On January 28, the News/Media Alliance, together with the Association of American Publishers, filed an amicus brief in the United States Court of Appeals for the Third Circuit in support of the plaintiffs in American Society for Testing & Materials v. UpCodes, Inc. The case concerns UpCodes’ copying of copyrighted technical standards incorporated by reference into government codes. The district court held that UpCodes had made a fair use, although its offerings served as an effective substitute for plaintiff’s works. The amicus brief did not take a position on the ultimate fair use question, noting the specialized facts regarding code incorporated into law, but more broadly urged the appellate court to correct errors in the lower court’s application of the first and fourth fair use factors. Drawing on Supreme Court precedent, the brief urged the court to clarify that the fourth factor, the effect of the use upon the potential market of the copyrighted work, is centered around whether the copying usurps demand for the copyrighted work, and does not require separately balancing the public benefits of the use. It explained that any public benefits discussion must also consider the public benefits of copyright protection, and asked the court to explain that there is no untethered public interest in providing unauthorized access to copyrighted works. The brief also noted that the court erred in finding UpCodes use noncommercial, under the first factor, noting that “UpCodes is a for-profit corporation that receives indirect financial benefits from offering free copies” of the works in question. Read the full brief here.

Members of the News/Media Alliance staff have contributed to this post.