Importantly, there is no evidence that the ... standards are unavailable to the public. In fact, the undisputed record evidence shows that the standards are required to be available in physical form from OFR; are available for purchase from the [first] Plaintiffs in hard copy and from the [second] Plaintiffs in hard copy and PDFs; and are accessible in read-only format for free in [second] Plaintiffs’ online reading rooms
If this information is freely available in electronic format — which seems to be the case for the second plaintiff — then in my mind the concern is greatly mitigated. The defendant could simply link out to the relevant page.
I'm surprised the decision doesn't mention the cost that the first plaintiff charges for the hard-copy of their standards (which are apparently not electronically available), since the cost/delay seems relevant. If the cost is hundreds or thousands of dollars, there definitely be cause for concern. On the other hand, if the cost is negligible, I'm somewhat less concerned.
To be clear, I still think that whatever agencies incorporate third-party content by reference should always require that the documents be freely available online. I just think these facts about current availability are interesting (and are not mentioned in the EFF post).
Importantly, there is no evidence that the ... standards are unavailable to the public. In fact, the undisputed record evidence shows that the standards are required to be available in physical form from OFR; are available for purchase from the [first] Plaintiffs in hard copy and from the [second] Plaintiffs in hard copy and PDFs; and are accessible in read-only format for free in [second] Plaintiffs’ online reading rooms
If this information is freely available in electronic format — which seems to be the case for the second plaintiff — then in my mind the concern is greatly mitigated. The defendant could simply link out to the relevant page.
I'm surprised the decision doesn't mention the cost that the first plaintiff charges for the hard-copy of their standards (which are apparently not electronically available), since the cost/delay seems relevant. If the cost is hundreds or thousands of dollars, there definitely be cause for concern. On the other hand, if the cost is negligible, I'm somewhat less concerned.
To be clear, I still think that whatever agencies incorporate third-party content by reference should always require that the documents be freely available online. I just think these facts about current availability are interesting (and are not mentioned in the EFF post).