Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 31 of 47
the burden of proving ‘that some meaningful likelihood of future harm [to marketability] exists.’”) (quoting Sony Corp., 464 U.S. at 451).
As previously explained, Defendant’s use is noncommercial, and so Plaintiffs must show “by a preponderance of the evidence that some meaningful likelihood of future harm exists.” Sony Corp., 464 U.S. at 451. In ASTM I, the Circuit posited that Plaintiffs “are right to suggest that there may be some adverse impact on the market for the copyrighted works [Defendant] reproduced on its website,” but found that the record was unclear as to “just how serious that impact is.” ASTM, 896 F.3d at 453. The Circuit identified three questions to guide the court’s inquiry into the meaningful likelihood of future harm. Id. First, because Plaintiffs make copies of many of their standards freely available online in controlled reading rooms, and they “presumably do so without entirely cannibalizing sales of their standards, just how much additional harm does [Defendant’s] reproduction cause to the market for these standards?” Id. Second, if Defendant “were to reproduce only the incorporated provisions, would there still be a vibrant market for the standards in their entirety?” Id. And third, what consequences do Defendant’s postings have on the market for derivative works? Id.
As to the first question, Plaintiffs’ evidence falls well short of showing some meaningful likelihood of future harm. Plaintiffs begin with the premise that Defendant’s postings are “unrestricted” and “widely viewed,” and conclude that “[t]his means its users include those individuals and entities who would otherwise purchase or license copies of Plaintiffs standards.” See Pls.’ 2d MSJ at 27. But Plaintiffs’ evidentiary support for this proposition is meager: correspondence from an engineer asking Defendant if the Circuit’s decision in ASTM I meant Defendant could “update the site,” Wise Decl. ¶ 174, Ex. 173 at PRO_00267293, and correspondence from an engineering firm telling Defendant it heard about its organization from a
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