Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 32 of 47
“colleague” and asking Defendant how it could access Defendant’s postings, id. ¶ 165, Ex. 164 at Interrog. 22. Those communications—showing that two entities were interested in accessing Defendant’s postings—do not explain whether the entities were interested in accessing Defendant’s postings in lieu of purchasing Plaintiffs’ standards, as opposed to simply accessing them in Plaintiffs’ read-only access rooms.
Plaintiffs also argue that beyond those two engineering entities, there “may also” be “further would-be-infringers” who could repurpose Defendant’s postings to turn a profit for themselves. See Pls.’ 2d MSJ at 27. This argument is even more tenuous than the former. Plaintiffs point to a third-party website offering users the ability to pay to access ASTM standards, but they do not assert—or offer any evidence to show—that the third party’s offerings are a result of Defendant’s actions, or whether the third party, like Defendant, purchased Plaintiffs’ standards and then scanned and uploaded them to its website. See id. (citing Pls.’ 2d SMF ¶¶ 105–06 (citing Wise Decl. ¶ 154–55)). In other words, evidence that other websites are also posting Plaintiffs’ standards—without any causal connection to Defendant’s actions—does not show “market harm caused by the particular actions of the alleged infringer,” nor does it show whether Defendant’s actions enabled “widespread conduct of the sort engaged in by [Defendant]” that “would result in a substantially adverse impact on the potential market for the original.” Campbell, 510 U.S. at 590 (internal quotation marks omitted).
Plaintiffs also contend that entities that regularly use Plaintiffs’ standards “are likely to use [Defendant’s] versions of the standards,” instead of purchasing standards from Plaintiffs or accessing Plaintiffs’ read-only rooms. See Pls.’ 2d MSJ at 28. In support, Plaintiffs cite to several declarations and one expert report, none of which are helpful. See Pls.’ 2d MSJ at 28 (citing Pls.’ 2d SMF ¶¶ 86 (citing Supp. Pauley Decl. ¶¶ 43, 45; Supp. Reiniche Decl. ¶ 3;
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