AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 118

MOTION for Summary Judgment and Permanent Injunction by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC. (Attachments: #1 Memorandum in Support, #2 Statement of Facts, #3 Declaration of Dennis Berry and Exhibits, #4 Declaration of Steven Cramer and Exhibits, #5 Declaration of James Golinveaux, #6 Declaration of Randy Jennings and Exhibit, #7 Declaration of Thomas O'Brien, Jr. and Exhibits, #8 Declaration of James Pauley and Exhibits, #9 Declaration of Kevin Reinertson, #10 Declaration of Stephanie Reiniche and Exhibits, #11 Declaration of James Thomas, #12 Declaration of Jordana Rubel and Exhibits - Part 1, #13 Declaration of Jordana Rubel and Exhibits - Part 2, #14 Declaration of Jordana Rubel and Exhibits - Part 3, #15 Declaration of Jordana Rubel and Exhibits - Part 4, #16 Declaration of Jordana Rubel and Exhibits - Part 5, #17 Text of Proposed Order and Injunction)(Fee, J.). Added MOTION for Permanent Injunction on 11/20/2015 (znmw).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING
AND MATERIALS d/b/a/ ASTM
INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR
CONDITIONING ENGINEERS,

Case No. 1:13-cv-01215-TSC

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND FOR A PERMANENT
INJUNCTION
Plaintiffs/Counter-Defendants American Society for Testing and Materials d/b/a ASTM
International (“ASTM”), National Fire Protection Association, Inc. (“NFPA”), and American
Society of Heating, Refrigerating, and Air Conditioning Engineers (“ASHRAE”) (collectively,
“Plaintiffs”) respectfully move for summary judgment that Defendant Public.Resource.Org,
Inc.’s copying of Plaintiffs’ standards and displaying and distribution of its copies of Plaintiffs’
standards that include Plaintiffs’ trademarks constitutes copyright and trademark infringement.
Plaintiffs seek summary judgment only with respect to their claims concerning the following
works: ASTM D86-07, ASTM D975-07, ASTM D396-98, ASTM D1217-93(98), the 2011 and

2014 versions of NFPA’s National Electrical Code, and the 2004, 2007 and 2010 versions of
ASHRAE’s Standard 90.1.1
As detailed in the attached Memorandum of Law, there are no disputed issues of fact that
prevent the Court from entering summary judgment. Plaintiffs own valid copyrights in the
works at issue and it is undisputed that Defendant copied the works and displayed and distributed
its copies on the internet where the public can print, download and copy them without restriction.
Defendant also used Plaintiffs’ trademarks on versions of the works that Defendant altered and
into which Defendant introduced errors. The defenses Defendant asserted are not supported by
the undisputed facts or by the relevant case law. Thus, the Court should enter summary
judgment in favor of Plaintiffs.
Additionally, Plaintiffs move for entry of a permanent injunction to address the
irreparable harm Plaintiffs have suffered based on Defendant’s infringement and will continue to
suffer absent an injunction.
In support of their Motion, Plaintiffs submit the attached Memorandum of Law along
with a Statement of Undisputed Material Facts and the supporting declarations. Plaintiffs also
attach a Proposed Order and Permanent Injunction.

1

Plaintiffs believe that, with the benefit of the Court’s guidance on this Motion, the parties will
be able to resolve any remaining dispute with respect to the other works in suit.
2

Dated: November 19, 2015

Respectfully submitted,
/s/ J. Kevin Fee
Michael F. Clayton (D.C. Bar: 335307)
J. Kevin Fee (D.C. Bar: 494016)
Jordana S. Rubel (D.C. Bar: 988423)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel For American Society For Testing And Materials
d/b/a/ ASTM International
/s/ Kelly Klaus
Anjan Choudhury (D.C. Bar: 497271)
Munger, Tolles & Olson LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071
Tel: [phone]
Email: [e-mail]
Kelly M. Klaus
Jonathan H. Blavin
Nathan M. Rehn
Munger, Tolles & Olson LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel for National Fire Protection Association, Inc.
/s/ Joseph R. Wetzel
Jeffrey S. Bucholtz (D.C. Bar: 452385)
King & Spalding LLP
1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
3

Tel: [phone]
Email: [e-mail]
Kenneth L. Steinthal
Joseph R. Wetzel
Blake Cunningham
King & Spalding LLP
101 Second Street, Ste. 2300
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel for American Society of Heating, Refrigerating,
and Air Conditioning Engineers

4