area; however, it does not protect the copyright holder from summary disposition of her claims where there are no material factual disputes.” Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir. 1991).
Throughout the analysis that follows, the Court considers not only the binding precedents of the Second Circuit and Supreme Court, but also the D.C. Circuit’s highly germane decision in American Society for Testing and Materials v. Public.Resource.Org, Inc., 896 F.3d 437 (D.C. Cir. 2018) (“ASTM”). Like Veeck and BOCA, the ASTM decision provides the most factually analogous guidance in the context of fair use. Because the D.C. Circuit faced a wider variety of standards and degrees of incorporation by reference than the model code cases, it declined to rule on the parties’ public domain arguments and instead assessed the governmental adoption of standards through the lens of fair use.[1]
- ↑ On this point, the D.C. Circuit stated that “[a]lthough PRO raises a serious constitutional concern with permitting private ownership of standards essential to understanding legal obligations, we think it best at this juncture to address only the statutory fair use issue -- which may provide a full defense to some, if not all, of the SDO’s infringement claims in this case -- and leave for another day the question of whether the Constitution permits copyright to persist in works incorporated by reference into law. … [I]t is one thing to declare that ‘the law’ cannot be copyrighted but wholly another to determine whether any one of these incorporated standards … actually constitutes ‘the law.’” ASTM, 896 F.3d at 447.
74
