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 noncommercial 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 
8

(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 redhanded” 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.