Page:ASTM v. PRO (D.C. Cir. 2018).pdf/4

 Appeals from the United States District Court for the District of Columbia

(No. 1:13-cv-01215)

(No. 1:14-cv-00857)

Corynne McSherry argued the cause for appellant. With her on the briefs were Andrew P. Bridges, Matthew B. Becker, Mitchell L. Stoltz, and David Halperin.

Adina H. Rosenbaum and Allison M. Zieve were on the brief for amici curiae Public Citizen, Inc., et al. in support of appellant.

Charles Duan was on the brief for amici curiae Sixty-Six Library Associations, et al. in support of appellant.

Catherine R. Gellis was on the brief for amici curiae Members of Congress in support of appellant.

Samuel R. Bagenstos was on the brief for amici curiae Intellectual Property Professors in support of appellant.

Phillip R. Malone and Jeffrey T. Pearlman were on the brief for amicus curiae Sina Bahram in support of appellant.

Donald B. Verrilli, Jr., argued the cause for appellees. With him on the brief for appellees American Society for Testing and Materials, et al. were Allyson N. Ho, Anne Voigts, Joseph R. Wetzel, J. Blake Cunningham, Kelly M. Klaus, Rose L. Ehler, and J. Kevin Fee.

John I. Stewart Jr. and Clifton S. Elgarten were on the brief for appellees American Educational Research Association, Inc., et al. Jeffrey S. Bucholtz and Michael F. Clayton entered appearances.

V. Robert Denham, Jr., was on the brief for amicus curiae American Insurance Association in support of appellees.

Bonnie Y. Hochman Rothell was on the brief for amici curiae American National Standards Institute, Inc., and Ten Standards Organizations in support of appellees.

Anthony J. Dreyer was on the brief for amicus curiae International Trademark Association in support of appellees.

Jack R. Bierig was on the brief for amici curiae American Medical Association, et al. in support of appellees.

Before: TATEL, WILKINS, and KATSAS, Circuit Judges.

Concurring opinion filed by Circuit Judge KATSAS.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Across a diverse array of commercial and industrial endeavors, from paving roads to building the Internet of Things, private organizations have developed written standards to resolve technical problems, ensure compatibility across products, and promote public safety. These technical works, which authoring organizations copyright upon publication, are typically distributed as voluntary guidelines for self-regulation. Federal, state, and local governments, however, have incorporated by reference thousands of these standards into law. The question in this case is whether private organizations whose standards have been incorporated by reference can invoke copyright and trademark law to prevent the unauthorized copying and distribution of their works. Answering yes, the district court granted partial summary judgment in favor of the private organizations that brought this suit and issued injunctions prohibiting all unauthorized reproduction of their works. In doing so, the court held that, notwithstanding serious constitutional concerns, copyright persists in