Ruling against PRO would radically shift the understanding of fair use..

Catherine R. Gellis, “Brief of Amici Curiae Members of Congress in Support of Defendant-Appellant and For Reversal,” United States Court of Appeals for the District of Columbia Circuit, 09-25-2017, https://law.resource.org/pub/us/cfr/regulations.gov.astm.appeal/1694498.pdf

If the Court decides to recognize a copyright interest for SDOs in codes and standards that persists even after such codes and standards are incorporated by reference in laws or regulations, and if the Court is does not believe that due process concerns outweigh the SDOs’ private, pecuniary interests, the Court should hold that Public Resource’s activities constitute fair use. “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, ‘[t]o promote the Progress of Science and useful Arts . . . ’.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const. art. I, § 8, cl. 8.) Fair use is “one of the most important and wellestablished limitations on the exclusive right of copyright owners.” H.R. Rep. No. 94-1476, at 65 (1976). Originally judicial doctrine, Congress provided statutory guidance for finding fair use according to the following factors:

(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 (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107.

Although the factors weigh heavily in judicial decisionmaking, the list is not exhaustive, and no one factor is decisive. See Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 145 (2d Cir. 1998); see also H.R. Rep. No . 94-1476, at 65. Rather, each factor is to be considered and weighed together, “in light of the purposes of copyright.” Campbell, 510 U.S. at 578. In this case, all four factors weigh strongly in favor of Public Resource and support a finding that its activities are fair use.