Further Thoughts on the ASTM Part 23 Update

May 1, 2016

I wrote something initially in this blog post post on this subject.

This month I have had discussions with several of our clients regarding the new part 23 regulations. From the reviews we have done the technical content and definition of requirements looks to be either unchanged or improved. However, the change to the public domain intellectual property status is potentially problematic for a number of reasons.

First of all, ASTM has split the regulations across many different standard documents (it looks like about 30-40) and each of them can be individually changed, revised and released. Ensuring that you have the latest set of part 23 standards is going to be expensive (compared to free) and tracking the cert basis of individual aircraft as the regulations change over time is going to be difficult as you have to figure out which revision of each of the thirty to forty specifications apply to any particular aircraft.

Second, as the regulations are now proprietary protected intellectual property how far can you go in reproducing them in reports that you write for certification. What if those reports leave your organization? What if you use an excerpt from the new proprietary regulations in a public presentation or other publicly released document? Do you have to seek permission from ASTM every time or leave yourself open to legal action? How far would the ‘fair use’ copyright law extend in this instance?

Third, my organization consists of a group of independent consultants who operate under the Abbott Aerospace banner. As we are all independent corporate entities can I purchase a set of the standards and share them with my sub contractors? Or do each of us have to purchase a set of the specifications and independently cover the cost of keeping them current?

For small groups like us the financial and legal implications to this change are significant. The intent was to update the regulations to make life easier and reduce costs for aircraft developers. The result looks like ASTM has been given an open license to make money out of the industry. Each of the specifications cost between $40 and $80 for digital versions. Considering the cost of production for digital versions (i.e. the cost of a webserver and online billing system), their monopoly and the captive market, this price point is clearly going to be very good for ASTM.

The motives may be honorable but the result includes taking money from the industry and giving it to a large and profitable organization and introducing a set of legal issues that most small companies may not be aware of or understand.

If you are interested, ASTM’s latest annual report is here: http://www.astm.org/ABOUT/ASTM-AR.pdf they are an organization with USD$251,709,509 in net assets which includes USD$248,885,414 invested in funds, securities and stocks.

ASTM is a for profit, asset accumulating corporate entity that has been given a monopoly by the government to sell the aircraft industry a product that it must buy. ASTM can revise and reissue this product and effectively force a re-purchase when they want to.

So there is a downside. Maybe I am being pessimistic, but am I being pessimistic enough?

I know several people who sit on ASTM advisory boards and my discussions with them have done little to allay my concerns about this. ASTM does have a history of taking legal action to defend it’s intellectual property rights. That is all well and good. The owner of any property should have the right to defend ownership.

The application of the law in this case could get interesting. Do the part 23 regulations qualify as ‘law’? To quote from this site https://www.eff.org/cases/publicresource-freeingthelaw

“Copyright cannot trump the essential public interest in accessing and sharing the law. Other courts, including the U.S. Supreme Court, have long since declared that no one owns the law.” 

Interesting times indeed – the government outsourcing the development of, and commercial access to, law.  Is this a better way forward, or the result of lobbying and back room deals? Or both? Will the law regarding free access to law prevail or will we all end up paying ASTM for the privilege of finding out how the government want us to make aircraft safe enough to sell? What do you think?

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