Case 1:13-cv-01215-TSC Document 239-1 Filed 03/31/22 Page 149 of 187
of the evidence that there is a meaningful likelihood of future harm.” Memo Op. at 30–36 (internal quotation and citation marks omitted).
- Conclusion: Defendant may fairly reproduce the text of ASTM F1121-87 (1998) in its entirety.
- ASTM F1122 1987 (1998):
- Defendant identifies 33 C.F.R. § 154.106 (2014) as the incorporating by reference regulation, see Becker Decl. ¶ 57, Ex. 90 at 18, which incorporates ASTM F1122-87 (Reapproved 1992) for § 154.500(d). While the regulation incorporates ASTM F1122-87 (Reapproved 1992), not the 1998 version that Defendant published, the text of the two standards is identical. See Pls. 2d SMF ¶ 35; Def. Statement of Disputed Facts at ¶ 35 (no objection); Def. Mot. at 10 (citing Def. 2d SMF ¶ 84).
Section 154.500(d) requires that specified hose assemblies “must either have” full threaded connections, flanges that meet ANSI B16.5 or ANSI B16.24, or quick-disconnect couplings that meet ASTM F1122. The regulation does not specify that only certain provisions of ASTM F1122-87 (Reapproved 1992) are incorporated by reference into law, nor does it indicate which specific provisions of ASTM F1122-87 (Reapproved 1992) are relevant for compliance with the regulation. - 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. See also id. at 451 (“Faithfully reproducing the relevant text of a technical standard incorporated by reference for purposes of informing the public about the law obviously has great value.”) (emphasis added). However, the court finds that the incorporated standard does not provide information essential for a private entity to comprehend its legal duties, but rather is incorporated as a reference procedure. Accordingly, “while knowing the content of this incorporated standard might help inform one’s understanding of the law,” it “is not essential to complying with any legal duty,” and thus, Defendant’s use is less transformative and “its wholesale copying, in turn, less justified.” ASTM, 896 F.3d at 450.
- Second Factor: The “express text of the law falls plainly outside the realm of copyright protection.” ASTM, 896 F.3d at 451. Here, the text published by Defendant is identical to text that was 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.
- Third Factor: The incorporating regulation does not specify that only certain provisions of the text in ASTM F1122-87 (Reapproved 1992) 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.
- Fourth Factor: Defendant’s reproductions have not had a “substantially adverse impact
- Defendant identifies 33 C.F.R. § 154.106 (2014) as the incorporating by reference regulation, see Becker Decl. ¶ 57, Ex. 90 at 18, which incorporates ASTM F1122-87 (Reapproved 1992) for § 154.500(d). While the regulation incorporates ASTM F1122-87 (Reapproved 1992), not the 1998 version that Defendant published, the text of the two standards is identical. See Pls. 2d SMF ¶ 35; Def. Statement of Disputed Facts at ¶ 35 (no objection); Def. Mot. at 10 (citing Def. 2d SMF ¶ 84).
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