Court Rules Public Access to Laws Trumps Private Copyright

For anyone who has ever tried to navigate the labyrinth of municipal regulations while renovating a historic row home in South Philly or developing a new commercial high-rise in Center City, the frustration of “paywalled law” is a familiar burden. In the world of construction and urban development, the rules aren’t always found in a simple government handbook; often, they are tucked away in complex building codes developed by private organizations. For too long, these private entities have claimed copyright over the very rules that the government mandates the public to follow. However, a recent decision from the U.S. Court of Appeals for the Third Circuit—the very court that oversees legal matters here in Pennsylvania—has fundamentally shifted the landscape of how we access the law.

Breaking the Paywall: The Third Circuit’s Stance on Public Access

The core of the conflict lies in a legal battle between ASTM, a private organization that coordinates the development of technical standards, and UpCodes, a company that created a searchable database of building codes. UpCodes included codes that had been “incorporated by reference” into federal and state law, including the National Electrical Code. ASTM argued that as they coordinated the development of these codes, they retained the copyright even after the government adopted them into law. Essentially, ASTM believed they had the right to control how the public accessed and shared these mandatory standards.

The Third Circuit Court of Appeals, led by Chief Judge Michael A. Chagares, disagreed. In upholding a lower court’s ruling, the court determined that copying and disseminating these building codes constitutes “fair employ.” This decision aligns the Third Circuit with a growing judicial consensus that prioritizes the public’s right to know the law over a private entity’s desire for copyright control. This is a critical distinction for the Philadelphia professional community, as it ensures that the technical standards governing safety and construction are not hidden behind a subscription fee.

Deconstructing the Four Factors of Fair Use

To reach this conclusion, the court applied the four factors of fair use outlined in the Copyright Act. The analysis provides a roadmap for how “transformative” use is viewed in the modern digital age. First, the court looked at the purpose and character of the use. It found that UpCodes’s work was transformative because its purpose was to inform the public about the law, which is distinct from ASTM’s purpose of providing industry best practices. Crucially, the court noted that because UpCodes did not charge for access to the codes, its status as a commercial venture did not disqualify it from fair use protection.

The second factor—the nature of the copyrighted work—further solidified the ruling. The Third Circuit joined other appellate courts in asserting that laws are essentially facts. Because they are the rules that bind society, they exist at the “periphery of copyright’s core protection.” This applies even to codes that are “indirectly” incorporated, meaning they are part of other codes that the law eventually references. For those tracking these rulings via the archives at the Villanova University Charles Widger School of Law, this represents a significant reinforcement of the principle that no one “owns” the law.

Regarding the third factor—the amount and substantiality of the material used—the court acknowledged that UpCodes copied entire codes verbatim. However, it ruled that this was justified because the purpose of providing access to binding laws cannot be achieved by quoting snippets. The court even defended the copying of optional sections of the codes, noting that these parts help practitioners understand the full scope of the law. Finally, the fourth factor balanced the potential market harm to ASTM against the public interest. The court rejected the notion that simply putting materials on the internet creates an assumed harm. Instead, it ruled that “enhanced public access to the law is a clear and significant public benefit,” and since ASTM failed to prove a significant reduction in revenue, the factor remained neutral.

The Broader Legal Landscape: Third, Fifth, and D.C. Circuits

This ruling does not exist in a vacuum. It is part of a larger judicial trend. The Third Circuit’s reasoning closely mirrored that of the D.C. Circuit Court of Appeals, which previously defended the rights of Public.Resource.Org to make standards accessible online. Meanwhile, the Fifth Circuit Court of Appeals has taken an even more direct approach, holding that building codes lose their copyright protection entirely the moment they are incorporated into law. While the Third Circuit focused on “fair use” rather than the total loss of copyright, the practical result for the citizen is the same: the law is accessible.

For local architects and engineers, Which means a reduction in the legal risk associated with using third-party databases to verify compliance. When the law is treated as a fact rather than a proprietary product, the barrier to entry for small-scale developers and independent contractors is lowered, fostering a more transparent regulatory environment. You can explore more about these shifts in our comprehensive legal frameworks guide to see how other administrative laws are evolving.

Navigating the New Standard: Local Resource Guide

Given my background as an Executive Geo-Journalist focusing on the intersection of law and local industry, I recognize that while the Third Circuit has cleared the path, implementing these standards in a complex city like Philadelphia still requires expert guidance. If these shifts in building code accessibility impact your current projects or business model, you should seek out specific types of local expertise to ensure you are fully compliant and protected.

Zoning and Land Use Attorneys

Look for practitioners who specialize in municipal code interpretation and have a track record of dealing with the Philadelphia Department of Licenses and Inspections. You need a professional who understands not just the “letter” of the code, but how the recent fair use rulings affect the admissibility and application of incorporated standards in local hearings.

Licensed Building Compliance Consultants

Seek consultants who are proficient in utilizing open-access databases like UpCodes and can cross-reference them with current Pennsylvania state mandates. The ideal consultant should be able to provide a documented trail of compliance that relies on the most current, legally binding versions of the National Electrical Code and other incorporated standards.

Intellectual Property (IP) Counsel

For firms that create their own technical standards or proprietary building methods, it is essential to hire IP counsel specializing in the “government works” doctrine. They can help you determine if your proprietary materials have crossed the line into “law” via government incorporation, which could affect your ability to claim copyright protection under the Third Circuit’s latest precedent.

Understanding the nuances of these legal shifts is the difference between a project that moves forward and one that gets stalled by a cease-and-desist letter or a building code violation. By leveraging the transparency provided by the courts, Philadelphia’s building community can operate with greater confidence and less overhead.

Ready to find trusted professionals? Browse our complete directory of top-rated fairuseannouncementlegalanalysis experts in the Philadelphia area today.