Cite as 896 F.3d 437 (D.C. Cir. 2018)
ed standards and that the Copyright Act’s “fair use” defense does not permit wholesale copying in such situations. The court also concluded that the use of the private organizations’ trademarks ran afoul of the Lanham Act and did not satisfy the judicial “nominative fair use” exception. Because the district court erred in its application of both fair use doctrines, we reverse and remand, leaving for another day the far thornier question of whether standards retain their copyright after they are incorporated by reference into law.
I.
Ever operated a tank barge and wondered what power source you would need for your cargo tank’s liquid overfill protection system to comply with the law? Probably not. But if you did, you might consider thumbing through the Code of Federal Regulations, where you would discover that one option is to hook up to an off-barge facility, provided that your system has “a 120-volt, 20-ampere explosion-proof plug that meets … NFPA 70, Article 406.9 and 501-145.” 46 C.F.R. § 39.2009(a)(1)(iii)(B). Dig deeper and you would learn that NFPA 70 is not some obscure rule or regulation or agency guidance document but is instead another name for the “National Electrical Code,” a multi-chapter technical standard prepared by the National Fire Protection Association (the eponymous “NFPA”), detailing best practices for “electrical installations.” Complaint ¶ 66, American Society for Testing & Materials v. Public.Resource.Org, Inc. (ASTM), No. 1:13-cv-01215, 2013 WL 4007515 (D.D.C. Aug. 6, 2013) (“ASTM Compl.”), Dkt. No. 1, Joint Appendix (J.A.) 86. Parts of NFPA 70 have been incorporated into the statutes or regulations of at least forty-seven states and, as we have just seen, the federal government. American Insurance Ass’n Amicus Br. 5.
NFPA 70 is one of thousands of standards developed by so-called Standards Developing Organizations (SDOs), six of whom are plaintiffs-appellees here. The typical SDO operates through volunteer committees that focus on narrow technical issues. Comprised of industry representatives, academics, technical experts, and government employees, these committees meet regularly to debate best practices in their areas of expertise and to issue new technical standards or update existing ones. Once a committee decides on a standard, the SDO publishes the standard and secures a copyright registration.
Technical standards are as diverse as they are many, addressing everything from product specifications and installation methods to testing protocols and safety guidelines. Take, for instance, the more than 12,000 standards developed by the American Society for Testing and Materials (ASTM), a plaintiff-appellee here. Its standards establish best practices and specifications in a wide variety of fields, including consumer products, textiles, medical services, electronics, construction, aviation, and petroleum products. ASTM Compl. ¶ 48, J.A. 81. Three other plaintiffs-appellees, the American Educational Research Association, Inc., the American Psychological Association, Inc. and the National Council on Measurement in Education, Inc. (collectively, “AERA”), have collaborated to jointly produce a single volume, “Standards for Educational and Psychological Testing,” a collection of standards that aims “to promote the sound and ethical use of tests and to provide a basis for evaluating the quality of testing practices.” AERA, Standards for Educational and Psychological Testing 1 (1999), J.A. 2245.
Industry compliance with technical standards developed by private organizations is entirely voluntary. In some
