FedSoc Forums No One Can Own the Law? The Third Circuit's Review of Whether Publishing ASTM Standards is Fair Use
Feb 17, 2026
Prof. Zvi Rosen, an IP law scholar who studies copyright history and fair use. Prof. Emily Brummer, an administrative law expert on private standard-setting and transparency. They debate publishing privately developed technical standards incorporated into law. Short takes cover fair use doctrine, commercial incentives, read-only access solutions, and how transparency and regulatory practice collide.
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Private Standards Are Ubiquitous Yet Invisible
- Privately developed technical standards permeate modern regulation and everyday life while remaining invisible to most people.
- Incorporation by reference creates tension between regulatory needs and public access to the law.
Fair Use Anchors The Legal Conflict
- Fair use balances purpose, nature, amount taken, and market effect and has deep historical roots going back to Folsom v. Marsh.
- Copyright doctrines like merger and government edicts intersect complexly with modern fair use analysis.
Recent Precedents Complicate The Picture
- Recent Supreme Court decisions (Georgia v. Public.Resource and Google v. Oracle) reshaped how courts treat government-authored material and functional elements.
- Those precedents complicate but do not decide disputes over privately authored standards incorporated into law.