IBR And Fair Use: What Congress Needs To Fix In The Pro Codes Act

In 2023, we wrote about the D.C. Circuit’s decision in American Society for Testing and Materials v. Public.Resource.Org (ASTM II), which held that a nonprofit organization’s free online publication of technical standards incorporated by reference (IBR) into law constituted copyright fair use. We expressed concern that the decision underestimated the threat to the delicate symbiotic relationship between standards development organizations (SDOs) and the governments that rely on their work, and we called for a legislative solution. Since then, the legal landscape has shifted further, and not in the SDOs’ favor. A new court decision and pending federal legislation have brought this issue to a head, and we think it’s time for an update.