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

Filing 141

Unopposed MOTION for Leave to File Amicus Brief by Law Scholars (Attachments: #1 Exhibit Amicus Brief, #2 Text of Proposed Order Proposed order)(Gellis, Catherine)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING
AND MATERIALS d/b/a ASTM
INTERNATIONAL, et al.,

Civil Action No. 1:13-cv-01215-TSC

Plaintiffs,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant.

UNOPPOSED MOTION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF ON BEHALF OF LAW SCHOLARS IN SUPPORT OF
DEFENDANT-COUNTERCLAIMANT PUBLIC.RESOURCE.ORG’S
MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION
TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND PERMANENT INJUNCTION
On behalf of the amici identified in the accompanying appendix, herein referred to as
“Amici,” the undersigned counsel respectfully moves for leave to file an amicus curiae brief in
support of defendant-counterclaimant Public.Resource.org’s Motion for Summary Judgment and
in opposition to plaintiff’s Motion for Summary Judgment and Permanent Injunction filed in the
above referenced matter. A copy of the proposed brief accompanies this motion.
1.

Amici are professors at major U.S. law schools, who teach and write about

copyright, information law, intellectual property, the Internet, and related issues. Amici file
solely as individuals and not on behalf of any institutions with which they are affiliated. 1

1

As noted in the accompanying brief, amici Pamela Samuelson and Jonathan Zittrain are
members of the Board of Directors of the Electronic Frontier Foundation (“EFF”), which
represents defendant Public.Resource.org, Inc. in this case. Neither Professor Samuelson nor
Professor Zittrain had any direct involvement in EFF’s representation of defendant in the case.

2.

Amici do not have a financial interest in the outcome of the present litigation.

Amici—as scholars and experts with knowledge and experience concerning copyright,
information law, intellectual property, the Internet, and related issues—have an interest in
ensuring the proper functioning and coherent development of the copyright system.
3.

Further, as law professors, Amici are committed to ensuring robust and unfettered

access by citizens to the laws with which they are required to comply.
4.

This Court has permitted amicus briefs when “the amicus has unique information

or perspective that can help the court beyond the help that the lawyers for the parties are able to
provide.” Jin v. Ministry of State Security, 557 F. Supp. 2d 131, 137 (D.D.C. 2008) (quoting
Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997)). As experts
in the field, Amici offer the viewpoint of unbiased observers, a perspective that the Court could
not otherwise get from the parties to this case.
5.

Amici write to bring to the Court’s attention legal analysis relevant to the question

of copyrightability of works authored by standards developing organizations and incorporated
into operative law.
6.

In particular, the proposed amicus brief provides historical context regarding the

public domain status of operative law, legal analysis regarding the merger doctrine and its
applicability to model codes that have been adopted (like those in the present case), and policy
analysis regarding the implications of a finding of copyrightability.
7.

Amici’s extensive knowledge of copyright law and related intellectual property

issues, developed through academic research and/or real world legal practice, combined with
their understanding of the policy implications of enforcing a copyright in operative law, gives
Amici valuable insight into the question of copyrightability at issue.

2

8.

The parties have agreed that they will not oppose any amicus filing in support of

either side. See Joint Report on Proposed Summary Judgment Briefing Schedule at 4, ECF No.
114 (October 30, 2015).
Date: January 11, 2016

/s/ Catherine R. Gellis
Catherine R. Gellis
Bar I.D. # CA251927
P.O. Box 2477
Sausalito, CA 94966
Telephone: [phone]
Email: [e-mail]

3

APPENDIX
David Ardia
Assistant Professor of Law, University of North Carolina School of Law
Co-Director, Center for Media Law and Policy, University of North Carolina School of Law
David Ardia is an assistant professor of law at the UNC School of Law and serves as the
faculty co-director of the UNC Center for Media Law and Policy. He also holds a secondary
appointment as an assistant professor at the UNC School of Media and Journalism. Before
joining the UNC faculty, he was a fellow at the Berkman Center for Internet & Society at
Harvard University where he founded and directed the Berkman Center’s Digital Media Law
Project. Prior to his time at Harvard, Professor Ardia was assistant counsel at The Washington
Post, where he provided pre-publication review and legal advice on First Amendment, news
gathering, privacy, intellectual property, and general business issues.
Professor Ardia’s research focuses on examining the impact of new information
technologies on law and society, particularly the role that government and private intermediaries
play in shaping the environment for speech and how legal and social forces affect these actors.
He is also an affiliated faculty member of the UNC Center for Law, Environment, Adaptation,
and Resources. He teaches Torts, Media Law, Media and Internet Law Practicum, and Internet
Law.
Stacey L. Dogan
Law Alumni Scholar, Boston University School of Law
Professor of Law, Boston University School of Law
Professor Stacey Dogan is a leading scholar in intellectual property and competition law.
Her recent articles explore cutting-edge topics in trademark, copyright, and right of publicity
law, including questions of intermediary liability, the rights of trademark parodists, and evolving
norms underlying trademark law.

Professor Dogan has presented her research at numerous national and international
conferences, and her writings have appeared in journals including the Stanford Law
Review, Emory Law Journal, Iowa Law Review and Texas Law Review. She has served as chair
of the Intellectual Property Section of the Association of American Law Schools, and was coeditor-in-chief of the Journal of the Copyright Society from 2008 to 2011. Dogan is an active
participant in educational programs with the local bar, leading seminars and discussions for the
Boston Bar Association, Massachusetts Continuing Legal Education and the Massachusetts
Volunteer Lawyers for the Arts.
Before joining the Boston University faculty, Professor Dogan taught for more than a
decade at Northeastern University School of Law, where she focused on intellectual property and
antitrust law. She came to teaching after several years of practicing law with the Washington,
DC law firm of Covington & Burling, where she specialized in antitrust, trademark, and
copyright law. After law school, she practiced with Heller, Ehrman, White & McAuliffe in San
Francisco and served as a law clerk to the Honorable Judith Rogers of the U.S. Court of Appeals
for the District of Columbia Circuit.
Pamela Samuelson
Richard M. Sherman Distinguished Professor of Law, UC Berkeley School of Law
Professor, UC Berkeley School of Information
Co-Director, Berkeley Center for Law & Technology
Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and
Information at the University of California, Berkeley. She is recognized as a pioneer in digital
copyright law, intellectual property, cyberlaw and information policy. Since 1996, she has held a
joint appointment at UC Berkeley School of Law and UC Berkeley's School of Information.

Samuelson has written and published extensively in the areas of copyright, software
protection and cyberlaw. Her recent publications include: The Google Book Settlement as
Copyright Reform, 2011 Wisc. L. Rev. 478 (2011); Statutory Damages in U.S. Copyright Law: A
Remedy in Need of Reform, 51 Wm. & Mary L. Rev. 439 (2009) (with Tara Wheatland); and
High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent
Survey, 24 Berkeley Technology L. J. 1255 (2010) (with Stuart J.H. Graham, Robert P. Merges,
& Ted Sichelman). Other notable publications include: Why Copyright Excludes Systems and
Processes From the Scope of Its Protection, 85 Tex. L. Rev. 1921 (2007); Questioning Copyright
in Standards, 48 B.C. L. Rev. 193 (2007); Unbundling Fair Uses, 77 Fordham L. Rev.
2537 (2007); Enriching Discourse on Public Domains, 55 Duke L. J. 783 (2006); Privacy as
Intellectual Property?, 52 Stan. L. Rev. 1125 (2000); Intellectual Property Rights in Data?, 50
Vand. L. Rev. 51 (1997) (co-authored with J.H. Reichman); and Benson Revisited: The Case
Against Patent Protection for Algorithms and Other Computer Program-Related Inventions, 39
Emory L. J. 1025 (1990).
Jessica M. Silbey
Professor of Law, Northeastern University School of Law
Jessica Silbey is a leading scholar and nationally recognized expert on intellectual
property and the use of film to communicate about law. Silbey has altered the national
conversation about creativity with her new book, The Eureka Myth (Stanford University Press).
Based on a set of 50 interviews with authors, artists, inventors and lawyers, Silbey’s work
challenges the traditional notion of intellectual property as merely creating financial incentives
necessary to spur innovation.

Silbey earned her undergraduate degree with honors from Stanford University and her
J.D. cum laude from the University of Michigan, where she also earned a PhD in comparative
literature. She served as law clerk to Judge Robert E. Keeton of the U.S. District Court for the
District of Massachusetts and Judge Levin H. Campbell of the U.S. Court of Appeals for the
First Circuit. She also spent three years in private law practice, focusing on intellectual property.
Rebecca L. Tushnet
Professor of Law, Georgetown Law
Professor Tushnet has taught at Georgetown since 2004. Previously, she was on the
faculty at New York University School of Law. She also has worked at Debevoise & Plimpton in
Washington, D.C., where she specialized in intellectual property. She clerked for Chief Judge
Edward R. Becker of the United States Court of Appeals for the Third Circuit and Associate
Justice David H. Souter of the U.S. Supreme Court.
Professor Tushnet graduated from Harvard University in 1995 and from Yale Law School
in 1998. At Yale, Professor Tushnet served as an articles editor for the Yale Law Journal and as
an editor of the Yale Journal of Law and Feminism. During her law school summers, she worked
for the Center for Reproductive Law & Policy and for Bredhoff & Kaiser.
Professor Tushnet's publications include: Worth a Thousand Words: The Images of
Copyright Law, 125 Harv. L. Rev. 683 (2012); Gone in 60 Milliseconds: Trademark Law and
Cognitive Science, 86 Tex. L. Rev. 507 (2008); and Copy This Essay: How Fair Use Doctrine
Harms Free Speech and How Copying Serves It, 114 Yale L. J. 535 (2004).

Jennifer Urban
Clinical Professor of Law, UC Berkeley School of Law
Director, Samuelson Law, Technology & Public Policy Clinic, UC Berkeley School of Law
Co-Director, Berkeley Center for Law & Technology
Jennifer M. Urban is a Clinical Professor of Law and Director of the Samuelson Law,
Technology & Public Policy Clinic at the UC Berkeley School of Law. Broadly, her research
considers how values such as free expression, freedom to innovate, and privacy are mediated by
technology, the laws that govern technology, and private-ordering systems.
Her clinic students represent clients in numerous public interest cases and projects at the
intersection of technological change and societal interests such as civil liberties, innovation, and
creative expression. Recent Clinic projects include work on individual privacy rights, copyright
and free expression, artists’ rights, free and open source licensing, government surveillance, the
“smart” electricity grid, biometrics, and defensive patent licensing.
Professor Urban comes to Berkeley Law from the University of Southern California’s
Gould School of Law, where she founded and directed the USC Intellectual Property &
Technology Law Clinic. Prior to joining the USC faculty in 2004, she was the Samuelson
Clinic’s first fellow and visiting assistant professor. Prior to that, she was an attorney with the
Venture Law Group in Silicon Valley. She graduated from Cornell University with a B.A. in
biological science (concentration in neurobiology and behavior) and from UC Berkeley School
of Law with a J.D. (intellectual property certificate). She was the Annual Review of Law and
Technology editor while a student at Berkeley Law, and received the Berkeley Center for Law
and Technology Distinguished Alumni Award in 2003.

Jonathan Zittrain
George Bemis Professor of International Law, Harvard Law School
Vice Dean for Library and Information Resources, Harvard Law School
Faculty Director, Berkman Center for Internet and Society
Professor of Computer Science, Harvard School of Engineering and Applied Sciences
Professor, Harvard John F. Kennedy School of Government
Jonathan Zittrain is the George Bemis Professor of International Law at Harvard Law
School and the Harvard Kennedy School of Government, Professor of Computer Science at the
Harvard School of Engineering and Applied Sciences, Director of the Harvard Law School
Library, and Faculty Director of the Berkman Center for Internet & Society. His research
interests include battles for control of digital property and content, cryptography, electronic
privacy, the roles of intermediaries within Internet architecture, human computing, and the useful
and unobtrusive deployment of technology in education.
He performed the first large-scale tests of Internet filtering in China and Saudi Arabia,
and as part of the OpenNet Initiative co-edited a series of studies of Internet filtering by national
governments: Access Denied: The Practice and Policy of Global Internet Filtering
(2008); Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace (2010);
and Access Contested: Security, Identity, and Resistance in Asian Cyberspace (2011).