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

Filing 155

REPLY to opposition to motion re #118 MOTION for Summary Judgment filed by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC.. (Attachments: #1 Supplemental Statement of Undisputed Facts, #2 Disputes with Defendant's Statement of Facts, Evidentiary Objections and Opposition to Request for Judicial Notice, #3 Response to Defendant's Statement of Facts, #4 Response to Defendant's Evidentiary Objections, #5 Declaration of Steven Comstock, #6 Declaration of Christian Dubay, #7 Supplemental Declaration of Thomas O'Brien, #8 Supplemental Declaration of Jordana Rubel, #9 Supplemental Declaration of James Thomas)(Fee, J.) Modified on 1/22/2016 to correct linkage (td).

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

Case No. 1:13-cv-01215-TSC

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF MATERIAL FACTS
IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT AND IN
OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pursuant to the Local Rule 7(h), Plaintiffs American Society for Testing and Materials
(“ASTM”), National Fire Protection Association, Inc. (“NFPA”) and American Society of
Heating, Refrigerating, and Air Conditioning Engineers (“ASHRAE”) (collectively, “Plaintiffs”)
hereby submit, in support of their Motion for Summary Judgment and Permanent Injunction and
in opposition to Defendant Public.Resource.Org, Inc.’s Motion for Summary Judgment,
a supplemental statement of material facts as to which there is no genuine issue to be tried:
I.

ACCESS TO PLAINTIFFS’ STANDARDS FOR VISUALLY IMPAIRED
PEOPLE
1.

The Chafee Amendment to the Copyright Act provides an avenue for providing

access to copyrighted materials to blind people if certain requirements are followed, including
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only making the materials available to blind people. Supplemental Declaration of Jordana Rubel
(“Rubel Suppl. Decl.”) ¶ 4, Ex. 1 (Fruchterman Dep. 52:1-54:2).
2.

Defendant’s expert, James Fruchterman, testified about programs entities that

seek to provide access to the materials for the blind use to comply with the requirement of the
Chafee Amendment that the materials be made available only to blind people, including
collecting certifications of disability from users. Rubel Suppl. Decl. ¶ 4, Ex. 1 (Fruchterman
Dep. 80:9-81:25; 84:7-85:8; 86:7-89:12)
3.

Mr. Fruchterman explained that he runs an online library for the visually impaired

called Bookshare, which already contains the 2014 edition of the NEC, and that nothing would
prevent Carl Malamud or another volunteer from uploading the rest of Plaintiffs’ standards to
that library. Rubel Suppl. Decl. ¶ 4, Ex. 1 (Fruchterman Dep. 209:18-213:23).
4.

Mr. Fruchterman admitted he could not opine that a visually disabled person

would actually be able to use the HTML versions of Plaintiffs’ standards posted on Defendant’s
website. Rubel Suppl. Decl. ¶ 4, Ex. 1 (Fruchterman Dep. 175:5-176:9, 218:3-23).
5.

Mr. Fruchterman asked one visually disabled person to evaluate the PDF versions

of Plaintiffs’ standards that were posted on Defendant’s website, and that person informed him
that those documents could not be considered to be accessible. Rubel Suppl. Decl. ¶¶ 4-5, Exs. 1
(Fruchterman Dep. 256:12-259:6), 2 (Exhibit 4006 to Fruchterman Dep.).
6.

Mr. Fruchterman did not ask any visually disabled persons to assess the

accessibility of Defendant’s HTML standards. See Rubel Suppl. Decl. ¶ 4, Ex. 1 (Fruchterman
Dep. 142:10-143:24).
7.

Fruchterman had not considered and did not know whether visually disabled

persons would be able to use any of Plaintiffs’ versions of Plaintiffs’ standards aside from

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Plaintiffs’ online read-only versions, such as the e-book and PDF versions that Plaintiffs make
available for sale. Nor did he have any knowledge of whether Plaintiffs provide any other
accommodations to such persons. Rubel Suppl. Decl. ¶ 4, Ex. 1 (Fruchterman Dep. 205:20208:25).
8.

ASTM is not aware of any visually impaired person who has informed ASTM

that he/she was having difficulty accessing an ASTM standard due to a print disability. If a
visually-impaired person requested access to an ASTM standard due to a print disability, ASTM
would provide a copy of the relevant standard in a format that accommodated the person’s
disability at no additional cost to the requester. Supplemental Declaration of Thomas O’Brien
(“O’Brien Suppl. Decl.”) ¶ 17.
9.

NFPA has a commitment to make accommodations for persons with disabilities to

access NFPA materials. To date, there has been only one request by a visually impaired
individual for access to an NFPA standard and NFPA responded by providing that individual
with a PDF copy. Declaration of Christian Dubay (“Dubay Decl.”) ¶¶ 4-5.
10.

NFPA is not aware of any other individuals who have requested and not received

an accommodation. Dubay Decl. ¶ 4.
11.

ASHRAE is aware of only two instances in which individuals requested that

ASHRAE make alternate forms of access to ASHRAE publications available due to a disability.
In both instances, ASHRAE provided the requested accommodation. In 2013, ASHRAE sent a
digital copy of an ASHRAE published textbook on HVAC systems to a visually impaired student
so the student could employ screen reader software to access the material audibly. A hearing
impaired individual also alerted ASHRAE he wished to attend a class related to HVAC design

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and ASHRAE provided sign-language interpretation. Declaration of Steven Comstock
(“Comstock Decl.”) ¶ 4.
12.

ASHRAE has undertaken efforts to ensure that disabilities do not unnecessarily

limit access to ASHRAE’s standards and services. ASHRAR has provided accommodations to
individuals with disabilities in the past and intends to continue to do so in the future. Comstock
Decl. ¶¶ 5-6.
II.

PLAINTIFFS’ COPYRIGHT REGISTRATIONS AND ASSIGNMENTS
13.

ASTM consulted with the Copyright Office about how to complete its copyright

applications. The Copyright Office instructed ASTM to fill out its copyright applications noting
itself as the sole author of the standards. Rubel Supp. Decl. ¶ 6, Ex. 3 (Dep. of Daniel Smith
126:17-127:4).
14.

ASTM produced evidence that over 25,000 members completed membership

renewal forms every year since 2007. See, e.g., O’Brien Suppl. Decl. ¶¶ 24-26, Exs. 9-10.
15.

The vast majority of these members completed their membership renewals using

the online membership form. See, e.g., O’Brien Suppl. Decl. ¶¶ 24-26, Exs. 9-10.
16.

ASTM produced copies of tens of thousands of paper membership renewal forms

to Defendant in this litigation. Rubel Suppl. Decl. ¶ 7.
17.

Michael Collier was the technical contact for ASTM D86-07. Michael Collier

renewed his ASTM membership in 2007 using ASTM’s online membership renewal form.
O’Brien Suppl. Decl. ¶¶ 20, 26, Exs. 5, 10.
18.

John Chandler was the technical contact for ASTM D975-07 and ASTM D396-

98. John Chandler renewed his ASTM membership in 2007 using ASTM’s online membership
renewal form. O’Brien Supp. Decl. ¶¶ 21, 22, 25, Exs. 6, 7, 9.
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19.

Jimmy King was the technical contact for ASTM D1217-98. Jimmy King

renewed his ASTM membership in 2007. O’Brien Suppl. Decl. ¶¶ 23, 25, Exs. 8, 9.
20.

NFPA provided evidence of assignment forms signed by several contributors to

the 2011 and 2014 editions of the NEC. Pauley Decl. ¶ 31, Exs. A, B.
21.

NFPA’s copyright assignment forms require the person signing to warrant that

he/she has the authority to enter into the assignment. Pauley Decl. ¶ 31, Ex. B.
22.

ASHRAE’s copyright assignment forms require the person signing to warrant that

he/she has the authority to enter into the assignment. Reiniche Decl. ¶ 13, Exs. 1, 2.
III.

ADDITIONAL FACTS
23.

ASTM started planning the launch of its Reading Room in 2011. Rubel Suppl.

Decl. ¶ 8, Ex. 4 (Grove Dep. 109:15-110:7).
24.

NFPA and ASHRAE have provided free read-only access to their standards for

over a decade. Pauley Decl. ¶ 45; Rubel Suppl. Decl. ¶ 11, Ex 7. (Comstock Dep. 10:23-11:8).
25.

Standard 90.1 is ASHRAE’s most popular standard. It accounts for a significant

portion of ASHRAE’s publications revenue. Rubel Suppl. Decl. ¶ 11, Ex. 7 (Comstock Dep.
34:10-37:11).
26.

The National Electric Code is NFPA’s flagship standard. Pauley Decl. ¶ 7.

27.

Defendant promotes its own activities and solicits donations on its websites.

Rubel Suppl. Decl. ¶ 9, Ex. 5 (C. Malamud Dep. 47:23-25).

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Dated: January 21, 2016

Respectfully submitted,
/s/ J. Kevin Fee
Michael F. Clayton (D.C. Bar: 335307)
J. Kevin Fee (D.C. Bar: 494016)
Jordana S. Rubel (D.C. Bar: 988423)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel For American Society For Testing And Materials
d/b/a/ ASTM International
/s/ Kelly Klaus

_____________

Anjan Choudhury (D.C. Bar: 497271)
Munger, Tolles & Olson LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071
Tel: [phone]
Email: [e-mail]
Kelly M. Klaus
Jonathan H. Blavin
Nathan M. Rehn
Munger, Tolles & Olson LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel for National Fire Protection Association, Inc.
/s/ Joseph R. Wetzel
Jeffrey S. Bucholtz (D.C. Bar: 452385)
King & Spalding LLP
1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
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Tel: [phone]
Email: [e-mail]
Kenneth L. Steinthal
Joseph R. Wetzel
King & Spalding LLP
101 Second Street, Ste. 2300
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel for American Society of Heating, Refrigerating,
and Air Conditioning Engineers

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