Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 22 of 47
(including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. When considering whether a particular use is fair, courts must consider the following factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Id. “The factors enumerated in the section are not meant to be exclusive: ‘[S]ince the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.’” Harper & Row Publishers, Inc., 471 U.S. at 560 (alteration in original) (quoting H.R. Rep. No. 94-1476, at 65 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5678). Defendant bears the burden of showing fair use. See Campbell, 510 U.S. at 590.
Following remand, the parties provided additional details regarding the 217 standards at issue, including:
- A copy of each of Plaintiffs’ standards at issue, see Wise Decl., Ex. 149, ECF Nos. 198-5, 199-3–11; Pauley Decl., Exs. A–V, ECF Nos. 198-50, 199-12–33; Reiniche Decl., Exs. 1–2, ECF Nos. 198-53, 199-34; Dubay Decl., Ex. A, ECF Nos. 155–6;
- A copy of each of the ASTM standards as republished by Defendant on the Internet Archive, see Wise Decl., Ex. 151, ECF Nos. 198-5, 198-30–32;
- A copy of each of the ASTM standards as republished by Defendant in PDF format, see Wise Decl., Ex. 152, ECF Nos. 198-5, 198-33–37;
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