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, INC.
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant.

PUBLIC.RESOURCE.ORG, INC.,
Counterclaimant,
v.
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, INC.
Counterdefendants.

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

DECLARATION OF STEPHANIE REINICHE
I, Stephanie Reiniche, declare as follows:
1.

I am currently employed by the American Society of Heating, Refrigerating, and

Air Conditioning Engineers (“ASHRAE”) as its Senior Manager of Standards. I have been
employed by ASHRAE since 2003. Based on the information known to me as a result of the
duties and responsibilities of my position, as well as information I have gathered from relevant
ASHRAE personnel and staff, I have personal knowledge of the facts set forth herein and could
and would testify competently thereto if called as a witness.
2.

ASHRAE is a non-profit organization that operates with the mission of advancing

the arts and sciences of heating, ventilating, air conditioning and refrigerating to serve humanity
and promote a sustainable world. ASHRAE has leveraged its expertise in HVAC systems, as well
as the expertise of its volunteer members, to develop and maintain over 100 consensus based
standards. These standards, which are developed based needs in the industry, apply to a variety of
fields within the building industry, such as energy efficiency, indoor air quality, refrigeration, and
sustainability.
3.

The specific ASHRAE standard that I understand to be at issue here, Standard 90.1,

pertains to energy efficiency in commercial and high-rise residential buildings. The standard has a
variety of uses, including use by builders as a best-practices guide to achieve greater energy
efficiency in building projects (even when not required by law) and use as a guide for how to
achieve LEED certification for new buildings (a private rating system for energy efficiency in new
buildings administered by the U.S. Green Building Council). Though Standard 90.1 is sometimes
incorporated into laws and government regulations, such incorporation is not the primary
motivation for ASHRAE’s continued maintenance and updating of Standard 90.1. In fact,
ASHRAE’s drafting and maintenance of Standard 90.1 dates back to the 1970s and significantly
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DECLARATION OF STEPHANIE REINICHE IN SUPPORT
OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

predates Standard 90.1’s widespread incorporation into federal laws or regulations—e.g., the most
significant law referencing Standard 90.1, the Energy Policy Act, was not passed until 1992.
Additionally, ASHRAE maintains numerous standards that are not incorporated by reference into
any law or regulation.
4.

As part of my job responsibilities, I am one of the ASHRAE employees who

oversees ASHRAE’s standards-development process, including as that process relates to Standard
90.1. ASHRAE has a prescribed development process that is used to develop new standards and
maintain existing standards. The process is designed to ensure compliance with American
National Standards Institute (“ANSI”) requirements and broad participation from a variety of
materially interested parties.
5.

Many ASHRAE standards, including 90.1, have existed for years but are considered

to be in “continuous maintenance,” which means that the standard is updated continuously via
addenda with supplements being published every 18 months and all addenda being incorporated
for a new version every three years using the same development and editing process.
6.

ASHRAE’s Standard 90.1 is developed with input from a project committee, which

consists of a group of experts in the field that include but not limited to utilities representatives,
engineers, manufacturers, trade organizations and architects that volunteer their time to work on
Standard 90.1. The project committee members are selected by the Chair of the project committee
and approved by ASHRAE’s Standards Committee and subcommittee based on expertise in the
field and in order to ensure a balanced representation of different interest groups.
7.

As with ASHRAE’s other standards, the 90.1 project committee is subject to

procedural oversight from ASHRAE’s Board of Directors, Standards Committee, and Technology
Council. Members of the public may also participate in creating the standard through submitting
public comments that will be considered by the project committee.
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DECLARATION OF STEPHANIE REINICHE IN SUPPORT
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8.

Substantive drafting and changes to Standard 90.1 happen through a consensus of

the project committee and involve input form the many participants in the development process.
The standard is not simply the work of individual members. For each proposed change to a
standard or any new language that will be added to a standard, the project committee must vote to
approve the change. Voting on changes to the standard may occur at an in-person meeting
following discussion on the issue, by letter ballot, or a combination of the two. For a change to be
approved, a majority of project committee members must vote in the affirmative and a two-thirds
majority of those actually casting votes on that particular change must vote in the affirmative.
Whether at an in-person meeting, by letter ballot, or a combination thereof, committee members
who submit negative votes are given the opportunity to provide written comments explaining their
decision. If the vote passes with one or more negative votes, the results are held in abeyance until
the comments are transmitted to all eligible voters and they are given an opportunity to change
their votes. Similarly, the committee also votes on how to respond to public comments on all
revisions and new drafts of Standard 90.1. In the event that responses don’t resolve the
commenters on public review drafts the committee members are given an opportunity again to
change their vote prior to the changes being published or to decide to revise the change and
conduct another public review.
9.

For each ASHRAE standard, ASHRAE assigns one or more staff liaisons to work

with that standard’s project committee. These staff liaisons report to me. For Standard 90.1, the
liaison is Steve Ferguson. Mr. Ferguson, who has an engineering degree and is knowledgeable
concerning HVAC systems, has worked as the staff liaison for Standard 90.1 since February 2005.
10.

The job responsibilities of an ASHRAE staff liaison include facilitating meetings of

the project committee, including attending meetings, keeping minutes, processing voting ballots,
and often recording proposed changes to the Standard that are under discussion. The staff liaisons
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DECLARATION OF STEPHANIE REINICHE IN SUPPORT
OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

also work together with the project committees to craft the appropriate wording of the standards by
reviewing all proposed changes and drafts of the standards to make sure they are written clearly, in
the proper format, comply with ANSI and ASHRAE requirements, and are both technically and
editorially consistent. For instance, when a change is made, the liaison might determine that
language in another part of the standard also needs to be changed to make the standard internally
consistent, at which point the liaison would submit an addenda back to the project committee for
further consideration. For each standard, the staff liaison also provides the project committee with
the comments and proposals submitted by the public and any materially affected parties and
subsequently reviews the project committee’s formal responses to public comments and proposals
to make sure they are clearly worded and in a proper format.
11.

Every three years, when ASHRAE performs a roll-up of all proposed changes and

edits to a standard under continuous maintenance, like Standard 90.1, the staff liaison and other
ASHRAE staff will work with certain members of the project committee to perform a final review
and edit of the new version of each standard to make sure that all proposed changes have been
properly incorporated. Additionally, members of ASHRAE’s staff are responsible for reviewing
and updating certain language in ASHRAE standards that does not relate to the technical
requirements of the standard, including the initial policy statement and notice of instructions for
submitting a proposed change.
12.

In my experience, members of the project committee, other ASHRAE members,

and members of the public who contribute to ASHRAE standards fully understand and intend that
ASHRAE will own the copyrights in the completed ASHRAE standards.
13.

Anyone who contributes to Standard 90.1 as a project committee member, or by

submitting a change proposal or public comment, is required by ASHRAE to execute an
Application for Membership on an ASHRAE Committee or a Form for Commenting on a Public
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DECLARATION OF STEPHANIE REINICHE IN SUPPORT
OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Review Draft ASHRAE Standard, both of which contain an acknowledgment stating “I understand
that I acquire no rights in publication of such documents in which my contributions or other similar
analogous form are used.” A true and correct copy of a sample Form for Commenting on a Public
Review Draft ASHRAE Standard is attached hereto as Exhibit 1, and a true and correct copy of a
sample Application for Membership on an ASHRAE Committee is attached as Exhibit 2. All
forms signed by commenters or committee membership on the 2004, 2007, and 2010 versions of
Standard 90.1 would have contained substantially the same language as these forms.
14.

As a general matter, ASHRAE does not permit alterations to the forms that must be

signed by public commenters or committee members, and I am not aware of any contribution made
to ASHRAE Standards 90.1-2004, 90.1-2007, or 90.1-2010, for which the contributor altered a
standard ASHRAE form or refused to execute the form. To the extent any comment has been
submitted and considered by the project committee without a properly executed form, it would be
an exception to the general practices and requirements imposed by ASHRAE.
15.

ASHRAE has valid copyright registrations for the versions of Standard 90.1 at issue

in this case (i.e., the 2004, 2007, and 2010 versions). True and correct copies of those registrations
are attached hereto as Exhibits 3, 4, and 5. Additionally, on each version of ASHRAE 90.1, it is
ASHRAE’s practice to place a copyright notice prominently on the standard to alert members of
the public that ASHRAE has copyrighted the standard. Members of the project committee are also
aware of this practice and are thus aware that ASHRAE copyrights its standards, including each
successive version of Standard 90.1. ASHRAE is not aware of any member of the 90.1 project
committee or member of the public who commented on 90.1 who has contested ASHRAE’s
copyright rights in the standard or claimed an ownership interest in any part of ASHRAE 90.1.
16.

In addition to its copyrights, ASHRAE also holds several registered trademarks,

including U.S. Registration Nos. 1,503,000 and 4,262,297, which protect the following logos:
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DECLARATION OF STEPHANIE REINICHE IN SUPPORT
OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

True and correct copies of ASHRAE’s registrations for these two marks are attached as Exhibits 6
and 7. Additionally, for mark number 1,503,000 , which has been used in commerce since 1959,
ASHRAE has filed a Section 15 declaration in support of the incontestability of its registration.
ASHRAE’s use of these marks in connection with its standards and other goods and services has
been substantially continuous, and these marks, which are routinely affixed to ASHRAE’s
standards, have become associated with ASHRAE and its standards. ASHRAE considers these
marks to be valuable assets and has developed substantial goodwill associated with these marks
over the years.
17.

Each time new versions of ASHRAE standards are developed, ASHRAE offers

those standards for sale. Sales of the standards are an important piece of ASHRAE’s yearly
revenues. The primary purchasers and users of ASHRAE’s standards include builders, architects,
and heating, air-conditioning, and refrigeration manufacturers who use the standards in their
businesses.
18.

ASHRAE’s pricing and access policies are generally tailored to afford broad access

to the standards. Prices typically range from $25 to $120, with no standard costing more than
$200. The standards are priced on the basis of ASHRAE’s costs and ASHRAE does not charge
more for standards that have been incorporated into laws or regulations. ASHRAE also offers
discounts for libraries, educational uses, government entities, and individuals or entities who
purchase the standards on a subscription basis.
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DECLARATION OF STEPHANIE REINICHE IN SUPPORT
OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

EXHIBIT 1

EXHIBIT

_7159_
FORM FOR SUBMITTAL OF PROPOSED CHANGE TO AN
ASHRAE STANDARD UNDER CONTINUOUS MAINTENANCE
NOTE: Use a separate form for each comment. Submittals (Microsoft Word preferred) may be attached to e-mail (preferred).

submitted on a CD. or submitted in paper by mail or fax to ASHRAE. Manager of Standards. 1791 Tullie Circle, NE,
Atlanta, GA 30329-2305. E-mail: [e-mail]. Fax: [phone].

Submitter:
Affiliation:
Address:

State:

City:

Telephone:

Zip:

Country:

E-Mail:

Fax:

I hereby grant the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE) the nonexclusive royalty rights, including non-exclusive rights in copyright, in my proposals. I understand that I acquire no rights in
publication of the standard in which my proposals in this or other analogous form is used. I hereby attest that I have the
authority and am empowered to grant this copyright release.

Submitter's signature:

Date:

All electronic submittals must have the following statement completed:
I (insert name)
through this electronic signature, hereby grant
the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) the non-exclusive royalty
rights, including non-exclusive rights in copyright, in my proposals. I understand that I acquire no rights in publication of
the standard in which my proposals in this or other analogous form is used. I hereby attest that I have the authority and am
empowered to grant this copyright release.

Number and year of standard:
Page number and clause (section), subclause, or paragraph number:
I propose to:
(check one)

[
[

] Change to read as follows
] Add new text as follows

[
I

] Delete and substitute as follows
Delete without substitution
I

Use underscores to show material to be added (added) and strike through material to be deleted (del.ete1). Use additional pages if needed.

Proposed change:
Reason and substanti:ttion:
Will the proposed change increase the cost of engineering or construction? If yes, provide a brief explanation as
to why the increase is justified.

] Check if additional pages are attached. Number of additional pages:
] Check if attacluuents or referenced materials cited in this proposal accompany this proposed change. Please verify that
all attaclunents and references are relevant, current, and clearly- labeled to avoid processing and review delays. Please list
your attachments here:
[
[

Rev. 3-9-2007

1

ASH RAE0001605

EXHIBIT 2

EXHIBIT

ASHRAE Standard/Guideline Project Committee
Application for Individual Membership
I. Name of Applicant

Today's Date

Print or Type Name (Last, First, Middle Initial) below

ASHILAE Member/Non Member ID (ASHRAE Membership is

PS,')

.Conunittee Position for Which You Are Appl)ing: (see below)

not a requirement unless applying for Chair or Vice-Chair position)

*NIA-Project Committee Voting Member; SVNI-Project Subcommittee Voting Member, NVM-Non-Voting Member: CON-Consultant, or Primary/Alternate Organizational Rep

2.

I am applying for Individual Membership on the following ASHRAE Project Committee: (Please use a separate form for each committee.)

Designation and Safety Classification of Refrigerants

SSPC 34
SSPC 62.1

Ventilation for Acceptable Indoor Air Quality

SSPC 62.2

Ventilation and Acceptable Indoor Air Quality in Low-Rise Residential Buildings
Energy Standard for Builtlings Except Low-Rise Residential Buildings

SSPC 90.1
SSPC 161

Enerv Efficient Design of Low-Rise Residential Buildings
Air Quality Within Commercial :aircraft

SPC 189.1

Standard for the Design of High-Performance, Green Buildings Except Low-Rise Residential Buildings

SSPC 90.2

If you are applying for a committee other than those listed above, please enter con tttt ittee information below and use the Default Interest Cnteenries listed in
Section 4:

3. Bio Report (in the "Member Central" section of the ASHRAE website) and the Potential Sources of Bias/Conflict of Interest form:
Bio information current within a year from today. Date Bio information on ASHRAE's website was completed/updated:
I have completed and signed the Potential Sources of Bias/Conflict of Interest form. Date form was completed/updated:

4. If elected as a member of the Project Committee, I would qualify in the following Interest Category (check one):
(Descriptions of Interest Categories are on Page 2)

SSPC 34

DEFAULT

0

o

Producer
User

O

General Interest

El

Supplier (category
may not be
available-check
with PC Chair)

]

SSPC 62.1

Consulting Engineer,'
Contractor/Architect
General Interest

0
0

Producer/Vendor

0 Manufacturer

0 user

Design,Builders
General Interest
Owner/Operator/
Occupant

SSPC 90.1

SSPC 62.2

0
0

SSPC 90.2

0

Design/Builders

O

General Interest

O Designer
0 General Interest

0 General Interest

0

Industry

0 Manufacturer

Compl iance

Compliance

O

Owner/Operator;
Occupant

O

Industry

O

Producer

0

User

0

User

0

Utility

1=I

O

0

SSPC 161
Flight Personnel

E General Interest

0 Manufacturer

0
0

Utility

Owner/Operator
Passenger

SPC 189.1
Compliance
Designer
General Interest

O Industry
El User

D Utility

PLEASE DO NOTAD!) INTEREST CATEGORIES-

5. By signing below, I certify that:
If elected as a member of any ASHRAE Standard or Guideline Project Committee or appointed as a consultant to such committee, I
hereby grant the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) the non-exclusive, royaltyfree rights, including nonexclusive, royalty rights in copyright, to aqv contributions I make to documents prepared by or for such

committee for ASHRAE publication and I understand that I acquire no rights in publication of such documents in which my
contributions or other similar analogous form are used. I hereby attest that I have the authority and I am empowered to grant this
copyright release.

SIGNATURE
Note: This form is not valid unless signed by Applicant
Submit Completed Fonn to: Standards.SectionWashrae.org; Tel. [phone]; Fax [phone]
Last Revision: 10/09 Page I
Note: If applying for Organizational membership, please complete the Application for Project Committee Organizational Representative Membership with your information, and the
Application for PC Organizational Membership with information on the organization you will represent.

ASHRAE0001616

DEFINITIONS
Interest: the perspective of a member of a project committee, as judged by his or her present and past sources of income, fees, or reimbursements of
related expenses, in the context of the purpose and scope of the project committee. The perspective may also be judged by the recorded views of the
individual, or of any organization he/she is employed by or of which helshe is a member.

Interest categories: the principal (top) tier of interest classifications. For some standards projects, it may be appropriate to designate subcategories
of one or more interest category.

INTEREST CATEGORIES
Compliance: Persons primarily interested in compliance with the standard. A person in this category would make their living from developing
regulations, enforcing the requirements of the standard, developing programs tied to the standard, or advocating the standard. Example members of
this category would be building code officials, building code organizations, state energy offices, and other local, state, and federal officials.
Designer: A designer of buildings, building systems or subsystems (including envelope, HVAC, lighting). A person in this category would make
their living from designing buildings and systems that are impacted by the standard. Example members of this category would be architects, design
firms, consulting engineers, lighting designers and employees of energy consulting firms.
Designer/Builder: Those who provide building design and construction services, including consulting engineers, HVAC and general contractors,
design /build contractors, or representatives of associations of these types of professionals.
Flight Personnel: Individuals who are employed by the airlines as part of the aircraft crew (pilots and flight attendants) or individuals employed by
the airlines to maintain the aircraft, and the organizations that represent these individuals.
General Interest: Building regulatory officials or their representatives, researchers, educators, IAQ specialists, and others with expertise in the fields
of ventilation and indoor air quality, as well as medical doctors, public health experts, industrial hygienists or representatives of associations of these
types of professionals. In addition, this category is intended for those who have interests other than those described in the other categories. Example
members of this category would be employees of research institutions, universities, nationally recognized testing laboratories, employees of energy
advocacy groups, and others with a general interest in energy utilization in buildings.

Industry: Construction fmns or manufacturers, producers, or distributors of products or systems that would be installed in buildings. A person in
this category would make their living from constructing buildings or producing or distributing products impacted by this standard or representing
groups of manufacturers impacted by this standard. Example members of this category would be contractors, manufacturing firms, assembly firms,
distributors and wholesalers, and industry trade associations that represent these groups.

Manufacturer: Employees or representatives of manufacturers, distributors or trade associations of HVAC equipment, HVAC controls, and
equipment designed to enhance indoor air quality (e.g. air cleaners). Also, individuals associated with products used in the construction of buildings
(e.g., finishes, wall and floor coverings, wood products) and used within buildings by occupants (e.g., furniture and furnishings, tobacco products,
appliances, office equipment).

Owner/Operator/Occupant: Employees or representatives of building owners/managers, building engineers, facility managers, and consultants
who specialize in working in existing buildings (as opposed to those who design and construct new buildings), as well as representatives of building
occupants.

Passenger (As used by SPC 161): Individuals who pay to ride on aircraft, and the organizations that represent these individuals.

Producer: Those directly concerned with the production or distribution of the product or service involved, including industry associations
representing producers or distributors, or those receiving substantial support from a producer directly concerned.

Supplier: Employees of firms that provide maintenance services for HVAC systems owned by others. This would include engineers and consultants
with a primary job scope of specifying or supervising maintenance of HVAC systems owned by others. It would especially include contractors and
technicians who actually perforni HVAC system services for hire. This group may also include representatives of associations the membership of
which falls in this category.

User: Users of buildings and building systems and subsystems. A person in this category would make their living from owning or operating
buildings. Example members of this category would be building owners and operators (private and governmental), tenants, and trade associations or
organizations representing these groups.
Utility: Those who provide energy services to buildings impacted by this standard. A person in this category would make their living from providing
energy services to a building impacted by this standard. Example members of this category would be electric, gas, steam, or other utility and trade
associations or organizations representing these groups.

ASHRAE0001617

EXHIBIT 3

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