Using the Fair Use doctrine look at the four conditions. The first is the purposed and charter of the use. How is NFPA 921 being used in court. It is being used to challenge the expert, specifically in the way the person conducted the investigation. It is not being used in a way that would have adverse effects on what is contained in the document. Does this in any way harm NFPA’s interest. What the document is solely being used for is evidentiary value. It is being used for the admission of facts against the expert. They are not asking if it is correct or not. What is the nature of the copyrighted work, in this case NFPA 921 or 1033? The nature of the documents is that they are informative in nature. Does the use of the document to challenge the quality of an expert’s investigation in anyway disparage the information contained in the document? Just the opposite. By using the document in this way, one is giving it additional credence. The next is the amount of the document that is being used. I have never seen anyone use every section of the document. The methodology section is what is used for the challenge the most. Sometimes, an attorney will use a section on evidence documentation if he is challenging the way the evidence was collected. In most cases the attorney will stick to a couple of pages out of hundreds of pages. Does the use of these small sections in any way effect the document and its entirety? The attorney is not saying these sections are wrong or right, just that the person did not follow what was recommended by the document. The last is there a potential loss of value of the document to NFPA. I believe this would be hard for NFPA to prove when it comes to this document. If anything, it has increased the sale of the document? Based on these condition of the copyright act, it is my suggestion to the attorney only use the sections that are important and not try to introduce the entire document.

Of course one could do what I did in a case involving sprinkler systems and that was to bring NFPA in as a defendant and subpoena the document.

Jim Mazerat
Forensic Investigations Group