Page:ASTM v. PRO (D.C. Cir. 2018).pdf/15

 of Standard 90.1 has been incorporated into state building codes, PRO’s claim that a paraphrase or summary would always be inadequate to serve its purposes seems less persuasive. Of course, PRO might argue that Standard 90.1 provides key information for debating the virtues of requiring states to meet the energy efficiency floor set by that standard but even that justification would apply only to a version of Standard 90.1 that actually sets such a floor, and it raises the question of whether PRO can fairly copy the 2004, 2007, and 2010 edition, all of which are at issue here.

Even our brief consideration of just a few of the standards at issue in this appeal reveals that it will not always be easy to test whether the purpose and character of each of PRO’s uses weigh in favor of finding fair use but, as the Supreme Court has remarked, “[t]he task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” Campbell, 510 U.S. at 577, 114 S.Ct. 1164. Faithfully reproducing the relevant text of a technical standard incorporated by reference for purposes of informing the public about the law obviously has great value, but whether PRO’s specific use serves that value must be assessed standard by standard and use by use.

The second fair use factor, “the nature of the copyrighted work,” 17 U.S.C. § 107(2), demands an individual appraisal of each standard and its incorporation. “This factor,” the Supreme Court has explained, “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164. Courts often reduce this inquiry to the question of whether the work is factual or fictional, as “[t]he law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.” Harper & Row, 471 U.S. at 563, 105 S.Ct. 2218.

All of the works at issue here fall at the factual end of the fact–fiction spectrum, which counsels in favor of finding fair use. But, of course, the factual or fictional nature of a work is just one heuristic for assessing whether the work “falls within the core of … copyright’s protective purposes.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164. Focusing on that deeper question, the district court concluded that because technical standards “are vital to the advancement of scientific progress in the U.S.,” they are “exactly the type of expressive work that warrants full protection under … the Copyright Act.” ASTM, 2017 WL 473822, at *17. Were these ordinary technical standards used for no public purpose, the district court might well be correct. But the standards at issue here have all, in some capacity, been incorporated by reference into law, and, as the cases PRO relies on for its constitutional argument make clear, the express text of the law falls plainly outside the realm of copyright protection. See, e.g., Banks v. Manchester, 128 U.S. 244, 253, 9 S.Ct. 36, 32 L.Ed. 425 (1888) (holding that the state court judges may not copyright their judicial opinions because the “exposition and interpretation of the law, which, binding every citizen, is free for publication to all”); Howell v. Miller, 91 F. 129, 187 (6th Cir. 1898) (Harlan, J.) (“[A]ny person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual.”). Given this, we think that standards incorporated by reference into law are, at best, at the outer edge of “copyright’s protective purposes.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164.