Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 26 of 47
896 F.3d at 449 (quoting Harper & Row, 471 U.S. at 562). While one consideration of the fair use inquiry is whether the copy “may serve as a market substitute for the original,” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 587 (1994) (discussing the fourth fair use factor, i.e., market effect), the “crux of the profit/nonprofit distinction is … whether the user stands to profit from exploitation of the copyrighted material without paying the customary price,” Harper & Row, 471 U.S. at 562.
Defendant’s “copies of the technical standards may, in some cases, serve as a [market] substitute” for Plaintiffs’ standards, in that Defendant distributes identical standards online in the same commercial market. The more pertinent inquiry, however, is whether Defendant stands to profit from its reproductions. ASTM, 896 F.3d at 449.
Here, “little, if anything, in the record indicates that [Defendant] stands to profit from its reproduction” of any of the 217 standards. Id. Indeed, this finding is consistent with Defendant’s “claimed purpose, reflected in the organization’s mission statement and summary-judgment submissions to the court, that it was distributing the standards to facilitate public debate.” Id.; see also Def.’s 2d MSJ at 16 (describing Defendant’s mission to promote public discourse by providing free access to the law, including statutes, judicial opinions, and professional standards incorporated by reference into law) (citing Def.’s 2d SMF ¶ 68). Defendant’s “attempt to freely distribute standards incorporated by reference into law qualified as a use that furthered the purposes of the fair use defense.” ASTM, 896 F.3d at 449.
A second facet of the “purpose and character” factor is “whether the use ‘adds something new, with a further purpose,’ or, put differently, ‘whether and to what extent the new work is transformative.’” Id. (quoting Campbell, 510 U.S. at 578–79) (internal quotation marks omitted). Although “transformative use is not absolutely necessary for a finding of fair use, the
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