Page:ASTM v. PRO (D.D.C. 2022).pdf/220

 #ASTM D1946 1990 (1994)e1:
 * 1) *Defendant identifies 40 C.F.R. § 75.6 (2010) as the incorporating by reference regulation. Becker Decl. ¶ 57, Ex. 90 at 49. The incorporating language in that regulation, however, references only ASTM D1946-90 (Reapproved 2006), and not the 1994e1 version that Defendant published. Defendant concedes that it posted editions of standards that have not been incorporated into law, see Def. 2d Mot. at 9–10, and it does not respond to Plaintiffs’ argument that Defendant has not shown this specific standard has been incorporated into law. See Wise Decl., Ex. 176 at n.2 (“Where the ASTM standard referenced in the quoted C.F.R. language differs from the version of the ASTM standard that PRO reproduced and displayed, ASTM has highlighted and bolded that language.”); id. (highlighting and bolding text of this standard). Defendant bears the burden of demonstrating its affirmative fair use defense, see Campbell, 510 U.S. at 590, and here, it has not shown that this standard has been incorporated by reference into law.
 * 2) * First Factor : There is no indication that Defendant stands to profit from republishing this standard, but Defendant’s stated purpose—to inform the public about the law and facilitate public debate—is not significantly furthered by publishing this standard rather than one that has been incorporated by reference into law. See ASTM, 896 F.3d at 449. Further, because the standard has not been incorporated by reference into law, Defendant’s use is less transformative. See ASTM, 896 F.3d at 450.
 * 3) * Second Factor : Standards incorporated by reference into law “are, at best, at the outer edge of “copyright’s protective purposes.” ASTM, 896 F.3d at 451. Standards not incorporated into law, though factual works, fall more squarely within the realm of copyright protection. Here, Defendant has not shown that this standard has been incorporated into law and so this factor also counsels against Defendant’s fair use.
 * 4) * Third Factor : The Supreme Court has characterized the relevant inquiry as whether “‘the amount and substantiality of the portion used[’] … are reasonable in relation to the purpose of the copying.” Campbell, 510 U.S. at 586–87 (quoting 17 U.S.C. § 107(3)). Incorporating one standard by reference does not justify posting provisions of a different version that has not been incorporated into law. See ASTM, 896 F.3d at 452. Instead, Defendant’s purpose could be achieved with a paraphrase or summary.
 * 5) * 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).
 * 6) * Conclusion : Under the presented facts, which are undisputed, Defendant may not fairly copy and republish this standard.
 * 7) ASTM D4239 1997e1:
 * 8) *Defendant identifies 41 C.F.R. § 60.17 (2011) as the incorporating by reference regulation. Becker Decl. ¶ 57, Ex. 90 at 69. The incorporating language in that regulation, however, references only ASTM D4239-85, 94, 97, and not the revised 1997e1 version that Defendant published. Defendant concedes that it posted editions of standards that have not been incorporated into law, see Def. 2d Mot. at 9–10, and it does