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W&D Weekly


October 2, 2019
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The Talk

By Susan MacKay

Many current building codes incorporate AAMA or ASTM standards into the code sections relating to windows and doors. For example, the 2009 IRC Section R612.3 states that windows with fall prevention devices and window guards “shall comply with the requirements of ASTM F 2090.” But the ASTM standard is only referenced, not quoted. To figure out just what are requirements of ASTM F 2090, the user must purchase the standard from ASTM. 

This is just one example of many industry-generated consensus standards that have gained the force of law by being incorporated into adopted building codes. Not everyone thinks it’s fair that the referenced standard must be separately purchased, including Public.Resource.Org (PRO), a nonprofit organization whose stated purpose is to make more widely available the law and other government materials. PRO furthers this goal by posting technical standards that are incorporated by reference into a law on the internet so they can be accessed for free. 

Several organizations, including ASTM, sued PRO for this practice, asserting claims including copyright and trademark infringement. PRO appealed a decision of the lower court that found in favor of the ASTM plaintiffs. In July 2018, the Court of Appeals for the District of Columbia weighed in with its perspective on whether consensus standards adopted by code must be freely available to the public. 

The question on appeal was specific: “Whether private organizations whose standards have been incorporated by reference can invoke copyright and trademark law to prevent the unauthorized copying and distribution of their works.” This is important to the fenestration industry where standards and building codes are routinely interconnected. Read more 





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