Cite as 896 F.3d 437 (D.C. Cir. 2018)
protection to “any idea, procedure, process, system, method of operation, concept, principle, or discovery,” 17 U.S.C. § 102(b); or Section 107 of the Act, which sets forth the fair-use doctrine, id. § 107. The Court today reasonably avoids what it correctly regards as “a serious constitutional concern” under the First and Fifth Amendments. Ante, at 446–47. And it expressly reserves, in substance though not by name, the question whether Section 102(b) extends protection to private standards as enacted into law. Ante, at 446–47.
The Court’s fair-use analysis faithfully recites the governing four-factor balancing test, yet, in conducting the balancing, it puts a heavy thumb on the scale in favor of an unrestrained ability to say what the law is. Thus, when an incorporated standard sets forth binding legal obligations, and when the defendant does no more and no less than disseminate an exact copy of it, three of the four relevant factors—purpose and character of the use, nature of the copyrighted work, and amount and substantiality of the copying—are said to weigh “heavily” or “strongly” in favor of fair use. Ante, at 450, 452. This analysis closely parallels Banks, which the Court explicitly invokes in its discussion of factor two. Ante, at 451. The Court acknowledges the thinness of the record in this case, and it appropriately flags potentially complicating questions about how particular standards may be incorporated into law, and whether such standards, as so incorporated, actually constitute “the law.” Ante, at 446–47. But, where a particular standard is incorporated as a binding legal obligation, and where the defendant has done nothing more than disseminate it, the Court leaves little doubt that the dissemination amounts to fair use.
With that understanding, and recognizing that the Section 102(b) and constitutional issues remain open in the unlikely event that disseminating “the law” might be held not to be fair use, I join the Court’s opinion.
NATURAL RESOURCES DEFENSE COUNCIL and Sierra Club, Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Respondents
American Petroleum Institute, Intervenor
No. 16-1413
United States Court of Appeals, District of Columbia Circuit.
Argued March 22, 2018
Decided July 20, 2018
