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

Filing 124

MOTION to Strike #118 MOTION for Summary Judgment and Permanent Injunction MOTION for Permanent Injunction by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Memorandum in Support [Redacted], #2 Declaration of Kathleen Lu, #3 Exhibit 1 to Lu Declaration, #4 Exhibit 2 to Lu Declaration, #5 Exhibit 3 to Lu Declaration, #6 Exhibit 4 [Redacted] to Lu Declaration, #7 Exhibit 5 to Lu Declaration, #8 Exhibit 6 [Redacted] to Lu Declaration, #9 Exhibit 7 to Lu Declaration, #10 Exhibit 8 [Redacted] to Lu Declaration, #11 Text of Proposed Order)(Bridges, Andrew)

EXHIBIT 1

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF COLUMBIA

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AMERICAN SOCIETY FOR

: NO.

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TESTING AND MATERIALS

: 1:13-cv-01215-TSC-

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d/b/a ASTM

: DAR

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INTERNATIONAL;

:

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NATIONAL FIRE

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PROTECTION

:

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ASSOCIATION, INC.;

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and AMERICAN SOCIETY

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OF HEATING,

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REFRIGERATION, AND

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AIR CONDITIONING

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ENGINEERS,

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Plaintiffs

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vs.

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PUBLIC.RESOURCE.ORG,

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INC.,

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Defendant

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Videotaped deposition of JOHN C.
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JAROSZ taken at the law offices of Veritext

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Legal Solutions, 1250 I Street NW,

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Washington, DC, commencing at 10:09 a.m.

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THURSDAY, AUGUST 27, 2015, before Debbie

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Leonard, Registered Diplomate Reporter,

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Certified Realtime Reporter.

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PAGES 1 - 260
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it.
Objection to form. You're
asking him to recall, without having
all the materials in front of him?
MR. BRIDGES: Yeah.
MR. FEE: Okay.
THE WITNESS: It's all laid out
in my report, and the sources are
provided in my report. I've not
memorized all those.
BY MR. BRIDGES:
Q. But I don't think your report
refers to upside-down materials, does it?
A. I don't recall for sure, but I
thought some of the documents that I cited
make reference to those materials. I'm not
sure that I cited the, for instance,
upside-down materials, but I think I have
discussions about that phenomenon.
Q. With whom?
A. In written materials that I've
cited.
Q. Have you had oral discussions
about what you have referred to as that
phenomenon?

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beyond the document production to verify that
information.
Q. But you don't recall seeing any
defective materials yourself, correct?
A. That's correct. I do not.
Q. You just relied upon the word
of others, correct?
MR. FEE: Objection. Vague.
Mischaracterizes his testimony.
THE WITNESS: I relied upon
written documents I saw and
conversations that I had.
BY MR. BRIDGES:
Q. What written documents did you
see that discussed these issues?
MR. FEE: Objection. Asked and
answered.
THE WITNESS: And I'm sorry. I
can't point you to the particular
ones. Perhaps, through the course of
the day, my memory will be refreshed
on that.
BY MR. BRIDGES:
Q. If you relied upon those
written documents, would you have cited to

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A. Yes.
Q. With whom?
A. Counsel here.
Q. With anybody else?
A. I don't think so. It's
possible, but I'm not recalling anything
else.
Q. And when you say discussions
with "counsel here," you're referring to the
counsel at the table here today at the
deposition?
A. Correct.
And we should add to that
Jordana Rubel, who's been a person that I've
had conversations with over the last several
months.
Q. What did you do to verify any
of the statements to you from counsel about
these facts you've referred to about the
materials that the defendant has
disseminated?
A. I don't think I did separate
verification. I may have seen some documents
that provide or provided confirmation of that
fact, but I don't recall separately going out

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those written documents in your report?
A. Perhaps.
Q. Why do you say "perhaps"?
A. I can't say with absolute
certainty what I do. But often, if something
is a direct support for a factual
observation, I will often cite that source,
but not always.
Q. What previous -- strike that.
What training or education have
you ever received with respect to standards
development organizations?
MR. FEE: Objection to form.
THE WITNESS: I don't recall if
I've had a course in standard
development. Probably it has been
part of some of the economics courses
that I've taken over the years.
In my profession and the work
that I've done in the last 30 years,
I've had occasion to look at and
evaluate standards organizations and
the output from those organizations.
So it is among the topics that
I've investigated in the course of my

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consulting career.
BY MR. BRIDGES:
Q. In what context?
A. There have been several matters
I've had, litigations, that have involved
standard setting organizations and the
outputs from those organizations.
Q. What organizations?
A. Well, some that come to mind
are ETSI, IEEE, the Blu-ray Association,
MPEG, MPEG L.A., the Philips 6C and Philips
3C organizations. Those are among the ones
that come to mind.
Q. And what types of litigation
did your work relating to those standard
setting organizations involve?
MR. FEE: Objection to form.
THE WITNESS: It was almost all
intellectual property litigation, with
probably the bulk of the analyses
undertaken with regard to patent
rights.
BY MR. BRIDGES:
Q. Do you recall -A. I guess I should -- there were

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standards development organization that
you've worked on?
A. Again, I'd have to go back and
look at my records. I can't right now recite
any, but there very well could be one or
more.
Q. Did you review any of your work
in -- from earlier copyright cases involving
standards development organizations in
connection with your work in this case?
A. Not to the best of my memory,
no.
Q. What background do you have in
the creation of standards by standard
development organizations?
MR. FEE: Objection to form.
THE WITNESS: In the context of
some of my consulting assignments, I
have examined processes undertaken by
SDOs.
BY MR. BRIDGES:
Q. Anything else?
A. Nothing else comes to mind.
I've certainly looked at the output
associated with those processes, but there's

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probably some breach of contract matters as
well.
Q. Did you work on any matters
involving copyright law where you became
familiar with the work and outputs of
standards setting organizations before this
case?
A. Probably, but I cannot say that
with absolute certainty. I've been involved
in several matters over a course of many
years.
Q. Can you name any copyright
matter involving a standards development
organization that you recall?
A. Not now, without going back and
looking at my records.
Q. Would they be listed in the
cases attached to Exhibit 1?
A. That would summarize some of my
records. The cases that are embodied in my
tab 1 are those that led to deposition or
trial testimony. I've been involved in many
matters beyond those.
Q. But sitting here, you cannot
recall any copyright case involving a

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nothing else that comes to mind.
Q. What processes undertaken by
standards development organizations did you
examine?
MR. FEE: Objection. Are you
asking prior to the report still?
MR. BRIDGES: Yes.
MR. FEE: Okay.
THE WITNESS: I'm not quite -MR. BRIDGES: Or other than in
this case.
MR. FEE: Okay.
THE WITNESS: I'm not quite
sure what you're asking. I've seen
discussion of the some of the
processes of various organizations.
I'm not -- I'm not quite sure what
you're asking. Perhaps you could ask
it somewhat differently.
BY MR. BRIDGES:
Q. Well, no. You said, quote, "I
have examined processes undertaken by SDOs."
So my question is, what
processes undertaken by standards development
organizations did you examine?

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A. It sounds like the same
question to me.
Q. Specifically, what processes
did you examine?
A. That still sounds like the same
question, but let me try to answer it by
saying I've looked, for instance, at the
mechanisms that ETSI undertook in developing
standards. So I am familiar generally with
the processes that it follows. Similarly
with regard to other standard setting
organizations.
Q. What other standard setting
organizations?
A. Well, I think I identified
those a few moments ago. Do you want me to
repeat those?
Q. Well, if -- are you saying
that, for all of those organizations, you
examined their processes?
A. In some dimension, probably for
most of the organizations, I had at least
some knowledge of the process. I can't say
that I investigated in depth all of the
processes for all of the organizations that

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manufacturers only. Others include a wider
array of companies.
In all instances, though, the
companies are trying to -- the standards
setting organizations are trying to develop
at least some form of consensus -- sometimes
it's very broad consensus; sometimes it's
more narrow consensus -- about what would be
good for that standards setting organization.
Sometimes the SSOs are
interested in what's best for the
manufacturers and the ability for them to
supply in an interoperable environment. In
some cases, the SSOs are very alert to the
needs of consumers and users of products and
services that comply with standards.
Q. You've distinguished between
standards setting organizations and standard
development organizations. What is the
distinction that you -- that you identify
between the two?
A. I think I said I didn't know if
there is for sure a distinction, but I think
an SSO is perhaps a broader concept than an
SDO, but I might be wrong on that.

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have been involved in my consulting
assignments that are standards oriented.
Q. What do you recall about your
investigation of the processes by which
standards development organizations create
their standards?
A. I should say I -- SDO is
probably not the right term to use. I should
probably say standards setting organizations.
There may be a distinction between an SSO and
an SDO.
But, generally, each SSO has a
process that's unique to its organization.
Some solicit input from a wide range of
constituents; some from a more narrow range.
The ones that I have examined
have all been fairly careful in the work that
they've done, seeking input at many steps
along the way.
Some organizations, like SDOs
at issue here, seek a broader array of inputs
than do others.
Some organizations, standards
setting organizations, include primarily or
only manufacturers and sometimes large

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I know the companies -- I -the plaintiffs here are SDOs. The
associations are, among other things, in the
business of creating and developing
standards.
There could be other SSOs that
have different constituents that are of
interest to them. I don't know for sure that
an SSO is a broader concept than an SDO, but
it could be.
Q. What do you understand to be
the constituents of the plaintiffs in this
case?
MR. FEE: Objection to form.
THE WITNESS: I laid that out
in my report. In summary, I believe
they try to include in the process
both those -- both supply-side
entities and demand-side entities.
BY MR. BRIDGES:
Q. Who else are plaintiffs'
constituents?
MR. FEE: Same objection.
THE WITNESS: I can't think of
anything that doesn't fall within

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Q. So those would be harms caused
by a court decision?
MR. FEE: Same objection.
THE WITNESS: By continuing
activities by the defendant that are
not halted by the Court.
BY MR. BRIDGES:
Q. Well, it comes across, frankly,
in your report as though you're identifying
harms that would flow from a court decision.
MR. FEE: Objection.
BY MR. BRIDGES:
Q. Is that correct or not?
A. No, I think you -MR. FEE: Mischaracterizes the
report.
THE WITNESS: -- you misread
it. I don't think I said that or
meant to say that.
BY MR. BRIDGES:
Q. So what harms have occurred
from the -- from the defendant's conduct to
date?
A. At the risk of repeating
myself, some of that is summarized in

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think basically what I'm saying is
what would -- or addressing, is what
would be the harm to the plaintiffs if
there's no permanent injunction.
BY MR. BRIDGES:
Q. Well, what did you mean by
"losing copyright protection" in the
paragraph -- in the heading VI on page 48?
A. In essence, you can think of it
as what would happen if there's no permanent
injunction. In other words, what the
defendant has done in the past and what it's
likely to do in the future is allowed to
continue.
Q. And you immediately go into
paragraph 112 talking about Emily Bremer,
correct?
A. I don't know what you mean by
"immediately." It's the first paragraph in
Section VI.
Q. Right. Was Emily Bremer in the
passage you referred to referring to the
presence or absence of a permanent injunction
in this case?
A. I don't think explicitly she

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paragraph 133, with regard to tangible
evidence on harm. With regard to other
evidence, it's throughout the report.
Q. So why would it make a
difference to what the defendant's harms
are -- strike -- strike that.
Why would it make a defendants
[sic] to the plaintiffs' harms if the
plaintiffs' harms were continue with -strike that.
Is it your testimony that harms
to plaintiffs would be different depending on
the particular basis of the Court's ruling?
MR. FEE: Objection. Vague.
THE WITNESS: I -- I don't
understand your question.
BY MR. BRIDGES:
Q. It looks as though you're
stating what the harms would be if the Court
found that incorporation by reference would
cause the plaintiffs to lose copyright
protection; is that correct?
A. I don't -MR. FEE: Objection. Vague.
THE WITNESS: -- think so. I

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was addressing that issue, no.
Q. Do you think implicitly she was
referring to this case?
A. No. I thought you were asking
about permanent injunction. I don't think
she was addressing the -- an injunction
issue. She was addressing the concept of
copyright protection.
Q. And that's what you quoted her
for, right, was for the concept of copyright
protection for standards?
MR. FEE: Objection. You're
referring just to paragraph 112?
BY MR. BRIDGES:
Q. You may answer.
MR. FEE: Objection to form.
THE WITNESS: I -- I don't
understand the question.
BY MR. BRIDGES:
Q. You quoted her in
paragraph 112, correct?
A. Yes. From one of her two
articles, yes.
Q. Right. Regarding the concept
of copyright protection?

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A. Generally. I think she's
talking about standards development and
incorporation by reference. I don't remember
if she said at the very beginning of the
article that it was about copyright
protection, but she certainly talks about
copyright protection.
Q. And you're quoting her about
losing copyright protection, and you're
placing it in the context of harms of the
loss of copyright protection, correct?
MR. FEE: Objection to form.
THE WITNESS: This excerpt
doesn't specifically talk about losing
copyright protection, but it talks
about the concept of it. If there was
no longer copyright protection granted
to the SDOs, what would be the
repercussions.
BY MR. BRIDGES:
Q. And that's the context that you
identified in the first line of
paragraph 112, correct?
A. Yes.
MR. FEE: Objection to form.

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Q. "Such products" -A. And in the next two sentences.
Q. And these are other products
that "could include more sophisticated
Web-based availability, published
compilations of incorporated standards, and
other ancillary products that incorporate the
standards"; isn't that correct?
A. You didn't read that right. It
starts "such products could include."
Q. Okay. Otherwise, that reading
is correct, correct?
A. I think so.
Q. You consider that to be harm to
the plaintiffs?
MR. FEE: Objection. Vague.
THE WITNESS: It could be, yes.
It's likely to be, if the copyright
infringement or the assumption of a
copyright infringement continues. It
could broaden.
BY MR. BRIDGES:
Q. Right. But the fact that these
other types of products would enter the
marketplace is part of the harm that you

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BY MR. BRIDGES:
Q. Let me direct your attention to
paragraph 35 of your report. It says, "With
regard to expansion beyond the specific
actions of Public Resource here, the
'product' offerings of Public Resource scans of paper copies of standards with some
rekeying of text and some redrawing of
diagrams (with some containing errors) represent a rudimentary first step in the use
of Plaintiffs' standards that is likely to
become much more sophisticated if the Court
holds that third parties are free to use
Plaintiffs' standards with impunity after
they are incorporated by reference into law."
Do you see that?
A. Yes, I do.
Q. That is your statement,
correct?
A. Yes.
Q. What are the steps that you're
envisioning there beyond the rudimentary
first step that you identify?
A. I think they're laid out in the
next sentence.

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envision from the defendant in this case?
MR. FEE: Objection to form.
THE WITNESS: It's potential -there's a potential that the defendant
could do that. There's also the
potential that other parties could do
that.
BY MR. BRIDGES:
Q. What -A. I don't know for sure what the
defendant has in mind.
Q. Why did you take into account
harms caused by other parties in this case?
A. Because -MR. FEE: Objection. Lack of
foundation.
Go ahead.
THE WITNESS: If no copyright
protection is allowed here, in other
words, there's no permanent
injunction, Public Resource and other
parties like it will have freedom to
do what the plaintiffs believe they
should not have freedom to do.
BY MR. BRIDGES:

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Q. In other words, if the Court
makes a decision in a certain way, there will
be harms from persons or entities other than
Public.Resource.Org to the plaintiffs? Is
that your testimony?
MR. FEE: Objection to form.
THE WITNESS: You used the
phrase "in a certain way." I don't
know what you mean by that. I'm
addressing the issue of whether there
should be a permanent injunction or
not.
BY MR. BRIDGES:
Q. So your view is that, if the
Court does not enter a permanent injunction,
the plaintiffs will suffer harms from parties
other than Public.Resource.Org. Is that your
testimony?
A. That potential exists. I don't
know for sure. That's, in part, why the harm
is irreparable or very difficult to quantify.
Q. The -- what harm?
A. Continuing activity of Public
Resource and others. I don't know exactly
what will happen, but the potential is that

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standards.
Q. What further harm would
Public.Resource.Org cause to plaintiffs with
respect to the standards at issue in this
case if no -- if the Court does not
permanently enjoin Public.Resource.Org?
MR. FEE: Objection to form.
THE WITNESS: If there's no
permanent injunction, there will, in
essence, be a message sent to the
marketplace that the standards that
have already been disseminated are out
there and can be used by others.
So right now my expectation is
that some number of consumers of the
standards have been reluctant or
unknowing as to the standards
disseminated by Public Resource. Now
there will be more knowledge about
that and more approval of that
activity. That is if there's no
permanent injunction.
BY MR. BRIDGES:
Q. What harms will plaintiffs
suffer if the Court rules that the plaintiffs

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there could be very broad dissemination of
the standards, which would impact these SDOs
tremendously.
Q. What harm would
Public.Resource.Org cause to plaintiffs if
there is no permanent injunction?
A. A permanent injunction would -lack of a permanent injunction would harm the
SDOs.
Q. That wasn't my question. My
question was, what harm would
Public.Resource.Org cause to plaintiffs if
there is no permanent injunction?
A. At the very least, it's
associated with its historical dissemination
of these standards, and there would be, in
essence, a carte blanche for other
organizations or individuals to access those.
So my expectation is that the
dissemination of the materials that have
already been disseminated will expand.
It could also be the case that
Public Resource will undertake further
activities that would disseminate either
already disseminated standards or other

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do not own the copyrights in this case?
MR. FEE: Objection. Calls for
speculation.
THE WITNESS: In essence,
you're asking if there's no copyright
infringement?
BY MR. BRIDGES:
Q. No. What harms -- have you
identified what harms the plaintiffs would
suffer if the Court rules that the plaintiffs
do not own the copyrights at issue, that
there are no copyrights that the plaintiffs
own -MR. FEE: Objection to form.
BY MR. BRIDGES:
Q. -- at issue in this case?
A. I haven't addressed or thought
about that issue. There are also, don't
forget, trademark issues.
Q. I'm asking about copyright, so
I ask you to confine your answers to my
questions.
My question is, what -- you
assume for purposes of your analysis that
plaintiffs own valid copyrights, correct?

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A. I assume that there's copyright
infringement. I don't know that I've made an
explicit assumption with regard to ownership.
Q. And you assume infringement
without assuming ownership of the copyrights?
A. I haven't made any explicit
assumption with regard to ownership. I know
that's an issue in this case, but it's well
beyond my expertise.
Q. So if it turns out that -- do
you understand your testimony to have any
bearing on whether plaintiffs' standards are
copyrightable?
MR. FEE: Objection. Calls for
speculation.
I would instruct you to not
disclose any communications you had
with counsel that weren't the basis
for any of your opinions in this case.
You can otherwise answer.
THE WITNESS: Could you read
that back or ask it again, please?
BY MR. BRIDGES:
Q. Do you understand your
testimony and opinions in this case to have

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plaintiffs deserve copyright protection for
these standards?
MR. FEE: Objection to form.
THE WITNESS: I don't have an
opinion on that one way or the other.
I have not thought about that topic.
BY MR. BRIDGES:
Q. Do you have any expertise in
copyright law as a field of law?
MR. FEE: Objection. Vague.
THE WITNESS: No, I don't have
legal expertise. I have expertise in
looking at harm associated with
copyright infringement.
BY MR. BRIDGES:
Q. Do you have any expertise with
respect to harm caused by invalidation of
copyrights?
MR. FEE: Same objection.
THE WITNESS: I'm not quite
sure I'm fully appreciating your
question. Again, I'm an expert in the
economics of IP protection. One of
the areas in which I do work is harm
associated with copyright protection.

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any bearing on whether plaintiffs' standards
are copyrightable?
MR. FEE: Same objection and
instruction. Plus objection, calls
for a legal conclusion.
THE WITNESS: I don't know one
way or the other. I've not taken on
that assignment.
BY MR. BRIDGES:
Q. Do you understand whether your
testimony and opinions in this case are
relevant to whether plaintiffs deserve
copyright protection in this case?
MR. FEE: Objection. Calls for
a legal conclusion.
And same objection with respect
to communications between you and
counsel that were not the bases for
your opinions or your report.
THE WITNESS: I don't know one
way or the other. I did not take on
that assignment.
BY MR. BRIDGES:
Q. Do you mean by your analysis
and opinions to suggest in any way that

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BY MR. BRIDGES:
Q. Have you done any work in this
case to quantify what harms plaintiffs would
suffer if a court were to rule that they
lacked copyright rights in the standards at
issue in this case?
MR. FEE: Objection to form.
Go ahead.
THE WITNESS: Not explicitly,
to my knowledge.
BY MR. BRIDGES:
Q. Have you done anything
implicitly?
MR. FEE: Same objection.
THE WITNESS: Not to my
knowledge.
BY MR. BRIDGES:
Q. Have you done any work in this
case to analyze the incentives that
participants have in the standards
development process?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I have in the
sense that I've examined the materials

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Q. Right. Or approximately
$3 million?
A. Are you limiting it just to
90.1 or all its standards?
Q. Well, that's a good question.
What -- what's -- what did you intend the
last sentence in paragraph 76 to refer to?
All of its standards or 90.1?
A. I think it's all of its
standards, but we could visit the screenshot
from the Web site to confirm that.
Q. Okay.
A. I -- I could be wrong. I don't
think I am, but I could be.
Q. Okay. In the previous
sentence, you say, "ASHRAE and its volunteer
members devoted more than 86,400 man-hours,
3,600 hotel nights, and 1,200 round-trip
flights as part of the process."
And that -- "the process"
appears to refer to updating the ASHRAE 90.1
standard, correct?
A. Yes.
Q. When you say "ASHRAE and its
volunteer members," and then you give those

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THE WITNESS: Again, I don't
have an estimate.
BY MR. BRIDGES:
Q. Do you know -- did ASHRAE pay
for the time, the hotel bills, and the plane
fares of its volunteer members in updating
the ASHRAE 90.1 standard?
A. I would expect rarely. It's
possible that there are certain instances in
which there was some set of out-of-pocket
expenses covered, but I would imagine the
bulk of the time it's the volunteer's
employer.
MR. BRIDGES: Sorry. How long
have we been going? I didn't get when
we went back on.
MR. FEE: 34 minutes.
BY MR. BRIDGES:
Q. Did you speak with Emily Bremer
at any point in this case?
A. No.
Q. How did you become acquainted
with her writings?
A. I think Kevin Fee and/or
Jordana Rubel brought to my attention that

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statistics, those statistics refer primarily
to the man-hours, hotel nights, and
round-trip flights of the volunteer members?
MR. FEE: Objection. Vague.
THE WITNESS: Probably. As
opposed to ASHRAE-employed staff.
BY MR. BRIDGES:
Q. Do you know how much ASHRAE's
volunteer members and their employers -strike that.
Do you know how much ASHRAE's
volunteer members and their employers spent
in salaries and disbursements for the
man-hours, hotel nights, and round-trip
flights that were part of the process of
updating the ASHRAE 90.1 standard?
A. I don't know, but it -- I would
imagine it's a noticeable amount, but I don't
know the amount.
Q. What would be your best
estimate?
A. I don't have a best estimate.
Q. Would it be probably over
$10 million?
MR. FEE: Objection to form.

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she had written on this topic. I don't
recall whether then we separately obtained
her two articles or Mr. Fee slash Ms. Rubel
provided those to us.
Q. What independent work did you
do to research writings regarding the
economics of standards development?
MR. FEE: Objection to form.
THE WITNESS: We did
independent research in the sense that
people that work with me did a
literature search to determine what
writings had been done in the area.
I was previously aware of some
amount of the scholarship to begin
with.
BY MR. BRIDGES:
Q. How is that literature search
reflected in any documents?
A. The results are shown in my
tab 2, and in particular it is page 2 of my
tab 2, at the bottom.
Q. And were these items found by
you or your team?
MR. FEE: Objection to form.

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THE WITNESS: Yes, with the
exception that, in the first instance,
lawyers at Morgan Lewis brought to our
attention the Bremer -- the existence
of Bremer articles.
BY MR. BRIDGES:
Q. Did you study any of the
materials that Bremer -- strike that.
Bremer's articles are law
review articles, correct?
A. Yes.
Q. Did any plaintiff -- did your
team's research identify any articles that
you chose not to include in tab 2?
A. I don't think so.
Q. Did any plaintiff or its
counsel furnish you with correspondence
between the plaintiffs and Emily Bremer for
review?
A. No, not to my knowledge.
Q. How many conversations with
representatives of the plaintiffs did you
have?
MR. FEE: Objection.
I would instruct you not to

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the various plaintiffs.
Q. With whom?
A. They are all identified in
paragraph 10 of my report.
Q. Which of those did you
personally have conversations with?
A. All of them, as I recall. It's
possible there's someone I did not, but I'm
not remembering that being the case.
Q. Approximately how long did you
spend with -- did you have conversations with
any of them together?
A. Yes, several of them were
together.
Q. Which ones?
A. I don't recall all
combinations. I can say with some confidence
that there was never more than one plaintiff
on a call. In other words, there were
several people from a particular plaintiff on
a call, but not more than one plaintiff.
So I had various combinations
of calls with ASTM that may have occurred on
three occasions; with NFPA, one or two
occasions; and with ASHRAE, one or two

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answer questions regarding
communications with counsel, unless
they formed the basis of your
opinions, in which case you can answer
questions with respect to those
conversations.
BY MR. BRIDGES:
Q. So I -- I'll change my question
slightly.
How many -- how many
conversations did you have with non-lawyer
employees or former employees of the
plaintiffs?
A. None that the -- that did not
include the lawyers.
Q. Right. I'm -- so I'm asking
you to tell me what they were. If the
presence of lawyer -- if you had a
conversation with a -- with an employee or
former employee of the plaintiff, I'd like to
know what that was. So the fact that lawyers
may have been present wouldn't excuse it from
the scope of the answer.
A. I had somewhere between four
and six conversations with people who were at

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occasions.
Q. And approximately how long
total did you spend in conversations with
representatives of each plaintiff?
MR. FEE: Objection to form.
THE WITNESS: Cumulatively,
somewhere between three and five hours
is my best guess right now.
BY MR. BRIDGES:
Q. When you say cumulative -"cumulatively," you mean for all plaintiffs?
A. Yes. Meaning I'm -- I've added
up the conversations I had across all three
plaintiffs.
Q. Right. What's your best
estimate as to the period of time you spent
with each plaintiff?
A. With ASTM, it may have been two
to three hours. For NFPA, one to two hours.
For ASHRAE, one to two hours. That's my best
guess right now.
* * *
(Jarosz Exhibit 2 and Jarosz-3
marked for identification.)
* * *

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record at 12:17. This is the end of
media unit number 1.
* * *
(Recess from 12:17 p.m. to
12:32 p.m.)
* * *
THE VIDEOGRAPHER: On the
record at 12:32. This is the
beginning of media unit 2 in the
deposition of John Jarosz.
BY MR. BRIDGES:
Q. Mr. Jarosz, your report, as I
referred to earlier, cites a number of
conversations with employees of the
plaintiffs. For what purpose did you have
conversations with the plaintiffs' employees?
A. To learn more about the
organization and their view as to the impact
of continued copyright protection -continued copyright infringement and
trademark infringement.
Q. What view did you learn from
them?
MR. FEE: Objection to form.
THE WITNESS: Well, I solicited

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you interview?
A. I don't think I interviewed any
members of the public either.
Q. What steps did you do to
ascertain the views of the members of the
organizations, other than the employees?
A. I read the materials that were
produced here. I read the deposition
testimony of the various individuals. I read
the articles published by Ms. Bremer. And I
read the other academic literature and
practical literature that I had.
Q. Which of those sources stated
the views of the non-employee members of the
various organizations?
A. I don't know that views of -that their views were explicitly addressed in
my report or represented. I understood what
the impacts of the lack of honoring the
copyrights and trademarks would have, but I
don't know that I saw non-employee member
views explicitly summarized.
Q. So what steps did you do to
ascertain the views of the members of the
organizations --

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and learned many facts about the
organizations. I also learned that
each one of them viewed continued
copyright infringement and trademark
infringement as quite detrimental to
their organizations, detrimental to
the members, detrimental to the
public.
They viewed continued IP
infringement as potentially
devastating to their organizations.
BY MR. BRIDGES:
Q. These were their views?
A. Yes. I'm just paraphrasing, of
course.
Q. What members did you interview?
A. None, other than the employees.
I don't know if you call those "members" or
not. But the volunteer membership, I didn't
go to.
THE VIDEOGRAPHER: Excuse me.
Counsel, could you move your
microphone to your lapel? Thank you.
BY MR. BRIDGES:
Q. What members of the public did

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MR. FEE: Objection.
BY MR. BRIDGES:
Q. -- other than their employees?
MR. FEE: Asked and answered.
THE WITNESS: Well, I talked to
the employees, and they interact with
the members on a very regular basis,
so they gave me some sense of what the
views of the members were.
It also could be that some of
the perspectives of the members are
reflected in some of the documents I
identified in tab 2.
BY MR. BRIDGES:
Q. Well, I'm just trying to find
out where -- it sounds as though -- strike
that.
It sounds as though a minute
ago you said you couldn't recall anything
specifically calling out views of
non-employee members, correct?
A. Correct. I think that's right.
Q. What did you do to verify the
statements that employees of the plaintiffs
made about the views of the non-employee

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members of their organizations?
A. I did what I normally do in an
assignment like this and look at the produced
materials.
Q. And the produced materials did
not call out specifically any views of
non-employee members of the plaintiff
organizations, correct?
A. I don't recall any specific
views being summarized. My memory may not be
perfect on that, though.
Q. What research, if any, did you
do among members of the public about whether
lack of copyright protection for the
plaintiffs' standards would be detrimental to
the -- to the public?
A. The information that I reviewed
is in tab 2. I didn't have material beyond
what is identified in tab 2.
Q. So what in tab 2 reflects your
steps to ascertain the views of members of
the public?
MR. FEE: Objection to form.
THE WITNESS: I think the
Bremer articles, in part, address

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States other than law review articles by
Emily Bremer?
A. As I sit here right now, I'm
not aware of any documents that discuss the
deliberations, but my memory is not perfect.
Q. Do you know if there was a
consensus in any relevant committee of the
Administrative Conference of the United
States regarding the conclusions that
Ms. Bremer states in her law review articles?
A. I don't.
MR. FEE: Objection. Vague.
BY MR. BRIDGES:
Q. Do you know whether there was
any dissent in any relevant committee of the
Administrative Conference of the United
States regarding the conclusions that
Ms. Bremer states in her law review articles?
MR. FEE: Objection to form.
THE WITNESS: I don't.
BY MR. BRIDGES:
Q. Do you know why persons get
appointed to the Administrative Conference of
the United States?
A. I may have known that, but I

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that. I think some of the federal
government's circulars that I
identify, in part, reflect the
reviews, in particular the NTTAA of
1995 and OMB Circular A-119. I think
they, in part, reflect public views.
There are probably other things.
BY MR. BRIDGES:
Q. Did you review OMB Circular
A-119 personally?
A. Yes. As I recall, I did.
Q. Did you review any materials
pertaining to the discussions or
deliberations of the Administrative
Conference of the United States in connection
with your research or analysis?
A. What particular materials or
meetings are you referring to?
Q. Any.
A. I don't recall, but it's
possible.
Q. Does tab 2 refer you to any
documents that would provide you information
about the discussions or deliberations of the
Administrative Conference of the United

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don't recall that sitting here now.
Q. Do you know whether
Ms. Bremer's articles -- strike that.
Do you know whether
Ms. Bremer's law review articles reflect a
view of the Administrative Conference of the
United States -MR. FEE: Objection to form.
BY MR. BRIDGES:
Q. -- or of any of its committees?
MR. FEE: Objection to form.
THE WITNESS: I'm not aware
that they officially reflect that. I
believe she gathered information, and
they may, in fact, represent the views
of some or all members, but I don't
think that's -- that either article is
an official representation -BY MR. BRIDGES:
Q. Are you -A. -- of that body.
Q. Are you aware of the fact that
her articles -- her law review articles
specifically disclaim her articles as the
views of any government entity and indicate

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members of their organizations?
A. I did what I normally do in an
assignment like this and look at the produced
materials.
Q. And the produced materials did
not call out specifically any views of
non-employee members of the plaintiff
organizations, correct?
A. I don't recall any specific
views being summarized. My memory may not be
perfect on that, though.
Q. What research, if any, did you
do among members of the public about whether
lack of copyright protection for the
plaintiffs' standards would be detrimental to
the -- to the public?
A. The information that I reviewed
is in tab 2. I didn't have material beyond
what is identified in tab 2.
Q. So what in tab 2 reflects your
steps to ascertain the views of members of
the public?
MR. FEE: Objection to form.
THE WITNESS: I think the
Bremer articles, in part, address

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States other than law review articles by
Emily Bremer?
A. As I sit here right now, I'm
not aware of any documents that discuss the
deliberations, but my memory is not perfect.
Q. Do you know if there was a
consensus in any relevant committee of the
Administrative Conference of the United
States regarding the conclusions that
Ms. Bremer states in her law review articles?
A. I don't.
MR. FEE: Objection. Vague.
BY MR. BRIDGES:
Q. Do you know whether there was
any dissent in any relevant committee of the
Administrative Conference of the United
States regarding the conclusions that
Ms. Bremer states in her law review articles?
MR. FEE: Objection to form.
THE WITNESS: I don't.
BY MR. BRIDGES:
Q. Do you know why persons get
appointed to the Administrative Conference of
the United States?
A. I may have known that, but I

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that. I think some of the federal
government's circulars that I
identify, in part, reflect the
reviews, in particular the NTTAA of
1995 and OMB Circular A-119. I think
they, in part, reflect public views.
There are probably other things.
BY MR. BRIDGES:
Q. Did you review OMB Circular
A-119 personally?
A. Yes. As I recall, I did.
Q. Did you review any materials
pertaining to the discussions or
deliberations of the Administrative
Conference of the United States in connection
with your research or analysis?
A. What particular materials or
meetings are you referring to?
Q. Any.
A. I don't recall, but it's
possible.
Q. Does tab 2 refer you to any
documents that would provide you information
about the discussions or deliberations of the
Administrative Conference of the United

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don't recall that sitting here now.
Q. Do you know whether
Ms. Bremer's articles -- strike that.
Do you know whether
Ms. Bremer's law review articles reflect a
view of the Administrative Conference of the
United States -MR. FEE: Objection to form.
BY MR. BRIDGES:
Q. -- or of any of its committees?
MR. FEE: Objection to form.
THE WITNESS: I'm not aware
that they officially reflect that. I
believe she gathered information, and
they may, in fact, represent the views
of some or all members, but I don't
think that's -- that either article is
an official representation -BY MR. BRIDGES:
Q. Are you -A. -- of that body.
Q. Are you aware of the fact that
her articles -- her law review articles
specifically disclaim her articles as the
views of any government entity and indicate

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that they are her personal views?
A. I wouldn't be surprised and
may -- I may have read that, but I would
expect that that would be in the first
footnote of one or both articles.
Q. What did you do to examine the
alleged facts that the representatives of
plaintiffs stated to you in their
conversations with you?
MR. FEE: Objection to form.
THE WITNESS: I looked at -MR. FEE: Asked and answered.
THE WITNESS: I'm sorry. I
looked at the document production and
the other materials shown in tab 2.
BY MR. BRIDGES:
Q. You looked at the document
production that the plaintiffs' counsel
furnished you?
A. In part. There were other
things in tab 2 that were not provided to me
by plaintiffs' counsel.
Q. What other materials in
tab 2 -- strike that.
Please identify for me in tab 2

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I believe counsel did not
provide the Web site screenshots, but I might
be wrong on that.
Q. And did you do anything -what, if anything, did you do to test the
validity of the factual assertions that the
plaintiffs made to you in your conversations
with their employees?
MR. FEE: Objection to form.
Asked and answered.
THE WITNESS: Well, we looked
at materials. If we found things that
conflicted with what we learned, that
would prompt us to investigate
further. But I don't recall seeing
any documentary evidence that
conflicted with facts that were
provided by plaintiff personnel, but I
might be wrong.
BY MR. BRIDGES:
Q. Did you investigate
independently whether documents existed that
contradicted plaintiffs' statements of facts?
A. Not with that in mind. We
looked at the documents and were mindful of

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the materials that plaintiffs' counsel
furnished you.
A. I don't know with absolute
certainty, but let me give you my best guess.
I believe all the depositions that are shown
on page 1. I believe the Bates ranges at the
very top of the page were provided by
counsel.
The deposition transcripts and
exhibits were provided by counsel. I believe
the financial statements and plans were
provided by counsel. I believe the legal
documents were provided by counsel. I
believe the miscellaneous items were provided
by counsel.
I don't know about the cases
and laws. I just don't remember if we
separately gathered those or were provided
those.
The analyst reports, articles,
books, and presentations, I think we gathered
all of those, with the possible exception of
the two Bremer articles. I don't recall if
counsel provided that or we obtained those
separately.

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whether there were conflicts within documents
or conflicts between documents and other
information, but I don't recall that we saw
anything that gave us substantial pause.
There were probably some things
where there were some uncertainties whether
there was a conflict or not and some where
there were insignificant conflicts, but I
think mostly the information we saw did not
conflict with the information we learned from
plaintiff personnel.
Q. Did you investigate
independently whether other documents, apart
from the documents plaintiffs furnished you,
existed that contradicted plaintiffs'
statements of facts -MR. FEE: Objection to form.
BY MR. BRIDGES:
Q. -- in conversations with you?
A. Yes, in the sense that we
gathered some information that we did not
receive from plaintiffs' counsel, but all of
that is identified in tab 2.
Q. Which part of tab 2?
A. Well, as I said, I think the

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Web sites we gathered ourselves, and I think
the reports and articles, with the exception
of the Bremer articles, we gathered
ourselves.
Q. Do you know why you got no
documents from NFPA, no Bates range documents
from NFPA?
MR. REHN: Object to form -THE WITNESS: I don't know why
we did not receive Bates documents -THE REPORTER: Wait.
MR. REHN: Sorry. Object to
the form. Lacks foundation.
THE WITNESS: I don't know for
sure that we didn't receive
Bates-stamped documents, but I believe
some of the documents we received were
NFPA documents.
BY MR. BRIDGES:
Q. Do you recall seeing any NFPA
documents that -- in which NFPA personnel
stated that they could not show any harm from
the defendant's activities?
A. Received any documents that
said that?

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Q. What did you hear about
overseas litigation involving Public
Resource?
A. I think I heard that there was
a German -- or a suit in Germany, but I'm not
sure that I learned much more than that. I
don't recall what status that suit -- what
the status of that suit is.
Q. Do you recall anyone disclosing
to you litigation involving NFPA in the
United States that pertained to standards and
copyright?
A. It's possible, but I don't
recall any, sitting here right now.
Q. Do you recall inquiring about
public statements of fact that NFPA has made
regarding copyright and standards in
litigation other than this litigation in the
United States?
MR. FEE: Objection to form.
THE WITNESS: I do not.
BY MR. BRIDGES:
Q. Are you familiar with a case
called Veeck, V-E-E-C-K?
A. I'm familiar with an opinion in

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Q. Uh-huh.
A. Perhaps you would have
something that would refresh my memory. I
don't recall, sitting here right now, but
it's possible.
Are you talking about
historical -- historically no harm, or are
you talking about prospectively?
Q. Either one. Did you -- do you
recall seeing any internal NFPA documents
that call into question where NF -- whether
NFPA has suffered any harm from the
defendant's activities?
A. I don't recall documents on it.
There may have been some deposition testimony
about past activities, but I don't know if it
was activities prior to Public Resource
actions here or after.
Q. Do you recall learning about
any litigation that NFPA had engaged in
pertaining to standards and copyright?
A. I think I heard that there's
some overseas litigation involving Public
Resource. Whether that involves NFPA, I
don't know.

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the Veeck case.
Q. What do you know about that
opinion?
MR. FEE: Objection.
I would instruct you not to
disclose anything you know about that
opinion that was a result of
communications with counsel and that
did not form the basis of any of the
opinions in your report or any of the
assumptions that you relied upon in
reaching your conclusions.
THE WITNESS: I did talk with
counsel about that case, and that case
didn't form any basis for any of my
observations or conclusions here.
BY MR. BRIDGES:
Q. Why did the Veeck case not form
any basis for any of your observations or
conclusions here?
A. I don't know how to answer that
question. I -- it didn't present any facts
that were specific to this case, as far as I
recall.
Q. What do you recall of the facts

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answered.
THE WITNESS: Again, I read the
case. I didn't do any analysis beyond
that of that particular case.
BY MR. BRIDGES:
Q. What steps did you take to
ascertain what public harms flowed from the
Court's decision in the Veeck case?
A. Other than reading the case,
the opinion in the case, I didn't do anything
beyond that to understand the implications of
that holding.
Q. You didn't do any investigation
as to the economic consequences to any
entity, industry, or person as a consequence
of the decision in the Veeck case, correct?
MR. FEE: Objection to form.
THE WITNESS: I think that's
correct, yes.
BY MR. BRIDGES:
Q. How has the process of
standards development changed in the last 100
years, to your knowledge?
A. I don't know the specifics, and
I don't know that there is one standards

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A. Not sitting here right now, I
don't.
Q. Do you know whether ASHRAE took
over development of what became standard 90.1
from any other group or entity?
A. No, I do not.
Q. Have you ever quantified the
value of the contributions made by the
volunteers of the various organizations to
the standards at issue in this case?
MR. FEE: Objection to form.
THE WITNESS: Not other than
having some sense of hours or a
limited sense of dollars, but not
beyond that, no.
BY MR. BRIDGES:
Q. Can you put a rough dollar
value on the time and expenses of the
volunteers with respect to any of the
standards in this case?
MR. FEE: Objection to form.
THE WITNESS: Not sitting here
right now. That would entail a little
bit of a study. I have not done that.
BY MR. BRIDGES:

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development process. I think there are a
variety of processes pursued by a number of
SSOs or SDOs. I'm sure that there have been
changes on the margin. There may have been
larger changes. I just don't know. I have
not studied the trend in the standard
development process over time.
Q. What changes are you aware of
in the standards development process of NFPA
over the past 100 years?
A. I don't know. I've not studied
that topic.
Q. What changes are you aware of
in the standards development process of the
ASHRAE 90.1 standard?
A. I don't know. I've not studied
that.
Q. How did ASHRAE come to develop
the 90.1 standard?
A. I think, generally, a need was
identified and a group of constituents
convened to derive a standard, but I don't
know the specifics beyond that.
Q. Do you know who identified the
need?

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Q. What -- what would be required?
A. To understand basically the
out-of-pocket expenses incurred and the
opportunity costs incurred. So among other
things, one would want to look at time
records, have an understanding of
compensation, have an understanding of the
activities of those individuals. Those
are -- would be among the inputs.
Q. What changes are you aware of
in the distribution of standards in the past
100 years by the plaintiffs?
MR. FEE: Objection to form.
THE WITNESS: I haven't
investigated that particular issue,
but I understand that some of the
standards today are distributed
through the Internet that certainly
didn't exist 100 years ago.
Some of the standards are
distributed for free with limitations.
I don't know if that was true 100
years ago, but it might have been.
I would expect some of the
copying and dissemination capabilities

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are much greater today than they were
in 1915, but I don't know that the
general methods of -- I don't know how
the general methods of distribution
have changed.
BY MR. BRIDGES:
Q. What changes are you aware of
in sales trends over the past 20 years?
MR. FEE: Objection to form.
THE WITNESS: I don't have data
going back as far as 20 years ago. I
have some information on publication
sales, for instance, in tabs 3, 4, and
5. They only -- that information only
goes back a few years, however.
BY MR. BRIDGES:
Q. Did you review any information
earlier than the dates shown in the documents
at tabs 3, 4, and 5?
MR. FEE: Objection. Vague.
THE WITNESS: It's possible
that some of the source documents had
earlier information, but I don't
recall that. I would need to look at
those source documents.

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the right to reproduce, copy, or
disseminate those standards but can
look at them online.
BY MR. BRIDGES:
Q. Have you used the reading rooms
of any of the plaintiffs?
A. No, I have not.
Q. Have you reviewed the interface
that the -- have you reviewed the interfaces
that the plaintiffs offer to persons wishing
to view materials for free online?
A. No, I don't think so.
Q. Do you know what effect, if
any, the presence of those free materials on
the plaintiffs' Web sites has had on the
plaintiffs' revenues?
MR. FEE: Objection to form.
THE WITNESS: No, I don't.
BY MR. BRIDGES:
Q. Have you -- have you
investigated that?
MR. FEE: Same objection.
THE WITNESS: I've been
opening -- I've been open to learning
about that, but I haven't learned that

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BY MR. BRIDGES:
Q. And those source documents
would be within the Bates ranges identified
in tab 2 of your report?
A. Within the Bates ranges or
identified elsewhere in tab 2. For instance,
the AS team -- ASTM audited -- audited
consolidated financial statements, I think,
may not all be Bates-stamped. I could be
wrong on that. But I would look in that set
of financial documents.
Q. What do you know about what you
said -- strike that.
You said earlier that some
standards are distributed for free with some
limitations; is that correct?
A. Yes, that's my understanding.
Q. What do you know about that?
MR. FEE: Objection. Vague.
THE WITNESS: I've written
about that in my report. I believe
that each one of the plaintiffs has
provided what is sometimes called a
"reading room" so that people can look
at those standards but are not given

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there's a direct or indirect effect.
There might be, but I haven't seen
evidence of that.
BY MR. BRIDGES:
Q. My question was, have you
investigated that?
MR. FEE: Same objection.
THE WITNESS: Perhaps you could
read back my answer.
BY MR. BRIDGES:
Q. I've heard the answer. It was
not responsive to my question. The -- you
said you did not know what effect, if any,
the presence of those free materials on the
plaintiffs' Web sites has had on the
plaintiffs' revenues.
And my question is, have you
investigated that?
MR. FEE: Same objection.
THE WITNESS: No, I've not
undertaken a separate investigation.
I've been alert to that topic, but I
haven't assigned myself that
investigation.
BY MR. BRIDGES:

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Q. Was something that was -remained pending at the time you wrote this
report as something that you expected to do
in the future?
A. No.
MR. FEE: Objection. Vague.
THE WITNESS: I'm sorry.
No.
BY MR. BRIDGES:
Q. Did you study the practices of
any standards development organizations,
other than the plaintiffs, for purposes of
your work in this case?
MR. FEE: Objection. Vague.
THE WITNESS: Not that I
recall. I saw reference to other SDOs
in the Bremer articles, for instance,
but I didn't undertake a separate
investigation of the practices of any
other SDOs for purposes of my
assignment here.
BY MR. BRIDGES:
Q. Are you aware of practices or
policies of other SDOs with reference to
either copyright or free availability of

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SDOs, but the standard setting organizations
that are the candidates are the ones that I
identified earlier today.
Q. Which SDOs do you recall
treating copyright protection of their
standards as very important?
A. I just don't recall right now.
I -- I have some vague recollection that
copyright considerations are addressed by
ETSI, but I could be wrong on that.
Q. What do you know about policies
or practices of the Blu-ray organization with
respect to copyright protection?
A. I assume you're talking about
the Blu-ray Association? I may have known
when I was involved in that matter. I do not
remember, sitting here now.
Q. Do you recall that your report
actually refers to the Blu-ray Association?
A. I think I refer to Blu-ray
standards. I don't recall if I refer to the
Blu-ray Association, but perhaps you could
refresh my memory.
Q. I believe you point it out at
the bottom of page 62. "While certain SDOs

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their materials?
MR. FEE: Objection to form.
THE WITNESS: I may have been
aware through other assignments I've
undertaken in the past, but I didn't
undertake any separate investigation
for purposes of this matter.
BY MR. BRIDGES:
Q. What awareness do you have of
the practices or policies of other SDOs
through other assignments you've undertaken
in the past?
MR. FEE: Objection to form.
THE WITNESS: I can only recall
most generally that they view
intellectual property protection as
being very important, but I can't be
any more specific than that.
BY MR. BRIDGES:
Q. Which SDOs you -- do you recall
treating intellectual property protection as
very important?
A. Well, again, I've -- I've dealt
with standards setting organizations. I
don't know if any of those are technically

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(e.g., the Blu-ray disc association) provide
unrestricted access to their standard
publications for free, the Plaintiffs here do
not."
Do you recall that?
A. Now I do. Thank you for
refreshing my memory.
Q. What economic effects are you
aware of the fact that the Blu-ray Disc
Association provides unrestricted access to
its standard publications for free?
A. I have not investigated that
issue, so I don't know.
Q. What other SDOs have you
identified that provide unrestricted access
to their standards for free?
A. I don't think I've identified
any others in my report.
Q. Did you look for any others?
A. Not that I recall.
Q. Why not?
A. I don't know how to answer
that. I was aware of the Blu-ray Disc
Association's policy in this regard, so I
wrote about it here.

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Q. Why did you not consider the
economic effects of free distribution of
standards with respect to other
organizations?
A. I didn't quite see the
relevance to this matter.
Q. Why?
A. I don't know how to prove a
negative.
Q. What's the negative you were
thinking of that would need to be proved or
disproved?
A. That something is not relevant.
Q. You just didn't see the
relevance?
A. I don't understand how that
would be helpful in the assignment that I had
here.
Q. And what was the assignment you
had here?
A. Well, I've laid it out -Q. I can read the report. I'm not
asking you to read -- read the report. I'd
like your own words now, sitting here.
MR. FEE: Objection.

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perspective.
BY MR. BRIDGES:
Q. And what is the relevance of
economic analysis to that question, as you
understand it?
MR. FEE: Objection to form.
Vague. Might also be construed to
require a legal conclusion.
THE WITNESS: Economists have a
view and perspective at looking at
issues that some courts have found to
be useful.
BY MR. BRIDGES:
Q. Well, I'm asking, with specific
relevance to this case, what do you
understand the importance of economic
analysis to be in this case -MR. FEE: Objection. Calls -BY MR. BRIDGES:
Q. -- as you have purported to
practice it?
MR. FEE: Calls for a legal
conclusion.
Also, to the extent that
responding to that would require you

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BY MR. BRIDGES:
Q. How do you -- how do you
view -A. I'd like to answer it by
looking at my report.
Q. No, I'd like for you to give me
a straight answer, because if you're just
going to refer to the report, the report will
speak for itself, and I don't need you to
read it to me.
I'd like for you to tell me
what you understand, sitting here, to have
been your assignment in this case.
MR. FEE: Objection.
You can answer the question
however you deem appropriate.
THE WITNESS: I've aptly laid
it out in my report, so I defer to the
words in my report.
But I've, in essence, looked at
the topic of the impact of copyright
and trademark infringement here, and
asked myself the question whether a
permanent injunction would be
appropriate from an economic

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to disclose communications with
counsel that did not form the basis
for any of your opinions or
conclusions and did not provide any
assumptions that were the basis for
your opinions or conclusions, you
should not answer that portion of the
question.
THE WITNESS: I understand
that, generally, economists like me
are quite helpful in determining
questions of harm, particularly harm
as it relates to infringement of IP
rights.
BY MR. BRIDGES:
Q. How do you distinguish between
harms that are caused by an infringement by
the defendant versus harms that might be
caused by a court decision that plaintiffs
lack copyrights?
MR. FEE: Objection to the
extent it calls for a legal
conclusion.
THE WITNESS: I don't know how
to answer that question. I didn't ask

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Q. Why did you not consider the
economic effects of free distribution of
standards with respect to other
organizations?
A. I didn't quite see the
relevance to this matter.
Q. Why?
A. I don't know how to prove a
negative.
Q. What's the negative you were
thinking of that would need to be proved or
disproved?
A. That something is not relevant.
Q. You just didn't see the
relevance?
A. I don't understand how that
would be helpful in the assignment that I had
here.
Q. And what was the assignment you
had here?
A. Well, I've laid it out -Q. I can read the report. I'm not
asking you to read -- read the report. I'd
like your own words now, sitting here.
MR. FEE: Objection.

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perspective.
BY MR. BRIDGES:
Q. And what is the relevance of
economic analysis to that question, as you
understand it?
MR. FEE: Objection to form.
Vague. Might also be construed to
require a legal conclusion.
THE WITNESS: Economists have a
view and perspective at looking at
issues that some courts have found to
be useful.
BY MR. BRIDGES:
Q. Well, I'm asking, with specific
relevance to this case, what do you
understand the importance of economic
analysis to be in this case -MR. FEE: Objection. Calls -BY MR. BRIDGES:
Q. -- as you have purported to
practice it?
MR. FEE: Calls for a legal
conclusion.
Also, to the extent that
responding to that would require you

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BY MR. BRIDGES:
Q. How do you -- how do you
view -A. I'd like to answer it by
looking at my report.
Q. No, I'd like for you to give me
a straight answer, because if you're just
going to refer to the report, the report will
speak for itself, and I don't need you to
read it to me.
I'd like for you to tell me
what you understand, sitting here, to have
been your assignment in this case.
MR. FEE: Objection.
You can answer the question
however you deem appropriate.
THE WITNESS: I've aptly laid
it out in my report, so I defer to the
words in my report.
But I've, in essence, looked at
the topic of the impact of copyright
and trademark infringement here, and
asked myself the question whether a
permanent injunction would be
appropriate from an economic

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to disclose communications with
counsel that did not form the basis
for any of your opinions or
conclusions and did not provide any
assumptions that were the basis for
your opinions or conclusions, you
should not answer that portion of the
question.
THE WITNESS: I understand
that, generally, economists like me
are quite helpful in determining
questions of harm, particularly harm
as it relates to infringement of IP
rights.
BY MR. BRIDGES:
Q. How do you distinguish between
harms that are caused by an infringement by
the defendant versus harms that might be
caused by a court decision that plaintiffs
lack copyrights?
MR. FEE: Objection to the
extent it calls for a legal
conclusion.
THE WITNESS: I don't know how
to answer that question. I didn't ask

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myself the question of ownership or
impact of ownership. I asked myself
the question here of impact of
infringement.
BY MR. BRIDGES:
Q. If it turns out that the Court
rules that the plaintiff -- sorry. Strike
that.
If it turns out the Court rules
here that the defendant has engaged in fair
use, is it your understanding that none of
your harms analysis is relevant -MR. FEE: Objection.
BY MR. BRIDGES:
Q. -- because of a finding of
non-infringement?
MR. FEE: Calls for a legal
conclusion.
To the extent answering that
question would require you to disclose
communications you had with counsel
that don't form the basis for any of
your opinions or conclusions and don't
provide any assumptions that you
relied upon, you shouldn't disclose

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under the assumption that the
activities violate the law.
BY MR. BRIDGES:
Q. If the activities -- do you
believe -- do you understand that your
analysis is relevant to a determination of
whether the defendant has violated the law?
MR. FEE: Objection. Calls for
a legal conclusion.
To the extent that your
understanding is based upon
communications with counsel, you
shouldn't disclose them, unless they
formed the basis for your opinions or
conclusions or provided assumptions
that you relied upon in reaching your
conclusions.
THE WITNESS: I don't know.
BY MR. BRIDGES:
Q. Do you have any view as to
whether the defendant has violated copyright
law?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: No, I've not

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those communications.
THE WITNESS: You're asking for
a legal conclusion. I'm not an expert
on that.
BY MR. BRIDGES:
Q. I'm understanding your
understanding -- I'm asking for your
understanding of the relevance of your
contributions to this case.
MR. FEE: Objection. Asked and
answered. Plus all the prior
objections and instructions.
THE WITNESS: I believe my
testimony and report are relevant to
the issue of harm and potential harm.
BY MR. BRIDGES:
Q. From what?
A. From continuing -- the
continuing activities and possible expanded
activities of the defendant here.
Q. From activities or from
violations of law?
MR. FEE: Objection. Vague.
Calls for a legal conclusion.
THE WITNESS: I -- I'm working

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taken on that assignment.
BY MR. BRIDGES:
Q. Do you have any view as to
whether the defendant's activities constitute
fair use?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: No, I've not
taken on that assignment.
BY MR. BRIDGES:
Q. If a court determines that the
defendant has not infringed upon plaintiffs'
copyrights, do you understand that the
decision would result in economic harm to the
plaintiffs?
MR. FEE: Objection to the
extent it calls for a legal
conclusion.
THE WITNESS: I'm not following
your question. Could you ask it a
little bit differently, please?
BY MR. BRIDGES:
Q. No, I'll restate it if you just
need to rehear it.
A. No, I don't need to rehear it.

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If you could recast it, please.
Q. No. Then please answer my
question.
MR. FEE: Objection.
BY MR. BRIDGES:
Q. I get to ask the questions.
MR. FEE: He just said he
couldn't answer it.
THE WITNESS: I don't
understand the question.
BY MR. BRIDGES:
Q. What is it you don't
understand?
A. I understand each word but not
how you put them together.
Q. If a court determines that the
defendant has not infringed upon the
plaintiffs' copyrights, do you believe that
that decision would result in economic harm
to the plaintiffs?
MR. FEE: Objection to the
extent it calls for a legal
conclusion. Plus asked and answered.
THE WITNESS: It sounds like
exactly the same words, so I'm not

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that's fine.
A. I want to, but I cannot.
Q. Well -A. I do not understand the
question.
Q. I'll say it again.
Would a decision by the Court
that the defendant has not infringed upon the
plaintiffs' copyrights result in economic
harm to the plaintiffs?
MR. FEE: Objection. Calls for
a legal conclusion. Asked and
answered.
THE WITNESS: I -MR. FEE: Vague.
THE WITNESS: I cannot answer
it any differently. I'm sorry.
Is this a good time for a
break, or do you want to keep going?
MR. BRIDGES: Sure. We can
take one if you want.
THE VIDEOGRAPHER: Off the
record at 1:17.
* * *
(Recess from 1:17 p.m. to

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sure how to answer that question.
BY MR. BRIDGES:
Q. Would a decision that the
defendant has not infringed upon plaintiffs'
copyrights result in economic harm to the
plaintiffs?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: I'm just not
following. I under -- I'm worked -I'm working under the assumption that
the activity here represents a
copyright infringement. I'm -- and
I'm being asked and answering the
question of the impact of that and
whether there would be harm and what
kind of harm and whether that's
reparable harm.
So I'm focusing on what has
been done and what may continue to be
done by the defendant.
BY MR. BRIDGES:
Q. That's non-responsive. I'll
ask you to answer my question. And if you
just don't want to answer the question,

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2:12 p.m.)
* * *
THE VIDEOGRAPHER: On the
record at 2:12.
BY MR. BRIDGES:
Q. Good afternoon, Mr. Jarosz.
A. Good afternoon.
Q. Could you outline for me,
please, what steps you took in your
engagement in this case? What are the
different activities you engaged in?
A. Generally, I had a discussion
with counsel about the matter. Then we
examined documents that would -- were
provided to us to give us background. We
then proceeded to gather our own information
from third-party sources, primarily through
Internet searches.
We obtained information that
had been produced as part of discovery. We
had conversations with people at the various
plaintiff organizations.
We outlined the report and
summarized some of the information that you
see in the tabs. We had discussions with

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If you could recast it, please.
Q. No. Then please answer my
question.
MR. FEE: Objection.
BY MR. BRIDGES:
Q. I get to ask the questions.
MR. FEE: He just said he
couldn't answer it.
THE WITNESS: I don't
understand the question.
BY MR. BRIDGES:
Q. What is it you don't
understand?
A. I understand each word but not
how you put them together.
Q. If a court determines that the
defendant has not infringed upon the
plaintiffs' copyrights, do you believe that
that decision would result in economic harm
to the plaintiffs?
MR. FEE: Objection to the
extent it calls for a legal
conclusion. Plus asked and answered.
THE WITNESS: It sounds like
exactly the same words, so I'm not

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that's fine.
A. I want to, but I cannot.
Q. Well -A. I do not understand the
question.
Q. I'll say it again.
Would a decision by the Court
that the defendant has not infringed upon the
plaintiffs' copyrights result in economic
harm to the plaintiffs?
MR. FEE: Objection. Calls for
a legal conclusion. Asked and
answered.
THE WITNESS: I -MR. FEE: Vague.
THE WITNESS: I cannot answer
it any differently. I'm sorry.
Is this a good time for a
break, or do you want to keep going?
MR. BRIDGES: Sure. We can
take one if you want.
THE VIDEOGRAPHER: Off the
record at 1:17.
* * *
(Recess from 1:17 p.m. to

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sure how to answer that question.
BY MR. BRIDGES:
Q. Would a decision that the
defendant has not infringed upon plaintiffs'
copyrights result in economic harm to the
plaintiffs?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: I'm just not
following. I under -- I'm worked -I'm working under the assumption that
the activity here represents a
copyright infringement. I'm -- and
I'm being asked and answering the
question of the impact of that and
whether there would be harm and what
kind of harm and whether that's
reparable harm.
So I'm focusing on what has
been done and what may continue to be
done by the defendant.
BY MR. BRIDGES:
Q. That's non-responsive. I'll
ask you to answer my question. And if you
just don't want to answer the question,

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2:12 p.m.)
* * *
THE VIDEOGRAPHER: On the
record at 2:12.
BY MR. BRIDGES:
Q. Good afternoon, Mr. Jarosz.
A. Good afternoon.
Q. Could you outline for me,
please, what steps you took in your
engagement in this case? What are the
different activities you engaged in?
A. Generally, I had a discussion
with counsel about the matter. Then we
examined documents that would -- were
provided to us to give us background. We
then proceeded to gather our own information
from third-party sources, primarily through
Internet searches.
We obtained information that
had been produced as part of discovery. We
had conversations with people at the various
plaintiff organizations.
We outlined the report and
summarized some of the information that you
see in the tabs. We had discussions with

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counsel. And then we finalized the report,
submitting it to counsel on June 5th, 2015.
Q. Do you know how many standards
of each plaintiff are at issue in this case?
A. How many -- I'm sorry -standards are at issue?
Q. Yes.
A. I have that number written
down. It's in the hundreds, and I forget, as
I sit here right now, precisely the number.
I will look it up. And I was giving you an
answer that was a cumulation across the three
plaintiffs.
I am not seeing that number
right now. I'll keep looking.
Q. Do you know what -A. You may be able to point me
quicker than I recall where it was.
Q. Do you -- do you know what
proportion of plaintiffs -- of each
plaintiffs' standards is at issue in this
case?
A. Are you asking me the ratio of
the standards at issue versus the total
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Q. Have you analyzed any
differences in sales trends between those of
plaintiffs' standards that have been
incorporated into law and those of
plaintiffs' standards that have not been
incorporated into law?
A. I don't think so. I don't
think I have those data, and I'm not sure
that each plaintiff knows precisely how many
have been incorporated into law.
Q. Did you ask for any data
regarding the distinction between standards
incorporated by reference and standards not
incorporated by reference in the law?
A. I don't -MR. FEE: Objection to form.
THE WITNESS: I'm sorry. I
don't recall.
BY MR. BRIDGES:
Q. You made observations about
sales trends earlier in your deposition. I
think you said that there's been a reduction
in sales of certain of plaintiffs' standards;
is that correct?
A. I'm not quite sure what the

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Q. Yes.
A. I think it's less than a
majority for each organization. I'm fairly
certain of that with regard to ASTM. I think
that's true with regard to NFPA. I think
it's true with regard to ASHRAE.
Q. Do you have any better
information than less than a majority -A. Well, I -Q. -- for each of them?
A. The precise numbers are in the
report. Let's see here. One can figure that
out. You may remember where I summarized the
number of standards. I just don't remember.
It's easy to determine because the data are
all here.
Q. Have you analyzed differences
in sales trends between standards that are at
issue in this case and plaintiffs' other
standards?
A. No, I don't think I have those
data at my disposal.
Q. Did you ever ask for those
data?
A. I don't recall.

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earlier testimony was, but I think I was
pointing you to paragraph 133 with regard to
downloads of -- and other measures of
activity, as I had at my disposal.
Q. Well, I'm trying to find out
what changes you have studied in plaintiffs'
economics that you attribute to defendant's
activities.
A. I'm not quite sure what your
question is.
Q. Well, I'm trying to find out
what information you have studied to
determine what changes in the finances of
each of the plaintiffs have occurred as a
consequence of the defendant's activities.
MR. FEE: Objection to form.
THE WITNESS: I'm still not
sure that I'm hearing a question. But
to the extent that I had information
on changes in activity level, I
summarized that in paragraph 133.
BY MR. BRIDGES:
Q. My question is, what
information did you study to determine any
changes in finances of each of the

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plaintiffs?
MR. FEE: Same objection.
THE WITNESS: It's reflected in
paragraph 133 and in the tabs,
particularly 3, 4, and 5. But the
tabs are not at the granular level
that I think are of interest to you.
BY MR. BRIDGES:
Q. What do you mean by the
"granular level" that would be of interest to
me?
A. I don't think it breaks out
publications by standard, for instance.
Q. Does it break out publications
by whether a standard has been incorporated
by reference or not?
A. I don't think so.
Q. Does it break out by whether a
standard has been publicly made available by
defendant or not?
A. I don't think so. Not in
tabs 3, 4, and 5.
Q. How do you establish causation
between defendant's activities and any of the
data that you provide in section -- in

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of certain of the standards. I've
presented that.
I don't have direct evidence of
the precise impact historically of
defendant's activities on plaintiffs'
financials.
BY MR. BRIDGES:
Q. What evidence of any kind do
you have of any kind of impact historically
of the defendant's activities on plaintiffs'
financials?
MR. FEE: Objection to form.
THE WITNESS: That which is
reported in paragraph 133, that of
which is contained in deposition
testimony, and that of which I
summarized in other parts of the
report.
BY MR. BRIDGES:
Q. So when you're referring to
deposition testimony, you're referring to the
citations to the footnotes in paragraph 133?
A. No, I don't think it's just
limited to that. I think there's some other
deposition transcripts that talk about the

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paragraph 133?
MR. FEE: Objection. Calls for
a legal conclusion. Form.
THE WITNESS: One can and
should look at all evidence available,
including circumstantial evidence. I
don't have direct information about
the precise impact of defendant's
activities, but I have important
information that bears on that issue,
including information that's in
deposition transcripts.
BY MR. BRIDGES:
Q. So my question is, how do
you -- do you -- strike that.
Are your conclusion -- are you
making conclusions in paragraph 133 about the
cause of changes in sales of the plaintiffs'
products?
MR. FEE: Objection to form.
THE WITNESS: Not definitively.
I have observations about the
magnitude and trend of the downloads
of -- through defendant's sites. I
have some information on the downloads

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impact or potential impact of defendant's
activities on each one of the plaintiffs.
Q. Did you make any independent
assessment of causation of any financial
effects on plaintiffs by the defendant's
activities?
MR. FEE: Objection to form.
Calls for a legal conclusion.
THE WITNESS: What do you mean
by the term of "independent assessment
of causation"?
BY MR. BRIDGES:
Q. You, as an expert, not relying
just on what other people have said or
speculated or thought.
MR. FEE: Same objections.
Plus compound.
THE WITNESS: We experts rely
on other information to draw the
conclusions that we do, and then we
bring our training to it. So our
observations shouldn't be in a vacuum.
BY MR. BRIDGES:
Q. But they should be objective,
correct?

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plaintiffs?
MR. FEE: Same objection.
THE WITNESS: It's reflected in
paragraph 133 and in the tabs,
particularly 3, 4, and 5. But the
tabs are not at the granular level
that I think are of interest to you.
BY MR. BRIDGES:
Q. What do you mean by the
"granular level" that would be of interest to
me?
A. I don't think it breaks out
publications by standard, for instance.
Q. Does it break out publications
by whether a standard has been incorporated
by reference or not?
A. I don't think so.
Q. Does it break out by whether a
standard has been publicly made available by
defendant or not?
A. I don't think so. Not in
tabs 3, 4, and 5.
Q. How do you establish causation
between defendant's activities and any of the
data that you provide in section -- in

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of certain of the standards. I've
presented that.
I don't have direct evidence of
the precise impact historically of
defendant's activities on plaintiffs'
financials.
BY MR. BRIDGES:
Q. What evidence of any kind do
you have of any kind of impact historically
of the defendant's activities on plaintiffs'
financials?
MR. FEE: Objection to form.
THE WITNESS: That which is
reported in paragraph 133, that of
which is contained in deposition
testimony, and that of which I
summarized in other parts of the
report.
BY MR. BRIDGES:
Q. So when you're referring to
deposition testimony, you're referring to the
citations to the footnotes in paragraph 133?
A. No, I don't think it's just
limited to that. I think there's some other
deposition transcripts that talk about the

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paragraph 133?
MR. FEE: Objection. Calls for
a legal conclusion. Form.
THE WITNESS: One can and
should look at all evidence available,
including circumstantial evidence. I
don't have direct information about
the precise impact of defendant's
activities, but I have important
information that bears on that issue,
including information that's in
deposition transcripts.
BY MR. BRIDGES:
Q. So my question is, how do
you -- do you -- strike that.
Are your conclusion -- are you
making conclusions in paragraph 133 about the
cause of changes in sales of the plaintiffs'
products?
MR. FEE: Objection to form.
THE WITNESS: Not definitively.
I have observations about the
magnitude and trend of the downloads
of -- through defendant's sites. I
have some information on the downloads

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impact or potential impact of defendant's
activities on each one of the plaintiffs.
Q. Did you make any independent
assessment of causation of any financial
effects on plaintiffs by the defendant's
activities?
MR. FEE: Objection to form.
Calls for a legal conclusion.
THE WITNESS: What do you mean
by the term of "independent assessment
of causation"?
BY MR. BRIDGES:
Q. You, as an expert, not relying
just on what other people have said or
speculated or thought.
MR. FEE: Same objections.
Plus compound.
THE WITNESS: We experts rely
on other information to draw the
conclusions that we do, and then we
bring our training to it. So our
observations shouldn't be in a vacuum.
BY MR. BRIDGES:
Q. But they should be objective,
correct?

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A. Yes.
Q. And that means perhaps not
relying upon the views of the parties to the
lawsuit alone, but doing independent analysis
and research, correct?
MR. FEE: Objection to form.
THE WITNESS: I think one can
and should evaluate and consider the
views of the parties, but not limited
investigation to that.
BY MR. BRIDGES:
Q. So what independent analysis
and research did you do other than reviewing
the views and statements of the parties in
this case?
MR. FEE: Objection. Vague.
THE WITNESS: I reviewed and
summarized the data, as you see in
133, that I had at my disposal. I
reviewed writings about the impacts.
And I took important
information from the fact that the
plaintiffs have brought this lawsuit.
The plaintiffs don't want this
activity to continue. That is

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A.

I took all the data -MR. FEE: Objection. Form.
Objection to form.
THE WITNESS: I took all this
data into account. That's why I
reported it here.
BY MR. BRIDGES:
Q. And the data that you
identified in the footnotes in
paragraph 134 -- sorry -- 133?
A. Yes, I considered that
information.
Q. Do you know in what year the
defendant posted the 2008 version of the
National Electrical Code on its Web site?
A. I don't know with absolute
certainty. I do know a number of the alleged
activities occurred in late 2012. I don't
know if it's specific to that code or not.
Q. Does it matter to your analysis
exactly when the defendant posted the 2008
National Electrical Code on its Web site or
to Internet Archive?
A. I would -MR. FEE: Objection to form.

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revealed preference information that's
quite important.
BY MR. BRIDGES:
Q. Tell me about what you mean by
repealed -- sorry. Strike that.
Tell me what you mean by
"revealed preference."
A. What people do often provides
information on what their preferences are.
Q. And so the fact that plaintiffs
brought this lawsuit has revealed to you that
they prefer to bring the lawsuit, correct?
MR. FEE: Objection. Vague.
THE WITNESS: Given the cost,
they prefer to bring the lawsuit
rather than not bring it, yes.
BY MR. BRIDGES:
Q. What else -- strike that.
What are the data you're
referring to in page -- strike that.
What are the data you're
referring to in paragraph 133 that you took
into account in discussing or analyzing
effects of defendant's activities on
plaintiffs?

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THE WITNESS: I would consider
that information if I had it, but I
don't have any reason to think that it
would change any of the conclusions
that I drew.
BY MR. BRIDGES:
Q. The timing of when the
defendant posted certain matters wouldn't
change your conclusions?
A. Not based on what I know right
now. My understanding is that much of the
activity occurred in 2012, the later half of
2012, and I still have the whole body of
evidence that I have considered. So I'm not
sure if the precise timing would change, but
I certainly would consider that.
Q. Do you know in what year
Public.Resource.Org posted the 2011 version
of the National Electrical Code?
A. Same answer to the question
that you had with regard to the 2008 code.
Q. Can you look at the data in
your -- the tables attached to your report
and see if that helps refresh your memory as
to when the defendant posted NEC 2008 and

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NEC -- NEC 2011?
A. I can look, and I will.
No, it doesn't answer that
question, I don't think.
Q. Can you make a prediction as to
when the defendant posted NEC 2008 and
NEC 2011, based on the data attached to your
report in Exhibit 1?
MR. FEE: Objection to form.
THE WITNESS: No, I don't
think, based on just those data.
BY MR. BRIDGES:
Q. Can you make -- give an
estimate as to when the defendant posted
NEC 2008 and NEC 2011, based on the data
attached to your report as Exhibit 1?
MR. FEE: Same objection.
THE WITNESS: No, I don't
think, based on just that information.
BY MR. BRIDGES:
Q. Well, just looking at your
report, can you tell when defendant posted
NEC 2008 and NEC 2011?
A. My answer hasn't changed. I
still don't know precisely when those were

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appropriateness of a permanent
injunction here.
BY MR. BRIDGES:
Q. Is the appropriate of -- is the
appropriateness of a permanent injunction an
economic question?
A. I think, in part, economic
considerations can be and often are taken
into account in answering that question.
Q. Is it an economic question?
MR. FEE: Objection.
BY MR. BRIDGES:
Q. That was my question.
MR. FEE: Asked and answered.
THE WITNESS: Again, in part.
BY MR. BRIDGES:
Q. The propriety of
a preliminary -- of a -- strike that.
It's your testimony that the
propriety of a permanent injunction is, in
part, an economic question?
MR. FEE: Objection. Asked and
answered. Form. Calls for a legal
conclusion.
THE WITNESS: Yes. As I

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posted.
Q. But that doesn't make a
difference to your economic analysis of the
effects of defendant's activities on the
plaintiffs?
A. Well, I would be curious -MR. FEE: Objection to form.
THE WITNESS: -- curious about
that information, but I don't have any
reason to think it would change the
conclusions that I drew, and that is
that a permanent injunction is
appropriate here.
BY MR. BRIDGES:
Q. Is it your job to determine
whether a permanent injunction is
appropriate? Is that what you were hired to
do?
A. No.
MR. FEE: Objection. Calls for
a legal conclusion. Form. Compound.
THE WITNESS: I think it's
ultimately the Court's decision to
make, but I've been asked what my
economic view is as to the

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understand it, one factor to consider
is the reparability or irreparability
of harm. I believe, at its core,
that's an economic question.
BY MR. BRIDGES:
Q. And what economic theories did
you rely upon to conclude that, as an
economic matter, a preliminary -- strike
that.
What economic theories did you
rely upon to conclude that, as an economic
matter, a permanent injunction is appropriate
in this case?
MR. FEE: Same objections.
THE WITNESS: I don't know what
candidates you have in mind for
economic theories.
BY MR. BRIDGES:
Q. Whichever ones you relied upon.
A. I -MR. FEE: Same objections.
THE WITNESS: -- used all of my
training and applied it to the facts
of this case and drew the conclusions
that I did.

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BY MR. BRIDGES:
Q. And are there any particular
aspects of training that you have beyond what
a first-year college student would have
gotten in a first-year economics course that
you have brought to bear by applying
particular economic theories to this case?
A. I think my training makes me
who I am and has helped me in assignments
like this. I have beyond a first-year-incollege understanding of basic economics, but
they're very important concepts that are
taught and learned in first-year economics.
Q. Well, I want to know if there
are any economic concepts beyond first-year
economics that you have brought to bear in
rendering your conclusions in this case.
MR. FEE: Objection to form.
Asked and answered.
THE WITNESS: Generally, there
are, yes.
BY MR. BRIDGES:
Q. What economic concepts have you
brought to bear in your report and analysis
in this case?

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THE WITNESS: We learn about
price theory. We learn about consumer
behavior. We talk -- we learn about
manufacturer and supplier actions. We
learn about game theory. We learn
about econometrics. We learn more
broadly about quantitative methods.
We learn about a variety of aspects of
industrial organization. There are
many things that we learn beyond the
first year of economics training.
BY MR. BRIDGES:
Q. No, I'm asking what you brought
to bear in your analysis in this case.
A. All those.
Q. Okay. What aspect of price
theory did you bring to bear in this case?
A. I don't know how to answer that
question besides I understand basic price
theory and have researched it much and
applied that to the facts here.
Q. What was the specific
application of price theory that you brought
to bear in this case?
A. I can't be any more specific

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A. I'm sorry, because I don't know
what you mean by "economic concepts." We get
trained in things like quantitative methods
and intermediate microeconomics, in price
theory, in econometrics, in consumer
behavior. All those things are beyond the
first year. I don't know if you're calling
those economic theories. Your -- your
questioning confuses me.
Q. Well, you referred to the
important concepts in response to my question
to you about particular aspects of training
that you have beyond what a first-year
college student would have gotten in a
first-year economics course that you brought
to bear by applying economic theories to this
case, and your answer refers to very
important concepts that are taught and
learned.
And so I'm asking you, what
very important economic concepts have you
brought to bear in your analysis of this
case?
MR. FEE: Objection to form.
Lack of foundation.

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than that. I don't understand your question.
Q. What aspect of training about
consumer behavior did you bring to bear in
this case?
A. I can't be any more specific
than saying that.
Q. What aspects of your training
about game theory have you brought to bear in
your work on this case?
A. I can't be any more specific
than that.
Q. What aspects of econometrics in
your training have you brought to bear on
this case?
A. I can't be any more specific
than that.
Q. What inform -- what aspects of
training in qualitative methods have you
brought to bear on this case?
A. I didn't say "qualitative
methods," and so it may have been mis-keyed
in. I said "quantitative methods."
Q. All right. What aspects of
quantitative methods of your training did you
bring to bear on this case?

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A. I can't be any more specific
than that.
Q. What aspect of your training
regarding aspects of industrial organization
have you brought to bear on this case?
A. I can't be any more specific
than that.
Q. But you did bring the theory of
reveal -- revealed preferences to bear on
this case, correct?
A. Yes.
Q. What other economic theories do
you recall bringing to bear on this case?
MR. FEE: Objection. Asked and
answered.
THE WITNESS: Everything that
I've -MR. FEE: And vague.
Go ahead.
THE WITNESS: -- I've learned
in my training, both educational
training and career training.
BY MR. BRIDGES:
Q. Can you be more specific than
that?

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just on this information.
Q. What else would you need?
A. I don't know, because I think
it's probably a very easy factual question to
determine when the downloading first
occurred, so I don't know why one would need
to back into it.
Q. Well, when -- would one be able
to use sales trends as a way of identifying
likely effects of a posting of each standard
by the defendant?
MR. FEE: Objection. Vague.
Compound.
THE WITNESS: Maybe; maybe not.
BY MR. BRIDGES:
Q. Why do you say "maybe; maybe
not"?
A. I just wouldn't think to do it
that way, so I don't know what you exactly
have in mind.
Q. Do you associate the posting of
standards by defendant with changes in sales
volume of the standards that the defendant
has posted?
MR. FEE: Objection to form.

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A.

No.
* * *
(Jarosz Exhibit 4 marked for
identification.)
* * *
BY MR. BRIDGES:
Q. Mr. Jarosz, do you recognize
Exhibit 4 as a document that you produced in
response to a subpoena in this case?
A. Yes.
Q. What is this document?
A. It appears to be a summary over
the years 2009 through 2013 of dollars and
quantity of NFPA standards that were sold in
the marketplace.
Q. Based upon the trends that you
see in this exhibit, can you estimate when
you believe it is most likely that the
defendant first published -- strike that.
Based upon the trends that you
see in this Exhibit 4, can you estimate when
you believe it is most likely that the
defendant first posted each of the standards
identified here?
A. I don't think so, not based

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THE WITNESS: I don't know what
you mean by that question.
BY MR. BRIDGES:
Q. You don't understand the
question?
A. I do not.
Q. Can you correlate the posting
of standards by defendant with any changes in
sales volumes of the standards that the
defendant has posted?
MR. FEE: Objection to form.
THE WITNESS: I don't think
I've attempted to compute the
correlation coefficient here
associated with postings.
BY MR. BRIDGES:
Q. I'm not asking for a specific
correlation coefficient. I'm just asking,
generally, can you correlate the posting of
standards by defendant with any changes in
sales volumes of the standards that
defendants has -- that the defendant has
posted with reference to Exhibit 4?
A. I don't know -MR. FEE: Objection. Form.

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THE WITNESS: I don't recall
attempting to do that. And I wouldn't
necessarily think that the historical
impact would -- is the end of the
story as to the harm here.
BY MR. BRIDGES:
Q. Is historical impact part of
the story as to the harm here?
A. Yes.
Q. What -- what can you say by
looking at Exhibit 4 about the historical
impact of the posting of the defendant -- of
the plaintiffs' standards by the defendant?
A. I don't know that I can say
much, because I believe the postings largely
occurred in late 2012, and I only have one
period after that.
Q. If it turns out that
defendant's postings were well before 2012,
would that affect your analysis of the trends
in sales data of the plaintiffs'
publications?
MR. FEE: Objection to form.
Compound. Vague.
THE WITNESS: Maybe. I would

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Q. Have you determined in any way
the dates at which defendant posted various
standards to its Web site or to the Internet
Archive?
A. I don't recall doing a separate
analysis of that, no.
Q. How did you learn about the
dates at which defendant posted various
standards to its Web site or to Internet
Archive?
A. I had conversations with
counsel on that topic, and I may have seen
that information contained in certain
documents like the Complaint, but I don't
recall.
Q. Did you rely upon information
regarding those dates from conversations with
counsel?
MR. FEE: In arriving at his
opinions, you're asking?
MR. BRIDGES: Arriving at his
understanding of the facts.
THE WITNESS: I don't know that
I did, because I don't recall
reporting those specific dates

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consider that information in
conjunction with these data if you
wanted me to.
BY MR. BRIDGES:
Q. How -- what -- what would
change?
A. I don't know. I haven't done
that analysis.
Q. Have you verified the dates on
which plaintiffs -- strike that.
Have you verified the dates at
which defendant posted the various standards
to its Web site or to Internet Archive?
A. I don't -MR. FEE: Objection. Vague.
THE WITNESS: I don't recall
verifying it.
And are you asking did I
separately go out and determine what
that date is and see if that was the
same as what was represented in the
Complaint, for instance?
BY MR. BRIDGES:
Q. Yes.
A. No, I don't recall doing that.

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anywhere in my report.
BY MR. BRIDGES:
Q. Do you recall taking specific
dates into account in analyzing the effect of
defendant's actions?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I don't recall
one way or the other.
BY MR. BRIDGES:
Q. Do you know how -- strike that.
Do you know how much revenue
each plaintiff derives from the standards at
issue in this case?
A. I don't think I know that
precise number.
Q. Did you -- did you ever know
that number?
A. I don't think so.
Q. Did you ever know how much
revenue each plaintiff derives from standards
that have been incorporated into law?
A. As opposed to those that have
not been incorporated? Is that -Q. Well, I'm -- I'm asking about

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those standards that have been incorporated
in the law. I'm asking if you know how much
revenue each plaintiffs derives -- each
plaintiff derives from those standards.
A. I don't -MR. FEE: Objection. Form.
THE WITNESS: -- think I know
that number, and I'm not sure the
plaintiffs know that number.
BY MR. BRIDGES:
Q. Do you know the percentage of
revenue that each plaintiff derives from
standards that have been incorporated into
law?
MR. FEE: Objection to form.
THE WITNESS: I don't think I
do, and I don't believe the plaintiffs
do.
BY MR. BRIDGES:
Q. Are you aware of any difference
in profitability to plaintiffs between those
standards that have been incorporated into
law and those standards that have not been
incorporated into law?
MR. FEE: Objection to form.

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something just north of 50 percent for
ASHRAE.
BY MR. BRIDGES:
Q. What do you mean by "if you add
in memberships"?
A. I'm not -- I'm not quite sure
what you're asking me to define.
Q. I'm asking you to explain the
phrase that you just used, "if you add in
memberships." What did that mean?
A. I talked about that in my
report. Membership fees are a fairly good
recollect -- a fairly good reflection of
amount that would have been paid for
publications. In other words, publication
fees -- it -- let me start this over again.
It makes about as much sense to
become a member of ASHRAE as it is to buy
some of the individual publications. As a
result, many people choose to become members
rather than just buying the publication, as I
understand it.
Q. How did you learn that?
A. Having knowledge of the -- of
the price difference and through discussions

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THE WITNESS: I don't believe

1
so.
2
BY MR. BRIDGES:
3
Q. Do you know -- strike that.
4
Are you aware of any difference
5
in profitability to plaintiffs between those
6
standards that defendant has posted to the
7
Internet and those standards that defendant
8
has not posted to the Internet?
9
MR. FEE: Objection to form.
10
THE WITNESS: I don't believe
11
so. And as with the previous
12
question, I don't think the plaintiffs
13
have that information at their
14
disposal.
15
BY MR. BRIDGES:
16
Q. For each plaintiff, what do you
17
understand to be the percentage of gross
18
revenue from the sale of standards?
19
MR. FEE: Objection to form.
20
THE WITNESS: I -- I've
21
reported that in my report. My memory
22
is that it's something on the order of
23
66 percent for ASTM and for NFPA. And 24
if you add in memberships, it's
25

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with people at ASHRAE.
Q. How did you learn about the
price difference?
A. I don't recall how I learned
it, but I report it in my report based on
certain documents I've seen. Perhaps I
learned it from their Web site.
Q. Did you do any surveys of
ASHRAE members to validate that assumption?
A. I'm sorry. Validate what
assumption?
Q. About purchase of a membership
instead of buying the publication.
A. I'm not sure that there's an
assumption in there. My understanding is
that ASHRAE people are of the belief that
many people buy membership rather than
individual publications.
Q. And in your work, did you
assume that?
A. I didn't assume that. I worked
on that -- under that understanding.
Q. Oh, it's an understanding, but
not an assumption?
A. Yes.

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Q. Did that understanding make a
difference to your analysis?
A. It was a factual underpinning.
Q. An underpinning, but not an
assumption?
A. It was not an explicit
assumption.
Q. But it was an underpinning, not
an assumption, is your testimony?
MR. FEE: Objection. Asked and
answered.
THE WITNESS: Yes. I don't
know what or why you're arguing with
me on this.
BY MR. BRIDGES:
Q. I'm not arguing.
A. I don't understand.
Q. I'm just trying to understand
your testimony. That's all. So I'm asking
some follow-up questions.
You stated earlier some
percentages of revenue from the sale of
standards. Did you mean to be identifying
what you thought were the percentages of
revenue from the sale of standards or from

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are to copyrighted publications, correct?
A. With the exception of number 3,
which refers to copyrighted publications and
memberships.
Q. Okay. So my question wasn't
about copyrighted publications. My question
is, what percentage do you understand of
plaintiffs' revenues comes from the sale of
standards at issue in this case?
A. Thank you for that reminder of
what the question is.
I don't think I know that
precise percentage.
Q. What percentage of plaintiffs'
revenues, to your knowledge, comes from the
sale of standards incorporated into law?
A. I don't know that number.
Q. What percentage of plaintiffs'
revenues, to your understanding, comes from
the sale of all standards?
A. I'm sorry. I thought you asked
that question. I thought the immediate one
before that was standards.
Q. No. It was standards at issue
in this case. Then --

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the sale of all publications?
A. Let me -- let me double-check
that.
Well, in the case of ASTM, for
instance, I believe it's copyrighted
publications.
Q. What page are you referring to
in your report?
A. Right now I'm looking at
page 36, but I think I talk about it at other
areas.
Q. So page 36, you're talking
about which paragraph?
A. Well, right now I was -Q. 83?
A. -- I was looking at 83, but I'm
turning back to, for more reliable
information, to paragraph 15, for instance,
which says in 2014, 67.1 percent of the
revenue was generated by the sale of
copyrighted publications. For NFPA, that
information is shown in paragraph 18. And
for ASHRAE, that information is shown in
paragraph 22.
Q. All three of those references

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A. The one before that.
Q. -- standards incorporated into
law. And now it's all standards.
A. Right. Thank you.
I don't know that number
either.
Q. What percentage of
plaintiffs' -- strike that.
What dollar value do you
associate with the investments that each
plaintiff has made in the development of the
standards at issue in this case?
A. I don't think I attributed a
dollar amount to that precise activity,
because I don't know that amount.
Q. What percentage of plaintiffs'
operating expenses do you associate with the
plaintiffs' development of the standards at
issue in this case?
A. I don't think I know that
number.
Q. What percentage of plaintiffs'
operating expenses do you associate with the
plaintiffs' development of standards
incorporated into law?

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A. I don't think I know that
number.
Q. What percentage of plaintiffs'
operating expenses do you associate with the
plaintiffs' development of standards
generally?
A. I don't think I know that
number.
Q. Do you have any estimates of
any of those numbers that you just said you
don't think you know?
MR. FEE: Objection to form.
THE WITNESS: Not sitting here
right now.
BY MR. BRIDGES:
Q. Did you at one point ever
determine those numbers?
A. Not that I recall.
Q. Do you know what percentage of
the staff or employees of each plaintiff has
worked on the development of standards at
issue in this case?
MR. FEE: Objection to form.
THE WITNESS: I don't think I
know that number.

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Q. Have you ever had access to any
information that I've asked in the last
several questions?
MR. FEE: Objection to form.
THE WITNESS: I don't believe
so.
BY MR. BRIDGES:
Q. Do you know whether plaintiffs
prepare standards through joint sponsorship
with any other organizations?
MR. FEE: Objection. Vague.
THE WITNESS: I think I may
have seen a reference to that. I
don't know the extent to which it
occurs, but I wouldn't be surprised to
be reminded that it does occur.
BY MR. BRIDGES:
Q. Are you aware of any, as you
sit here?
A. Not as I sit here right now,
but I think I'm aware that it has occurred.
Q. Do you know whether plaintiffs
receive grants, revenue, or stipends from
governments that use, reference, or adopt
their standards?

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BY MR. BRIDGES:
Q. Do you know what percentage -do you have an estimate?
A. No.
MR. FEE: Objection to form.
THE WITNESS: Not as I sit
here, no.
BY MR. BRIDGES:
Q. Do you know what percentage of
the staff or employees of each plaintiff has
worked on the development of standards
incorporated into law?
MR. FEE: Objection to form.
THE WITNESS: Not as I sit here
right now.
BY MR. BRIDGES:
Q. Do you have an estimate?
A. Not as I sit here right now.
Q. Do you know what percentage of
the staff or employees of each plaintiff has
worked on the development of standards in
general?
A. Not as I sit here right now.
Q. Do you have an estimate?
A. Not as I sit here right now.

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MR. FEE: Objection to form.
THE WITNESS: There are grant
monies that go to NFPA. I don't know
the source of those grants. I don't
see a line for grant revenues for the
other two organizations.
BY MR. BRIDGES:
Q. Did you ask any of the
plaintiffs about the revenues or expenses
they have specifically attributable to the
standards that defendant has posted to the
Internet?
MR. FEE: Objection to form.
THE WITNESS: We generally
talked about that topic with each
plaintiff, and I don't think the
plaintiffs know that amount. They
undertake activities that are
standards oriented. They don't know
which of those standards will be
incorporated by reference.
BY MR. BRIDGES:
Q. Did you -A. Or which have been. I don't
think they systematically track those.

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documents, but they provided them as
part of the discovery process.
BY MR. BRIDGES:
Q. Did you ask them for any
documents that they had not provided?
A. I think we generally described
the kinds of information that we find useful
or typically find useful in matters like
this.
Q. After you received documents
from plaintiffs' counsel, did you ask them
for any more?
A. That -- that's possible. I
don't recall that.
Q. You don't recall. Did you -do you have any understanding as to the
dollar value of staff time and expenses that
the plaintiffs have incurred in promoting
incorporation of their standards into law?
MR. FEE: Objection to form.
Lack of foundation.
THE WITNESS: I don't think I
have that number, no.
BY MR. BRIDGES:
Q. Do you have an estimate?

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A. I looked at some parts of it.
I don't recall that I looked at all aspects
of the database.
Q. Did you verify how many
standards were incorporated by reference
according to that database?
A. No, I did not.
Q. What do you mean by, "This
database reports nearly 13,000 instances of
incorporation by reference"?
A. I don't know what you're asking
me to define.
Q. I'm not asking you to define
anything. I'm asking you to explain what you
meant by that clause, "This database
reports" -A. I'm sorry. I'm just -- I'm
going to be just rearranging words a little
bit. There were 13,000 times that there was
incorporation by reference of a standard.
I -- I don't -- I'm sorry. I
don't understand what your confusion is.
Q. I'm not confused. I'm just
asking you questions. Okay? So please don't
understand -- please don't assume that I'm

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MR. FEE: Same objections.
THE WITNESS: Not as I sit here
now, no.
BY MR. BRIDGES:
Q. Did you discuss that issue with
anyone representing the plaintiffs?
MR. FEE: Same objections.
THE WITNESS: It's possible,
but I don't recall having that
discussion.
BY MR. BRIDGES:
Q. In paragraph 57 of your report,
you refer to "thousands of private-sector
standards." Was your sole support for the
statement in paragraph 57 the Bremer article
you cited in footnote 88?
A. No. You see I discuss and
provide support for that in subsequent
paragraphs in that section.
Q. And that includes in
paragraph 58?
A. Yes.
Q. And did you review the
Standards Incorporated by Reference Database
that you refer to in paragraph 58?

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confused. I'm trying to understand what you
meant by that.
You mean separate instances?
You mean separate laws? What do you mean?
A. Yes. Separate instances slash
separate laws.
Q. What did you count as an
instance?
A. Mention in a particular law of
a standard.
Q. Did you or anybody working with
you attempt to determine the number of
standards that those 13,000 instances of
incorporation by reference referred to?
A. Not entirely. But if you read
on that -- in that same section, it talks
about the number of ASTM standards, the
numbers of -- the number of NFPA standards,
and the number of ASHRAE standards.
Q. Well, please tell me where it
refers to the number of standards.
A. It says, "Including more than
2,400 instances involving ASTM standards."
So you're right. It doesn't
have the number of standards. It just has

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mentions of standard. You're absolutely
right.
Q. And the same thing is true of
the NFPA standards and ASHRAE standards?
A. You're absolutely right, yes.
Q. Do you know how many standards
that database shows as having been
incorporated by reference?
A. Not sitting here right now.
One could perhaps look at what I cited to
answer that question, but I don't know right
now.
Q. Do you know whether anyone
working for you ever did that work to make
that determination?
A. I don't recall that being done.
Q. Paragraph 59, you say, "At the
state level, privately-developed standards
are incorporated by reference as part of the
exercise of a range of governmental
functions."
Do you see that?
A. Yes.
Q. What do you mean by
"governmental functions" in that statement?

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Q. What are the governmental
functions with respect to driving that you
have in mind?
A. I don't have any particular
ones in mind.
Q. In paragraph 59, you say, "At
least 44 states and territories have adopted
ASHRAE 90.1 as part of the commercial
building energy code."
Do you see that?
A. Yes, I do.
Q. And that also has footnote 95
associated with that as well, correct?
A. Yes, that's correct.
Q. How do you explain the fact
that that reference in footnote 95 shows that
those 44 states, in fact, adopted the
International Energy Conservation Code that
merely has a reference to an option to use
ASHRAE 90.1?
MR. FEE: Objection. Lack of
foundation.
THE WITNESS: I don't have any
explanation for that.
BY MR. BRIDGES:

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A.

Things that government agencies

do.
Q. And you give a couple of
examples, but speaking broadly, what are
governmental functions that involve
incorporation by reference of privately
developed standards at the state level?
MR. FEE: Objection to form.
THE WITNESS: I can only answer
generally. Health and human services,
things that are related to that,
safety, driving rules and regulation.
Those are among the things that come
to mind.
BY MR. BRIDGES:
Q. What are the governmental
functions related to health and human
services that you have in mind?
A. I don't have any particular
ones in mind.
Q. What are the governmental
functions relating to safety that you have in
mind?
A. I don't have any particular
ones in mind.

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Q. Did you verify that?
A. I did not, no.
Q. Who did?
A. I'm sorry. Who verified what?
Q. On what -- on what did you rely
to make that statement with that footnote?
A. I may not understand your
question. I relied on what's identified in
footnote 95.
Q. But you didn't review foot -what's in footnote 95, right?
MR. FEE: Objection. Lack of
foundation.
THE WITNESS: I did.
BY MR. BRIDGES:
Q. You -- you reviewed that Web
site?
A. Yes.
Q. Personally?
A. Yes, I believe so.
Q. Do you have an explanation as
to why the resource cited in footnote 95
actually shows that the 44 states adopted the
International Energy Conservation Code?
MR. FEE: Objection. Lack of

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Q. What other benefits do
plaintiffs gain from incorporation by
reference of their standards?
A. I think that generally covers
it. I may be forgetting things that are laid
out in my report, but that's what covers it,
to the best of my memory right now.
Are we at a good point for a
break?
Q. If you want. Sure.
A. Thanks.
THE VIDEOGRAPHER: Off the
record at 3:12. This is the end of
media unit number 2.
* * *
(Recess from 3:12 p.m. to
3:41 p.m.)
* * *
THE VIDEOGRAPHER: On the
record at 3:41. This is the beginning
of media unit number 3 in the
deposition of John Jarosz.
* * *
(Jarosz Exhibit 5 marked for
identification.)

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a particular period.
Q. And then you do the same for
NFPA documents, correct?
A. Yes.
Q. What do you calculate as the
dollar value of harm to the -- to ASTM from
the accesses and downloads that you refer to
in paragraph 133?
A. I haven't calculated that harm.
Q. Why not?
A. I'm not sure if I can at this
stage. One estimate would be those number of
downloads times the -- well, actually, no,
let me take that back. I just don't know how
to do it.
Q. Can you be certain that these
accesses or down -- and downloads referred to
in paragraph 133, in fact, resulted in
economic loss to ASTM?
MR. FEE: Objection to form.
THE WITNESS: Not with absolute
certainty, but with reasonable
certainty I can say some -- in some
number of these instances, it's likely
the case that the -- that the

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* * *
BY MR. BRIDGES:
Q. Mr. Jarosz, I've handed you
Exhibit 5. This is an article that you cited
in your report, correct?
A. Yes, I believe so.
Q. Do you recall how this article
came to your attention?
A. I do not.
Q. Is this an article that you
understand to have been published by
plaintiff ASHRAE in its journal?
A. Yes, that's my understanding.
Q. And this is an article you
relied upon with respect to the development
of standard 90, which became standard 90.1,
correct?
A. Yes.
Q. In paragraph 133 of your
report, you talk about a number of
downloads -- strike that -- you talk about a
number of documents accessed through Public
Resource's Web site. Do you see that?
A. I talk about the number of ASTM
documents that are -- that were accessed over

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information would have been obtained
from ASHRAE in -- or ASTM, rather,
in -- through legal means.
BY MR. BRIDGES:
Q. Would that -- in those
instances where you say that the information
would have been obtained from ASTM through
legal means, can you put a dollar value on -or even an estimate of the increased revenue
that ASTM would have gotten from those
instances where people obtained the
information from ASHRAE -- sorry -- from
AST -MR. FEE: Object -BY MR. BRIDGES:
Q. -- from ASTM?
MR. FEE: Objection to form.
THE WITNESS: No, not based on
the information I have. I don't think
I have any indication of who was doing
the downloading and why.
BY MR. BRIDGES:
Q. And do you know what
alternatives persons who were doing the
downloading may have had for obtaining the

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information?
A. Not with certainty, because I
don't know who those persons were, but I
would expect one alternative would be to
obtain it properly, directly from ASTM.
Q. Would that have resulted in
more revenue to ASTM?
A. It may have. If they're
materials that were taken improperly that
would have been paid for, then that would
represent a loss of revenue to ASTM.
Q. Do you know whether any of the
persons who obtained this information from
defendant would have paid for the information
from ASTM?
A. No, not with certainty, because
I don't know the identity of the downloaders
or the reasons for their downloading.
Q. Moreover, those persons might
have accessed the standards from ASTM's
reading room for free and with no revenue to
ASTM, correct?
A. You mean in a but-for world?
Had they not done what they actually did,
alternatively they could have gone to the

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more extended use of that document.
Q. Do you have any evidence about
wide distribution of plaintiffs' standards as
a consequence of defendant's actions?
A. I do not.
Q. Have you reviewed any studies
that would allow you to establish any
connection between the number of accesses or
downloads that Public Resource made possible
and any financial harms to the plaintiffs?
MR. FEE: Objection to form.
THE WITNESS: I don't think
I've seen any study on that, no.
BY MR. BRIDGES:
Q. Have you conducted any studies
that would have allowed you to establish any
connection between the number of accesses or
downloads that Public Resource made possible
and any financial harms to the plaintiffs?
MR. FEE: Objection to form.
THE WITNESS: Not other than
what's contained in my report.
BY MR. BRIDGES:
Q. Please turn to page 45,
paragraph 107, which spills into page 108.

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free reading room?
Q. Right.
A. That's a possibility, yes.
Q. Do you have an understanding as
to why persons would want to download a file
of a standard instead of viewing it at one of
the plaintiffs' reading rooms?
A. Not with absolute certainty,
but I would imagine downloading would allow
more flexibility in referring to the standard
and using it and sharing that information
with others, whereas reading it in -- through
an Internet site is somewhat less flexible,
provides less flexibility for the use of that
information.
Q. What did -- what do you
understand to be the difference in
flexibility between possession of a download
and access to a standard through a reading
room?
A. Well, I think that a download
typically has a document that's in hard-copy
form. Copies can made -- be made of that and
distributed. Reading things just online
doesn't allow for the wide distribution and

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MR. FEE: Page 108?
THE WITNESS: I'm sorry.
Page 108 or paragraph?
BY MR. BRIDGES:
Q. I'm sorry. Paragraph -- strike
that.
Let me ask you to turn
paragraph 107 on pages 45 to 46.
A. Okay. I'm there.
Q. I just want to make sure I
understand your language correctly at the
bottom of page 45 and the top of page 46.
Is it your opinion that the
copyright that the plaintiffs assert in their
standards drives sales of other publications
other than the standards themselves?
MR. FEE: Objection. Form.
Vague.
THE WITNESS: I think they're
important for driving sales of
publications that embody those
standards. I don't know that I've
drawn a conclusion that it drives the
sale of other products, but that makes
some sense.

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BY MR. BRIDGES:
Q. Well, doesn't that sentence at
the bottom of 45 and going on to 46 say that
copyright on plaintiffs' standards drive
sales of "handbooks that provide commentary
on the standards by referring to them"?
A. You haven't read -MR. FEE: Objection.
Mischaracterizes the document.
THE WITNESS: You haven't read
the whole sentence. I see that
sentence to which you refer.
BY MR. BRIDGES:
Q. Right. I know I haven't read
the whole sentence, but didn't I fairly
capture one part of it, which is the sales
of -- strike that -- that copyright on
plaintiffs' standards drives sales of, among
other things, "handbooks that provide
commentary on standards by referring to
them"?
MR. FEE: Same objection.
THE WITNESS: I think you have
generally paraphrased it accurately,
yes.

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whether plaintiffs have copyright in -rights in their value-added publications?
MR. FEE: Objection. Vague.
THE WITNESS: I would be
curious to know that, but I'm not sure
of the significance. I don't think it
would change my conclusions, but I
would be curious to know that.
BY MR. BRIDGES:
Q. Do you know whether
incorporation into law drives -- strike that.
Do you know whether
incorporation into law of plaintiffs'
standards drives sales of plaintiffs'
standards?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I don't know with
absolute certainty, but it would make
some sense to me.
BY MR. BRIDGES:
Q. Is it your understanding that
it does?
MR. FEE: Same objection.
THE WITNESS: It would make

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BY MR. BRIDGES:
Q. And that plaintiffs' copyright
protection -- this is the top of -- strike
that.
And turning to the top of
page 46, plaintiffs' copyright protection on
their standards provides plaintiff with a
competitive advantage with respect to what
you call value-added publications, correct?
A. You've read part of a sentence,
but I do see that sentence, yes.
Q. And I've fairly paraphrased it
correctly, correct?
MR. FEE: Objection to form.
THE WITNESS: I think,
generally, yes.
BY MR. BRIDGES:
Q. Do plaintiffs, to your
understanding, have separate copyrights in
those value-added publications, such as
commentaries and handbooks?
A. I don't know.
Q. You don't know?
A. Correct. I do not know.
Q. Is it important to you to know

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some sense to me, yes.
BY MR. BRIDGES:
Q. Are you aware that, in some
instances, at least one plaintiff uses the
legal status of its code to promote the sale
of handbooks?
MR. FEE: Objection to form.
THE WITNESS: I don't know one
way or the other. I don't have reason
to dispute it, but there's not a
particular instance that comes to mind
right now. Maybe you have something
to refresh my memory.
BY MR. BRIDGES:
Q. Can you provide a dollar value
benefit that plaintiffs receive economically
from the incorporation of their standards by
reference?
MR. FEE: Objection. Vague.
Form.
THE WITNESS: I want to make
sure that I'm understanding. Could
you read that back, please?
BY MR. BRIDGES:
Q. I'll restate it.

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Can you provide a -- can you
put a dollar value, even an estimate, on the
economic benefit that plaintiffs receive from
incorporation of their standards into law?
MR. FEE: Objection to form.
THE WITNESS: I have not. And
I'm not sure how one would do that,
subject to thinking more about it.
BY MR. BRIDGES:
Q. At the top of page 46, you say,
"The Plaintiffs' copyright protection on
their privately-developed standards provides
a competitive advantage with regard to the
sale of these value-added publications as the
copyright protection limits the ability of
others to sell those publications unless they
are unwilling [sic] to compensate the
Plaintiffs for such use."
MR. FEE: Objection.
Mischaracterizes the statement.
BY MR. BRIDGES:
Q. Is there something unfair about
my characterization of that statement?
A. I think you read it wrong. You
read "willing" to read "unwilling" for some

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Q. What else?
A. That's what comes to mind.
Q. Anything else?
A. Not this moment, no. I guess,
potentially, when I think some more about it,
training and seminars, for instance.
Q. Providers of training and
seminars?
A. Yes. So that's broader than
value-added publications, but there are
potentially alternative providers of training
and seminars.
Q. In paragraph 109, you say, "In
addition to direct sales of copyrighted
materials, the Plaintiffs' materials
associated with their privately-developed
standards provide a competitive advantage
with regard to the sale of downstream
ancillary/complementary services and
products."
Do you see that?
A. Yes. That's what I had in
mind.
Q. And who are the competitors you
have in mind in paragraph 109?

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reason.
Q. Oh, I'm sorry. Thank you.
I'll restate the sentence.
"In particular, the Plaintiffs'
copyright protection on their
privately-developed standards provides a
competitive advantage with regard to the sale
of these value-added publications as the
copyright protection limits the ability of
others to sell those publications unless they
are willing to compensate the Plaintiffs for
such use."
Do you see that statement?
A. I do, yes.
Q. And the competitive advantage
you've identified there, whom do you
understand to be the competition?
A. Other potential providers of
these so-called value-added publications.
Q. And what -- when you say
"value-added publications," please give me
more examples of what types of things fall
into that category, as you use the term.
A. Examples would be handbooks
that provide commentary on the standards.

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A. I don't know particular names,
but -- at least I don't recall any sitting
right now -- sitting here right now, but I
think there are other providers of these
downstream services and products.
Q. And please give me examples of
what you're calling "downstream services and
products."
A. Again, seminars and training,
for instance.
Q. Anything else?
A. That's what comes to mind right
now.
Q. Turning to paragraph 110, you
state, "I understand that the ability to
control these downstream products and
services is particularly important to the
Plaintiffs here because the barriers to entry
in the marketplace for downstream products,
such as training and user manuals, are
relatively low. For example, according to
Mr. Comstock of ASHRAE, it is relatively easy
for unauthorized instructors to read a
standard and become (or think that they have
become) qualified to provide training or

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guidance on that standard."
Do you see that?
A. I do, yes.
Q. What do you understand -- what
did you mean by "unauthorized instructors"?
A. People that have provided or
trying to provide services to the marketplace
that have not been explicitly approved by,
for instance, ASHRAE.
Q. What do you understand the -the nature of -- strike that.
You called them "instructors,"
correct?
A. Yes.
Q. Does that mean that you
envision that these persons are providing
some kind of instruction?
A. Yes.
Q. What instruction do you
understand -- what instruction did you have
in mind when you referred to "unauthorized
instructors"?
A. Generally, how best to
implement standards or provisions of certain
standards.

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Q. You're just parroting what
Mr. Comstock said, or did you have an
independent view?
A. No, I heard what he said, and
it made sense to me.
Q. So you put it in your report?
A. Yes.
Q. What independent thought or
investigation did you do before you put that
in your report?
MR. FEE: Objection. Vague.
Compound.
THE WITNESS: I can't point to
anything in particular.
BY MR. BRIDGES:
Q. Would a law-school course on
the law and regulation of building
construction provide instruction to law
students?
MR. FEE: Objection. Vague.
Calls for speculation.
THE WITNESS: I guess it could.
I have a hard time imagining there
would be much demand for such a
course, but I'm in general agreement

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Q. What else?
A. Nothing else comes to mind
right now.
Q. Would your understanding of
"unauthorized instructors" include persons
who were instructing the public as to what
the standards require?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I didn't have
that in mind. I guess that's a
possibility.
BY MR. BRIDGES:
Q. And would it be relatively easy
for unauthorized persons like that to read a
standard and think that they have become
qualified to provide training or guidance on
that standard?
MR. FEE: Objection. Vague.
BY MR. BRIDGES:
Q. Is that your understanding?
A. According to Mr. Comstock, I
believe that's correct.
Q. What do you believe?
A. I have no reason to doubt him.

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that that, in concept, could occur.
BY MR. BRIDGES:
Q. Would it be possible to
envision that, in the course of such
teaching, a teacher may wish to analyze some
of plaintiffs' standards that have been
incorporated into law as law and as
regulation?
MR. FEE: Objection. Calls for
speculation. Vague. Form.
THE WITNESS: I guess that's
possible, but I would expect a law
professor would be talking about legal
implications, not the technical
aspects of a standard. I think they
might talk about the implication in a
business that's different from a
vendor business.
BY MR. BRIDGES:
Q. Well, what about the legal
implications of a code for contractors?
MR. FEE: Objection.
BY MR. BRIDGES:
Q. Is that -- is that fair ground
for a law professor to discuss with law

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Q. You can't point to any
particular investigation or fact that you're
relying on in paragraphs 117 to 119?
MR. FEE: Objection to form.
Asked and answered.
THE WITNESS: Everything that's
embedded in Exhibit 1 is, in part, a
basis for the observations that I draw
in those paragraphs.
BY MR. BRIDGES:
Q. What probability do you assign
to your prediction in the first sentence of
paragraph 119?
MR. FEE: Objection. Form.
Lack of foundation.
THE WITNESS: I'm not sure that
I've used the term "prediction," but I
wouldn't assign a particular
quantitative probability.
BY MR. BRIDGES:
Q. Can you give an estimate?
A. No.
Q. Why not?
A. I don't have a basis for that
estimate. I have reasoning underlying it,

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Q. What probability do you assign
to the likelihood that you refer to in the
first sentence of paragraph 121?
MR. FEE: Objection to form.
Lack of foundation.
THE WITNESS: I don't have a
particular quantitative likelihood
measure.
BY MR. BRIDGES:
Q. Can you give an estimate?
MR. FEE: Same objection.
THE WITNESS: No.
BY MR. BRIDGES:
Q. Turning to paragraph 126, you
refer to an "option available to Plaintiffs
to respond to the loss of protection for
incorporated standards."
Is it your belief that, if the
plaintiffs lose this case, they will shut
down their creation of new standards?
A. I think that's a possibility.
Q. What probability do you assign
to that?
MR. FEE: Objection to form.
Lack of foundation.

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but I don't have a basis to provide a
quantitative estimate of my level of
confidence.
Q. You refer to "uncertainties" in
the second sentence of paragraph 119,
correct?
A. I do, yes.
Q. What probability do you assign
to the likelihood that you refer to with the
word "likely" in the first sentence of
paragraph 120?
MR. FEE: Objection. Form.
Lack of foundation.
THE WITNESS: I don't have a
particular quantitative measure of
that. And are you referring to my use
of the term "likely"?
BY MR. BRIDGES:
Q. Yes.
A. Yes, I don't have a particular
quantification of that.
Q. What particular facts are you
relying on for that paragraph?
A. Everything that you see
reported in Exhibit 1.

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THE WITNESS: I don't have a
particular quantitative measure of
probability for that.
BY MR. BRIDGES:
Q. What's your best estimate?
MR. FEE: Same objection.
THE WITNESS: I don't have a
quantitative best estimate.
BY MR. BRIDGES:
Q. Is it more or less than
50 percent?
MR. FEE: Same objections.
THE WITNESS: I still don't
have a quantitative estimate.
BY MR. BRIDGES:
Q. Is it more or less than
80 percent?
MR. FEE: Same objections.
THE WITNESS: Still don't have
a quantitative estimate.
BY MR. BRIDGES:
Q. Is it more or less than
5 percent?
MR. FEE: Same objections.
THE WITNESS: Still don't have

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a quantitative estimate. I think that
there -- with reasonable probability I
can draw this conclusion, but I can't
be any more precise than that.
BY MR. BRIDGES:
Q. What do you mean, "with
reasonable probability"?
A. Based on the information that I
have and the training and logic I bring to
it, I think there is a -- I say with some
confidence what I have said here.
Q. And when you say "likely," do
you mean more than 50 percent likely?
A. Not necessarily, no.
Q. Are you aware of other
standards development organizations active in
the same field as the plaintiffs?
MR. FEE: Objection. Vague.
Form.
THE WITNESS: Perhaps you could
tell me what you have in mind with
your use of the term "fields."
BY MR. BRIDGES:
Q. Well, are you familiar with
AHRI?

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to see what alternatives there are among
standards development organizations currently
in existence to carry forward the work of
plaintiffs if plaintiffs chose to stop
standards development as a result of the loss
of this case?
MR. FEE: Same objection.
THE WITNESS: Not that I
recall, but I am of the understanding
that each SDO has a different charter,
so I don't know that any SDO has an
identical charter to that of any of
the three plaintiffs.
BY MR. BRIDGES:
Q. Are you aware that these
plaintiffs compete with other SDOs in the
creation of standards in particular fields?
MR. FEE: Objection to form.
Vague.
THE WITNESS: What do you mean
by the term "compete with" in this
context?
BY MR. BRIDGES:
Q. That they consider others
rivals for the same market, in part.

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A. I have perhaps seen reference
to that.
Q. Do you know with which of these
plaintiffs it -- do you -- do you know what
field it's in?
A. I don't recall, sitting here
right now, no.
Q. Are you familiar with NFRC?
A. I may have seen reference to
that acronym.
Q. Do you know what field it's in?
A. Not sitting here right now.
Q. Are you familiar with ICC?
A. I have seen reference to that.
I don't recall what it is, sitting here now.
Q. Do you know whether other
standards developments organizations would be
in a position to step forward and to continue
the maintenance and preservation and further
development of the standards of plaintiffs
here if plaintiffs lose this case?
MR. FEE: Objection to form.
THE WITNESS: I don't know.
BY MR. BRIDGES:
Q. Have you done any investigation

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MR. FEE: Objection to form.
Vague.
THE WITNESS: I don't recall
seeing reference to that, but my
memory is not perfect.
BY MR. BRIDGES:
Q. The -- in paragraph 131, you
say, "Simply put, freely-distributed,
unrestricted versions of Plaintiffs'
standards that are or could be incorporated
by reference can be expected to adversely
impact the market for Plaintiffs' standards
that are incorporated by reference and to
displace sales of these standards by the
Plaintiffs - which can be expected to have a
material adverse effect on Plaintiffs'
revenues."
Do you see that?
A. Yes.
Q. By "expected," do you mean more
than 50 percent likely?
A. Not necessarily. I don't have
a quantitative assessment of what I mean by
"expected."
Q. Do you mean more than 5 percent

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new in terms of a theory.
Q. Do you have the same answer
with respect to -- strike that.
What facts do you have -strike that.
What facts are you aware of to
disprove -- to disprove Mr. Malamud's theory
that you refer to in paragraph 144?
A. Again, it's the same theory
that's being referenced, but there's
additional facts; and that is, the downstream
products and services aren't particularly
substantial to these plaintiffs and don't
appear to be enhanced by a lack of copyright
protection; that is, the plaintiffs have had
copyright protection and have said -- had
some downstream products and services. It's
hard to imagine that elimination of that
copyright protection will enhance that
business.
Q. It's hard to imagine, but are
you aware of any studies to disprove
Mr. Malamud's theory?
A. No.
MR. FEE: Objection. Vague.

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rest of that paragraph?
MR. FEE: Objection. Vague.
THE WITNESS: I looked at the
financial information, and I talked to
people at the various plaintiffs.
BY MR. BRIDGES:
Q. You talked to people at the
various plaintiffs?
A. Yes.
Q. What did you do to verify the
truth and accuracy of the things that various
plaintiffs said to you in their
conversations?
MR. FEE: Objection to form.
THE WITNESS: I looked at the
financial information, and I kept my
eyes and mind open to the information
in the rest of the record to determine
if it conflicted with what I learned
from the company personnel.
BY MR. BRIDGES:
Q. Whose financial information did
you look at?
A. All three of the plaintiffs.
It's summarized in tabs 3, 4, and 5.

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THE WITNESS: I'm sorry.
BY MR. BRIDGES:
Q. Have you conducted any studies
to disprove Mr. Malamud's theory?
MR. FEE: Same objection.
THE WITNESS: Not other than
what's reflected here in Exhibit 1.
BY MR. BRIDGES:
Q. What academic literature have
you relied upon to criticize Mr. Malamud's
theory in paragraph 144?
A. Nothing specific comes to mind.
Q. In paragraph 145, you state
that, "Mr. Malamud's suggestion that the sale
of downstream products and services
represents an untapped and undeveloped
opportunity for the Plaintiffs is incorrect."
Do you see that?
A. Yes, I do.
Q. And then you go on and make
some statements for the rest of the
paragraph, correct?
A. Yes.
Q. What studies did you engage in
to determine the facts that you stated in the

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Q. Did you look at the financial
information of any entities other than the
plaintiffs?
A. I looked at Public Resource
financial information.
Q. Apart from Public Resource and
the plaintiffs, did you look at the financial
information of any other entities in making
the assertions that you made in
paragraph 145?
A. Not in undertaking my
assignment here.
Q. Did you consider the business
models of any entities other than the
plaintiffs and the defendant in making the
statements criticizing Mr. Malamud's theory
in paragraph 145?
A. Nothing in particular comes to
mind. I understand that there are
front-loaded business models, but -- at DIN,
for instance, but I don't recall undertaking
an investigation of the downstream activities
that they have.
Q. Did you undertake any
investigation of downstream activities of

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other US-based standards development
organizations that make their standards
freely available to the public?
A. Not that I recall.
Q. Would that have been relevant
to your analysis?
A. It wasn't necessary to do my
analysis, but I would be curious if I had
that information. If I -- if I had the
ability to examine that information, I would
be curious as to what that shows.
Q. In paragraph 146, you state,
"The loss of publications here will likely
reduce the Plaintiffs' sales of those
downstream products and services."
Do you see that?
MR. FEE: That's in 146?
THE WITNESS: Is that the last
sentence you were reading from?
BY MR. BRIDGES:
Q. Yes.
A. Yeah.
Q. Paragraph 146.
A. Yes, I do see that.
Q. Did you mean the loss of

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unable to quantify that with great
accuracy.
BY MR. BRIDGES:
Q. Have you considered any
comparable circumstances apart from this case
that would provide guidance for your
prediction in the last sentence of
paragraph 146?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I kept my mind
and eyes open to that, but I didn't
see information of a good comparator.
BY MR. BRIDGES:
Q. Did you research whether there
might be good comparators?
A. I -MR. FEE: Same objection.
THE WITNESS: I did in the
sense of reading through the
literature and information to see if I
could learn of something that would be
a good comparator, but I didn't learn
of such comparator.
BY MR. BRIDGES:

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copyright in the publications here?
A. Certainly the loss of
publications, but I believe it would probably
be better to put the loss of copyright in the
publications as more reflective of the
assignment that I undertook here.
Q. What probability do you assign
to the likelihood that you refer to in that
sentence?
MR. FEE: Objection to form.
Lack of foundation.
THE WITNESS: I haven't
assigned a quantitative probability to
that.
BY MR. BRIDGES:
Q. Have you any estimate?
MR. FEE: Same objections.
THE WITNESS: I do not.
BY MR. BRIDGES:
Q. Have you any estimate as to the
magnitude of the likely reduction of
plaintiffs' sales of downstream products and
services?
MR. FEE: Same objections.
THE WITNESS: No, I have been

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Q. You looked only at the
information shown in tab 2 to Exhibit 1?
A. Yes, I think that's right.
Q. What economic effect are you
aware of to the Blu-ray Disc Association from
its providing unrestricted access to its
standard publications for free?
A. I don't know. I thought you
had asked that earlier. If not, I apologize.
Nonetheless, I don't recall knowing the
answer to that question or undertaking that
evaluation.
Q. Did Blu-ray Disc Association go
out of business?
A. I don't think it's out of
business, no.
Q. Has it suffered material harm,
to your knowledge, because of unrestricted
access to its standard publications for free?
A. I don't know.
Q. Do you believe that, on the
theory of revealed preference, Blu-ray Disc
Association has determined that unrestricted
access to its standard publications for free
is in its interest?

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A. Yes. It's a different entity
than the SDOs here; but for its purposes, it
would appear that it's of the belief that
that's the optimal path to follow.
MR. BRIDGES: I think -- I
think we may pause things now and
reserve the remainder of our time.
Just a second. Oh, yes.
BY MR. BRIDGES:
Q. Do you believe that the
plaintiffs are harmed when the defendant
posts a standard that has been incorporated
by reference -- let me strike that.
Do you believe that plaintiffs
suffer harm from defendant posting a standard
that is not the latest version of the
standard?
MR. FEE: Objection. Form.
Compound.
THE WITNESS: Potentially, it
could cause confusion in the
marketplace as to what's the latest
standard, and there may be some
entities out there that are interested
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MR. FEE: Objection. Lack of
foundation. Vague.
THE WITNESS: I'm not -- I'm
not sure that I understand the concept
of a standard being out of print, so
maybe you could help me with that.
BY MR. BRIDGES:
Q. Do you know the term "out of
print"?
A. Generally, I do, yes.
Q. What do you understand it to
mean?
A. That it's no longer provided in
print form.
Q. All right. So what harm do you
understand plaintiffs would suffer if
defendants posted a standard that is out of
print?
MR. FEE: Objection to form.
THE WITNESS: Potentially, it
could be the harm similar to outdated
standards.
BY MR. BRIDGES:
Q. In other words, confusion in
the marketplace?

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would be obtaining it free rather than
through the legal routes established
by the plaintiffs.
BY MR. BRIDGES:
Q. Have you done any studies to
determine what confusion may be likely in the
marketplace in that regard?
MR. FEE: Objection to form.
THE WITNESS: I have not done a
likelihood of confusion study, no.
BY MR. BRIDGES:
Q. What research have you done as
to whether -- strike that.
What information do you have
about what market there is for earlier
versions of standards when there is a newer
version in the market?
MR. FEE: Objection to form.
THE WITNESS: I don't recall
undertaking specific research on that
topic.
BY MR. BRIDGES:
Q. What harm do you understand
plaintiffs would suffer if defendants post a
standard that is out of print?

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A. Potential confusion in the
marketplace and potentially providing -- yes,
that -- that would be one form of it.
Q. What other harms do -- would
you identify from the defendants posting a
standard that is out of print?
A. Nothing else comes to mind this
moment, but there could be other things
that -- that I'm not thinking of right now.
Q. What harms do you understand
plaintiffs would suffer if a condition of a
standard being incorporated into law is that
plaintiffs could not forbid other entities
from making that law available widely and
freely to the public?
MR. FEE: Objection to form.
Incomplete hypothetical. Compound.
Calls for speculation.
THE WITNESS: I don't know.
I've not undertaken that assignment.
I've not given that particular
question any thought.
It seems economically to be
quite similar to the actions that have
occurred here, but I don't know. I've

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not thought about that particular
topic.
MR. BRIDGES: Okay. I think
we'll pause here and reserve the rest
of the time for a later visit with
you, Mr. Jarosz.
Kevin, this is in reliance on
an exchange of correspondence between
Matt and you, I believe. If, for some
reason -- well, no. I think that's
all.
Anything else?
MR. FEE: Well, I don't have
any questions.
Do you guys have any questions?
MR. REHN: Not at this time.
MR. CUNNINGHAM: No.
MR. BRIDGES: Great. Thank
you.
THE WITNESS: Thank you.
THE VIDEOGRAPHER: All right.
Off the record at 4:31. This ends
media unit number 3 and ends testimony
for August 27th, 2015.
* * *

1
2

CERTIFICATE

I do hereby certify that I am a Notary
3 Public in good standing, that the aforesaid
testimony was taken before me, pursuant to
4 notice, at the time and place indicated; that
said deponent was by me duly sworn to tell
5 the truth, the whole truth, and nothing but
the truth; that the testimony of said
6 deponent was correctly recorded in machine
shorthand by me and thereafter transcribed
7 under my supervision with computer-aided
transcription; that the deposition is a true
8 and correct record of the testimony given by
the witness; and that I am neither of counsel
9 nor kin to any party in said action, nor
interested in the outcome thereof.
10
WITNESS my hand and official seal this
11 11th day of September, 2015.
12
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<%signature%>
15
Debbie Leonard, RDR, CRR
Notary Public
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(Witness excused.)
* * *
(Off the record at 4:31 p.m.)
* * *

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