La corte di appello del distretto di Columbia , 12.09.2023, No. 22-7063, AMERICAN SOCIETY FOR TESTING AND MATERIALS, ET AL v. PUBLIC.RESOURCE.ORG, INC., dà qualche interessante insegnamento sul tema (qui la pagina della corte mentre qui il link diretto al pdf).
Tre organizzazioni, che predispongno standard per certi settori di impresa, fanno causa a public.resource.org, per aver pubblicato centinaia di standards: il che violerebbe il copyright su di essi gravante.
Di questi la maggior parte era anche stata inserita (incorporate) nella legislazione usa.
La corte di appello dice che tale pubblicaizone da parte di https://public.resource.org/ costituisce fair use (per la parte incorporated).
I primi tre fattori del 17 us code § 107 sono a favore del convenuto.
L’ultimo (effetti economici sul mercato dell’opera protetta) è invece incerto: ma non basta a controbilanciare gli altri tre.
<<n 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 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)>>.
Sintesi sul quarto:
<<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.>>
Sintesi comlpèessiva: <<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>>