Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 29 of 47
“‘the amount and substantiality of the portion used[’] … are reasonable in relation to the purpose of the copying.” Campbell, 510 U.S. at 586–87 (quoting 17 U.S.C. § 107(3)).
As with the first two factors, this third inquiry is ill-suited to wholesale resolution. ASTM, 896 F.3d at 451. Accordingly, the court considers Defendant’s copying on a standard-by-standard basis. Id. If Defendant “limits its copying to only what is required to fairly describe the standard’s legal import, this factor would weigh strongly in favor of finding fair use here, especially given that precision is ten-tenths of the law.” Id. at 452.
Here, as detailed in the attached Appendix, most of the standards at issue have been incorporated by reference into regulations that do not specify that only certain provisions of the standards are incorporated by reference into law, nor do the regulations indicate which specific provisions of the standards relate to regulatory compliance, suggesting that “a greater amount of the standard’s text might be fairly reproduced.” Id.
- d. Effect on Value or Market
Under the fourth factor, the court must consider what effect the use has on “the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. This requires the court to “consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant … would result in a substantially adverse impact on the potential market’ for the original.” Campbell, 510 U.S. at 590 (alteration in original) (quoting 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[A][4], at 13–102.61 (1993) (footnotes omitted)). The court must also take into account the “harm to the market for derivative works,” which the Supreme Court declared to be “undoubtedly the single most important element of fair use.” Harper & Row, 471 U.S. at 566, 568 (footnote and citation omitted).
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