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)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs-Counterdefendants,
v.

Case No. 1:13-cv-01215-TSC-DAR
DECLARATION OF MATTHEW
BECKER IN SUPPORT OF
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
MOTION FOR SUMMARY
JUDGMENT AND OPPOSITION TO
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND
PERMANENT INJUNCTION
Action Filed: August 6, 2013

PUBLIC.RESOURCE.ORG, INC.,
Defendant-Counterclaimant.

REDACTED VERSION
I, Matthew Becker, declare pursuant to 28 U.S.C. § 1746 as follows:
1.

I am an attorney admitted to practice in the District of Columbia and am an

associate with the law firm of Fenwick & West LLP, counsel of record for
Defendant/Counterclaimant Plaintiff Public.Resource.Org, Inc. Except where otherwise
indicated, I have personal knowledge of the facts herein and could and would testify competently
hereto.
2.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 4 is a

true and correct copy of excerpts of Donald Bliss’s deposition, as the corporate designee for
NFPA, dated March 3, 2015.
3.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 5 is a

1

true and correct copy of excerpts of Steven Comstock’s deposition, as the corporate designee for
ASHRAE, dated March 5, 2015.
4.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 6 is a

true and correct copy of excerpts of Christian Dubay’s deposition, as the corporate designee of
NFPA, dated April 1, 2015.
5.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 7 is a

true and correct copy of excerpts of James Fruchterman’s deposition, Public Resource’s
designated expert witness, dated July 31, 2015.
6.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 8 is a

true and correct copy of excerpts of Jeffrey Grove’s deposition, as the corporate designee for
ASTM, dated March 4, 2015.
7.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 9 is a

true and correct copy of excerpts of John Jarosz’s deposition, Plaintiffs’ designated expert
witness, dated August 27, 2015.
8.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 10 is a

true and correct copy of excerpts of Rebecca Malamud’s deposition in this action, dated
November 13, 2014.
9.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 11 is a

true and correct copy of excerpts of Bruce Mullen’s deposition, as the corporate designee of
NFPA, dated March 31, 2015.
10.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 12 is a

true and correct copy of excerpts of Stephanie Reiniche’s deposition, as the corporate designee
for ASHRAE, dated March 30, 2015.

2

11.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 13 is a

true and correct copy of excerpts of Daniel Smith’s deposition, as the corporate designee of
ASTM, dated July 24, 2015.
12.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 14 are

true and correct copies of ASTM’s copyright registrations for the incorporated laws at issue,
which were marked as Exhibit 1291 to the deposition of Daniel Smith and numbered
ASTM000001–168.
13.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 15 are

true and correct copies of NFPA’s copyright registrations for the incorporated laws at issue,
which were marked as NFPA-PR0020354–392 and NFPA-PR0038493 in NFPA’s document
production.
14.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 16 are

true and correct copies of ASHRAE’s copyright registrations for the incorporated laws at issue,
which were marked as Exhibits 1175 and 1176 to the deposition of Stephanie Reiniche and
numbered ASHRAE0001590–597.
15.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 17 is a

true and correct copy of an email from Carl Malamud to Deborah Hunt, dated June 30, 2009,
which was marked as Exhibit 33 to the deposition of Carl Malamud.
16.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 18 is a

true and correct copy of a document entitled “Public Safety Standards,” which was marked as
Exhibit 38 to the deposition of Carl Malamud.
17.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 19 is a

true and correct copy of an email to Carl Malamud, dated October 1, 2013, which was marked as

3

Exhibit 57 to the deposition of Carl Malamud.
18.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 20 is a

true and correct copy of an email to Carl Malamud, dated October 25, 2013, which was marked
as Exhibit 58 to the deposition of Carl Malamud.
19.

20.

.
21.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 23 is a

true and correct copy of a document entitled “ASTM Standards Regulations & Trade, Power
Point,” which was marked as Exhibit 1032 to the deposition of Jeffrey Grove.
22.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 24 is a

true and correct copy of an email from Sarah Petre to Jeff Grove, et. al., dated October 4, 2012,
which was marked as Exhibit 1071 to the deposition of Jeffrey Grove.
23.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 25 is a

true and correct copy of a document entitled “Form and Style for ASTM Standards,” which was
marked as Exhibit 1072 to the deposition of Jeffrey Grove.
24.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 26 is a

true and correct copy of a document entitled, “Incorporation by Reference Public Workshop,”
dated July 13, 2012, which was marked as Exhibit 1073 to the deposition of Jeffrey Grove.
25.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 27 is a

4

true and correct copy of a document which was marked as Exhibit 1134 to the deposition of
Stephanie Reiniche.
26.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 28 is a

true and correct copy of a document which was marked as Exhibit 1135 to the deposition of
Stephanie Reiniche.
27.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 29 is a

true and correct copy of a document which was marked as Exhibit 1136 to the deposition of
Stephanie Reiniche.
28.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 30 is a

true and correct copy of a document which was marked as Exhibit 1137 to the deposition of
Stephanie Reiniche.
29.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 31 is a

true and correct copy of a document which was marked as Exhibit 1138 to the deposition of
Stephanie Reiniche.
30.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 32 is a

true and correct copy of a document which was marked as Exhibit 1139 to the deposition of
Stephanie Reiniche.
31.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 33 is a

true and correct copy of a document which was marked as Exhibit 1140 to the deposition of
Stephanie Reiniche.
32.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 34 is a

true and correct copy of a document which was marked as Exhibit 1141 to the deposition of
Stephanie Reiniche.

5

33.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 35 is a

true and correct copy of a document which was marked as Exhibit 1142 to the deposition of
Stephanie Reiniche.
34.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 36 is a

true and correct copy of a document which was marked as Exhibit 1143 to the deposition of
Stephanie Reiniche.
35.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 37 is a

true and correct copy of a document which was marked as Exhibit 1144 to the deposition of
Stephanie Reiniche.
36.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 38 is a

true and correct copy of a document which was marked as Exhibit 1145 to the deposition of
Stephanie Reiniche.
37.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 39 is a

true and correct copy of a document which was marked as Exhibit 1146 to the deposition of
Stephanie Reiniche.
38.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 40 is a

true and correct copy of a document which was marked as Exhibit 1147 to the deposition of
Stephanie Reiniche.
39.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 41 is a

true and correct copy of a document which was marked as Exhibit 1148 to the deposition of
Stephanie Reiniche.
40.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 42 is a

true and correct copy of a document which was marked as Exhibit 1149 to the deposition of

6

Stephanie Reiniche.
41.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 43 is a

true and correct copy of a document which was marked as Exhibit 1150 to the deposition of
Stephanie Reiniche.
42.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 44 is a

true and correct copy of a document entitled “Application for Project Committee Organizational
Representative Membership,” which was marked as Exhibit 1151 to the deposition of Stephanie
Reiniche.
43.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 45 is a

true and correct copy of a document entitled “ASHRAE Standard/Guideline Project Committee
Application for Individual Membership,” which was marked as Exhibit 1152 to the deposition of
Stephanie Reiniche.
44.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 46 is a

true and correct copy of a document capturing ASHRAE website electronic signature copyright
release information which was marked as Exhibit 1153 to the deposition of Stephanie Reiniche.
45.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 47 is a

true and correct copy of a document which was marked as Exhibit 1154 to the deposition of
Stephanie Reiniche.
46.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 48 is a

true and correct copy of a document entitled “Application for Membership on ASHRAE
Standard or Guideline Project Committee,” which was marked as Exhibit 1155 to the deposition
of Stephanie Reiniche.
47.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 49 is a

7

Christian Dubay.
54.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 56 is a

true and correct copy of a document which was marked as Exhibit 1235 to the deposition of
Christian Dubay.
55.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 57 is a

true and correct copy of a document which was marked as Exhibit 1236 to the deposition of
Christian Dubay.
56.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 58 is a

true and correct copy of a document which was marked as Exhibit 1237 to the deposition of
Christian Dubay.
57.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 59 is a

true and correct copy of a document which was marked as Exhibit 1238 to the deposition of
Christian Dubay.
58.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 60 is a

true and correct copy of a document which was marked as Exhibit 1239 to the deposition of
Christian Dubay.
59.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 61 is a

true and correct copy of a document which was marked as Exhibit 1240 to the deposition of
Christian Dubay.
60.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 62 is a

true and correct copy of a document which was marked as Exhibit 1241 to the deposition of
Christian Dubay.
61.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 63 is a

9

true and correct copy of a document which was marked as Exhibit 1243 to the deposition of
Christian Dubay.
62.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 64 is a

true and correct copy of a document which was marked as Exhibit 1244 to the deposition of
Christian Dubay.
63.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 65 is a

true and correct copy of a document which was marked as Exhibit 1245 to the deposition of
Christian Dubay.
64.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 66 is a

true and correct copy of a document which was marked as Exhibit 1246 to the deposition of
Christian Dubay.
65.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 67 is a

true and correct copy of a document which was marked as Exhibit 1248 to the deposition of
Christian Dubay.
66.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 68 is a

true and correct copy of a document which was marked as Exhibit 1253 to the deposition of
Christian Dubay.
67.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 69 is a

true and correct copy of a document which was marked as Exhibit 1254 to the deposition of
Christian Dubay.
68.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 70 is a

true and correct copy of a document which was marked as Exhibit 1255 to the deposition of
Christian Dubay.

10

95.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 97 is a

chart created by Public Resource that shows which of the ASTM standards at issue have been
superseded by a newer version of the same standard. The chart is based on the standards
identified in Plaintiffs’ complaint and information available on ASTM’s online catalog. The
source documents for this chart are available to ASTM.
96.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 98 is a

chart created by Public Resource that shows which of the NFPA standards at issue have been
superseded by a newer version of the same standard. The chart is based on the standards
identified in Plaintiffs’ complaint and information available on NFPA’s online catalog. The
source documents for this chart are available to NFPA.
97.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 99 is a

chart created by Public Resource that shows which of the ASHRAE standards at issue have been
superseded by a newer version of the same standard. The chart is based on the standards
identified in Plaintiffs’ complaint and information available on ASHRAE’s online catalog. The
source documents for this chart are available to ASHRAE.
98.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 100 is a

true and correct copy of the webpage appearing at http://www.astm.org/ABOUT/missionstatement.html.
99.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 101 is a

true and correct copy of the webpage appearing at http://www.nfpa.org/about-nfpa.
100.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 102 is a

true and correct copy of the webpage appearing at https://www.ashrae.org/about-ashrae.
101.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 103 is a

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true and correct copy of a document titled “ASHRAE Guide to Writing Standards in Code
Intended Language,” which is available on ASHRAE’s website.
102.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 104 is a

true and correct copy of the webpage entitled “Capitol Hill Event to Feature Policy and Business
Leader Insights on Voluntary Standards and Conformance” appearing at
http://www.ansi.org/news_publications/news_story.aspx?menuid=7&articleid=920dcf8b-8eda45ab-9eae-ec0bec2edf27.
103.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 105 is a

true and correct copy of a Resolution submitted to the ABA House of Delegates on November
17, 2015 by the ABA Section of Administrative Law and Regulatory Practice.
104.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 106 is a

true and correct copy of a document entitled Public Policy & Corporate Outreach, dated
September 2015.
105.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 107 is a

true and correct copy of a document produced by Plaintiffs as ASTM095635-641.
106.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 108 is a

true and correct copy of a document produced by Plaintiffs as ASTM095718-720.
107.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 109 is a

true and correct copy of a document produced by Plaintiffs as ASTM095747–748.
108.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 110 is a

true and correct copy of a document produced by Plaintiffs as ASTM091055.
109.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 111 is a

true and correct copy of a document produced by Plaintiffs as ASTM096390.

16

128.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 130 is a

true and correct copy of a document produced by Plaintiffs as ASTM095359-362.
129.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 131 is a

true and correct copy of a document produced by Plaintiff’s as ASTM095373–376.
130.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 132 is a

true and correct copy of a document entitled “ASTM Reading Library Registration” Screen, Page
1.
131.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 133 is a

true and correct copy of a document “ASTM Reading Library Registration” Screen, Page 2.
132.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 134 is a

true and correct copy of a document entitled “ASTM – International Reading Room” disclaimer
information.
133.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 135 is a

true and correct copy of a document of ASTM Reading Room terms.
134.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 136 is a

true and correct copy of a document entitled “ASTM License Agreement,” displaying a portion
of the text from Exhibit 135, as it appears to users who visit the website.
135.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 137 is a

true and correct copy of a document of NFPA’s “Free Access” Terms.
136.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 138 is a

true and correct copy of a document entitled “National Fire Protection Association Sign In.”

19

147.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 149 is a

true and correct copy of the online ASTM Membership Renewal as produced by ASTM as
ASTM001792-800.
148.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 150 is a

true and correct copy of a 2010 email exchange between the president of NFPA and the President
of ASTM concerning Public Resource, produced by Plaintiffs as NFPA-PR0022674-675.
149.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 151 is a

true and correct copy of ASTM D1217-93 (Reapproved 1998), as it existed on the Public
Resource website, as produced by Plaintiffs as PRO_00170513-517.
150.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 152 is a

true and correct copy of a document comprised of website images from Internet Archive
Wayback Machine for www.astm.org, captured on December 21, 2015.
151.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 153 is a

true and correct copy of a email document from Jeff Grove to “ASTM Senior Staff,” re: Tee-up
for Retreat Discussion on Public Access to Standards, produced at ASTM101778-779, (Exhibit
1036 to the deposition of Jeffrey Grove).
152.

Attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 154 is a

true and correct copy of NFPA website images, produced at NFPA-PR0038497-507, (Exhibit
1230 to the deposition of Christian Dubay).
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 21st day of December, 2015 at San Francisco, CA.

/s/ Matthew Becker
Matthew Becker

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