Fenwick Pro Bono Team Helps Nonprofit Win Victory for Free Speech and Open Government

Public Resource is now free to continue its mission of improving public access to the laws that govern our daily lives.

Mountain View, CA (July 23, 2013) – Fenwick & West is pleased to announce a victory for free speech and open government secured in partnership with Electronic Frontier Foundation (EFF) and public interest attorney David Halperin. Following Public.Resource.Org (Public Resource)’s suit for declaratory judgment, the Sheet Metal and Air Conditioning Contractors’ National Association (SMACNA) has conceded that it will no longer assert copyright claims in four standards that the federal government has incorporated into law. Public Resource’s lawsuit was part of its mission of improving public access to the laws that govern our daily lives.

Public Resource is a nonprofit organization that acquires and makes available online a wide variety of public documents such as fire safety codes, food safety standards and other regulations that have been incorporated into United States and international laws. Such documents are often difficult to access otherwise, meaning the public cannot read them, much less comment on them.

In January, SMACNA demanded that Public Resource take offline a federally mandated air-duct standard, claiming the posting violated SMACNA’s copyright in the standard. Represented by Fenwick, EFF and David Halperin, Public Resource fought back and asked a federal court to declare that the standards became part of the public domain once they were incorporated into law. The Fenwick team included Andrew Bridges, Jay Varellas, and Kathleen Lu. After initially attempting to avoid responding to the lawsuit at all, SMACNA has now surrendered and agreed to affirm publicly that it will no longer claim copyright in the air-duct standard or its three other standards that have been incorporated by reference into federal regulations.

“This was a victory for the public in general and not just for PublicResource.Org,” said Fenwick lead partner Andrew Bridges. “We were pleased to team up on this case with EFF’s Corynne McSherry and with David Halperin, who laid the groundwork for the victory. Fenwick & West has long and proud traditions of public service through pro bono representations and of cutting edge intellectual property litigation, and in keeping with both traditions we were proud to be a part of this work.”

Free access to the law is a fundamental necessity in any free society. In today’s technical world, public-safety codes are some of the country’s most important laws. Public access to such codes can be crucial when, for example, there is an industrial accident, a disaster such as Hurricane Katrina, or when a homebuyer simply wishes to independently consider whether her house was built to code standards. Publishing the codes online, in a readily accessible format, also makes it possible for reporters and other interested citizens to search, excerpt, compare, and copy them.

“It’s about time Standards Development Organizations recognized that, if a technical standard has been incorporated into federal law, the public has a right to read it, speak it and copy it freely,” said Public Resource founder Carl Malamud. “We hope SMACNA has finally learned that lesson.”

More information on Public.Resource.Org vs. SMACNA, including the stipulation and judgment effecting the settlement and Public Resource’s motion for default judgment against SMACNA are available through the EFF website.

About Fenwick & West
For more than 30 years, law firm Fenwick & West has served its community by offering legal services to persons and organizations that could not otherwise afford effective legal counsel. Recognizing that one firm can only do so much, we regularly partner with our clients and likeminded outside organizations that share our belief in the importance of giving back to the community. Our pro bono commitment is engrained in our culture. It is a part of who our attorneys are and what makes our firm great. In 2012, Fenwick was awarded the “Outstanding Pro Bono Service Award” by the United States District Court for the Northern District of California for commitment to pro bono services.