American Society for Testing and Materials v. Public.resource.org, Inc.

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.

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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.

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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 non-
commercial 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.

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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.

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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

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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

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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

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(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

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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.

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(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

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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

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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

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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

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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.

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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

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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).

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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.

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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

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educational purposes. The plaintiffs also cite cases where a
defendant ceased infringement after being “caught red-
handed” 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.

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