Last week, the D.C. Circuit issued two administrative-law opinions and unsealed an opinion regarding the FBI’s investigation into Representative Scott Perry’s cell phone. You can find the unsealed opinion here and summaries of the administrative-law opinions below.
In American Society for Testing and Materials v. Public.Resource.Org, Inc., the D.C. Circuit considered how the Copyright Act applies to technical standards that are incorporated by reference into law.
Many private organizations develop and sell technical standards that suggest best practices for an industry or product. Compliance with those standards is usually voluntary. But federal and state governments often incorporate those standards into law by referencing them in statutes or regulations. For the past 15 years, Public.Resource.Org has made hundreds of those incorporated standards available for free on its website. Worried that Public Resource’s actions were costing them paying customers, three standard-setting organizations sued for copyright infringement.
In an opinion by Judge Katsas, the D.C. Circuit held that “the non-commercial dissemination of such standards, as incorporated by reference into law, constitutes fair use and thus cannot support liability for copyright infringement.” The court concluded that three fair-use factors (“the purpose and character of the use,” “the nature of the copyrighted work,” and “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”) strongly supported Public Resource. And the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”) didn’t “significantly tip the balance one way or the other.” The court therefore concluded that Public Resource could continue posting standards that had been incorporated into law.
* * *
In Window Covering Manufacturers Association v. CPSC, the D.C. Circuit vacated a rule issued by the Consumer Product Safety Commission.
In 2022, the Commission promulgated a rule that effectively banned operating cords for custom-made window coverings. (The Commission based that rule on a finding that operating cords pose a risk of strangulation to young children.) The Window Covering Manufacturers Association filed a petition in the D.C. Circuit challenging the rule. And in an opinion by Judge Pan, the D.C. Circuit granted the petition and vacated the rule.
The court based its decision on three grounds. First, the Commission failed to disclose “critical factual material” during the rulemaking process. Throughout that process, the agency relied repeatedly on a database that catalogued injuries to young children from operating cords. But the Commission failed to disclose the incident reports it used to compile that database. Instead, the agency provided roughly one-third of the reports, in “heavily redacted form,” to the Association long after the rulemaking process was over. Second, the Commission’s cost-benefit analysis erroneously relied on price data for prefabricated window coverings, rather than the custom window coverings to which the rule applied. And third, the Commission arbitrarily set a 180-day effective date for the rule—even though 401 commenters, the Small Business Association, and the Commission’s own staff said that 180 days wasn’t feasible.