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).

EXHIBIT 42

EXHIBIT 43

EXH I T 44
BI

EXHIBIT 45

1

UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF COLUMBIA

3
4

AMERICAN SOCIETY FOR

)

5

TESTING AND MATERIALS,

)

6

d/b/a ASTM INTERNATIONAL;

)
)

7

NATIONAL FIRE PROTECTION

)

8

ASSOCIATION, INC.; and

)
)

9

AMERICAN SOCIETY OF

)

10

HEATING, REFRIGERATION AND

)

11

AIR CONDITIONING ENGINEERS,

)

12

Plaintiffs and

)

13

Counter-Defendants,

)

14

vs.

) Civil Action No.

15

PUBLIC.RESOURCE.ORG,INC.,

) 1:13-cv-01215-TSC

16
17

Defendant and
Counter-Plaintiff.

) VOLUME: I
)

_______________________________
18

Videotaped 30(b)(6) Deposition of

19

NATIONAL FIRE PROTECTION ASSOCIATION,

20

INC., BY BRUCE MULLEN, taken at
42 Chauncy Street, Boston, Massachusetts,

21

commencing at 9:59 a.m., Tuesday,

22

March 31, 2015, before Jeanette N.

23

Maracas, RPR, Notary Public.

24

JOB No. 2038640

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PAGES 1 - 234
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what the seminar is about.

07:01:57

How did the overall revenues to NFPA on its

07:01:58

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training programs compare to the overall

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revenues on its publications department?

07:02:05

Training revenues are, in total -- this is

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open registration on site -- approximately in

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this last year, we're approximately

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8

$8 million, and publication sales would be in

07:02:24

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the order of 50 to 60 million, so about

07:02:30

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12 percent, 15 percent of -- as a percentage

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of overall revenues, training revenues are in

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the order of 10 percent of total revenues, 10

07:02:49

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to 12.

07:02:52

What options do you see for NFPA if the Court

07:02:54

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rules that NFPA lacks copyright to enforce

07:02:58

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against Public.Resource?

07:03:05

2

5

14

Q.

A.

Q.

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MR. REHN:

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19

Object to the form,

07:03:09

vague.

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And by that, I mean what business options, I

07:03:20

don't mean what legal options.

Q.

07:03:11

07:03:23

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MR. REHN:

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objection to form.

07:03:26

The -- this is a hypothetical, but the volume

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of revenue from standards and codes and our

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handbook -- and our related handbook

07:03:48

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A.

I will maintain my

07:03:24

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material, I mean, that is 60 to 70 percent of

07:03:49

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our overall revenue, so it would have -- if

07:03:55

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we were unable to generate that revenue, it

07:04:04

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would obviously have a substantial impact on

07:04:07

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the organization.

07:04:10

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Q.

Well, that wasn't my question.

My question

07:04:10

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is, what options -- what business options

07:04:12

8

would NFPA have if the Court determined that

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9

NFPA lacked copyright in its codes and

07:04:16

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standards?

07:04:20

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losing copyrighted handbooks.

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That question does not include

MR. REHN:

07:04:22

Object to the form,

07:04:24

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argumentative, hypothetical, asked and

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answered.

07:04:30

Well, regarding to business options, this is

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something that the -- since my entire career

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with the NFPA, NFPA has been looking for

07:04:54

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other ways of generating revenue other than

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or in addition to the sale of codes and

07:04:56

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standards.

07:04:59

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haven't discovered any potential source of

07:05:05

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revenue that could replace that revenue.

07:05:10

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23

A.

And in my tenure at NFPA, we

So in terms of business options,

07:05:14

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there would -- I mean, one business option

07:05:25

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would be a radical reduction in staff to get

07:05:26

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expenses down to a -- to stop the -- a

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deficit would be one business option.

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not a sustainable option to replace that

07:05:40

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revenue source.

07:05:44

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VIDEOGRAPHER:

6

It's

07:05:38

There are ten minutes

remaining on the record.

7
8

07:05:31

MR. BRIDGES:
Q.

07:05:48
07:05:49

Thank you.

07:05:50

07:06:01

copyright -- let me change the question.

10

07:05:51

sources of revenue if it were to lose

9

What alternatives has NFPA considered as

07:06:04

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Is the same thing true if NFPA loses

07:06:11

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copyright only in the codes incorporated by

07:06:15

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reference?

07:06:17

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MR. REHN:

15

Object to the form,

07:06:18

hypothetical.

07:06:20

I wouldn't be able to answer that question

07:06:34

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without having some idea of what that revenue

07:06:36

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impact would be on those individual documents

07:06:39

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in terms of the magnitude of that.

07:06:42

Do you have an idea of what the revenue

07:06:46

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impact would be on those individual

07:06:48

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documents?

07:06:50

No.

07:06:51

16

20

23

A.

Q.

A.

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25

I wouldn't even be able to give you a

range.
Q.

I just -- I don't know.

Do you have any idea how -- strike that.

07:06:57
07:07:01
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Do you have any idea whether NFPA

07:07:10

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would need to change its business model if a

07:07:13

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Court rules that the defendant's activities

07:07:18

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in this case are fair use and not an

07:07:22

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infringement of the NFPA codes and standards

07:07:24

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that are incorporated by reference?

07:07:28

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MR. REHN:

Object to the form, calls

07:07:30

8

for a legal opinion, hypothetical, calls for

07:07:32

9

speculation.

07:07:35

Just go back to the status quo, the existing

07:07:43

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case is NFPA generates revenue around the

07:07:54

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codes and standards that it develops, so if

07:07:59

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we lost copyright to all or a portion of

07:08:02

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those standards or there was no requirement

07:08:06

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for people to purchase those codes and

07:08:10

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standards from us, ultimately, the entire

07:08:13

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code development system would unravel.

07:08:18

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then all our training which is about the

07:08:20

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codes and standards, because we develop the

07:08:22

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codes and standards, we wouldn't have the

07:08:24

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money to develop the codes and standards.

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it would be a sort of slow unraveling

07:08:30

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process.

07:08:33

10

24
25

A.

Q.

My question is a different one.

And

Would NFPA

need to change its business model in that

So

07:08:26

07:08:38
07:08:48
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eventuality?

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07:08:52

MR. REHN:

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Object to the form,

07:08:55

hypothetical, argumentative.

07:08:56

NFPA's business model would cease to exist.

07:09:06

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And I'm not sure whether there is -- a

07:09:11

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logical thing is to change the business

07:09:17

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model, but I don't think there is that

07:09:19

8

business model out there for us to change to.

07:09:24

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Our existing business model would cease to

07:09:26

exist.

07:09:32

Have you given any thought to other sources

07:09:32

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of revenue to NFPA to replace any loss of

07:09:34

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revenue arising from a Court determining that

07:09:40

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codes and standards incorporated by reference

07:09:47

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are in the public domain?

07:09:50

There's been an ongoing initiative at NFPA

07:09:57

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for many years now to develop electronic

07:10:00

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tools and services that are solution based,

07:10:03

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so where it delivers a solution to an

07:10:09

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individual so without -- makes life easy for

07:10:15

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them.

07:10:19

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understand or to work in their sort of work

07:10:22

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flow, whether it's a design or inspection and

07:10:25

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we could -- that is something we have been

07:10:29

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working on for many years.

07:10:35

4

A.

10
11

16

Q.

A.

They don't have to read the code to

It has not

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generated substantial revenues, but that's

07:10:37

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something we continue to work on, but it

07:10:39

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is -- it in no way would ever replace the

07:10:45

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kind of revenue loss that we would

07:10:47

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anticipate.

07:10:50

What innovative tools and services has NFPA

07:10:52

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developed in the past decade to gain more

07:10:58

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revenue?

07:11:04

6

Q.

9
10

MR. REHN:
A.

Object to the form.

07:11:06

We have current electronic digital products

07:11:14

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that are under development at the moment that

07:11:19

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enable inspectors to customize routine

07:11:24

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problems that they have and build their own

07:11:33

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customized work flows.

That's a pilot test

07:11:39

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at the moment.

We don't have -- we haven't

07:11:43

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developed anything substantial in that area.

07:11:45

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Q.

How long has NFPA been working on that?

07:11:53

18

A.

On this particular development, NFPA started

07:11:56

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working on it in late 2013 -- this particular

07:12:04

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product, late 2013, early 2014.

07:12:13
07:12:16

21

Q.

After this litigation began?

22

A.

I think so.

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That's my recollection.

I think

07:12:18

so.
Q.

07:12:25

What effect on NFPA's revenues did the free

07:12:29

access to read-only documents cause?

07:12:37
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