[00:00:00] Speaker 06:
Base number 22-1763, American Society for Testing and Materials et al.

[00:00:06] Speaker 06:
at Balance versus publicoutresource.org, Inc.

[00:00:10] Speaker 06:
Mr. Klaus for the balance, Ms.

[00:00:12] Speaker 06:
McSherry for the appellee.

[00:00:13] Speaker 05:
Mr. Klaus, good morning.

[00:00:17] Speaker 05:
Thank you, Judge Henderson.

[00:00:20] Speaker 05:
Good morning.

[00:00:20] Speaker 05:
May I please record?

[00:00:22] Speaker 05:
The district court's order permits public resource to engage in the essentially verbatim copying and unlimited internet distribution of more than 200 different works that plaintiffs properly copyrighted and that Congress, governmental agencies, and private parties alike relied on and encouraged to promote public safety, save the government and taxpayers from having to bear the costs of development, and support the efficient operation of wide swaths of the economy.

[00:00:52] Speaker 05:
The district court reached that sweeping result as to 185 different works by systematically misapplying the care guidance and specific instructions this court provided when it demanded for reconsideration of public resources affirmative defense of fair use.

[00:01:09] Speaker 05:
As to the 32 works where the district court held public resources use was not fair, the district court abused its discretion

[00:01:16] Speaker 05:
by declining to enjoin public resource based on the speculative possibility that one or more of the works might one day be incorporated by reference.

[00:01:25] Speaker 05:
It was error to grant public resources summary judgment motion and not enjoin it.

[00:01:30] Speaker 05:
The district court's order invites public resource and anyone similarly situated to it to copy and distribute any IDR work without limitation.

[00:01:41] Speaker 05:
No copyright owner would long survive the unrestricted and widespread copying

[00:01:46] Speaker 05:
the type of resources engaged in.

[00:01:48] Speaker 05:
But that is where the district court's order leaves it.

[00:01:52] Speaker 05:
Your Honor, there's been a substantial amount of briefing and paper in this case, I know.

[00:01:57] Speaker 05:
I would propose to focus on three areas, although obviously subject to the court's questions.

[00:02:06] Speaker 05:
First involves the first three fair use factors.

[00:02:10] Speaker 05:
as set forward in this court, what we call the ASTM2 decision.

[00:02:18] Speaker 05:
And then I'd like to spend some time on the fourth factor, or market harm, and then to talk about public resources alternative argument or affirmance based on Georgia versus public resource, which we think is an applicable bias.

[00:02:37] Speaker 05:
So to start your honors,

[00:02:39] Speaker 05:
With respect to the first three fair use factors, this court remanded to the district court with quite specific instructions, a quite detailed set of issues that the district court was to consider as to each of the standards.

[00:02:58] Speaker 05:
And the court made it clear to be a standard by standard evaluation of the

[00:03:08] Speaker 05:
particular legal status and to weigh the factors as PROs use as applied to each.

[00:03:15] Speaker 04:
And with respect to- The district court went standard by standard in excruciating detail.

[00:03:22] Speaker 05:
Judge Katz, the district court did go standard by standard, and the appendix is quite lengthy.

[00:03:31] Speaker 05:
I agree with that.

[00:03:33] Speaker 05:
But what the district court did not do

[00:03:36] Speaker 05:
was to grapple with the specific instructions that the court gave as to each of the first three fair use factors for each of these paragraphs in the appendix.

[00:03:47] Speaker 04:
Well, the first thing the district court did, tell me if you disagree with this, but she solved the problem of copying standards or portions of standards that hadn't been incorporated into

[00:04:07] Speaker 04:
right?

[00:04:08] Speaker 04:
You want on 32 of those and half there was a, there was a, there was a, there was a grouping at the end of the so-called category.

[00:04:17] Speaker 04:
So, so really what we're talking about is the non-commercial dissemination of standards that have been incorporated into law that have the standards.

[00:04:34] Speaker 05:
So judge Katz has the standards have been incorporated.

[00:04:38] Speaker 05:
But whether the standards actually in total.

[00:04:43] Speaker 05:
Imposed binding legal obligation, which is the question that the court.

[00:04:49] Speaker 04:
Apologize.

[00:04:49] Speaker 04:
No, no, no.

[00:04:50] Speaker 05:
Go ahead is the question that the court asked the district court to consider and essentially the maybe yes, we flag that as a relevant.

[00:05:04] Speaker 04:
Consideration.

[00:05:06] Speaker 04:
For fair use.

[00:05:08] Speaker 04:
But we didn't really say that background material or safe harbor provisions could not be fair use.

[00:05:20] Speaker 05:
That is correct.

[00:05:22] Speaker 05:
But what the court did say was that the justification for the copy might be quite different where what you have is something that did not impose a binding legal obligation.

[00:05:34] Speaker 05:
And what public resource did of a copy of one of the standards of people, if you'll forgive me for using this as an example, they essentially copied and posted everything a burden to cover.

[00:05:48] Speaker 04:
Everything that had been incorporated.

[00:05:51] Speaker 05:
Well, that is actually, we actually dispute that with respect to a number of the standards, Your Honor, because we think that the incorporation with respect to some of these standards

[00:06:04] Speaker 05:
did not incorporate the entire document.

[00:06:07] Speaker 05:
Let me give you an example.

[00:06:09] Speaker 05:
So the public resource says, at page six of the red brief, they say when Congress are with an agency who wants to incorporate the entire standard, it just doesn't say anything.

[00:06:26] Speaker 05:
It wants to incorporate a specific portion.

[00:06:29] Speaker 05:
Incorporate it to a specific portion.

[00:06:31] Speaker 05:
And they give, as the example,

[00:06:33] Speaker 05:
A regulation from the Pipeline and Hazardous Materials Safety Administration, 49 CFR 192.7.

[00:06:43] Speaker 05:
And the joint appendix, the statement facts, what the public resource said is, if you print through that, what it says is, MFPA 70 2008.

[00:07:00] Speaker 05:
We're done.

[00:07:01] Speaker 05:
Congratulations, you've found a standard that's been incorporated in full.

[00:07:08] Speaker 05:
But in fact, when you read through what 49 CFR 192.7 subsection four actually says is that the National Electrical Code is IDR approved for two further subsections.

[00:07:30] Speaker 05:
And when you go to those further subsections, one of them says 192.163E.

[00:07:34] Speaker 05:
There's electrical facilities.

[00:07:38] Speaker 05:
Electrical equipment and wiring installed in compressor stations must conform to NFPA 70 so far as that code is applicable.

[00:07:50] Speaker 05:
And we know that there are huge portions of the NFPA 70 of the National Electrical Code

[00:08:00] Speaker 05:
that couldn't possibly apply to a compressor station.

[00:08:04] Speaker 05:
There are entire sections of that standard that deal with things like carnivals, circuses, fairs, that deal with motion picture and television studios, and special wiring issues for those.

[00:08:17] Speaker 05:
And so Judge Katsas, that's to the point that we submit that when an agency has simply said, we incorporate this standard for these purposes.

[00:08:30] Speaker 05:
Take the Life Safety Code example that we gave, which applies the Veterans Affairs Regulation for veteran cemeteries, where the underlying code has provisions that deal with one- and two-story family dwellings and daycare centers.

[00:08:46] Speaker 05:
It can't possibly be the case, but what the agency is saying is, well, we've incorporated that.

[00:08:53] Speaker 05:
It's kaboom.

[00:08:56] Speaker 05:
you should everybody in the world should assume that the entire document cover to cover has been incorporated by law.

[00:09:03] Speaker 04:
So suppose it's crystal clear, the incorporating statute identifies with with precision.

[00:09:12] Speaker 04:
The private standard incorporated, right?

[00:09:17] Speaker 04:
Ashray 100.2 or whatever it is.

[00:09:21] Speaker 04:
And then you look at that provision

[00:09:24] Speaker 04:
And let's say it just conceptually has three different parts.

[00:09:30] Speaker 04:
One is the directly binding legal text, right?

[00:09:35] Speaker 04:
What we said would be essential to understanding legal obligations, okay?

[00:09:43] Speaker 04:
That's the first category.

[00:09:45] Speaker 04:
Second category is a safe harbor provision.

[00:09:50] Speaker 04:
right?

[00:09:51] Speaker 04:
It says if you do the following, you will be in compliance with the same, okay?

[00:09:56] Speaker 04:
Maybe less essential, but it's a safe harbor.

[00:10:00] Speaker 04:
Yes.

[00:10:00] Speaker 04:
And the third category is explanatory material.

[00:10:04] Speaker 04:
It has the private standard has findings.

[00:10:07] Speaker 04:
It has a statement of purpose.

[00:10:11] Speaker 04:
I had thought this whole dispute is about those second and third categories, and you say those can't fairly be cop

[00:10:19] Speaker 04:
The dispute.

[00:10:20] Speaker 04:
Is that fair?

[00:10:21] Speaker 05:
I understand your question.

[00:10:22] Speaker 04:
Just as a conceptual.

[00:10:24] Speaker 05:
I think conceptually the answer is yes.

[00:10:28] Speaker 05:
It is with respect to in the in the type of circumstance with the type of IVR regulation that you described.

[00:10:35] Speaker 04:
It is with respect to is with respect to the other two categories and wouldn't someone wouldn't someone trying to figure out his or her legal obligations want to know all three categories?

[00:10:48] Speaker 05:
they potentially would want to know the second category.

[00:10:54] Speaker 05:
I grant that on the question, although that is as the point that this court made was that with respect to something like a safe harbor or a reference procedure, that something like a paraphrase might be more adequate.

[00:11:16] Speaker 05:
that's one of the many showings that we made in the district court in terms of taking the court's opinion and trying to apply it to the record, was to show that it was not necessary for there to be 100% for beta copying.

[00:11:30] Speaker 02:
And then when you move... Mr. Klaus, let me just... Oh, I'm sorry.

[00:11:34] Speaker 02:
Finish your sentence.

[00:11:36] Speaker 05:
I was just going to... Thank you, Judge.

[00:11:38] Speaker 05:
I was just going to say, Judge Katzis, with respect to the third category, we think that it moves even farther afield.

[00:11:44] Speaker 05:
in terms of what some of the, and the other point that I would make, and it's a point that this court emphasized over and over again five years ago, is that not all of these are created equal.

[00:11:57] Speaker 05:
And so what you have described as being in pocket three, Judge Kapsos, as informational material.

[00:12:04] Speaker 05:
There's a wide variety of that type of informational material.

[00:12:08] Speaker 05:
Again, we did the work in the district court of trying to explain what

[00:12:14] Speaker 05:
you know, how to separate, how to separate these matters.

[00:12:19] Speaker 05:
And what we instead, we're instead told by public resource, and it does appear that the district court accepted it is, as long as you can find an incorporated regulation that doesn't specifically carve out a particular section, then you are essentially, you're home free on the first three fair use sections.

[00:12:42] Speaker 02:
Now, what about who is you and for what purpose?

[00:12:45] Speaker 02:
I understand the problem, I believe, from SDO's perspective, which is if incorporation by reference is used, let's just say, sort of broadly or sloppily, I'm going to refer to the whole buyer standards

[00:13:06] Speaker 02:
And everyone who looks at them is going to know, you know that they're supposed to go to the wood structures thing but so I don't even as the, as the lawmaker incorporated by rep reference, I don't have the incentive to be very precise about it, your problem is then, and then.

[00:13:22] Speaker 02:
public resource is just looking at what the lawmaker said because public resource is not, you know, a highly trained lawyer who's going to go through and carve out, you know, and edit away the non-necessary person.

[00:13:35] Speaker 02:
They're just going to put up what the incorporation by reference refers to.

[00:13:40] Speaker 02:
But the problem from your client's perspective is when it's done in that sort of wholesale way, then you end up with

[00:13:48] Speaker 02:
someone who might want to you know publish things that your clients want to publish and that is their work and send it off and it becomes a substitute even in the industry setting where you know electricians want to be doing things in a uniform way and fire safety professionals want to be doing something in a uniform way and so they're referring to these

[00:14:10] Speaker 02:
in a context that is distinct from the context of legally abiding standards.

[00:14:16] Speaker 05:
Is that a fair description of sort of the- That is a completely fair description, yes.

[00:14:21] Speaker 02:
Okay, but I've also flagged the difficulty of requiring somebody in the position of public resources to make the more fine-grained

[00:14:32] Speaker 02:
division.

[00:14:33] Speaker 02:
But so if it were possible in the real world to say, fair use applies, except what the district court did in terms of applying the fair use analysis to what the lawmaking authority referenced, and only that.

[00:15:01] Speaker 02:
And if we then were to apply the fair use defense only to uses of those standards, why law?

[00:15:13] Speaker 02:
you know, when used as law, and say the fair use defense does not apply when enterprising publisher wants to scoop the fire codes and sell them at a, you know, undersell the owners of the work, that even though they found it on public resource, it is not fair use when it's not being used, sold, profited from,

[00:15:44] Speaker 02:
in its role as law?

[00:15:47] Speaker 02:
I mean, conceptually, that's sort of, I'm wondering if that were a distinction that could be maintained, would it be acceptable?

[00:15:59] Speaker 02:
Is that acceptable to you?

[00:16:00] Speaker 05:
It is.

[00:16:01] Speaker 05:
I think I understand the question, Judge Miller, that it would not be acceptable for the following reasons.

[00:16:08] Speaker 05:
One is that what public resource puts up

[00:16:11] Speaker 05:
is a verbatim copying of what we've got.

[00:16:15] Speaker 05:
We've stipulated that.

[00:16:16] Speaker 05:
And there is no limitation on the distribution of it.

[00:16:25] Speaker 05:
And to the point that, well, what about the people in the world who would need to see maybe there is someone, although there is no record evidence of it,

[00:16:37] Speaker 05:
There's been 10 years of litigation, and we have not had anyone come in and say, I wanted to debate one of these standards.

[00:16:49] Speaker 05:
I wanted to propose something.

[00:16:52] Speaker 05:
We don't have any of that.

[00:16:53] Speaker 05:
But if there were someone who said, I really need to have this, all of the standards, every one of them, cover to cover,

[00:17:04] Speaker 05:
is made available by the plaintiffs.

[00:17:07] Speaker 02:
I think you lost that argument on the first appeal.

[00:17:11] Speaker 02:
Is that not right?

[00:17:12] Speaker 02:
I mean, if that were enough, then the prior panel wouldn't have rendered the decision that it was.

[00:17:19] Speaker 05:
In this respect, I don't think that it's settled by the former appeal, Your Honor, which is that there has to be an evaluation of what it is

[00:17:31] Speaker 05:
what it is that the defendant here is doing, but the effect, as you pointed out, the substitutional effect on the plaintiff's market is.

[00:17:40] Speaker 05:
And we think that it is relevant to the consideration, both to the degree of transformativeness and to the question of the substitution.

[00:17:52] Speaker 02:
But is it a conceptual problem or a practical problem if public resource website were

[00:18:02] Speaker 02:
you know, directed that it's to be used only to analyze or critique or refer to the materials insofar as they've been IBR'd, isn't that an adequate limitation?

[00:18:23] Speaker 05:
If there were a way to keep genies at work in the bottle,

[00:18:30] Speaker 05:
That would be a very different case, credit card, and I think that it would be much harder.

[00:18:36] Speaker 02:
Why is there not a way to keep the genie in the bottle?

[00:18:38] Speaker 02:
I mean, why is that not the situation we face here?

[00:18:41] Speaker 05:
Oh, there are a couple of ways for public resources to do some things.

[00:18:46] Speaker 05:
For example, we had evidence in the record that the Internet Archive, which is where they post all of their material, that they have a borrowing or a checkout function.

[00:18:59] Speaker 05:
And so someone, unlike a Napster for the standards world type situation where anybody can go and take something down, that there is a function where you can put a checkout on.

[00:19:17] Speaker 05:
The book is taken out.

[00:19:19] Speaker 05:
The book is taken back.

[00:19:22] Speaker 05:
Similarly, with respect to the site in here, there is a function

[00:19:28] Speaker 05:
Internet Archive that provides for encrypted copying, for encrypted copies, and that they will only be used by persons who have sight impairment.

[00:19:44] Speaker 05:
Those mechanisms were available, and public resource doesn't use them.

[00:19:50] Speaker 05:
So I would agree with you, Judge Barth.

[00:19:52] Speaker 05:
It would be a much closer, a much different case.

[00:19:54] Speaker 05:
if what we had in the sense was public resource operating speaker's corner and nobody could take the standards with them when they left speaker's corner after listening to them explain.

[00:20:10] Speaker 05:
Or somebody who wanted to research them could go out and do that in some way.

[00:20:15] Speaker 05:
But again, that's not the situation that we have with respect to the defendant's use.

[00:20:24] Speaker 02:
Well, they want to be able to make it easy for people, have free access.

[00:20:28] Speaker 02:
And I mean, I take it the problem is if they really were using it only for legal analysis, legal compliance, that could be on the fair use side, the difficulty is in the implementation of that line.

[00:20:42] Speaker 02:
I mean, what if you found that

[00:20:45] Speaker 02:
Do you understand anything about the first panel's decision to prevent you from pursuing someone who did what I was referring to before?

[00:20:59] Speaker 02:
downloaded the full fire code because it's been IVR'd in full, bound it up into a book, and sold it in competition with your client to firefighting professionals who are not worried about complying with the law, they're worried about, or construction professionals who are worried about making good buildings that aren't gonna burn too easily.

[00:21:22] Speaker 02:
that you could still pursue that as not fair use under the ruling of the first panel?

[00:21:30] Speaker 05:
Well, unfortunately, Judge Miller, the way that the internet works, we had evidence that we submitted, is that the people who can download these are, we don't have any record of who they are.

[00:21:47] Speaker 05:
Very deliberately, public resource does not keep track.

[00:21:52] Speaker 05:
who downloads their works.

[00:21:54] Speaker 05:
And so we don't know, for example, who the people are who, with respect to the 2017 version of the National National Code, have access to that work.

[00:22:07] Speaker 05:
It could either be to view or to download, something like 40,000 times.

[00:22:11] Speaker 05:
We don't have a record of it.

[00:22:14] Speaker 05:
And we do see, as we put into the records, evidence of some people actually reselling

[00:22:22] Speaker 05:
You re-sign things on a site like Srip.

[00:22:25] Speaker 05:
And part of the lesson, frankly, not just from this case, but from 20 plus years of cases involving distribution of copyrighted works on the internet, is that you don't want, it's unfair to put the copyright owner into having to play a game of whack-a-mole.

[00:22:47] Speaker 02:
I have a much more specific question for you, which is if we were to agree with you that the district court misstated the burden on market harm, can you spell out how, if at all, it affected the summary judgment determination?

[00:23:01] Speaker 02:
And in particular, is there any way that your clients relied on what you say is the appropriate burden allocation to somehow hold back on developing or presenting evidence of market harm?

[00:23:14] Speaker 05:
We did not.

[00:23:16] Speaker 05:
So we did not hold back on developing evidence of market harm.

[00:23:22] Speaker 05:
That said, Judge Miller, we think that it's clear that it was the allocation of the burden was wrong, as we've said.

[00:23:30] Speaker 05:
And we also think that regardless of who has the burden or where it was, at a minimum, we presented a tribal question of market harm.

[00:23:41] Speaker 02:
So you're saying just looking, you know, putting the bracketing, the burden question on the record, you've made a case that that prevents summer.

[00:23:49] Speaker 05:
On the record.

[00:23:50] Speaker 05:
And I'll just pick up on the point that I was just describing to your honor, Judge Clark, where I said that there were these copies that we know are public resource.

[00:24:03] Speaker 05:
Because when you go to the spread website, what it shows you is the first page and the first page is not

[00:24:11] Speaker 05:
the title of the ASTM standard.

[00:24:16] Speaker 05:
The first page is public resources stars and stripes and all that page.

[00:24:26] Speaker 05:
And it's there.

[00:24:27] Speaker 05:
And what the district judge said about that at page 32 of the memorandum was that there was no causal connection between public resources distribution

[00:24:41] Speaker 05:
and these third party sales.

[00:24:46] Speaker 05:
And there were numerous other pieces of evidence that we had, Your Honor, that we think clearly add up to, at a minimum, again, a trial of question of fact on Margaret Hart.

[00:25:00] Speaker 04:
Finished on that.

[00:25:02] Speaker 04:
So two quick questions.

[00:25:04] Speaker 04:
One is,

[00:25:06] Speaker 04:
in the government needs context.

[00:25:09] Speaker 04:
The chief justice expressed concern with having a dual system where some people have coach version of the law and others have first class version of

[00:25:23] Speaker 04:
And that was in the context where the coach version was everything with the force and effect law.

[00:25:30] Speaker 04:
And the first class version was the annotations, which under Georgia law had no force and effective law.

[00:25:38] Speaker 04:
Isn't that concern present here and even greater because my categories two and three are materials which have the force and effect of law.

[00:25:51] Speaker 04:
So the coach version is you just get the directly controlling text and the first class version is you get the safe harbors and the explanatory material.

[00:26:02] Speaker 05:
I

[00:26:03] Speaker 05:
I completely understand the point Judge Katz has, and I would say no, because I think the interests on the other side are different.

[00:26:12] Speaker 05:
The interests that the interests of the Chief Justice was responding to was a series of arguments that George made for saying, as you have pointed out, that the line should be drawn at what has the force of law.

[00:26:27] Speaker 05:
And I think what that said is,

[00:26:30] Speaker 05:
There's no need to get into that here because we have these straightforward authorship.

[00:26:37] Speaker 05:
And it would cause a lot of difficulties.

[00:26:40] Speaker 05:
Whereas I think the interests in this case are different because the standards are privately authored.

[00:26:48] Speaker 04:
And I guess I would just quibble just a little bit saying the interests of the public in knowing the law are the same, but you might have more

[00:26:58] Speaker 04:
on the opposite side of the balance.

[00:27:02] Speaker 05:
Well, except for the fact, your honor, that we, again, we made all of the standards available online.

[00:27:13] Speaker 05:
That's one thing.

[00:27:14] Speaker 05:
And the second thing is that you have a multi-decade process of, frankly, the political branches of the Congress

[00:27:27] Speaker 05:
the administrative agencies considering the argument and balancing the question, which really what this comes down to, Dr. Katz, is a balance between providing the incentive for this, what no one denies is incredibly important work to be done and providing access, which is done through the reasonable availability standard.

[00:27:53] Speaker 04:
Last one for me, which is,

[00:27:55] Speaker 04:
you have flagged what seems to be a problem of, I'll just call it over-broad IPR.

[00:28:04] Speaker 04:
And the case that sticks in my mind is the regulator wants to address treating veterans cemeteries, and they incorporate, you know, whatever.

[00:28:16] Speaker 04:
The question is, would you be able, when this,

[00:28:24] Speaker 04:
the standard has to be formally incorporated through notice and comment rulemaking.

[00:28:29] Speaker 04:
And you've cited a lot of authority suggesting Congress wants the copyright to be respected somewhat.

[00:28:40] Speaker 04:
So in a case like that, I assume your clients could come into the IBR rulemaking and argue that the proposed incorporation

[00:28:52] Speaker 04:
is arbitrary and capricious because it's overbroad.

[00:28:57] Speaker 04:
Is there any reason why you couldn't do that?

[00:29:01] Speaker 05:
Well, I guess a couple of reasons.

[00:29:03] Speaker 05:
One is our having notice of it.

[00:29:07] Speaker 05:
And while that is essentially a, I don't know what the manageability of that would be at the federal level.

[00:29:17] Speaker 05:
Just in my response to Judge Katz, we also face the problem that it occurs at the state and local level as well.

[00:29:25] Speaker 05:
And the idea of putting the burden on to the standards development organization, essentially, you know, a radar on what can be done in any jurisdiction we think is too much of a burden.

[00:29:41] Speaker 04:
Is there any mechanism to make that argument later?

[00:29:46] Speaker 04:
I don't know, petition for unincorporating.

[00:29:50] Speaker 04:
I'd probably face a pretty tough stand.

[00:29:53] Speaker 05:
I would, up the top of my head, Your Honor, I don't know the answer.

[00:29:57] Speaker 05:
And again, I do think we, I do, and I also think- I take your point about notice.

[00:30:01] Speaker 05:
Thank you.

[00:30:02] Speaker 05:
Thank you.

[00:30:03] Speaker 05:
Your Honor, I'm substantially over my time.

[00:30:05] Speaker 05:
I'm happy if the court has other questions.

[00:30:08] Speaker 00:
We'll give you a couple of minutes in reply.

[00:30:10] Speaker 05:
Thank you.

[00:30:10] Speaker 05:
And also, Your Honors,

[00:30:12] Speaker 05:
Mr. Fee, who represents ASTM, is here and was available if the court had any ASTM specific questions.

[00:30:20] Speaker 05:
But if not, I'll just come back.

[00:30:22] Speaker 05:
Thank you.

[00:30:23] Speaker 05:
Thank you, Your Honor.

[00:30:25] Speaker 01:
Mr. McSherry.

[00:30:43] Speaker 01:
Thank you.

[00:30:47] Speaker 01:
Excuse me.

[00:30:50] Speaker 01:
Good morning.

[00:30:50] Speaker 01:
May it please the court?

[00:30:53] Speaker 01:
As has been mentioned a few times, this is our second round up here.

[00:30:56] Speaker 01:
But the core question has not changed.

[00:30:59] Speaker 01:
And the core question is, can my client, public resource, an entirely non-commercial entity, provide the public?

[00:31:06] Speaker 01:
And by the public, I mean citizens, I mean advocates, I mean journalists, and even courts with unfettered access

[00:31:13] Speaker 01:
the law.

[00:31:15] Speaker 01:
And the answer to that question is still yes.

[00:31:19] Speaker 01:
Whether it's a tax code or the building code, public should be able to play access, explore, comprehend and teach the law.

[00:31:28] Speaker 04:
The last time around, I thought there was a pretty straightforward question with a pretty straightforward answer.

[00:31:37] Speaker 04:
But Judge Tatel's opinion for the court was a lot more complicated

[00:31:44] Speaker 01:
Well, I still think it actually boils down to a pretty straightforward question.

[00:31:48] Speaker 01:
That was an answer that was reflected in how the district court interpreted ASDM-2 and applied it.

[00:31:55] Speaker 04:
I mean, he was very specific in saying that IBR can have different consequences.

[00:32:06] Speaker 04:
And he did seem to distinguish the three categories I laid out.

[00:32:10] Speaker 04:
The directly binding legal text is different from

[00:32:14] Speaker 04:
the safe harbors and the explanatory material.

[00:32:17] Speaker 01:
So the opinion does draw some distinctions there.

[00:32:20] Speaker 01:
It never draws a categorical distinction to suggest that it creates a spectrum.

[00:32:25] Speaker 01:
But as we interpreted it, and I think as the district court interpreted it, when you're trying to look for what is a binding obligation in this context, it's fair to look to the incorporating language.

[00:32:41] Speaker 01:
If you think about it as a practical matter, that's because that's what normal people would look to.

[00:32:45] Speaker 01:
You looked at the APA and the CFR layout, how to go about incorporating by reference and agencies then follow that procedure.

[00:32:54] Speaker 01:
When they follow that procedure, they've created a binding legal obligation and putting people like my clients or anybody else in the position of having to second guess that decision is

[00:33:06] Speaker 02:
That makes a lot of sense to me, but it also, you know, the opposing counsel's argument also makes a lot of sense that the authority, the

[00:33:19] Speaker 02:
government officials that are incorporating by reference don't really have an incentive to slice this as finely as perhaps they should.

[00:33:27] Speaker 02:
What's your response to that?

[00:33:28] Speaker 02:
I mean, you have to appreciate that in your mission, which I understand to be about the law, it is only a subset of materials

[00:33:38] Speaker 02:
that the development and use of which is within their mission, which is much more generally coming up with useful standards that are many of which may never touch law that have to do with uniformity across industries and jurisdictions and best practices.

[00:34:03] Speaker 02:
So if the posting

[00:34:08] Speaker 02:
ends up needlessly, because of sloppiness on the part of the incorporators by reference, needlessly impinging on their distinct project.

[00:34:20] Speaker 02:
What's your response to how that should be dealt with other than as they propose, which is that CRO go through and distinguish between necessary and binding and other?

[00:34:33] Speaker 01:
And what are the other reasons that your public research doesn't do that is we look to... I understand that.

[00:34:40] Speaker 02:
You look at what the legal authorities themselves have specified, and you don't second guess that.

[00:34:46] Speaker 01:
And also what people, such as the administrator of the National Institute of Standards and Technology, how they approach it, how they think about it.

[00:34:53] Speaker 01:
We think that ordinary people are entitled to rely on how government agencies think about it.

[00:34:58] Speaker 01:
But to get back to your question, so again, we only post

[00:35:02] Speaker 01:
The standards organizations create many, many thousands of standards.

[00:35:08] Speaker 01:
We only post what has been specifically incorporated by reference into law via notice and comment proceeding in the context where Congress is delegated to regulators, lawmaking authority.

[00:35:19] Speaker 01:
So that's the small universe of what we look to.

[00:35:23] Speaker 01:
Usually, I think all the standards in this case have been superseded already.

[00:35:27] Speaker 01:
There are no longer standards at standards.

[00:35:30] Speaker 01:
They're updated versions, and that's really what the organizations focus on.

[00:35:34] Speaker 01:
But we focus on the subset.

[00:35:37] Speaker 01:
The second thing, though, is standards.

[00:35:40] Speaker 02:
Just a little question for information.

[00:35:43] Speaker 02:
Maybe this is really for the other side, but I forgot to ask.

[00:35:46] Speaker 02:
Is it not common to incorporate in what one might call a dynamic way, sort of say the latest version of ASTM such and such?

[00:35:55] Speaker 01:
No, usually you incorporate a very specific version, and that might be updated over time, but often there's a lag between an update and the incorporation process.

[00:36:03] Speaker 01:
Yep.

[00:36:03] Speaker 01:
Got it.

[00:36:05] Speaker 01:
So two more points directly to your question.

[00:36:07] Speaker 01:
One is that agency regulators are actually, regulators are capable of identifying when they only need a specific section.

[00:36:16] Speaker 02:
They're capable of, but they don't always do it.

[00:36:17] Speaker 01:
They don't always do it, but they do do it.

[00:36:19] Speaker 01:
So it's not like they don't know how.

[00:36:20] Speaker 01:
They do know how.

[00:36:22] Speaker 01:
And they're supposed that is what they're supposed to do.

[00:36:24] Speaker 01:
So I'm sorry if they don't always do that.

[00:36:26] Speaker 01:
But it's difficult for an ordinary citizen to know, because I can guess the mind of the regular.

[00:36:31] Speaker 01:
And the second thing is, I think that the we know that standards organizations work very closely with government.

[00:36:39] Speaker 01:
In fact, the notion of surprise, particularly incorporated federal law,

[00:36:44] Speaker 01:
It strikes me as disingenuous at best.

[00:36:46] Speaker 01:
So there's evidence in the record, for example, ASTM is very proud that 93% of its committees have a participation of government employees.

[00:36:56] Speaker 01:
Some agencies are actually mandated to work with the private organizations in the development of these standards.

[00:37:02] Speaker 01:
So I think the idea that there might be a surprise is unlikely and so really not a genuine

[00:37:10] Speaker 01:
A genuine worry.

[00:37:12] Speaker 02:
I have a specific question for you about the market harm factor.

[00:37:16] Speaker 02:
Before the district court, you argued that the plaintiffs bore the burden of proving market harm, and the district court followed your suggestion to announce that when a defendant uses the copyrighted work for noncommercial purpose, the court has placed the burden on the plaintiff to show by fraudulent evidence that some meaningful likelihood of future harm exists.

[00:37:33] Speaker 02:
the quoting Sony, if we were to disagree, I mean, after all, ordinarily, the burden is on defendants to establish an affirmative defense.

[00:37:43] Speaker 02:
And some of the circuits have been explicit that the defendant bears the burden of establishing a lack of market harm.

[00:37:50] Speaker 02:
So if we wanted to avoid a circuit split,

[00:37:56] Speaker 02:
How and could we affirm what the district court did here in view of, you know, by assuming, I mean, we haven't decided this issue, but assuming we were to decide that that was an error of the law, can we still affirm?

[00:38:10] Speaker 01:
Yes.

[00:38:11] Speaker 01:
So for two reasons.

[00:38:12] Speaker 01:
One is I would just point out that two other circuits have said.

[00:38:15] Speaker 02:
I understand.

[00:38:17] Speaker 02:
I'm sorry, two other circuits you say have said that it's the tips burden, although is that.

[00:38:24] Speaker 01:
Just to be clear, what Sony stands for is not an entire shift burden.

[00:38:28] Speaker 01:
What Sony says is when a use is entirely non-commercial, like the one here, the plaintiff should be able to come forward with some evidence, not entirely shifting the burden, but rather they should be able to come forward with some evidence.

[00:38:44] Speaker 01:
And the plaintiffs were not able to do that.

[00:38:45] Speaker 01:
But also, even that aside, even if we disregard Sony, we met our burden.

[00:38:51] Speaker 01:
As best you can prove a negative, we came to court, we submitted evidence of testimony from their own executives saying, we actually can't track any real evidence of harm.

[00:39:01] Speaker 01:
Their own expert simply relied on the self-serving statements of their executives.

[00:39:08] Speaker 01:
And we also showed, just one more point, that we also showed that with respect to ASTM, their sales were up.

[00:39:14] Speaker 01:
With respect to NFPA, their sales have been, they said they were sick of pull and they were,

[00:39:20] Speaker 01:
falling as of 2006, which is long before a public resource was doing anything.

[00:39:25] Speaker 01:
So we brought evidence to the team.

[00:39:28] Speaker 02:
You say they were unable to come up with some evidence.

[00:39:32] Speaker 02:
They point in their reply brief to the drop in NFPA's publication sales.

[00:39:39] Speaker 02:
And they point to 42,000 downloads of reposted works following this court's 2018 opinion, in this case vacating the injunction.

[00:39:49] Speaker 02:
So they're pointing to some pretty specific things that they've calibrated kind of date-wise to the availability of duplicate or similar versions.

[00:40:04] Speaker 02:
How do you respond to that?

[00:40:05] Speaker 02:
I mean, why doesn't that create a tribal issue?

[00:40:08] Speaker 01:
So two reasons.

[00:40:09] Speaker 01:
One is that I think that they provided some evidence, and I think that the district court reviewed it carefully and said, this is just inadequate.

[00:40:18] Speaker 01:
And I think, frankly, she was a little disappointed that this far into the litigation, the plaintiffs, who have unlimited access to their own market data, couldn't provide some more empirical, quantifiable evidence than they did.

[00:40:32] Speaker 01:
So I think that's part of what happened.

[00:40:34] Speaker 01:
The other thing is, I would just point out, this is a fair use case.

[00:40:37] Speaker 01:
It's also a copyright eligibility case, but we'll see if we get to that.

[00:40:41] Speaker 01:
But on fair use, you don't just look at one factor.

[00:40:44] Speaker 01:
You look at all four factors and consider it in light of the purposes of copyright.

[00:40:49] Speaker 01:
And secondly, with respect to market harm in particular, the Supreme Court has told us that when you think about the market harm, you don't just look at numbers, so that's important, but you also have to look at the public interest and weigh it against the need for copyright incentives.

[00:41:04] Speaker 01:
And one of the things we know from the VEC

[00:41:06] Speaker 01:
and we've also heard it from scholars since, is that if there were ever an area where there was less of a need for copyright incentives, it's this one.

[00:41:15] Speaker 01:
These standards are created in terms of the actual work done by volunteers who are just excited about making the best practices for their industry.

[00:41:26] Speaker 01:
Government employees get in the mix.

[00:41:27] Speaker 01:
Lots and lots of people come together.

[00:41:29] Speaker 01:
None of those people are doing the work because they're looking for royalty.

[00:41:32] Speaker 02:
But, you know, I gather, and you don't question, that the institutional infrastructure to bring those people together and to track their work and to publish its product.

[00:41:44] Speaker 02:
I mean, there is an institution here.

[00:41:46] Speaker 02:
You can't say that it isn't expensive, for example, to run a university, even though, you know, the faculty are, I mean, it's not just faculty salaries.

[00:41:55] Speaker 02:
And so when these folks are coming together and aren't being paid, there's still a lot

[00:42:01] Speaker 02:
sources necessitate it?

[00:42:04] Speaker 01:
Well, that's correct.

[00:42:05] Speaker 01:
But there I would point out that one of the things you have to think about in a copyright case, when you're thinking about market harm, is you have to think about copyright harm.

[00:42:13] Speaker 01:
And we know, going all the way back to Feist, that simply investing labor as opposed to creativity does not a copyright make.

[00:42:24] Speaker 01:
Again, I'm in no way discounting the value of the work.

[00:42:28] Speaker 01:
I am simply saying that I think part of the calculus has to be how much is a copyright, when most of the people who are doing the actual creative work here are people who are volunteers.

[00:42:45] Speaker 01:
I have a couple other points to make if I might, but I don't want to answer those questions.

[00:42:51] Speaker 01:
OK, so I just want to say that I do think that the district court

[00:42:58] Speaker 01:
I think, really, she did look at every standard individually, as she was supposed to do.

[00:43:02] Speaker 01:
She thought carefully, as this court said, about the legal status of the works by looking at the incorporating language which we provided to her.

[00:43:11] Speaker 01:
And, excuse me, but she was also prepared to consider what would be necessary to comprehending a legal duty, which this court also allowed for.

[00:43:20] Speaker 01:
And I think after Georgia, at least we know that is a good appropriate for a court to do.

[00:43:26] Speaker 01:
And that's what she did.

[00:43:27] Speaker 01:
And so she looked at all four factors together, rather than applying them in a mechanical way, which is what she was supposed to do.

[00:43:35] Speaker 01:
I think on balance, this is really one of the excellent fair use analysis, as these seem to go, particularly when you've got 200 standards below gap.

[00:43:46] Speaker 01:
And when we looked at some of them, she said not fair use.

[00:43:49] Speaker 01:
She ran the other way.

[00:43:50] Speaker 04:
She went standard by standard.

[00:43:53] Speaker 04:
and distinguished among them in various ways.

[00:43:55] Speaker 04:
And she was very careful to figure out what was or wasn't incorporated.

[00:44:01] Speaker 04:
But at the end of the day, she applied a per se rule that whatever was IBM can be copied.

[00:44:13] Speaker 01:
I think she applied a bright line rule.

[00:44:19] Speaker 04:
At least by your client who is doing this for non-commercial purposes.

[00:44:23] Speaker 01:
Correct.

[00:44:24] Speaker 01:
Exactly.

[00:44:24] Speaker 01:
I mean, there is a whole other context of the other factors.

[00:44:27] Speaker 01:
But I think she did apply the rule of what is a binding regulation and what is not.

[00:44:35] Speaker 04:
And the APA... Yes, but binding understood in its broad sense of what was incorporated into law, as opposed to the narrow sense of what is the precise operative text that establishes the obligation.

[00:44:53] Speaker 01:
Well, actually, I think, Your Honor, that she implied not just what was binding, but also what would be necessary to comprehend what was binding.

[00:45:01] Speaker 01:
But actually, she really can go back to when a regulator in the agency

[00:45:09] Speaker 01:
issues of fine regulation pursuant to the APA, follows all the rules, that whole thing, pursuant to this law-making authority, that's law.

[00:45:17] Speaker 04:
That makes a lot of sense to me.

[00:45:20] Speaker 04:
I guess it's just an open question whether it's consistent with the panel opinion last time around.

[00:45:27] Speaker 01:
Yeah, I think it has to be.

[00:45:29] Speaker 01:
Well, I think it is.

[00:45:30] Speaker 01:
Of course it can.

[00:45:31] Speaker 01:
But also because, remember, the panel opinion said there's a spectrum here.

[00:45:38] Speaker 01:
and allow for some flexibility.

[00:45:41] Speaker 01:
It actually didn't itself assign such a bright line of goal.

[00:45:46] Speaker 01:
Go ahead.

[00:45:47] Speaker 01:
I didn't mean to.

[00:45:48] Speaker 04:
One more.

[00:45:48] Speaker 04:
What do you do with this phenomenon that I described as over-broad incorporation?

[00:45:56] Speaker 04:
The regulator wants to get at the cemeteries and ends up incorporating something about apartment buildings.

[00:46:04] Speaker 04:
Well, I think they just, out of luck,

[00:46:07] Speaker 01:
Well, I think what happens in advance is SDOs normally would work a lot more closely with the regulators to prevent that.

[00:46:14] Speaker 01:
And I think going forward, they're concerned about it.

[00:46:16] Speaker 01:
They can do that even more aggressively.

[00:46:18] Speaker 01:
We know that, again, they communicate with regulators all the time.

[00:46:22] Speaker 01:
So that is something that can be addressed.

[00:46:24] Speaker 01:
But I think most importantly, again, for purposes of this case, is a tiny little nonprofit in Mill Valley possibly have to be in the position of trying to figure that out in advance.

[00:46:36] Speaker 01:
But again, it's trying to actually do something I think we can all agree is really laudable and important and beneficial to the public interest.

[00:46:44] Speaker 01:
And related to that, I just want to have one more note on the reading rooms.

[00:46:47] Speaker 01:
Because I think it's important that the reading rooms provide very limited accessibility.

[00:46:53] Speaker 01:
Public resource does something very, very different.

[00:46:56] Speaker 01:
Incident cell is a repository, not a gatekeeper.

[00:46:59] Speaker 01:
But you don't have to give public resource your home address and sign up for spam.

[00:47:05] Speaker 01:
And you can link.

[00:47:07] Speaker 01:
You can search.

[00:47:08] Speaker 01:
You can cross reference.

[00:47:10] Speaker 01:
And we've got evidence from multiple amigis saying, this would be really valuable.

[00:47:14] Speaker 01:
We would like this.

[00:47:16] Speaker 01:
Sonoma County would like to be able to have an integrated code so that people could really understand all the different codes that affect their conduct.

[00:47:25] Speaker 01:
Copyright's standing in the way of that right now.

[00:47:28] Speaker 01:
That, I think, is not good for the public.

[00:47:29] Speaker 02:
You haven't mentioned your government.

[00:47:31] Speaker 02:
EDEX talked when you opened your brief with it.

[00:47:36] Speaker 02:
If you were correct that it applied, wouldn't that remove copyright protection more categorically than the district court judgment did here?

[00:47:44] Speaker 01:
Well, our argument is that, and this was kept open in the first opinion, is argument is that if the court decides that we have event fair use with respect to any standard at issue before the court, then it would be wise at this point to reach the copyrightability question

[00:48:04] Speaker 01:
and basically save other people from having to roll the dice on the fair use effects, as Justice Roberts put it in the first case, I'm sorry, in Georgia.

[00:48:14] Speaker 01:
And there, it also feeds back into the fair use argument, because one of the themes of that case, of that opinion, is the animating principle behind all of this should be that no one owns the law.

[00:48:27] Speaker 01:
And that was the animating principle behind Georgia.

[00:48:29] Speaker 01:
Now, I will admit that applying Georgia here requires

[00:48:34] Speaker 01:
but not much of one.

[00:48:37] Speaker 01:
Again, because as I said, when a regulator issue uses its lawful authority to issue a binding regulation, it's creating law in the same way.

[00:48:47] Speaker 01:
And when it incorporates

[00:48:49] Speaker 01:
other texts into it, incorporating these, making part of the law.

[00:48:52] Speaker 01:
So you sort of see that.

[00:48:53] Speaker 02:
I mean, that's a little bit how I understand it.

[00:48:55] Speaker 02:
I'm on court in Beek.

[00:48:57] Speaker 02:
I think they made a fair use holding, but they were inverting to the government edicts kind of ethos in so doing.

[00:49:04] Speaker 02:
Correct.

[00:49:05] Speaker 02:
And so to district courts.

[00:49:07] Speaker 02:
So you don't think that the government edict doctrine would yield a broader ruling than what the district court made under fair use?

[00:49:17] Speaker 01:
So I think what

[00:49:18] Speaker 01:
The government's instruction does is it's an alternative path of affirming the judgment below.

[00:49:22] Speaker 01:
And that's really the question, is the court is supposed to look to the judgment, not just the reason.

[00:49:29] Speaker 01:
This is an alternative reason to affirm that judgment.

[00:49:34] Speaker 04:
If we rest on copyrightability, the incorporation would vitiate the copyright as to everybody.

[00:49:42] Speaker 04:
You'd have a commercial competitor coming in, selling stuff.

[00:49:47] Speaker 01:
Well, then I think you have questions about how that commercial competitor was operating, what they were doing with it.

[00:49:52] Speaker 01:
I also don't think that's very likely.

[00:49:54] Speaker 04:
If the incorporated material loses its copyright protection upon incorporation, none of that matter.

[00:50:03] Speaker 04:
I mean, one major part of the analysis here is the non-commercial nature of your client's particular use.

[00:50:14] Speaker 01:
but you can't account for that under copyright ability right so um the um what i think would happen is not well i just don't think that would happen because standards organizations don't operate that way they compete actually no but i mean but your answer to judge pillard's question has to be yes and and if it is i mean i do i i think that judge cassis is entirely right that it does yield a broader uh

[00:50:41] Speaker 02:
it would remove tabular protection more broadly.

[00:50:44] Speaker 02:
And then I wonder, since you didn't cross appeal, if that's even before us.

[00:50:49] Speaker 02:
Because it isn't an alternative route to defending the judgment.

[00:50:52] Speaker 02:
I think it would yield a much broader judgment.

[00:50:56] Speaker 01:
I think you'd still end up in the same place if you start to build 182 standards that are absolute as a matter of law.

[00:51:02] Speaker 01:
Because that's only what's at issue here.

[00:51:04] Speaker 01:
It's just these standards.

[00:51:05] Speaker 02:
I know, but it's the nature of these standards.

[00:51:06] Speaker 02:
I gather under the district court's holding that they still have copyright protection with respect to other non-law, as-law uses.

[00:51:21] Speaker 02:
Well, I think under the fair use of the approach, that would be that would be correct.

[00:51:26] Speaker 02:
That's what I'm saying.

[00:51:27] Speaker 02:
So it's a very different judgment if it's under government edicts, because as just Cassius was just saying, I would initiate the copy of all together.

[00:51:37] Speaker 01:
So another way of thinking about this is that what happens when work is incorporated into law?

[00:51:43] Speaker 01:
is that essentially you have now a branch.

[00:51:45] Speaker 02:
So you have a different work.

[00:51:46] Speaker 02:
You have the private version of the work and you have the government edict version of the work.

[00:51:50] Speaker 02:
So that's your, you would basically say, no, this actually the result under government needs would track the result under fair use.

[00:51:55] Speaker 02:
It would just be a different analysis to get a more direct route to get there.

[00:51:59] Speaker 02:
Correct.

[00:51:59] Speaker 01:
All right.

[00:52:00] Speaker 01:
Exactly.

[00:52:02] Speaker 01:
All right.

[00:52:02] Speaker 01:
No more questions.

[00:52:03] Speaker 01:
Thank you.

[00:52:04] Speaker 01:
Thank you.

[00:52:05] Speaker 01:
Mr. Claus, why don't you take two minutes?

[00:52:16] Speaker 05:
Thank you.

[00:52:18] Speaker 05:
Just a few very brief points.

[00:52:20] Speaker 05:
One is the suggestion was made that there's not reason to worry about commercial competitors in this space.

[00:52:28] Speaker 05:
As we pointed out in our papers, my client, the FPA, is already engaged in litigation in California against a commercial competitor that is doing what a book resource is doing and is trying to claim the benefit of

[00:52:44] Speaker 05:
various defense and making the copyrightability arguments.

[00:52:47] Speaker 05:
So they are out there.

[00:52:49] Speaker 05:
There was a suggestion that was made by Public Resources Council that there is closeness between the SDOs and the administrative agencies.

[00:53:02] Speaker 05:
I think there was a suggestion that ASGM people are in Washington boasting about

[00:53:08] Speaker 05:
their relationship with the government agencies, and so there's nothing to worry about their ability to monitor what's going on and what's being IVR'd.

[00:53:16] Speaker 05:
There's no evidence of that.

[00:53:19] Speaker 05:
The actual record evidence in the case is from Mr. Thomas's declaration, which is at page 699 of the Joint Index, which is that ASTM does not lobby for its standards to be IVR'd.

[00:53:35] Speaker 05:
There was also a lot of discussion about market harm and the claim that there was nothing, that we essentially had nothing, we had a substantial amount of evidence that you had pointed out, Judge Hillard.

[00:53:51] Speaker 05:
The other thing that I would say, two points, that the standard for harm is whether, not just what public resources doing would cause harm, but whether everybody was doing this in a widespread

[00:54:05] Speaker 05:
unrestricted way.

[00:54:08] Speaker 05:
And the last point I'll make is that the standards were down from public resource, not just during the time period the injunction was in effect, but they actually took them down in November of 2015.

[00:54:24] Speaker 05:
And since the time that the injunction was vacated by this court,

[00:54:31] Speaker 05:
Public resources posted just one standard, the 2017 version of the National Electrical Code.

[00:54:38] Speaker 05:
And so we don't actually have a real-time example of what would happen if they put the 2020 or 23 National Electrical Codes online as well.

[00:54:53] Speaker 05:
We don't know.

[00:54:54] Speaker 05:
And so in some respects, the reason that the evidence of harm and calculating specific harm has been difficult is because of choice of public resources.

[00:55:06] Speaker 02:
But they're reflecting choices of legislators.

[00:55:08] Speaker 02:
And one of the points that they make is that typically legislators are a couple steps behind your clients in that they do incorporate by reference particular date issued

[00:55:21] Speaker 02:
standards, and as your clients are constantly working to improve the substitutability of what's incorporated by reference, you know, it quickly is sort of diminished, given that you're on the edge of progress and the legislators are always a couple steps behind.

[00:55:43] Speaker 05:
They may be.

[00:55:45] Speaker 05:
The ability I would say is that with respect to what has actually been posted

[00:55:52] Speaker 05:
hours and showing market harm, I think that one needs to consider that there are huge numbers of standards that our clients develop that have been IDR'd from the time the injunction was listed, but they have not been put back up.

[00:56:11] Speaker 05:
So what we've got is a record that is based on some of the... A little bit of a pause.

[00:56:17] Speaker 05:
Yes.

[00:56:17] Speaker 02:
Let me let me ask you about that.

[00:56:18] Speaker 02:
You mentioned that.

[00:56:20] Speaker 02:
Do you have a sense of the proportion of the work of these three STOs that is and is not IBRD under the district court's definition where if a standard in full is referenced, even if

[00:56:37] Speaker 02:
You would say that some smaller portion of it should be fair use.

[00:56:41] Speaker 02:
But in terms of the unit size that the lawmakers reference, what proportion of your clients works in total is IVR'd?

[00:56:55] Speaker 05:
I do not have that information at the top of mind for my client.

[00:57:01] Speaker 05:
with Mr. Fee May for ASPM.

[00:57:05] Speaker 05:
ASHRAE has the standard number of 90.1, that is a much smaller number of work.

[00:57:14] Speaker 05:
What I would say, Judge Piller, is that the works that are at issue here account for an outsized huge portion

[00:57:29] Speaker 05:
That publication revenue is responsible for most of the activities.

[00:57:37] Speaker 05:
And I, I see this to be a judge colored.

[00:57:40] Speaker 05:
You may have a more specific answer on it.

[00:57:51] Speaker 03:
Yeah.

[00:57:51] Speaker 03:
Your honor, I do know the answer to your question with respect to ask.

[00:57:54] Speaker ?:
Yeah.

[00:57:55] Speaker 03:
Approximately 10% of ASTM standards are incorporated by reference into federal regulations.

[00:58:00] Speaker 03:
And that's at J-699.

[00:58:01] Speaker 03:
J-699?

[00:58:02] Speaker 02:
Yes, Your Honor.

[00:58:05] Speaker 02:
Thank you.

[00:58:06] Speaker 03:
Did you have anything else for Mr. Clouse?

[00:58:12] Speaker 02:
Pardon?

[00:58:13] Speaker 03:
Is there anything else for Mr. Clouse?

[00:58:19] Speaker 02:
All right.

[00:58:19] Speaker 01:
Any more questions?

[00:58:20] Speaker 01:
No.

[00:58:21] Speaker 03:
Thank you.

[00:58:21] Speaker 03:
Thank you, Your Honor.