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 see 42 U.S.C. § 17021(b)(1), to the purely discretionary reference procedure, see 40 C.F.R. § 86.113-04(a)(1)—actually constitutes ‘the law.’” Id. By avoiding the constitutional question, the Circuit also limited “the economic consequences that might result from [Plaintiffs] losing copyright … by allowing copying only where it serves a public end rather than permitting competitors to merely sell duplicates at a lower cost.” Id. The Circuit explained that its narrow approach avoided creating “sui generis caveats to copyright law for incorporated standards.” Id.

The Circuit then addressed the second of Defendant’s two main arguments: that its use of Plaintiffs’ copyright material was permissible “fair use” because it facilitates public discussion about the law—a use within the “public domain.” Id. at 448. Though the Circuit found reason to believe “as a matter of law” that Defendant’s “reproduction of certain standards ‘qualif[ies] as a fair use of the copyrighted work,’” it reasoned that “the better course is to remand the case for the district court to further develop the factual record and weigh the [four fair-use] factors as applied to [Defendant’s] use of each standard in the first instance.” Id. at 448–49 (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)). The Circuit found that the record did not support the conclusion that Defendant distributed copies of the incorporated standards solely to undermine Plaintiffs’ ability to raise revenue. Id. at 449 (citing ASTM, 2017 WL 473822, at *18). Rather, it appeared that Defendant distributed the standards to educate “the public about the specifics of governing law.” Id. (citing Def. Br. 43 (explaining that “[t]here is no better way to teach the law to the public than to provide the public with the law”); ASTM Br. 34 (“[Defendant’s] purpose is to enable members of the public to obtain copies of [the standards].”). The Circuit also faulted the court and parties for “treating the standards interchangeably” by not considering the variations and legal status of each of the standards. Id. at 448–49. It therefore directed the court to reconsider Defendant’s defense on “a fuller record