Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 35 of 47
and downstream products). One can reasonably expect that if over the last four years market harm was occurring, or was likely to occur, Plaintiffs could provide economic data and analysis showing that to be the case. For example, Plaintiffs could have offered a side-by-side comparison of sales figures for standards that have and have not been reposted on Defendant’s site to demonstrate the market impact of Defendant’s postings. They could have provided testimony from former customers who stopped purchasing Plaintiffs’ standards because they are available for download on Defendant’s website. The fact that they do not provide any quantifiable evidence, and instead rely on conclusory assertions and speculation long after Defendant first began posting the standards, is telling.
The economic data that Plaintiffs provide—ASTM’s and NFPA’s overall sales figures—does not advance their argument. ASTM’s sales have increased despite Defendant’s activities. Def.’s 2d SMF ¶ 153. NFPA’s overall revenue has “in recent years” declined, but it concedes that “revenue is somewhat cyclical with publications.” See Pls.’ 2d SMF ¶ 100. And ASHRAE has not attempted to determine what, if any, losses were attributable to Defendant’s postings, and was unable to identify any evidence of harm in response to one of Defendant’s interrogatories. See Def.’s 2d SMF ¶¶ 150, 154.
Ultimately, the court finds that “the evidence is such that a reasonable jury could not return a verdict for” Plaintiffs that Defendant’s actions have caused, or likely will cause, market harm with regards to the specific standards at issue. See Wash. Post Co. v. U.S. Dep’t of Health & Hum. Servs., 865 F.2d 320, 325 (D.C. Cir. 1989) (citing Anderson, 477 U.S. at 248). Accordingly, this factor supports Defendant’s fair use defense for each of the 217 standards at issue.
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