Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 25 of 47
substantively different from what has been incorporated into law, or which provisions are the same; instead, it indiscriminately posted its versions in their entirety. Defendant describes its error as “unfortunate” and contends that its mistake as to these 32 standards should not bear on the court’s fair use analysis regarding the other 185 standards. Id. at 10 n.5. While it may be that Defendant could permissibly repost the text of Group 3 Standards that is identical to text incorporated into law, its fair use defense that it may indiscriminately post standards known to be substantively different than versions incorporated by reference into law is dubious. See ASTM, 896 F.3d at 450 (explaining that incorporation of the 2011 version of a standard would not justify reproducing the 2014 edition that had not been incorporated); id. at 452 (explaining that a regulation requiring compliance with the two provisions of the 2011 National Electrical Code “would likely justify posting the specific text of only those two provisions of that version of the National Electrical Code,” but not other versions) (emphasis in original). “[U]nless a particular provision” of a standard has been incorporated into law, Defendant’s “claim that a paraphrase or summary would always be inadequate to serve its purposes seems less persuasive.” Id. at 451. Moreover, while Defendant could make a standard-by-standard argument that its publication of these 32 standards is a transformative use because portions of each provide key information for the public to debate certain public policies, id., it has not done so.
- a. Purpose and Character of the Use
The first fair-use factor asks courts to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). Mindful of the statute’s stated goal to protect purposes such as criticism and comment, “the Supreme Court has explained that the fact that an infringing ‘publication was commercial as opposed to nonprofit … tends to weigh against a finding of fair use.’” ASTM,
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