Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 28 of 47
“Courts often reduce this inquiry to the question of whether the work is factual or fictional, as ‘[t]he law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.’” ASTM, 896 F.3d at 451 (quoting Harper & Row, 471 U.S. at 563).
One principle relevant to this inquiry is that “the express text of the law falls plainly outside the realm of copyright protection.” See id. at 450 (citing Banks v. Manchester, 128 U.S. 244, 253 (1888) (holding that state court judges may not copyright their judicial opinions because the “exposition and interpretation of the law, which, binding every citizen, is free for publication to all”); Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (Harlan, J.) (“[A]ny person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual.”)). Standards incorporated by reference, though, are closer to “the outer edge of ‘copyright’s protective purposes.’” ASTM, 896 F.3d at 451 (quoting Campbell, 510 U.S. at 586). As to this “outer edge” of copyright protection, the Circuit distinguishes between text that is incorporated by reference into law in a manner akin to copying all of the standard’s text into law, and text that is incorporated into law in a more nuanced way, such that the standard’s text is not an easy substitute for what is incorporated into law. Id. at 452. The former example would weigh “heavily in favor of fair use,” whereas in the latter example “fair use is harder to justify.” Id. The court considers this factor on a standard-by-standard basis in the attached Appendix.
- c. The Amount of the Work Used
The third fair use factor focuses on “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). The “extent of permissible copying varies with the purpose and character of the use,” and courts must consider whether
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