Case 1:13-cv-01215-TSC Document 239-1 Filed 03/31/22 Page 16 of 187
- The parties identify 7 C.F.R. § 1755.509 (2010) as the incorporating by reference regulation, see Becker Decl. ¶ 57, Ex. 91; Wise Decl., Ex. 175, which does so in relation to “methods of making service installations at customer access locations in telecommunications systems of [rural utility services] borrowers.” See 7 C.F.R. § 1755.502 (dictating scope of §§ 1755.503 to 1755.510). Part 1755 contains numerous provisions requiring compliance with NFPA 70 (1999) generally, see, e.g., id. § 1755.503(j) (requiring “NIDs, BETs, and fused primary station protectors shall be installed and grounded to meet the requirements of the ANSI/NFPA 70–1999, NEC ®, or local laws or ordinances, whichever are more stringent”); id. § 1755.503(d) (requiring that “[a]erial service wires shall be run in accordance with the construction drawings contained in §1755.510 and shall conform to all clearance requirements of the ANSI/NFPA 70–1999”), portions requiring compliance with specific provisions of NFPA 70 (1999), see, e.g., id. § 1755.505(f)(13) (requiring that “[t]he installation shall comply with all the requirements of section 800–12(c) of ANSI/NFPA 70–1999”), as well as provisions incorporating NFPA 70 (1999) as a reference procedure, see, e.g., id. § 1755.501 (adopting and providing various definitions set forth in NFPA 70 (1999)); id. § 1755.503(c) (explaining that the “requirements provided in this section and §§1755.504 through 1755.510 have been designed to coordinate with the provisions of the ANSI/NFPA 70– 1999”).
- First Factor: There is no indication that Defendant stands to profit from republishing this standard; Defendant’s apparent purpose is to inform the public about the law and facilitate public debate. See ASTM, 896 F.3d at 449; Def’s 2d Mot. at 16. Defendant’s “attempt to freely distribute standards incorporated by reference into law qualifie[s] as a use that further[s] the purposes of the fair use defense.” ASTM, 896 F.3d at 449. Further, the incorporated standard provides information essential for a private entity to comprehend its legal duties, which weighs heavily in favor of permitting Defendant’s reproduction. See ASTM, 896 F.3d at 450.
- Second Factor: The “express text of the law falls plainly outside the realm of copyright protection.” ASTM, 896 F.3d at 451. Here, the standard is incorporated into law without limitation such that “the consequence of the incorporation by reference is virtually indistinguishable from a situation in which the standard had been expressly copied into law.” Id. at 452. Accordingly, “this factor weighs heavily in favor of fair use.” Id.
- Third Factor: In some provisions, the incorporating regulation identifies specific portions of the standard that are relevant to regulatory compliance. See, e.g., 7 C.F.R. § 1755.505(f)(13) (requiring that “[t]he installation shall comply with all the requirements of section 800–12(c) of ANSI/NFPA 70–1999”). Other provisions, though, do not specify which specific provisions of the standard are relevant for regulatory compliance. See, e.g., id. § 1755.503(j) (requiring “NIDs, BETs, and fused primary station protectors shall be installed and grounded to meet the requirements of the ANSI/NFPA 70–1999, NEC ®, or local laws or ordinances, whichever are more stringent”); id. § 1755.503(d) (requiring that “[a]erial service wires shall be run in accordance with the construction drawings contained in §1755.510 and shall conform to all clearance requirements of the ANSI/NFPA 70–1999”). This suggests that “a greater amount of the standard’s text might be fairly reproduced.” Id.
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