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

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

DEFENDANT-COUNTERCLAIMAINT
PUBLIC.RESOURCE.ORG, INC.’S
OBJECTIONS TO PLAINTIFFS’
EVIDENCE IN SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT AND PERMANENT
INJUNCTION

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs/Counter-defendants,

Action Filed: August 6, 2013

v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

Defendant Public Resource hereby submits the following objections to the Declarations
submitted in support of Plaintiffs’ Motion for Summary Judgment and For a Permanent
Injunction, ECF No. 118.
It is fundamental that trial courts “can only consider admissible evidence in ruling on a
motion for summary judgment.” Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002)
(emphasis added); see also Fed. R. Civ. P. 56(c); Fed. R. Evid. 101 (Rules of Evidence apply to
all proceedings in the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule
101). Hearsay, documents that cannot be authenticated, out-of-context excerpts, and evidence
with no foundation will not suffice, and are not to be considered by the court in ruling on
motions for summary judgment or adjudication. See Block v. City of Los Angeles, 253 F.3d 410,
418-19 (9th Cir. 2001) (deciding that consideration of a declaration’s facts not based on personal
knowledge was an abuse of discretion because such facts were inadmissible). Much of the

1

evidence on which Plaintiffs attempt to rely fails to meet the minimum threshold requirements of
admissibility, as set forth below:
Unauthenticated Documents: Authentication or identification is a condition precedent
to the admissibility of a document. Fed. R. Evid. 901. Under Federal Rule of Civil Procedure
56, evidence in support of a motion for summary judgment is objectionable if it cannot be
presented in a form that would be admissible. A document cannot be authenticated by one who
does not have personal knowledge of its authenticity. The foundation is laid for receiving a
document in evidence by the testimony of a witness with personal knowledge of the facts who
attests to the identity and due execution of the document and, where appropriate, its delivery.
United States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970). If there Plaintiffs are unable to show
that they could authenticate a document at trial, then the document should not be considered in
support of Plaintiffs’ motion for summary judgment.
Hearsay: Generally, “inadmissible hearsay evidence may not be considered on a motion
for summary judgment.” Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345
n.4 (9th Cir. 1995); see also Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th
Cir. 1980) (“hearsay evidence is inadmissible and may not be considered by this court on review
of a summary judgment”); In re Cypress Semiconductor, Inc. Sec. Litig., 891 F. Supp. 1369,
1374 (N.D. Cal. 1995) (hearsay evidence cannot be considered in summary judgment
proceedings), aff’d, 113 F.3d 1240 (9th Cir. 1997).
Irrelevant Evidence: Irrelevant evidence cannot be considered in summary judgment
proceedings. See Fed. R. Evid. 402; see also Smith v. Hughes Aircraft Co., 22 F.3d 1432, 1439
(9th Cir. 1993) (affirming trial court’s refusal to consider irrelevant evidence on summary
judgment); Uche-Uwakwe v. Shinseki, 972 F. Supp. 2d 1159, 1165 (C.D. Cal. 2013) (sustaining

2

objection that statement filed in support of motion for summary judgment was inadmissible for
lack of relevance and foundation).
Lack of Personal Knowledge/Foundation: A fact witness may not testify to a matter
unless the witness has personal knowledge of the matter. Fed. R. Evid. 602; Fed. R. Civ. P.
56(c) (“declaration used to support or oppose a motion must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated”); Orr, 285 F.3d at 774 & n.9; Express, LLC v. Fetish
Group, Inc., 464 F. Supp. 2d 965, 973 (C.D. Cal. 2006) (“Declarations submitted in conjunction
with summary judgment proceedings must . . . be based on personal knowledge”). Further, “[a]
declarant’s mere assertions that he or she possesses personal knowledge and competency to
testify are not sufficient.” Boyd v. City of Oakland, 458 F. Supp. 2d 1015, 1023 (N.D. Cal. 2006).
A declarant must show personal knowledge and competency “affirmatively,” under Rule 56, for
example, by “the nature of the declarant’s position and nature of participation in matter.” Id.; see
also Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990) (inferring personal
knowledge from affiants’ “positions and the nature of their participation in the matters to which
they swore”). The fact that Public Resource does not object to the witnesses’ testimony that they
have personal knowledge of the facts stated in their declarations and are competent to testify
thereto does not in any way signal Public Resource’s agreement with those assertions. Public
Resource merely does not contend those statements are inadmissible—but they may be wrong.
Improper Lay Testimony on Legal Conclusions or Expert Subject Matter: Legal
conclusions are not admissible evidence. See Pierce v. Kaiser Found. Hospitals, CV 09-03837
WHA, 2010 WL 4590930, at *8 (N.D. Cal. Nov. 4, 2010), aff’d, 470 F. App’x 649 (9th Cir.
2012) (excluding numerous declarant statements containing inadmissible legal conclusions).

3

The Declarants, without any legal expertise, repeatedly purport to state legal conclusions and the
legal effects of documents supposedly relevant to this dispute. See Fed. R. Evid. 701; see also
Evangelista v. Inlandboatmen’s Union of Pac., 777 F.2d 1390, 1398 n.3 (9th Cir. 1985) (lay
opinion construing contract provisions is inadmissible); Pierce, 2010 WL 4590930, at *8
(declaration that opponent “breached” agreement or “violated” laws is inadmissible legal
conclusion).
Testimony requiring scientific, technical, or other specialized knowledge may be given
only by an expert witness with the requisite knowledge, skill, experience, training, or education,
and opinion testimony is not permitted of a lay person. Fed. R. Evid. 701, 702; see also U.S.
Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F. Supp. 2d 1322, 1331 (S.D. Ala.
2003) (unqualified expert opinions inadmissible at summary judgment). The “proponent of the
expert bears the burden of demonstrating that the expert is qualified.” Gable v. Nat’l Broad. Co.,
727 F. Supp. 2d 815, 833 (C.D. Cal. 2010), aff’d, 438 F. App’x 587 (9th Cir. 2011) (citing
United States v. 87.98 Acres of Land More or Less in the County of Merced, 530 F.3d 899, 90405 (9th Cir. 2008)). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999)
(expert must have specialized knowledge).
Speculative and Conclusory Statements: The unsupported, speculative, and conclusory
statements and claims of opposing parties and their attorneys are not evidence and do not raise a
genuine issue of material fact sufficient to preclude summary judgment. Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888 (1990) (The purpose of Rule 56(e) is “not to replace conclusory
allegations of the complaint with conclusory allegations of an affidavit.”). Rather, “[w]here the
moving party will have the burden of proof at trial, it must affirmatively demonstrate that no
reasonable trier of fact could find other than for the moving party.” Int’l Church of Foursquare

4

Gospel v. City of San Leandro, 902 F. Supp. 2d 1286, 1290-91 (N.D. Cal. 2012) (citing
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)). Cf. Orr, 285 F.3d at 783
(“To defeat summary judgment, [one opposing summary judgment] must respond with more
than mere hearsay and legal conclusions”); Cambridge Elecs. Corp. v. MGA Elecs., Inc., 227
F.R.D. 313, 320 (C.D. Cal. 2004) (“Conclusory, speculative testimony in affidavits and moving
papers is insufficient to raise genuine issues of fact and defeat summary judgment”).
Secondary Evidence Rule: The “secondary evidence rule” requires that contents of
documents must be proved by producing the document itself. Fed. R. Evid. 1001, 1002.
Objections to the Declarations Filed in Support of Plaintiffs’ Motion for Summary
Judgment:
DECLARATION OF DENNIS J. BERRY IN
SUPPORT OF PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT
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.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS
No objection.

No objection.

No objection.

FRE 1002 Secondary Evidence Rule. This
testimony appears to be attempting to prove
the content of the exhibit.

5

FRE 802 Hearsay. NFPA has failed to
disclose the identity a custodian of records
who would be able to satisfy the requirements
of the business records exception to hearsay
for this document.

Exhibit C

FRE 901 Lack of Authentication. NFPA has
failed to disclose the identity a custodian of
records who would be able to authenticate this
document.
FRE 1002 Secondary Evidence Rule. This
exhibit appears to be a document created by a
private nonparty WebTMS. It is not a
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.
Exhibit D

FRE 1002 Secondary Evidence Rule. This
testimony appears to be attempting to prove
the content of the exhibit.
FRE 802 Hearsay. NFPA has failed to
disclose the identity a custodian of records
who would be able to satisfy the requirements
of the business records exception to hearsay
for this document.
FRE 901 Lack of Authentication. NFPA has
failed to disclose the identity a custodian of
records who would be able to authenticate this
document.
FRE 1002 Secondary Evidence Rule. This
exhibit appears to be a document created by a
private nonparty WebTMS. It is not a
trademark registration.

6.
NFPA owns a United States trademark
registration for the NFPA logo:

FRE 1002 Secondary Evidence Rule. This
testimony appears to be attempting to prove
the content of the exhibit.

6

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

FRE 802 Hearsay. NFPA has failed to
disclose the identify a custodian of records
who would be able to satisfy the requirements
of the business records exception to hearsay
for this document.
FRE 901 Lack of Authentication. NFPA has
failed to disclose the identify a custodian of
records who would be able to authenticate this
document.
FRE 1002 Secondary Evidence Rule. This
exhibit appears to be a document created by a
private nonparty WebTMS. It is not a
trademark registration.
No objection.

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
Exhibit H

FRE 1002 Secondary Evidence Rule. This
testimony appears to be attempting to prove
the content of the exhibit.
FRE 802 Hearsay. NFPA has failed to
disclose the identify a custodian of records
who would be able to satisfy the requirements
of the business records exception to hearsay
for this document.
FRE 901 Lack of Authentication. NFPA has
failed to disclose the identify a custodian of
records who would be able to authenticate this
document.
FRE 1002 Secondary Evidence Rule. This
exhibit appears to be a document created by a
7

private nonparty WebTMS. It is not a
trademark registration.
No objection.

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.

FRE 602 Lack of personal knowledge. The
witness has not established personal
knowledge of NFPA’s practices concerning
permissions to use NFPA standards.
Therefore, the witness lacks personal
knowledge of what may or may not be
routine.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 802 Hearsay. The witness recites an out
of court statement introduced for the truth of
the matter asserted.

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.
Exhibit J

FRE 1002 Secondary Evidence. The witness’s
testimony attempts to prove the content of a
writing.

FRE 802 Hearsay. Exhibit J is an email from
a nonparty to the witness. The Exhibit
contains out of court statements introduced

8

for the truth of the matter asserted. Exhibit J
is not a record of a regularly conducted
activity under FRE 803(6) because NFPA did
not make the record; the nonparty did.
Further, the declarant is anonymous, which
indicates a lack of trustworthiness.
FRE 802 Hearsay. The witness recites an out
of court statement introduced for the truth of
the matter asserted.

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.
Exhibit K

FRE 1002 Secondary Evidence. The witness’s
testimony attempts to prove the content of
two writings—the purported “inducement”
and Exhibit K.

FRE 106 Completeness. Exhibit K refers to
an enclosed letter. The letter is not provided
with the exhibit and has not been disclosed to
Public Resource.
FRE 802 Exhibit K is an email from a
nonparty to the witness. The Exhibit contains
out of court statements introduced for the
truth of the matter asserted. Exhibit K is not a
record of a regularly conducted activity under
FRE 803(6) because NFPA did not make the
record; the nonparty did.
FRE 402 Relevance. This testimony is not
relevant to the subject matter of this litigation.

13.
I understand that Defendant in this case,
Public.Resource.Org, recently removed NFPA’s
standards from its website. NFPA has not
received any complaints from any persons
claiming that they were unable to access NFPA
standards since that time.

FRE 403 Prejudice. This testimony is
prejudicial because it assumes, without
supporting evidence, that NFPA has a system
for receiving complaints regarding the
accessibility of standards and that people
unable to access NFPA’s standards would
complain to NFPA.
FRE 602 Lack of Personal Knowledge. The
witness has not established that he has

9

personal knowledge of all complaints that
NFPA receives.

DECLARATION OF STEVEN CRAMER
IN SUPPORT OF PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT
1.
I am over the age of 18 years and am
fully competent to testify to the matters stated in
this Declaration.
2.
This declaration is based on my personal
knowledge. If called to do so, I would and could
testify to the matters stated herein.
3.
I am the Vice-Provost for Teaching and
Learning and Professor of Civil and
Environmental Engineering at the University of
Wisconsin-Madison. My research focuses on the
mechanical behavior of wood and wood-based
materials, the design and analysis of wood
structures, and the performance of concrete
construction materials.
4.
I am a member of ASTM International
(“ASTM”). I have been a member of ASTM
since 1986.
5.
From 2006-2009, I was the Chairman of
ASTM’s Committee D07, which is the
committee that develops standards related to
wood. This committee has jurisdiction over 116
ASTM standards.
6.
I understood since I joined ASTM that
ASTM would own the copyright in any
standards or materials I helped to develop.
7.
I consider my contributions to the
ASTM standard development process to be
contributions to my profession and to the related
industries. ASTM provides the framework that
allows me to make this contribution.
8.
ASTM plays a stewardship role in
convening a diverse group of members,
providing the infrastructure that makes it
possible for members to contribute ideas, and
ultimately creating a usable product that
members will use and from which the entire
industry will benefit.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS
No objection.

No objection.

No objection.

No objection.

No objection.

FRE 402 Relevance. The witness’s
“understanding” is not relevant to the issue of
whether ASTM owns a copyright interest in
any particular standard.
No objection.

FRE 402, 403 Relevance and Confusing. It is
not clear what the witness means by a
“stewardship role,” and it is not clear that
“stewardship” is relevant to the claims in the
case.
FRE 602 Lack of Personal Knowledge. The

10

witness lacks personal knowledge concerning
the causal statement of what ASTM “makes
possible,” whether ASTM creates “a useable
product” and whether the “product” benefits
the “entire industry.”
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
9.
The process of developing, publishing
and distributing standards is expensive and
someone has to pay for those costs.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge concerning the cost involved in
developing, publishing, or distributing
standards. The witness also has no personal
knowledge regarding the testimony that
“someone has to pay for those costs.”
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 402 Relevance. The witness’s
“understanding” is not relevant or probative
of any issue in this case.

10.
I understood since I became a member
of ASTM that ASTM sell copies of all ASTM
standards and uses the revenue from its sales to
support the standards development process.

FRE 602 Lack of Personal Knowledge. The
witness has not established any basis for
having personal knowledge of how ASTM
uses the revenue from its sales.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 402 Relevance. The witness’s
“understanding” is not relevant or probative
of any issue in this case.

11.
I understood since I became a member
of ASTM that if I wanted a copy of an ASTM
standard, including a standard that I helped to
develop, I or my institution would be required to
purchase it from ASTM.
FRE 602 Lack of Personal Knowledge. The
witness is testifying concerning a hypothetical
situation, for which he cannot have personal
knowledge.
FRE 701 Unqualified Expert Opinion. The
11

witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 402 Relevance. The witness’s
“understanding” of the meaning of the
purported contract is inadmissible parole
evidence.

12.
I have renewed my membership with
ASTM using ASTM’s online registration
system since at least 2007. As part of that
process, I indicated my agreement to the
following statement: “I agree, by my
participation in ASTM and enjoyment of the
benefits of my annual membership, to have
transferred and assigned any and all interest I
possess or may possess, including copyright, in
the development or creation of ASTM standards
or ASTM IP to ASTM.” A screen shot of the
membership renewal form is attached as
Exhibit 1. I understand this to mean that I have
assigned any and all copyrights in standards I
helped to develop from 1986 to the present to
ASTM.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge concerning the nature of Exhibit 1.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying about the content of a writing.

Exhibit 1

FRE 106 Completeness. Exhibit 1 appears to
be several screenshots of webpages, but it
appear that not all the webpages that ASTM
contends comprise its renewal form are
included. For example, on the page marked
ASTM001793, contains a name in the first
screenshot, but whatever part of the form
allowed that person to input her name does
not appear in the exhibit.
FRE 901 Authentication. It is not clear what
the witness is claiming this exhibit to be. Is it
the current renewal form? The renewal form
as it has existed since 2007? Further, the
witness, who is not an ASTM employee, has
not shown any personal knowledge regarding
the authenticity of Exhibit 1. The document
appears to have been created by the person
named in the screen shots, who has not been
disclosed by ASTM as a potential witness.

13.
I renewed my membership in ASTM for
2016. As part of the renewal process, I agreed
once again to a statement indicating that I had

FRE 602 Lack of Personal Knowledge. The
witness does not have personal knowledge of
what constitutes the act of agreeing, with all

12

“transferred and assigned any and all interest I
possess or may possess, including copyright, in
the development or creation of ASTM standards
or ASTM IP to ASTM.” Attached as Exhibit 2
is a screen shot of this statement in my
membership renewal.

its attendant legal meaning. The witness may
have personal knowledge that he clicked on
the “continue” button of the webpage, but
lacks personal knowledge as to the legal
effect of doing so. But the witness has not
testified to that fact.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 1002 Secondary Evidence. In the second
sentence of this paragraph, the witness
testifies as to the content of Exhibit 2. The
Exhibit itself is the proof of its content.

Exhibit 2

FRE 106 Completeness. Exhibit 2 does not
appear to be a complete record of the ASTM
membership renewal form for 2016.
FRE 402 Relevance. Exhibit 2 does not
indicate that the witness accepted, or could
accept, the statement concerning his interest
in the ASTM standards, let alone sign an
agreement, as required by the Copyright Act.
Therefore it is not relevant to prove ASTM’s
claims concerning copyright ownership.

14.
I am not aware of any ASTM member
who claims to own the copyright in any ASTM
standard.

FRE 402 Relevance. Whether an ASTM
member claims copyright ownership of any
ASTM standard is not probative of whether
ASTM owns the copyright to the ASTM
standards.
FRE 403 Prejudice. The witness’s testimony
implies, without supporting proof, that he
should be aware if an ASTM member claimed
to own the copyright in an ASTM standard,
and therefore his lack of awareness suggests
that no member has claimed ownership.
FRE 402 Relevance. Context is not a relevant
factor for an effective copyright transfer
under the Copyright Act.

15.
The context of ASTM’s operations,
including the membership forms, membership
renewal forms, Intellectual Property policy, and
the copyright notices on each of the ASTM
13

standards makes it very clear to all members
that ASTM owns the copyrights in all ASTM
standards.

FRE 602 Lack of Personal Knowledge. The
witness has no personal knowledge of what is
“very clear” to “all members.” The witness
also has no personal knowledge of what is
necessary to own a copyright, with its
attendant legal issues.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

16.
As the Chairman of Committee D07, I
did not consider how much revenue sales of a
potential standard would bring to ASTM when
deciding whether to approve a work item to
develop a new standard. I considered whether
there was a need for the proposed standard and
whether there would be sufficient interest from
a balanced group necessary to develop the
standard.
17.
A task group puts together the first draft
of a new standard. I have participated in several
task groups that have drafted proposed standards
that were then revised and voted upon by ASTM
subcommittees and committees. In my
experience, developing a standard is an iterative
process. The task group works collaboratively,
with many people sharing ideas, suggesting
wording and providing comments that
contribute to the draft standard.
18.
I have also participated in developing
standards through the balloting process in
subcommittees and committees. Members of the
subcommittee and committee that submit ballots
on a proposed standard also suggest wording
and provide comments on the draft. The
suggestions and comments are often
incorporated into the draft.

No Objection.

FRE 602 Lack of Personal Knowledge. The
witness’s testimony goes beyond his personal
knowledge of tasks groups in which he
participated.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness’s testimony goes beyond his personal
knowledge of committees and subcommittees
in which he participated.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 402 Relevance. The purpose of the
standards is not relevant to the subject matter
of this litigation.

19.
The ASTM standards I have participated
in developing were developed based on public
demands, industry needs, and public safety
concerns and advancements in technology. They
address a technical issue or problem identified
FRE 602 Lack of Personal Knowledge. The
14

by a group of people in the relevant sector that
witness does not have personal knowledge
can be addressed with a standard-based solution. about the alleged bases for the standards
development. At most he can testify to his
own concerns when participating in
developing a standard. He also lacks personal
knowledge concerning the second sentence of
paragraph 19.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
20.
The ASTM standards I have participated
in developing were not developed for the
purpose of being incorporated into government
regulations.

FRE 402 Relevance. This testimony is not
probative of any issue in this litigation.
FRE 602 Lack of Personal Knowledge. The
witness does not have personal knowledge as
to why the standards were developed, which
is a matter of opinion, not of fact.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness’s testimony concerns all ASTM
committees, but the witness is only qualified
to discuss those committees in which he has
participated or observed.

21.
ASTM committees composed of
technical experts make decisions about the
appropriate content of the standards, including
the relevant measurements, values, descriptions,
and other specifications, as well as the language
with which to express these standards.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 402 Relevance. The fact testified to is
not probative of any issue in this litigation.

22.
Other standard development
organizations, including the American Wood
Council and the American National Standards
Institute, develop standards that relate to wood.
The content, language and purpose of these
SDO’s standards differs from the content of the
ASTM standards.

FRE 602 Lack of Personal Knowledge. The
witness has not established that he has any
personal knowledge of these other standards
developing organizations or the standards
they develop.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.

15

Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying as to the content of writings—
ASTM’s standards and those of the American
Wood Council and the American National
Standards Institute, but has not adduced the
actual writings.
23.
Since joining ASTM, I was aware that
FRE 602 Lack of Personal Knowledge. The
all contributions I made to the process of
declaration does not identify the basis for
developing a standard would be merged with the personal knowledge of this fact. Moreover,
contributions of others and would result in a
whether contributions are “merged” is a legal
single standard.
conclusion and not a fact subject to personal
knowledge.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
24.
The task group, section, subcommittee
and committee structure through which ASTM
standards are developed makes it apparent to all
participants that their contributions will be
merged with the contributions of others and will
result in a single standard.

FRE 602 Lack of Personal Knowledge. The
witness does not have personal knowledge of
what is “apparent” to “all participants.” Also,
whether the contributions “will be merged” is
a legal conclusion and not the subject of
personal knowledge.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

25.
ASTM staff members added certain
language required by the Form and Style guide
to each of the standards I helped to develop.

FRE 1002 Secondary Evidence. The witness’s
testimony assumes facts about the content of
the Form and Style guide, a writing.

26.
ASTM staff editors also proofread and
edited each one of the standards I helped to
develop prior to their publication.
DECLARATION OF JAMES
GOLINVEAUX IN SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
1.
I am a Senior Fellow of water
suppression products at Tyco Fire Protection

No objection.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

No objection

16

Products. 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.
Tyco Fire Protection Products is a
leading manufacturer of water-based fire
suppression system components and ancillary
building construction products. Tyco
manufactures a wide variety of sprinklers,
system valves and devices, piping and electrical
products, and specialty systems for effective fire
protection in commercial, industrial,
institutional, and residential buildings.
3.
I have more than 30 years of experience
in the fire protection industry, and my particular
field of expertise is in the development of fire
sprinklers for use in buildings. I hold 21 United
States and 29 foreign patents in automatic
sprinkler technology, and I currently have 38
pending applications for United States and
foreign patents. In 2014 I received the Henry S.
Parmalee award, the American Fire Sprinkler
Association’s highest honor, in recognition of
my work in the research and design of fire
sprinklers to improve fire safety. As part of my
professional activities, I travel around the world
to deliver lectures and training on fire safety
issues to a wide variety of audiences.
4.
I am familiar with the work of the
National Fire Protection Association (“NFPA”),
and I have been personally involved in NFPA’s
standards development process for many years.
For example, I have been a member of the
NFPA 13 Technical Committee for more than
20 years. NFPA 13 is the Standard for the
installation of Sprinkler Systems. I have also
been a Technical Committee member for several
other NFPA standards, including NFPA 101, the
Life Safety Code. In addition, I am currently a
member of NFPA’s Standards Council.
5.
Fire safety professionals and the fire
protection industry benefit greatly from the
standards developed by NFPA through its
voluntary consensus process. It is critical to
have one central association that can attract

No objection.

FRE 402 Relevance. This testimony is not
relevant; the witness is not seeking to be
qualified as an expert.

No objection.

FRE 602 Lack of Personal Knowledge. This
is quintessential “expert” testimony that goes
far beyond what the witness could have
personal knowledge of.

17

contributors from a variety of perspectives,
coordinate and host Technical Committee
meetings, and ultimately develop and publish
standards that reflect the broadest possible
consensus about fire safety techniques and that
can be used widely throughout the country.
6.
NFPA’s voluntary consensus process
results in the creation of uniform industrywide
standards. Professionals across the industry rely
on the existence of these standards, and this
industry-wide uniformity could not be achieved
without NFPA or a similar organization with the
resources to devote to standards development.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

7.
It is especially important to have an
independent association that brings together the
expertise of many different stakeholders and
creates an open and structured standards
development process designed to accommodate
input from many sources and achieve
consensus. The voluntary consensus process is
costly, but in my experience it results in the
highest quality standards in the area of fire
safety.

FRE 403 Prejudicial and Wasting Time. This
is just an argument; there is no factual
support. It wastes time to consider.

8.
In my experience participating in
NFPA’s standards development process, I have
observed the significant costs that NFPA incurs
to develop its standards. I understand that this
process is primarily funded by revenue obtained
from the sale of NFPA publications.

FRE 402 Relevance. The witness’s
“understanding” is not relevant. If the basis of
this “understanding” consists of writings, then
this testimony runs afoul of FRE 1002 and if
the basis is what he was told by someone else,
then the testimony is hearsay.

FRE 602 Lack of Personal Knowledge. This
is quintessential “expert” testimony that goes
far beyond what the witness could have
personal knowledge of.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

FRE 602 Lack of Personal Knowledge. This
is quintessential “expert” testimony that goes
far beyond what the witness could have
personal knowledge of.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

FRE 602 Lack of Personal Knowledge. The
witness does not purport to have personal
knowledge of what the NFPA spends money
on or the revenue sources for those
expenditures.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
18

beyond the witness’s personal knowledge.
9.
NFPA also provides resources on which
fire safety professionals rely in interpreting and
implementing NFPA standards. These include
expert technical staff who provide
interpretations of the standards, training and
education programs, and a research arm. These
resources significantly enhance the value and
utility of NFPA standards. I understand that
these resources are primarily funded by revenue
obtained from the sale of NFPA publications.

FRE 402 Relevance. The witness’s
“understanding” is not relevant. If the basis of
this “understanding” consists of writings, then
this testimony runs afoul of FRE 1002 and if
the basis is what he was told by someone else,
then the testimony is hearsay.
FRE 602 Lack of Personal Knowledge. The
witness provide any foundation for his
apparent knowledge of these NFPA
“resources.” Nor does he purport to have
personal knowledge of what the NFPA spends
money on or the revenue sources for those
expenditures.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

10.
In my experience in the fire sprinkler
industry, NFPA 13 and other standards used in
the industry are accessible to the professionals
who use them, including manufacturers,
architects, engineers, and contractors. NFPA
distributes standards through a variety of
channels and in a variety of formats.
Professionals who work with fire sprinklers are
familiar with NFPA standards and able to obtain
them with little difficulty and at reasonable cost.
11.
Before I became a member of any NFPA
Technical Committees, I submitted a committee
application in which I agreed that all copyrights
and other rights in the Committee’s work were
owned by NFPA. I also agreed that, to the
extent I had any rights in my work in connection
with the Committee, either individually or in
connection with others, I expressly assigned all
such rights to NFPA.

FRE 602 Lack of Personal Knowledge. This
is quintessential “expert” testimony that goes
far beyond what the witness could have
personal knowledge of.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness is testifying as to the legal effect of a
document, an issue that is not subject to
personal knowledge.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FREE 1002 The witness is testifying as to the
content of a written “committee application,”
without making that writing available. To the
extent it was an unwritten “agreement,” then

19

it is not relevant to the issue of copyright
ownership.
12.
In my work on NFPA Technical
Committees, it has always been my express
intention that my contributions to the standards
would be fully owned by NFPA, and that NFPA
would own the copyright in the completed
standards on which I worked.

FRE 402 Relevance. The witness’s testimony
concerning his former intent is not relevant.
To the extent he is testifying about unwritten
agreements, that testimony is not pertinent
under the Copyright Act.
FRE 802 Hearsay. The witness testifies as to
his “express” intention. The expression of that
intention is impermissible hearsay.
FRE 1002 To the extent the expression of the
witness’s intent was in writing, the witness is
improperly trying to testify as to the content
of a writing.
FRE 602 Lack of Personal Knowledge. This
is quintessential “expert” testimony that goes
beyond the witness’s personal knowledge.
Prefacing the testimony with the phrase “in
my experience” does not change that he
cannot know what other people knew,
understood, or agreed to.

13.
In my experience working on NFPA
Technical Committees, all Committee members
have known that NFPA publishes the final
standards, owns the copyright in those
standards, and affixes copyright notices to the
standards. In my experience, the Technical
Committee members understand and agree that
all copyrights and other rights in the work of the
Technical Committee is owned by NFPA.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

DECLARATION OF RANDY JENNINGS
IN SUPPORT OF PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT
1.
I am over the age of 18 years and am
fully competent to testify to the matters stated in
this Declaration.
2.
This declaration is based on my personal
knowledge. If called to do so, I would and could
testify to the matters stated herein.
3.
I am the Director of Program Operations
for the Tennessee Department of Agriculture. In
that role, among other responsibilities, I
represent the State of Tennessee on ASTM
International Committees D02, D03, D15; the
National Conference on Weights and Measures
and other relevant standards development

PUBLIC.RESOURCE.ORG’S
OBJECTIONS
No objection.

No objection.

No objection.

20

organizations. I also direct and assist regulatory
administrators in assessing and improving their
programs; monitor the efficiency and
effectiveness of staff performance; review all
enforcement actions that are submitted to the
division attorney; and provide direction on
enforcement options after discussing with the
attorney and consulting with program
administrators.
4.
I am a member of ASTM International
(“ASTM”). I have been a member of ASTM
since 1990.
5.
I am currently the Chairman of ASTM’s
Committee D02, which is the committee that
develops standards related to petroleum
products, liquid fuels and lubricants.
6.
I have been an active member of several
D02 subcommittees, including D01.AO on
Gasoline and Oxygenated Fuels, 02.EO on
Burner, Diesel, Non-Aviation Gas Turbine and
Marine Fuels, D02.HO on Liquefied Petroleum
Gas, D02.02 on Hydrocarbon Measurement for
Custody Transfer and D02.08 on Volatility for
many years.
7.
I understood since I joined ASTM that
ASTM would own the copyright in any
standards or materials I helped to develop.

No objection.

No objection.

No objection.

FRE 402 Relevance. The witness’s
understanding is not relevant.
FRE 602 Lack of Personal Knowledge. The
witness’s testimony relies on legal
conclusions of “ownership,” which are not the
subject of personal knowledge.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

8.
I understood since I became a member
of ASTM that ASTM sell copies of all ASTM
standards and uses the revenue from its sales to
support the standards development process.

FRE 402 Relevance. The witness’s
understanding of the facts is not relevant.
FRE 602 Lack of Personal Knowledge. The
witness has not established any foundation for
personal knowledge of ASTM’s business
practices concerning sales and revenue
allocations of the standards.

21

9.
I understood since I became a member
of ASTM that if I wanted a copy of any ASTM
standard, I would be required to purchase it
from ASTM, including standards that I helped
to develop.

FRE 402 Relevance. The witness’s
understanding of the facts is not relevant.

10.
I have renewed my membership with
ASTM using ASTM’s online registration
system since at least 2007. As part of that
process, I indicated my agreement to the
following statement: “I agree, by my
participation in ASTM and enjoyment of the
benefits of my annual membership, to have
transferred and assigned any and all interest I
possess or may possess, including copyright, in
the development or creation of ASTM standards
or ASTM IP to ASTM.” A screen shot of the
membership renewal form is attached as Exhibit
1. I understand this to mean that I have assigned
any and all copyrights in standards I helped to
develop from 1990 to the present to ASTM.

FRE 402 Relevance. The witness’s
“understanding” of the meaning of the
purported contract is inadmissible parole
evidence.

Exhibit 1.

(This is the same testimony and an identical
exhibit as appears in Cramer’s Declaration)

FRE 602 Lack of Personal Knowledge. The
witness is speculating about a hypothetical
situation, which is not a subject of personal
knowledge.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge concerning the nature of Exhibit 1.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying about the content of a writing.

FRE 106 Completeness. Exhibit 1 appears to
be several screenshots of webpages, but it
appear that not all the webpages that ASTM
contends comprise its renewal form are
included. For example, on the page marked
ASTM001793, contains a name in the first
screenshot, but whatever part of the form
allowed that person to input her name does
not appear in the exhibit.
FRE 901 Authentication. It is not clear what
the witness is claiming this exhibit to be. Is it
the current renewal form? The renewal form
as it has existed since 2007? Further, the
witness, who is not an ASTM employee, has
not shown any personal knowledge regarding
the authenticity of Exhibit 1. The document
appears to have been created by the person
22

named in the screen shots, who has not been
disclosed by ASTM as a potential witness.
11.
I am not aware of any ASTM member
who claims to own the copyright in any ASTM
standard.

FRE 402 Relevance. Whether an ASTM
member claims copyright ownership of any
ASTM standard is not probative of whether
ASTM owns the copyright to the ASTM
standards.
FRE 403 Prejudice. The witness’s testimony
implies, without supporting proof, that he
should be aware if an ASTM member claimed
to own the copyright in an ASTM standard,
and therefore his lack of awareness suggests
that no member has claimed ownership.
FRE 402 Relevance. Context is not a relevant
factor for an effective copyright transfer
under the Copyright Act.

12.
The context of ASTM’s operations,
including the membership forms, membership
renewal forms, Intellectual Property policy, and
the copyright notices on each of the ASTM
standards makes it very clear to all members
that ASTM owns the copyrights in all ASTM
standards.

FRE 602 Lack of Personal Knowledge. The
witness has no personal knowledge of what is
“very clear” to “all members.” The witness
also has no personal knowledge of what is
necessary to own a copyright, with its
attendant legal issues.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

13.
A task group puts together the first draft
of a new standard. I have participated in several
task groups that have drafted proposed standards
that were then revised and voted upon by ASTM
subcommittees and committees. In my
experience, the task group works
collaboratively, with many people, sometimes
dozens of people, sharing ideas, suggesting
wording and providing comments that
contribute to the draft standard.

(Note this is nearly identical to Cramer Decl.
¶ 17.)
FRE 602 Lack of Personal Knowledge. The
witness’s testimony goes beyond his personal
knowledge of tasks groups in which he
participated.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
(Note this is nearly identical to Cramer Decl.
¶ 18.)

14.
I have also participated in developing
standards through the balloting process in
subcommittees and committees. Members of the
23

subcommittee and committee that submit ballots
on a proposed standard also suggest wording
and provide comments on the draft. The
suggestions and comments are often
incorporated into the draft.

FRE 602 Lack of Personal Knowledge. The
witness’s testimony goes beyond his personal
knowledge of committees and subcommittees
in which he participated.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
No objection.

15.
I participated in the development of
ASTM D975-07.
16.
The ASTM standards I have participated
in developing were developed based on public
demands, industry needs, and public safety
concerns and advancements in technology. They
address a technical issue or problem identified
by a group of people in the relevant sector that
can be addressed with a standard-based solution.

FRE 402 Relevance. The purpose of the
standards is not relevant to the subject matter
of this litigation.
FRE 602 Lack of Personal Knowledge. The
witness does not have personal knowledge
about the alleged bases for the standards
development. At most he can testify to his
own concerns when participating in
developing a standard. He also lacks personal
knowledge concerning the second sentence of
paragraph 16.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

17.
Technical committees make decisions
about the appropriate content of the standards,
including the relevant measurements, values,
descriptions, and other specifications, as well as
the language with which to express these
standards.

Cf. Cramer Decl. ¶ 21.
FRE 602 Lack of Personal Knowledge. The
witness’s testimony concerns all ASTM
committees, but the witness is only qualified
to discuss those committees in which he has
participated or observed.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
Cf. Cramer Decl. ¶ 23.

18.
Since joining ASTM, I was aware that
all contributions I made to the process of
developing a standard would be merged with the FRE 602 Lack of Personal Knowledge.
contributions of others and would result in a
Whether contributions are “merged” is a legal
single standard.
conclusion and not a fact subject to personal
24

knowledge.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge
Cf. Cramer Decl. ¶ 24.

19.
The task group, subcommittee and
committee structure through which ASTM
standards are developed makes it apparent to all
participants that their contributions will be
merged with the contributions of others and will
result in a single standard.

FRE 602 Lack of Personal Knowledge. The
witness does not have personal knowledge of
what is “apparent” to “all participants.” Also,
whether the contributions “will be merged” is
a legal conclusion and not the subject of
personal knowledge.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

20.
For each of the standards I helped to
develop, ASTM staff members reviewed the
draft standards and suggested editorial changes
and added other information required by the
Form and Style guide.
21.
The Tennessee Code requires kerosene
and motor oils to meet the standards set out in
the most recent volume 5 of the ASTM Annual
Book of Standards. See Tennessee Code § 4718-1304.
22.
One of the benefits of states being able
to incorporate by reference the ASTM standards
is that it provides different states with a
common set of requirements. If each state had to
create its own set of standards, there would be a
patchwork of requirements, which would make
it very difficult for companies to convey
products that could be used in multiple states.

FRE 1002 Secondary Evidence. The witness’s
testimony assumes facts about the content of
the Form and Style guide, a writing.

23.
ASTM is able to convene experts with
knowledge of different fuels and their
components to develop its fuel standards.

FRE 602 Lack of Personal Knowledge. This
is quintessential “expert” testimony that goes
far beyond what the witness could have
personal knowledge of.

No objection.

FRE 602 Lack of Personal Knowledge. This
is quintessential “expert” testimony that goes
far beyond what the witness could have
personal knowledge of.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

FRE 701 Unqualified Expert Opinion. The
25

witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.
24.
The state of Tennessee does not have the
resources or expertise to develop the broad array
of standards that ASTM develops and maintains
related to fuels. If Tennessee was unable to
incorporate by reference the ASTM standards, it
would not be able to effectively develop
standards for fuel products.

FRE 602 Lack of Personal Knowledge. This
is quintessential “expert” testimony that goes
far beyond what the witness could have
personal knowledge of.

DECLARATION OF THOMAS B.
O’BRIEN, JR. IN SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
1.
I am over the age of 18 years and am
fully competent to testify to the matters stated in
this Declaration.
2.
This declaration is based on my personal
knowledge. If called to do so, I would and could
testify to the matters stated herein.
3.
I am Vice President and General
Counsel at ASTM International (“ASTM”). I
have worked at ASTM since 2003.
4.
My responsibilities include developing
legal policies and procedures and addressing all
legal matters for ASTM, including ASTM’s
copyright registrations, trademark registrations,
and enforcement efforts related to ASTM’s
intellectual property.
5.
ASTM has a copyright registration for
ASTM D86-07 (Standard Test Methods for
Distillation of Petroleum Products at
Atmospheric Pressure) that identifies ASTM as
the owner. Attached as Exhibit 1 is a true and
correct copy of the certificate of registration for
this standard.
6.
ASTM has a copyright registration for
ASTM D975-07 (Standard Specification for
Diesel Fuel Oils) that identifies ASTM as the
owner. Attached as Exhibit 2 is a true and
correct copy of the certificate of registration for

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert.
Therefore, the witness cannot testify to facts
beyond the witness’s personal knowledge.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

26

this standard.
7.
ASTM publishes an Annual Book of
ASTM Standards every year that is composed of
a number of volumes and includes the current
version of each of its standards.
8.
Between 1980 and 2011, ASTM
obtained copyright registrations for each volume
of its Book of Standards.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not worked for ASTM since
1980.
FRE 1002 Secondary Evidence. The witness
has not provided the original copyright
registrations.
No objection.

9.
ASTM D396-98 and ASTM D121793(98) were published in Volume 5.01 of the
1999 Annual Book of ASTM Standards.
Attached as Exhibit 3 are true and correct copies
of pages from the index of the 1999 Annual
Book of ASTM Standards showing the volume
in which these standards appeared.
10.
ASTM has a copyright registration for
Volume 5.01 of the 1999 Annual Book of
ASTM Standards that identifies ASTM as the
owner. The date of first publication for this
work was February 22, 1999 and the effective
date of registration is March 10, 1999. Attached
as Exhibit 4 is a true and correct copy of the
certificate of registration for the standards
included in this volume.
11.
The published version of each of
ASTM’s standards includes a copyright notice
alerting the public (including the individuals
who participated in the creation of the
standards) to the fact that the copyright is owned
by ASTM.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not demonstrated the basis for any
personal knowledge concerning the contents
of each published version of ASTM’s
standards, whether alleged notices in those
documents have the effect of alerting anyone,
or whether ASTM actually owns a copyright
to the standards.

FRE 1002 Secondary Evidence. The witness
is testifying as to the content of writings
without producing the originals.
12.
ASTM knows of no individual or other
FRE 402 Relevance. Whether an ASTM
person who claims to own any copyright interest member claims copyright ownership of any
in any ASTM standard.
ASTM standard is not probative of whether
ASTM owns the copyright to the ASTM
standards.

27

FRE 403 Prejudice. The witness’s testimony
implies, without supporting proof, that he
should be aware if an ASTM member claimed
to own the copyright in an ASTM standard,
and therefore his lack of awareness suggests
that no member has claimed ownership.

13.
ASTM routinely grants permission to
researchers, academics and others to reproduce
its standards at no cost for non-commercial
purposes.

14.
ASTM has not licensed Defendant’s use
of ASTM’s standards.
15.
ASTM developed a guide entitled “Form
and Style for ASTM Standards,” which is a
guide to promote uniformity of form and style in
ASTM standards (“ASTM Form, and Style
Guide”). This guide describes certain
conventions that must be followed when
drafting an ASTM standard. Attached as Exhibit
5 is a true and correct copy of the ASTM Form
and Style Guide.
16.
The ASTM Form and Style Guide
describes certain components and provides the
text for certain language that must be included
in every ASTM standard.
17.
As part of the process of developing a
draft standard, ASTM staff members add
language and components that are required by
the ASTM Form and Style Guide to the draft
prepared by the task group.

18.

FRE 602 Lack of Personal Knowledge. The
witness has not established personal
knowledge as to what ASTM knows, a
question of mixed fact and law concerning
what knowledge may be imputed to an
organization.
FRE 602 Lack of Personal Knowledge. The
witness has not established his personal
knowledge concerning ASTM’s licensing
practices, nor any basis for opining on
whether such permissions, if any, are
“routine.”
No objection.
FRE 602 Lack of Personal Knowledge. The
witness has not established personal
knowledge regarding the general use of this
document, or the basis for claiming that the
conventions must be followed.

FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
No objection.

For example, Standard D86-07 contains
28

numerous components that were authored by
ASTM employees. Attached as Exhibit 6 is a
true and correct copy of ASTM D86-07.
19.
The title of the standard (Standard Test
Method for Distillation of Petroleum Products at
Atmospheric Pressure) appears at the top of the
first page of ASTM D86-07. Directly below the
title, there is an explanation of what the
designation number for the standard means.
This language was drafted by an ASTM
employee.
20.
Footnote 1 is a standard footnote that is
authored by an ASTM employee, which
provides information about which committee
and subcommittee have jurisdiction over the
standard. ASTM Form and Style Guide Section
A26.2 lays out the requirements for the content
of this footnote.
21.
Footnote 2 explains how to obtain access
to ASTM standards referenced in the document.
This language was drafted by an ASTM
employee.
22.
Section 1.5 of ASTM D86-07 states:
“This standard does not purport to address all of
the safety concerns, if any, associated with its
use. It is the responsibility of the user of this
standard to establish appropriate safety and
health practices and determine the applicability
of regulatory limitations prior to use.” This
language comes directly from the Section F2.1
of the ASTM Form and Style Guide and was
written by an ASTM employee.
23.
On the last page of ASTM D86-07, there
is a summary of the differences between this
version of the standard and the previous version,
which was compiled by ASTM employees.
24.
At the very bottom of the last page of
D86-07, there are three italicized paragraphs.
The text of the first two paragraphs comes
directly from ASTM’s Form and Style Guide,
which was written by ASTM employees. See
Form and Style Guide Sections F3.2 and F2.3.
25.
The third italicized paragraph at the end
of D86-07 is a statement of ASTM’s ownership
of the copyright and information about how to
purchase copies, which was also authored by an

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

29

ASTM employee.
26.
As another example, ASTM standard
D975-07 contains numerous sections that were
authored by ASTM employees. Attached as
Exhibit 7 is a true and correct copy of ASTM
D975-07.
27.
Underneath the title of the standard
(Standard Specification for Diesel Fuel Oils),
there is an explanation of what the designation
number for the standard means. This language
was drafted by an ASTM employee.
28.
Footnote 1 of ASTM D975-07 provides
information about the committee and
subcommittee that have jurisdiction over this
standard. This language is required by Section
B28.2 of the ASTM Form and Style Guide and
was drafted by an ASTM employee.
29.
Section 1.3 of ASTM D975-07 states
“The values stated in SI units are to be regarded
as the standard. The values given in parentheses
are for information only.” This language was
taken verbatim from Section 113.1.1.1 of the
ASTM Form and Style Guide.
30.
Like ASTM D86-07, the last page of
ASTM D975-07 provides a summary of changes
made to the previous version of this, standard
and includes three italicized paragraphs, all of
which were drafted by ASTM employees.
31.
ASTM D396-98 also contains content
that was drafted by ASTM employees. Attached
as Exhibit 8 is a true and correct copy of ASTM
D396-98.
32.
Underneath the title of the standard
(Standard Specification for Fuel Oils), there is
an explanation of what the designation number
for the standard means. This language was
drafted by an ASTM employee.
33.
Footnote 1 of ASTM D396-98 provides
information about the committee and
subcommittee that have jurisdiction over this
standard. This language is required by Section
B28.2 of the ASTM Form and Style Guide and
was drafted by an ASTM employee.
34.
On the last page of ASTM D396-98
there are two italicized paragraphs that were
drafted by ASTM employees.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

30

35.
ASTM D1217-93(98) contains content
that was drafted by ASTM employees. Attached
as Exhibit 9 is a true and correct copy of ASTM
D1217-93(98).
36.
Underneath the title of the standard
(Standard Test Method for Density and Relative
Density (Specific Gravity) of Liquids by
Bingham Pycnometer), there is an explanation
of what the designation number for the standard
means. This language was drafted by an ASTM
employee.
37.
Footnote 1 of ASTM D1217-93(98)
provides information about the committee and
subcommittee that have jurisdiction over this
standard. This language is required by Section
B28.2 of the ASTM Form and Style Guide and
was drafted by an ASTM employee.
38.
Section 1.5 of ASTM D1217-93(98)
states: “This standard does not purport to
address all of the safety concerns, if any,
associated with its use. It is the responsibility of
the user of this standard to establish appropriate
safety and health practices and determine the
applicability of regulatory limitations prior to
use.” This language comes directly from the
Section F2.1 of the ASTM Form and Style
Guide and was written by an ASTM employee.
39.
On the last page of ASTM D121793(98) there are two italicized paragraphs that
were drafted by ASTM employees.
40.
There are a number of ways in which
ASTM members assign their copyrights in the
standards they help to develop to ASTM.

No objection.

No objection.

No objection.

No objection.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject and copyright
assignment is a matter of law and not the
subject of personal knowledge.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

41.
Since 2005, new members and members
renewing their memberships online to ASTM
agree to the following language: “I agree, by my
participation in ASTM and enjoyment of the
benefits of my annual membership, to have

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject, or to whether
other people “agree,” which is a legal concept
and not the subject to personal knowledge.

31

transferred and assigned any and all interest I
possess or may possess, including copyright, in
the development or creation of ASTM standards
or ASTM IP to ASTM.” Attached as Exhibit 10
is a true and correct copy of the online new
membership form and attached as Exhibit 11 is
a true and correct copy of the online
membership renewal form.
Exhibit 10

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

FRE 1002 Secondary Evidence. The copy of
the exhibit filed with the court is too degraded
to be legible.
FRE 901 Authentication. The exhibit includes
what appear to be written annotations of the
webpages’ functionality, which goes beyond
what the witness identified the exhibit to be.
It is also not clear what the witness is
claiming this exhibit to be. Is it the current
renewal form? The renewal form as it has
existed since 2007? The document appears to
have been created by the person named in the
screen shots, who has not been disclosed by
ASTM as a potential witness.
FRE 802 Inadmissible Hearsay. The exhibit
contains out of court statements offered for
the truth of the matter asserted. In particular
the annotations to what is purported to be the
membership agreement.
FRE 106 Completeness. Exhibit 1 appears to
be several screenshots of webpages, but it
appear that not all the webpages that ASTM
contends comprise its renewal form are
included. For example, on the page marked
ASTM001793, contains a name in the first
screenshot, but whatever part of the form
allowed that person to input her name does
not appear in the exhibit.

Exhibit 11

FRE 1002 Secondary Evidence. The copy of
the exhibit filed with the court is too degraded
to be legible.
FRE 901 Authentication. The exhibit includes
32

what appear to be written annotations of the
webpages’ functionality, which goes beyond
what the witness identified the exhibit to be.
It is also not clear what the witness is
claiming this exhibit to be. Is it the current
renewal form? The renewal form as it has
existed since 2007? The document appears to
have been created by the person named in the
screen shots, who has not been disclosed by
ASTM as a potential witness.
FRE 802 Inadmissible Hearsay. The exhibit
contains out of court statements offered for
the truth of the matter asserted. In particular
the annotations to what is purported to be the
membership agreement.
FRE 106 Completeness. Exhibit 1 appears to
be several screenshots of webpages, but it
appear that not all the webpages that ASTM
contends comprise its renewal form are
included. For example, on the page marked
ASTM001793, contains a name in the first
screenshot, but whatever part of the form
allowed that person to input her name does
not appear in the exhibit.
42.
Some members of ASTM renew their
memberships using paper forms that contain
substantially the same language as the language
in the online forms. Attached as Exhibit 12 is a
true and correct copy of a paper membership
renewal form.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject, or to whether
other people “agree,” which is a legal concept
and not the subject to personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying as to the contents of a writing.
FRE 901 Authentication. It is also not clear
what the witness is claiming this exhibit to be.
Is it just one renewal form, or is it
representative of all the renewal forms for a
particular timeframe? What timeframe? The
document appears to have been created by the
person named in the screen shots, who has not
been disclosed by ASTM as a potential
witness.

Exhibit 12

FRE 802 Inadmissible Hearsay. The exhibit
33

contains out of court statements offered for
the truth of the matter asserted.
43.
Michael Collier was the technical
contact for the revision of ASTM D86 that was
completed in 2007.
44.
Michael Collier renewed his ASTM
membership every year between 2007-2014
using the online membership renewal form.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of writings.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject

45.
John Chandler was the technical contact
for the revision of ASTM D975 that was
completed in 2007 and for the revision of
ASTM D398 that was completed in 1998.
46.
John Chandler renewed his ASTM
membership every year between every year
between 2007-2014 using the online
membership renewal form.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of writings.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject

47.
Jimmy King was the technical contact
for the 1998 reapproval of ASTM D1217.
48.
Jimmy King renewed his ASTM
membership in 2007.

FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject

49.
When an individual registers a “work
item,” which starts the process of developing a
new standard or amending an existing standard,
that individual must agree to the following
language: “I hereby grant and assign to ASTM
International all and full intellectual property
rights, including copyright, in the proposed draft
standard/text and any contributions I make to
ASTM International in connection with this
proposal” and “By submitting this form, I
acknowledge that all copyrights to this
document, as a draft and an approved ASTM
standard, are the sole and exclusive property of
ASTM, in accordance with the Intellectual
Property policies of the Society.” Attached as

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.

34

Exhibit 13 is a true and correct copy of the
online form an individual must complete to
register a work item.
Exhibit 13

FRE 1002 Secondary Evidence. The copy of
the exhibit filed with the court is illegible.
FRE 901 Authentication. The exhibit appears
to have annotations (arrows) that go beyond
what the witness claimed the exhibit to be.

50.
ASTM engages in quality control
procedures to ensure the quality and integrity of
the content of the standards.

FRE 402 Relevance. The testimony is not
relevant to the subject matter of this litigation.
ASTM’s quality control over how standards
are published may be relevant, but quality
control over how standards are drafted is not
relevant.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

51.
ASTM staff editors edit the language of
the standard to ensure that it conforms to the
requirements in the Form and Style Guide.

FRE 402 Relevance. The testimony is not
relevant to the subject matter of this litigation.
ASTM’s quality control over how standards
are published may be relevant, but quality
control over how standards are drafted is not
relevant.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

52.
ASTM staff also submits the final
version to the technical committee for reviews
to make sure it matches the content approved

FRE 402 Relevance. The testimony is not
relevant to the subject matter of this litigation.
ASTM’s quality control over how standards
35

through the balloting process.

are published may be relevant, but quality
control over how standards are drafted is not
relevant.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

53.
ASTM staff proofreads the XML
versions of standards before posting them on the
internet to ensure that the conversion of the text
and diagrams into XML format has not altered
the content of the standard.
54.
ASTM has not received any complaints
about lack of accessibility of its standards other
than from Defendant.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

403 Prejudice. The witness has not provided
any foundation to believe that ASTM would
be expected to receive complaints about the
lack of its standards if people were
dissatisfied or that ASTM tracks complaints
of that nature.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

55.
ASTM owns a U.S. federal trademark
No objection.
registration for the trademark ASTM (U.S.
Trademark Reg. No 2,679,320) in connection
with books featuring information on
standardization of specifications and the
methods of testing for various materials and
products; promoting public awareness of the
need for standards; educational services; and
providing a website on global computer
networks featuring information in the field of
specifications and methods of testing for various
materials and products. ASTM has used this
36

trademark since 1962. ASTM filed a Section 15
declaration in support of the incontestability of
this registration. Attached as Exhibit 14 are true
and correct copies of the Certificate of
Registration and the Section 15 declaration.
56.
ASTM owns U.S. federal trademark
registrations for the trademarks ASTM
INTERNATIONAL (U.S. Trademark Reg. No.
2,685,857) and the following logo:

No objection.

(U.S. Reg. No. 2,651,796) in connection with
similar goods and services. ASTM has used
these trademarks since 2001. ASTM filed
Section 15 declarations in support of the
incontestability of these registrations. Attached
as Exhibit 15 are true and correct copies of the
Certificates of Registration and the Section 15
declarations.
57.
ASTM also owns a registration for the
following logo:

No objection.

(U.S. Reg. Nos. 4,079,772) in connection with
publications relating to testing methods,
specifications and standards in engineering,
industrial and allied fields. ASTM has used this
trademark since 1965. The application for this
registration was filed on May 10, 2011. The
Examining Attorney who reviewed the
application approved it for registration without
requesting proof of secondary meaning.
Attached as Exhibit 16 is a true and correct copy
of the Certificate of Registration.
58.
ASTM expends considerable resources
FRE 403 Prejudice. Assumes that Public
37

marketing and promoting its goods and services
in connection with these trademarks every year.
For example, ASTM spent over $3 million
marketing and promoting the sales of copies of
its standards that feature its trademarks in
catalogs, brochures, and in mail and email
correspondence between 2010-2012, which
were the three years immediately prior to
Defendant’s infringement.

Resource has infringed something.

59.
ASTM’s longstanding use of its
trademarks in connection with its high quality
standards has resulted in the public’s association
of ASTM’s marks with a certain quality.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject. This is
quintessential expert testimony.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
60.
ASTM provides the public with free,
read-only access to all ASTM standards that
ASTM is aware have been incorporated by
reference into federal regulations.

FRE 702 Unreliable Expert Opinion. The
testimony will not help the trier of fact to
understand the evidence or determine a fact in
issue; is not based on sufficient facts or data;
is not the product of reliable principles or
methods; and is not based on a reliable
application of principles or methods to the
facts of this case.

61.
ASTM provides the public with free,
read-only access to all ASTM standards that are
the subject of Plaintiffs’ Motion for Summary
Judgment. Attached as Exhibit 17 are true and
correct copies of screen shots demonstrating the
availability of ASTM standards on ASTM’s
online Reading Room.
62.
ASTM identifies standards that have
been incorporated by reference into federal
regulations from the database created by the
National Institute of Standards and Technology.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 702 Unreliable Expert Opinion. The
testimony will not help the trier of fact to
understand the evidence or determine a fact in
issue; is not based on sufficient facts or data;

38

is not the product of reliable principles or
methods; and is not based on a reliable
application of principles or methods to the
facts of this case.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

63.
ASTM publicizes the free read-only
access provided on its website.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

64.
During the notice and comment period
regarding proposed federal regulations, upon,
request by the relevant federal agency, ASTM
provides free, read-only access to standards that
are incorporated by reference in proposed
regulations.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
(duplicative of ¶ 54)

65.
ASTM has not received any complaints
about lack of accessibility of its standards other
than from Defendant.

403 Prejudice. The witness has not provided
any foundation to believe that ASTM would
be expected to receive complaints about the
lack of its standards if people were
dissatisfied or that ASTM tracks complaints
of that nature.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

66.
Defendant submitted comments
reflecting his beliefs in connection with
proposed rulemaking regarding the procedures
of the Office of the Federal Register and the
National Archives and Records Administration,
proposed amendments to the Office of
Management and Budget’s Circular A-119, and
a study by the Administrative Conference of the

FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.

39

United States.
67.
During the course of this litigation,
Defendant has continued to post versions of
additional standards owned by ASTM that use
ASTM’s trademarks on its website, including as
recently, as October 2015.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject. In particular,
the witness is testifying concerning ASTM's
ownership, a legal concept not subject to
personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
No objection.

68.
Defendant has posted html versions of
certain ASTM, standards since Plaintiffs filed
their Complaint that do not use the ASTM logo
marks. Attached as Exhibit 18 is a true and
correct copy of a version of ASTM F977 that
Defendant posted on its website in October
2015 that does not use an ASTM logo.
69.
On or about November 10, 2015,
Defendant removed its versions of the standards
at issue in this case from its website and from
the Internet Archive at the suggestion of the
Court.
70.
Since the standards were taken down
from Defendant’s website and the Internet
Archive, ASTM has not received any
complaints from persons regarding any alleged
inability to access ASTM’s standards that have
been incorporated by reference.

No objection.

403 Prejudice. The witness has not provided
any foundation to believe that ASTM would
be expected to receive complaints about the
lack of its standards if people were
dissatisfied or that ASTM tracks complaints
of that nature.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

DECLARATION OF JAMES T. PAULEY
IN SUPPORT OF PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT
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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS
No objection.

40

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.
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

No objection.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

41

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

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about the historical facts or the
three year cycle.

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.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

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.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

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.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
10.
Many NFPA standards are incorporated FRE 602 Lack of Personal Knowledge. The
by reference in federal and state laws and
witness has not established any personal
regulations. NFPA is aware that its standards are knowledge about NFPA’s “intent” in
frequently incorporated by reference, but NFPA developing each of its standards.
does not develop any standards solely for that
42

purpose.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

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.

FRE 403 Prejudice. The witness is
anthropomorphizing NFPA by ascribing to it
the capability to “determine” and “consider”
things. In fact, only its employees or agents
are able to do so, and to those people, the
witness lacks personal knowledge as to what
they determined or considered.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
12.
All NFPA standards have a range of
FRE 602 Lack of Personal Knowledge. The
applications and uses even if they are not
witness has not established any personal
incorporated by reference in government laws or knowledge about this subject. This is
regulations. For example, the nationwide use of quintessential “expert” testimony that is not
the NEC by builders and electrical
the subject of personal knowledge.
manufacturers ensures that consumers may
travel throughout the United States with the
FRE 701 Unqualified Expert Opinion. The
expectation that their electrical appliances can
witness has not been qualified as an expert
be plugged in and will operate safely and
and therefore cannot testify as to facts beyond
effectively. Additionally, widespread use of the the witness’s personal knowledge.
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
FRE 602 Lack of Personal Knowledge. The
are professionals and tradespeople who use
witness has not established any personal
these standards in the course of their business,
knowledge about this subject.
such as electricians, architects, and electrical
equipment manufacturers. NFPA makes its
FRE 701 Unqualified Expert Opinion. The
standards available, both for free viewing and
witness has not been qualified as an expert
for sale, through a variety of channels, including and therefore cannot testify as to facts beyond
through its website, through a mail-order
the witness’s personal knowledge.
catalog distributed to NFPA members, and
through various retail outlets.
14.
Private-sector standards development in FRE 602 Lack of Personal Knowledge. The
43

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 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 stateof-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

witness has not established personal
knowledge concerning private-sector
standards development in the United States
generally.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

No objection.

No objection.

No objection.

44

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.
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

FRE 403 Prejudice. The testimony is
conclusory and lacks supporting
quantification of the alleged expenses
sufficient to substantiate the characterization
of the expenses as “substantial.”
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about NFPA’s finances (before his
term as president) or the alleged causation
between how NFPA purports to develop its
standards and the costs of doing so.
No objection.

No objection.

No objection.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal

45

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.

knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject, particularly as
the testimony assumes, without support, a
definition of “creative” and as to the
particular tasks of large numbers of people,
which goes beyond his personal knowledge.

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.
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.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about the effect of the copyright
notices in NFPA’s standards.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
FRE 402 Relevance. Whether someone
claims copyright ownership of any NFPA
standard is not probative of whether NFPA
owns the copyright to the NFPA standards.

26.
NFPA is not aware of any other person
who claims to have any copyright interest in
NFPA standards.

FRE 403 Prejudice. The witness’s testimony
implies, without supporting proof, that he
should be aware if someone claimed to own
the copyright in an NFPA standard, and
therefore his lack of awareness suggests that
no member has claimed ownership.
FRE 602 Lack of Personal Knowledge. The
witness has not established personal
knowledge as to what NFPA knows, a
question of mixed fact and law concerning
what knowledge may be imputed to an
organization.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge sufficient to testify that NFPA

27.
Members of the public participate in
NFPA’s standards development process by
submitting input, including proposed changes to
46

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.

does not accept public input except under the
specified conditions.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of NFPA’s
purported “standard forms.”

FRE 402 Relevance. Whether someone
claims copyright ownership of any NFPA
standard is not probative of whether NFPA
owns the copyright to the NFPA standards.
FRE 403 Prejudice. The witness’s testimony
implies, without supporting proof, that he
should be aware if someone claimed to own
the copyright in an NFPA standard, and
therefore his lack of awareness suggests that
no member has claimed ownership.
FRE 602 Lack of Personal Knowledge. The
witness has not established personal
knowledge as to what members of the public
understand and intend.
No objection.

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
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,

FRE 602 Lack of Personal Knowledge. The
witness has not established personal
knowledge about what “all members of the
public” do.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 1002 Secondary Evidence. The witness

47

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 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

is testifying about the contents of a writing.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the
issues.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
No objection.

No objection.

FRE 403 Prejudice. The testimony is vague as
to how long the purported language has
existed in this form.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about the historical versions of
this form.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of other
writings, specifically previous versions of the
NFPA Technical Committee Application
form.

48

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 CodeMaking 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.

The reference to paragraph 29 appears to be
an error, as there is no quoted language in that
paragraph.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.

FRE 402 Relevance. The witness’s
understanding is not relevant to any claim in
this litigation.
FRE 1002 Secondary Evidence. To the extent
that the witness’s “express” intention was
manifest in a writing, then the witness is
testifying about the contents of a writing.
FRE 402 Relevance. The witness’s
understanding is not relevant to any claim in
this litigation.

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 FRE 602 Lack of Personal Knowledge. The
the final standard. I have frequently heard other witness has not established any personal
Technical Committee members refer to NFPA’s knowledge about this subject.
copyright ownership of NFPA standards. I have
49

never heard any member of a NFPA Technical
Committee suggest that NFPA does not own the
copyright in NFPA standards or that the
Technical Committee members retain any rights
in their contributions to the standards.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 802 Hearsay. The witness is testifying to
out of court statements by “other Technical
Committee members” for the truth of the
matter asserted.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge whether NFPA staff act “in the
course of their employment,” which is a legal
conclusion. The witness is also testifying to a
general practice, for which he lacks personal
knowledge.

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.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
39.
There is an NFPA staff liaison assigned
FRE 602 Lack of Personal Knowledge. The
to every NFPA Technical Committee. Each staff witness is testifying to a general practice, for
liaison has technical expertise in the appropriate which he lacks personal knowledge.
field, and the staff liaisons provide information
and advice to the Committee during Committee FRE 701 Unqualified Expert Opinion. The
meetings.
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
40.
The staff liaisons also record the
FRE 602 Lack of Personal Knowledge. The
decisions made at the Committee meetings
witness is testifying to a general practice, for
about revisions to NFPA standards. NFPA staff which he lacks personal knowledge.
liaisons work together with the Committees to
craft appropriate wording in the draft of the
FRE 701 Unqualified Expert Opinion. The
standard that accurately captures the intent and
witness has not been qualified as an expert
purpose of Committee decisions. The technical
and therefore cannot testify as to facts beyond
staff are also responsible for ensuring that
the witness’s personal knowledge.
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,
FRE 602 Lack of Personal Knowledge. The
the technical staff work with NFPA editorial
witness is testifying to a general practice, for
staff to finalize the language of the draft
which he lacks personal knowledge.
standard before submitting it for balloting by the
Technical Committees. Every revision and
FRE 701 Unqualified Expert Opinion. The
50

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
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 fourday 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.

witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
No objection.

FRE 403 Prejudice. The testimony is
conclusory and does not describe the alleged
quality control processes or the cost.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about whether technical accuracy
is essential for NFPA’s mission.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
44.
NFPA sells its standards at reasonable
FRE 602 Lack of Personal Knowledge. The
cost and in a variety of formats. For example,
witness has not established any personal
the 2014 edition of the NEC, which is 910 pages knowledge about whether the price for
long, is offered for purchase as a PDF, an
NFPA’s standards is reasonable.
51

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
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-andstandards/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.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this historical status of
NFPA’s “reading room.” The witness also
lacks personal knowledge about whether any
member of the public may access the “reading
room.” For example, people who rely on
screen reader technologies because they have
print disabilities are not able to review the
standards in “read-only” formats.

FRE 403 Prejudice. The testimony is
confusing as to the difference between
“standards” and “codes and standards.” The
testimony confuses the issues of the revenue
earned from standards incorporated into law
by reference and other standards.

FRE 403 Prejudice. The testimony is vague
and confusing as to “development” and
“processes” as well as “current levels”
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal

48.
If NFPA were unable to maintain its
current level of standards development and
52

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.

knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 403 Prejudice. This testimony is
conclusory and lacks any supporting facts.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject. To
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 403 Prejudice. The testimony is vague as
to “years” and conclusory as to the attempts
made to develop other sources of revenue.

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.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject, especially for
the period of time before he was a NFPA
officer.
FRE 402 Relevance. The testimony concerns
the witness’s predicted outcome in a
hypothetical situation where NFPA “lost” all
its copyrights. That is an appeal to
consequences and does not make the fact of
copyrightability more likely to be true or
false. In addition, the testimony concerns the
witness’s predicted outcome of losing
copyright protection to all of NFPA’s
standards, not merely those incorporated by
reference into law.

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.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject. As a
hypothetical, this testimony is not subject to
personal knowledge.
FRE 701 Unqualified Expert Opinion. The
53

witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

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.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

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.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
54.
I understand that Public.Resource.Org
FRE 1002 Secondary Evidence. The witness
converted NFPA standards to html format and
is testifying about the contents of the version
posted the html versions on the internet. The
of the NEC published by NFPA and the
conversion process inevitably resulted in errors. version posted on Public Resource’s website.
For example, I am aware that the html version
This is especially significant here where the
of the 2011 version of the NEC that was posted content of the original 2011 NEC has been
to Public.Resource.Org’s website contains many amended by several errata which appear to
errors. These include many obvious
explain the so-called errors in the witness’s
typographical errors, but they also include errors declaration.
that distort the meaning of the standard. Some
of those errors are:
FRE 602 Lack of Personal Knowledge. The
a. Article 310.10(F) of the 2011 NEC
witness has not established any personal
addresses conductors used in direct-burial
knowledge about purported consequences of
applications, and states: “Cables rated above
the so-called errors.
2000 volts shall be shielded.” This requirement
that high-voltage cables in direct-burial
FRE 701 Unqualified Expert Opinion. The
applications be shielded is important to prevent witness has not been qualified as an expert
damage to the cables and a resulting risk of
and therefore cannot testify as to facts beyond
electrical shock.
the witness’s personal knowledge.
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
54

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 electricdischarge 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 “XRay Installations, Portable” as “X-ray
equipment designed to be hand-carried.” In
Public.Resource.Org’s html version, however,
this definition erroneously refers to “X-ray
equipment designed to be hand-earned.”
f. There are many typographical errors in the
cross-references in Public.Reosurce.Org’s html
version. In order to understand a provision of
the NEC that contains a cross-reference, the user
must be able to identify and refer to the Article
identified in that cross-reference. However,
Public.Resource.Org’s html version contains
many erroneous cross-references, including in
Articles 110.14(B)(1), 310.10(E), 410.140,
430.75, 504.70, 645.10(B), and 680.25(B).
DECLARATION OF KEVIN
PUBLIC.RESOURCE.ORG’S
REINERTSON IN SUPPORT OF
OBJECTIONS
PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
1.
I am the Deputy Fire Marshal for
No objection.
Riverside County Fire, Office of the Fire
Marshal. I previously served, from February,
2006 to May, 2015, as the Division Chief for the
55

California Office of the State Fire Marshal
(OSFM). 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.
I have been personally involved in the
standard setting processes of organizations,
including the National Fire Protection
Association (NFPA) and the International Code
Council (ICC), and served as the OSFM
representative on working groups and other
projects in the development of building and fire
safety codes and reports. I am familiar with the
lengthy, rigorous, and complicated processes
that organizations like the NFPA follow to
develop standards for various subject matters.
3.
The OSFM supports the mission of the
California Department of Forestry and Fire
Protection by focusing on fire prevention. The
OSFM provides support through a wide variety
of fire safety responsibilities including:
regulating buildings in which people live,
congregate, or are confined; by controlling
substances and products which may, in and of
themselves, or by their misuse, cause injuries,
death and destruction by fire; by providing
statewide direction for fire prevention within
wildland areas; by regulating hazardous liquid
pipelines; by reviewing regulations and building
standards; and by providing training and
education in fire protection methods and
responsibilities.
4.
As part of this mission, the OSFM’s
Code Development and Analysis Division
reviews all of California’s regulations relating to
fire and life safety for relevancy, necessity,
conflict, duplication, and/or overlap. The
division also prepares the OSFM’s fire and life
safety regulations and building standards for
review and adoption by the California Building
Standards Commission (CBSC).
5.
In preparing regulations and standards
for review and adoption by the CBSC, the Code
Development and Analysis Division frequently
looks to and incorporates into regulations the
standards prepared by private codes and

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

No objection.

No objection.

No objection.

56

standards setting organizations.
6.
The OSFM, along with other California
state agencies, have incorporated by reference
the following codes and standards developed by
private standard setting organizations: the
International Building Code, the International
Fire Code, the International Residential Code,
the National Electrical Code, the Uniform
Mechanical Code, the Uniform Plumbing Code,
and specific NFPA standards as referenced in
the above codes (e.g., NFPA 13, NFPA 24
California edition, NFPA 72, etc.). The OSFM
follows a triennial code adoption cycle to keep
the California Building Standards Codes
current. Every three years, the OSFM develops
an adoption package to incorporate by reference
the most recent editions of the privately
developed codes and standards along with
amendments that pertain specifically to
California law.
7.
The California Electrical Code
incorporates by reference the National Electrical
Code, which is prepared by the NFPA. A freely
accessible version of the California Electrical
Code is available at: http://www.nfpa.org/codesand-standards/document-informationpages/free-access?mode=view. That link is also
provided on the California Building Standards
Commission website.
8.
Similarly, since 2008, the California Fire
Code has incorporated by reference the
International Fire Code, which is prepared by
the ICC (prior to the International Fire Code, the
California Fire Code was based on the adoption
by reference of the Uniform Fire Code
published jointly by the Western Fire Chiefs
Associations and the International Association
of Building Officials). A freely accessible
version of the California Fire Code is available
at: http://www.ecodes.biz/ecodes support/Free
Resources/2013California/13Fire/13Fire
main.html
9.
During my work with the OSFM on the
code adoption process, I was aware that NFPA
and other private sector standards developers
own the copyright on the standards they

No objection.

No objection.

No objection.

FRE 403 Prejudice. The testimony implies,
without support, that the witness was likely to
hear people at the OSFM express views about
NFPA’s copyright, and therefore that the

57

develop. It was not my view, and nor did I hear
others at the OSFM express the view, that the
OSFM’s code adoptions interfered with the
standards developers’ copyright interest in any
way.

absence of such complaints must have
significance.
FRE 602 Lack of Personal Knowledge.
Copyright ownership is a legal matter and not
the subject of personal knowledge.
No objection.

10.
I was also aware that NFPA makes the
California Electrical Code available to the
public both through a freely accessible version
on the NFPA website and through making it
available for sale in multiple formats.
11.
The OSFM, and more generally the State
of California, utilizes the expertise and
resources of private sector standard developers
such as the NFPA. The standards created by
private standard setting organizations allow
government agencies like the OSFM to draw on
the expertise and resources of private sector
standard developers to serve the public interest.
12.
Incorporating standards by reference
allows the OSFM and the State of California to
develop comprehensive regulatory schemes
covering several subject matter areas quickly
and with limited costs. Moreover, standards
created by standard setting organizations reflect
the collective experience, knowledge, and
judgment of not only government officials, but
also industry representatives, practitioners,
academics, and other experts. The diversity of
viewpoints offered by private standard setting
organizations is particularly useful with respect
to quickly-evolving industries and technologies,
such as those relevant to fire safety and
protection.
13.
If private standard setting organizations
could not develop and create standards, the
OSFM and similar government agencies would
face significant costs if they were to replace the
role of such organizations and create standards
themselves. The expense of coordinating,
updating, testing, educating government,
industry, and the public, and the many other
activities private standard setting organizations
engage in to keep standards up to date and to
comply with their own rigorous procedural
requirements, would be very costly for the

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

58

OSFM, which is currently not funded to handle
such tasks.
14.
Through the efforts of the codes and
standards writing organizations, the OSFM was
able to amend and adopt specific regulations in
the California Fire Code made by ICC to
implement fire safety provisions that reference a
current Hydrogen Technologies Code (NFPA 2)
produced by NFPA. The OSFM did not have the
resources to accomplish the necessary research
and testing to timely effectuate new codes and
standards for such a complex subject matter
such as hydrogen fuel technologies. Without the
development of these codes and standards, the
OSFM would have had to expend significant
resources to produce these items on its own.
Moreover, it would have taken an unknown
length of time to produce such codes and
standards, thereby potentially hampering the
introduction of new technology (hydrogen fuel
cell vehicles). These requirements and standards
are being utilized to build hydrogen fueling
stations.
DECLARATION OF STEPHANIE
REINICHE IN SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
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,

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

No objection.

No objection.

59

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 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

FRE 402 Relevance. The testimony
concerning the use of the standard or the
purpose for which it was developed is not
relevant to the subject matter of this litigation.

No objection.

No objection.

60

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.
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

No objection.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

61

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
No objection.
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 No objection.
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 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
62

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.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 802 Hearsay. The testimony implies the
content of out of court statements made by
members of the project committee.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

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 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

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.

63

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 90.12004, 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:

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.

FRE 403 Prejudice. The testimony states an
opinion about an ultimate issue concerning
the copyright claims (whether the copyright
registrations are valid) from a lay witness.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.

FRE 403 Prejudice. The testimony is
conclusory and fails to set forth the factual
basis for those conclusions.

64

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about public “associations” with
the marks or ASHRAE’s goodwill..
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

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.
Exhibit 6

FRE 1002 Secondary Evidence. The witness
is testifying about the contents of writings.

FRE 1002 Secondary Evidence. This is not a
trademark registration. It is information
provided from the search engine of the
trademark database.
FRE 1002 Secondary Evidence. This is not a
trademark registration. It is information
provided from the search engine of the
trademark database.
FRE 403 Prejudice. The testimony is
conclusory concerning the significance, if
any, of the sales’ annual rental.

Exhibit 7

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.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about purchasers and users of
ASHRAE’s standards generally.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
No objection.

18.
ASHRAE’s pricing and access policies
are generally tailored to afford broad access to
the standards. Prices typically range from $25 to
65

$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.
19.
To further ensure broader access to the
standards, ASHRAE also offers online readonly access to many of its standards-particularly
those standards that have been incorporated into
codes--on the ASHRAE website, available at
https://www.ashrae.org/standards-research -technology/standards--guidelines /other-ashraestandards -referenced-in -code. This portion of
the ASHRAE website allows viewers to read
ASHRAE standards, including the 2004, 2007,
and 2010 versions of Standard 90.1. For certain
standards, including Standard 90.1, users of the
ASHRAE website can even perform keyword
searches within the read-only versions of the
documents.
20.
ASHRAE is unaware of anyone, except
the defendant in this matter, who has
complained that the various channels of access
ASHRAE provides to Standard 90.1 are
insufficient. Additionally, ASHRAE is aware
that Defendant has recently removed ASHRAE
Standards 90.1-2004, 90.1-2007, and 90.1-2010
from its site at the suggestion of the Court in
this matter. Since that occurred, I am not aware
of any complaints ASHRAE has received
regarding a perceived loss of access to these
standards.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

403 Prejudice. The witness has not provided
any foundation to believe that ASHRAE
would be expected to receive complaints
about the lack of its standards if people were
dissatisfied or that ASHRAE tracks
complaints of that nature.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

DECLARATION OF JORDANA RUBEL IN
SUPPORT OF PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

1.
I am over the age of 18 years and am
fully competent to testify to the matters stated in
this Declaration.

No objection.

66

2.
This declaration is based on my personal
knowledge. If called to do so, I would and could
testify to the matters stated herein.
3.
I am an associate at Morgan Lewis &
Bockius LLP, which represents Plaintiff
American Society for Testing and Materials in
this matter.
4.
Attached as Exhibit 1 is a true and
correct copy of the Expert Report of John C.
Jarosz that was served on June 5, 2015.
5.
Attached as Exhibit 2 are true and
correct copies of excerpts of the transcript of the
30(b)(6) deposition of Public.Resource.Org,
Inc., which took place on February 26, 2015.
6.
Attached as Exhibit 3 are true and
correct copies of excerpts of the transcript of the
deposition of Carl Malamud, which took place
on February 27, 2015.
7.
Attached as Exhibit 4 are true and
correct copies of excerpts of the transcript of the
30(b)(6) deposition of Point.B Studio, which
took place on November 13, 2014.
8.
Attached as Exhibit 5 are true and
correct copies of excerpts of the transcript of the
30(b)(6) deposition of HTC Global, Inc., which
took place on November 5, 2014.
9.
Attached as Exhibit 6 are true and
correct copies of excerpts of the transcript of the
30(b)(6) deposition of Christian Dubay on
behalf of the National Fire Protection
Association, Inc., which took place on April 1,
2015.
10.
Attached as Exhibit 7 are true and
correct copies of excerpts of the transcript of the
30(b)(6) deposition of Stephanie Reiniche on
behalf of the American Society for Heating,
Refrigerating and Air Conditioning Engineers,
which took place on March 30, 2015.
11.
Attached as Exhibit 8 are true and
correct copies of excerpts of the transcript of the
30(b)(6) deposition of Steven Comstock on
behalf of the American Society for Heating,
Refrigerating and Air Conditioning Engineers,
which took place on March 5, 2015.
12.
Public.Resource.Org, Inc. ("Defendant")
submitted Freedom of Information Act

No objection.

Public Resource has moved to strike Mr.
Jarosz’s report and incorporates its motion by
reference here.
Public Resource preserves the objections that
its counsel made at the time of deposition.

Public Resource preserves the objections that
its counsel made at the time of deposition.

Public Resource preserves the objections that
its counsel made at the time of deposition.

Public Resource preserves the objections that
its counsel made at the time of deposition.

FRE 802 Hearsay. The deposition transcript
contains out of court statements introduced
for the truth of the matter asserted.

FRE 802 Hearsay. The deposition transcript
contains out of court statements introduced
for the truth of the matter asserted.

FRE 802 Hearsay. The deposition transcript
contains out of court statements introduced
for the truth of the matter asserted.

No objection.

67

("FOIA") requests to a number of executive
agencies requesting copies of standards that are
incorporated by reference in federal regulations.
Attached as Exhibit 9 are true and correct copies
of letters of requests Public.Resource.Org, Inc.
submitted to the U.S. Department of Housing
and Urban Develop and the U.S. Consumer
Product Safety Commission that were
downloaded from Defendant's website.
13.
No agency has provided Defendant with
copies of the standards it has requested through
these FOIA requests. Numerous federal
agencies have explicitly taken the position in
communications with Defendant that
incorporation by reference of materials into
regulations does not destroy the copyright in
those materials. Attached as Exhibit 10 are true
and correct copies of letters to Defendant from
the U.S. Department of Interior, the U.S.
Department of Housing and Urban
Development and the U.S. Consumer Product
Safety Commission that were downloaded from
Defendant's website.
14.
Attached as Exhibit 11 are true and
correct copies of excerpts from Defendant's
responses to interrogatories served by American
Society for Testing and Materials. Defendant
did not serve supplemented responses to these
interrogatories.
15.
Copies of 43 of Defendant's versions of
ASTM's standards at issue, with Defendant's
cover page, were uploaded by "dharlanuctcom"
onto the Scribd platform. See
https://www.scribd.com/dharlanuctcom.
Attached as Exhibit 12 is a true and correct copy
of a printout of a page showing uploads made
by dharlanuctcom to the Scribd platform.
Exhibit 12

FRE 802 Hearsay. Public Resource objects to
the extent the letters are introduced to prove
the truth of the matter asserted.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

FRE 802 Hearsay. This document is an out of
court statement introduced for the truth of the
matter asserted.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

16.
Even after Mr. Malamud was notified of
specific errors in Defendant's versions of
Plaintiffs' standards that were posted on
Defendant's website, Defendant did not correct
those mistakes and maintained versions of the
standards that contained these errors on its
68

website until it removed its copies of Plaintiffs'
standards in November 2015 at the Court's
suggestion.
17.
Attached as Exhibit 13 is a true and
correct copy of Exhibit 55 to the 30(b)(6)
deposition of Public.Resource. Org, Inc.

FRE 1002 Secondary Evidence. Exhibit 13 is
a transcript of a video. The video is the
original record.

18.
Attached as Exhibit 14 is a true and
correct copy of Exhibit 33 to the 30(b)(6)
deposition of Public.Resource.Org, Inc.

FRE 402 Relevance. The statement by Mr.
Malamud about some technical standards
having “strong copyright interests” has no
consequence for determining the action. The
statement is not a binding admission on either
Mr. Malamud or Public Resource.
FRE 402 Relevance. The Exhibit is cited for
Mr. Malamud’s statement that a postdoctoral
research fellow should not violate any terms
of use. This statement is not relevant to any
issue in this case. Moreover, Plaintiffs do not
rely on this exhibit in their brief.
No objection.

19.
Attached as Exhibit 15 is a true and
correct copy of Exhibit 69 to the deposition of
Carl Malamud.

20.
Attached as Exhibit 16 is a true and
correct copy of Exhibit 63 to the deposition of
Carl Malamud.
21.
Attached as Exhibit 17 is a true and
correct copy of Exhibit 2 to the 30(b)(6)
deposition of HTC Global.
22.
Attached as Exhibit 18 is a true and
correct copy of excerpts from the expert
deposition of James Fruchterman, which took
place on July 31, 2015.
23.
Attached as Exhibit 19 is a true and
correct copy of Exhibit 21 to the 30(b)(6)
deposition of Point.B Studio.

No objection.

Public Resource hereby preserves the
objections its counsel made at the time of the
deposition.
FRE 402 Relevance. Plaintiffs rely on this
exhibit to show that Mr. Malamud suspected
his vendor of not truly double-keying the
standards he paid them to double-key. Mr.
Malamud’s suspicion does not tend to make
any fact about HTC’s practices more or less
probable.
No objection.

24.
Attached as Exhibit 20 is a true and
correct copy of Exhibit 57 to the deposition of
Carl Malamud.
25.
Attached as Exhibit 21 is a true and
correct copy of Exhibit 62 to the deposition of
Carl Malamud.
26.
Attached as Exhibit 22 is a true and
correct copy of Exhibit 18 to the 30(b)(6)
deposition of Point.B Studio.

No objection.

No objection.

69

27.
Attached as Exhibit 23 are true and
correct copies of Exhibits 52 and 53 to the
30(b)(6) deposition of Public.Resource.Org, Inc.
28.
Attached as Exhibit 24 is a true and
correct copy of Exhibit 75 to the deposition of
Carl Malamud.
29.
Attached as Exhibit 25 are true and
correct copies of documents Bates stamped
PR0_00082474, PR0_00082837, and
PR0_00083112, which were produced by
Public.Resource.Org, Inc.
30.
Attached as Exhibit 26 is a true and
correct copy of a document Bates stamped
PR0_00101955-57, which was produced by
Public.Resource.Org, Inc.
31.
Attached as Exhibit 27 is a true and
correct copy of Exhibit 38 to the 30(b)(6)
deposition of Public.Resource.Org, Inc.
32.
Attached as Exhibit 28 is a true and
correct copy of Exhibit 40 to the 30(b)(6)
deposition of Public.Resource. Org, Inc.
33.
Attached as Exhibit 29 is a true and
correct copy of Exhibit 64 to the deposition of
Carl Malamud.
34.
Attached as Exhibit 30 is a true and
correct copy of Exhibit 58 to the deposition of
Carl Malamud.
35.
Attached as Exhibit 31 is a true and
correct copy of Exhibit 59 to the deposition of
Carl Malamud.
36.
Attached as Exhibit 32 is a true and
correct copy of a document I downloaded from
the law.resource.org website on November 19,
2015.
37.
Attached as Exhibit 33 is a true and
correct copy of Exhibit 77 to the deposition of
Carl Malamud.
38.
Attached as Exhibit 34 is a true and
correct copy of Exhibit 65 to the deposition of
Carl Malamud.
39.
Attached as Exhibit 35 is a true and
correct copy of Exhibit 27 to the 30(b)(6)
deposition of Point.B Studio.
40.
Attached as Exhibit 36 is a true and
correct copy of Exhibit 73 to the deposition of
Carl Malamud.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

No objection.

70

41.
Attached as Exhibit 37 is a true and
correct copy of Exhibit 49 to the 30(b)(6)
deposition of Public.Resource. Org, Inc.
42.
Attached as Exhibit 38 is a true and
correct copy of Exhibit 43 to the 30(b)(6)
deposition of Public.Resource.Org, Inc.
43.
Attached as Exhibit 39 is a true and
correct copy of Exhibit 51 to the 30(b)(6)
deposition of Public.Resource.Org, Inc.
44.
Attached as Exhibit 40 is a true and
correct copy of Exhibit 44 to the 30(b)(6)
deposition of Public.Resource.Org, Inc.
45.
Attached as Exhibit 41 is a true and
correct copy of Exhibit 54 to the 30(b)(6)
deposition of Public.Resource.Org, Inc.
46.
Attached as Exhibit 42 is a true and
correct copy of Exhibit 56 to the 30(b)(6)
deposition of Public.Resource.Org, Inc.
47.
Attached as Exhibit 43 is a true and
correct copy of Exhibit 76 to the deposition of
Carl Malamud.

FRE 402 Relevance. The exhibit is an email
between Carl Malamud and Marshall Rose.
Plaintiffs rely on this email to claim that Mr.
Malamud “can’t win” a discussion about the
SDOs business model. That is not what the
email says. Mr. Malamud is discussing his
public relations strategy. The statement is not
relevant to the economics of operating a
standards developing organization.
FRE 403 Prejudice. Plaintiffs misrepresent
the statements in this email in their Statement
of Material Facts ¶ 256. This exhibit, which is
about Mr. Malamud’s public relations
strategy, is confusing as to the issue of the
effect of Public Resource’s activities on the
market for the incorporated standards at issue.
No Objection.

48.
Attached as Exhibit 44 is a true and
correct copy of Exhibit 70 to the deposition of
Carl Malamud.
49.
Attached as Exhibit 45 are true and
correct copies of excerpts of the transcript of the
30(b)(6) deposition of Bruce Mullen on behalf
of on the American Society for Heating,
Refrigerating and Air Conditioning Engineers,
which took place on March 31, 2015.

Public Resource hereby preserves the
objections that its counsel made at the time of
the deposition.

71

DECLARATION OF JAMES THOMAS IN
SUPPORT OF PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
1.
I am over the age of 18 years and am

PUBLIC.RESOURCE.ORG’S
OBJECTIONS
No objection.

fully competent to testify to the matters stated in
this Declaration.
2.
This declaration is based on my personal
knowledge. If called to do so, I would and could
testify to the matters stated herein.
3.
I am the President of ASTM
International ("ASTM"), which is a not-for
profit organization headquartered in
Pennsylvania. I have worked at ASTM since
1972.
4.
ASTM was founded in 1898 when a
group of railroad experts and engineers got
together to respond to technical issues that had
been identified in the early days of the railroad
industry. The very first ASTM standard,
standard A1, provided uniform specifications
for carbon steel rails. This made it possible for
manufacturers from different parts of the country
to produce uniform rails that could be used in a
national railroad.
5.
ASTM's activities have expanded over the
past one hundred years and ASTM now develops
standards that are used in a wide range of fields,
including consumer products, iron and steel
products, rubber, paints, plastics, textiles, medical
services and devices, electronics, construction,
energy, water, and petroleum products.

No objection.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
No objection.

6.
The term "standards" refers to a variety of
technical works, including works that contain
product specifications, installation methods,
methods for manufacturing or testing materials,
recommended practices to ensure safety or
efficiency, or other guidelines or best practices.
7.
An organization that develops standards is
a "standards development organization" or
"SDO."
8.
In the United States, standards are
typically developed by private organizations that
have technical expertise in the relevant area.

No objection.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert

72

and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
9.
Standards are usually highly technical and
specialized, and are written for audiences that
have particular expertise in the relevant fields.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

10.
Standards are used by industry actors as a
form of self-regulation and as a source of best
practices.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

11.
ASTM's mission is to be recognized as the
premier developer and provider of voluntary
consensus standards, related technical information
and services that promote public health and safety,
support the protection and sustainability of the
environment, and improve the overall quality of
life; contribute to the reliability of materials,
products, systems and services; and facilitate
international, regional, and national commerce.
12.
ASTM develops voluntary consensus

No objection.

No objection.

standards and is accredited by the American
National Standards Institute.
13.
ASTM standards are developed based on
public demands, industry needs, and public
safety concerns and advancements in
technology. They address a technical issue or
problem identified by a group of people in the
relevant sector that can be addressed with a
standard-based solution.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

ASTM's standards are used by scientists
and engineers in their laboratories, by architects
and designers in their plans, and by industry in
their business contracts.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

14.

FRE 701 Unqualified Expert Opinion. The
73

witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
On occasion, government agencies
incorporate ASTM's standards by reference into
regulations. Approximately 10 percent of
ASTM's standards are incorporated by reference
into federal regulations.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

ASTM standards are not developed for
the purpose of being incorporated into
regulations.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

15.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

16.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
When it develops a new standard,
ASTM does not know whether the standard will
be incorporated by reference into government
regulations.
18.
ASTM does not lobby government
agencies to reference its standards.

No objection.

17.

FRE 403 Prejudice. This testimony is so
vague as to be confusing on this issue,
because the witness provides no explanation
for what he means by “lobby.”
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

Membership in ASTM costs $75 per
year for an individual member and $400 per
year for an organizational member. Each
member receives one free volume of the Annual
Book of ASTM Standards as well as other
membership benefits.

No objection.

19.

74

ASTM has kept its membership fees at
$75 for over fifteen years to permit the widest
participation possible in the standard
development process, so as to prevent its
standards from being biased toward the interests
of only stakeholders who can afford to pay
higher membership fees. ASTM's membership
fees have never exceeded $75.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

21.
ASTM has over 140 technical committees
made up of over 23,000 technical members
representing producers, users, consumers,
government, and academia from more than 150
countries.
22.
Each technical committee contains a
balanced voting membership, including industry
representatives, government representatives,
consumers, people with particular expertise in the
subject matter, and others.
23.
Throughout the standards development
process, ASTM and its committees make it clear
that all participants' contributions to any particular
standard will be merged into a unitary standard.
24.
ASTM's standard development process
begins with an individual registering a "work
item," which describes the idea for a new standard
that will be published and owned by ASTM, or
moving to draft a new standard at a subcommittee
meeting.
25.
The chair of the relevant subcommittee
then reviews the work item request and considers,
among other things, whether there is a need for the
proposed standard and whether there will be
sufficient interest from a balanced group
necessary to develop the standard. If the chair
approves the work item or if the subcommittee
approves the motion for a new standard, a task
group will develop a draft of the standard.

No objection.

26.
The technical contact is the leader of the
task group.
27.
The draft standard is then edited by an
ASTM staff member, who also adds certain
language and components that are required by the
ASTM form and style guide.

No objection.

20.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

No objection.

No objection.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond

75

the witness’s personal knowledge.
28.
The draft standard is then voted on by first
the entire subcommittee, followed by the entire
main committee and the complete Society, and
reviewed by the Committee on Standards to
ensure that all procedures were followed.
29.
Technical committees make decisions

No objection.

No objection.

about the appropriate content of the standards,
including the relevant measurements, values,
descriptions, and other specifications, as well as
the language with which to express these
standards.
30.
There are other standard developing
organizations that create standards that cover the
same or similar subject matter as the standards
developed by ASTM, including, for example,
the International Organization for Standards,
SAE International, and the American
Association of State Highway and
Transportation Officials. The content and
language of these SDO's standards differs from
the content of the corresponding ASTM
standards.
31.
At each level of balloting, voters can
suggest edits or provide comments. Each
negative vote must be addressed to determine if
it is persuasive. At least 66.7% of the voting
subcommittee members and 90% of the voting
main committee members must approve all
standard actions, with not less than 60% of the
voting members returning ballots.
32.
ASTM has developed over 12,000
standards.
33.
All ASTM standards are required to be
reviewed on a 5 year schedule and each standard
is either reapproved, revised or withdrawn. It
takes approximately 8-12 months to complete a
revision cycle.
34.
ASTM incurs substantial costs for its
standards development infrastructure and
delivery platforms, including the resources it
provides to encourage collaboration among
members; expenses relating to technical
committee meetings and balloting as the
standards make their way through the

No objection.

No objection.

No objection.
No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond

76

development process; and editing, producing,
distributing and promoting the completed
standards.
35.
In 2014, ASTM spent more than $9
million to cover the cost of technical committee
operations and $19 million for publication of
copyrighted materials.
36.
ASTM develops its standards with the
understanding that the standards will be
protected by copyright, which provides ASTM
with the exclusive right to sell, reproduce,
display and create derivative works based on the
standards.

the witness’s personal knowledge.

ASTM depends on the revenue it
generates from sales of its copyrighted materials
to conduct its operations and requires that
revenue to be in a position to continue to
develop its standards in the manner in which it
currently operates.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

ASTM generates over two-thirds of its
revenue from the sale of copyrighted materials.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

37.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

38.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
ASTM has devoted substantial efforts to
develop and promote the sale of products and
services that are related or complementary to
ASTM' s standards. ASTM does not generate
substantial income from these goods and
services.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

ASTM generated a net loss of$3 million
in 2014 for non-standards related products and
services.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

39.

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

40.

77

FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
ASTM's copyrighted materials give
ASTM a competitive advantage in selling
ancillary or complementary products and
services. ASTM can include copies of its
standards as part of a package it provides to
customers in training or certification programs.
42.
ASTM does not consider the likelihood
and extent to which a standard will generate
revenues when deciding whether to develop or
maintain a standard.
43.
Sales of a limited number of standards
drive the bulk of ASTM’s revenues. Because of
their relevance to smaller market audiences,
many ASTM standards generate very limited
revenues, which do not cover the costs of the
development process. The sales of the bestselling standards effectively subsidize the
creation and maintenance of the remaining
standards.
44.
ASTM publishes its standards in hard
copy and digital formats, including pdfs, html and
xml formats, which can be purchased from ASTM
or its authorized resellers.
45.
When purchased individually, the price
per ASTM standard is $38-$89.
46.
The price of each ASTM new individual
standard is calculated based on the number of
pages in the standard.
47.
ASTM does not seek to obtain higher
prices for standards that have been incorporated
by reference.
48.
ASTM provides copies of its standards at
a reduced cost or at no cost when it is informed
that the regular cost is a burden to the requester.

No objection.

41.

No objection.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.
No objection.

No objection.
No objection.
No objection.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject. It appears to be
a generalization based on the testimony that
appears in ¶ 49.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

78

49.
For example, ASTM has a “10 Standards
for Students” program through which professors
can select any 10 ASTM standards and students
can purchase a packet containing all 10 standards
for just $10 per student.
50.
ASTM provides the public with free, readonly access to all ASTM standards that ASTM is
aware have been incorporated by reference into
federal regulations.
51.
ASTM identifies standards that have been
incorporated by reference into federal regulations
from the database created by the National Institute
of Standards and Technology.
52.
ASTM publicizes the free read-only
access provided on its website.
53.
During the notice and comment period
regarding proposed federal regulations, upon
request by the relevant federal agency, ASTM
provides free, read-only access to standards that
are incorporated by reference in proposed
regulations.
54.
ASTM has not received any complaints
about lack of accessibility of its standards other
than from Defendant.

No objection.

No objection.

No objection.

No objection.
No objection.

403 Prejudice. The witness has not provided
any foundation to believe that ASTM would
be expected to receive complaints about the
lack of its standards if people were
dissatisfied or that ASTM tracks complaints
of that nature.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701 Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts beyond
the witness’s personal knowledge.

Defendant Public Resource respectfully requests that the Court sustain these evidentiary
objections at the hearing on Plaintiffs’ Motion for Summary Judgmant and for a Permanent
Injunction.

79

Respectfully submitted,

Dated: December 21, 2015

/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Kathleen Lu (pro hac vice)
[e-mail]
Matthew B. Becker (pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
Corynne McSherry (pro hac vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

80