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 JAMES T. PAULEY
IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I, James T. Pauley, declare as follows:
1.

I am the President and Chief Executive Officer of the National Fire Protection

Association (“NFPA”). I am generally responsible for the management, direction and
administration of NFPA and its activities including its standards development activities. I have
held this position since July 1, 2014. The following facts are based upon my own personal
knowledge, and if called upon to do so, I could and would testify competently thereto.
Background
2.

I am a native of Kentucky, and I have a degree in electrical engineering from the

University of Kentucky.

3.

Prior to my employment with NFPA, I worked in the electrical industry for nearly

30 years, beginning in 1985. I began my career as an engineer for Square D, an electrical
equipment manufacturer, and then worked for Schneider Electric, an electrical distribution and
management company, after it acquired Square D in 1991. My responsibilities at Schneider
Electric included product development and marketing, industry standards, and global standards
strategy. In 2001, I became a vice president of industry standards and government relations at
Schneider Electric. In 2011, I became senior vice president for external affairs and government
relations and a member of the company’s U.S. executive management team. I held that position
until being named NFPA’s president in 2014.
4.

NFPA is a nonprofit organization, based in Quincy, Massachusetts, devoted to

eliminating death, injury, and property and economic loss due to fire, electrical, and related
hazards. NFPA was founded in 1896, and has continuously developed standards since that time.
The association delivers information and knowledge through more than 300 consensus codes and
standards, research, training, education, outreach and advocacy. NFPA’s membership totals
more than 65,000 individuals throughout the world.
5.

Standards development is NFPA’s principal activity and serves to further NFPA’s

mission of reducing the risk of loss from fire, electrical, and related hazards. NFPA develops
standards based on the best available research and input from a wide variety of stakeholders.
These standards provide guidance, instructions, and best practices to prevent the occurrence of
disasters, manage their impact, and protect human life and property.
6.

NFPA has continuously asserted copyright in its standards and made copies of its

standards available for sale to the public since it first began publishing standards. The revenue

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NFPA has obtained from the sale of its copyrighted standards has been NFPA’s primary means
of financial support for many decades.
7.

NFPA’s flagship standard is NFPA 70, the National Electrical Code (“NEC”).

The first edition of the NEC was published in 1897. NFPA currently releases a new edition of
the NEC on a three-year cycle. The current edition of the NEC is the 2014 edition, which is over
900 pages long. The prior edition was the 2011 edition.
8.

The NEC addresses the installation of electrical conductors, equipment, and

raceways; signaling and communications conductors, equipment, and raceways; and optical fiber
cables and raceways in commercial, residential, and industrial occupancies. The NEC is the
world’s leading standard for electrical safety and provides the benchmark for safe electrical
design, installation, and inspection to protect people and property from electrical hazards.
9.

Additional NFPA standards include NFPA 101, the Life Safety Code. The Life

Safety Code is the most widely used standard for building construction, protection, and
occupancy features that minimize the effects of fire and related hazards on human life. The Life
Safety Code includes provisions for building egress, fire protection features, sprinkler systems,
alarms, emergency lighting, smoke barriers, and special hazard protection.
10.

Many NFPA standards are incorporated by reference in federal and state laws and

regulations. NFPA is aware that its standards are frequently incorporated by reference, but
NFPA does not develop any standards solely for that purpose.
11.

NFPA develops new standards based on a determination that developing a

standard in a particular area would serve NFPA’s mission of reducing the risk of loss from fire
and related hazards. NFPA does not consider whether the standard will generate revenue when
deciding whether to develop the standard.

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12.

All NFPA standards have a range of applications and uses even if they are not

incorporated by reference in government laws or regulations. For example, the nationwide use
of the NEC by builders and electrical manufacturers ensures that consumers may travel
throughout the United States with the expectation that their electrical appliances can be plugged
in and will operate safely and effectively. Additionally, widespread use of the NEC and the Life
Safety Code provide benchmark safety guidance that can be relied on by individuals, companies,
and insurers, among others.
13.

The primary users of NFPA standards are professionals and tradespeople who use

these standards in the course of their business, such as electricians, architects, and electrical
equipment manufacturers. NFPA makes its standards available, both for free viewing and for
sale, through a variety of channels, including through its website, through a mail-order catalog
distributed to NFPA members, and through various retail outlets.
NFPA’s Process of Developing Voluntary Consensus Standards
14.

Private-sector standards development in the United States is generally coordinated

and accredited by the American National Standards Institute (“ANSI”). ANSI is a nonprofit
membership organization that facilitates the development of private sector standards and
promotes their integrity by accrediting standards development organizations (“SDOs”) whose
procedures comply with ANSI’s Essential Requirements. I am familiar with ANSI requirements,
having served as chair of the ANSI Board of Directors from January 2012 through May 2014.
15.

To achieve ANSI accreditation, an SDO’s standards development committees

must contain balanced membership, taking into account the views of a variety of groups
including technical experts on the subject matter of the standard, consumer representatives,
government representatives, and industry representatives. ANSI accreditation also requires that

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the SDO maintain open proceedings; provide public notice of standards development activity;
allow opportunity for public comment; give consideration and response to public comments; and
provide an opportunity to appeal committee decisions. Standards that are developed in
accordance with ANSI requirements are known as voluntary consensus standards.
16.

ANSI periodically audits all its accredited developers to verify that they are

following their ANSI approved procedures. NFPA is classified as an Audited Designator by
ANSI because it submits to more in-depth ANSI auditing of its standards process. This allows
NFPA to designate its standards as “American National Standards” (ANSs) when they complete
the NFPA process. All NFPA standards carry the ANS designation and are revised frequently to
remain current with state-of-the-art technology developments.
17.

I have been familiar with NFPA standards and the NFPA standards development

process for many years, including before I became President of NFPA. From 2000 to 2013, I
served on NFPA’s Standards Council, and I served as Chair of the Standards Council from 2008
to 2013. The Standards Council oversees NFPA’s standards development activities, administers
the rules and regulations, and acts as an appeals body.
18.

NFPA’s rigorous and open standards development process requires NFPA to

expend substantial resources on standards development. In addition to the time contributed by
the thousands of volunteers who participate in NFPA standards development, NFPA pays for
salary and benefits for its own administrative, editorial, and expert staff, office space, meeting
facilities for the more than 250 Technical Committees who participate in NFPA standards
development processes, outreach and education efforts, information technology, and other costs.
19.

Each NFPA standard goes through two full rounds of public and committee input,

comments, review and drafts before being finalized.

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20.

NFPA is continuously investing in improvements to its standards development

process. For example, NFPA has recently spent significant sums to build a computerized
interface that allows for the online development and revision of its standards. NFPA has spent
more than $2.9 million on this system over the past four years.
21.

NFPA has also expended resources to increase the participation of

underrepresented groups on its Technical Committees, including by creating an Enforcer
Funding Program to raise the percentage of government enforcement officials on the Committees
by reimbursing these officials for the majority of their travel costs and other costs of Committee
membership.
22.

NFPA’s standards are state of the art. NFPA systematically and regularly revises

and updates its standards. The most used NFPA standards, including the NEC, are revised on a
three-year cycle in order to keep pace with changes in technology and design, and advances in
safety research and understanding.
23.

The standards that emerge from this process are sophisticated and complex

technical works that provide unique guidance and best practices covering a wide range of topics.
These works reflect creative input and decisions from all of the many participants in the
standards development process.
24.

NFPA’s standards development process incorporates significant creative input

from three primary groups of participants. These include (i) members of the public who provide
input and comment; (ii) the members of the Technical Committees who consider and vote on
proposed changes to the standards; and (iii) the NFPA staff who assist and advise the Technical
Committees and who draft and finalize the wording of the actual document that, through the
balloting and voting process, becomes the standard.

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25.

NFPA publishes its standards with copyright notices that alert the public,

including the people who participated in the standards development process, that the copyright is
owned by NFPA.
26.

NFPA is not aware of any other person who claims to have any copyright interest

in NFPA standards.
27.

Members of the public participate in NFPA’s standards development process by

submitting input, including proposed changes to NFPA standards and comments on proposed
changes. It is NFPA policy that all persons who submit public input must assign all rights,
including copyright, in their contributions to NFPA. NFPA does not accept public input without
a signed copyright assignment, which is printed on the standard forms by which members of the
public submit input.
28.

In my experience, members of the public who make contributions to the standards

development process understand and intend that NFPA will own the copyright in their
contributions and in the standards. I have never heard any contributor suggest that NFPA did not
own the copyright in NFPA standards or that the contributors have any rights in NFPA standards.
29.

Prior to my employment with NFPA, and during the time I was employed in the

electrical manufacturing industry, I personally submitted proposals and comments on NFPA
standards. For example, I submitted several proposals and comments for the 2011 NEC, with
specific suggestions for revisions to the wording of various provisions of the NEC. The
Technical Committees accepted some of my proposals and comments, and they were
incorporated into the final standards..
30.

Like all members of the public who submit input, I submitted these comments and

proposals on the standard NFPA forms for such submissions. As part of submitting the forms, I

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expressly agreed that I assigned all and full copyrights in my contributions to NFPA. I
understood and expressly intended that NFPA would own the copyright both in my contribution
and in the final standard. True and correct copies of some of the proposals and comments that I
submitted for the 2011 NEC, including my signed assignment of copyright in my contributions
to NFPA, are attached hereto as Exhibit A.
31.

As I have explained above, many other members of the public also have

submitted proposals and comments for NFPA standards, and they, too, have executed copyright
assignments relating to their contributions. I have attached hereto as Exhibit B a sampling of
true and correct copies of proposals and comments submitted by members of the public for the
2014 NEC, including their signed assignments of copyright in their contributions, are attached
hereto as Exhibit B.
32.

The members of NFPA Technical Committees also contribute to NFPA’s

standards development process. The Technical Committees are the principal consensus bodies
responsible for the development and revision of NFPA standards.
33.

The Technical Committees meet to consider proposals submitted by the public,

and they may also suggest their own revisions to the standards. The Committees discuss and
reach consensus on which changes should be made. For a large standards such as the NEC, there
are multiple Technical Committees. There is a Technical Correlating Committee that oversees
the overall NEC development process, and there are several Technical Committees known as
Code-Making Panels that are responsible for particular sections of the NEC.
34.

It is NFPA policy that anyone who wishes to become a Technical Committee

member submits an application on NFPA’s Committee Application form, including by signing
an assignment of copyright to NFPA. Attached hereto as Exhibit C is a true and correct copy of

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the NFPA Technical Committee Application form. The Application contains the following
language, which has remained unchanged in substance for many years:
I agree that any material that I author, either individually or with others, in connection
with work performed as a member of an NFPA Technical Committee shall be
considered to be works made for hire for the NFPA. To the extent that I retain any
rights in copyright as to such material, or as to any other material authored by me that
I submit for the use of an NFPA Technical Committee in the drafting of an NFPA
code, standard or other NFPA document, I hereby grant and assign all and full rights
in copyright to the NFPA. I further agree and acknowledge that I acquire no rights in
any publication of the NFPA and that copyright and all rights in materials produced
by NFPA Technical Committees are owned by the NFPA and that the NFPA may
register copyright in its own name.
35.

Before being employed by NFPA, I served on a number of NFPA Technical

Committees, including, for example, the Code-Making Panel No. 2 for the 2011 and 2014
editions of the NEC. Each time I applied to be a member of a Technical Committee, I submitted
a Committee Application form in which I signed the copyright assignment containing the
language quoted in paragraph 29 of this Declaration. It has for many years been NFPA’s policy
and practice that all members of NFPA Technical Committees execute such copyright
assignments.
36.

In my work on NFPA Technical Committees, I understood, agreed, and expressed

the intention that NFPA would own the copyright in the final standards, consistently with the
Committee Application form I had submitted.
37.

In my experience participating on the Technical Committees, I understood that all

members of the Committees shared the understanding and expressed the common intention that
NFPA would own the copyright in the final standard. I have frequently heard other Technical
Committee members refer to NFPA’s copyright ownership of NFPA standards. I have never
heard any member of a NFPA Technical Committee suggest that NFPA does not own the

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copyright in NFPA standards or that the Technical Committee members retain any rights in their
contributions to the standards.
38.

NFPA staff also participate in NFPA’s standards development process in the

course of their employment. NFPA technical staff assist and advise the Technical Committees,
and NFPA technical and editorial staff revise and finalize the wording of the actual document
that becomes the standard.
39.

There is an NFPA staff liaison assigned to every NFPA Technical Committee.

Each staff liaison has technical expertise in the appropriate field, and the staff liaisons provide
information and advice to the Committee during Committee meetings.
40.

The staff liaisons also record the decisions made at the Committee meetings about

revisions to NFPA standards. NFPA staff liaisons work together with the Committees to craft
appropriate wording in the draft of the standard that accurately captures the intent and purpose of
Committee decisions. The technical staff are also responsible for ensuring that revisions to the
standard are drafted in a way that maintains technical and editorial consistency across the
different sections of the standard.
41.

After Technical Committee meetings, the technical staff work with NFPA

editorial staff to finalize the language of the draft standard before submitting it for balloting by
the Technical Committees. Every revision and modification in the text of an NFPA standard
goes through multiple levels of review and revision by NFPA technical and editorial staff.
42.

NFPA invests significant resources in the development of each new edition of the

NEC. For example, the development process of the 2017 NEC is currently ongoing. The
preparation of the first draft report involved consideration of over 4,000 proposals from the
public. A total of 485 Technical Committee members on 19 Code-Making Panels, who were

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supported by at least 45 NFPA staff members, held concurrent, multi-day committee meetings
for a total of 75 meeting days over a two-week period. The first draft was finalized by a four-day
meeting of the Technical Correlating Committee, assisted by three NFPA staff members. The
preparation of the second draft report, which is ongoing now, has so far involved consideration
of over 1,500 public comments, and a large number of Committee meetings over a two-week
period, assisted by at least 19 NFPA staff members. There will be two more multi-day Technical
Correlating Committee meetings prior to the issuance of the NEC. In addition, there have been
numerous conference calls, online seminars, and other interactions among Committee Members
and NFPA staff.
43.

The final versions of the standard also go through a rigorous quality control

process by NFPA staff, to ensure that the final document is as accurate as possible. This
painstaking review is costly, but NFPA commits the resources because technical accuracy of
NFPA standards is essential for NFPA’s mission of promoting public safety.
How NFPA Funds Its Standards Development
44.

NFPA sells its standards at reasonable cost and in a variety of formats. For

example, the 2014 edition of the NEC, which is 910 pages long, is offered for purchase as a PDF,
an eBook, or in softcover, looseleaf, or spiralbound versions. The price for the NEC ranges from
$95 to $105, depending on the format in which it is purchased. NFPA’s other standards are sold
at prices ranging from $39 to $100, depending on the length of the standard and other factors.
NFPA also makes several digital subscription services available, so interested purchasers can
obtain unlimited digital access to a variety of NFPA standards.
45.

In addition, NFPA is committed to providing the full text of NFPA standards

available for free viewing on its website. For more than a decade, NFPA has provided such

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access to its standards, in read-only format, and all NFPA standards can currently be accessed on
NFPA’s website at www.nfpa.org/codes-and-standards/free-access. This access allows any
member of the public to review NFPA standards in full and without cost. NFPA also encourages
jurisdictions that incorporate its standards by reference to link their websites to its free, online
version of the standards, and provides a widget that easily enables such access.
46.

NFPA funds its standards development activities primarily with the revenue

obtained from sales of its copyrighted standards. For example, in 2014 NFPA’s publications
sales accounted for over 70% of NFPA’s total operating revenues. The overwhelming majority
of that publications revenue comes from the sale of codes and standards.
47.

NFPA would not be able to maintain its existing voluntary consensus standards

development and revision processes at current levels if there were a significant reduction in the
revenue it obtains from the sale of publications.
48.

If NFPA were unable to maintain its current level of standards development and

revision activities, the standards would not keep up with technological advancements to address
fire, electrical and related hazards nor would they reflect the most current knowledge and
experience of the experts who participate in the process. This failure would result in a lower
level of overall public safety.
49.

In NFPA’s experience, to preserve the revenue from sales of publications, NFPA

must be able to assert copyright in its standards to prevent unauthorized copying of NFPA
standards, which threaten to substantially undermine NFPA’s sales.
50.

NFPA has attempted for years to develop alternative sources of revenue but has

been unable to identify any such revenue sources that would come close to replacing the revenue
from sales of NFPA standards.

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51.

If NFPA were to lose copyright protection of its standards and the related

revenue, NFPA would have to significantly limit its activities. Such limitations could include
ceasing to develop standards that, while important, do not necessarily generate sufficient revenue
to cover their costs including, for example, personal protective equipment standards that help
keep fire fighter personnel safe.
Harm to NFPA From Public.Resource.Org’s Unauthorized Appropriation and Use of
NFPA’s Copyrighted Codes and Trademarks
52.

The activity of Public.Resource.Org, in posting unauthorized copies of NFPA

standards on the internet, threatens NFPA’s ability to generate revenue from these standards and
its ability to continue to fund the development of new and updated standards.
53.

In addition, Public.Resource.Org’s posting of unauthorized copies that have not

gone through NFPA’s quality control process threatens the reputation for careful and quality
publications that NFPA has built up for over a century and undermines the goodwill associated
with NFPA’s name.
54.

I understand that Public.Resource.Org converted NFPA standards to html format

and posted the html versions on the internet. The conversion process inevitably resulted in
errors. For example, I am aware that the html version of the 2011 version of the NEC that was
posted to Public.Resource.Org’s website contains many errors. These include many obvious
typographical errors, but they also include errors that distort the meaning of the standard. Some
of those errors are:
a. Article 310.10(F) of the 2011 NEC addresses conductors used in direct-burial
applications, and states: “Cables rated above 2000 volts shall be shielded.” This
requirement that high-voltage cables in direct-burial applications be shielded is
important to prevent damage to the cables and a resulting risk of electrical shock.
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This language, however, is completely omitted from the html version that was
posted on Public.Resource.Org’s website.
b. Article 424.59 of the 2011 NEC states that “heaters installed within 1.2m (4 ft) of
the outlet of an air-moving device … may require turning vanes, pressure plates,
or other devices on the inlet side of the duct heater to ensure an even distribution
of air over the face of the heater.” In Public.Resource.Org’s html version
however, the “m”—representing meters—is incorrectly rendered as “in”—which
represents inches. In other words, the Public.Resource.Org version says that the
requirement is only triggered if a heater is less than 1.2 inches from an air-moving
device, rather than the correct and much greater distance of 1.2 meters.
c. Article 430.35(B) of the 2011 NEC states that “motor overload protection shall
not be shunted or cut out during the starting period if the motor is automatically
started.” Inadequate motor overload protection can result in overheating and
damage. In Public.Resource.Org’s html version, however, this provision
incorrectly says that motor overload protection shall not be shunted or cut out
during the “stalling period.”
d. A similar error occurs in Article 502.134(b)(5), which identifies requirements for
“starting and control equipment for electric-discharge lamps.” In
Public.Resource.Org’s html version, this article erroneously refers to “stalling and
control equipment.”
e. Article 517.2 of the 2011 NEC defines “X-Ray Installations, Portable” as “X-ray
equipment designed to be hand-carried.” In Public.Resource.Org’s html version,

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EXHIBIT A

EXHIBIT B

EXHIBIT C