Page:ASTM v. PRO (D.D.C. 2022).pdf/48



Case No. 13-cv-1215 (TSC)

I. 
 * 1) ASTM D2036 (1998):
 * 2) *Defendant identifies 40 C.F.R. § 136.3(a), Table IB (2003) as the incorporating by reference regulation. See Becker Decl. ¶ 57, Ex. 90 at 50. Section 136.3(a) states that the “full text of the referenced test procedures are incorporated by reference” into Table IB. 40 C.F.R. § 136.3(a). Table IB references ASTM D2036 (1998) (A) and (B), an apparent reference to Test Methods A and B, set forth in the standard. See ECF No. 199-4, Exhibit 149 Part 2 to Declaration of Jane W. Wise at 250–68. Table IB does not reference portions of the standard describing Test Methods C or D. Accordingly, the standard’s text pertaining to Test Methods C and D have not been incorporated by reference into law. Moreover, it does not appear that the text of those portions—Test Methods C and D—are relevant for regulatory compliance. The standard also includes background sections defining the standard’s scope, referenced documents, terminology, significance and use, purity of reagents, and sampling, as well as an appendix, none of which are explicitly incorporated into law. See id.
 * 3) * 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 regarding Test Methods A and B, which weighs heavily in favor of permitting Defendant’s reproduction. See ASTM, 896 F.3d at 450.
 * 4) * 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 only