American Society for Testing and Materials v. Public.Resource.Org, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 2023 Decided September 12, 2023

No. 22-7063

AMERICAN SOCIETY FOR TESTING AND MATERIALS, ET AL.,

APPELLANTS

v.

PUBLIC.RESOURCE.ORG, INC.,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01215)

Kelly M. Klaus argued the cause for appellants. With him

on the briefs were J. Kevin Fee, Jane W. Wise, Stanley J.

Panikowski, Donald B. Verrilli, Jr., Rachel G. Miller-Ziegler,

Jeffrey S. Bucholtz, David P. Mattern, Kenneth L. Steinthal,

and Rose Leda Ehler. Alexandra C. Lim entered an

appearance.

Gary D. Sesser was on the brief for amici curiae American

National Standards Institute and Six Standards Organizations

in support of appellants.

Jack R. Bierig was on the brief for amici curiae American

Medical Association, et al. in support of appellants.

2

Nancy E. Wolff and Scott J. Sholder were on the brief for

amicus curiae Copyright Alliance in support of appellants.

Brian A. Coleman entered an appearance.

Corynne McSherry argued the cause for appellee. With

her on the brief were Andrew P. Bridges, Matthew B. Becker,

Mitchell L. Stoltz, and David E. Halperin.

Charles Duan was on the brief for amici curiae Former

Government Publishing Officials Raymond A. Mosley and

Robert C. Tapella in support of appellee.

Blake E. Reid was on the brief for amicus curiae Prime

Access Consulting, Inc., in support of appellee.

Harold Feld was on the brief for amici curiae Library

Futures Institute, et al., in support of appellee.

Erik Stallman and Jennifer M. Urban were on the brief for

amici curiae Intellectual Property Law Professors in support of

appellee.

Gabriel Rottman, Bruce D. Brown, and Katie Townsend

were on the brief for amici curiae Reporters Committee for

Freedom of the Press and 11 Media Organizations in support

of appellee.

Joseph C. Gratz was on the brief for amicus curiae County

of Sonoma in support of appellee.

Jef Pearlman was on the brief for amicus curiae

Congresswoman Zoe Lofgren in support of appellee.

3

Jacob M. Karr was on the brief for amicus curiae National

Association for the Advancement of Colored People in support

of appellee.

Nina Srejovic, Rebecca Chambers, and Teague Paterson

were on the brief for amicus curiae American Federation of

State, County and Municipal Employees in support of appellee.

Before: HENDERSON, PILLARD, and KATSAS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge KATSAS.

KATSAS, Circuit Judge: Many private organizations

develop and copyright suggested technical standards for an

industry, product, or problem. Federal and state governments

often incorporate such standards into law. This case presents

the question whether third parties may make the incorporated

standards available for free online. We hold that the non-

commercial dissemination of such standards, as incorporated

by reference into law, constitutes fair use and thus cannot

support liability for copyright infringement.

I

Three standard-developing organizations raised copyright

infringement claims against a defendant for posting online their

copyrighted standards, as incorporated into law. The district

court granted summary judgment to the organizations, but we

reversed and remanded for further factual development. Am.

Soc’y for Testing & Materials v. Public.Resource.Org, Inc.,

896 F.3d 437 (D.C. Cir. 2018) (ASTM II). On remand, the

district court held that the non-commercial posting of standards

incorporated by reference into law is fair use.

4

ASTM II gave detailed background information on

standard-developing organizations, incorporation by reference,

and the genesis of this dispute. 896 F.3d at 440–45. We give

only a brief overview here.

A

Various private organizations promulgate standards

establishing best practices for their respective industries or

products. These organizations copyright their standards and

generate revenue by selling copies. For example, the National

Fire Protection Association (NFPA), one plaintiff in this suit,

develops standards addressing the prevention of fire, electrical,

and related hazards. One such standard, NFPA 10, addresses

the design, inspection, maintenance, and testing of portable fire

extinguishers. The NFPA sells hard copies of its standards as

well as a subscription service that allows digital access.

Federal agencies may incorporate privately developed

standards into law by referencing them in agency rulemaking.

Incorporation by reference (IBR) in a published rule allows

agencies to satisfy the requirement to publish rules in the

Federal Register without reproducing the standards

themselves. 5 U.S.C. § 552(a)(1). The Code of Federal

Regulations contains more than 27,000 incorporations of

privately developed standards by reference. See Standards

Incorporated by Reference Database, Nat’l Inst. of Safety &

Tech., https://sibr.nist.gov [perma.cc/W4BN-HLZG] (last

visited Aug. 30, 2023). For example, 29 C.F.R.

§ 1915.507(b)(1) requires shipyard operators to select,

maintain, and test portable fire extinguishers in accordance

with NFPA 10, which is incorporated by reference in 29 C.F.R.

§ 1915.5(i)(6). States and municipalities also have

incorporated thousands of standards by reference into their

regulations.

5

Congress has authorized and encouraged the use of IBR

because it allows agencies to avoid duplication of effort and

helps conform legal standards to industry best practices. See,

e.g., National Technology Transfer and Advancement Act of

1995, Pub. L. No. 104-113, § 12(d)(1), 110 Stat. 775, 783. The

Office of the Federal Register has promulgated regulations and

guidance governing the IBR process. See 1 C.F.R. §§ 51.1–11.

As its IBR Handbook explains, “the legal effect of IBR is that

the referenced material is treated as if it were published in the

Federal Register and the CFR. When IBRed, this material has

the force and effect of law.” J.A. 9511 (cleaned up).

B

The plaintiffs in this case are three standard-developing

organizations: the American Society for Testing and Materials

(ASTM), the American Society of Heating, Refrigerating, and

Air-Conditioning Engineers (ASHRAE), and the NFPA. The

defendant, Public.Resource.Org, is a non-profit group that

disseminates legal and other materials. It has posted on its

websites copies of hundreds of incorporated standards—

including standards produced and copyrighted by the plaintiffs.

As a result, any internet user may view, download, or print

these standards for free.

In 2013, the plaintiffs sued Public Resource for copyright

infringement. The plaintiffs moved for summary judgment on

their claims as to nine of the disputed standards. The district

court granted the motion and enjoined Public Resource from

posting these standards. The court rejected a defense that

posting incorporated standards constitutes fair use. ASTM v.

Public.Resource.Org, Inc., No. 13-cv-1215, 2017 WL 473822

(D.D.C. Feb. 2, 2017) (ASTM I).

This Court reversed and remanded for further

consideration of the fair-use defense. We faulted the parties

6

for failing to distinguish among the disputed standards in

conducting the fair-use analysis, and we instructed the parties

on remand to “develop a fuller record regarding the nature of

each of the standards at issue, the way in which they are

incorporated, and the manner and extent to which they were

copied.” ASTM II, 896 F.3d at 449. We provided several

guideposts for the fair-use analysis, three of which tended to

favor the defense. See id. at 448–54. But given the differences

among the disputed standards and the thinness of the record

before us, we thought it prudent “to remand the case for the

district court to further develop the factual record and weigh

the factors as applied to [Public Resource’s] use of each

standard in the first instance.” Id. at 448–49.

On remand, the parties developed more information about

217 incorporated standards. Each of them has been superseded

as a recommended industry standard, yet most remain

incorporated into law. On cross-motions for summary

judgment, the district court held that the posting of 184

standards was fair use, the posting of 32 standards was not fair

use, and the posting of one standard was fair use in part. ASTM

v. Public.Resource.Org, Inc., 597 F. Supp. 3d 213 (D.D.C.

2022) (ASTM III). In a nutshell, the court found fair use as to

the posting of standards incorporated into law and infringement

as to the standards not so incorporated. Id. at 232–41. The

court’s opinion included a 187-page, single-spaced appendix

separately analyzing each of the disputed standards. Despite

finding infringement as to the unincorporated standards, the

court denied injunctive relief based on its finding that Public

Resource intends to post only incorporated standards and thus

would voluntarily take down unincorporated ones in response

to an infringement determination. Id. at 245–47.

The plaintiffs appealed, but Public Resource did not. We

have jurisdiction under 28 U.S.C. § 1292(a)(1). We review the

7

grant of summary judgment de novo, ASTM II, 896 F.3d at 445,

and the denial of injunctive relief for abuse of discretion, Doe

v. Mattis, 889 F.3d 745, 751 (D.C. Cir. 2018).

II

The Copyright Act protects “original works of authorship

fixed in any tangible medium of expression.” 17 U.S.C.

§ 102(a). The owner of a valid copyright has the exclusive

right to reproduce, distribute, or display the copyrighted work.

Id. § 106. To prove infringement, a plaintiff must show (1) its

ownership of a valid copyright and (2) the defendant’s copying

of original elements of the work. Feist Publ’ns, Inc. v. Rural

Tel. Serv. Co., 499 U.S. 340, 361 (1991).

Fair use is an affirmative defense to a claim of copyright

infringement. Originally a creature of common law, it is now

codified at 17 U.S.C. § 107, which provides:

[T]he fair use of a copyrighted work … for purposes such

as criticism, comment, news reporting, teaching (including

multiple copies for classroom use), scholarship, or

research, is not an infringement of copyright. In

determining whether the use made of a work in any

particular case is a fair use the factors to be considered

shall include—

(1) the purpose and character of the use, including

whether such use is of a commercial nature or is for

nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used

in relation to the copyrighted work as a whole; and

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(4) the effect of the use upon the potential market for

or value of the copyrighted work.

Fair-use analysis is highly fact-intensive, and the four

enumerated factors are not exclusive. Harper & Row,

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).

The district court separately analyzed the four factors for

each of the 217 standards at issue, but its bottom line was

straightforward: Public Resource’s copying of material

incorporated by reference into law, for free dissemination to

the public, was fair use. We agree.

A

1

The first three factors strongly support holding that Public

Resource’s posting of incorporated standards was fair use, as

our opinion in ASTM II suggested.

The first factor is “the purpose and character of the use,

including whether such use is of a commercial nature or is for

nonprofit educational purposes.” 17 U.S.C. § 107(1). This

factor “focuses on whether an allegedly infringing use has a

further purpose or different character, which is a matter of

degree, and the degree of difference must be weighed against

other considerations, like commercialism.” Andy Warhol

Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258,

1273 (2023). It supports the defense here for two reasons.

First, Public Resource’s use is for nonprofit, educational

purposes. The inquiry focuses on the defendant’s use of the

material. Harper & Row, 471 U.S. at 562. In ASTM II, we held

that Public Resource—which disseminates the disputed

materials for free—is engaged in a nonprofit as opposed to

9

commercial use. 896 F.3d at 449. Since then, the Supreme

Court confirmed the importance of that conclusion: “There is

no doubt that a finding that copying was not commercial in

nature tips the scales in favor of fair use.” Google LLC v.

Oracle Am., Inc., 141 S. Ct. 1183, 1204 (2021).

Second, Public Resource’s use is transformative because it

serves a different purpose than the plaintiffs’ works. In

Warhol, the Supreme Court stressed that “the first factor …

asks whether and to what extent the use at issue has a purpose

or character different from the original.” 143 S. Ct. at 1275

(cleaned up). The plaintiffs seek to advance science and

industry by producing standards reflecting industry or

engineering best practices. For example, ASHRAE says its

mission is to “advance the arts and sciences of heating,

ventilation, air conditioning and refrigeration to serve

humanity and promote a sustainable world.” J.A. 7169. Public

Resource’s mission in republishing the standards is very

different—to provide the public with a free and comprehensive

repository of the law. This distinction is fundamental: Public

Resource publishes only what the law is, not what industry

groups may regard as current best practices. And although the

standards at issue have been superseded or withdrawn as

private standards, they remain important to someone trying to

figure out what the law is (or, in the case of standards

prospectively repealed or amended as law, what law governs

disputes about past conduct).

The distinction between standards as best practices and

standards as law matters even though Public Resource does not

alter or add to the standards. As we explained in ASTM II, “a

secondary work can be transformative in function or purpose

without altering or actually adding to the original work.” 896

F.3d at 450 (cleaned up). Consider news reporters, who must

“faithfully reproduce an original work without alteration.” Id.

10

(cleaned up). As one court has explained, a reporter’s message

(“this is what they said”) is very different from the original

message (“this is what you should believe”). Swatch Grp.

Mgmt. Servs. v. Bloomberg LP, 756 F.3d 73, 85 (2d Cir. 2014).

The same principle applies here: Public Resource’s message

(“this is the law”) is very different from the plaintiffs’ message

(“these are current best practices for the engineering of

buildings and products”).

The second fair-use factor is “the nature of the copyrighted

work.” 17 U.S.C. § 107(2). It “calls for recognition that some

works are closer to the core of intended copyright protection

than others, with the consequence that fair use is more difficult

to establish when the former works are copied.” Campbell v.

Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994). Application

of this factor often depends on whether the work is factual or

fictional, for “the law generally recognizes a greater need to

disseminate factual works than works of fiction or fantasy.”

Harper & Row, 471 U.S. at 563.

This factor strongly supports a finding of fair use. As we

explained in ASTM II, standards “fall at the factual end of the

fact-fiction spectrum, which counsels in favor of finding fair

use.” 896 F.3d at 451. Moreover, legal text “falls plainly

outside the realm of copyright protection.” Id. And because

incorporated standards have legal force, they too fall, “at best,

at the outer edge of copyright’s protective purposes.” Id.

(cleaned up). Finally, “[w]here the consequence of the

incorporation by reference is virtually indistinguishable from a

situation in which the standard had been expressly copied into

law, this factor weighs heavily in favor of fair use.” Id. at 452.

Following this guidance, the district court correctly concluded

that if a standard “is incorporated into law without limitation,”

the result is “virtually indistinguishable from a situation in

which the standard had been expressly copied into law,” so the

11

second factor thus “weighs heavily in favor of fair use.” ASTM

III, 597 F. Supp. 3d at 249.

The third fair-use factor considers “the amount and

substantiality of the portion used in relation to the copyrighted

work as a whole.” 17 U.S.C. § 107(3). It turns on whether the

extent of the copying is “reasonable in relation to the purpose

of the copying.” Campbell, 510 U.S. at 586. In ASTM II, we

stressed that Public Resource’s copying must be considered “in

light of its purpose of informing the public about the specific

incorporation at issue.” 896 F.3d at 452.

This factor strongly supports fair use because the standards

at issue have been incorporated and thus have the force of law.

Public Resource posts standards that government agencies

have incorporated into law—no more and no less. If an agency

has given legal effect to an entire standard, then its entire

reproduction is reasonable in relation to the purpose of the

copying, which is to provide the public with a free and

comprehensive repository of the law. Given the “nature” of the

works at issue, “the fact that the entire work is reproduced does

not have its ordinary effect of militating against a finding of

fair use.” Sony Corp. of Am. v. Universal City Studios, Inc.,

464 U.S. 417, 449–50 (1984) (cleaned up).

2

The plaintiffs make two principal objections to this

analysis of the first three fair-use factors.

First, they argue that the district court ignored important

differences among three different categories of incorporated

text. The first category includes portions of standards essential

to comprehending legal duties—for example, NFPA 10’s

provision for portable fire extinguishers to be inspected

monthly, given the federal regulation requiring shipyard

12

operators to follow that standard, 29 C.F.R. § 1915.507(b)(1).

The second category includes standards prescribing how

compliance may be assessed, also known as reference

procedures. For example, 40 C.F.R. § 86.113-04(a)(1) states

that the maximum permissible lead content in certain gasoline

is 0.05 grams of lead per gallon as measured by the test

procedure in ASTM D3237, which is incorporated by

reference. The third category includes material that does not

directly prescribe necessary or sufficient conditions for

complying with a legal duty—introductory or background

material, for example, along with material addressing contexts

other than the focus of the incorporating regulation. For

example, a regulation governing the operation of veterans’

cemeteries incorporates NFPA 101 by reference and requires

covered cemeteries to meet the standard’s applicable

architectural and structural requirements. 38 C.F.R.

§ 39.63(a)(1). Yet NFPA 101 also provides standards for

houses, schools, and many other kinds of structures.

The plaintiffs argue that under ASTM II, Public Resource

may copy the first category of material but not the other two.

In ASTM II, we did stress that material in the first category has

the strongest claim to fair use. See 896 F.3d at 450. But we

did not hold that material in the other categories has no such

claim. Rather, we explained that, if an entity is “distributing

copies of the law for purposes of facilitating public access,” the

most important question is what material counts as “law.” Id.

And all material that has been validly incorporated by reference

carries the force of law and is treated as having been published

in the Federal Register and Code of Federal Regulations,

regardless of where it falls among the three categories. See 5

U.S.C. § 552(a)(1); J.A. 9511.

Moreover, because law is interpreted contextually, even

explanatory and background material will aid in understanding

13

and interpreting legal duties—especially when the

promulgating agency references it. Courts routinely consult

congressional findings, statements of purpose, and other

background material enacted by Congress to decipher the

meaning of ambiguous statutory provisions. See A. Scalia &

B. Garner, Reading Law: The Interpretation of Legal Texts 218

(2012). The introductory and background material of an

incorporated standard—along with rules addressing how the

standard operates in other contexts besides the one directly at

issue—may prove similarly important for resolving

ambiguities in the portions of standards that set forth the

directly binding legal obligations.

The plaintiffs object that if Public Resource may post all

portions of all incorporated standards, then parts of our

discussion in ASTM II would be superfluous. Why, they ask,

did we bother to remand for a standard-by-standard analysis

and say that material “essential to comprehending one’s legal

duties” has a stronger claim to fair use than background

material that merely “help[s] inform one’s understanding” of

regulatory requirements? See 896 F.3d at 450. One answer is

that although the distinction among the three categories turns

out not to matter much here, it might be dispositive in other

contexts—for example, in assessing the fair-use defense of a

for-profit firm that charges customers for copies of

incorporated standards. Another answer is that although ASTM

II stated that material in the first category has the strongest

claim to fair use, we hardly suggested that material in the other

categories would not also have strong claims. To the contrary,

our overall analysis made clear that the first three factors tilt

strongly in favor of Public Resource. See, e.g., id. at 449 (“at

least as a general matter, [Public Resource’s] attempt to freely

distribute standards incorporated by reference into law

qualified as a use that furthered the purposes of the fair use

defense”); id. at 451 (“All of the works at issue here fall at the

14

factual end of the fact-fiction spectrum, which counsels in

favor of finding fair use.”); id. at 459 (Katsas, J., concurring)

(“The Court’s fair-use analysis … puts a heavy thumb on the

scale in favor of an unrestrained ability to say what the law

is.”).

Second, the plaintiffs argue that, because they make

standards available for free in online reading rooms, Public

Resource’s use cannot be transformative. Yet all but one of

these rooms opened after Public Resource began posting

incorporated standards. Moreover, the plaintiffs’ reading

rooms do not provide equivalent or even convenient access to

the incorporated standards. Among other things, text is not

searchable, cannot be printed or downloaded, and cannot be

magnified without becoming blurry. Often, a reader can view

only a portion of each page at a time and, upon zooming in,

must scroll from right to left to read a single line of text. Public

Resource’s postings suffer from none of these shortcomings.1

1

The plaintiffs also challenge three alleged inconsistencies in

the district court’s analysis of particular standards. They first

complain that the court found ASTM D1688 and ASTM D512 had

been incorporated in full, but ASTM D2036 had been incorporated

only in part, even though the same regulation incorporates all three

standards. But the version of the regulation analyzed by the district

court only references two of four test procedures from ASTM

D2036, whereas the relevant version references every procedure

from ASTM D1688 and ASTM D512. See 40 C.F.R. § 136.3, Table

IB (2003); id. (2010). The plaintiffs also argue that the district court

inconsistently characterized certain incorporated material as

“essential for comprehending legal duties” as opposed to providing

discretionary or reference procedures. Appellants’ Br. 30 (cleaned

up). But this distinction was not dispositive to that court’s fair-use

analysis, nor is it to ours. If anything, the difficulty in distinguishing

“essential” material from discretionary or reference procedures

supports the district court’s decision not to make that line dispositive.

15

B

The fourth fair-use factor is “the effect of the use upon the

potential market for or value of the copyrighted work.” 17

U.S.C. § 107(4). “It requires courts to consider not only the

extent of market harm caused by the particular actions of the

alleged infringer, but also whether unrestricted and widespread

conduct of the sort engaged in by the defendant would result in

a substantially adverse impact on the potential market for the

original.” Campbell, 510 U.S. at 590 (cleaned up).

In ASTM II, we noted that Public Resource’s copying may

harm the market for the plaintiffs’ standards, but we found the

extent of any such harm to be unclear. 896 F.3d at 453. We

noted three considerations that might reduce the amount of

harm: First, the plaintiffs themselves make the incorporated

standards available for free in their reading rooms. Second,

Public Resource may not copy unincorporated standards—or

unincorporated portions of standards only partially

incorporated. Third, the plaintiffs have developed and

copyrighted updated versions of the relevant standards, and

these updated versions have not yet been incorporated into law.

We asked the parties to address these issues, among others, on

remand. See id.

The updated record remains equivocal. The plaintiffs

press heavily on what seems to be a common-sense inference:

If users can download an identical copy of an incorporated

standard for free, few will pay to buy the standard. Despite its

intuitive appeal, this argument overlooks the fact that the

plaintiffs regularly update their standards—including all 185

standards at issue in this appeal. And regulators apparently are

much less nimble in updating the incorporations. So, many of

the builders, engineers, and other regular consumers of the

plaintiffs’ standards may simply purchase up-to-date versions

16

as a matter of course. Moreover, some evidence casts doubt on

the plaintiffs’ claims of significant market injury. Public

Resource has been posting incorporated standards for fifteen

years. Yet the plaintiffs have been unable to produce any

economic analysis showing that Public Resource’s activity has

harmed any relevant market for their standards. To the

contrary, ASTM’s sales have increased over that time; NFPA’s

sales have decreased in recent years but are cyclical with

publications; and ASHRAE has not pointed to any evidence of

its harm. See ASTM III, 597 F. Supp. 3d at 240.

The plaintiffs’ primary evidence of harm is an expert

report opining that Public Resource’s activities could put the

plaintiffs’ revenues at risk. Yet although the report

qualitatively describes harms the plaintiffs could suffer, it

makes no serious attempt to quantify past or future harms. Like

the district court, we find it “telling” that the plaintiffs “do not

provide any quantifiable evidence, and instead rely on

conclusory assertions and speculation long after [Public

Resource] first began posting the standards.” ASTM III, 597 F.

Supp. 3d at 240.

Finally, our analysis of market effects must balance any

monetary losses to the copyright holders against any “public

benefits” of the copying. Oracle, 141 S. Ct. at 1206. Thus,

even if Public Resource’s postings were likely to lower demand

for the plaintiffs’ standards, we would also have to consider the

substantial public benefits of free and easy access to the law.

As the Supreme Court recently confirmed: “Every citizen is

presumed to know the law, and it needs no argument to show

that all should have free access” to it. Georgia v.

Public.Resource.Org., Inc., 140 S. Ct. 1498, 1507 (2020)

(cleaned up).

17

We conclude that the fourth fair-use factor does not

significantly tip the balance one way or the other. Common

sense suggests that free online access to many of the plaintiffs’

standards would tamp down the demand for their works. But

there are reasons to doubt this claim, the record evidence does

not strongly support it, and the countervailing public benefits

are substantial.2

* * * *

In sum, the first three factors under section 107 strongly

favor fair use, and the fourth is equivocal. We thus conclude

that Public Resource’s non-commercial posting of

incorporated standards is fair use.

III

Finally, the plaintiffs contend that the district court abused

its discretion by refusing to enjoin Public Resource after

finding that it had infringed the copyrights for the 32 standards

not incorporated by reference into law. We disagree.

The Copyright Act provides that a district court “may …

grant temporary and final injunctions on such terms as it may

deem reasonable to prevent or restrain infringement.” 17

U.S.C. § 502(a). Such language gives the court “considerable

discretion” in deciding whether to issue an injunction. Roche

Prods., Inc. v. Bolar Pharm. Co., 733 F.2d 858, 865 (Fed. Cir.

1984) (interpreting analogous language in the Patent Act).

Thus, the Supreme Court has “consistently rejected invitations

to replace traditional equitable considerations with a rule that

an injunction automatically follows a determination that a

2

Because these considerations make the fourth factor

equivocal, we need not, and thus do not, resolve the parties’ extended

debate over who bears the burden of proof on that factor.

18

copyright has been infringed.” eBay Inc. v. MercExchange,

LLC, 547 U.S. 388, 392–93 (2006).

One important equitable consideration is whether the

defendant “has ceased its infringing conduct and shows no

inclination to repeat the offense.” Reader’s Digest Ass’n v.

Conservative Digest, Inc., 821 F.2d 800, 807 (D.C. Cir. 1987).

If so, a court may decline to enter an injunction. See id.

(defendants had ceased infringing trade dress, and district court

“had ample reason to find that they did not intend to infringe

again”); Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82

F.3d 1533, 1555 (10th Cir. 1996) (“When there is no

probability or threat of continuing infringements, injunctive

relief is ordinarily inappropriate.” (citing 3 M. Nimmer & D.

Nimmer, Nimmer on Copyright § 14.06[B] (1995))).

Here, the district court reasonably declined to enter an

injunction. Public Resource promptly removed from its

website the 32 standards found not to have been incorporated

into law. Moreover, the district court found that Public

Resource intends “to only post documents that have been

incorporated into law,” ASTM III, 597 F. Supp. 3d at 245, and

the plaintiffs do not challenge this finding as clearly erroneous.

Nor do they point to any instance where Public Resource

intentionally posted a standard knowing that it had not been

incorporated. So, an injunction is unlikely to serve any useful

purpose. And as the district court explained, “the public would

be greatly disserved by an injunction barring distribution of any

of the 32 standards which may later be incorporated by

reference into law.” Id. at 246.

The plaintiffs object that Public Resource has continued to

post additional standards since this lawsuit began. This misses

the point—what Public Resource intends to continue is its

permissible practice of posting incorporated standards for

19

educational purposes. The plaintiffs also cite cases where a

defendant ceased infringement after being “caught red-

handed” yet would likely attempt future infringement if the

threat of punishment disappeared. Walt Disney Co. v. Powell,

897 F.2d 565, 568 (D.C. Cir. 1990). But as noted above, the

plaintiffs give us no reason to think that Public Resource will

post unincorporated standards again absent an injunction.

For these reasons, the district court reasonably exercised

its discretion in declining to award injunctive relief.

Affirmed.