copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Id. at 579, 114 S.Ct. 1164 (citations and footnotes omitted). On this point, the district court properly rejected some of PRO’s arguments as to its transformative use—for instance, that PRO was converting the works into a format more accessible for the visually impaired or that it was producing a centralized database of all incorporated standards. See ASTM, 2017 WL 473822, at *16; see also American Geophysical Union v. Texaco Inc., 60 F.3d 913, 923–24 (2d Cir. 1994) (holding that photocopying articles “into a form more easily used in a laboratory” does not constitute transformative use but acknowledging “the benefit of a more usable format”).
The district court, however, failed to adequately consider whether, in certain circumstances, distributing copies of the law for purposes of facilitating public access could constitute transformative use. Indeed, in various circumstances, courts have recognized that a secondary work “can be transformative in function or purpose without altering or actually adding to the original work.” A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009). For instance, “[i]n the context of news reporting and analogous activities … the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work without alteration.” Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73, 84 (2d Cir. 2014); see also, e.g., iParadigms, 562 F.3d at 639 (producing a digital copy of a student’s thesis for the purpose of assessing plagiarism).
PRO makes precisely this argument: “[p]araphrases, summaries, and descriptions,” it explains, “do not capture the precision that is necessary to understand the legal obligations that governments impose and enforce.” PRO Br. 43. This may well be the case. Where an incorporated standard provides information essential to comprehending one’s legal duties, for example, this factor would weigh heavily in favor of permitting a nonprofit seeking to inform the public about the law to reproduce in full the relevant portions of that particular standard. Of the incorporated standards at issue here, federal statute’s incorporation of ASTM D975’s diesel specifications to dictate whether a retailer needs to provide additional fuel labels, see 42 U.S.C. § 17021(b)(1), likely supports PRO’s copying. By contrast, the incorporation of ASTM D86-07 as a reference procedure for determining whether gasoline without ethanol has an “[e]vaporated initial boiling point” of “75–95[°F],” see 40 C.F.R. § 86.113-04(a)(1), likely does not.
Homing in on this inquiry may also illuminate which particular version of a standard may fairly be reproduced. Recall that a qualifying power source for tank barges must meet “[National Electrical Code], Articles 406.9 and 501-145.” 46 C.F.R. § 39.2009(a)(1)(iii)(B). This incorporation might justify reproducing that portion of the 2011 National Electrical Code, the one incorporated in the power source regulation, see id. § 39.1005(h)(1), but not the 2014 edition, also at issue in this appeal but not so incorporated.
By contrast, where knowing the content of an incorporated standard might help inform one’s understanding of the law but is not essential to complying with any legal duty, the nature of PRO’s use might be less transformative and its wholesale copying, in turn, less justified. For instance, ASHRAE Standard 90.1 provides important context for assessing provisions of state commercial building codes regarding energy efficiency. See 42 U.S.C. § 6833(b). At the same time, unless a particular pro-
