[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
PROTECTING U.S. LEADERSHIP IN CODES
DEVELOPMENT AND ENHANCING PUBLIC ACCESS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, INTELLECTUAL
PROPERTY, ARTIFICIAL INTELLIGENCE, AND
THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, APRIL 21, 2026
__________
Serial No. 119-64
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
63-529 WASHINGTON : 2026
=======================================================================
COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JAMIE RASKIN, Maryland, Ranking
ANDY BIGGS, Arizona Member
TOM McCLINTOCK, California JERROLD NADLER, New York
THOMAS P. TIFFANY, Wisconsin ZOE LOFGREN, California
THOMAS MASSIE, Kentucky STEVE COHEN, Tennessee
CHIP ROY, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
SCOTT FITZGERALD, Wisconsin Georgia
BEN CLINE, Virginia TED LIEU, California
LANCE GOODEN, Texas PRAMILA JAYAPAL, Washington
JEFFERSON VAN DREW, New Jersey J. LUIS CORREA, California
TROY E. NEHLS, Texas MARY GAY SCANLON, Pennsylvania
BARRY MOORE, Alabama JOE NEGUSE, Colorado
HARRIET M. HAGEMAN, Wyoming LUCY McBATH, Georgia
LAUREL M. LEE, Florida DEBORAH K. ROSS, North Carolina
WESLEY HUNT, Texas BECCA BALINT, Vermont
RUSSELL FRY, South Carolina JESUS G. ``CHUY'' GARCIA, Illinois
KEVIN KILEY, California SYDNEY KAMLAGER-DOVE, California
GLENN GROTHMAN, Wisconsin JARED MOSKOWITZ, Florida
BRAD KNOTT, North Carolina DANIEL S. GOLDMAN, New York
MARK HARRIS, North Carolina JASMINE CROCKETT, Texas
ROBERT F. ONDER, Jr., Missouri Vacancy
DEREK SCHMIDT, Kansas
BRANDON GILL, Texas
MICHAEL BAUMGARTNER, Washington
------
SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,
ARTIFICIAL INTELLIGENCE, AND THE INTERNET
DARRELL ISSA, California, Chair
THOMAS MASSIE, Kentucky HENRY C. ``HANK'' JOHNSON, Jr.,
SCOTT FITZGERALD, Wisconsin Georgia, Ranking Member
BEN CLINE, Virginia ZOE LOFGREN, California
LANCE GOODEN, Texas TED LIEU, California
LAUREL LEE, Florida JOE NEGUSE, Colorado
KEVIN KILEY, California DEBORAH ROSS, North Carolina
RUSSELL FRY, South Carolina SYDNEY KAMLAGER-DOVE, California
MICHAEL BAUMGARTNER, Washington Vacancy
CHRISTOPHER HIXON, Majority Staff Director
ARTHUR EWENCZYK, Minority Staff Director
C O N T E N T S
----------
Tuesday, April 21, 2026
OPENING STATEMENTS
Page
The Honorable Darrell Issa, Chair of the Subcommittee on Courts,
Intellectual Property, Artificial Intelligence, and the
Internet from the State of California.......................... 1
The Honorable Henry C. ``Hank'' Johnson, Ranking Member of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of Georgia....... 3
The Honorable Jim Jordan, Chair of the Committee on the Judiciary
from the State of Ohio......................................... 5
The Honorable Deborah K. Ross, a Member of the Subcommittee on
Courts, Intellectual Property, Artificial Intelligence, and the
Internet from the State of North Carolina...................... 5
WITNESSES
James Pauley, President, CEO, National Fire Protection
Association
Oral Testimony................................................. 7
Prepared Testimony............................................. 9
Keith Kupferschmid, CEO, Copyright Alliance
Oral Testimony................................................. 17
Prepared Testimony............................................. 19
John Delli Venneri, General Counsel, American Society of
Mechanical Engineers
Oral Testimony................................................. 27
Prepared Testimony............................................. 29
Jonathan Band, Principal, Policybandwidth, behalf of Library
Copyright Alliance
Oral Testimony................................................. 34
Prepared Testimony............................................. 36
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Subcommittee on
Courts, Intellectual Property, Artificial Intelligence, and the
Internet are listed below...................................... 64
Materials submitted by the Honorable Zoe Lofgren, a Member of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of California,
for the record
Assorted letters entitled, ``Oppose the PRO Codes Act (HR
1631) to Protect Public Access to the Law,'' from the
Honorable Zoe Lofgren from the State of California, and
the Honorable Thomas Massie from the State of Kentucky,
and Members of Congress, Jul. 22, 2024; a letter
entitled,``Dissenting View on H.R. 1631, the PRO Codes
Act,'' from the Honorable Zoe Lofgren from the State of
California; a letter entitled, ``Opposition to the Pro
Codes Act,'' to the Honorable Mike Johnson, Speaker of
the House, the Honorable Hakeem Jeffries, Democratic
Leader, from several organizations, Jul. 19, 2024; a
letter entitled, ``Opposition to H.R. 1631, the
`Protecting and Enhancing Public Access to Codes Act'
(Pro Codes Act),'' to the Honorable Jim Jordan, Chair
from the State of Ohio, and the Honorable Jerry Nad-ler,
Ranking Member from the State of New York, the Committee
Materials submitted by the Honorable Zoe Lofgren, a Member of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of California,
for the record--Continued
on the Judiciary, from several organizations, Apr. 9,
2024; and a letter to the Honorable Mike Johnson,
Speaker, and the Honorable Hakim Jefferies, Democratic
Leader, from SAE International, in opposition to H.R.
1631/S. 835, the Pro Codes Act, July 18, 2024
An Amicus Brief, The American Society for Testing Materials,
et al. v. Public.Resource.Org, Inc., Dec. 12, 2022
A letter to the Honorable Darrell Issa, Chair from the State
of California, and the Honorable Henry C. ``Hank''
Johnson, Ranking Member from the State of Georgia, the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet, from the R Street
Institute, Apr. 20, 2026
An Amicus Brief on Appeal, The American Society for Testing
Materials, et al. v. Public.Resource.Org, Inc., Members
of Congress, Sept. 25, 2017
A letter to the Honorable Darrell Issa, Chair of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of
California, the Honorable Henry C. ``Hank'' Johnson,
Ranking Member of the Subcommittee on Courts,
Intellectual Property, Artificial Intelligence, and the
Internet from the State of Georgia, and Members of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet, from Brandon Butler,
Executive Director, Re:Create, Apr. 20, 2026
A letter to the Honorable Darrell Issa, Chair of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of
California, the Honorable Henry C. ``Hank'' Johnson,
Ranking Member of the Subcommittee on Courts,
Intellectual Property, Artificial Intelligence, and the
Internet from the State of Georgia, and Members of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet, from Adam Eisgrau, Senior
Director, AI, Creativity, and Copyright Policy at the
Chamber of Progress, Apr. 17, 2026
An opinion, U.S. Court of Appeals for the Third Circuit in
American Society for Testing & Materials, d/b/a ASTM
International v. Upcodes, Inc.; Garrett Reynolds; Scott
Reynolds, Apr. 7, 2026
A document entitled, ``Am. Soc'y for Testing & Materials v.
Public.
Resource.Org, Inc. 82 F.4th 1262 (D.C. Cir. 2023),'' 2023
An article entitled, ``Court Rules in Favor of Public Access
to Information,'' Apr. 13, 2026, Association of Research
Libraries (ARL)
An article entitled, ``D.C. Circuit Court of Appeals Holds
Non-Commercial Use of Industry Standards Incorporated
into Law Is Fair Use,'' Sept. 18, 2023, Husch Blackwell
An Appeal document, American Society for Testing and
Materials, et al. v. Public.Resource.Org, Inc., United
States Court of Appeals, District of Columbia Circuit,
Sept. 12, 2023
A document on Pro Codes Case Law
An article entitled, ``Publisher of industry standards loses
appeal over startup's fair-use defense,'' Apr. 9, 2026,
Westlaw Today
A document entitled, ``Frequently Asked Questions,'' Pro
Codes Act
Pages entitled, ``International Code Council Inc.,''
ProPublica
Pages entitled, ``National Fire Protection Association,''
ProPublica
Materials submitted by the Honorable Darrell Issa, Chair of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of California
Support letters entitled, ``H.R. 4072--Pro Codes Act Support
Letters,'' International Code Council Chapter and
Governmental Members, and various organizations
A statement from Advancing Standards Transforming Markets
International (ASTM), Apr. 21, 2026
A letter from Frank Cullen, Executive Director, Council for
Innovation Promotion (C4IP), Apr. 20, 2026
A letter from Adam Eisgrau, Senior Director, AI, Creativity,
and Copyright Policy at the Chamber of Progress, Apr. 17,
2026
A letter from Alpesh Shah, Managing Director, IEEE Standards
Association, and Russell Harrison, Managing Director,
IEEE-USA, Apr. 20, 2026
An IRS Form 990, ``Return of Organization Exempt from Income
Tax,'' 2022, Public Resource Organization, Inc.
An IRS Form 990, ``Return of Organization Exempt from Income
Tax,'' 2023, Public Resource Organization, Inc.
An IRS Form 990, ``Return of Organization Exempt from Income
Tax,'' 2024, Public Resource Organization, Inc.
A letter from Wayne Brough, Resident Senior Fellow, R Street
Institute, Apr. 20, 2026
Pricing from UpCodes
A statement from Shawn Griffin, Chief Executive Officer,
President, URAC, Apr. 21, 2026
A document entitled, ``B.5.11.1 Iron-Air Batteries.''
APPENDIX
Questions submitted by the Honorable Darrell Issa, Chair of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of California,
for the record
Questions for Keith Kupferschmid, CEO, Copyright Alliance,
Questions for John Delli Venneri, General Counsel, American
Society of Mechanical Engineers
Responses to questions from John Delli Venneri, General
Counsel, American Society of Mechanical Engineers
Questions for Jonathan Band, Principal, Policybandwidth,
behalf of Library Copyright Alliance
Responses to questions from Jonathan Band, Principal,
Policy-band-width, behalf of Library Copyright Alliance
Questions for James Pauley, President, CEO, National Fire
Protection Association, submitted by the Honorable Darrell
Issa, Chair of the Subcommittee on Courts, Intellectual
Property, Artificial Intelligence, and the Internet from the
State of California. and the Honorable Ben Cline, a Member of
the Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of Virginia, for
the record
Responses to questions from James Pauley, President, CEO,
National Fire Protection Association
PROTECTING U.S. LEADERSHIP IN
CODES DEVELOPMENT AND ENHANCING PUBLIC ACCESS
----------
Tuesday, April 21, 2026
House of Representatives
Subcommittee on Courts, Intellectual Property, and
Artificial Intelligence, and the Internet
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to notice, at 10:07 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Darrell Issa
[Chair of the Subcommittee] presiding.
Present: Representatives Issa, Jordan, Fitzgerald, Gooden,
Lee, Fry, Johnson, Raskin, Lofgren, and Ross.
Also present: Representative Kiley.
Mr. Issa. The Subcommittee will come to order. Without
objection, the Chair is authorized to declare a recess at any
time.
We welcome everyone here today for a hearing on codes and
standards development and public access.
Without objection, Mr. Kiley, when he arrives, will be able
to participate in today's hearing for the purpose of
questioning the witnesses and will receive five minutes for
that purpose.
I now recognize myself for an opening statement.
Earlier in the back, I welcomed everyone to Ground Hog Day
because it is seldom that we have a bill that wins
overwhelmingly on the House floor by nearly two-thirds, having
had full hearings and markups, having some of what you see on
the screen, the 8,000-plus entities that helped create what we
often call the building codes. In fact, these how-to manuals,
which are included by reference in many laws but, ultimately,
are far more than simply statements of fact for the law.
It was with some surprise that we found that we narrowly
lost a suspension vote. We expect to come back again shortly.
For that purpose, today's hearing will, in fact, try to cover
some new information, if we possibly can, and particularly a
new approach to explaining how we got here.
James Madison, in fact, argued the need to grant limited
terms of exclusive rights to inventors and authors, as he said
in the Federalist 43. Ultimately, his argument became Article
I, Section 8, Clause 8 of our Constitution.
Let me be very clear, it does not bestow a right. There is
no absolute right to copyright. There is no absolute right to
patent. Those are creations, as our Constitution says, to
promote progress of science and useful arts by securing for a
limited time to authors and inventors that exclusive right to
the respective writings and discoveries.
That is so important today, because the bill that is being
considered and will be back on the floor is a balance. How do
we continue to have the promotion that causes over 8,000
entities to work, in many cases completely as volunteers, to
produce some of these great--and, of course, I'm using old
books because most of its online today--but the building codes.
More than the codes, building the how-to manuals, the what is
right, what are the cautions, what should you know. These are
educational books, broadly.
Many say because they are included by reference, by cities,
and others, that somehow that diminishes their legitimate
copyright. For purposes of this bill, we have sought to find a
middle ground. We have sought to say, because you must comply
with the law and because municipalities and States often simply
refer to a copyrighted material, that making that available for
purposes of knowing what the law is referring to is reasonable.
Just as a copy in the library is free to read, the bill
that we propose makes it possible for you to, in fact, find out
what that reference is, but it stops short of allowing you to
simply make a xerox copy and include it with your application.
It stops short of saying that all the information that helps
you produce a better, safer product, to know the risk involved
if you choose to do something one way versus another and so on
is, in fact, still protected.
That balance is not easy, but it is a balance that our
Founders gave us. They gave us the responsibility to make this
a promotion, to make it for a limited period of time, but, in
fact, to make it ultimately available to the public. That's
what we're doing here in this legislation.
It's also a reflection. I serve on the Science Committee.
Scientific works have had many of the same sort of comments,
that there is somehow fact not something that is a work. Well,
you're just stating what is science. When somebody discovers
the genome, maps it, it was argued that shouldn't be patented.
That argument fell short because, although we all have those
genes in us, finding a way to map them, finding a way to create
a useful work in science that has led to amazing development
had to be promoted, and we are having the same situation here
today.
We have people today that will be testifying to who
disagree, who believe that, in fact, everything should be free,
and have a fairly diminished view of what a copyright is. They
are entitled to that. We also have panelists that agree with
the basic language of the bill, and we have panelists, some of
them are from those 8,000 names you see scrolling here, who
want more. They want an outright rejection of any use in the
public domain. They don't want it to be available.
Others, quite frankly, will argue that their association
members are different, that they don't promote, even though
they get included. Let me be clear. Having looked at that
extensively, the taking by a city or a State or even the
Federal Government and including it in a statutory requirement
you comply with would have the exact same effect, an effect
that says the public has a right to see the law.
Mr. Massie will be here later, and I side with him and
others on the dais in saying, if it becomes the law, you should
be able to find it, see it at no cost. How that is facilitated
is open to debate but not whether or not you should. For that
reason I find it--and I'm not trying to be argumentative here,
that comes later--I'm trying to make the point that it's moot
whether you promote it to be in the law or it ends up in the
law.
Ultimately, we believe, on this side of the dais, that the
American people have a right to see their laws. It doesn't mean
they have a right to take it all, to use it, to resell it, and
to monetize it. That's short of what you have with the law. For
that reason, we have the grand compromise of H.R. 4072, the Pro
Codes Act.
We want to preserve copyright for a reason. If I were to
stack up every book, many of them thicker than this one, that
is produced by these 8,000 companies, we would have this dais
filled. When you look at those books--and I'll ask some of the
witnesses here today--when you look at those books carefully,
you see some things that clearly look like the law, but you
also see an amazing amount of information, warnings, how-tos,
things that, in fact, would be in any good manual.
We are not in another country. In the U.S., we go it our
own way. I want to be clear. Reference to other countries and
how they do it really doesn't matter, and it doesn't matter
because America is where we are because of our respect and
balance for intellectual property.
Last, I'll close with this and recognize the Ranking
Member--there are those who will argue that once something is
fact and everyone knows it's not copyrightable. For those like
me who love to cook, does that mean that when Betty Crocker
tells you how to make cookies and she gives a set of
ingredients, and those are the same ingredients and sometimes
the exact same measurements that other recipes have, that
somehow the Betty Crocker book should not be copyrighted and
anyone should be able to monetize it while it's still under
copyright?
I disagree that is the reason that it was so important to
have a second hearing to make it clear that when this goes to
the floor, this will be a statement by the U.S. Congress that
we believe in those original principles of promoting while
balancing these works of these authors.
With that, I recognize the Ranking Member for his opening
statement.
Mr. Johnson. Thank you, Mr. Chair, and thank you to the
witnesses for your appearances today for this very important
hearing.
When I get home to Georgia after a long week, I get off the
plane, take the airport rail to my car, and pick up my car from
the parking area. Once I get home, I park the car, walk into my
house, and cut the lights on. I might fix some hot tea after
pouring some water and heating it up in the microwave. I rarely
think about it, but all these steps from the airport to my
house are governed by codes, developed by standards developing
organizations, or SDOs.
Standards governing everything from light rail and parking
garages to home fire codes and water piping touch each of us in
our everyday lives. When a contractor works on your house or a
firefighter inspects your workplace for fire safety, they have
to consult their respective codes. While most of us know that
these codes exist, we rarely consider where those codes come
from.
An important part to you and me is that the standards in
those codes work. They keep us safe. They keep our lives
running with us none the wiser.
SDOs regularly get together and come up with the state-of-
the-art guidelines for their trades. These best practices
govern everything from consumer safety and household utility
installation to home electrical wiring and plumbing. SDOs make
sure your house won't catch on fire, your plumbing is up to
code, your water boiler is installed correctly, and everything
in between.
If you live in an area that might be affected by floods or
by earthquakes, you want to ensure your house is built to
withstand natural disasters. You rely on your local contractor,
and your contractor relies on their SDO standards.
Now, so far as this sounds like a great hearing for the
Transportation and Infrastructure Committee, which I also serve
on, the reason why this is in the Intellectual Property
Subcommittee of Judiciary is because this Subcommittee cares
about standards, and it's because of a recent circuit court
decision--actually, recent court decisions that have made it
harder for SDOs to assert their copyright when others post
their codes online.
States and local governments frequently adopt SDO-developed
codes by reference into law. They do this for a few reasons but
primarily because the government doesn't have the funds to
employ experts to develop a unique building code and do not
update the law often enough to keep up with the changes of
society and in best practices.
Georgia, for example, can refer to the National Fire
Protection Association's most updated--or up-to-date code in
their laws. That way the law is always up to date, and they
don't have to pay experts to develop something new. This is the
point where intellectual property issues arise.
Some point to the Supreme Court's Georgia v.
Public.Resource. Org decision and say, quote, ``that no one
owns the law.'' If you can't access the code, you don't know
what the law says, and Americans have a reasonable interest in
knowing they can access the laws that govern them.
Others point out that SDOs fund their work by selling their
copyrighted material to experts who use it to make necessary
evaluations, repairs, and installations. Without this rigorous
development and dedication to constant improvement, they argue
American standards would fall behind.
We find ourselves in a dilemma. Once the code is law, it
seems only reasonable that Americans should be able to figure
out what the law says. On the other hand, SDOs fund their work,
which we rely on to keep us safe, through the sale of their
copyrighted works. We also have an interest in ensuring these
codes always reflect the highest possible standards, and they
can't do that without income or revenue.
Multiple circuit court decisions have found that
publication of codes incorporated by reference is fair use. If
we want to ensure that SDOs retain their copyright, legislation
is necessary. The question is, what kind of legislation?
Last Congress, I voted in favor of the Pro Codes Act, but
at the time I expressed concern that we hadn't had a fact-
finding hearing to listen to all the different sides to this
issue. I understand that there are quite a few different
perspectives represented here, and I commend my colleague,
Chair Issa, for working with me to put together a panel of
witnesses that can speak to the many facets of the copyright
problems with incorporation by reference.
I look forward to hearing from the witnesses, and I yield
back the remainder of my time.
Mr. Issa. I thank the Chair--or the Ranking Member. I now
recognize the Chair of the Full Committee, Mr. Jordan.
Chair Jordan. I just want to thank the Chair for this
hearing, for our witnesses who are here today, and for the
Chair's persistence in trying to get this legislation across
the finish line.
With that, I would yield back.
Mr. Issa. I thank the gentleman. I now recognize the
Ranking Member, the gentleman from Maryland, Mr. Raskin.
Mr. Raskin. Thank you, Chair Issa. Thanks to all our
witnesses for joining us today.
We have got two competing principles in play today, both of
them deeply rooted in our constitutional culture, and one of
them is the protection and incentivization of creators through
copyright, and the other is the idea that public laws must be
available to the public on a universally accessible and free
basis.
The Pro Codes Act introduced by the distinguished Chair,
Mr. Issa, and our esteemed colleague, Representative Ross,
seeks to reconcile these principles by promoting innovation
alongside a legal system that the public can access. I
recognize there's no shortage of strong, divergent opinions on
all sides of this issue, sometimes held by the exact same
person, as people change their minds over time about this
question, which sometimes can seem kind of esoteric. It's
incumbent on this Committee to study the details here where the
answer is going to lie.
We've got to be sure that we are reconciling these two
principles. The devil's in the details, Mr. Chair, and I look
forward to hearing from our excellent witnesses today.
Mr. Issa. Would the Ranking Member mind yielding just a
moment to the coauthor of the bill, Ms. Ross?
Mr. Raskin. By all means. Ms. Ross has arrived. Please,
happy to yield to you.
Ms. Ross. OK. Thank you so much for that, Mr. Chair and the
Ranking Member, and thank you to our witnesses for being here.
I think it is very important that we have a full and robust
conversation about this issue. Representative Issa and I have
been through this in Committee. We've had a markup in
Committee, but we haven't had this kind of philosophical debate
with outside folks coming in. I'm really glad that we're doing
that.
I do want to let people know who may be tuning in to this
for the first time, last Congress, there was a lot of activity
on this bill, and there were a lot of changes made with the
input of people who had ideas for how to improve public access,
particularly input from the disability community, and I
sponsored those amendments.
When I get my opportunity to ask our witnesses some
questions, you'll hear a little bit more about how I view this,
but I do think that the bill in its current form has only been
getting better and fairer and more inclusive of the public,
while protecting the intellectual property of the people who
have put their blood, sweat, and tears in it and promote our
safety.
It will give that kind of balance and, I hope, encourage
the people who have been doing this amazing work on these codes
for decades the incentive to keep doing their work and keeping
the public safe while providing that access to people who need
to know what's in the law.
Thank you so much, Mr. Chair, and I look forward to the
discussion.
Mr. Issa. Thank you. The Ranking Member yields back. We now
introduce our panel of experts for their opening statements.
We begin with Mr. James Pauley. Mr. Pauley is President and
Chief Executive Officer of the National Fire Protection
Association, a nonprofit association that develops standards
and codes related to fire prevention. The NFPA also engages in
research, training, education, outreach, and advocacy.
Mr. Keith Kupferschmid is the President and Chief Executive
Officer of the Copyright Alliance, a nonprofit organization
that advocates on behalf of creators and innovators. He
previously served as the General Counsel and Senior Vice
President for intellectual property at the Software and
Information Industry Association.
Mr. John Delli Venneri is the General Counsel at the
American Society of Mechanical Engineers, ASME, a professional
association for mechanical engineers. The ASME develops codes
and standards and provides professional resources like
publications, conferences, continuing education, professional
development, and resources to its members.
Mr. Jonathan Band is an attorney and advocate who works on
matters related to intellectual property. Today, he is
representing the Library Copyright Alliance, which consists of
American Library Associations and Associations of Research
Libraries. Both organizations consist of librarians and
research librarians.
We welcome all our witnesses and thank you for appearing
here today.
As I said earlier, we have a--and Ms. Ross said very well--
we have a well-balanced group that we believe represent the
entire spectrum of those involved in this issue.
Pursuant to the Committee rules, I would ask that all
witnesses rise to be sworn in, and raise your right hand.
Do you solemnly swear or affirm under penalty of perjury
that the testimony you're about to give will be true and
correct to the best of your knowledge, information, and belief,
so help you God?
Thank you. Please be seated.
Let the record reflect that all witnesses answered in the
affirmative.
Mr. Pauley, we'll go from your side to that side, if that's
all right. You know the routine here, five minutes. We're not
going to cut you off mid-sentence, but please stay as close to
that so we can have plenty of time for questions.
The gentleman's recognized.
STATEMENT OF JAMES PAULEY
Mr. Pauley. Chair Issa, Ranking Member Johnson, and the
distinguished Members of the Subcommittee, thank you for this
opportunity to testify today. My name is Jim Pauley. I'm the
President and CEO of the National Fire Protection Association.
I want to start today with a number: 54 percent. That's how
much fire incidents have declined in this country since 1980.
Home fire deaths over that same time period are down 44
percent. Now, those numbers didn't happen by chance. They
happened because of rigorous safety standards developed by
independent nonprofit organizations like National Fire
Protection Association (NFPA), and they represent the lives
saved, the families spared, and the disasters prevented.
Now, for nearly 130 years, the NFPA has developed codes and
standards that protect lives and property from fire,
electrical, and life safety challenges. We develop and update
more than 300 of these in an open, transparent, and consensus-
based process. These standards are used by a wide range of
stakeholders: Insurance companies, manufacturers, contractors,
designers, and government.
We don't develop them for any one group. We also don't take
money from industries that are affected by our standards, and
we don't rely on taxpayer funding to create them. We fund this
work by selling our standards to the professionals who use
them. That's the copyright model at work, and it's produced one
of the most successful public--private partnerships in American
history.
The need for this system, it's accelerating. From
devastating wildfires to new risk from lithium-ion batteries,
the NFPA is developing standards to address challenges that
didn't exist just 10 years ago, not to mention our efforts to
continuously update the hundreds of critical existing standards
like the National Electrical Code that has protected Americans
for generations.
Now, don't take my word that the system is working.
Governments at every level regularly turn to the work of
nonprofit standards developers because that work can be
trusted. There are tens of thousands of incorporations by
reference across American law and regulation. Every home, every
school, and every office building. Americans benefit from these
standards whether they know it or not.
I want to be clear about something. Government comes to us,
not the other way around. When lawmakers and regulators are
trying to solve a safety problem, they turn to organizations
like NFPA because they value what it is that we can provide.
Those solutions only exist if the system that produces them can
be independently funded. If you take away copyright protection,
the funding disappears and, with it, the system that has made
Americans safer for more than a century.
That's where the Pro Codes Act comes in. This bipartisan
bill reaffirms the copyright protections for standards
incorporated by reference while promoting transparency for the
public.
Now, I know the Subcommittee will hear from critics of the
legislation, and I'd like to address some of those claims
directly. Most common is that the Pro Codes Act puts the law
behind a pay wall. Codes and standards are not the law. They
are privately authored works created by independent nonprofits
to solve safety problems. Governments recognize their value and
choose to reference them, but that doesn't make them the
government's work.
Others argue that Congress doesn't need to worry about
this, that the courts are handling this just fine. Records say
otherwise. Lower Federal courts have reached inconsistent
conclusions without definitive resolution. This is a policy
question, and the Constitution commits that policy question to
Congress.
Then there's the argument that none of this matters because
the SDOs have not gone out of business. I believe this misses
the point entirely.
The current system is like a dam, and the court decisions
are putting cracks in that dam, and those of us downstream,
right now it's just our feet that are wet, but if Congress
waits for the dam to break, we can't come back from this.
There's no alternative that is nearly as effective. Other
models, standards that are written by government or by
industry, either force taxpayers to foot the bill or let the
regulated industries write their own standards.
Every year, the standards that NFPA and organizations like
us develop prevent tragedies that no one will ever hear about:
Fires that don't start, buildings that don't collapse, and
families that come home safe. That's what we stand to lose if
Congress doesn't act.
I urge you to pass the Pro Codes Act and ensure that the
system that has protected Americans for more than a century can
continue to do so. Thank you and I look forward to your
questions.
[The prepared statement of Mr. Pauley follows:]
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Mr. Issa. Thank you. Mr. Kupferschmid.
STATEMENT OF KEITH KUPFERSCHMID
Mr. Kupferschmid. Chair Issa, Ranking Member Johnson, and
the distinguished Members of the Subcommittee, thank you for
holding this hearing and for inviting me to testify on this
very, very important issue.
In addition to over two million individual creators that we
represent, the Copyright Alliance also represents the copyright
interest of motion picture studios, record labels, and
publishers of books, music, and newspapers, to name just a few,
that are commonly associated with copyright.
We also represent organizations that the typical person may
not associate with copyright but who, likewise, rely heavily on
its protections for their businesses. One such group is
standard development organizations, or SDOs for short.
Importantly, we also represent numerous organizations that use
and license these standards.
The urgent issue we are here to discuss today is how we
could ensure that high-quality copyrightable standards continue
to be developed and updated while also promoting public access
to those standards when they are incorporated by reference into
the law, or IBR'd for short. When a standard is IBR'd, the
public should have access to that standard.
To be clear, that access is being provided today. Standards
are widely available. They're available for free online and for
reasonable prices via print and through subscription.
Significantly, there is absolutely no record of individuals not
being able to access these standards.
The cases that have been litigated all involve either
commercial enterprises, like UpCodes, or ideological
organizations like public resources, not individuals. While
UpCodes and public resources claim they are promoting public
access, the records of these cases do not reflect any true lack
of access or availability.
As to the copyrightability part of the issue, I've not
heard anyone suggest that the standards are not protected by
copyright on creation. There is no existing copyright doctrine
under which standards would or should lose their copyright
protection when they are IBR'd. In other words, IBR'd standard
presents a totally unique issue, one in which the courts are
ill-fitted to solve.
Litigation in Federal courts has created uncertainty
regarding the copyright status of standards that have been
IBR'd. This lack of clarity and misapplication of law threatens
to destabilize the entire standards development ecosystem.
Moreover, when these courts misapply standards for
copyrightability or fair use, the resulting analysis and
decision by these courts have a ripple effect that harms not
only SDOs but also has the potential to harm many other
copyright owners.
Congress, not the courts, is best positioned to establish a
consistent and fair approach to this issue. Only Congress can
address this tension by interpreting the law as it is written
and setting the record straight when courts misinterpret the
law and stretch it in ways that are unbalanced, unfair, and
misguided.
The Pro Codes Act attempts to directly address this tension
by ensuring that the public has access to standards that are
IBR'd without cost while clarifying the copyright protections
that make the development of these standards possible in the
first place.
The benefits of this approach are substantial and far
reaching.
First, it preserves the incentives that drive the creation
of high-quality standards. By maintaining copyright protection,
the Act would ensure that SDOs can continue to fund their
operation, to invest in research and development, and to update
standards to reflect new technologies and best practices.
Second, it promotes public access. Anyone who must use
these standards will be able to view the relevant standard
online at no cost. This enhances transparency.
Third, it benefits taxpayers and governments. Without this
system, the burden of developing complex, technical standards
would likely fall on government agencies, requiring significant
public funding and the creation of new bureaucratic
infrastructure.
Fourth, it supports effective governance. Legislators and
regulators can continue to rely on expert-developed standards,
rather than attempting to replicate that expertise within the
government, a task that they are ill-suited for and would be
both costly and ineffective.
In conclusion, the Pro Code Act represents a pragmatic
middle ground. It does not require choosing between public
access and copyright protection. Instead, it achieves both. It
ensures that the public can access standards when IBR'd, while
preserving a system that produces the law's technical content.
This is the kind of legislative solution that is most
effective, one that recognizes the legitimate interest on all
sides and crafts a balanced approach while also serving the
broader public good.
The timing of this legislation is critical. Courts are
actively grappling with these issues, and the risk of divergent
and incorrect interpretations is real. Acting now allows
Congress to provide guidance before a patchwork of conflicting
decisions take hold. For these reasons, I respectfully urge
this Subcommittee to advance the Pro Codes Act in some form.
Thank you for your time and consideration. I look forward
to answering your questions.
[The prepared statement of Mr. Kupferschmid follows:]
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Mr. Issa. Thank you. Mr. Delli Venneri.
STATEMENT OF JOHN DELLI VENNERI
Mr. Delli Venneri. Chair Issa, Ranking Member Johnson, and
the Members of the Subcommittee, thank you for the opportunity
to testify today. I'm John Delli Venneri, General Counsel of
the American Society of Mechanical Engineers, abbreviated as
ASME.
ASME is a 501(c)(3) nonprofit standards development
organization, commonly referred to as an SDO, that has served
the engineering profession and the public since 1880. Broadly
speaking, our standards help ensure that construction cranes do
not collapse, nuclear facilities do not fail, oil and gas
pipelines do not rupture, and the turbines used in civilian and
defense applications are cutting edge.
ASME's flagship boiler and pressure vessel code--here I
have one volume out of 33--is used by manufacturers as a
foundation for many civilian and defense technologies.
The Pro Codes Act harms ASME's copyright and that of other
SDOs materially, perhaps existentially. It does so by
fundamentally reshaping copyright law to benefit a single type
of SDO while eroding the copyrights of others. Because of this,
nobody should make the blank statement that this bill is
universally good for copyright because it isn't good for ASME's
copyright and other SDOs like it.
Let me make three points to demonstrate this:
First, the Pro Codes Act picks winners and losers.
Second, it weakens U.S. national security and leadership
and standards development at a time of increasing geopolitical
competition.
Third, it rewrites fundamental copyright law by introducing
the concept of a conditional copyright.
First, this bill is a mandate that picks winners and
losers. The scope of this bill is broad. The standards ASME is
trying to protect are not local building and fire standards.
The standards that I'm asking this Committee to protect are
broader in scope, aimed at a different audience and used in a
different way.
The operation of the Pro Codes Act is automatic. There's no
due process attached anywhere to this legislation. There's no
limit to the number of codes that can be incorporated by
reference or how many of these codes can be referenced. Here is
an important point: Under current copyright law, a standards
holder has no way of preventing incorporation by reference.
To put things simply, the Pro Codes Act has no mechanism to
distinguish between the standards of a set of rules for the
erection of a carport and a set of differential equations used
by nuclear engineers to design a safe, small, and modular
nuclear reactor. This is not to suggest that these other
standards do not play an important role in our society, but
that is why organizations like ASME and the Society of
Automotive Engineers oppose this bill.
Second, the Pro Codes Act risks national security and
leadership and standards development. Technological standards
are not simply a set of rules. They enable the development of
cutting-edge technology that is safe, repeatable, and
interoperable.
The United States leads the world in standards development
because of a system built on private sector expertise,
voluntary consensus, and sustained investment. Because of ASME
and other organizations like us who create complex standards,
the United States leads the world in technologic and scientific
innovation. In a new geopolitical world where rival countries
have recognized that standards can be used to affect how
technology evolves, we should not cede this important U.S.
leadership role.
Third, the Pro Codes Act fundamentally changes the law of
copyright, rendering it contingent on the decisions of any
governmental body. Copyright has long provided creators with
exclusive defined rights, including the ability to control the
distribution of their works. The Pro Codes Act fundamentally
changes that framework. It now interjects an entirely new
concept of copyright, which is conditioned on the decisions of
government. The result is force publication--force public
distribution of privately developed works, without
compensation. This is not protection. It's compelled
forfeiture.
In conclusion, the Pro Codes Act is presented as a balanced
solution. It is not. It's a mandate that, (1) picks winners and
losers; (2) weakens U.S. national security and leadership in
standards development; and (3) fundamentally rewrites copyright
law to erode, not protect, copyright.
If Congress is going to pass legislation, it must not
contort the law to protect one set of private actors while
potentially destroying others. I ask this Committee to reject
the Pro Codes Act.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Delli Venneri follows:]
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Mr. Issa. Thank you. Mr. Band.
STATEMENT OF JONATHAN BAND
Mr. Band. Chair Issa, Ranking Member Johnson, and the
Members of the Subcommittee, thank you for the opportunity to
share the library perspective on the Pro Codes Act.
I represent the Library Copyright Alliance. Today, I'll
discuss our concerns with pro codes and how it interferes with
public access to the law, then I'll propose a better way
forward: Governments directly incorporating standards into the
law rather than just incorporating them by reference.
Libraries are strongly committed to the government edicts
doctrine, the principle that no one can own the law. We believe
that once a portion of a standard is incorporated into the law,
whether directly or by reference, that portion enters into the
public domain and can be posted freely online. Pro codes are an
attempt to reverse the government edicts doctrine in a narrow
but significant way by affirming copyright ownership over IBR
standards.
I have four points concerning pro codes.
First, pro codes are unconstitutional. The government
edicts doctrine is rooted in the Constitution. Allowing a
private entity exclusive ownership of the law would run
contrary to the rights of free expression and due process.
I acknowledge the bill's attempt to limit its adverse
effect by requiring a degree of public access, but this public
access requirement is insufficient to cure the bill's
constitutional infirmity. The bill does not require the full
text of the public access version to be searchable,
downloadable, or reproducible. The bill would still interfere
with a person's ability to understand and comment on their
legal obligations.
Second, pro codes would limit public access to the law.
Because of the limited read-only nature of its public access
requirement, pro codes would make it difficult for members of
the public to access the law in IBR situations. Also, the Act
would codify existing restrictive practices of SDOs that
require users to create an account and agree to terms of
service to access the material online. The net result is the
bill would restrict public awareness of the law, escalate the
cost of homeownership by increasing costs to builders, and
inhibit commentary and criticism, among other negative impacts.
Third, pro codes are based on an incorrect premise. The
basic premise of pro codes is that without the incentive
provided by copyright, SDOs would not undertake the costly
standard development process. This premise is incorrect. In the
vast majority of cases, industry participants have an economic
incentive to participate in the development of standards.
Often, SDOs lobby government entities to adopt their standards
as law. In the absence of copyright protection, SDOs would
still develop standards and then request government entities to
adopt them as regulations.
Also, in the recent fair use litigation, courts have found
that the reposting of IBR standards has not caused harm to the
market for those standards.
Fourth, pro codes would not achieve the certainty its
supporters seek. Even if pro codes were enacted, the SDOs would
not necessarily be able to prevent the reposting of IBR
standards with any certainty. A court might still find that the
reposting of an IBR standard was a fair use. In the recent
litigation concerning the reposting of standards, the courts
have permitted the reposting under a fair use theory.
Direct incorporation is a better way to address this issue.
IBR is an analog-era solution that was necessary when
voluminous standards were available only in printed
publications that were expensive to produce. Now, that
standards can be made available digitally, it would be more
efficient and effective to require government agencies to
incorporate standards directly into codes and to make the
complete codes available online from the official agency
website.
Before direct incorporation, the agency might have to
request a royalty-free license from the SDO. We expect that
most SDOs would eagerly grant such a license because their
objective in creating the standard in the first place was for
it to be adopted by an agency as a regulation.
I'm happy to answer any questions the Subcommittee may
have.
[The prepared statement of Mr. Band follows:]
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Mr. Issa. Thank you. We'll start off with Mr. Fitzgerald.
Mr. Fitzgerald. Chair, thank you very much.
Mr. Pauley, let me start with you. These numbers are what
you laid out, but fire incidents since 1980 have declined by 54
percent, and home fire deaths have declined by 44 percent over
the same period. Because of the work of the standards
development organ--the SDO, like NFPA--in other words, when
Americans go to bed tonight, they're safer because of the
standards your organization has developed. Do you think that's
correct?
Mr. Pauley. I would agree with that statement, sir.
Mr. Fitzgerald. Your standards development process is
currently self-funded, right?
Mr. Pauley. That's correct.
Mr. Fitzgerald. On average, how many do you think--how much
do you think it costs--that's a tough one to answer maybe--of
what it costs for an NFPA to develop a new standard or update a
current standard that might be in place?
Mr. Pauley. I appreciate that question. It is a tough one
to answer. The vast majority of our expenses that we incur do
go to the development of standards, because it's not just--I
realize people think of it as just words on paper, but I have
engineering staff that have to staff technical committees. I
have IT staff that has to put the systems in place to be able
to update those standards.
We have to operate as an entire function to be able to
carry out this work. The vast majority of our expenses do go--
we don't track it by individual standards. We look at it as an
entire process.
Mr. Fitzgerald. The copyright attached to the code is the
primary revenue that's generated to fund that process.
Mr. Pauley. Yes, sir, Representative Fitzgerald. It makes
up about 70 percent of our revenue comes from the sales and
licensing of our codes and standards.
Mr. Fitzgerald. You think you could continue to have the
self-funded model absent the Pro Codes Act?
Mr. Pauley. No, sir. I believe that's exactly what's at
risk today, is that the model works not only because it's self-
funded, but because it also allows us to be independent, and
that's such a critical part in the development of codes and
standards. We put people around the table so that no one entity
or interest can control the outcome of that standard. Us being
independent is what's important to do that. If we have to do
that by taking money from industry, it won't be independent. If
we have to take money from government, it won't be independent.
This model's worked for a century, and it has worked well
and it has served the public well.
Mr. Fitzgerald. Very good. Thank you.
Mr. Venneri, I don't want to put words in your mouth, but
your association's concerns with the proposed Pro Codes Act, a
lot of it seems to be centered around the mandated posting of
the codes online. Is that an accurate statement?
Mr. Delli Venneri. That is correct.
Mr. Fitzgerald. OK. That's because some of the codes are
for national security, critical industries, and specific types
of technologies. Is that correct?
Mr. Delli Venneri. It's not necessarily just the
technologies, Mr. Fitzgerald. The question and the problem with
the Pro Codes Act is that the person or the entity that decides
whether or not my copyrighted material must be posted online
for free is not the copyright holder. It's not ASME. It's the,
roughly, 50,000-90,000 jurisdictions in the United States that
decide what they want to incorporate and what they don't want.
Because the premise pooled commission can take my 33-volume
standard and say we're incorporating by reference, it
automatically puts a mandate on me to publish that out on the
web, and I don't have control over that.
Incorporation by reference is not a copyright violation. I
have no way to stop anybody from incorporating by reference. If
you've got enough jurisdictions out there incorporating this,
incorporating that, you're going to essentially wind-up with
having the whole out there.
The other piece of our standards that are different than
Mr. Pauley's is our standards are for manufacturers. By the
time our standards--by the time a product gets into the hands
of a consumer, all the compliance is done by the manufacturer,
not by the consumer.
They're different, and that's part of the reason why I have
an issue with the bill as drafted, because it's one size fits
all no matter what kind of standard you're dealing with.
Mr. Fitzgerald. One more followup, I guess, would have been
some discussion about national security implications. Can you
just reference that quickly? What could they be?
Mr. Delli Venneri. Absolutely. Manufacturers come to us
because we're a 501(c)(3), and they donate their time. The
concept that I'm trying to get around is it costs a lot of
money to do these very highly technical codes. If you take away
my revenue source, I leave the field. Then, who is going to
come into that field? It's going to be geopolitical rivals.
Mr. Fitzgerald. Thank you, Chair. I yield back.
Mr. Issa. I thank the gentleman. We now go to the gentleman
from Maryland for five minutes.
Mr. Johnson. Thank you--
Mr. Issa. Oh, I'm sorry. The gentleman from Georgia.
Mr. Johnson. I'm sorry. I didn't catch it. Mr. Delli
Venneri, I'm having trouble understanding how the legislation
could be improved to accommodate your criticisms, which are
that it draws no meaningful distinctions between highly
technical engineering standards as opposed to the text of laws,
or between standards incorporated in their entirety as opposed
to standards incorporated only in part, or to standards used
extensively as opposed to standards used rarely.
Why do these differences matter in terms of adoption of the
Pro Codes Act as written, and how could it be written
differently to accommodate your concerns?
Mr. Delli Venneri. he Pro Codes Act, again, is blind as to
the type of standard that is being incorporated by reference,
and the incorporation is not done with our permission, right.
It's just done by governments anywhere.
Mr. Johnson. That's true with the other organizations as
well.
Mr. Delli Venneri. With different models, it may work,
right. My issue is it doesn't work for my organization.
Mr. Johnson. Why?
Mr. Delli Venneri. Well, let me explain to you a little bit
about the codes business. Not every one of our codes makes
money. As a matter of fact, the vast majority, overwhelming
majority don't. There's a handful that do. If I have
governments, 90,000 governments out there deciding what needs
to go out in the public domain and what doesn't, I could lose
my entire royalties.
Mr. Johnson. OK. Thank you. A standards developing
organization's primary function is to create uniformity across
producers, consumers, government agencies, and other relevant
parties concerning a product's specifications and protocols.
These groups perform this coordination to ensure that products
may be used and can perform according to their intended
purposes.
Mr. Pauley, I'm interested in how a standard is developed
from inception through adoption and who participates in that
process and how are the participants in the process selected.
Mr. Pauley. Thank you, Ranking Member Johnson, for that
question.
Let me start a little--I've been involved in the standards
process for a really long time, so I'll try to compress it and
be as brief as I can in its explanation.
Standards generally have to come from an idea. In NFPA's
case, it is, unfortunately, often been on the backs of
tragedies that standards have been developed because of some
event or some occurrence, and we recognize the need for a
standard to be able to put in place.
One of the examples I'd like to use for you in this is a
standard we are working on right now called NFPA 800, the
battery safety code. I don't think I have to tell this
Committee about issues that have been seen with batteries,
lithium-ion batteries, and batteries used throughout our entire
society.
We published that we were going to produce this code, and
we received public comments back from people that would say,
this is a good idea, it's not a good idea, I would like to
serve on the committee. We take all that input in. We draft a
scope for that particular standard, and then we begin to
assemble the committee.
What's very important in what we do in this process, as
governed by the rules of our own rules and the rules of the
American National Standards Institute that accredits standards
developers, open, transparent, and consensus-based. What we
look for are people that have an interest in the topic and that
can bring expertise to the table, but we create a balanced
committee. That battery committee can consist of manufacturers,
of insurers, of designers, and of installer-maintainers of
those systems. The list can go--we have about nine different
classifications.
What's a very important part of this process is, in our
case, no more than one-third of an interest can make up the
committee, but two-thirds of that committee has to agree before
you can actually add something or agree to the standard. We've
created this balanced, transparent process. From there, the
draft of that standard can be put out for public review, and it
takes public inputs.
This document that I have in front of me, the National
Electrical Code, every three years gets about 5,000 public
inputs for changes to this document. The committee operates on
every one of those. They have to address every one of those
inputs that comes in.
Mr. Johnson. Is that what drives revisions and updates?
Mr. Pauley. That is exactly what drives revisions and
updates. We will update this document every three years,
regardless of what is happening from the standpoint of whether
government is using it or not or whether it's incorporated by
reference.
What's important also, not only do they address all those
inputs, that result goes back out transparently for public
review. In this document, about another 5,000 public comments
come in. Those get addressed by the committee, voted on,
balloted. That result gets produced, and ultimately the
standard finishes our process by going through the final steps.
What's also very important in this process is we have to
operate an appeals process. There has to be an appeals
mechanism where somebody can say, we believe I was treated
unfairly. We have an entire appeals body that does that.
Mr. Johnson. All right.
Mr. Pauley. I'll finish by answering your last question.
The group that appoints the members of that committee is not
NFPA staff. We have a group called our Standards Council that
is made up of 13 voluntary members. They are from various walks
of industry. That council is responsible for the appointments
on the committee to ensure that we have open and balance inside
of that process.
Mr. Johnson. Thank you. I yield back.
Mr. Issa. Thank you. The gentleman yields back. We now go
to the gentlelady from Florida, Ms. Lee.
Ms. Lee. Thank you, Mr. Chair.
Codes and standards are around us everywhere, from the
buildings we live in to the systems that keep us safe, and for
decades, the United States has relied on successful public-
private partnership where expert standards are developed by
private organizations and then incorporated into law.
As we're hearing today, that system today is under strain.
Courts are sending mixed signals about whether those standards
retain copyright protection once incorporated by reference,
creating uncertainty that risks undermining both public access
and the incentives that are needed to develop high-quality
standards.
At the same time, we cannot lose sight of the core
principle that Americans should be able to access and
understand the laws that govern them.
Today, I know we work to try to strike the right balance
between protecting innovation and public safety while ensuring
meaningful access. I appreciate very much the Chair for
convening this hearing and all of you for helping us with this
important and complex discussion.
Mr. Kupferschmid, I'd like to start with you. One of the
things you mentioned earlier was that recent court decisions
have created uncertainty around whether standards incorporated
by reference remain protected and that courts have developed
some inconsistent rulings. Could you tell us a bit about what
some courts are getting wrong in your view?
Mr. Kupferschmid. Yes. Thank you very much. I work in all
different areas of copyright. I can tell you this particular
area is more chaotic than any other in terms of when the courts
take on issues relating to copyrightability or fair use. There
are direct and conflicting decisions on copyrightability, on
fair use, throughout the country in different circuits.
On copyrightability, we have differences between the Second
Circuit and the Ninth Circuit agree. We have a bunch of courts
that is copyrightable. We have courts in the Third Circuit, I
think the Eastern District of Missouri, D.C. Circuit, which are
either ambiguous or silent on the copyrightability issue.
Then we have the Veeck case of the Fifth Circuit, which was
decided about 25 years ago, in about a quarter century. No
other court outside of the Fifth Circuit has decided to adopt
that rationale and say, look, these codes and standards lose
their copyright-
ability.
On fair use, we have a similar challenge, right. The
Supreme Court came out with this big, very, very important case
in May 2023, I think it was, the Warhol Foundation case, and in
that case it set standards for how the first factor of fair use
should be interpreted.
Since that case came out, we now have two separate cases,
both saying completely opposite things on fair use. That's why
ultimately we're here. We're here because we need some clarity.
We understand there needs to be a compromise; there needs to be
balance. We realize that not everyone is going to be happy. We
have extreme views sitting here. On one end of the table, we
have someone who doesn't want any copyright protection at all.
The other one is kind of ignoring all these cases that are
threatening us.
We need to find a compromise. We need to find a balance.
The pro codes is a good step in the right direction.
Ms. Lee. A related question. One of the things too that you
mentioned was that this was an area where Congress needed to
step in and needed to do so, I believe, more imminently. Would
you explain why you believe congressional action is important
rather than allowing that case law to continue to develop?
Mr. Kupferschmid. Well, it's not just me that thinks that
way. We've had at least three, I should say, courts in
different jurisdictions say, Congress, please help us out here,
right. They have said in the actual decision, in absence of
congressional direction here, we're going to do our best to try
to figure this out, and they are not doing a good job. There
are a lot of uneven, inconsistent decisions. What's going to
happen is those decisions aren't going to hurt just SDOs. They
are going to hurt and be applied in other copyright context and
hurt.
Really this is a type of issue that Congress has in the
past jumped in and legislated on, and it would be appropriate--
very, very appropriate for Congress to jump in and legislate
here as well.
Ms. Lee. Thank you. I'll yield the balance of my time to
the Chair.
Mr. Issa. Thank you. I'll followup on that with Mr. Delli
Venneri. If we made changes--and you know we've been
negotiating with your organization to try to find common
ground, and as we can tell by your opening, we didn't find it.
If we said, for example, that only if you give consent to be
included by reference, then this would act, would that be
acceptable to you? If not, why not?
In other words, you often say that you don't try to get
included by reference, but when you do, you don't sue them and
say, how dare you include my copyright, and please don't. The
question is, on those occasions in which you are to be included
by reference, would you agree that if, in fact, you consent to
it, you sign onto this bill, if you openly reject it and try
not to, that you would, in that case of notice, you would not
give up your right and have to post it?
Mr. Delli Venneri. I would like to first just add one
thing, that our process is almost identical jot for jot with
Mr. Pauley's process. I don't want to bore the Committee with
that same testimony again. OK.
Mr. Issa. We do appreciate the work that all your
organizations do. That is not the conundrum we face here today.
Mr. Delli Venneri. Understood. I think we're only going
halfway. Yes, a fundamental problem is the mandatory posting.
Absolutely. That would go a long way to getting where we need
to go.
I'm actually interested in some of the statements that were
made today about inconsistent court cases and inconsistent
results. There are always inconsistent results in court cases,
but the courts have consistently used fair use to decide the
issue. Now, fair use is a case-by-case decision, right? It's
based on the standard, the use, the infringement, all the rest.
It's not surprising that you're going to have different results
applying that same rule.
I would say, I'm not ignoring the law. One of the problems
that I've had since day one with the Pro Codes Act is it's not
addressing the fundamental doctrine that the courts are using
to decide this issue, and that's fair use.
Understand that fair use--for fair use is even to be
invoked as a defense--which is what it is--you have to have a
copyright violation, which means you had a valid copyright to
begin with. The Pro Codes Act doesn't go anywhere near
protecting copyright. It just restates the predicate that you
need for fair use to be actionable, or to be invoked by a
defendant.
Mr. Issa. To be continued. We now go to the gentlelady from
California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chair. For many years, I have
been involved in this issue to protect access to the law. I
filed amicus briefs in cases where SDOs sued
Public.Resource.Org for posting legal standards online.
As you've mentioned, sir, the courts have consistently
defeated the idea that you can copyright protection of the law,
that there is fair use. In fact, in 2023, in ASTM v. PRO, the
circuit twice held that the noncommercial dissemination of such
standais are incorporated--as incorporated by referencing the
law are fair use. The circuit in 2026 found the same thing.
The Supreme Court in Georgia v. PRO found that this is fair
use. Justice Roberts said no one can own the law. Justice
Thomas said, ``statutes and regulations cannot be
copyrighted.'' I think the law is clear.
I just think, Mr. Band, in the amicus brief in ASTM v.
Public.
Resource, the NAACP noted that--and this is a quote, ``Without
the information contained within the technical standards at
issue, Black and low-income communities are fighting blind
against landlords and other powerful, well-resourced
adversaries. For these communities, access to the standards is
access to justice.''
Does this bill create a two-tiered system where some people
get limited access to the law and those who pay can get better
access?
Mr. Band. Yes. Thank you for the question, Representative
Lofgren. Yes, it absolutely would create a two-tiered system,
or at least a two-tiered system because the reading rooms that
the SDOs have established and that this legislation would, in
essence, bless typically involve access that just doesn't make
sense in 2026.
Ms. Lofgren. Right.
Mr. Band. The fact that these standards are--or that these
standards--you can't download them. You can't cut and paste
them. It makes it much, much more difficult to use. Just having
a PDF online really is not access.
Ms. Lofgren. Really, tenants or homeowners or workers would
not have the same access. Let me just move on to another issue.
Mr. Pauley, you mentioned that these reference standards
don't really have legal effect, but I would like unanimous
consent to put into the record the fact sheet from NFPA which
says this: ``The code references various organization standards
within their requirements, and once the code is implemented by
the authority having jurisdiction, those reference standards
are a legally enforceable part of the code.''
I would ask unanimous consent to put that into the record.
Mr. Issa. Without objection.
Ms. Lofgren. I would like to ask unanimous consent to put
the amicus brief into the record.
I just would like to note there have been comments made
about whether or not these standard-setting organizations can
survive, but I would just like to note, since all the cases
have been lost in the courts, the financials are still going
forward. I mean, ICC financials--their revenue in 2024, after
they lost the court decisions, was $100 million. NFPA, after
they lost, the courts precluded what they are asking to change
now, their revenue was $115.1 million, and I would ask
unanimous consent to put these financials into the record, Mr.
Chair.
Mr. Issa. Without objection, all 990s of all nonprofits
will be placed in the record.
Ms. Lofgren. That will be fine. I just think it's not that
we don't care about what the SDOs do. Obviously, we do. What we
care most about is upholding what the court found and what the
public deserves, which is free and full complete access to the
law that they are bound by. The idea that we should charge
people or impede access to what people are bound to live by is
just inconsistent with due process and the American system of
justice.
I see my time has expired, Mr. Chair, so I yield back.
Mr. Issa. The gentlelady yields back. We now go to the
gentleman, Mr. Gooden, for five minutes.
Mr. Gooden. Mr. Pauley, could you touch on the last comment
about the accessibility to the codes, PDF versus searchable,
and how they wouldn't necessarily be accessible to all? I just
want to understand that because I hear that often.
Mr. Pauley. Thank you, Representative Gooden, for the
question.
For NFPA, we have placed our codes and standards online for
free access for coming up on 20 years now. By the way, just to
be clear, we don't do that with just the standards that have
been incorporated by reference, we do that with our entire
library of standards, whether they have been incorporated by
reference or not. We do believe that the transparency access to
this is important, but it's also a balance.
In the case of NFPA's free access model, you can go to our
website. You can pick any of those 350 codes and standards,
click on the free access button. We ask for minimal
information, typically an email address and so forth to get in,
and you can read that entire standard, everything, from cover
to cover. It has a searchable table of contents. There's an
index in the back for it to be used. It is not downloadable or
printable or, in this case, either searchable at least by full
text other than those things I mentioned.
That's the balance that we're talking about in this case.
The reason why that model has worked is because it allows
people that want to have access to read the standard to have
access.
The professionals that utilize the document, they subscribe
or they buy a copy of the standard that it is that we're
talking about. If I put, as was suggested, everything online
completely for free, downloadable, or if a government did that
on their website, why would anybody pay me for a copy of the
standard? Suddenly, the funding model that has funded the
entire standards system is now gone.
We believe that transparency and access to the standards is
important, and we've been doing it with a two-decade track
record as was brought up, we've been able to do that, and yes,
we are still in existence as an SDO in that process.
Mr. Gooden. If we fail to pass the Pro Codes Act, how would
you argue that this impacts the health and safety of Americans?
Mr. Pauley. What's most important about the Pro Codes Act--
I understand a lot was talked about the court cases. I am not a
lawyer that's up here in front of you. What is at risk is the
copyright protection that we have in place. If that copyright
protection goes away, then the safety and health of Americans
are affected because we can no longer produce the standards.
I agree with Mr. Delli Venneri. Copyright is important to
us. By the way, I share the same thing that he does. A few of
our standards actually generate the revenue. The vast majority
of them do not.
What's important about the Pro Codes Act, from NFPA's
perspective, are two basic principles: It reinforces the fact
that you don't lose copyright just because your standard is
incorporated by reference, and it promotes transparency to the
public of those particular elements.
Again, without it, I'll go back to my dam analogy. The
courts are really putting cracks in the dam. The problem with
copyright is, if the dam breaks, we lose copyright. You can't
come back from that. It's gone. That, I believe, is the reason
why it's imperative that Congress act.
Mr. Gooden. Thank you. I yield back to you, Mr. Chair.
Mr. Issa. Thank you. Mr. Pauley, I'm going to followup on
that. Earlier, we quickly glanced at one of your books, and I
asked you to keep track of that, and would you just briefly
read it? It's on iron-air storage related to electric EV
stations.
Mr. Pauley. Yes, Mr. Chair. This is out of NFPA 855, which
is our Standard for the Installation of Stationary Energy
Storage Systems. The particular section: Hazard conditions for
iron-air batteries under normal operating conditions are as
follows:
Fire hazards. There is the potential for concentrations of
hydrogen from iron-air batteries if the area where the
batteries are located is not properly ventilated.
Mr. Issa. Without objection, I'm going to consider that
whole paragraph inserted in the record.
Now, is any part of what you started reading a code, a law?
Mr. Pauley. Mr. Chair, it is not the law. It is a set of
elements that the committee has put forward.
Mr. Issa. The guidance, the how-to that I'll find in every
one of these and thousands of other books--including Mr. Delli
Venneri's company's organizations--we're not talking just about
statute. If, in fact, we only were--these court cases, if they
were only dealing with a very narrow gobbledygook that we see
in U.S. 35 blah, blah, blah, it wouldn't tell you how to do it.
It wouldn't tell you some of the concerns. It wouldn't educate
you in the way that your books and standards books do for all
of you, from what I understand. Is that correct?
Mr. Pauley. I would agree with that.
Mr. Issa. OK. I'm just going to yield back the time I was
so nicely granted by making the point that Mr. Delli Venneri
made--which I agree with--which is one of the problems here is
that what's being referenced as a law is only a small part of
the documents that all your organizations are producing.
With that, I would go to the gentlelady, Ms. Ross, for her
five minutes.
Ms. Ross. Thank you, Mr. Chair, I want to thank the Ranking
Member for letting me go before he does.
I'm thrilled that we're having this conversation and that
we have the whole range of opinions about how to solve this
problem, but the fact of the matter is, it is a problem. It may
not be a problem in certain areas where--certain jurisdictions
where both the people who make the codes and the people who
want to create access have come to some agreement. I thought it
was very interesting that Mr. Band actually talked about the
concept of a license. We talked about that a lot.
What I'm seeing here is that there are two things that are
going on. (1) A fundamental tension that we've always had in
our law, and (2) is a looming problem. This fundamental tension
that I'm seeing--and I served on the Uniform Codes Committee in
the North Carolina General Assembly for many years. People
thought it was the most boring committee. I actually thought it
was very interesting to see all the work that goes into
producing these independent codes.
Well, of course, the North Carolina General Assembly wanted
to adopt some of these codes and not do the work itself, but a
good thing about doing that is the lobbyists don't get
involved. The industry doesn't get involved. You really get a
better, more scientific, more truthful way of doing it.
When a government takes property, even for public good--
which is a taking under the Fifth Amendment--they compensate
the landowner. If the General Assembly in North Carolina wants
to build a highway and they want to take somebody's front yard,
they pay fair market value or fair value for it because there's
a public good. Because they recognize that property right.
Copyright is a property right. It's a temporal copyright. It
has an expiration date. It is a property right.
For that reason, a really easy way to resolve this--but
nobody seems to want to do it--is to actually pay people like
you pay them when you take their front yard for a highway.
Then, their license fees, they don't even have to be big
license fees. Just enough to support this. Nobody wants to pay.
They want to hide behind fair use.
I love fair use. I was a professor. I use fair use all the
time. When I taught my students, I did copies of things. I
taught the law. We went out and did it. However, to really get
good access to the law, you actually had to pay, by the way,
Lexis or somebody else.
When you are going to say that fair use covers something
that can be further monetized, like what we see with UpCodes,
then that is not fair use anymore; that is taking the industry
of somebody who has copyright protection, using everything that
the wonderful libraries are talking about for your own benefit,
and monetizing it.
That is exactly what is going on right now with AI. What is
going on with AI, is they are saying, ``Oh, there's a public
good for us to use newspapers and artists' work, and we
shouldn't have to pay for that because we're doing so much and
AI is so wonderful.'' Well, AI is wonderful when it produces a
public good, but when you're get to make money off it, no can
do. That's why Anthropic lost its lawsuit.
What we're doing here is trying to have that balance,
trying to provide people in libraries and people who need
information with information, but also, compensate people for
their industry.
I want to turn to Mr. Kupferschmid because he does
represent people in a broader way and ask him whether I'm
seeing this in a reasonable way, and whether expanding the fair
use doctrine is a further threat to copyright.
Mr. Kupferschmid. Yes. As you were speaking, I was just
thinking--sort of nodding in agreement with everything you said
because your approach to the issue and your statements are spot
on in terms of this is about balancing. If you don't have the
correct balance, you may see the SDOs disappear, or a real
threat to their industry for certain. I think that is something
that is very significant.
The AI issues you mentioned, obviously, we're in agreement
there. We hope the courts agree with what you just said as well
and come out on that.
We're big supporters of fair use. There's nothing that's
sort of categorically fair use one way or the other. There
certainly will be instances where using codes and standards
will be fair use and other instances where it should not--
certainly should not be fair use.
Ms. Ross. OK. Thank you, and I yield back.
Mr. Issa. I thank the gentlelady. We now recognize the
gentleman from California, Mr. Kiley.
Mr. Kiley. Thank you, Mr. Chair. Thank you for convening
this hearing and for this legislation.
There are a few questions that we need to consider at a
higher level here.
First, do we want to do something or nothing as a Congress
in the face of the courts handling this matter in a way that
has created uncertainty? The clear answer is we want to do
something to produce some level of certainty.
Second, whether we want to empower or weaken the process of
standard setting, which has served to tame the complexity of
modern life and allow coordination to triumph over chaos. The
clear answer is that we want to strengthen that process.
Third, do we want to strengthen or weaken the voluntary
associations that have allowed the process of standard setting
to play out with a broad range of expertise that would be very
hard to replicate through some government-engineered process?
Again, the answer is that we want to empower those
organizations.
With that in view, that we have a pretty clear set of goals
here, and the question just is how do we strike the balance?
This legislation is aiming to do that. Perhaps it could use a
little more refinement. That's why we're having this hearing.
Just to followup on the Chair's questions a little bit, Mr.
Pauley--so, when you incorporate by reference, you're
incorporating the standard, but the work product of the
standard-setting organization encompasses commentary, drawings,
illustrations, prefaces, everything else. There is that
distinction, right?
Mr. Pauley. I'm sorry. You mean with respect to or as
compared to what?
Mr. Kiley. If a standard is incorporated by reference, the
only thing that's sort of part of the public body of law, then,
is the standard itself. It's not all the supplementary material
that your organization produces.
Mr. Pauley. Well, I would agree with you. This is part of
the issue, I believe, and the lawyers on the panel can help me.
The problem with some of the courts are they have taken a
long--even some of the supplementary information that's in the
standard and included that to say it's the entire standard, and
that is indeed one of the challenges.
One of the points that was made along the path that's
saying--there is a lot of what we refer to in the standards
world as annex material, which is important material to have
but not necessary to apply the rules of this standard itself.
The courts have taken this thing in great--or in whole, again,
is why I believe it really begs for a policy question for
Congress to really deal with.
Mr. Kiley. Yes. Do you think--and I'll take your opinion on
this as well, Mr. Kupferschmid--that this bill, as we've
written it, makes that distinction in the right way? Let's
forget standards for a second. You can look at the U.S. Code,
the Code of Federal--the Book of Federal Regulations. There's a
lot there that wouldn't make a lot of sense if you just kind of
read it. The language of the law itself, it's cross-referencing
this section and that section.
There's all kinds of materials that exist that help people
interpret and give them advice on that this isn't necessarily
part of the law itself. Are we creating the right distinction
here?
Mr. Pauley. Well, I do believe that Pro Codes does strike
the right balance between these things. If we can ensure that
the copyright is protected overall, the access part of this of
whatever it is that you want to try to call the standard is an
important piece of the transparency that we talked about.
What would result, if I understood your question correctly,
would be trying to separate those two pieces out into separate
elements. I don't want to speak for my standards committees,
but what the standards committees would say on top of that is,
we've tried to assemble something that's useful for the people
that professionally use the standard, and our standards
committees are not thinking about this in terms of public
access or anything else. That's something we as the
organization have to be able to do.
Does Pro Codes strike the right balance between those? I
suspect there's all flavors of that. What's not clear to me is
how you would bifurcate those pieces with all the variations
that are out there.
Mr. Kiley. Mr. Kupferschmid? Thank you.
Mr. Kupferschmid. I agree with Mr. Pauley. When you're
talking about balancing these interests, there's definitely
different ways to do it. We are on record, and in the
testimony, I mentioned the fact that maybe it's better--instead
of attaching to copyright or kind of tying public accessibility
to copyright protection to copyright enforcement instead,
right? That might address some of the copyright infringement
cases that are coming out recently. Perhaps that's a way to do
it. Maybe there's additional tweaks or something to the bill
that can be made.
Ultimately, Congress is going to have to realize not
everyone is going to be happy here. This is about compromise
and trying to address individual interests and balance those
interests. The Pro Codes Act coming out of the gate is a very,
very good approach. Could it be better? Sure. I'm sure that it
could be tweaked this way and that way, and it should be, but
we are very supportive of the framework established by the Pro
Codes Act.
Mr. Kiley. Thanks very much. I yield back.
Mr. Issa. I thank the gentleman. We now go to the
distinguished Ranking Member of the Full Committee, the
gentleman from Maryland.
Mr. Raskin. Mr. Chair, thank you very much, and please bear
with me because I'm really just trying to figure this thing
out. This is complicated, OK?
My first question--and I'm not even sure who it's directed
to--is why do the government bodies not actually embody the
standards explicitly in the codes rather than incorporate them
by reference? I don't know.
Yes, Mr. Band.
Mr. Band. Again, that is a historical legacy from the print
days. Remember when we used to have to go to the physical
libraries to do all our research and nothing was online?
Mr. Raskin. OK.
Mr. Band. It was just voluminous to print.
Mr. Raskin. Has anybody ever challenged legislative
incorporation by reference? We use it when we file a complaint,
but has anybody ever said that's not law? Along those lines, if
somebody updates their code, does that need to go back to the
legislative body or is that just automatically incorporated by
reference?
Mr. Pauley.
Mr. Pauley. If I could, generally, when an incorporation by
reference is done, it is usually done by standard and by the
edition of the standard that is particularly stated. In the
case--I'm holding up the National Electrical Code. This is the
2026 edition. They would normally say, ``we're going to
incorporate by reference the 2026 edition of the National
Electrical Code.''
My understanding is, in the vast majority of cases, it
would go back to the legislature for whatever the next update
would be at some point in time.
Mr. Raskin. Gotcha. OK.
Mr. Kupferschmid. Can I answer the question from a
copyright law standpoint?
Mr. Raskin. Yes. I'm going to come back to you, but let me
just pursue Mr. Pauley for one second.
When you described how your system works--and you said it's
pretty much the same with--you've got the two-thirds
requirement. You try to bring in all the different players and
so on. That sounds kind of like a public process where you've
got your own rules and regulations, and then this legislation
makes it even more public. It essentially says that we're going
to allow people to incorporate by reference. We're going to
make it the law. We're going to grant you the continuance of
your copyright protection as long as you put it up online. Is
that basically right?
Mr. Pauley. Yes. I think you've basically described that as
correct.
Mr. Raskin. OK.
Mr. Pauley. It is certainly more transparent access--
Mr. Raskin. All right. Has this ever been challenged as a
delegation of public power to a private entity? Has the
constitutionality of this been upheld?
Mr. Delli Venneri. Well, certainly, it depends on the code,
and that's why I've been raising these distinctions, right?
Mr. Raskin. Yes.
Mr. Delli Venneri. For example, if you want to go to the
New Jersey electrical code, you can't find it. There's no
posting on the New Jersey--
Mr. Raskin. It just incorporates by reference. Is this
right? OK.
Mr. Delli Venneri. It just says go to their website,
essentially, OK? It really depends, that is the law jot for
jot, word for word--electrical code.
Mr. Raskin. Yes. Right. All right. Are your concerns
assuaged by either of these two things? (1) You've got the
right to opt out of this. I can see you don't like being
compelled to put your stuff up online just because a third
party--a legislature or city council or something--incorporates
by reference your work. You have no control over that. (2)
Suddenly, you are compelled to put your stuff online in order
to protect your copyright.
Are you OK with this: (1) if you're allowed to opt out or,
(2) if there is simply a statement that your copyrights are
unaffected by this? That is that they are neither impaired or
increased. It is just neutral. It's what the status-quo ante
was.
Mr. Delli Venneri. Well, I would say that your question
assumes that this isn't the right solution for everyone, and
this should be a solution for everyone.
Mr. Raskin. That's what I'm asking. How do you make it a
solution for everyone?
Mr. Delli Venneri. Well, you write a different law, right?
One that doesn't compel--
Mr. Raskin. What is your solution?
Mr. Delli Venneri. My solution is that we're going to have
to take a look at fair use. We're going to have to look at
those factors. We're going to have to give some guidance to the
court. I also want to, if I may, talk to what the--
Mr. Raskin. You mean change all the fair use doctrine?
Mr. Delli Venneri. Absolutely not. Just do it in such a way
to help the court get to perhaps different decisions. Also,
there's another couple of issues here that I--
Mr. Raskin. Well, do you disagree with Mr. Band that it's
obviously fair use when people access what's been defined as a
law in a particular jurisdiction? That's got to be fair use,
right? That's what the courts are saying, as I understand it.
Mr. Delli Venneri. Well, that's really sort of an
interesting question, OK?
First, the way that people use standards is to read them,
right? To Ms. Ross' point, AI--forcing people to put their
standards on the web, under the Anthropic decision, gives the
Anthropic--the agentic agent the ability to read it and exposes
us to all kinds of AI dangers, right? In certain respects, this
bill goes in the wrong direction with respect to AI, No. 1, OK?
Second, think about the precept here. Everybody wants the
public to have access to laws that govern them, right? The act
that makes people compelled to follow laws is the act of the
sovereign. What this bill basically says is that the sovereign
has a duty to give fair notice to its citizens, and it's really
saying, Oh, and by the way, we're not going to pay for that.
We're going to compel the SDO--the private SDO to finance it
through perhaps the loss of their standards.
If you think about it, who has that fair notice
requirement? It's the State. You are now under this bill
saying, OK, now you are ASME and you foot that bill, you lose
the sale of your standards. There's real problems with the way
that this bill is approaching it.
Mr. Raskin. Gotcha. Mr. Chair, I want to yield back. I am
afraid I cutoff Mr. Kupferschmid. Maybe someone else--
Mr. Issa. If he has a short answer, he is certainly free to
give it to us.
Mr. Kupferschmid. Yes. I will just say very quickly that,
under fair use analysis, a court should look at has the SDO
made it available to themselves, right? Is it publicly
accessible already, the standard, and if it is, that should
work against fair use. The problem is the courts don't really
understand that or aren't using that.
Mr. Issa. I thank the gentleman and yield back. Mr. Fry.
Mr. Fry. Thank you, Mr. Chair, for having this hearing
today.
Mr. Pauley, if Congress passes this act, in what ways would
this be beneficial to the health and safety of our citizens? I
think we're mired in kind of an exercise in intellectual
property and kind of nuanced legal issues, but for people
watching back home, or who may be tuning in, what is the
practical effect for them?
Mr. Pauley. Well, look, thank you for the question. The
practical effect, Representative Fry, is that, over this past
century, we have shown that private sector standards
development--those independent standards bodies--have produced
standards that have been beneficial to the public.
Whether you want to look at it in the fire numbers that I
quoted earlier and those reductions, or whether you want to
look at it from across the spectrum of standards that people
interact with every day--interoperability, safety standards,
whatever those may be--the reason why we're sitting here
today--and I would like to really reiterate this point. Nobody
that has been involved along this process--the court cases and
otherwise--has argued I don't have access to the standard as an
individual that I need to access it.
We're here because commercial actors want to take the
intellectual property that has been developed by folks like
NFPA and others, and they want to use it for their purposes to
generate revenue. That's why the court cases are in existence
today. They are not here because we've had some access problems
along the way with this.
That's an important point to remember because, if those
commercial actors can take mine or any other SDO's intellectual
property and use it the way that they want and make it fully
available, I'm not going to survive.
I can certainly speak for NFPA, but, obviously, I'm biased.
For a lot of other SDOs that deal with it as well, the public
suffers if the private sector SDO community ends up going away
in this process, and that is the reason why I think this is
such a policy issue for Congress.
Mr. Fry. Pivot a little bit. Talk about the code and
standard development process that you all have and maybe some
of the associated costs that are involved in that.
Mr. Pauley. Yes. All of our costs when we look at--the vast
majority of what costs we have as NFPA--and you can look at our
revenue. You can look at our expenses across that entire
spectrum. The vast majority of those costs are involved with
that development and that distribution of those standards in
some particular manner.
For a lot of people, they think of it in terms of, hey,
look, doesn't somebody just got to put the words on a piece of
paper? No, I have to have engineers that have to staff all
those technical committees. I have IT groups that have the
systems in place to do this. There is a cost every time we
develop those standards.
I would reiterate, out of the 350 or so codes--
Mr. Fry. You mean it's not free?
Mr. Pauley. Yes. You are correct. It is not free. These are
the costs that we incur every day, and they are important. We
think they are important for society. We are self-funded, so if
we're not generating revenue, I can't pay those bills.
Mr. Fry. Let me ask you something. We've been told that if
we pass this it will create a system in which special interest
lobbyists would have an effective veto over the health and
safety standards in the country. Is this accurate?
Mr. Pauley. No, it's not accurate at all. I go back to the
process that is so critical under the guise of open,
transparent, and consensus-based processes. We put those
processes in place, and we run those committees to keep special
interests from having a sway over that particular committee.
Earlier, I mentioned--if you just want it in round
numbers--in NFPA's case, no more than a third of the committee
can be made up of an interest, and it takes two-thirds of the
committee to actually change the document. The beauty of what
we do is we bring people to the table to have them have debate.
Mr. Fry. Can you imagine doing that in Congress? My gosh.
Two-thirds on anything, I don't know if we could do that.
If the Pro Codes Act was enacted, what steps would you all
take to make sure that the codes and standards are accessible
to the public?
Mr. Pauley. Well, this is probably in one case where NFPA
probably has a little bit of an advantage only because we've
been making all our codes and standards--not just those IBR,
but all our codes and standards--available online for full
public access for free for the last 20 years.
For us, we're trying to continue along down the path. I do
think what our track record shows is that there is a way to do
this, make public access available, and not suffer the loss of
revenue, because professionals still purchase the document or
purchase a subscription. I would just reiterate that's the
beauty of this process. It's not taxpayer dollars that are
funding it. It's not big industry dollars that are funding it.
The cost of the system is spread out across the people that
actually use the standards in their work every day. It's a
beautiful public-private partnership in action.
Mr. Fry. Thank you for that. Mr. Chair, I see my time is
up. I yield back.
Mr. Issa. Thank you. That just leaves me now to close this
thing up, and I'm going to try and bring together as much as I
can as quickly as I can. I appreciate, Mr. Pauley, that your
organization is posting online, but as you can tell by Mr.
Delli Venneri, he posts online but not the same way. His is not
open and free. There are multiple models at work here.
Mr. Band, you haven't gotten enough attention, so I'm going
to ask you. Do you think Napster was fair use?
Mr. Band. No.
Mr. Issa. OK. Fair use has its limit, right?
Mr. Band. Of course.
Mr. Issa. OK. When somebody monetizes somebody else's
copyrighted material, that's not fair use, is it?
Mr. Band. Well, it depends, but in this situation--
Mr. Issa. Well, in the case of the two that are monetizing
it now, they both have a form of monetizing in their formula.
They are not giving it away without either collecting data or
actually charging a subscription fee. Isn't that correct?
Mr. Band. I don't know exactly the--
Mr. Issa. Well, the lawsuits that were--
Mr. Band. Right. I'm not familiar with the UpCodes business
model. I don't know the--
Mr. Issa. They collected 11 million in A round money. They
have a subscription model--a premium subscription model to
provide other people's material.
Mr. Band. Yes, but to some extent, that's something that
the standards bodies could do themselves, and indeed--
Mr. Issa. Well, wait a second. Wait a second. They do it
themselves. They have subscription models. They have programs.
I'll go back to Napster. In Napster, the recording industry
didn't have to prove they were going out of business, although
they sometimes allege that it would kill them. They only had to
show the violation of the copyright.
Mr. Band. Right. The difference here is we're talking about
the law.
Mr. Issa. Wait a second. We already went through this in
detail. You are a taxpayer, I assume?
Mr. Band. Yes.
Mr. Issa. Have you ever read the Tax Code?
Mr. Band. God forbid.
Mr. Issa. Have you any idea what it would be like to try to
comply with the law by only reading the Tax Code?
Mr. Band. No.
Mr. Issa. Doesn't everybody read supplemental copyright
material to comply with the Tax Code?
Mr. Band. Yes.
Mr. Issa. Aren't these, as demonstrated at least briefly,
in fact, supplemental materials as much as the law that they
are how-tos and they are teaching and therefore--even if we
were to narrowly say that--if you say that a--Mr. Massie wasn't
here today--but, if you say that every three feet there has to
be 110-volt plug to comply with the law in some jurisdiction,
even if you say that, the rest of it is not, in fact, the law,
is it? It's a how-to.
Mr. Band. As a general matter, that's right. That's why
when Mr. Pauley holds up that book, I don't think--certainly
not in my view and the view of my clients--that the whole book
is not the law and therefore would not be freely available.
That's also the advantage of--
Mr. Issa. That is one of the problems with the two that are
monetizing it in lawsuits, is they are monetizing the entire
code, including the how-to. They are not clawing through it.
Mr. Band. Right. If that's the case, then that's a problem.
Mr. Issa. In the case of Pro Codes, how do we define that
in a way that provides guidance to the courts? This is really
for you and Mr. Delli Venneri.
We are here trying to pass a law that, one, gives a safe
haven to people who want to get access to information and
provides clear guidance to the court. I've got two proponents
and I've got two nonproponents. First, to be honest, one on the
right of it and one on the left of it. You are not in
agreement. You simply would like more than we're doing.
My question to you and the question that this dais needs as
we go into our markup is: How do we preserve the copyright,
which everyone is pretty well-agreed exists within these
manuals, even if small portions are, quote, ``the law.'' How do
we preserve that and provide guidance to the court, so they
make consistent decisions, particularly as to this misguided
interpretation of fair use?
Which I think I got your point that depends--a lot of these
cases--when Mr. Pauley's stuff is online already, and then
somebody monetizes a copy of it, where did the fair use get
into that? They are simply duplicating and providing for
revenue what he is already doing. It may be they are making it
machine searchable, but, of course, that just means they are
making it easier to take copyrighted material, isn't it?
Mr. Band. Well, the solution that I offered will really
take care of your concern. In other words, if let's say
Congress said that incorporated by--directly incorporated
instead of incorporated by reference, then whatever was
directly incorporated, that's the law, and whatever is not
incorporated directly is not the law.
Mr. Issa. I agree with you.
Mr. Band. That would make a very clear distinction, whereas
now--
Mr. Issa. For the other three that are actually putting
stuff out to these municipalities, States, and so on, do you
see them actually--if you give them, quote, ``the statute
portion of it,'' do you see them actually doing it, and
wouldn't it be burdensome economically for them to do so?
Mr. Band. I'm sorry. I don't understand the question.
Mr. Issa. Basically, what you are suggesting is that they
take subsets of every one of these 45,000 different books and
manuals and put them online and, of course, also print books
and so on. That's what you are suggesting to comply.
Mr. Band. Well, the government has put them online, yes.
Mr. Issa. Right.
Mr. Delli Venneri, our suggestion that, in fact, a PDF be
printable, not full machine searchable, AI advance--get
everything you want and have it tell you how to write an
application for a permit, because I know that's a concern of
you that these codes can be turned into AI, producing an entire
permit, and bypassing everybody with dubious accuracy.
Where is the middle ground? Because, for the Ranking Member
who has left and for the Ranking Member of the Subcommittee, we
need to know--we cannot--inaction is a problem. It's a big
problem here because of those cases. We're going forward with
action.
Mr. Pauley, I will commend that two-thirds are hard to get
to. We got within one vote of it last Congress.
Mr. Delli Venneri. Mr. Chair, could I help? I mean you
asked that question.
Mr. Issa. Please.
Mr. Delli Venneri. There are ways to deal with fair use in
a relatively light manner, right, because folks--that turns
into a real issue, right?
First, for example, there is the holding in the cases
that--when somebody reads a standard to comply with the law or
somebody reads a standard to comply with the--to use in the
manufacturing--that suddenly that same standard is transformed,
right? They say that it's transformative. Everybody reads the
standard to comply with it, right?
One thing the Committee might want to think about is when
you are looking at whether or not it's transformative, right?
That's one approach, right, to have the courts go in a slightly
different way.
There's another line of cases--and I disagree with Mr.
Kupfer-schmid--in a case in the Fifth Circuit, which was an en
banc decision called Veeck, but then recently followed in a
case called CSA v. Knight--I think in 2024--where the court is
making a more in-depth analysis, right, of what kind of
standard is it? How is it going to be used? Is this a law of
general application, or is this a law that governs nuclear
facilities, right?
There are fragments in the case law that helps this
Committee. There is also--if you look at the case law, there
are certain doctrines that are now being built into fair use
that has extended beyond its traditional parody news reporting
type of things. It's turned into quite a different animal in
the case law.
Putting some bumpers on those fair use is the right way to
do it, but it still allows the court to make a decision--a just
decision based on the specific facts.
Mr. Issa. I appreciate that.
As I close, I'll simply say that the bill is going to be
amended as we bring it to the Committee. It will be an
amendment in the form of a substitute. Many of you have given
us input that we expect to already be in that. I would say that
I would commend you all to engage and reengage if you have
additional ideas.
I will say this in closing. If I had my way and I could
speak to Chief Justice Roberts and he could speak to 677
District Court judges, I would ask them to find fair use when
somebody uses the information--wherever gleaned for purposes of
compliance for themselves and to, in fact, not consider it fair
use when it is reprinted for a monetization or some other use
other than the historic, truly educational uses that often
happen, as Ms. Ross said.
Now, I don't get to meet with the Chief Justice more than
once a quarter, and when I do, Mr. Johnson and I are very
brief. I don't expect to do it except through this upcoming
law, and I would ask all of you to help us make that bill--
which is the one we're talking about and we will get across the
finish line by two-thirds--make it as good as we possibly can
and meet compromises that do not compromise the concerns that
we heard here today.
Then, as sometimes happens, I have a few UCs. I ask
unanimous consent that the draft bill--or the bill, H.R. 4072,
to be placed in the record for everyone.
Then, additionally, I have letters of support from another
large group of organizations. First, I will not read them all--
is the IEEE. I would ask all those be placed in the record.
Without objection, so ordered.
Last, to be brief, I would also include the subscription
information on UpCodes and how they do, in fact, find a way to
monetize that, which is already, in the case of Mr. Pauley,
freely given away.
Additionally, as we close, all Members may have five
legislative days in which to include additional information. I
would extend that to all our witnesses that they may also do
it.
Last, if you receive within five legislative days
additional questions, would you agree to answer them for the
record?
All those responded in the affirmative.
With that, the Subcommittee stands adjourned.
[Whereupon, at 2:00 p.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
Subcommittee on Courts, Intellectual Property, and the Internet
can
be found at: https://docs.house.gov/Committee/Calendar/ByEvent
.aspx?EventID=119195.
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