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.
DECLARATION OF DENNIS J. BERRY
IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I, Dennis J. Berry, declare as follows:
1.

I am Secretary of the Corporation and Director of Licensing for the National Fire

Protection Association (“NFPA”). My duties include negotiating and overseeing NFPA’s
licenses for its codes and standards. The following facts are based upon my own personal
knowledge, and if called upon to do so, I could and would testify competently hereto.
2.

NFPA owns a United States copyright registration for the 2011 edition of the

National Electrical Code. Attached hereto as Exhibit A is a true and correct copy of the
registration certificate for this work.

3.

NFPA owns a United States copyright registration for the 2014 edition of the

National Electrical Code. Attached hereto as Exhibit B is a true and correct copy of the
registration certificate for this work.
4.

NFPA owns a United States trademark registration for the trademark National

Fire Protection Association. Attached hereto as Exhibit C is a true and correct copy of this
trademark registration.
5.

NFPA owns a United States trademark registration for the trademark NFPA.

Attached hereto as Exhibit D is a true and correct copy of this trademark registration.
6.

NFPA owns a United States trademark registration for the NFPA logo:

Attached hereto as Exhibit E is a true and correct copy of this trademark registration.
7.

NFPA owns a United States trademark registration for the trademarks National

Electrical Code and NEC. Attached hereto as Exhibits F and G are true and correct copies of
these trademark registrations.
8.

NFPA owns a United States trademark registration for the trademark NFPA 70.

Attached hereto as Exhibit H is a true and correct copy of this trademark registration.

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9.

NFPA owns a United States trademark registration for the NEC logo:

Attached hereto as Exhibit I is a true and correct copy of this trademark registration.
10.

NFPA routinely grants permission to researchers, educators, and others to use

portions of NFPA standards for educational and other non-commercial purposes at no cost.
11.

Attached hereto as Exhibit J is a true and correct copy of a January 22, 2015 email

to me from a merchant who attempted to sell a PDF copy of the 2014 NEC on eBay without
authorization from NFPA. The reseller asserted that the standard “is public domain and is
readily downloadable,” and attached a link to an electronic copy of the standard posted by
Public.Resource.Org as support for that assertion. This email is a business record of NFPA,
recorded at the time of its receipt, created as a regular practice of NFPA to be kept and relied on
by NFPA staff in the ordinary course of business.
12.

Attached hereto as Exhibit K is a true and correct copy of an October 13, 2015

email to me from a merchant who attempted to use a PDF copy of the 2014 NEC as an
inducement to purchase another product on the internet without authorization from NFPA. The
merchant asserted that the standard is “provided for use by the public, for free,” and attached a
link to an electronic copy of the standard posted by Public.Resource.Org as support for that
assertion. This email is a business record of NFPA, recorded at the time of its receipt, created as
a regular practice of NFPA to be kept and relied on by NFPA staff in the ordinary course of
business.

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EXHIBIT A

EXHIBIT B

EXHIBIT C

EXHIBIT D

EXHIBIT E

EXHIBIT F

EXHIBIT G

EXHIBIT H

EXHIBIT I

EXHIBIT J

EXHIBIT K