Page:ASTM v. PRO (D.D.C. 2022).pdf/167

 162.027-1 (2004) incorporates by reference ASTM F1546/F1546M (1996) into 46 C.F.R. §§ 162.027–2; 162.027–3. Section 162.027–2 requires that “[e]ach combination solid stream and water spray firehose nozzle required to be approved under the provisions of this subpart must be designed, constructed, tested, and marked in accordance with the requirements of ASTM F 1546 (incorporated by reference, see §162.027–1),” that “[a]ll inspections and tests required by ASTM F 1546 (incorporated by reference, see §162.027–1) must be performed by an independent laboratory accepted by the Coast Guard under subpart 159.010 of this chapter,” and that the “independent laboratory shall prepare a report on the results of the testing and shall furnish the manufacturer with a copy of the test report upon completion of the testing required by ASTM F 1546.” 46 C.F.R. § 162.027–2(a)-(c). Section 162.027–3 states that “[f]irehose nozzles designed, constructed, tested, and marked in accordance with ASTM F 1546 (incorporated by reference, see § 162.027–1) are considered to be approved under the provisions of this chapter.” Id. § 162.027–3(a). These regulations do not specify that only certain provisions of ASTM F1546/F1546M (1996) are incorporated by reference into law, nor do they indicate which specific provisions of ASTM F1546/F1546M (1996) are relevant for compliance with the regulation.
 * 1) * First Factor : There is no indication that Defendant stands to profit from republishing this standard; Defendant’s apparent purpose is to inform the public about the law and facilitate public debate. See ASTM, 896 F.3d at 449; Def’s 2d Mot. at 16. Defendant’s “attempt to freely distribute standards incorporated by reference into law qualifie[s] as a use that further[s] the purposes of the fair use defense.” ASTM, 896 F.3d at 449. Further, the incorporated standard provides information essential for a private entity to comprehend its legal duties, which weighs heavily in favor of permitting Defendant’s reproduction. See ASTM, 896 F.3d at 450.
 * 2) * Second Factor : The “express text of the law falls plainly outside the realm of copyright protection.” ASTM, 896 F.3d at 451. Here, the standard is incorporated into law without limitation such that “the consequence of the incorporation by reference is virtually indistinguishable from a situation in which the standard had been expressly copied into law.” Id. at 452. Accordingly, “this factor weighs heavily in favor of fair use.” Id.
 * 3) * Third Factor : The incorporating regulation does not specify that only certain provisions of this standard are incorporated by reference into law, nor does it indicate which specific provisions of the standard are relevant for regulatory compliance, suggesting that “a greater amount of the standard’s text might be fairly reproduced.” Id.
 * 4) * Fourth Factor : Defendant’s reproductions have not had a “substantially adverse impact on the potential market for the originals,” nor have Plaintiffs shown by a preponderance of the evidence that there is a meaningful likelihood of future harm.” Memo Op. at 30–36 (internal quotation and citation marks omitted).
 * 5) * Conclusion : Defendant may fairly reproduce this incorporated standard in its entirety.
 * 6) ASTM F1548 (1994):
 * 7) *The parties identify 46 C.F.R. § 56.012 (1997) as the incorporating by reference regulation, see Becker Decl. ¶ 57, Ex. 90; Wise Decl., Ex. 176, which incorporates