opinion, the judge, the court said, is in no sense the author.

[00:32:10] Speaker 03:
But why does it make a difference if the result of the incorporated standard is binding on people?

[00:32:18] Speaker 03:
Imposes mandatory, what difference does it make where it originated?

[00:32:23] Speaker 03:
It might mean that the government has committed a taking and has to pay for it.

[00:32:27] Speaker 03:
But why would you, what would allow a private party to put it in its boldest sense?

[00:32:35] Speaker 03:
Prohibit public access to a law.

[00:32:38] Speaker 00:
So first, I do think.

[00:32:42] Speaker 00:
I'll answer your honest question directly, but there really is no issue in this case about prohibition or even restriction on the public's access to the law.

[00:32:51] Speaker 00:
All of the standards at issue here are widely available, and there's no evidence in the record that anybody has ever had any problem finding any of these standards, and I think that makes sense.

[00:33:00] Speaker 00:
But with respect to your honest question,

[00:33:02] Speaker 00:
It goes to the way that copyright laws function here and I think it's also very important to take the incentive system that copyright establishes into account.

[00:33:11] Speaker 00:
The reason that the statutes that originate with being drafted by the government or regulations or judicial opinions

[00:33:19] Speaker 00:
Don't qualify for copyright is because there's no author in the sense of the copyright laws recognized.

[00:33:26] Speaker 00:
That's what banks says.

[00:33:27] Speaker 00:
The judge is in no sense the author because that's half of that's half of banks.

[00:33:32] Speaker 02:
Right.

[00:33:32] Speaker 02:
The other half of banks is that

[00:33:36] Speaker 02:
law is necessarily public.

[00:33:39] Speaker 02:
And that's always been understood to cover, at a minimum, statutes and judicial opinions.

[00:33:46] Speaker 02:
So take the case of a statute.

[00:33:48] Speaker 02:
Suppose the American Law Institute drafts a model code or a restatement or whatever, and a state legislature

[00:34:00] Speaker 02:
writes those words into a state statute.

[00:34:05] Speaker 02:
Is it really your position that members of the public can't freely copy that statute?

[00:34:14] Speaker 00:
I don't think the court needs to answer that question to resolve this case, but I will answer the question, but I don't think the court needs to.

[00:34:21] Speaker 02:
Assume that I think there's no difference between positive law enacted through statute and positive law enacted through regulation.

[00:34:30] Speaker 00:
Well, I think the American Law Institute certainly thinks that it retains a valid copyright in exactly that situation.

[00:34:39] Speaker 00:
That's why it offers the royalty-free license, but then it also says in its policies

[00:34:43] Speaker 00:
that any private entity that wants to republish the statute itself has to get a license from us and pay us appropriate royalties.

[00:34:50] Speaker 00:
And I would submit that is actually the background norm that operates here in this area and has for a very long time.

[00:34:57] Speaker 00:
There is a difference and there always has been a difference between laws that originate with the government.

[00:35:03] Speaker 00:
and be it codes, standards, whatever it is, that originate with private parties, private entities, and are original works of authorship that obtain copyrights at the moment that they are created.

[00:35:19] Speaker 01:
Those have always been treated as... But I think all of the briefs acknowledge

[00:35:24] Speaker 01:
that pretty much every local government incorporates either the National Electrical Code or the International Building Code.

[00:35:36] Speaker 01:
I think your brief discusses how the District of Columbia has incorporated one of the one or the other of those.

[00:35:46] Speaker 01:
So is it your position that if the District of Columbia printed the text

[00:35:54] Speaker 01:
published the text of that building code as part of the regulation that incorporated it without a license that they would be in violation of copyright?

[00:36:09] Speaker 00:
I think if there were no express license, there'd still be a good case under copyright law for there being an implied license in that situation.

[00:36:16] Speaker 00:
But I do think it's important to recognize that it's not an accident

[00:36:20] Speaker 00:
that the federal government ubiquitously and that is almost always at the state and local level they incorporate by reference.

[00:36:27] Speaker 00:
The reason that government entities do that is because they are trying to respect the copyright interest of the drafters of the creators of these standards and the reason they do that is because it is very important to maintain the incentive structure to ensure that these nonprofit organizations are able to earn the revenues to continue to engage in this kind of private standard setting

[00:36:47] Speaker 00:
activity on which the governments rely, because if it's not there, then the government's going to take that all on itself.

[00:36:52] Speaker 03:
Don't they have enough?

[00:36:54] Speaker 03:
You know, I saw that in your brief, but don't these organizations have it?

[00:36:58] Speaker 03:
Isn't their primary?

[00:36:59] Speaker 03:
They're not into this to make money.

[00:37:01] Speaker 03:
They're into this to get their standards incorporated into law.

[00:37:04] Speaker 03:
That's what their incentive is, isn't it?

[00:37:05] Speaker 03:
Well, I think their incentive is... That's what they want.

[00:37:09] Speaker 03:
Are you saying that their reason for being is to earn money on

[00:37:16] Speaker 00:
These are non-profit organizations.

[00:37:20] Speaker 00:
They exist to serve the public interest.

[00:37:23] Speaker 00:
And the way in which they do so is by putting the effort in to bring the expertise together to create these standards and codes.

[00:37:31] Speaker 00:
Of course, one of the goals is to have them incorporate into law, but not at all the only goal.

[00:37:36] Speaker 00:
And I do think that that's very important to understand that these standards have great private utility as well as public utility.

[00:37:42] Speaker 00:
But even if it were the case that the principal goal was to have these standards adopted by governments by reference, that doesn't change the calculus.

[00:37:50] Speaker 00:
As a statutory matter, these are original works of authorship that have protection under the copyright laws.

[00:37:54] Speaker 00:
There's nothing in the statute that extinguishes

[00:37:57] Speaker 00:
those rights upon incorporation by reference, and it would be a really terrible policy judgment to decide that incorporation by reference extinguishes because you're going to remove the economic incentive to create these standards.

[00:38:10] Speaker 01:
But Congress made a judgment to create a fair use defense under Section 107.

[00:38:17] Speaker 01:
So why isn't it fair use for someone as part of reproducing the text of a regulation if there is a standard that's been incorporated by reference?

[00:38:33] Speaker 01:
to reproduce the text of that standard as well.

[00:38:38] Speaker 01:
Why isn't that fair use?

[00:38:40] Speaker 00:
Well, Your Honor, I think there might be certain particular circumstances in which it would be a fair use, but fair use can't possibly, and for example, and it's in a scenario discussed in the earlier part of the argument in which

[00:38:53] Speaker 00:
a particular individual or group wants to advocate for a change in the law or advocate about what the law means.

[00:38:59] Speaker 00:
Of course, in those individual circumstances, using the text of the law of an incorporated standard would be a fair use.

[00:39:05] Speaker 00:
But that's vastly different from what we have here.

[00:39:08] Speaker 00:
I want to make a couple of broad points about fair use, but then I think it's important to walk through the specific factors in the statute.

[00:39:14] Speaker 00:
And with respect to the broad points, fair use has never been understood, and it really can't be understood to be a substitute for legislative revision.

[00:39:23] Speaker 00:
And that's essentially what's happening here.

[00:39:26] Speaker 00:
These are original works of authorship.

[00:39:28] Speaker 00:
There is nothing in the statute that says that they're categorically extinguished upon incorporation by reference.

[00:39:33] Speaker 00:
But the fair use position that my friends on the other side are advocating is just that, that as a categorical matter, incorporation by reference extinguishes.

[00:39:41] Speaker 00:
And I just think that's the

[00:39:43] Speaker 00:
job for a legislature for Congress to balance these competing interests, not for a court in fair use analysis.

[00:39:48] Speaker 00:
Second general overarching point, if you look at the specific kinds of uses that Congress identified in Section 107 that constitute fair use, scholarship, criticism, commentary, et cetera, there's nothing like what's going on here.

[00:40:02] Speaker 00:
Now, with respect to the four fair use factors, I think it's quite clear that this is not a transformative use in the sense that the Supreme Court defined it in Acuff-Rose.

[00:40:12] Speaker 00:
And what it is is a 100 percent substitutional use.

[00:40:16] Speaker 00:
What they want to do is take our standards

[00:40:19] Speaker 00:
which we make available for sale and make the exact same thing, 100% of it available for free.

[00:40:26] Speaker 00:
It's just a substitute.

[00:40:27] Speaker 00:
That's all it is.

[00:40:28] Speaker 00:
It's just a substitute for what we make available.

[00:40:30] Speaker 03:
What about factor two?

[00:40:33] Speaker 03:
What about the second factor?

[00:40:33] Speaker 00:
So factor two, I think the district court had it exactly right, that the nature of this copyright expression makes it particularly important

[00:40:42] Speaker 00:
to preserve its copyrighted status here against this kind of infringing use.

[00:40:48] Speaker 03:
The argument against that is that now that they're incorporated, they're now the law, so they're like fact.

[00:40:59] Speaker 00:
With respect to the question of fair use, Your Honor, I think I'm happy to address that question of whether under 102B these are un-copyrightable facts.

[00:41:07] Speaker 00:
I think that's completely wrong.

[00:41:09] Speaker 00:
Let me address that directly and then I'll go back to the fair use analysis.

[00:41:12] Speaker 03:
That's my fair use question.

[00:41:14] Speaker 03:
I have a strong focus on difference between.

[00:41:17] Speaker 03:
fact than fiction.

[00:41:19] Speaker 03:
They're no less, but... I didn't mean you to go back.

[00:41:23] Speaker 00:
So with respect to the nature of the copyrighted work here, the district court had it exactly right.

[00:41:28] Speaker 00:
There's a huge public interest that is served by maintaining the incentive structure for the creation and updating of these kinds of works that goes beyond the normal public interest in the incentive structure of the copyright laws, precisely because government entities, federal, state, and local rely on these so much.

[00:41:46] Speaker 00:
So I do, I do think the district court had exactly right with respect to that.

[00:41:49] Speaker 03:
So this, this factor to, let me just ask you a broad question about, about this.

[00:41:54] Speaker 03:
So am I wrong to, would I be wrong to say that at its core, this case turns on whether these incorporated, these standards incorporated by reference are or are not the law.

[00:42:09] Speaker 03:
If they're not,

[00:42:11] Speaker 03:
then it seems to me you win on all these issues.

[00:42:15] Speaker 03:
That is, whether it's copyrightable, I mean, whether the copyright lasts, whether this fair use merger seems to me, if they're not the law, as you argue, then you win.

[00:42:27] Speaker 03:
If they are the law,

[00:42:29] Speaker 03:
then assume we don't agree with you.

[00:42:32] Speaker 03:
Assume we think that they are, particularly that an incorporated standard that imposes a mandatory, like for example, a standard, a situation where say the Clean Air Act says regulated parties can comply with this provision by following the technical rules in standard X. And that's the only way.

[00:42:58] Speaker 03:
Now, let's assume we think that is the law, that that is, as the Federal Register Office said, it has the rule of law because it's been incorporated.

[00:43:11] Speaker 03:
Now, if we think that, then what do you think about these sort of series of issues we've been discussing?

[00:43:19] Speaker 03:
Number one, does it lose its copyright?

[00:43:22] Speaker 03:
Or number two, in the alternative, is it fair use?

[00:43:26] Speaker 00:
So here's how I'd answer your honest question.

[00:43:30] Speaker 00:
That if these provisions weren't law,

[00:43:35] Speaker 00:
They don't get the first base.

[00:43:36] Speaker 00:
I agree.

[00:43:37] Speaker 00:
Right.

[00:43:38] Speaker 03:
That was my question.

[00:43:38] Speaker 00:
But even if one considers these provisions incorporated by reference to be law, that's the beginning of the analysis, not the end of the analysis.

[00:43:49] Speaker 00:
Even if they are law in the sense that they're now binding, as some of them are, the question remains whether there's anything in the Copyright Act

[00:44:01] Speaker 00:
that extinguishes the copyright that validly existed in those standards when they were first fixed in tangible medium.

[00:44:08] Speaker 00:
And there's nothing in the statute that extinguishes the copyright.

[00:44:14] Speaker 00:
The federal government in particular behaves in a manner that indicates that they very clearly don't think that the copyright is extinguished.

[00:44:21] Speaker 00:
In fact, if you look at the reason the federal government says it incorporates by reference rather than verbatim is precisely to preserve the incentive structure of copyright law so that the federal government can continue to rely on the private standard setting organizations

[00:44:35] Speaker 00:
and the incentive system that the copyright law creates for them to do what they do.

[00:44:40] Speaker 00:
And so there's nothing in the text.

[00:44:43] Speaker 00:
I mean, they make this argument about 102B, but I think it's quite clear that 102B applies only at the time

[00:44:50] Speaker 00:
that the work is fixed in a tangible medium and that it functions in tandem with 102A.

[00:44:56] Speaker 00:
102A says you get copyright in an original work of authorship and 102B says that the copyright that subsists in that original work doesn't extend the underlying ideas, etc.

[00:45:07] Speaker 00:
But that's not an extinguishment provision.

[00:45:10] Speaker 00:
It certainly doesn't apply many years after the fact.

[00:45:13] Speaker 00:
There's no textual basis.

[00:45:15] Speaker 00:
And so then I do think, and I apologize.

[00:45:17] Speaker 00:
No, no.

[00:45:19] Speaker 03:
Let me just finish the question.

[00:45:21] Speaker 03:
So you have basically the same answer to the fair use.

[00:45:25] Speaker 03:
Even if it's the law, then your answer is the same.

[00:45:31] Speaker 03:
Is it the same?

[00:45:32] Speaker 00:
I think the answer is that you have to work through the fair use analysis.

[00:45:38] Speaker 00:
Working through the fair use analysis, of course you take into account the fact that this has been incorporated by reference into the law.

[00:45:44] Speaker 00:
But even with respect to that, I think the more powerful consideration cuts in our direction in that the whole system is set up

[00:45:53] Speaker 00:
So that private standard setting organizations, private non-profits pursue the public interest, create these standards, and government can then rely on those standards rather than try to develop all that expertise in-house, which is what they would have to do if you killed off this system by extinguishing copyright whenever anything is incorporated by reference.

[00:46:12] Speaker 00:
So with respect to the nature of the work,

[00:46:15] Speaker 00:
cuts in our favor.

[00:46:16] Speaker 00:
With respect to the third factor, no doubt 100% cuts in our favor.

[00:46:20] Speaker 00:
Now the fourth factor, this issue of effect on the market.

[00:46:23] Speaker 03:
Why does the third factor cut in your favor?

[00:46:25] Speaker 00:
Because they take 100% of the works.

[00:46:26] Speaker 03:
No, but if it's the law.

[00:46:28] Speaker 03:
Isn't that the only way they can do it?

[00:46:31] Speaker 00:
Well, it's the only way they can do it, if they can do it.

[00:46:34] Speaker 00:
But the question is whether they can do it.

[00:46:36] Speaker 00:
Well, we're fair use now, right?

[00:46:40] Speaker 00:
We've moved beyond the copyright question.

[00:46:42] Speaker 00:
But the question is whether taking 100% of the law is fair use.

[00:46:46] Speaker 03:
Well, if it's a one-sentence law and they use the whole sentence, the only way they can repeat it is to use the whole sentence.

[00:46:52] Speaker 03:
They think it's true if it's 100 sentences.

[00:46:54] Speaker 00:
I guess what I'm saying, Your Honor, is to, you know, I'd suggest that the right way to think about it is to refer back to the reasons that Congress gave for recognizing the fair use privilege, which is, it's a privilege, it's an affirmative defense.

[00:47:05] Speaker 00:
It exists for particularized uses.

[00:47:06] Speaker 00:
You want to make copies for use in your classroom.

[00:47:09] Speaker 00:
You want to criticize the law, so you quote it.

[00:47:12] Speaker 00:
Those sorts of things.

[00:47:13] Speaker 00:
Of course we agree that there's fair use in all those circumstances.

[00:47:16] Speaker 01:
What is the material difference between making copies to teach students and making copies to teach the public what the law is?

[00:47:24] Speaker 01:
If if if Harry homeowner is being told by some contractor well the building code says you know I got to tear all of this down and rebuild it and Harry homeowner wants to know what the building code really says

[00:47:41] Speaker 01:
why isn't it just as educational for for that building code to be reproduced in its entirety so that that member of the public can understand what it what it means two points on that your honor first the the

[00:48:02] Speaker 00:
that homeowner can go online and find the building code and read only format on our websites.

[00:48:08] Speaker 00:
It can do that.

[00:48:09] Speaker 00:
So it's not like there isn't access to it.

[00:48:11] Speaker 01:
That's nice that your client, you know, in its good graces is doing that, but why shouldn't he be able to go to the DC government's website and find the same thing?

[00:48:26] Speaker 00:
Well, if the D.C.

[00:48:27] Speaker 00:
government had reprinted it verbatim, you would be able to, but again, I think that would be covered by a license.

[00:48:31] Speaker 00:
But the problem here is, in order to, this is, you know, fair use is an equitable doctrine.

[00:48:36] Speaker 00:
It's an affirmative defense.

[00:48:38] Speaker 00:
And it would seem to me that if you want to rely on a lack of access, you've got to demonstrate a lack of access in order to justify fair use.

[00:48:44] Speaker 00:
And there is nothing.

[00:48:45] Speaker 01:
What says that there has to be a proof of lack of access before fair use is a legitimate defense?

[00:48:53] Speaker 00:
What case says that?

[00:48:55] Speaker 00:
I guess what I'm saying, Your Honor, is that if your argument is

[00:48:59] Speaker 00:
that this should be considered fair use because it's necessary for people in the public to gain access, then in order to establish that it isn't affirmative defense, they've got to show a lack of access, and they didn't do that.

[00:49:12] Speaker 00:
But I do think there are more particularized indications in the statute itself that go to your honest question about teaching.

[00:49:17] Speaker 00:
For example, I think what I would suggest is to look at section 110 sub 2 of the statute, where Congress specifically went through what kinds of digital copying and digital availability is allowed under the Copyright Act for making materials available for teaching purposes.

[00:49:36] Speaker 00:
There are all kinds of restrictions, there are all kinds of limitations.

[00:49:39] Speaker 00:
Once again, I do think this is another situation of my friends on the other side trying to invoke fair use to swap out the judgment, the balancing of policy interests that Congress made and substitute their own.

[00:49:52] Speaker 00:
That's a legislative judgment.

[00:49:53] Speaker 00:
It's not the kind of thing that should be accomplished under fair use.

[00:49:57] Speaker 00:
And with respect to the market, the effect on the market, several things about that if I could.

[00:50:02] Speaker 00:
First, again, this is an affirmative defense.

[00:50:05] Speaker 00:
The burden is on them.

[00:50:07] Speaker 00:
They have to make a record showing no adverse effect on the market.

[00:50:10] Speaker 00:
They introduced nothing.

[00:50:11] Speaker 00:
So they've established nothing with respect to that factor.

[00:50:15] Speaker 00:
Second, we did submit expert declarations showing that we would suffer very substantial erosion of revenues if their practices continued.

[00:50:25] Speaker 00:
They did not rebut those.

[00:50:27] Speaker 00:
Third, with respect to Your Honor's question about the VEC case and the effect,

[00:50:33] Speaker 00:
on the market after VEC.

[00:50:34] Speaker 00:
A couple of things about that.

[00:50:35] Speaker 00:
Of course, a key point about VEC, and Judge Katz has raised this earlier, is that the court was very careful to limit its holding.

[00:50:43] Speaker 00:
And if you look at pages 803 and 804 of the VEC decision, if the court doesn't mind, I'm just going to quote it because I do think it's highly relevant to this exact question of effect on the market and fair use.

[00:50:55] Speaker 00:
The limits of this holding must be explained.

[00:50:58] Speaker 00:
several organizations fear that their copyrights may be vitiated simply by the common practice of governmental entities incorporating their standards and laws and regulations and then it cites the OMB circular A119 and then says this case does not involve references to standards instead it concerns the wholesale adoption of a model code.

[00:51:15] Speaker 00:
Now the reason the court

[00:51:16] Speaker 00:
put that provision in that said that is because we all came in as a meekie in that case and said hey you're going to have this effect on our standards and the court said no we're not and so the system has continued to operate in the normal manner.

[00:51:29] Speaker 02:
The question whether the reasoning in the first part of the VAC opinion which is the law is in the public domain

[00:51:38] Speaker 02:
Whether that reasoning covers the private standard setters is at a minimum open to debate.

[00:51:47] Speaker 02:
And when the Solicitor General opposed CERT in, is it VEC or VAC?

[00:51:56] Speaker 02:
When the SG opposed CERT in VEC, he told the Supreme Court that even if the Fifth Circuit decision were understood to cover

[00:52:07] Speaker 02:
the private standard setters, this prediction that the sky will fall is unrealistic.

[00:52:16] Speaker 02:
So why shouldn't we take some, why shouldn't we give some weight to the views of that august government official?

[00:52:25] Speaker 00:
I'm shudder to say this, but the Solicitor General is not always right, Your Honor.

[00:52:29] Speaker 00:
And I actually do think there's a point I'd like to make, and I have to go beyond what's been cited in the record, but it is a public

[00:52:37] Speaker 00:
In the Oracle case, which we cite in our brief, the Federal Circuit Oracle case, which was a question about whether 102B analysis applies only at the time, the initial moment that copyright is granted, or whether it provides continuing authority,

[00:52:56] Speaker 00:
Google sought cert in that case, Supreme Court asked for the views of the United States.

[00:53:01] Speaker 00:
There is a brief by the Solicitor General in that case which says about 102B exactly what we are saying about 102B here, which is that it applies at the initial stage only.

[00:53:10] Speaker 00:
So that eliminates the only statutory – that would be a disagreement with the majority opinion in the Fifth Circuit on that issue of 102B.

[00:53:19] Speaker 00:
That's the only statutory basis.

[00:53:22] Speaker 00:
for concluding that the copyright is extinguished.

[00:53:24] Speaker 00:
Now, with respect to the broader question of whether law is invariably in the public domain, a couple of things about that.

[00:53:30] Speaker 00:
First, I think as Your Honor's question pointed out earlier, you can decide this case without expressly disagreeing with VEC because the standards here are on the other side of the line, of the VEC line.

[00:53:43] Speaker 00:
That said, we don't think VEC is correct about that.

[00:53:46] Speaker 00:
We think that the norm that Bec was pointing to, drawn from the Banks case, is a norm that says that when government creates in the first instance, there's no author, and therefore there's no original work of authorship within the meaning of the Act.

[00:54:02] Speaker 02:
But when when there is a valid copyright in a banks, banks was a state judge, right?

[00:54:09] Speaker 02:
Correct.

[00:54:09] Speaker 02:
And the state law specifically not only authorized but required the reporter to try to get the copyright.

[00:54:17] Speaker 02:
which would seem to suggest the state wanted their officials to get additional compensation, not simply their salaries, but whatever value the Ohio reports would have had.

[00:54:29] Speaker 00:
Yes, that's true, Your Honor, but the way in which the court and banks analyze the cases, I read it, is it said we're interpreting the copyright laws in effect now, the federal copyright laws, and interpreting the federal copyright laws

[00:54:41] Speaker 02:
But it has to be something more than simply the incentives on members of Congress and federal judges is sufficient and they shouldn't get extra compensation for their official duties.

[00:54:55] Speaker 02:
Because Ohio wanted those officials to get extra compensation.

[00:55:02] Speaker 00:
The court interpreting the copyright laws as they existed then made a judgment and it described the judge as being in no sense the author for copyright purposes.

[00:55:12] Speaker 00:
In that situation, whatever the state may want, as a matter of federal copyright law, there's no author, and therefore there's no original work of authorship.

[00:55:19] Speaker 00:
That can't answer the question here where there is an author, there is an original work of authorship, the copyright is valid, and the question is whether it is extinguished.

[00:55:28] Speaker 00:
And you have to answer that by reference to the 1976 act, and that's a judgment for Congress to make.

[00:55:34] Speaker 02:
So can we talk about 102?

[00:55:38] Speaker 02:
The list of things that can be copyrighted is original works, including literary, musical, dramatic, pantomimes, et cetera.

[00:55:51] Speaker 02:
And the list of things that can't be copyrighted include ideas, procedures, processes, systems, concepts, principles, et cetera.

[00:56:02] Speaker 02:
If you ask me, is a code of law more like the first list or more like the second list?

[00:56:10] Speaker 02:
Sure sounds to me it's more like the second list.

[00:56:13] Speaker 00:
Respectfully, Your Honor, I don't think that's the way one reads the statute.

[00:56:17] Speaker 00:
I think the federal explains this and I think the invitation brief of the United States and Oracle explains this as well.

[00:56:24] Speaker 00:
The way the statute works is different.

[00:56:26] Speaker 02:
It's... Are those cited in the material somewhere?

[00:56:30] Speaker 00:
The government's brief, as I said, the government's invitation brief in Oracle was not, but the Oracle case itself is cited in our brief and discussed.

[00:56:37] Speaker 00:
So the way the statute works, the way 102 works, 102A and B work together.

[00:56:43] Speaker 00:
102A says copyright shall subsist in an original work of authorship.

[00:56:48] Speaker 00:
And 102B says, that which subsists shall not extend to these things.

[00:56:55] Speaker 00:
It's not creating categories of things that can be copyrighted and categories of things that cannot be copyrighted.

[00:57:01] Speaker 02:
Well, sure it is.

[00:57:02] Speaker 02:
It's saying categorically that ideas, procedures, processes, systems, principles, concepts can't be copyrighted.

[00:57:10] Speaker 00:
But the particular expression of each of those things can be copyrighted.

[00:57:15] Speaker 02:
Okay, so when a standard setting organization suggests in its code, whatever, the speed limit for this kind of road should be 55 miles an hour and for that kind of road should be 65 miles an hour.

[00:57:33] Speaker 02:
What's the expression

[00:57:37] Speaker 02:
What's the expression that's being protected as opposed to just the judgment about what the standard should be?

[00:57:44] Speaker 00:
So I suppose one could make in the case of some standards, I don't really don't think it applies to the standards at issue here, that there's a lack of originality and therefore under 102 qualify as an original work.

[00:57:58] Speaker 00:
But that's the way one would analyze the question that Your Honor is posing.

[00:58:02] Speaker 02:
I just read it, sorry, I just read it as the group says, whatever, the speed limit should be 55 or if you go into the hospital for such and such procedure, you should stay a minimum of three days and such and such four days and so on, right?

[00:58:19] Speaker 02:
What's important

[00:58:22] Speaker 02:
is the idea of where you're setting the standard not the particular words whether they say must be three days shall be three days particular expression of the standard is what

[00:58:37] Speaker 00:
is afforded copyright protection.

[00:58:42] Speaker 00:
What that means, what 102B operates is to say that doesn't mean because you have said that you practice this, that the way to do this is X, that

[00:58:53] Speaker 00:
you get that nobody can do X without getting a license from you.

[00:58:57] Speaker 00:
That's what 102B is trying to cover.

[00:59:00] Speaker 00:
And it also means that because you have a copyright in the way you said do X, you can't invoke your copyright to prevent somebody else from

[00:59:09] Speaker 00:
saying do X with a different form of words, a different form of expression, or say don't do X, do something else instead.

[00:59:18] Speaker 00:
That's what 102B is about.

[00:59:20] Speaker 00:
And again, my friends on the other side have not made any argument of this nature in this case.

[00:59:24] Speaker 00:
That would all go to the question of whether these are original works of authorship.

[00:59:28] Speaker 00:
in which about a valid copyright vest at when fixed and attention well they but they are they they do argue whether law can fairly be described as ideas and procedures and concepts and so on that doesn't seem to me that's textually a stretch but i do think it in the sense but i think the problem is in the following thing in the following sense that at the moment that these codes or standards were created by private entities

[00:59:59] Speaker 00:
They were original works of authorship, entitled to a copyright.

[01:00:04] Speaker 00:
Now, that copyright doesn't extend to the underlying idea that it's a good idea to have electrical safety standards.

[01:00:10] Speaker 00:
It doesn't extend to the things that one OB says it doesn't extend to.

[01:00:16] Speaker 00:
But it exists.

[01:00:17] Speaker 00:
It's a valid copyright.

[01:00:18] Speaker 03:
But does it extend to, it doesn't extend to, just to stick with Judge Katz's example, if the standard said you have to stay in the hospital for three days,

[01:00:32] Speaker 03:
the defendant here could have put that on their website, right?

[01:00:36] Speaker 03:
The standard says three days.

[01:00:37] Speaker 03:
Your objection just is that they copied your version of it.

[01:00:40] Speaker 03:
Correct.

[01:00:41] Speaker 03:
That's correct.

[01:00:42] Speaker 00:
That's your position.

[01:00:43] Speaker 00:
That they copied the standard.

[01:00:44] Speaker 00:
And so they can certainly comment on it.

[01:00:47] Speaker 00:
They can say it in different words.

[01:00:48] Speaker 00:
They can do all those things.

[01:00:50] Speaker 02:
I'm not an expert in copyright, but I just am having a very strong intuition that what is important about that

[01:00:58] Speaker 02:
is the three days and not the precise words through which that standard is expressed.

[01:01:05] Speaker 00:
I appreciate that, Your Honor, but... So tell me why I'm wrong.

[01:01:09] Speaker 00:
Because I think that what you have to think about it, again, temporarily, at the time that these standards were created, copyright validly vested in them.

[01:01:18] Speaker 00:
And what copyright validly vested in was the expression of those that the entities chose in order to articulate these standards.

[01:01:26] Speaker 00:
There's a valid copyright in that.

[01:01:28] Speaker 00:
At the moment it was created, there's no argument that the provisions of 102B that says that copyright which subsists in the original work of authorship shall not extend to the things listed 102B.

[01:01:42] Speaker 00:
There's no argument at that moment that there was no copyright

[01:01:47] Speaker 00:
because you were, because you were doing one of the things, extending to one of the things that 102B says you can't extend to.

[01:01:56] Speaker 02:
The copyright... They haven't made the argument, but I'm not sure why it would be obviously wrong.

[01:02:02] Speaker 02:
Well, then I think... Suppose the standard is just a list of

[01:02:07] Speaker 02:
hospital procedures and number of days, you have to stay in the hospital.

[01:02:14] Speaker 02:
And it's just two columns.

[01:02:16] Speaker 00:
In a particular case, the expression has to be original to be copyrighted.

[01:02:21] Speaker 00:
So in a particular case, somebody might be able to make an argument about a particular standard that's not original.

[01:02:25] Speaker 00:
I don't think you can make the argument about the extraordinary body of work that's at issue here.

[01:02:30] Speaker 00:
But that's the kind of argument you have to make.

[01:02:33] Speaker 00:
And it seems to me that that really, but to say that as a categorical matter, from the moment of creation, not incorporation, but from the moment of creation,

[01:02:45] Speaker 00:
that these kinds of standards and codes are not eligible for copyright in the first place would be an even more profound transformation than my friends on the other side are asking for.

[01:02:56] Speaker 03:
I don't think, at least that's not the way I was reacting to this line of questioning.

[01:03:02] Speaker 03:
What I was curious about is,

[01:03:05] Speaker 03:
So a lot of these standards are highly technical.

[01:03:09] Speaker 03:
They provide extremely technical steps for, say, measuring a particular type of oil to be sure that it complies with federal standards, right?

[01:03:21] Speaker 03:
Yes.

[01:03:22] Speaker 03:
And what the defendant here has done is to reprint your version of that.

[01:03:26] Speaker 03:
Now, suppose instead of reprinting it, suppose they didn't use the logo, suppose they didn't use the word mark,

[01:03:32] Speaker 03:
Suppose they didn't use the exact words, but they wrote a document that's comparable in length and said, here's what the standards are referred to in a particular code require.

[01:03:45] Speaker 03:
And they described in detail each of those requirements for measuring the oil content.

[01:03:52] Speaker 03:
That would not be a violation of your copyright, right?

[01:03:56] Speaker 00:
It would depend on the particular circumstances, but I think it would depend on just how close it came to the verbatim copying.

[01:04:04] Speaker 00:
But to the extent there's a significant difference, then there's going to be a strong argument that they're not violating the copyright in the first place.

[01:04:11] Speaker 03:
But by significant difference, you just mean writing it in a different way.

[01:04:14] Speaker 03:
They can use the precise standards, right?

[01:04:17] Speaker 00:
They can describe the standards using different language.

[01:04:20] Speaker 00:
What they can't do is reprint the code, because that's what's copyrighted.

[01:04:24] Speaker 03:
Well, suppose you're supposed to go back to Judge Katz's questions.

[01:04:27] Speaker 03:
You have to stay in the hospital for three days.

[01:04:29] Speaker 03:
Can they not use three days?

[01:04:31] Speaker 00:
No, I think they could describe the fact that the standard says three days, but again... More than two and less than four?

[01:04:37] Speaker 03:
Is that what they'd have to say?

[01:04:38] Speaker 00:
No, I think they could say three, but I guess the problem here is the suggestion that these standards don't qualify for... No, I'm not asking... That's not my question.

[01:04:49] Speaker 03:
I'm intrigued with your point here.

[01:04:51] Speaker 03:
that the defendant could have accomplished everything at once simply by summarizing what your standards do.

[01:05:01] Speaker 03:
And I want to know whether that's really true.

[01:05:03] Speaker 03:
I mean, if they really did it, indeed, because you've read these.

[01:05:06] Speaker 03:
They're highly technical.

[01:05:08] Speaker 03:
And if they had just written using their own words, but ended up repeating exactly what the standards are, because that's the only way to do it, that they wouldn't have been subject to copyrights.

[01:05:18] Speaker 00:
I'm not trying to dodge the question.

[01:05:20] Speaker 00:
I just think it's very hard to answer at the level of abstraction.

[01:05:24] Speaker 00:
You have to look at what they did and how they did it.

[01:05:27] Speaker 00:
But I think that it's not going to be invariably the case that it's a copyright violation.

[01:05:31] Speaker 00:
Of course, that's not what they did.

[01:05:32] Speaker 00:
And I really think the critical, critical point here is that we have a long-standing incentive structure in place that government at all levels relies on to ensure that there is adequate funding of these nonprofit organizations

[01:05:46] Speaker 00:
that create and update these standards.

[01:05:50] Speaker 00:
And whichever way you cut it, if you agree with my friends on the other side under 102,

[01:05:57] Speaker 00:
under fair use, under this idea of a background norm, then what you're going to be doing is upending that incentive structure, upending it and replacing it with nothing.

[01:06:09] Speaker 00:
And I think it's a critical.

[01:06:10] Speaker 02:
So why is that the case?

[01:06:12] Speaker 02:
Suppose we agree with you that the copyright was validly created

[01:06:20] Speaker 02:
At the moment, the standard was written pre-incorporation, right?

[01:06:26] Speaker 02:
But we also think that the law has to be freely accessible in the strong sense of that proposition.

[01:06:36] Speaker 02:
Why isn't the way to harmonize those two to say that the government might have affected a taking when it incorporated the, it borrowed the private work that your clients created and it has lots of value and the government had great reasons for doing it?

[01:06:59] Speaker 02:
But they're freeloading off of someone else's efforts, and that's a classic case under takings law where the public should just pay for that.

[01:07:08] Speaker 00:
So I don't think takings can be the answer.

[01:07:11] Speaker 00:
And I think one way to think about why that's the case, and several points I want to make about that.

[01:07:16] Speaker 00:
If I could, I realize I've been up here a long time.

[01:07:19] Speaker 00:
But I think one key point about it is it's not just the federal government, of course.

[01:07:25] Speaker 00:
It's every state government, every county government, every municipal government.

[01:07:29] Speaker 00:
So let's say Montgomery County incorporates the National Electric Code by reference, and that taking, as Your Honor posits, occurs.

[01:07:38] Speaker 00:
Is Montgomery County, at that point, under the theory of my friends on the other side, that the code is now free for everybody in the universe to copy without worrying about infringement.

[01:07:51] Speaker 00:
So is Montgomery County on the hook for the entire lost value for the whole measure of that?

[01:07:56] Speaker 00:
What if it's, how do you decide the difference between Montgomery County and Savoy, Texas?

[01:08:01] Speaker 00:
Savoy, Texas is one of the towns that issued, in fact, that's a town of about 800 people.

[01:08:06] Speaker 00:
They incorporate the National Electric Code by reference, and they're going to be liable for taking, because now everybody in America can freely copy it because they've incorporated it by reference.

[01:08:18] Speaker 00:
That's just a totally inadministrable system, and we've got to go to state court all around the country.

[01:08:23] Speaker 00:
We won't even know a lot of the time which municipalities and counties have incorporated our standards by reference.

[01:08:29] Speaker 00:
We do our best to keep track, but we don't have ubiquitous knowledge about that.

[01:08:33] Speaker 00:
And I think what this goes to is a critical point.

[01:08:35] Speaker 00:
As I started to say earlier, they're really putting this court in an all or nothing position here.

[01:08:41] Speaker 00:
They're saying copyright's extinguished and then what?

[01:08:47] Speaker 00:
And I think that if Congress had really intended that copyright be extinguished when a standard is incorporated by reference, you would see some mechanism in the act itself, analogous to the kinds of compulsory license mechanisms that Congress has put in place in other situations,

[01:09:04] Speaker 00:
to ensure that there's fair compensation to the non-profit standards.

[01:09:09] Speaker 03:
There's no evidence that this question ever came to Congress's attention when it passed the Copyright Act?

[01:09:16] Speaker 00:
There isn't specific evidence, but there is a very long-standing practice, and I do think that the 1995 statute, the National Technology Transfer and Advancement Act,

[01:09:26] Speaker 00:
is really quite relevant here.

[01:09:28] Speaker 00:
That's a statute that instructs federal agencies that whenever practicable to incorporate these private standards by reference.

[01:09:34] Speaker 03:
But same question.

[01:09:35] Speaker 03:
When Congress passed that, was it aware of the copyright issue?

[01:09:39] Speaker 00:
So the answer is there's no reason to think it was.

[01:09:43] Speaker 00:
At that point, the vet case hadn't been decided.

[01:09:44] Speaker 00:
So there was, at that point, literally zero law suggesting that there would be any issue with respect to the copyright.

[01:09:49] Speaker 00:
But I think if you take a half a step back and think about it, that Congress is making a judgment here that is

[01:09:56] Speaker 00:
strongly in the national interest to rely on this process.

[01:10:01] Speaker 00:
It's inconceivable that they would have done so and therefore encouraged the federal agencies to adopt as many of these standards as they could feasibly adopt.

[01:10:11] Speaker 00:
It's inconceivable that they would have

[01:10:14] Speaker 00:
if with the knowledge that taking that step would result in extinguishing all the copyrights that they're telling the federal agencies that they ought to rely on.

[01:10:22] Speaker 00:
They would have killed off the very system that they're saying the federal government ought to rely on.

[01:10:27] Speaker 00:
So while there isn't, you're honest, correct, there isn't any specific evidence that they considered this specific issue.

[01:10:32] Speaker 00:
It's just completely incompatible with what they did.

[01:10:34] Speaker 01:
You said earlier that in response to my question about, well, what if the District of Columbia wants to publish

[01:10:43] Speaker 01:
the National Building Code or the National Electrical Code, perhaps there's some sort of implied license.

[01:10:53] Speaker 01:
Then if it's not fair use for anyone to read

[01:11:03] Speaker 01:
to publish the standard, then why isn't it fair use at least for the government to do so?

[01:11:11] Speaker 00:
It might be, Your Honor.

[01:11:12] Speaker 00:
I think the license, you know, the either express or implied license is going to take care of the vast majority of those situations.

[01:11:17] Speaker 00:
Maybe there's a situation that doesn't.

[01:11:19] Speaker 00:
I think the government could make a claim of fair use, but that doesn't open the door to everybody else to come in and make copies in that situation.

[01:11:26] Speaker 00:
That's a totally different calculus of interest here.

[01:11:28] Speaker 00:
And just to wrap up, I really do think that the judgment that my friends and I are asking this court to make is essentially a legislative judgment.

[01:11:40] Speaker 00:
There is a very significant long-standing system here in which regulations are incorporated by reference with an understanding

[01:11:50] Speaker 00:
that does not extinguish their copyright status because that's the system that we have.

[01:11:57] Speaker 00:
And if that system's going to change, Congress should change it.

[01:12:00] Speaker 00:
Thank you.

[01:12:00] Speaker 03:
All right, thank you.

[01:12:03] Speaker 03:
Ms.

[01:12:03] Speaker 03:
McChary, you used up all your time, but we'll give you five minutes.

[01:12:06] Speaker 03:
And maybe you could start out by saying, by answering this, Mr. Barrelli's argument that you're asking us to make a legislative judgment here.

[01:12:18] Speaker 03:
and disrupt this system that's been in place for all these years and has enormous public benefit.

[01:12:24] Speaker 05:
I would submit, Your Honor, that there's an even longer system in place in this country that respects that, and this is stated in the Boca case very nicely at page 734, that recognizes that the citizens are the authors of the law because law derives its authority from the consent of the governed.

[01:12:44] Speaker 05:
And I promise I won't quote any more after that, but I thought it was a...

[01:12:48] Speaker 05:
animates really much of what's happening in this case.

[01:12:51] Speaker 05:
And I think that principle, as stated by the First Circuit there, animates doctrines that predated any of the national technology trends.

[01:13:02] Speaker 05:
It animates the edicts of government doctrine, which goes back to 1895 and arguably a good deal earlier.

[01:13:09] Speaker 03:
states the same principle that it limited its holding to building codes that are completely incorporated to avoid just this kind of case.

[01:13:21] Speaker 05:
What we're arguing here is what VEC should be understood to extend, and its approach should be understood to extend just a tiny bit further to laws that are expressly incorporated by reference.

[01:13:33] Speaker 05:
And that's the language I want to keep coming back to.

[01:13:35] Speaker 05:
I don't mean to be a broken record about it, but it does make a difference that that's what we're talking about here.

[01:13:40] Speaker 05:
The plaintiffs in this case have made

[01:13:42] Speaker 05:
a great deal about the thousands of standards that are potentially at issue there, but that's not actually true.

[01:13:47] Speaker 05:
They create thousands of standards, and that's good for them.

[01:13:50] Speaker 05:
But it's actually a very, very tiny subset of those standards that are actually incorporated by reference into law, and many of them are now outdated as standards.

[01:14:00] Speaker 05:
which goes to the incentives question.

[01:14:02] Speaker 05:
So one of the things that that court did say, quoting Professor Goldstein, it's hard to imagine an area in which copyright incentives are needed less.

[01:14:13] Speaker 05:
What we have here is groups of volunteers coming together to create standards, motivated by all kinds of reasons, but mostly motivated by the idea that they're going to make the world a safer place.

[01:14:24] Speaker 05:
They come together, they volunteer their work for free,

[01:14:27] Speaker 05:
So really this is a place where copyright incentives are needed hardly at all.

[01:14:35] Speaker 05:
Last point that I don't want, I can speak to whatever you want, but I would be remiss in sitting down without pointing out the third point that I didn't have a chance to get to earlier, which is as discussed in detail in our briefs, we're talking here about a permanent injunction against my client against sharing

[01:14:55] Speaker 05:
And one of the concerns that we have in this case is we don't think that the district court did what was forbidden by eBay, which is go immediately from a finding of infringement to the conclusion that a permanent injunction was appropriate, largely ignoring the very important countervailing public interest, which we've talked about here today, and I don't think I need to restate them, but I think we have a situation here where we have a prior restraint on my client's speech.

[01:15:22] Speaker 05:
And that is of deep concern to us and I think has a very negative effect on the rest of the world because what my client was doing was taking law that is largely inaccessible.

[01:15:34] Speaker 05:
I think the notion that the reading room suffice

[01:15:37] Speaker 05:
to make the law accessible.

[01:15:39] Speaker 05:
I would urge you to actually go to some of those reading rooms or you could just go to the record and you will find that there's all kinds of walls and barriers in between an ordinary person actually accessing the laws.

[01:15:51] Speaker 05:
They're hard to find.

[01:15:52] Speaker 05:
You have to agree to a contract, you have to provide your email and all kinds of information, and then you get access to a PDF copy.

[01:16:00] Speaker 05:
Now imagine if you were trying to access a judicial opinion that way.

[01:16:02] Speaker 01:
Does it matter for your incorporation argument whether it was willing or consensual incorporation versus just the legislature or the executive thinking that this is a good standard, so we're going to adopt it?

[01:16:20] Speaker 05:
Well, certainly what happens here is it's welling.

[01:16:22] Speaker 05:
So we have ample evidence in the record that the organizations that are part of this case actively participate and solicit having their standards incorporated by reference for a multitude of reasons because it leads to... But if we're writing a ruling, are you saying then that we limit it then to welling incorporation versus

[01:16:46] Speaker 01:
unwilling incorporation.

[01:16:48] Speaker 01:
That falls outside the scope of losing your copyright protection.

[01:16:53] Speaker 05:
Well, what I would urge the court to do is leave it for future courts to decide when we've crossed the line from a willing incorporation versus an unwilling incorporation.

[01:17:04] Speaker 05:
But the facts that are presented here

[01:17:06] Speaker 05:
we have very willing and active participation in the incorporation process.

[01:17:11] Speaker 03:
Under your theory, I thought your answer to Judge Wilkins would have been, it doesn't make any difference.

[01:17:16] Speaker 03:
It's the law.

[01:17:18] Speaker 05:
Well, that's certainly true, and I would take you back to what we began with, but I... So why are you giving your theory of this case?

[01:17:26] Speaker 03:
Why would you want to leave that question open?

[01:17:29] Speaker 05:
Because that's the question that's presented on the facts of this case.

[01:17:32] Speaker 05:
And I think given that we have now four cases that have tried to tackle this issue in different kinds of ways.

[01:17:41] Speaker 03:
Excuse me, are you saying that every one of the standards that were incorporated that are referred to in the summary judgment proceedings, every one of those were developed for purposes of incorporation?

[01:17:51] Speaker 05:
What I'm saying is that every one of them was expressly incorporated by reference, and what I'm also saying is that the standards organizations here actively solicit and participate in the incorporation process.

[01:18:03] Speaker 03:
And what's your view about the National Technology Transfer and Advancement Act?

[01:18:10] Speaker 05:
How do we think about that?

[01:18:12] Speaker 05:
There are two points there.

[01:18:14] Speaker 05:
So one is that that act too, that act focuses exclusively on what's happening at the federal level and not in the state and local level as the Boca Court talked about that distinction and the edicts of government doctrine applies across the board.

[01:18:29] Speaker 03:
Why would that make a difference from the point of view of your theory of this case?

[01:18:32] Speaker 05:
Because I think one of the things that happened in the district court below was that the district court focused entirely on what went on at the federal level.

[01:18:38] Speaker 05:
And in fact, the edicts of government doctrine goes far beyond what happens at the federal level.

[01:18:43] Speaker 05:
It applies to state municipal ordinances, all kinds of statutes, and so on.

[01:18:48] Speaker 05:
And that brings me to my second point, which is

[01:18:50] Speaker 05:
Congress legislated against the background of the edicts of government doctrine and against the background of 102B.

[01:18:57] Speaker 05:
And I would suggest to you that the plaintiff's argument around 102B and that we can only consider 102B at the point of creation is really ignoring the fundamental fact of this case, which is that something happens when a document is made into a law.

[01:19:14] Speaker 05:
And that may happen after the time of creation, but it is still the law binding on the public.

[01:19:21] Speaker 05:
Thank you, Your Honor.

[01:19:23] Speaker 03:
Thank you.

[01:19:24] Speaker 03:
Case is submitted.