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

Filing 121

MOTION for Summary Judgment by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Memorandum in Support, #2 Statement of Facts, #3 Statement of Disputed Facts, #4 Objections, #5 Declaration of Carl Malamud, #6 Declaration of Matthew Becker, #7 Request for Judicial Notice, #8 Index of Consolidated Exhibits, #9 Text of Proposed Order)(Bridges, Andrew)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;

Case No. 1:13-cv-01215-TSC-DAR
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG’S MOTION
FOR SUMMARY JUDGMENT

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,

Action Filed: August 6, 2013

Plaintiffs-Counterdefendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant-Counterclaimant.

Defendant/Counter-Claimant Public.Resource.Org, Inc. (“Public Resource”) respectfully
moves for summary judgment that Public Resource’s reproduction, display, and distribution of
the 256 incorporated standards listed in the First Amended Complaint does not constitute either
copyright infringement or trademark infringement.
As described in the attached Memorandum of Law in Support Of Defendant’s Motion for
Summary Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment And
Permanent Injunction, there are no genuine issues of material fact that would preclude summary
judgment in favor of Public Resource. Plaintiff/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”) cannot assert copyright in the
incorporated standards at issue because those standards are binding laws of the United States and
1

numerous states and localities. No one may assert a proprietary legal interest in the text of the
law or restrict its distribution. In addition, the incorporated standards are not copyrightable
subject matter, and Public Resource’s use of the incorporated standards is a non-infringing fair
use. Further, Plaintiffs lack standing to bring this lawsuit as to most of the incorporated standards
at issue because even if a copyright existed, Plaintiffs would not hold it because the text of the
standards was drafted by others who did not assign their rights to the Plaintiffs. Finally, Plaintiffs
cannot use trademark claims to replace their deficient copyright claims. Undisputed facts show
that Public Resource’s reproduction of Plaintiffs’ word marks and logos within the incorporated
standards does not cause consumer confusion and is a nominative fair use.
Public Resource requests an oral hearing on its motion and opposition to Plaintiffs’
motion for summary judgment.
This motion is based on the enclosed Memorandum of Points & Authorities, the
Declaration of Carl Malamud, the Declaration of Matthew Becker, Public Resource’s Request
for Judicial Notice, Index of Consolidated Exhibits and Exhibits filed with this motion, Public
Resource’s proposed order, the pleadings and papers on file herein, and any further material and
argument presented to the Court at the time of the hearing.
Dated: December 21, 2015

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Matthew Becker (admitted)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]

2

Corynne McSherry (admitted)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

3