Case 1:13-cv-01215-TSC Document 239-1 Filed 03/31/22 Page 17 of 187
- Fourth Factor: Defendant’s reproductions have not had a “substantially adverse impact on the potential market for the originals,” nor have Plaintiffs shown by a preponderance of the evidence that there is a meaningful likelihood of future harm.” Memo Op. at 30–36 (internal quotation and citation marks omitted).
- Conclusion: Defendant may fairly reproduce this incorporated standard in its entirety.
- NFPA 70 (2005): National Electric Code:
- The parties identify 49 C.F.R. § 192.7 as the incorporating by reference regulation, see Becker Decl. ¶ 57, Ex. 91; Wise Decl., Ex. 175, which incorporates the standard into 49 C.F.R. § 192.163(e) and § 192.189(c). See 49 C.F.R. § 192.7(c)(2)(F)(4) (2009). Section 192.163(e) provides that “[e]lectrical equipment and wiring installed in compressor stations must conform to [NFPA 70], so far as that code is applicable.” 49 C.F.R. § 192.163(e) (2009). Section 192.189 provides “[e]lectrical equipment in vaults must conform to the applicable requirements of Class 1, Group D, of the [NFPA 70].” 49 C.F.R. § 192.189. Neither regulation specifies that only certain provisions of NFPA 70 (2005) are incorporated by reference into law, nor do they indicate which specific provisions of NFPA 70 (2005) are relevant for compliance with the regulations.
- 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: The incorporating regulation does not specify that only certain provisions of this standard are incorporated by reference into law, nor does it indicate which specific provisions of the standard are relevant for regulatory compliance, suggesting that “a greater amount of the standard’s text might be fairly reproduced.” Id.
- Fourth Factor: Defendant’s reproductions have not had a “substantially adverse impact on the potential market for the originals,” nor have Plaintiffs shown by a preponderance of the evidence that there is a meaningful likelihood of future harm.” Memo Op. at 30–36 (internal quotation and citation marks omitted).
- Conclusion: Defendant may fairly reproduce this incorporated standard in its entirety.
- NFPA 70 (2008): National Electric Code:
- Defendant identifies 24 C.F.R. § 3285.4 (2013) as an incorporating by reference regulation, see Becker Decl. ¶ 57, Ex. 91, but that regulation incorporates the 2005
Page 17 of 187
