American Society for Testing and Materials v. UpCodes, Inc.

Court: U.S. Court of Appeals for the Third Circuit

Date Filed: March 31, 2025

Background: Local, state, and federal governments increasingly incorporate into statutes technical standards originally written by private organizations. These so-called “incorporated standards” impose obligations on product manufacturers, landlords, employers, and many others and often relate to public safety rules.

In April 2024, the company UpCodes published technical standards written by the American Society for Testing and Materials, a nonprofit organization that drafts standards covering numerous topics for various industries, that had been incorporated into binding regulations. ASTM, which funds its work primarily through the sale of its standards, sued UpCodes for copyright and trademark infringement and filed a motion in the U.S. District Court for the Eastern District of Pennsylvania seeking a preliminary injunction blocking UpCodes from publishing its standards. 

In October 2024, the district court denied ASTM’s motion for a preliminary injunction. ASTM then appealed to the U.S. Court of Appeals for the Third Circuit.

Our Position: In a friend-of-the-court brief, the Reporters Committee for Freedom of the Press urges the Third Circuit to affirm the decision of the district court to preserve valuable rights of public access to the law and important public interest reporting that is made possible by that access.

• By compiling and publishing incorporated legal standards free of charge, UpCodes enables the press to access and disseminate binding law to the public.

• Depriving the press and public of the opportunity to freely review and republish incorporated standards would harm the public interest and is inconsistent with the other legal protections providing for robust access to similar material.

From the Brief: “The public must be free to republish, and thus able to access, the law, which necessarily includes those promulgated standards incorporated by reference in statutes and regulations.”

Related: In 2022, the Reporters Committee and 11 media organizations filed a similar friend-of-the-court brief in a case in which ASTM sued the nonprofit organization Public.Resource.Org to block it from publishing incorporated standards for members of the public to access for free. In that case, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court ruling in favor of Public.Resource.Org, holding that the non-commercial publication of incorporated standards is protected from copyright liability under fair use grounds.