Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 27 of 47
goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Campbell, 510 U.S. at 579 (internal citation omitted).
The D.C. Circuit found that this court “properly rejected some of [Defendant’s] arguments as to its transformative use—for instance, that [Defendant] was converting the works into a format more accessible for the visually impaired or that it was producing a centralized database of all incorporated standards.” ASTM, 896 F.3d at 450 (citing ASTM, 2017 WL 473822, at *16; Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 923–24 (2d Cir. 1994) (holding that photocopying articles “into a form more easily used in a laboratory” does not constitute transformative use but acknowledging “the benefit of a more usable format”)).
The Circuit remanded, though, for this court to consider “whether, in certain circumstances, distributing copies of the law for purposes of facilitating public access could constitute transformative use.” ASTM, 896 F.3d at 450. Specifically, the Circuit distinguished between an incorporated standard that “provides information essential to comprehending one’s legal duties,” which “would weigh heavily in favor of permitting a nonprofit seeking to inform the public about the law to reproduce in full the relevant portions of that particular standard,” and the incorporation of a standard as a reference procedure, which does not. Id.
The court conducts this inquiry on a standard-by-standard basis in the attached Appendix.
- b. The Nature of the Copyrighted Work
The second fair use factor, “the nature of the copyrighted work,” 17 U.S.C. § 107(2), also requires an individual appraisal of each standard and its incorporation, ASTM, 896 F.3d at 451. “This factor,” the Supreme Court has explained, “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. at 586.
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