Page:ASTM v. PRO (D.D.C. 2022).pdf/49

 Withwith [sic] regard to the text of Test Methods A and B, and not Withwith [sic] regard to Test Methods C and D, or the standard’s general provisions pertaining to the standard’s scope, referenced documents, terminology, significance and use, purity of reagents, and sampling, as well as an appendix. Because only portions of the standard are incorporated into law, Defendant’s wholesale reproduction is “harder to justify.” Id.
 * 1) * Third Factor : The incorporating regulation specifies that only specific portions of the standard are incorporated by reference into law. While that incorporation justifies posting the specific text of those provisions—the text of Test Methods A and B—it does not justify posting the entire standard. Id.
 * 2) * Fourth Factor : Defendant’s reproductions have not had a “substantially adverse impact on the potential market for the originals,”original[s]”, [sic] 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).
 * 3) * Conclusion : Defendant may fairly reproduce the text of Test Methods A and B, but may not fairly reproduce the standard’s remaining portions absent some change in the incorporating language.
 * 4) ASHRAE 90.1 (2004):
 * 5) *Defendant identifies 10 C.F.R. § 433.3 (2013) as the incorporating by reference regulation, see Becker Decl. ¶ 57, Ex. 89, which incorporates the standard into §§ 433.2, 433.4, 433.5. Section 433.4 requires that all federal agencies shall design new Federal buildings that are commercial and multi-family high-rise residential buildings, for which design for construction began on or after January 3, 2007, but before August 10, 2012, to … “[m]eet ASHRAE 90.1–2004.” 10 C.F.R. § 433.4(a)(1)(i). Section 433.5 requires federal agencies in certain circumstances “to determine energy consumption levels for both the ASHRAE Baseline Building 2004 and proposed building by using the Performance Rating Method found in appendix G of ASHRAE 90.1–2004.” Id. § 433.5(a)(1). An “ASHRAE Baseline Building 2004” is defined as “a building that is otherwise identical to the proposed building but is designed to meet, but not exceed, the energy efficiency specifications in” ASHRAE 90.1–2004. Id. § 433.2.
 * 6) * 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. With regard to transformative use, the regulation does not incorporate the standard in a manner that requires a private entity to comprehend the standard to comply with its legal duties. Rather, the applicable regulation pertains only to federal agencies. Allowing public access to ASHRAE 90.1 (2010) facilitates public debate on certain energy efficiency requirements imposed on federal buildings. See id. at 451.
 * 7) * 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