Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 34 of 47
the standards in full. But that does not excuse Plaintiffs’ failure to offer any analysis on this question.
Third, the court must consider whether Defendant’s copying and distribution of Plaintiffs’ standards would harm any markets for derivative works. For instance, does Defendant’s posting of outdated standards harm the market for updated, unincorporated editions of the standards? ASTM, 896 F.3d at 453. “If, as [Plaintiffs] assert, the primary purpose in developing technical standards is to have them used by private industry and other non-governmental users to address technical issues or problems, … there is at least some reason to think that the market demand for the most up-to-date standards would be resilient.” Id. (internal quotation marks omitted). Plaintiffs argue that some of the new versions of its standards are perfect substitutes for the older, incorporated versions, and “[a]s a result, for many users, the availability of a free and unrestricted” prior version “will interfere with the market for these derivative Works.” Pls.’ 2d MSJ at 39–40. This assertion, though, is unsupported and begs the question it seeks to answer. Plaintiffs’ argument that the sale of derivative training and seminar materials will also be harmed is similarly speculative and does not differentiate between outdated incorporated standards and newer, unincorporated standards. See id. at 40 (citing Jarosz Rep. ¶ 146).
Fourteen years have elapsed since Defendant first began posting Plaintiffs’ standards. See Def.’s 2d MSJ at 13. And four years have elapsed since Plaintiffs’ expert opined that Defendant’s activities “would” threaten the market for Plaintiffs’ products. See Jarosz Rep. ¶ 4. Now, aided by the passage of time, the court is less deferential to conclusory opinions that market harm “is real” but “difficult to measure.” Id. ¶ 7; see also id. ¶¶ 130–155 (arguing without evidence that Defendant’s actions are likely to harm the market for Plaintiffs’ standards
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