Rose Leda Ehler

Rose Leda Ehler understands that every client has unique needs and objectives, and she takes the time to listen carefully to their concerns and goals in order to best help her clients succeed, working tirelessly to ensure that their rights are protected.

The National Fire Protection Association is a standards-development organization that develops and maintains copyrighted safety codes and standards. She has been NFPA’s co-lead counsel in long-running and potentially precedent-setting cases to determine whether standards that have been incorporated into law by reference lose their copyright protection. National Fire Protection Association, Inc. v. Up Codes, Inc., 2:2021-cv-05262 (C.D. Calif., filed June 29, 2021).

“We represent the National Fire Protection Association. They are a standard development organization that invests immense resources in creating professional standards, the technical standards in particular for the NFPA. They’re focused on fire and electrical hazards that keep us all safe, and they do that by bringing together a wide group of stakeholders, including consumer groups, researchers, government, and industry professionals,” she said. “All the people who care about fire safety — firefighters, electrical safety professionals, and everyone involved in the consensus-oriented process recognize the importance of that process that is facilitated by the NFPA and its employees. That process is made possible because NFPA is self-funded, and it depends on copyright for that funding.”

In 2013, the NFPA and two other standards developing organizations (SDOs) sued Public Resource.Org (PRO). PRO had acquired physical copies of many of the plaintiffs’ standards, converted them to digital copies, and published them online for free. PRO argued that any incorporated standard must be treated as part of the public domain. American Society for Testing and Materials, et al. v. Public.Resource.Org, 1:13-cv-01215-TSC, (D.C., filed Aug. 6, 2013).

“The NFPA’s funding is largely from the sale of the copyrighted standards to the industry and professionals who rely on them in their work. It’s a cost of doing business that gets literally built into the buildings, and that is a very small cost on the whole when you think about the many trillions of dollars that are spent on infrastructure. It’s a relatively small cost, but that money then fuels the creation of these standards in a way that is consensus oriented, voluntary, and geared towards safety as opposed to what’s best for the industry.”

Rose and a team of MTO attorneys won summary judgment and a permanent injunction in the district court. However, on appeal, the District of Columbia Circuit in 2018 vacated the injunctions and remanded the case to the district court in DC to decide whether the distribution of technical standards qualifies for the fair use defense against copyright claims.

“Our litigation for NFPA ensures they are treated like all other copyright owners that fund the investment in new works through the sale and licensing of copyrighted standards. The NFPA is not so different than other copyright owners in the more traditional fields of publishing and movies and music,” Ehler said. “If individuals or companies can copy and sell standards without a license and without providing any funding that goes back to the creation of those works, the entire system risks falling apart, and so this is incredibly important for us all.”

—Douglas Saunders