Boom. Phone in hand, rebar scattered everywhere, and there’s the binding electrical code—verbatim, free, no ASTM login nagging for cash. That’s the scene the Third Circuit just locked in for good.
UpCodes drops the reader right into it: a database spitting out building codes woven into federal and state law, no paywalls. ASTM, the standards powerhouse behind chunks of those codes, screamed copyright foul. They develop ‘em privately, sell ‘em high (hundreds per copy sometimes), and figured adoption into law doesn’t strip their control. Wrong, says the court—echoing EFF’s amicus push and a string of prior rulings.
Why Can’t Private Groups Lock Up the Law?
Picture this: your state’s fire code mandates a specific vent size, pulled straight from a for-profit manual. You gonna pony up $200 to read what’s legally required? Or cite it in court? Nah. Courts—from the Fifth to D.C. Circuits—keep batting this down. This latest Third Circuit smackdown follows suit, dissecting fair use like a surgeon on hype.
First factor: purpose. UpCodes isn’t hawking “best practices” like ASTM. It’s serving the law—what binds you, me, every builder. Transformative? Check. Commercial? Sure, but free access kills that knock.
Here’s the court’s punch:
UpCodes’s use was “transformative” because it had a separate and distinct purpose from ASTM—informing people about the law, rather than just best practices in the building industry.
Nature of the work? Laws are facts, baby—facts don’t copyright. Even “indirectly” incorporated codes (nested like Russian dolls) sit at copyright’s edge.
Amount copied? Whole enchilada. Can’t half-ass access to law. Optional bits? They clarify the mandatory ones—context matters.
Market harm? ASTM waved arms about internet doom, but no data. Transformative use demands proof, and public good (knowing the damn rules) crushes weak sauce offers like “email us for a freebie.”
Short para: Victory lap.
But here’s my dig—the one the originals miss. This reeks of 17th-century enclosure acts, when lords fenced off common lands while scribbling manorial laws only they could read. Fast-forward: ASTM’s playing digital lord, fencing knowledge that became public domain upon adoption. Courts smell it now. Prediction? Standards orgs pivot hard—open models or bust—or watch revenues tank as aggregators like UpCodes multiply.
Does Fair Use Finally Free All Incorporated Codes?
Not blanket yet. Some courts say copyright evaporates post-adoption (Fifth Circuit style). Others, like D.C. and now Third, bet on fair use every time. Why the split? Architecture of lawmaking. Legislators “incorporate by reference” to dodge printing tomes, but forget the public bite. EFF pushes merger doctrine: law + fact = uncopyrightable.
UpCodes wins big: verbatim copies, even extras. But skeptics (ASTM’s crowd) whine about incentives drying up. Bull. Innovation thrived pre-copyright monopolies—think open-source codes today. My take: this forces real reform. Imagine ASTM bundling consulting atop free standards. Or governments mandating open publication. The why? Rule of law 101—you can’t follow (or defy) what you can’t read.
And yeah, timing’s ripe. Post-January 6 rule-of-law jitters, courts guard access fiercer. Zoom out: not just buildings. Think plumbing, pharma standards, auto safety. Trillions in economy ride these rules.
One sentence: Builders cheer; lawyers bill less.
How Does This Hit Your Wallet (and Liability)?
Contractor? No more blind buys. Engineer? Cite with confidence. Litigator? Fair use shield in discovery. But watch: ASTM appeals? Possible, but momentum’s public-side. States might legislate clarity—“no copyright on adopted standards.”
Deep why: Copyright’s built for creative spark, not regulatory chains. When private text morphs mandatory, public’s due full view. Third Circuit nails it—mere “request access” ain’t access.
Skeptical spin-check: ASTM cries lost revenue, but they’ve banked decades on quasi-monopoly. Time to adapt, not litigate.
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Frequently Asked Questions
What does the Third Circuit ruling mean for building codes?
It greenlights fair use for copying and sharing codes incorporated into law, like via UpCodes—no paywalls needed.
Can ASTM still sell their standards after this?
Yeah, but not control free dissemination of legally binding versions. Market shifts to services around them.
Will this apply to other standards, like medical or safety?
Likely—same logic for any privately authored text baked into law. More cases incoming.
