destroys the market for the original work or its potential derivatives, but whether the secondary use usurps or substitutes for the market of the original work.”).
“Factor Four is necessarily intertwined with Factor One; the more the objective of secondary use differs from that of the original, the less likely it will supplant the commercial market for the original.” ReDigi, 910 F.3d at 662. However, “[e]ven if the purpose of the copying is for a valuably transformative purpose, such copying might nonetheless harm the value of the copyrighted original if done in a manner that results in widespread revelation of sufficiently significant portions of the original as to make available a significantly competing substitute.” Authors Guild, 804 F.3d at 223. Where an alleged infringer effectively competes with companies that license the plaintiff’s work, that may also tend against a finding of fair use. See Associated Press v. Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d 537, 560–61 (S.D.N.Y. 2013).
The ASTM court suggested district courts consider three questions under this factor. First, considering that SDOs make their standards available for free in controlled reading rooms without hurting sales of their standards, to what extent does the allegedly infringing reproduction
88
