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’ STATEMENT OF DISPUTED FACTS IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OBJECTIONS TO
CERTAIN EVIDENCE INTRODUCED BY DEFENDANT, AND OPPOSITION TO
DEFENDANT’S REQUEST FOR JUDICIAL NOTICE
Pursuant to Local Civil Rule 7(h), Plaintiffs submit the following Statement of Disputed
Facts in opposition to Defendant’s Motion for Summary Judgment and in support of Plaintiffs’
Motion for Summary Judgment and Permanent Injunction. Instead of filing separate documents
opposing Defendant’s Request for Judicial Notice and objecting to evidence Defendant
attempted to introduce through its Statement of Facts, Plaintiffs have objected to the proposed
evidence in this consolidated document.

DEFENDANT’S STATEMENT OF FACT
1. Public.Resource.org is a nonprofit corporation,
funded entirely by donations, contributions, and
grants. C. Malamud Decl. ¶ 3.
2. Public Resource’s core mission is to make the

PLAINTIFFS’ RESPONSE
Undisputed

Undisputed

DEFENDANT’S STATEMENT OF FACT
law and other government materials more widely
available so that people, businesses, and
organizations can easily read and discuss our laws
and the operations of government. C. Malamud
Decl. ¶ 4, Ex. 1.
3. Public Resource maintains an archive of laws
and other government authored materials on
several domains under the public.resource.org
website. C. Malamud Decl. ¶ 10.

4. Public Resource has made judicial opinions,
Internal Revenue Service records, patent filings,
and safety regulations accessible on the Internet.
Beginning in 2008, Public Resource began
posting state safety regulations and statutes
online, including portions of the incorporated
standards in this case. In 2012, Public Resource
began to post copies of standards incorporated by
reference into law on its website. Public Resource
began by purchasing paper copies of 73 standards,
copying them and placing a cover sheet and
notice of incorporation on each one, and sending
the copies and additional material to government
officials and ten SDOs, including Plaintiffs. Then,
Public Resource began searching for copies of
additional incorporated standards, many of which
were not available from the SDOs, likely because
the version incorporated into law had been
superseded by a later version of the standard. C.
Malamud Decl. ¶¶ 9–15, 20–21, 23.
5. Public Resource does not charge for access to
the archive of laws and other government
authored materials on several domains under the
public.resource.org website. C. Malamud Decl. ¶
23.

6. Public Resource does not accept donations or
gifts that are tied to the posting of specific
standards or groups of standards. C. Malamud
Decl. ¶ 29.

PLAINTIFFS’ RESPONSE

Disputed to the extent it implies that
Plaintiffs’ standards and the other
standards posted on Defendant’s website
are themselves laws or government
authored materials.
Disputed. The claim that Defendant
began posting portions of the standards at
issue in this case in 2008 is not supported
by the cited declaration. It is undisputed
that Public Resource did not post the
Works at issue in the Motion for
Summary Judgment until 2012. Malamud
Decl. ¶ 20; Pls. SUMF ¶ 250.
Objection. Lack of foundation. The
declarant can only testify that he was
unable to find standards for purchase from
SDOs, and has no foundation for
testifying that the standards were actually
not available for purchase from the
unidentified SDOs. Defendant cites no
evidence for the proposition that many of
the unidentified standards were
unavailable “likely because the version
incorporated into law had been
superseded.”
Disputed to the extent it implies that
Plaintiffs’ standards and the other
standards posted on Defendant’s website
are themselves laws or government
authored materials.
The cited declaration testimony does not
support this statement.
Disputed to the extent it implies that
Defendant has not attempted to obtain
donations and/or actually received
donations by advertising its plans to post
standards of specific SDOs, including
2

DEFENDANT’S STATEMENT OF FACT

7. Public Resource’s operating income is not
based on the amount of traffic its websites
receive. Public Resource does practice search
engine optimization to improve the accuracy of
how information on its websites is described.
Public Resource does not advertise on its
websites. C. Malamud Decl. ¶ 30.
8. Plaintiffs are three standards development
organizations (“SDOs”) that publish voluntary
consensus standards. Pls. Mem. 4–9; Compl. Ex.
A–C.
9. According to Plaintiffs, ASTM has published
approximately 12,000 standards, NFPA has
published over 300 standards, and ASHRAE has
published over 100 standards. Jarosz Rep. ¶ 13
(ASTM); ¶ 17 (NFPA), ECF No. 117-1; Reiniche
Decl. ¶ 2, ECF No. 118-10 (ASHRAE).
10. ASTM’s Mission Statement reads: “To be
recognized globally as the premier developer and
provider of voluntary consensus standards, related
technical information, and services that promote
public health and safety, support the protection
and sustainability of the environment, and the
overall quality of life; contribute to the reliability
of materials, products, systems and services; and
facilitate international, regional, and national
commerce.” M. Becker Decl. ¶ 98, Ex. 100.
11. NFPA’s “About NFPA” webpage states:
“Founded in 1896, NFPA is a global, nonprofit
organization devoted to eliminating death, injury,
property and economic loss due to fire, electrical
and related hazards. The association delivers
information and knowledge through more than
300 consensus codes and standards, research,
training, education, outreach and advocacy; and
by partnering with others who share an interest in
furthering the NFPA mission.” M. Becker Decl. ¶
99, Ex. 101.
12. ASHRAE’s Mission is “To advance the arts
and sciences of heating, ventilation, air

PLAINTIFFS’ RESPONSE
Plaintiffs. See Pls. SUMF ¶ 225, 228,
229.
The cited declaration testimony does not
support this statement.
Disputed as to claim that Defendant does
not advertise on its websites. Defendant
promotes its own activities and solicits
donations on its websites. Pls. Suppl.
SUMF ¶ 27.

Disputed to the extent it implies that
Plaintiffs are merely the publishers, and
not the authors, of voluntary consensus
standards.
Disputed to the extent it implies that
Plaintiffs are merely the publishers, and
not the authors, of voluntary consensus
standards.

Undisputed

Undisputed

Undisputed.

3

DEFENDANT’S STATEMENT OF FACT
conditioning and refrigeration to serve humanity
and promote a sustainable world.” M. Becker
Decl. ¶ 100, Ex. 102.
13. Some of the standards Plaintiffs publish are
adopted into law or incorporated by reference into
federal, state, or local law; many are not. Pls.
Mem. 9.
14. In order to enact rules, a federal agency must
follow minimum procedures to guarantee
adequate public notice and opportunity to
comment. 5 U.S.C. §553.
15. A federal agency must publish proposed rule
changes in the Federal Register, including
changes to a standard incorporated by reference
into the Code of Federal Regulations. 5 U.S.C.
§553(b); 1 C.F.R. § 51.11(a) (2015).
16. A standard incorporated by reference into the
Code of Federal Regulations must be a “proposed
rule” or “final rule” of a federal agency. 1 C.F.R.
§51.5(a)-(b) (2015).
17. Before the federal government incorporates a
standard by reference into law as a final rule, it
must be approved by the Director of the Federal
Register. 1 C.F.R. § 51.3 (2015).
18. Standards are incorporated by reference—as
opposed to reprinting the entire text of the
standards—to limit the length of the Code of
Federal Regulations. RJN ¶ 1.

19. Standards incorporated by reference into the
Code of Federal Regulations are made available

PLAINTIFFS’ RESPONSE

Disputed to the extent it implies that
Plaintiffs are merely the publishers, and
not the authors, of voluntary consensus
standards.
This is a legal conclusion, not a fact.

This is a legal conclusion, not a fact.

This is a legal conclusion, not a fact.
Disputed that a “proposed rule” would
constitute an incorporation by reference of
a standard into the Code of Federal
Regulations.
This is a legal conclusion, not a fact.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law.
Objection. The OFR statement is hearsay
and is inadmissible to prove the truth of
the matter asserted (i.e., the purported
only reason why standards are
incorporated by references as opposed to
reprinting the entire text).
Disputed that the sole purpose of
incorporating standards by reference is to
limit the length of the Code of Federal
Regulation. Disputed that were it not for
concerns about length, the entire text of
the standards would be reprinted. The
copying of the entire text of standards by
the federal government would subject the
federal government to liability under 28
U.S.C. § 1498 and/or the takings clause of
the Constitution. Pls. MSJ at 27-28.
Objection. The OFR statement is hearsay
and is inadmissible to prove the truth of
4

DEFENDANT’S STATEMENT OF FACT
in the Washington D.C. reading room of the
Office of the Federal Register, or for purchase
from the Plaintiffs. The OFR directs people who
want to read incorporated standards to “contact
the standards organization that developed the
material.” Alternatively, one may submit a written
request to the OFR to inspect (and make limited
photocopies of) an incorporated standard in
Washington, D.C. RJN ¶ 1.

PLAINTIFFS’ RESPONSE
the matter asserted.

Disputed to the extent it implies that the
standards incorporated by reference are
only available at the reading room of the
Office of the Federal Register or for
purchase from Plaintiffs. The standards at
issue and many other standards are
available for free. Pls. SUMF ¶¶ 61, 63,
100, 161. In addition, the standards at
issue and other standards are available for
purchase at reasonable prices. Pls. SUMF
¶¶ 58, 99, 158.
20. Public Resource has posted at least some of
Disputed. Defendant has posted all of the
the incorporated standards at issue online. C.
standards at issue online. Pls. SUMF ¶
Malamud Decl. ¶ 15–19.
187.
21. Plaintiffs have discussed Public Resource’s
Disputed entirely as to ASHRAE’s
activities at the highest levels of their
involvement in discussions since 2010.
organizations since at least 2010, but waited until Disputed as a vague and misleading with
August 2013 to file this lawsuit. For instance, in
respect to the references to “Public
2010 the President of NFPA emailed the
Resource’s activities” and “Have you seen
President of ASTM to arrange a meeting about
this [YouTube clip about Public
Public Resource, stating: “Have you seen this
Resource].” Defendant misleadingly
[YouTube clip about Public Resource]? . . . I left
suggests that Plaintiffs were discussing
a message at your office about possibly planning
Public Resource’s posting of their
a strategy together. This one could heat up fast
standards online in 2010. In fact, Public
and I am not too comfortable that we have
Resource did not post Plaintiffs’ standards
adequately sensitized policy makers in D.C.” M.
in bulk until December 2012. See Pls.
Becker Decl. ¶ 148, Ex. 150.
SUMF ¶ 250.
22. Each standard at issue on Public Resource’s
Disputed to the extent it implies that
websites was incorporated by reference into law.
incorporation by reference of a standard
C. Malamud Decl. ¶ 23; Pls. Mem. 9. Nearly all
makes the standard itself law. Disputed to
of the standards at issue were promulgated as
the extent it characterizes Plaintiffs’
private industry standards several years before
standards as private industry standards.
being incorporated into law by government
They are voluntary consensus standards.
agencies. See, e.g., ASTM D396-1998 “Standard Disputed that “nearly all” of the standards
Specification for Fuel Oils”, incorporated into
at issue that were developed by NFPA and
reference into law at 41 C.F.R. § 60.17 (2011); M. ASHRAE had existed for several years
Becker Decl. ¶ 151, Ex. 153 (ASTM email stating before they were incorporated by
that “[a]n unscientific scan suggests over 90
reference. Defendant offers no evidence
percent of ASTM standards incorporated by
supporting this proposition and it is not
reference are not the most recent versions, and
true. See Pls. SUMF ¶ 93 (noting the
many are way out of date versions”).
NEC is updated every three years).
Objection as to foundation, relevance and
5

DEFENDANT’S STATEMENT OF FACT

23. ASTM has publicly stated that “[k]nowledge
of ASTM standards is important for complying
with U.S. regulations and procurement
requirements” M. Becker Decl. ¶ 21, Ex. 23
(Grove Ex. 1032 “ASTM Standards Regulations
& Trade, Power Point” at 21).
24. The Office of the Federal Register states:
“The legal effect of incorporation by reference is
that the material is treated as if it were published
in the Federal Register and CFR. This material,
like any other properly issued rule, has the force
and effect of law. Congress authorized
incorporation by reference in the Freedom of
Information Act to reduce the volume of material
published in the Federal Register and CFR.” RJN
¶ 1.
25. Failure to comply with the standards
incorporated by law may result in penalties. M.
Becker Decl. ¶ 2, Ex. 4 (Bliss Dep. 37:1–19).

26. The former head of Massey Energy was
recently convicted of conspiring to violate safety
standards. RJN ¶ 2

27. With the exception of the 2014 National
Electric Code that was added by amending the
complaint, all of the standards at issue have been
superseded or withdrawn. Becker Decl. ¶¶ 95–97,
Exs. 97–99.

PLAINTIFFS’ RESPONSE
undue prejudice with respect to reliance
on an admittedly “unscientific scan” of
ASTM standards incorporated by
reference.
Undisputed

Objection. This statement is inadmissible
hearsay to the extent it is offered to prove
the truth of the matter asserted. It is
otherwise irrelevant.
The statements as to the legal effect of
incorporation by reference are legal
conclusions not facts.

This is a legal conclusion, not a fact.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law. Defendant
provides no support for the contention
that the regulations that incorporate by
reference each of the standards at issue
include penalties for non-compliance.
Objection. Relevance. The cited material
does not indicate that any of the relevant
safety standards were developed by any of
the Plaintiffs or are at issue in this case.
Unduly prejudicial. There is no evidence
that this conviction related in any way to a
standard at issue in this case.
Undisputed that the 2014 edition of the
NEC is the most recent edition of the
NEC. Undisputed that Plaintiffs have
published more recent editions of the
other works at issue in this case.
Otherwise disputed as argumentative.

6

DEFENDANT’S STATEMENT OF FACT

28. Persons who volunteer to create and develop
voluntary consensus standards have incentives to
do so that are independent of owning the
copyright to the standards. M. Becker Decl. ¶ 7,
Ex. 9 (Jarosz Dep. 82:9–17); ¶ 11, Ex. 15 (Smith
Dep. 45:16–46:10) ¶ 2, Ex. 4 (Bliss Dep. 21:1–3;
15–17) ¶ 10, Ex. 12 (Reiniche Dep. 50:12–51:6) ¶
2, Ex. 4 (Bliss Dep. 118:09–119:01).

29. Plaintiffs have earned revenue from sources
other than selling copies of the standards. These
sources include revenue from selling
interpretative material related to incorporated
standards; standards that have not been
incorporated into law; membership dues;
conference fees; training services; and public
grants and contracts M. Becker Decl. ¶ 9, Ex. 11
(Mullen Dep. 130:21–133:03; 228:11–229:23); ¶
7, Ex. 9 (Jarosz Dep. 192:22–193:6); ¶ 2, Ex. 4
(Bliss Dep. 199:23–201:12; 158:06–159:15); ¶ 6,
Ex. 8 (Grove Dep. 264:22–266:19); ¶ 3, Ex. 5
(Comstock Dep. 48:23–56:21; 59:03–60:02;
72:5–74:15). Plaintiffs acknowledge that other
standards development organizations operate
without asserting a right to exclude. Jarosz Rep. ¶
81, ECF No. 117-1.

PLAINTIFFS’ RESPONSE
Objection to Exhibits 97-99 as hearsay
and lacking foundation/personal
knowledge.
Undisputed that volunteers who assist in
the development of voluntary consensus
standards participate in the standards
development process for a variety of
reasons, but those volunteers do not do all
of the work that is necessary for the
creation and publication of the standards.
Only SDOs such as Plaintiffs do that
work. Pls. SUMF ¶¶ 43, 104, 105, 152.
Disputed to the extent this implies that
Plaintiffs would have the incentive to
create and develop their standards if they
would not own the copyrights in the
standards. See Pls. SUMF ¶¶ 45-47, 10508, 152-53. None of the cited evidence
suggests otherwise.
Undisputed as to the first two sentences.
Plaintiffs acknowledge that certain
European standards development
organizations do not depend on the sales
of their standards to support the
development of their standards. These
standards development organizations are
funded in a front-loaded fashion, in which
they charge members to participate and
contribute to the standards development
process. Jarosz Rep. ¶ 81. Unlike
Plaintiffs, these SDOs do not create
voluntary consensus standards that
comply with ANSI requirements. Pl.
SUMF ¶¶ 7-8, 12, 88, 139. The funding
model these European SDOs use, which
Plaintiffs do not use, creates barriers to
broad participation in the standard
development process. Pl. SUMF ¶¶ 25960.
Disputed to the extent Defendant suggests
that these other sources of revenue mean
Plaintiffs would not be irreparably harmed
by the loss of revenue from standards
incorporated by reference. Reply ISO
7

DEFENDANT’S STATEMENT OF FACT

PLAINTIFFS’ RESPONSE
MSJ 42-45.
30. ASHRAE has a Government Affairs office in It is undisputed that ASHRAE has an
Washington D.C. Becker Decl. ¶ 50, Ex. 52.
office in Washington DC. Some of the
activities that office takes could be
characterized as “Government Affairs.”
31. ASHRAE’s Government Affairs office has
Objection to the relevance of the cited
encouraged members of congress and other policy testimony to the extent it refers to
makers to incorporate ASHRAE standards into
ASHRAE standards not at issue in this
law. M. Becker Decl. ¶ 10, Ex. 12 (Reiniche Dep. litigation (Fed. R. Evid. 402).
136:11–21; 138:24–140:10; 210:19–211:09).
ASHRAE does not dispute that it offers
technical assistance to members of
congress when requested. However,
Defendant overstates the evidence it cites.
Ms. Reiniche’s actual testimony reflects
that ASHRAE staff or volunteers would
meet with agencies “when they were
requesting that type of thing.” The cited
testimony also concerns ASHRAE’s
involvement in a “High-Performance
Building Congressional Caucus
Coalition” that may meet with congress.
Finally, the cited testimony refers
specifically to ASHRAE Standard 1612007, which is not at issue in this case.
32. ASHRAE started a grassroots program to
Objection to Relevance (Fed. R. Evid.
advocate for adoption of building codes into law, 402).
including the standard known as ASHRAE 90.1.
M. Becker Decl. ¶ 10, Ex. 12 (Reiniche Dep.
Defendant overstates the testimony, which
144:06–145:23).
actually reflects that volunteer members
of ASHRAE chapters may speak to local
government officials “when we are made
aware of references” to standards. In
other words, this grassroots campaign
does not necessarily involve adoption of
standards but could be about a number of
issues and engagement appears to occur
once the topic of incorporation by
reference has already arisen independent
of ASHRAE. Reiniche Dep. 144:06–
145:23.
33. ASHRAE refers to the citation of ASHRAE
ASHRAE does not dispute that certain
90.1 in the Energy Policy Act (“EPAct”) as
ASHRAE documents have referenced an
ASHRAE’s “EPAct advantage,” because
“EPAct advantage.” However, EPAct
ASHRAE 90.1 is referenced over other energy
does not require states to adopt Standard
8

DEFENDANT’S STATEMENT OF FACT
efficiency commercial building codes. M. Becker
Decl. ¶ 48, Ex. 50; ¶ 10, Ex. 12 (Reiniche Dep.
127:13–127:18); ¶ 49, Ex. 51; ¶ 10, Ex. 12
(Reiniche Dep. 128:07–130:21).

34. ASHRAE has repeatedly entered into a
“Memorandum of Understanding” with the DOE
that states that both orgs are committed to
working together toward cooperating in
promotion of ANSI/ASHRAE standards adoption
in building codes. M. Becker Decl. ¶ 47, Ex. 49;
¶ 10, Ex. 12 (Reiniche Dep. 110:20–111:16;
113:13–114:01).

35. ASTM makes governments aware of ASTM
standards, and takes pride in the incorporation by
reference of its standards. Becker Decl. ¶ 6, Ex.
8 (Grove Dep. 235:02–236:02).

36. ASTM reaches out to congressional staffers
and government agencies to suggest the use of
particular editions of standards and particular
language in legislation. Becker Decl. ¶ 22, Ex.
24; ¶ 6, Ex. 8 (Grove Dep. 124:10–125:05;
258:16–261:23; 263:05–263:09).

PLAINTIFFS’ RESPONSE
90.1, instead it requires that their
standards be “no less stringent” than 90.1
(or no less stringent than a building code
from a competing SDO, the International
Code Council, depending on building
type). Reiniche Dep. 31:6-20; 150:14151:12.
Objection to Relevance (Fed. R. Evid.
402)
ASHRAE admits it has entered a
memorandum of understanding with the
DOE. However, it disputes that the
evidence regarding “adoption into
building codes” is relevant. As Ms.
Reniche explained in the testimony
Defendant cites, this “adoption” most
likely pertained to 90.1 serving as an
alternate form of compliance to an
International Code Council code (not
direct incorporation into federal law).
Reiniche Dep. 111:4-11; 113:13-114:1.
Disputed. Defendant’s characterization
of the testimony is misleading. Mr.
Grove testified: “As a matter of policy,
we make organizations – sorry –
governments aware of our standards and
point out and connection with agency
missions. But in the end, we respect that
agencies should be the ones that
determine whether or not our standards
are incorporated or not.” Def. Ex. 8
(Grove Dep. 235:5-10). Mr. Grove also
testified that he did not believe ASTM
would have an official position as to
whether it is pleased when governments
incorporate its standards by reference.
Def. Ex. 8 (Grove Dep. 236:14-25).
Disputed. The cited testimony and exhibit
demonstrate that ASTM encourages
government agencies who plan to
reference an ASTM standard to reference
the most up-to-date version of that
standard. ASTM does not lobby for the
incorporation by reference of its standards
9

DEFENDANT’S STATEMENT OF FACT

37. ASTM participated in an “Incorporation by
Reference Public Workshop” with the US Dep’t
of Transportation on July 13, 2012. Becker Decl.
¶ 6, Ex. 8 (Grove Dep. 270:7–19).
38. ASTM has never requested that Congress or a
federal agency not incorporate an ASTM standard
by reference into law. Becker Decl. ¶ 6, Ex. 8
(Grove Dep. 261:25–262:08).

39. On December 3, 2015, ASTM co-sponsored
an event in Washington D.C. entitled “What Do
Airplanes, Robots, Toys, Flat Screen TVs
Amusement Parks & 3D Printing Have in
Common?” The promotional literature for the
event states that the event “will highlight the
importance of government participation in and the
reliance on voluntary standards and
conformance.” Becker Decl. ¶ 102, Ex. 104
(“Capitol Hill Event to Feature Policy and
Business Leader Insights on Voluntary Standards
and Conformance”).

40. NFPA engages in activities to promote the
adoption and incorporation by reference of NFPA
codes and standards into law. M. Becker Decl. ¶
2, Ex. 4 (Bliss Dep. 46:19–48:20; 62:20–63:08;
82:09–18).

41. NFPA is not aware of any situation where it
would discourage the adoption of a standard into
law. M. Becker Decl. ¶ 2, Ex. 4 (Bliss Dep.
48:21–49:04).
42. NFPA is “advocating for fire safety” through
the adoption and use of its standards by
governments and industries. M. Becker Decl. ¶ 2,
Ex. 4 (Bliss Dep. 82:13–25).

PLAINTIFFS’ RESPONSE
or for the inclusion of any particular
language in legislation. Pls. SUMF ¶ 56.
Objection. Relevance.
Undisputed
Objection. Relevance; unduly prejudicial.
Disputed to the extent it implies that
Congress or any federal agency has ever
sought permission from ASTM before
incorporating by reference an ASTM
standard.
Objection. Relevance; unduly prejudicial.
Disputed as to characterization of the
supporting exhibit as “promotional
literature.”
Disputed to the extent it falsely suggests
that ASTM is referencing anything other
than the importance of having government
representation in the standards
development process, as well as the input
of industry, public interest groups and
others. ASTM does not lobby for the
incorporation by reference of its standards
or for the inclusion of any particular
language in legislation. Pls. SUMF ¶ 56.
Disputed to the extent this suggests that
NFPA’s purpose in developing standards
is for them to be incorporated by
reference. NFPA does not develop any
standards solely for that purpose. Pls.
SUMF ¶¶ 90-91.
Undisputed

Disputed. Defendant mischaracterizes
the testimony which states “I guess it
depends on the, how you would define
‘advocacy.’ We’re advocating for fire
safety, and we believe that the adoption
10

DEFENDANT’S STATEMENT OF FACT

43. The Office of the Federal Register is required
to maintain a copy of each incorporated standard.
It makes a copy of each standard available for
public viewing, upon written request for an
appointment, at its Washington, D.C. reading
room. RJN ¶ 1.

PLAINTIFFS’ RESPONSE
and use of standards promotes fire
safety.” Def. Ex. 4 (Bliss Dep.) 82:13-16.
Objection. The OFR statement is hearsay
and is inadmissible to prove the truth of
the matter asserted.

Disputed to the extent it implies that the
standards incorporated by reference are
only available at the reading room of the
Office of the Federal Register or for
purchase from Plaintiffs. The standards at
issue and many other standards are
available for free. Pls. SUMF ¶¶ 61, 63.
100, 161. In addition, the standards at
issue and other standards are available for
purchase at reasonable prices. Pls. SUMF
¶¶ 58, 99, 158.
44. According to a statement by the Modification Objection. The cited evidence is hearsay.
and Replacement Parts Association: “The burden It is also irrelevant and unfairly
of paying high costs simply to know the
prejudicial, especially since there is no
requirements of regulations may have the effect
evidence to suggest this statement relates
of driving small businesses and competitors out of to any standard at issue in this case.
the market, or worse endanger the safety of the
flying public by making adherence to regulations Disputed. There is no admissible
more difficult due to fees . . . .” M. Becker Decl.
evidence supporting this statement.
¶ 103, Ex. 105 (ABA Section of Administrative
Law and Regulatory Practice Resolution,
submitted November 17, 2015).
45. ASTM gives government bodies like the US
Geological Survey and the State of Georgia,
fellow SDOs like NFPA, IAPMO and ICC, and
favored corporations liberal permission to copy
standards both in paper and electronic format, and
to use excerpts from standards in other
documents. M. Becker Decl. ¶ 105, Ex. 107; ¶
106, Ex. 108; ¶ 107, Ex. 109; ¶ 108, Ex. 110; ¶
109, Ex. 111; ¶ 110, Ex. 112.

Objection. This statement and the cited
evidence are irrelevant and unfairly
prejudicial because there is no evidence
that these statements relate to any of the
standards at issue. Disputed. ASTM
routinely grants permission to researchers,
academics and others to reproduce its
standards at no cost for non-commercial
purposes. Pls. SUMF ¶ 68.

46. ASTM regularly refuses to give similar
permissions to graduate students, universities,
libraries, and smaller businesses. M. Becker
Decl. ¶ 128, Ex. 130; ¶ 118, Ex. 120; ¶ 111, Ex.
113; ¶ 129, Ex. 131; ¶ 113, Ex. 115; ¶ 114, Ex.

Objection. This statement and the cited
evidence are irrelevant and unfairly
prejudicial because there is no evidence
that these statements relate to any of the
standards at issue. In addition, there is no
11

DEFENDANT’S STATEMENT OF FACT
116; ¶ 115, Ex. 117.

PLAINTIFFS’ RESPONSE
evidence supporting the proposition that
the cited requests are “similar” to the
previously mentioned requests.
Disputed. ASTM routinely grants
permission to researchers, academics and
others to reproduce its standards at no cost
for non-commercial purposes. Pls. SUMF
¶ 68. ASTM denies permission to use its
standards when the requester seeks to post
the standard on a public website with no
reasonable time limit and/or with no
limitation on the number of people who
can access it. See Def. Exs. 113, 115,
117, 120, 130; see also O’Brien Suppl.
Decl. ¶ 16. ASTM may also, as it entitled
to do under copyright law, deny
permission to a party requesting to make a
copy of a complete standard or to make a
derivative work based on an ASTM
standard. See Def. Ex. 116.

47. ASTM gave the structural engineering firm
SGH, “a big supporter of ASTM,” permission to
excerpt a number of figures and tables from a
standard. M. Becker Decl. ¶ 110, Ex. 112.
48. ASTM refused to allow an engineering
student at the University of Pennsylvania to use
“photographs and figures” from another standard
in a case study. M. Becker Decl. ¶ 115, Ex. 117.

50. ASTM refused to allow Columbia Analytical
to reproduce abstracts from a standard. M.
Becker Decl. ¶ 118, Ex. 120.

Objection. This statement and the cited
evidence are irrelevant and unfairly
prejudicial because there is no evidence
that these statements relate to any of the
standards at issue.
Objection. This statement and the cited
evidence are irrelevant and unfairly
prejudicial because there is no evidence
that these statements relate to any of the
standards at issue.
Disputed. ASTM denies permission to
use its standards when the requester seeks
to post the standard on a public website.
Unlike the requested license in ¶ 47, this
student was requesting permission to
include the standard in an article that
would be “posted online through
wikispaces.” See Def. Ex. 117.
Objection. This statement and the cited
evidence are irrelevant and unfairly
prejudicial because there is no evidence
that these statements relate to any of the
standards at issue.
12

DEFENDANT’S STATEMENT OF FACT

51. Plaintiffs provide “reading rooms” for some
of the incorporated standards. Thomas Decl. ¶
50, ECF No. 118-11; O’Brien Decl. ¶ 60, ECF
No. 118-7; Pauley Decl. ¶ 45, ECF No. 118-8;
Reiniche Decl. ¶ 19–20, ECF No. 188-10.

52. Plaintiffs’ “reading rooms” do not permit
software-based searching and analysis of the
incorporated standards. M. Becker Decl. ¶ 94,
Ex. 96 (Fruchterman Rep. ¶ 6).

53. Plaintiffs online “Reading Rooms” do not
allow people with print disabilities to use
software based screen readers to access the
legally mandated standards. M. Becker Decl. ¶
94, Ex. 96 (Fruchterman Rep. 7–13).

PLAINTIFFS’ RESPONSE
Disputed. ASTM denies permission to
use its standards when the requester seeks
to post the standard on a public website
ASTM denied a request to post abstracts
on a publicly available website. See Def.
Ex. 120; see also O’Brien Suppl. Decl. ¶
16.
Disputed. NFPA and ASHRAE make all
of their standards that have been
incorporated by reference into
government regulations available online
for free read-only viewing. Pls. SUMF ¶
100, 161. ASTM makes all standards it is
aware have been incorporated by
reference by the federal government
available for read-only viewing in its
reading room. Pls. SUMF ¶ 63.
Objection. Inadmissible opinion
testimony. Mr. Fruchterman has been
offered as an expert on accessibility of
materials to people who are visually
impaired. He is not competent to testify
about software-based searching and
analysis.
Disputed. To protect their copyrighted
standards from exposure to mass copying,
Plaintiffs have provided versions of their
standards on their reading rooms that
provide read-only access. See, e.g., Grove
Dep. 110:8-23; Dubay Dep. 77:21-78:4;
Comstock Dep. 10:23-11:3. There is no
evidence that Plaintiffs placed any
purposeful restriction on the use of screen
readers by people with print disabilities
on their reading rooms. To the extent a
screen reader requires the ability to do
more than read from an image of the
standard on the screen, it is undisputed
that the screen reader will not be able to
read the versions of Plaintiffs’ standards
on their reading rooms.
NFPA has a commitment to make
accommodations for persons with
disabilities to access NFPA materials. To
13

DEFENDANT’S STATEMENT OF FACT

54. People must register to access the reading
rooms established by ASTM and NFPA. The
registration process requires a visitor to provide
ASTM and NFPA with their names and email
address. ASTM also requires visitors to provide
additional information, including the visitors
address and phone number. M. Becker Decl. ¶ 6,
Ex. 8 (Grove Dep. 213:14–19); ¶ 2, Ex. 4 (Bliss
Dep. 79:4–7); ¶ 9, Ex. 11 (Mullen Dep. 50:4–18.;
¶ 130, Ex. 132 (ASTM Reading Library
Registration Screen, Page 1); ¶ 131, Ex. 133
(ASTM Reading Library Registration Screen,
Page 2); ¶ 136, Ex. 138 (NFPA Sign In
Webpage).
55. NFPA uses the information gathered from
visitors to its online reading room to send
marketing materials. M. Becker Decl. ¶ 9, Ex. 11
(Mullen Dep. 51:17–52:2).
56. The visitor to Plaintiffs’ reading rooms will
find the standard displayed in a small box on the
visitor’s screen, in text that is sometimes
degraded, in a small font size that is difficult for
many people to read. Magnification of the text
makes the text appear blurry. In general only a
small part of each page cannot be viewed without
scrolling. Each page of each standard is stamped
over the text with a warning that the material is
copyrighted. ASTM admitted that it created its
reading room to be “user unfriendly.” ASTM
calls its Reading Room an “IBR [incorporation by
reference strategy meant to “take ownership of
the issue in a way that ASTM controls.” M.
Becker Decl. ¶ 6, Ex. 8 (Grove Dep. 217:1–19); ¶
138, Ex. 140; ¶ 139, Ex. 141; ¶ 140, Ex. 142; ¶
141, Ex. 143; ¶ 2, Ex. 4 (Bliss Dep. 219:18221:05); ¶ 137, Ex. 139 (ASHRAE Reading
Room Screen Shot). O’Brien Decl. Ex. 18, ECF

PLAINTIFFS’ RESPONSE
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. Dubay Decl. ¶¶ 6-7. NFPA is not
aware of any other individuals who have
requested and not received an
accommodation. Id. ¶ 6.
Undisputed

Undisputed

Disputed. There is no support for the
contentions that the text of the standards
is sometimes degraded, the font size is
difficult for many people to read,
magnification of the text makes the text
appear blurry, only a small part of each
page can be viewed without scrolling.
Not all Plaintiffs stamp each page of the
text with a copyright notice. Objection to
the characterization of the ASTM
documents based on the best evidence
rule. Disputed to the extent it
mischaracterizes the statements by
ASTM, which speak for themselves and
that are quoted out of context. See Def.
Exs. 140, 141. There is no evidence that
the standards are displayed in a “small”
box. The only cited evidence of the size
is a 5-by-7 pane.
14

DEFENDANT’S STATEMENT OF FACT
No. 118-7. ASTM admitted that it created its
reading room to be “user unfriendly.” Id. ¶ 139,
Ex. 141. ASTM calls its Reading Room an “IBR
[incorporation by reference] strategy” meant to
“take ownership of the issue in a way that ASTM
controls.” Id. ¶ 138, Ex. 140.
57. A user of ASTM’s reading room must click a
box that states the user agrees to ASTM’s end
user license agreement before accessing the
reading room. NFPA’s reading room also
contains terms of service. M. Becker Decl. ¶ 134,
Ex. 136 (ASTM License Agreement Webpage); ¶
133, Ex. 135 (ASTM Reading Room Terms); ¶
135, Ex. 137 (NFPA Free Access Terms).
58. ASHRAE posted some of its standards for
public viewing in a format that restricted
downloading. M. Becker¶ 3, Ex. 5 (Comstock
Dep. 11:25–12:7).
59. ASHRAE posted its standards for public
viewing with the intent of increasing demand for
the posted standards. M. Becker ¶ 3, Ex. 5
(Comstock Dep. 11:25–12:7).
60. ASHRAE removes older standards
incorporated by reference from its reading room.
M. Becker Decl. ¶ 3, Ex. 5 (Comstock Dep.
20:19–22).

61. Plaintiffs do not allow people to print or
download the standards on their reading rooms.
M. Becker Decl. ¶ 132, Ex. 134 (ASTM Reading
Room Disclaimer).
62. ASTM defines the standards they produce as
documents comprising “specifications, test
methods, practices, guides, classification and
terminology.” M. Becker Decl. ¶ 6, Ex. 8 (Grove
Dep. 14:22–15:6).
63. ASTM has a form and style guide that sets
forth the rules that persons generally must follow
in participating in the drafting and revision

PLAINTIFFS’ RESPONSE

Undisputed

Undisputed

Undisputed

It is undisputed that ASHRAE has had a
policy of removing older standards from
its reading room to encourage use of latest
versions. However, for certain standards
that are incorporated by reference,
including Standard 90.1, which is the
ASHRAE standard at issue here, older
versions are still available in the
ASHRAE reading room. Reiniche Decl.
(Dkt. No. 118-10) at ¶ 19.
Undisputed

Disputed.
The cited deposition testimony does not
support this proposition.
Objection. Best evidence rule.
Disputed. ASTM’s form and style guide
sets forth guidelines for drafting different
15

DEFENDANT’S STATEMENT OF FACT
process of ASTM standards. M. Becker Decl. ¶ 6,
Ex. 8; ¶ 23, Ex. 25 (Grove Dep. 268:14–269:4).
64. According to NFPA’s corporate designee,
Donald Bliss, codes and standards are procedures
and practices. M. Becker Decl. ¶ 2, Ex. 4 (Bliss
Dep. 21:18–22:11).

65. ASHRAE described one of the standards at
issue, the 1993 ASHRAE Handbook:
Fundamentals, as “a tool for engineers to use
when they’re working with the topics covered in
that book.” M. Becker Decl. ¶ 10, Ex. 12
(Reiniche Dep. 158:20–24).
66. The content of the ASHRAE standards-atissue is based on a technical committee’s review
of the relevant research, public input and
committee expertise, all of which is intended to
determine the best rule—the consensus
standard—for the relevant industry. M. Becker
Decl. ¶ 2, Ex. 4 (Bliss Dep. 140:1–41:4); ¶ 4, Ex.
6 (Dubay Dep. 29:12–21, 68:9–20, 73:16–25); ¶

PLAINTIFFS’ RESPONSE
types of ASTM standards, not for
participating in the drafting and revision
process. Pls. SUMF ¶¶ 33-34.
Disputed. Defendant takes Mr. Bliss’s
testimony wholly out of context. Nothing
about Mr. Bliss’s statement supports the
proposition that the standards are systems
and methods as Defendant claims. Def’s
Opp. at 31.
In response to the question “What, in your
view, makes codes and standards essential
to reducing fire loss, fire deaths and
property losses?,” Mr. Bliss answered,
“Codes and standards are the result of a
number of things. One is actual lessons
learned from events that have happened in
the past, fire incidents, electrical
problems, electrocutions, explosions. And
based on the analysis of those events, we
can learn from them and then establish the
procedures and practices that should be
followed to prevent that from happening.
The second way is from actual research,
looking at potential problems, looking
proactively to determine whether or not a
risk or a hazard exists, and then based on
that research, generating guidelines and
standards that would prevent those events
from happening.” Def. Ex. 4 (Bliss Dep.)
21:18-22:11.
Undisputed.
Objection to relevance (Fed. R. Evid.
402).

Disputed to the extent that Ms. Reiniche’s
cited testimony never makes any
qualitative assessment as to whether the
ASHRAE standard is the “best rule” for
the relevant industry.

16

DEFENDANT’S STATEMENT OF FACT
10, Ex. 12 (Reiniche Dep. 94–95). Jarosz Rep.
26–30, ECF No. 117-1.
67. NFPA is committed to reducing the
worldwide burden of fire and other hazards by
developing and disseminating codes that will
minimize fire risk. Jarosz Rep. 29, ECF No. 1171.

68. Bliss testified that, when he was a committee
member, his motivation was to develop the “best”
standard, and “best” meant “understanding the
problem based on past experience and events,
having as much scientifically based research to
contribute to the development of the standard and
then a very, very open and transparent consensus
process.” After that:
There’s a tremendous amount of public input and
vetting of the concepts and the actual language
which in reality mirrors a government adoption of
legislative process. M. Becker Decl. ¶ 2, Ex. 4
(Bliss Dep. 139:07–140:10).

69. ASHRAE says its standards define “the
minimum acceptable performance for the relevant
products.” Jarosz Rep. 33, ECF No. 117-1.
70. The main benefit of the consensus process,
according to ASHRAE, is that it relies on experts
who understand “how to make that product or
how to construct that building or how to make
something more energy efficient.” M. Becker

PLAINTIFFS’ RESPONSE

Disputed. Defendant misstates the
statement in the report “NFPA’s mission
is ‘to reduce the worldwide burden of fire
and other hazards on the quality of life by
providing and advocating consensus
codes and standards, research, training,
and education.’” See Jarosz Rep. ¶ 68.
Disputed. Defendant relies on this
mischaracterization to support its claim
that the standards are systems and
method. Mr. Bliss’s testimony does not
support that point:
Q. And what makes a fire safety standard
the best available?
A. In my view, it's a combination of
factors. One is understanding the problem
based on past experience with fires and
events, having as much scientifically
based research to contribute to the
development of the standard and then a
very, very open and transparent consensus
process.
Q. And what about the standards make
them, makes them the best for adoption
into law?
A. I think for the reasons that I indicated,
is that there's lessons learned from past
events. There's research that goes into the
process. There's a tremendous amount of
public input and vetting of the ideas and
of the concepts and of the actual language
which in reality mirrors a governmental
adoption or legislative process. It takes
advantage of a wide range of expertise
and perspectives.
Undisputed.

Disputed. The cited testimony does not
say that this is the “main benefit” of the
consensus process or even that it is a
benefit of the consensus process at all.
The testimony discusses why committee
17

DEFENDANT’S STATEMENT OF FACT
Decl. ¶ 10, Ex. 12 (Reiniche Dep. 102:23–25).
71. As NFPA puts it, there are two types of
changes: technical changes, which are
“scientific,” and wording changes which involve
making potentially confusing language more clear
to make it easier to interpret or understand what
the actual technical requirement is. M. Becker
Decl. ¶ 4, Ex. 6 (Dubay Dep. 28:22–30:4).

PLAINTIFFS’ RESPONSE
members should have some level of
expertise in the field.
Disputed to the extent Defendant
characterizes changes as merely for
clarity. Mr. Dubay’s full testimony
makes clear that the standards involve
creative judgment and numerous choices
to settle on final wording:

Q: Who determines what wording
changes are appropriate in the technical
committees?
A. It's a combination of extensive public
review and comment, the committee's
review of that and their expertise and with
the help of our technical staff to land on
the final wording, which is ultimately
decided by the technical committee.
Q. What criteria do the members of the
technical committee use in choosing the
wording of a code or standard?
A. Ultimately those decisions are based
upon the technical committee members'
expertise and knowledge within the field.
Def. Ex. 6 (Dubay Dep.) 29:12-30:4.
72. The volunteers who work on the standards
Disputed. There is no support for the
don’t view them as creative expression.
contention that volunteers do not view
Volunteers debate wording in the standards so as their work as creative expression or the
to have the most precise and accurate description implication that they would have to view
of the process, system, or methods that comprise
their expression as creative under
the standards. The exact wording matters, and it is copyright law. There is also no support
not sufficient to try to rephrase this language as
for the proposition that exact wording
rephrasing could introduce errors. M. Becker
matters and rephrasing the language could
Decl. ¶ 2, Ex. 4 (Bliss Dep. 140:1–140:10).
introduce errors.
The cited transcript does not support
Defendant’s purported fact: “I think for
the reasons that I indicated, is that there’s
lessons learned from past events. There’s
research that goes into the process.
There's a tremendous amount of public
input and vetting of the ideas and of the
concepts and of the actual language which
in reality mirrors a governmental adoption
or legislative process. It takes advantage
18

DEFENDANT’S STATEMENT OF FACT

PLAINTIFFS’ RESPONSE
of a wide range of expertise and
perspectives.” Bliss Dep. 140:1-10.

There is also no support for this fact with
respect to ASTM or ASHRAE.
73. Plaintiffs believe that technical excellence is
Undisputed that Plaintiffs believe
why their standards are ultimately incorporated by technical expertise is one reason why their
reference. M. Becker Decl. ¶ 6, Ex. 8 (Grove
standards are ultimately incorporated by
Dep. 235:2–23).
reference.
74. NFPA wants to make it easy as possible for
Undisputed that NFPA seeks to makes it
users to understand the structure of the standard.
easy for users to understand the structure
M. Becker Decl. ¶ 4, Ex. 6 (Dubay Dep. 138–
of its standards, but disputed to the extent
139).
that Defendant misleadingly isolates this
one snippet of Mr. Dubay’s testimony to
suggest that this effort does not require
creative expression. See Opp. at 33
(describing the Works as turning on only
practical concerns without “a whit of
expressive creativity”). As Mr. Dubay
testified at length, NFPA’s staff,
committee members, and members of the
public engage in a lengthy standards
development process that involves many
creative decisions that result in the
creation of the final standard. Rubel Dec.
Ex. 6 (Dubay Dep. 24-28, 31-33, 50-56,
59-62, 66-69).
As is clear from the Works filed with the
Court, they are each unique and reflect the
Plaintiffs’ distinct expressive choices.
For example, NFPA and ASHRAE both
define “automatic,” but author different
expressions of that definition. Compare
Comstock Decl., Ex. 1 (ASHRAE 90.12004) with Dubay Decl., Ex. A at 70-26
(NFPA NEC 2011). Likewise, the
standards each use drawings in different
ways and the style of those drawings is
distinct. Compare Comstock Decl., Ex. 1
at 18 (straightforward figure style in
ASHRAE 90.1-2004) with O’Brien Decl.
Ex. 6 at 3, 17 (complex drawing style in
ASTM in ASTM D86-07).

19

DEFENDANT’S STATEMENT OF FACT
75. NFPA asserted that “standard developers
converge around terminology and format that
works for constituents that utilize their
standards.” M. Becker Decl. ¶ 4, Ex. 6 (Dubay
Dep. 139:03–06).

76. ASHRAE changed its arrangement of 90.1
from one column to two columns, as well as the
chapter organization, to make it shorter. M.
Becker Decl. ¶ 10, Ex. 12 (Reiniche Dep. 194–
198).

PLAINTIFFS’ RESPONSE
Undisputed that NFPA seeks to use
terminology and format that works for
constituents that utilize their standards,
but disputed to the extent that Defendant
misleadingly isolates this one snippet of
Mr. Dubay’s testimony to suggest that
this effort does not require creative
expression. See Opp. at 33 (describing the
Works as turning on only practical
concerns without “a whit of expressive
creativity”). As Mr. Dubay testified at
length, NFPA’s staff, committee
members, and members of the public
engage in a lengthy standards
development process that involves many
creative decisions that result in the
creation of the final standard.. Rubel Dec.
Ex. 6 (Dubay Dep. 24-28, 31-33, 50-56,
59-62, 66-69).
As is clear from the Works filed with the
Court, they are each unique and reflect the
Plaintiffs’ distinct expressive choices.
For example, NFPA and ASHRAE both
define “automatic,” but author different
expressions of that definition. Compare
Comstock Decl., Ex. 1 at 5 (ASHRAE
90.1-2004) with Dubay Decl., Ex. A at
70-26 (NFPA NEC 2011). Likewise, the
standards each use drawings in different
ways and the style of those drawings is
distinct. Compare Comstock Decl., Ex. 1
at 18 (straightforward figure style in
ASHRAE 90.1-2004) with O’Brien Decl.
Ex. 6 at 3, 17 (complex drawing style in
ASTM in ASTM D86-07).
While it is undisputed that ASHRAE
changed Standard 90.1 to a two column
format, ASHRAE disputes the portion of
this paragraph regarding chapter
organization. Ms. Reiniche’s actual
testimony was that chapter organization
was altered to “make it flow better and
easier for the reader to understand.”
Reiniche Dep. 120:5-11.
20

DEFENDANT’S STATEMENT OF FACT

77. The adoption or incorporation of NFPA codes
and standards into law may benefit NFPA
financially because it encourages industries to
purchase the standard. M. Becker Decl. ¶ 2, Ex. 4
(Bliss Dep. 118:23–119:1); ¶ 7, Ex. 9 (Jarosz
Dep. 209:16–210:7).

78. Plaintiffs monitor whether people follow the
requirements of standards incorporated into law.
M. Becker Decl. ¶ 2, Ex. 4 (Bliss Dep. 30:1–
37:25).

79. Plaintiffs enforce whether people follow the
requirements of standards incorporated into law.
M. Becker Decl. ¶ 2, Ex. 4 (Bliss Dep. 30:1–

PLAINTIFFS’ RESPONSE
Disputed to the extent Defendant offers
isolated snippets of deposition testimony
for a proposition that is belied by the very
Works themselves. See Opp. at 33
(describing the Works as turning on only
practical concerns without “a whit of
expressive creativity”). As clear from the
Works filed with the Court, they are each
unique and reflect the Plaintiffs’ distinct
expressive choices. For example, NFPA
and ASHRAE both define “automatic,”
but express that definition differently.
Compare Comstock Decl., Ex. 1 at 5
(ASHRAE 90.1-2004) with Dubay Decl.,
Ex. A at 70-26 (NFPA NEC 2011).
Likewise, the standards each use drawings
in different ways and the style of those
drawings is distinct. Compare Comstock
Decl., Ex. 1 at 18 (straightforward figure
style in ASHRAE 90.1-2004) with
O’Brien Decl. Ex. 6 at 3, 17 (complex
drawing style in ASTM in ASTM D8607).
Disputed as incomplete.
Evidence from NFPA’s former CFO, Mr.
Mullen, that Defendant cites in ¶ 123
explains that NFPA has not identified any
direct correlation between incorporation
by reference and sales. Def. Ex. 11
(Mullen Dep.) 95:3-25.
Disputed. The cited deposition testimony
does not describe the actions of Plaintiffs.
The testimony describes Mr. Bliss’s
“role[] . . . as a government employee
responsible for enforcement.” See, e.g.,
Def. Ex. 4 (Bliss Dep.) 32:20-33:10.
There is no evidence that supports this
statement in connection with ASHRAE or
ASTM.
Disputed. The cited deposition testimony
does not describe the actions of Plaintiffs.
The testimony describes Mr. Bliss’s
21

DEFENDANT’S STATEMENT OF FACT
37:25).

80. The standards at issue are dictated by external
factors, including international principles and the
desire to satisfy laws and regulations. M. Becker
Decl. ¶ 104, Ex. 106 (Public Policy & Corporate
Outreach Presentation, Sep. 2015); ¶ 6, Ex. 8
(Grove Dep. 94:24-95:01).

81. NFPA’s Style Manual for the NEC, for
example, specifies that because the NEC is
“intended to be suitable for adoption as a
regulatory document, it is important that it contain
clearly stated mandatory requirements in the code
text” so as to “encourage uniform adoption . . .
without alterations.” Additionally, ASHRAE
circulates a detailed Manual designed to ensure
that technical committees draft standards that will
be easily adopted as regulations. M. Becker Decl.
¶ 120, Ex. 122 (Style Manual for the NEC at 4);
Ex. 103 (ASHRAE Guide to Writing Standards in
Code Intended Language).
82. Public Resource posted some of the
incorporated standards at issue in standard Web

PLAINTIFFS’ RESPONSE
“role[] . . . as a government employee
responsible for enforcement.” See, e.g.,
Def. Ex. 4 (Bliss Dep.) 32:20-33:10.
Defendant provides no evidence that
ASTM or ASHRAE enforce compliance
with their standards.
Disputed. The proposition that Plaintiffs’
standards are dictated by any factors,
including international principles and the
desire to satisfy laws and regulations, is
not supported by the cited testimony or
document.
In response the question: “What
regulatory purposes do you anticipate
government agencies have that causes
them to examine industry standards?,” the
witness answered: “I don’t have an
answer for that. I think you could assume
that government participants in the
standardization process bring knowledge
of regulatory agendas and regulatory
needs of agencies to the voluntary
consensus community of which ASTM is
one member amongst others.” Def. Ex. 8
(Grove Dep. 94:15-95:3. Similarly, the
cited document is a powerpoint
presentation that contains no statements
about any factors that dictate the content
of Plaintiffs’ standards.
Objection as to completeness. The NEC
Style Manual includes substantial other
general and specific guidelines.
Disputed as to ASTM. None of the cited
evidence relates to ASTM or its standards,
yet Defendant implies that this statement
applies universally to all Plaintiffs.

Vague as to what constitutes as “standard
Web format.”
22

DEFENDANT’S STATEMENT OF FACT
formats. C. Malamud Decl. ¶ 24–27; M. Becker
Decl. ¶ 8, Ex. 10 (R. Malamud Dep. 64:10–17);
¶8, Ex. 10 (R. Malamud Dep. 94:11); Jarosz Rep.
¶ 35, ECF No. 117-1.
83. Public Resource posted the incorporated
standards at issue using HTML, MathML and
SVG. Over time, Public Resource used
contractors to assist in transforming the standards
into HTML format. Two people independently
type out most of the standards on Public
Resource’s websites and compare any
discrepancies between their versions to confirm
the accuracy of the transcription in a process
called double-keying. Public Resource’s
contractor also worked with after-school
educational programs to convert the diagrams into
SVG and the mathematical formulae into
MathML, a program that trains high-school and
college students how to create web pages and
educates them about democracy. C. Malamud
Decl. ¶ 25.

84. Hypertext Markup Language (HTML),
Mathematics Markup Language (MathML), and
Scalable Vector Graphics (SVG) permit users to
perform software-based searching and analysis.
C. Malamud Decl. ¶ 25.
85. Public Resource does not restrict the public
from viewing any of the incorporated standards at
issue on its websites. C. Malamud Decl. ¶ 23.
86. Public Resource does not require people to
log in to its website before viewing any of the
incorporated standards at issue on its websites.
C. Malamud Decl. ¶ 23.
87. Public Resource does not require people to
pay Public Resource before viewing any of the
incorporated standards at issue on its websites.
Malamud Decl. ¶ 23.
88. The Public Resource websites are directed at
researchers and engaged citizens. C. Malamud
Decl. ¶ 4, 26.

PLAINTIFFS’ RESPONSE
Defendant posted the standards at issue in
PDF and/or HTML formats.

Disputed that the conversion of standards
into HTML was transformative.
Disputed as to the process Defendant’s
contractor used to convert the standards
into HTML format. The contractor
testified that it used optical character
recognition to extract text unless the
image quality of the document was poor.
Pls. SUMF ¶ 192.
Disputed as to age range of students in
after-school program at “Public
Resource’s contractor” (i.e., Mr.
Malamud’s wife’s unincorporated
business) who converted diagrams into
SVG format and formulas into MathML,
which was advertised as 7-14. Pls. SUMF
¶ 199.
Undisputed

Undisputed

Undisputed

Undisputed

Objection as to relevance of Mr.
Malamud’s or Public Resource’s
supposed subjective intent.
Disputed. Defendant’s websites are
accessible by the general public and
23

DEFENDANT’S STATEMENT OF FACT

PLAINTIFFS’ RESPONSE
Defendant has no way to identify who has
downloaded, made additional copies of, or
printed the versions of Plaintiffs’
standards from its website. Pls. SUMF ¶
248.
89. Public Resource’s stated purpose for
Objection. Defendant’s stated purpose is
providing an archive or laws and other
irrelevant. Hearsay to the extent that the
government documents on its websites is to
out of court statements are relied upon to
bolster the public’s ability “to know and speak the prove the truth of the matters asserted.
law.” C. Malamud Decl. ¶ 28
(https://law.resource.org/pub/12tables.html).
90. Plaintiffs sell copies of the incorporated
Undisputed
standards at issue. Thomas Decl. ¶ 44, ECF No.
118-11; Pauley Decl. ¶ 44, ECF No. 118-8; Rubel
Decl. Ex. 8 (Comstock Dep. 104:21–106:23),
ECF No. 118-12.
Disputed. Mr. Fruchterman admitted he
91. Public Resource’s versions of the
could not opine that a visually disabled
incorporated standards at issue are reasonably
person would actually be able to use the
accessible to the print-disabled. People who are
HTML versions of Plaintiffs’ standards
print-disabled can use screen reader software to
posted on Defendant’s website. Pls.
read and navigate the HTML versions of the
standards. James Fruchterman, Public Resource’s Suppl. SUMF ¶ 4 (Fruchterman Dep.
175:5-176:9, 218:3-23). Mr. Fruchterman
expert on accessibility, concluded that “a blind
also acknowledged that he had asked a
person using a screen reader” can “read the
visually disabled person to evaluate the
standard . . . navigate to a specific place in the
PDF versions of Plaintiffs’ standards that
document . . . and search for key terms.”). Mr.
were posted on Defendant’s website, and
Fruchterman also observed that “standard
that person informed him that those
HTML” as used by Public Resource “is also
documents could not be considered to be
highly accessible to people with other print
accessible. Pls. Suppl. SUMF ¶ 5
disabilities and the assistive technology they use
(Fruchterman Dep. 256:12-259:6). In
to access print,” such as people with “vision
addition, the documents posted on
impairment, dyslexia, brain injury and physical
Defendant’s website are not the standards
disabilities.” M. Becker Decl. ¶ 94, Ex. 96
(Fruchterman Rep. 5–7); ¶ 8, Ex. 10 (R. Malamud at issue. They are Defendant’s mistakeladed creations. Pls. SUMF ¶¶ 182-185,
Dep. 233:15–234:7); ¶ 5, Ex. 7 (Fruchterman
188-201.
Dep. 125:10–11).
92. Plaintiffs’ versions of the incorporated
Disputed to the extent the statements
standards at issue online are not as accessible to
relates to people with non-print
the print-disabled as Public Resource’s versions
disabilities. To protect their copyrighted
of those standards. None of the Plaintiffs provide standards from exposure to mass copying,
free electronic access to standards incorporated
Plaintiffs have provided versions of their
into law for people with disabilities. For example, standards on their reading rooms that
NFPA’s website requires visitors to register
provide read-only access. See, e.g., Grove
before viewing the standards, and its registration
Dep. 110:8-23; Dubay Dep. 77:21-78:4;
process cannot be completed by blind users. None Comstock Dep. 10:23-11:3. There is no
24

DEFENDANT’S STATEMENT OF FACT
of the Plaintiffs provides machine-readable text of
the incorporated standards through their free
reading portals. They provide only “a picture of
the text,” which causes screen-reading software to
“stop working.” Nor do the Plaintiffs’ websites
provide any means for disabled visitors to search
or navigate the documents. Thus,
“Public.Resource.Org currently provides the only
accessible option for people/citizens with print
disabilities to access these standards.” M. Becker
Decl. ¶ 5, Ex. 7 (Fruchterman Dep. 43:21–23;
112:1–8; 133:5; 143:10–14; 165:17–166:7; 167:8;
205:2–13); ¶ 94, Ex. 96 (Fruchterman Rep. 5–13);
¶ 2, Ex. 4 (Bliss Dep. 220:1–221:25); ¶ 2, Ex. 4
(Bliss Ex. 1003); ¶ 3, Ex. 5 (Comstock Dep.
20:22; 44:1–46:25).

PLAINTIFFS’ RESPONSE
evidence that Plaintiffs placed any
purposeful restriction on the use of screen
readers by people with print disabilities
on their reading rooms. To the extent a
screen reader requires the ability to do
more than read from an image of the
standard on the screen, it is undisputed
that the screen reader will not be able to
read the versions of Plaintiffs’ standards
on their reading rooms. 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.
Pls. Suppl. SUMF ¶ 4 (Fruchterman Dep.
175:5-176:9, 218:3-23). Mr. Fruchterman
also acknowledged that he had asked a
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. Pls. Suppl. SUMF ¶ 5
(Fruchterman Dep. 256:12-259:6).
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. Pls. Suppl. SUMF ¶
8 (citing O’Brien Suppl. Decl. ¶ 17.)

Mr. Fruchterman testified that the 2014
edition of the NEC is available on Mr.
Fruchterman’s company’s online library
for the visually-impaired website. Pls.
Suppl. SUMF ¶ 3 (Fruchterman Dep.
209:18-213:23). There is no evidence that
25

DEFENDANT’S STATEMENT OF FACT

93. Downloading an incorporated standard allows
more flexibility for using and sharing that
standard. M. Becker Decl. ¶ 7, Ex. 9 (Jarosz Dep.
215:9–15; 215:21–216:1).
94. It is not Public Resource’s intention to make
copies that are similar to the standards actually
sold by ASTM available on its website because
they post standards that have been explicitly and
specifically incorporated by reference into federal
or state law. C. Malamud Decl. ¶ 4–15.
95. Public Resource posted the incorporated
standards at issue to inform citizens about the
content of the law. C. Malamud Decl. ¶ 4.
96. Public Resource posted the incorporated
standards at issue on its website in formats meant
to increase citizen access to the law. C. Malamud
Decl. ¶ 26.
97. Public Resource posted the incorporated
standards at issue for the purpose of transforming
the information in the standards by making that
information accessible to people who did not
necessarily have access to that information
before. C. Malamud Decl. ¶ 35.

PLAINTIFFS’ RESPONSE
the other standards at issue are
unavailable on that or similar websites for
the visually-impaired.
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. Pls. Suppl. SUMF ¶ 9. NFPA is not
aware of any other individuals who have
requested and not received an
accommodation. Pls. Suppl. SUMF ¶ 10.
Disputed to the extent it suggests that the
inability to download a standard would
prevent use of the standard. Undisputed
that the ability to download a standard
makes it easier to share that standard.
Vague and ambiguous in its entirety.
Disputed to the extent it suggests that
Defendant has not made copies of
standards that ASTM sells available on its
website.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it suggests that
citizens did not have access to Plaintiffs’
standards prior to Defendant’s activities.
Disputed. Defendant has not transformed
the information in the standards.
Plaintiffs make their standards accessible
to the general public. Pls. SUMF ¶¶ 5769, 99-103, 157-62.
Disputed to the extent it suggests that
citizens did not have access to Plaintiffs’
standards prior to Defendant’s activities.
Disputed to the extent it suggests that
26

DEFENDANT’S STATEMENT OF FACT

98. Public Resource does search engine
optimization so that the standards are accurately
described in search engine results. C. Malamud
Decl. ¶ 29.
99. Technology that would allow a blind person
access but prevent a non-disabled person from
accessing text does not yet exist. M. Becker Decl.
¶ 94, Ex. 96 (Fruchterman Rep. 101:8–14).

PLAINTIFFS’ RESPONSE
Defendant posted the standards to provide
access for the visually-impaired. There is
no evidence to support that suggestion.
Disputed to the extent it suggests this is
Defendant’s only purpose in doing search
engine optimization.

Disputed. 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 only making the
materials available to blind people. Pls.
Suppl. SUMF ¶ 1 (Fruchterman Dep.
52:1-54:2). Mr. Fruchterman testified
about the types of programs entities that
seek to provide access to the materials for
the blind use to comply with this
requirement of the Chafee Amendment.
Pls. Suppl. SUMF ¶ 2 (Fruchterman Dep.
80:9-81:25; 84:7-85:8; 86:7-89:12).
100. ASTM has a policy against permitting the
Disputed. ASTM posts many of its own
posting of ASTM standards on the public internet. standards on the public internet. Pls.
M. Becker Decl. ¶ 142, Ex. 144.
SUMF ¶¶ 63-64, 66. ASTM does not
allow third-parties to post ASTM
standards on the public internet. See, e.g.,
Def. Ex. 113.
101. ASTM did not permit a person in the UK to
Objection. Relevance; unfair prejudice.
post the information in the ASTM D2000-12
This standard is not at issue in this
standard. M. Becker Decl. ¶ 143, Ex. 145.
litigation.
102. People want to use the most recent version of Disputed to the extent it implies that there
ASTM’s standards, even if an older version is
is no value to an older version of an
incorporated by reference into law. M. Becker
ASTM standard or that older versions of
Decl. ¶ 6, Ex. 8 (Grove Dep. 171:5–8).
ASTM standards do not need copyright
protection.
103. ASTM seeks to get Congress to incorporate
Disputed. ASTM does not lobby for
the most recent version of any particular standard incorporation of its standards by
because incorporation “freezes … that reference
reference. However, if a government is
in statute for years to come.” M. Becker Decl. ¶
going to incorporate an ASTM standard
6, Ex. 8 (Grove Dep. 260:25–261:15).
by reference, ASTM believes that it
should use the most up-to-date standard
rather than outdated materials. Def. Ex. 8
(Grove Dep. 124:10–125:05).
104. People may want to read older versions of
Disputed because this is pure speculation,
standards because the older version may be the
not a statement of fact.
27

DEFENDANT’S STATEMENT OF FACT
version that is incorporated by reference in a code
or regulation. M. Becker Decl. ¶ 3, Ex. 5
(Comstock Dep. 19:20–24).

105. As a public officer (but not as an NFPA
employee), NFPA VP Donald Bliss has
experienced confusion as to which version or
edition of the code is in force in a jurisdiction
because NFPA produces a number of different
editions. M. Becker Decl. ¶ 2, Ex. 4 (Bliss Dep.
215:13–23).
106. Public Resource’s posting of the
incorporated standards at issue has not caused
Plaintiffs any measurable harm. M. Becker Decl.
¶ 7, Ex. 9 (Jarosz Dep. 63:3–10; 123:14–18;
136:5–137:24; 155–158; 160:3–6; 177:17–178:5;
212:11–213:3; 214:13–215:3; 245:2–250:11); ¶ 3,
Ex. 5 (Comstock Dep. 12:2-11; 63:10-16; 64:20–
25).

PLAINTIFFS’ RESPONSE
Objection by ASTM and NFPA. The
testimony relates only to ASHRAE
standards and is irrelevant and unfairly
prejudicial to ASTM and NFPA.
Undisputed

Disputed. While Plaintiffs have not
calculated a precise number of damages,
the evidence demonstrates that Plaintiffs
have been harmed by Defendant’s
conduct. Mr. Jarosz stated that Plaintiffs
had suffered financial losses but they
were exceedingly difficult to quantify.
Pls. SUMF ¶¶ 238-39, 246.
ASHRAE also objects to the incredibly
misleading use of Mr. Comstock’s
testimony, which involved the observed
impact of ASHRAE’s own postings of
standards in its reading room on a read
only basis, not Public Resource’s posting.
(See Ex. 5 (Comstock Dep.) at 11-12).
Because this testimony does not relate to
the posting by Defendant, ASHRAE also
objects to the use of the testimony on the
basis of relevance (Fed. R. Evid. 402).

107. Public Resource’s posting of the
incorporated standards at issue has not had a
measurable impact on ASTM’s finances. M.
Becker Decl. ¶ 144, Ex. 146; ¶ 6, Ex. 8 (Grove
Dep. 144:22–145:2).

ASTM and NFPA object to the use of
evidence regarding ASHRAE against
them as irrelevant and unfairly
prejudicial.
Disputed. While ASTM has not
calculated a precise number of damages,
the evidence demonstrates that ASTM has
been harmed by Defendant’s conduct.
Mr. Jarosz stated that Plaintiffs had
suffered financial losses but they were
exceedingly difficult to quantify. Pls.
SUMF ¶¶ 238-39, 246.
28

DEFENDANT’S STATEMENT OF FACT
108. ASTM has no evidence that it has lost sales
of any of the incorporated standards at issue
because Public Resource made the incorporated
standards at issue publicly available. M. Becker
Decl. ¶ 6, Ex. 8 (Grove Dep. 152:19–24).

109. ASTM has no evidence that Public Resource
caused ASTM to lose money. M. Becker Decl. ¶
6, Ex. 8 (Grove Dep. 154:25–155:5).

110. ASTM has no knowledge of any evidence
that Public Resource caused ASTM any property
damage or injury. M. Becker Decl. ¶ 6, Ex. 8
(Grove Dep. 155:7–12).

111. ASTM has no evidence that PR caused
ASTM any damage to ASTM’s reputation. M.
Becker Decl. ¶ 6, Ex. 8 (Grove Dep. 165:12–15).
112. Plaintiffs’ expert Jarosz was unable to
quantify any financial losses to Plaintiffs as a
consequence of Public Resource’s activities. M.
Becker Decl. ¶ 7, Ex. 9 (Jarosz Dep. 63:3–10).
113. Plaintiffs’ expert Jarosz was not aware of
any documents showing NFPA suffered harm

PLAINTIFFS’ RESPONSE
Disputed. ASTM presented evidence that
many people accessed versions of ASTM
standards that Defendant placed online,
some of whom may have otherwise
purchased the standards from ASTM. Pls.
SUMF ¶¶ 241, 243-44 (showing over
88,000 accesses of ASTM’s standards
from Defendant’s website in 10 month
period and thousands of downloads of
ASTM’s standards from the Internet
Archive); Def. Ex. 9 (Jarosz Dep.)
212:16-213:3.
Disputed. While ASTM has not
calculated a precise number of damages,
the evidence demonstrates that ASTM has
suffered damage as a result of
Defendant’s conduct. ASTM presented
evidence that many people accessed
versions of ASTM standards that
Defendant placed online, some of whom
may have otherwise purchased the
standards from ASTM. Pls. SUMF ¶¶
241, 243-44 (showing over 88,000
accesses of ASTM’s standards from
Defendant’s website in 10 month period
and thousands of downloads of ASTM’s
standards from the Internet Archive); Def.
Ex. 9 (Jarosz Dep.) 212:16-213:3.
Undisputed that ASTM has no knowledge
of evidence that Defendant caused ASTM
property damage. Disputed as to the
existence of evidence that Defendant
caused ASTM injury. Pls. SUMF ¶¶ 21415, 241, 243-45,
Disputed. Plaintiffs presented evidence of
Defendant’s posting versions of ASTM
standards that contain errors online. Pls.
SUMF ¶¶ 214-15, 245.
Disputed. Mr. Jarosz stated that Plaintiffs
had suffered financial losses but they
were exceedingly difficult to quantify a
precise number for those losses with great
certainty. Pls. SUMF ¶¶ 238-39, 246.
Disputed. This fact is entirely not true as
are the claims in Defendant’s brief that
29

DEFENDANT’S STATEMENT OF FACT
from Public Resource’s activities. M. Becker
Decl. ¶ 7, Ex. 9 (Jarosz Dep. 123:9–18).

114. Plaintiffs’ expert Jarosz’s only evidence of
harm is statements by plaintiffs’ officers. M.
Becker Decl. ¶ 7, Ex. 9 (Jarosz Dep. 155–163).

115. Plaintiffs’ expert Jarosz was not aware of
any direct evidence of the impact of Public
Resource’s activities on Plaintiffs’ financials. M.
Becker Decl. ¶ 7, Ex. 9 (Jarosz Dep. 160:3–6).
116. Plaintiffs’ expert Jarosz did not correlate
Public Resource’s posting of the standards at
issue with Plaintiffs’ revenues from the sale of the
standards at issue. M. Becker Decl. ¶ 7, Ex. 9
(Jarosz Dep. 177:17–178:5).
117. Plaintiffs’ expert Jarosz did no analysis to
distinguish the profitability of the standards at
issue from the profitability of standards that have
not been incorporated by reference into law. M.
Becker Decl. ¶ 7, Ex. 9 (Jarosz Dep. 183:4–15).
118. Plaintiffs’ expert Jarosz lacks certainty that
Public Resource’s posting of the standards at
issue caused any economic loss to Plaintiffs. M.
Becker Decl. ¶ 7, Ex. 9 (Jarosz Dep. 212:11–
213:3).

PLAINTIFFS’ RESPONSE
Mr. Jarosz relied on only conversations
for his conclusions. Opp. at 7.
The cited testimony does not support the
fact and Mr. Jarosz stated numerous times
that he relied on documents referenced in
paragraph 133 of his report, among
others, that show harm.
Disputed. In addition to relying on
persons with knowledge of relevant
information, Jarosz relied on documentary
evidence, including, but not limited to,
documents showing the number of
downloads of copies of Defendant’s
copies of Plaintiffs’ standards and
documents showing that Defendant did
not correctly copy Plaintiff’s standards.
Jarosz also relied on the testimony of
Public Resource and Carl Malamud. See
Jarosz Report, Tab 2.
Disputed. Jarosz relied on direct evidence
of the harm and its impact to Plaintiffs as
cited in response to paragraph 114 above,
among other evidence.
Undisputed

Undisputed

Disputed. Mr. Jarosz stated that Plaintiffs
had suffered financial losses but they
were exceedingly difficult to quantify.
Pls. SUMF ¶¶ 238-39, 246. Additionally,
Mr. Jarosz stated that he could say with
reasonable certainty that if people had not
accessed or downloaded versions of
ASTM’s standards that Defendant posted
online, in some instances they would have
obtained the ASTM standards from
ASTM through legal means. Def. Ex. 9
30

DEFENDANT’S STATEMENT OF FACT
119. Plaintiffs’ expert Jarosz did not evaluate the
extent of distribution of the standards at issue via
Public Resource’s website. M. Becker Decl. ¶ 7,
Ex. 9 (Jarosz Dep. 214:13–215:3; 216:2–5; 245–
49).

120. ASHRAE is not aware of any revenue lost
from the free availability of ASHRAE standards
online. M. Becker Decl. ¶ 3, Ex. 5 (Comstock
Depo 12:2–11; 63:10–16; 64:20–25).

121. ASTM’s sales from publications have
increased 2% over the past 2–3 years. This was in
accord with Grove’s expectations.
M. Becker Decl. ¶ 6, Ex. 8 (Grove Depo 19:21–
20:13).
122. ASHRAE has not attempted to track losses

PLAINTIFFS’ RESPONSE
(Jarosz Dep.) 212:16-213:3.
Disputed to the extent it suggests it would
be possible to evaluate the extent of
distribution of the standards via
Defendant’s website. Defendant does not
know what people do with the versions of
Plaintiffs’ standards that are posted on
Defendant’s website. And Defendant
admitted it has no way to identify who
downloaded, made additional copies of, or
printed the versions of Plaintiffs’
standards from its website. Pls. SUMF ¶¶
247-48.
Disputed. The citation to Mr. Comstock’s
testimony, which involved the observed
impact of ASHRAE’s own postings of
standards in its reading room on a read
only basis, not Public Resource’s posting
of standards, is incredibly misleading and
does not support the asserted proposition.
(See Ex. 5 (Comstock Dep.) at 11-12).
Also, because this testimony does not
relate to the posting by Defendant,
ASHRAE also objects to the use of the
testimony on the basis of relevance (Fed.
R. Evid. 402).
ASHRAE further objects to the extent that
the testimony elicited supports the fact
that there has been no formal tracking of
lost revenue, but that is not to say that no
loss occurred – only that it was not
tracked. And ASHRAE’s witnesses did
point to anecdotal evidence of lost
revenue due to free availability of the
standards online, even if the impact was
not quantified. See Comstock Dep. 63:1725.
Undisputed

Undisputed
31

DEFENDANT’S STATEMENT OF FACT
due to Public Resource’s conduct. M. Becker
Decl. ¶ 3, Ex. 5 (Comstock Dep. 63:10–16).
123. NFPA has not identified “any direct
correlation” between adoption of an edition and
an increase in sales. “The only general correlation
is that once a new version of the code is out, we
will sell more of the new edition and less of the
old edition, but nothing – no general correlation
to adoption or specific spikes.” M. Becker Decl.
¶ 9, Ex. 11 (Mullen Dep. 95:3–25).
124. NFPA does not have a number on any
balance sheet that corresponds to the value of the
copyrights it holds because NFPA does not
“attempt to place any value on any intangible
asset.” M. Becker Decl. ¶ 9, Ex. 11 (Mullen Dep.
140:11–18).
125. According to NFPA’s Bruce Mullen, “If I
had to guess, the non-business or government
purchases is probably less than 1% of total sales.”
M. Becker Decl. ¶ 9, Ex. 11 (Mullen Dep.
187:14–23).

126. Plaintiffs’ assertion of copyright in
incorporated standards makes it more difficult for
others to produce materials such as training and
user manuals. M. Becker Decl. ¶ 7, Ex. 9 (Jarosz
Dep. 217–224).
127. Allowing “unauthorized persons” to use
standards without training is not a cognizable
harm. M. Becker Decl. ¶ 7, Ex. 9 (Jarosz Dep.
227:14–228:14).
128. “Confusion” between incorporated standards
and newer versions of Plaintiffs’ standards does
not harm Plaintiffs. M. Becker Decl. ¶ 7, Ex. 9
(Jarosz Depo 254:14–257:9).
129. Plaintiffs have no evidence that they suffered
any loss of revenues in Texas, Louisiana or
Mississippi since 2002 when the 5th Cir decided
Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d
791, 796 (5th Cir. 2002) (en banc). M. Becker
Decl. ¶ 7, Ex. 9 (Jarosz Dep. 130:6–19).
130. Almost all of the standards at issue that

PLAINTIFFS’ RESPONSE

Undisputed

Undisputed

Disputed. Defendant’s purported fact is a
quote from an email that was shown to
Mr. Mullen at his deposition which he did
not author, receive, or recognize. Mr.
Mullen simply did not state what
Defendant alleges he did.
Objection. Inadmissible hearsay.
Disputed. This statement is unsupported
by the cited source and Defendant
provides no other basis for it.

This is a legal conclusion and not a
factual statement.

Disputed. This statement is not supported
by the cited source and Defendant
provides no other basis for it.
Disputed. The Veeck decision explicitly
stated it did not apply to standards
incorporated by reference, like Plaintiffs’
standards. Thus there would be no basis
for expecting Plaintiffs to have suffered
loss of revenue as a result of the Veeck
decision. See Pls. MSJ at 26-27.
Undisputed
32

DEFENDANT’S STATEMENT OF FACT
Plaintiffs registered with the Copyright Office are
registered as “works made for hire” (with the
exception of one NFPA standard, NFPA 54
National Fuel Gas Code 2006). M. Becker Decl.
¶ 11, Ex. 13 (ASTM Certificates of Registration);
¶ 13, Ex. 15 (NFPA Certificates of Registration );
¶ 14, Ex. 16 (ASRAE Certificates of
Registration).
131. Plaintiffs have not provided evidence that
one standard at issue, ASTM D323 1958 (1968),
was ever registered with the copyright office.
Complaint, Ex. A at 4, ECF No. 1-1.
132. Each standard at issue was developed by a
large number of unpaid volunteers, including
federal government employees, state and
municipal government employees, employees of
private companies and organizations, and
ordinary citizens. M. Becker Decl. ¶ 11, Ex. 13
(Smith Dep. 56:03–57:06); ¶ 79, Ex. 81; ¶ 6, Ex.
8 (Grove Dep. 97:25–98:07); ¶ 20, Ex.22; ¶ 22,
Ex. 24; ¶ 4, Ex. 6 (Dubay Dep. 15:16–16:10,
51:20–52:15, 75:17–76:11, 240:22–242:04); ¶ 9,
Ex. 11 (Mullen Dep. 114:22–115:23); ¶ 10, Ex.
12 (Reiniche Dep. 21:01–23:21, 105:08–106:18
194:04–194:07); ¶ 42, Ex. 44; ¶ 46, Ex. 48.
133. Volunteers or members of the public
proposed the creation or revision of the standards
at issue. M. Becker Decl. ¶ 11, Ex. 13 (Smith
Dep. 18:05–18:19, 280:10–280:20); ¶ 93, Ex. 95;
¶ 123, Ex. 125, p. 4; ¶ 10, Ex. 12 (Reiniche Dep.
94:20–98:24); ¶ 124, Ex. 126, p. 5 (discussing
ASHRAE membership categories).
134. Volunteers drafted the language for the
standards at issue, with public input, and
determine the arrangement and inclusion of
proposed text. M. Becker Decl. ¶ 11, Ex. 13
(Smith Dep. 18:05–18:23, 20:04–20:11); ¶ 93, Ex.
95; ¶ 2, Ex. 4 (Bliss Dep. 45:12–46:02) (“We use
a system of volunteers to serve on committees to
develop the standard. It’s volunteers that serve on
the standards council. It’s volunteers that serve as
our membership to make the final voting.”); ¶ 2,
Ex. 4 (Bliss Dep. 46:03–46:13); ¶ 4, Ex. 6
(Dubay Dep. 29:12–29:21); ¶ 10, Ex. 12
((Reiniche Dep. 49:08-50:11); ¶ 10, Ex. 12

PLAINTIFFS’ RESPONSE

Undisputed

Disputed to the extent it implies that
volunteers were the only developers of the
standards. Plaintiffs presented evidence
that their employees drafted language that
appears in the standards. Pls. SUMF ¶¶
34-35, 117, 137-39, 141. Disputed to the
extent it suggests that the volunteers who
authored each standard or any portion
thereof included federal, state and
municipal government employees because
Defendant provides no support for this
proposition.
Disputed to the extent it omits reference
to the Plaintiffs. Plaintiffs’ rules dictate
the process and procedures for
developing, revising and updating the
standards on a regular schedule. Pls.
SUMF ¶¶ 42, 93, 140.
Disputed to the extent it implies that
volunteers were the only drafters of the
standards. Plaintiffs presented evidence
that their employees drafted language that
appears in the standards. Pls. SUMF ¶¶
34-35, 117, 137-39, 141.

33

DEFENDANT’S STATEMENT OF FACT
(Reiniche Dep. 60:05–60:12) (“[ASHRAE]
Standard 90.1 is on continuous maintenance, so
anyone at any time can propose a change to the
standard. It could be a project committee member
or the public.”).
135. Volunteers voted on the final content of the
standards at issue. M. Becker Decl. ¶ 11, Ex. 13
(Smith Dep. 15:25–16:10, 17:14–17:24, 98:07–
98:25, 186:21–186:25, 274:23–276:12); ¶ 2, Ex. 4
(Bliss Dep. 45:12–46:13); M. Becker Decl. ¶ 4,
Ex. 6 (Dubay Dep. 55:22–57:17); M. Becker
Decl. ¶ 10, Ex. 12 (Reiniche Dep. 94:20–96:02)
(describing the volunteer committee resolution
process that votes on drafts and revisions of
ASHRAE standards).
136. The volunteers who developed the standards
at issue did so out of service to their country as
federal, state, or municipal employees, in
furtherance of the business interests of the private
companies or organizations they worked for, or
because of personal interest. M. Becker Decl. ¶
11, Ex. 13 (Smith Dep. 45:16–46:04) (stating that
volunteers develop ASTM standards because “a
company or an individual would be interested in
having an ASTM standard that they could say
their product or service is in compliance with”); ¶
2, Ex. 4 (Bliss Dep. 138:22-139:12) (as a public
official, Mr. Bliss participated in NFPA standard
development because his "motivation was to try
and establish the best possible fire safety
standards that could be developed"); ¶ 10, Ex. 12
(Reiniche Dep. 50:12¬51:06) (volunteers or
members of the public participate because it
affects their business interests and they want to
write the language that is adopted into code, or
because of personal interest).
137. Plaintiffs’ employees set up meetings to
discuss drafts of the standards at issue at public
locations, advised the volunteers who drafted the
standards, and assisted with formatting. M.
Becker Decl. ¶ 11, Ex. 13 (Smith Dep. 268:13–
272:25) (listing the ways in which ASTM staff
assist the people who actually draft the
standards); M. Becker Decl. ¶ 4, Ex. 6 (Dubay
Dep. 52:16–53:04) (“NFPA employees are not --

PLAINTIFFS’ RESPONSE

Undisputed

This statement is not supported by the
cited sources. Defendant has no basis for
drawing any conclusions about the
motivations of any, much less all, of the
hundreds of thousands of volunteers who
participated in Plaintiffs’ standards
development process. Disputed to the
extent it implies that volunteers were the
only developers of the standards.
Plaintiffs presented evidence that their
employees drafted language that appears
in the standards. Pls. SUMF ¶¶ 34-35,
117, 137-39, 141.
Objection. Lack of foundation to the
extent Defendant relies on testimony from
persons regarding the motivations of
anyone other themselves.

Disputed to the extent it implies that these
are the only tasks performed by Plaintiffs’
employees. Plaintiffs presented evidence
that their employees drafted language that
appears in the standards. Pls. SUMF ¶¶
34-35, 117, 137-39, 141.

34

DEFENDANT’S STATEMENT OF FACT
cannot be members of our technical committees.
However, as I stated previously, it's important -there's an important role that NFPA staff plays in
guiding, advising the committee, coordinating the
activities and providing their technical expertise,
especially technical staff liaison into this
committee process. But they do not have -they're not members of the committee, and they
do not carry a vote in the decisions of the
committees.”); M. Becker Decl. ¶ 10, Ex. 12
(Reiniche Dep. 97:13–98:19) (involvement of
ASHRAE staff in development and updating of
standard 90.1 is limited to reviewing and making
suggestions to the volunteers who draft and vote
on the text of the standard).
138. Plaintiffs did not have control over the
content of the standards at issue during the
development and revision of those standards. The
decision to develop or revise the standards at
issue was made by volunteers, not by the
Plaintiffs. M. Becker Decl. ¶ 11, Ex. 13 (Smith
Dep. 15:25–16:10, 17:14–17:24, 98:07–98:25,
186:21–186:25, 274:23–276:12); M. Becker Decl.
¶ 2, Ex. 4 (Bliss Dep. 45:12–46:02, 46:03–46:13)
(NFPA employees assist the volunteers, but the
volunteers have the “ultimate decision . . . as to
what the language will actually say”); M. Becker
Decl. ¶ 4, Ex. 6 (Dubay Dep. 55:22–57:17); M.
Becker Decl. ¶ 10, Ex. 12 (Reiniche Dep. 94:20–
96:02).

139. NFPA is the only Plaintiff to allege that a
work made for hire agreement was signed by
developers of the standards at issue. Plaintiffs’
Statement of Material Facts ¶ 115, ECF No. 1182. This language attempting to classify the work
of volunteers as “work made for hire” was added
to NFPA forms only in 2007, after most of the
standards at issue were already published, and
used inconsistently thereafter. M. Becker Decl. ¶
125, Ex. 127, ¶ 126, Ex. 128, ¶ 127, Ex. 129
(compare NEC proposal forms from 2005, 2007,

PLAINTIFFS’ RESPONSE

Objection. Vague and ambiguous as to
“control.”
Disputed. Plaintiffs presented evidence
that their employees drafted language that
appears in the standards. Pls. SUMF ¶¶
34-35, 117, 137-39, 141.
Disputed to the extent it omits reference
to the Plaintiffs, to whom the volunteers
proposed the creation or revision of the
standards.
Plaintiffs have a role in deciding whether
or not to develop a standard. See, e.g.,
Pls. SUMF ¶ 92. Plaintiffs’ rules dictate
the process and procedures for
developing, revising and updating the
standards on a regular schedule. Pls.
SUMF ¶¶ 42,93, 140.
Undisputed that NFPA alleges that a work
made for hire agreement was signed by
developers of the standards at issue.
Disputed that the “work made for hire”
language was only added in 2007. The
undisputed testimony is that the NFPA
committee application form is signed by
all members of NFPA technical
committees who participate in the
development of the standards, and that it
has contained unchanged “work made for
35

DEFENDANT’S STATEMENT OF FACT
and 2008).

140. Plaintiffs claim to be assignees of any
copyright that the volunteers or members of the
public who authored the standards at issue might
have had in the standards at issue. Pls. Mem. 16,
ECF. No. 118-1.
141. In a 2011 memorandum, then-NFPA
President James Shannon observed that NFPA
and other standards organizations had problems
with their copyright assignments, stating: “In the
past most standards developers, in accepting
proposals, received assignments of intellectual
property in those proposals that were less than
airtight.” M. Becker Decl. ¶ 51, Ex. 53 at p. 6, fn.
4.

PLAINTIFFS’ RESPONSE
hire” language “for many years.” Pauley
Decl. ¶ 34. Defendant’s citation to pre2007 forms is limited only to certain
forms for proposals from members of the
public, not the committee application.
Undisputed as to ASTM and ASHRAE.
Undisputed

Disputed as incomplete. The footnote
states: “Another example of our
aggressive steps to protect copyrights the
action we took to make the assignments
from the submitters of proposals less
vulnerable to attack. In the past, most
standards developers, in accepting
proposals, received assignments of
intellectual property rights in those
proposals that were less than airtight.
NFPA tightened its assignment language
in 1997.” Def. Ex. 53 at p. 6, fn. 4
(emphasis added).
Objection. Lack of foundation as to any
Plaintiff other than NFPA. Hearsay as to
any Plaintiff other than NFPA.
Disputed insofar as an additional basis for
claiming ownership of its standards,
separate and apart from any assignments
from participants in the development
process, is based on its role as the
organizational author of the standards and
its employees’ contribution of language in
the standards. MSJ at 16.

142. ASHRAE claims ownership of its Standards
at Issue by virtue of copyright release forms that
the people who drafted the standards allegedly
signed. M. Becker Decl. ¶ 10, Ex. 12 (Reiniche
Dep. 192:17–194:03 (stating that ASHRAE
claims authorship of the standards at issue “[a]s a
basis of the signed copyright assignments that all
the members sign when they apply for
membership, that the commenters sign when they
submit a comment and that the members that
submit change – or the public that submits change
proposals sign when they submit a change
proposal”); Reiniche Dep. 193:08–17 (stating that
the people who authored the standards are not
employees of ASHRAE)).
143. ASHRAE requires volunteers who contribute Disputed insofar as the copyright release
36

DEFENDANT’S STATEMENT OF FACT
to standard development to sign a copyright
release explicitly granting ASHRAE “nonexclusive” rights in those contributions. M.
BeckerDecl. ¶ 10, Ex. 12 (Reiniche Dep. 70:0270:11).

144. ASHRAE indicated the following language
from one of its alleged “assignment” forms when
asked to indicate what language from that form it
believes serves as an assignment of copyright
rights:
If elected as a member of any ASHRAE
Standard or Guideline Project Committee or
appointed as a consultant to such committee I
hereby grant the American Society of Heating,
Refrigerating and Air-Conditioning Engineers
(ASHRAE) the non-exclusive, royalty-free
rights, including nonexclusive, royalty rights in
copyright, to any contributions I make to
documents prepared by or for such committee
for ASHRAE publication and I understand that I
acquire no rights in publication of such
documents in which my contributions or other
similar analogous form are used. I hereby attest
that I have the authority and I am empowered to
grant this copyright release.
M. Becker Decl. ¶ 46, Ex. 48 (Reiniche Ex.
1155) (emphasis added); M. Becker Decl. ¶ 10,
Ex. 12 (Reiniche Dep. 94:12–94:14)
145. Every document that ASHRAE has produced
to support its claim that the people who drafted
the ASHRAE standards at issue assigned their
copyrights to ASHRAE states explicitly that the
grant of rights is non-exclusive. M. Becker Decl.
¶ 10, Ex. 12 (Reiniche Dep. 69:19–94:19); M.
Becker Decl. ¶ 25–46, Exs. 27–48.

PLAINTIFFS’ RESPONSE
also contains the following language: “I
understand that I acquire no rights in
publication of such documents in which
my contributions or other similar
analogous form are used.” Reiniche Decl.
Ex. 2; see also Reiniche Decl. Ex. 1 (“I
understand that I acquire no rights in
publication of the standard in which my
proposals in this or other analogous form
is used.”).
Undisputed

Disputed insofar as the copyright release
also contains the following language: “I
understand that I acquire no rights in
publication of such documents in which
my contributions or other similar
analogous form are used.” Reiniche Decl.
Ex. 2; see also Reiniche Decl. Ex. 1 (“I
understand that I acquire no rights in
publication of the standard in which my
proposals in this or other analogous form
is used.”).
37

DEFENDANT’S STATEMENT OF FACT
146. All but four of the 229 ASTM standards at
issue in this case were developed and published
prior to 2003. ECF No. 1-1 (Complaint) Ex. A.
147. ASTM admits that it did not request
copyright assignments from the people who
drafted ASTM standards until approximately
2003. M. Becker Decl. ¶ 11, Ex. 13 (Smith Dep.
24:18–26:12; 27:07–27:14; 40:22–41:15; 214:24–
215:06).
148. ASTM has not produced signed copyright
assignments for any of the standards at issue. M.
Becker Decl. ¶ 11, Ex. 13 (Smith Dep. 24:18–
26:12; 27:07–27:14; 40:22–41:15; 214:24–
215:06).

149. Prior to 2003, ASTM did not believe that it
needed formal assignment agreements. M.
Becker Decl. ¶ 11, Ex. 13 (Smith Dep. 42:15–
42:16) (“[ASTM] didn’t feel like we needed any
formal, any formal assignment paper.”).

150. ASTM alleges that it relied on an unspoken
“basic understanding” that the volunteers who

PLAINTIFFS’ RESPONSE
Undisputed

Undisputed

Disputed. For the four standard for which
ASTM moved for summary judgment,
ASTM presented evidence that the leader
of the group that developed the standard
and/or a member of the committee that
drafted the standard assigned any
copyrights in their individual
contributions to the standards to ASTM.
SUMF ¶¶ 18, 20-24. With respect to the
remaining ASTM standards at issue in
this case, ASTM has produced evidence
that over 25,000 members completed
membership renewal forms every year
since 2007. Pls. Suppl. SUMF ¶ 14. The
vast majority of these members completed
their membership renewals using the
online membership form. Pls. Suppl.
SUMF ¶ 15. Although ASTM did not
request copyright assignments from its
members until approximately 2003, the
language in the assignments it obtained
since then retroactively assigned any
copyrights that individual possessed in
any ASTM standard to ASTM. See Pls.
SUMF ¶ 18.
Disputed. Prior to and after 2003, ASTM
believed it had a basis for claiming
ownership of its standards separate and
apart from any assignments from
participants in the development process
based on its role as the organizational
author of the standards and its employees’
contribution of language in the standards.
MSJ at 16.
Disputed. ASTM’s ownership claims do
not depend on, but are confirmed by, the
38

DEFENDANT’S STATEMENT OF FACT
drafted the standards at issue intended to create
standards that ASTM would eventually distribute.
M. Becker Decl. ¶ 11, Ex. 13 (Smith Dep. 42:18–
44:01; 94:01–94:20).
151. ASTM has not produced any evidence of the
existence of an alleged “basic understanding”
between the creators of the standards at issue and
ASTM, nor any evidence of what the contours of
this “basic understanding” were. M. Becker Decl.
¶ 11, Ex. 13 (Smith Dep. 44:03–45:14; 104:21–
105:24) (“Q: Did Mr. Lively provide any basis for
his statement that there was an understanding in
the early ‘80s that ASTM would copyright the
material provided by individuals that was
incorporated into the standards drafts? A: No. I
think it was just his belief just as it was my
belief.”); (Smith Dep. 44:03–45:14) (stating that
ASTM “didn’t think that documentation [of the
alleged ‘basic understanding’] was needed”).
152. ASTM claimed that the ASTM “IP Policy”
somehow confirms the existence of this alleged
“basic understanding.” M. Becker Decl. ¶ 11, Ex.
13 (Smith Dep. 57:23–59:25).
153. The earliest IP policy document that ASTM
produced in this litigation was approved by
ASTM on April 28, 1999 and put into effect
thereafter. ASTM had no IP policy prior to April
28, 1999. M. Becker Decl. ¶ 75, Ex. 77, ¶ 77, Ex.
79 [Ex. 1285, 1287, 1288]
154. ASTM had no IP Policy prior to April 27,
1999. M. Becker Decl. ¶ 150, Ex.152 (Internet
Archive capture of the ASTM home page the day
before the ASTM IP Policy was approved, and a
capture after the ASTM Policy was approved,
showing that the link to the IP Policy in the
lower-right corner of the page was not present on
April 27, 1999).
155. In 2010, approximately three years after the
publishing of the most recent ASTM standard at
issue, the ASTM IP Policy was amended to
include the following language: “Each member
agrees, by such participation and enjoyment of
his/her annual membership benefits, to have
transferred any and all ownership interest,
including copyright, they possess or may possess

PLAINTIFFS’ RESPONSE
understanding of all participants in the
standard development process intend
ASTM to own the copyrights in
standards.
Disputed. ASTM has presented evidence
that all participants in the standard
development process intend ASTM to
own the copyrights in standards. See
SUMF ¶ 40; Cramer Decl. ¶¶ 6, 10, 11,
15; Jennings Decl. ¶¶ 7-9, 12.

Undisputed

Undisputed that the earliest IP Policy
produced in this litigation was approved
on April 28, 1999. There is no support
for the proposition that ASTM had no IP
policy prior to that date.
Objection. Hearsay; lack of personal
knowledge; irrelevant and prejudicial.

Disputed to the extent it omits reference
to the statement in the 1999 IP Policy that
“[b]y participating in any ASTM technical
committee and /or participating in the
creation and adoption of ASTM's
Intellectual Property, participants and
committee members acknowledge that the
copyright to such Intellectual Property
39

DEFENDANT’S STATEMENT OF FACT
in the ASTM IP to ASTM.” M. Becker Decl. ¶
75, Ex. 77, ¶ 77, Ex. 79 (Compare Section V.D. in
both documents).
156. There was no means that ASTM imposed for
the volunteers who drafted the ASTM standards
to signify that they had read and agreed to the
ASTM IP Policy. M. Becker Decl. ¶ 11, Ex. 13
(Smith Dep. 173:10–181:12) (admitting that
ASTM does not know if members read or
understood the assignment clause, nor whether
they assented to transfer their copyright to
ASTM).
157. ASTM has not retained or produced in this
litigation completed membership forms pertaining
to any of the standards at issue. The membership
forms that ASTM has produced date from 2008
and later, with only one membership form from
2007. M. Becker Decl. ¶ 90, Ex. 92; M. Becker
Decl. ¶ 11, Ex. 13 (Smith Dep. 258:11–258:23).

158. ASTM has failed to exercise control over the
creation and enforcement of its membership and
participation forms (that it terms copyright
“assignments”), resulting in a multiplicity of
forms that either have no assignment language at
all, or have various iterations of language that
ASTM claims grants it copyright assignments.

PLAINTIFFS’ RESPONSE
resides in ASTM. See Def. Ex. 77.

Disputed. Certain ASTM membership
forms stated: “By applying for or
renewing your ASTM membership, you
acknowledge you have read and agree to
abide by ASTM’s Intellectual Property
Policy.” See, e.g., Def. Ex. 87.

Disputed. For the four standard for which
ASTM moved for summary judgment,
ASTM presented evidence that the leader
of the group that developed the standard
and/or a member of the committee that
drafted the standard assigned any
copyrights in their individual
contributions to the standards to ASTM.
SUMF ¶¶ 18, 20-24. With respect to the
remaining ASTM standards at issue in
this case, ASTM has produced evidence
that over 25,000 members completed
membership renewal forms every year
since 2007, which is as far back as ASTM
maintains membership records. . Pls.
Suppl. SUMF ¶ 14. The vast majority of
these members completed their
membership renewals using the online
membership form. . Pls. Suppl. SUMF ¶
15. Although ASTM did not request
copyright assignments from its members
until approximately 2003, the language in
the assignments it obtained since then
retroactively assigned any copyrights that
individual possessed in any ASTM
standard to ASTM. See Pls. SUMF ¶ 18.
Objection. Vague and ambiguous as to
“exercise control.”
Disputed. The statement is not supported
by the cited testimony.

40

DEFENDANT’S STATEMENT OF FACT
M. Becker Decl. ¶ 11, Ex. 13 (Smith Dep.
216:01–217:12, 225:05–225:19 (membership
forms were prepared ad hoc by any number of
people, and he does not know if anyone knows
how many different variations of ASTM
membership form were used from 2007 to 2014,
because his “experience as being a staff manager
is I don’t think people think about the version of
an application that’s being used. I think it’s
viewed as a tool that enables an individual to join
a technical committee.”).
159. Many individuals renew their ASTM
memberships through alternate channels other
than using ASTM membership renewal forms or
renewing through ASTM’s online portal, and
thereby do not encounter or formally assent to any
copyright assignment language. M. Becker Decl.
¶ 11, Ex. 13 (Smith Dep. 278:04–278:18) (ASTM
members can renew their membership by phone
or by email, without using the online portal or
using ASTM’s mail-in forms); M. Becker Decl. ¶
92, Ex. 94 (example of an ASTM member
renewing by email). ASTM’s online membership
agreement process does not require a member to
click “yes,” or “I agree,” or any other affirmation
to the language discussing copyright assignment
that appears on the web page. Instead, members
click a button labeled “continue” that appears
below the message: “[c]lick ‘continue’ to place
your ASTM membership renewal in the shopping
cart.” M. Becker Decl. ¶ 147, Ex. 149.
160. The membership forms that ASTM has
produced usually do not include language asking
for an assignment of copyrights. M. Becker Decl.
¶ 11, Ex. 13 (Smith Dep. 211:24-212:12)
(acknowledging ASTM forms that did not have
assignment language); M. Becker Decl. ¶¶ 82-84,
Exs. 91 ¶¶82–84, Ex. 93 (examples of ASTM
forms without any assignment language).
161. Of the ASTM forms that do include what
ASTM alleges to be assignment language, there is
no means for a person filling out the form to sign
her name or show that she agrees to assign her
copyright rights to ASTM. M. Becker Decl. ¶¶

PLAINTIFFS’ RESPONSE

Disputed to the extent that there is no
evidence that “many” individuals renew
their ASTM memberships through
alternate challenge. Defendant has found
several isolated instances of ASTM
members renewing their ASTM
memberships outside of the normal
channels.
Disputed that clicking on “continue” in
the online process is not an indication of
assent.

Disputed. The membership form in
Defendant’s Exhibit 91 includes copyright
assignment language. Defendant
produced tens of thousands of pages of
hard-copy membership forms. Pls. Suppl.
SUMF ¶ 16. Defendant identified a very
small percentage of those forms that do
not include language regarding
assignment of copyright. See Def. Ex. 93.
Disputed. ASTM’s online membership
forms require the member to assent to the
assignment of any copyrights. See Def.
Ex. 149. ASTM’s hard copy membership
forms contain numerous spaces where a
41

DEFENDANT’S STATEMENT OF FACT
85-89, 78, Exs. 87-91, 80 (ASTM forms with
alleged assignment language); M. Becker Decl. ¶
11, Ex. 13 (Smith Dep. 173:10–181:12)
(admitting that there is nowhere on the alleged
copyright assignment for a member to check a
box, sign her name, or otherwise indicate that she
understands and assents to transfer her copyright
to ASTM, and admitting that ASTM does not
know if a member who completes the form has
read the assignment clause or assents to transfer
her copyright to ASTM).
162. Through at least 2008, NFPA used copyright
release language for the creators of the NFPA
standards at issue that referred to a grant of nonexclusive rights. M. Becker Decl. ¶¶ 52–71, 73–
74, Ex. 54–76; Ex. 129.

163. For example, an NFPA document soliciting
proposed text for the 2011 edition of the National
Electrical Code, includes the following text:
I hereby grant the NFPA the non-exclusive,
royalty-free rights, including non-exclusive,
royalty-free rights in copyright, in this proposal
and I understand that I acquire no rights in any
publication of NFPA in which this proposal, in
this or another similar or analogous form, is
used. M. Becker Decl. ¶ 127, Ex. 129
(emphasis added).
164. NFPA did not exercise control over the
process by which people submitted proposals.
NFPA’s Rule 30(b)(6) corporate representative
Christian Dubay, stated that “in past history over
the years . . . there’s many different versions of
our forms and ways of submission.” M. Becker
Decl. ¶ 4, Ex. 6 (Dubay Dep. 134:21–134:24.)
NFPA would accept retyped versions of the forms
that people used when contributing text to a
standard draft. M. Becker Decl. ¶ 61, Ex. 63; M.

PLAINTIFFS’ RESPONSE
member can sign her name. See, e.g.,
Def. Ex. 87 (showing examples of
members filling in their names and/or
signing their names).

Disputed as incomplete and not relevant
to the 2011 NEC and 2014 NEC at issue
here. The copyright release language
stated: “I hereby grant the NFPA the
nonexclusive, royalty-free rights,
including nonexclusive, royalty –free
rights in copyright, in this proposal, and I
understand that I acquire no rights in any
publication of NFPA in which this
proposal in this or another similar or
analogous form is used.” See, e.g.,
Becker Decl. Ex. 54.
Undisputed

Disputed to the extent it characterizes the
existence of different versions of the
forms as lacking control. Defendant does
not cite to evidence showing material
differences between these forms.

42

DEFENDANT’S STATEMENT OF FACT
Becker Decl. ¶ 4, Ex. 6 (Dubay Dep. 146:06–
146:14). NFPA allowed volunteers to use any
existing standard draft contribution form in place
of the form that NFPA designated for use for the
particular standard. M. Becker Decl. ¶ 4, Ex. 6
(Dubay Dep. 146:06–146:14).
165. NFPA’s current online public comment
portal includes the following language under the
“Copyright Assignment and Signature” page: “I
understand and intend that I acquire no rights,
including rights as a joint author, in any
publication of the NFPA in which this Public
Comment in this or another similar or derivative
form is used.” M. Becker Decl. ¶ 152, Ex. 154
at 10. In earlier copyright releases, NFPA used
similar language that would also effectively bar
joint ownership: “I understand that I acquire no
rights in any publication of NFPA in which this
comment in this or another similar or analogous
form is used.” M. Becker Decl. ¶ 71, Ex. 73.
ASHRAE uses almost identical language in its
copyright releases: “I understand that I acquire no
rights in publication of such documents in which
my contributions or other similar analogous form
are used.” M. Becker Decl. ¶ #, Ex. 48 [Ex.
1155].
166. Federal government employees authored
parts of the standards at issue. M. Becker Decl. ¶
20, Ex. 20 at 1; ¶ 21, Ex. 23 at 9.

167. Employees of third party companies,
organizations, or government entities authored
parts of the standards at issue in their capacity as
employees of those third party companies,
organizations, or government entities. M. Becker
Decl. ¶ 2, Ex. 4 (Bliss Dep. 163:04–164:19).

PLAINTIFFS’ RESPONSE

Undisputed

Objection to Plaintiff’s reliance on Ex. 20.
It is hearsay.
Disputed. This statement is entirely
unsupported by the cited documents.
Defendant has presented no evidence that
federal government employees drafted
any language that appears in any of the
standards at issue.
Disputed to the extent it implies that all
employees of any company, organization
or government entity participate in
Plaintiffs’ standard development
processes in their capacity as employees
of those entities. Disputed to the extent it
implies than any employees of
government entities authored any parts of
the standards at issue. Defendant has
43

DEFENDANT’S STATEMENT OF FACT

168. Plaintiffs have no procedures to ensure that
employees of third party companies,
organizations, or government entities are capable
of transferring any copyright in the standards at
issue to the plaintiffs, and that such copyright is
not instead held by the employer. Plaintiffs do not
have any procedures in place to ensure that
government and private company employees who
participate in the development of standards have
the authority or ability to transfer copyright to the
plaintiff orgs, and plaintiffs did not request
assignments from the employers of individuals
who authored components of the standards.M.
Becker Decl. ¶ 11, Ex. 13 (Smith Dep. 46:12–
49:235); (Smith Dep. 166:17–170:19); M. Becker
Decl. ¶ 72, Ex. 74; M. Becker Decl. ¶ 4, Ex. 6
(Dubay Dep. 220:15–220:25) ("NFPA verifies
through our policy the submission from the
individual. We do not go to their companies to
verify authority of their signature."); M. Becker
Decl. ¶ 10, Ex. 12 (Reiniche Dep. 92:13–93:07).

169. Public Resource voluntarily applies notices
to the incorporated standards at issue on its
website describing the process it uses to copy
standards and disclaiming affiliation with any
SDOs. C. Malamud Decl. ¶ 30, Ex. 3.

170. Each of the incorporated laws at issue has a
title that contains one of the Plaintiffs’ names.

PLAINTIFFS’ RESPONSE
presented no evidence to support these
assertions.
Disputed. NFPA and ASHRAE’s
assignment forms require the person
signing to warrant that he/she has the
authority to enter into the assignment.
Pauley Decl. ¶ 31, Ex. B (NFPA
assignment forms state: I hereby warrant
that … I have full power and authority to
enter into this assignment.”); Def. SUMF
¶ 144 (ASHRAE forms state: “I hereby
attest that I have the authority and I am
empowered to grant this copyright
release.”). Disputed to the extent it
implies that Plaintiffs have an affirmative
obligation to ensure that individuals who
sign assignment forms are authorized to
sign such forms.
Plaintiffs also have intellectual property
policies and registration forms that are
widely available and distributed. See,
e.g., Def. Ex. 79. To the extent employers
direct any employees to participate in the
SDO process, they are or should be aware
of the conditions under which all
individuals participate, including the
requirement that they assign any
copyright interest that they may have to
the SDO.
Disputed. The cited exhibit shows
application of a notice on the HTML
version of a standard that it posted online
in 2015 and is not at issue. Defendant
presented no evidence that it applied this
notice on any PDF or HTML version of a
standard at issue when it posted it in
2012. As of February 2015, the HTML
versions of the standards at issue in this
litigation do not include this language. See
Ex. 29 to Rubel declaration (showing
HTML version of ASTM standard D8607 posted on Defendant’s website).
Disputed to the extent it states that
Plaintiffs’ standards are laws.
44

DEFENDANT’S STATEMENT OF FACT
Compl. Exs. A–C, ECF No. 1.
171. Public Resource displays links to standards
incorporated by reference into the Code of
Federal Regulations in a table that identifies the
standards by their alphanumeric code, e.g., ASTM
D396-98, its year, the developing organization,
the title of the standard, and the C.F.R. section
that incorporated the standard by reference. The
table explains that “In order to promote public
education and public safety, equal justice for all, a
better informed citizenry, the rule of law, world
trade and world peace, this legal document is
hereby made available on a noncommercial basis,
as it is the right of all humans to know and speak
the laws that govern them.” C. Malamud Decl. ¶
28, Ex. 2.
172. ASTM itself states that the citation format
for this standard is: “ASTM D396-98, Standard
Specification for Fuel Oils, ASTM International,
West Conshohocken, PA, 2001, www.astm.org.”
M. Becker Decl. ¶ 145, Ex. 147.
173. Public Resource purchased a physical copy
of each of the incorporated laws at issue. C.
Malamud Decl. ¶ 24.
174. Public Resource posted on its website a PDF
version of each incorporated law at issue. The
PDF version accurately appeared as a scan of a
physical version of the incorporated law. C.
Malamud Decl. ¶ 24.

175. For some of the incorporated laws at issue,
Public Resource posted versions in HTML and
SVG formats. C. Malamud Decl. ¶ 25–26.
176. For some of the PDF versions of the
incorporated laws, Public Resource attached its
own cover page, which indicated where the law
was incorporated by reference. C. Malamud
Decl. ¶ 20–22; Compl. Ex. G, ECF No. 1-7.

177. Public Resource’s addition of embedded text

PLAINTIFFS’ RESPONSE
Objection. Defendant’s webpage is
hearsay if it is offered to prove the truth of
any of the matters asserted therein.
To the extent the webpage is offered
solely to show what a visitor to the
website would view at that time, Plaintiffs
have no objection.
Undisputed

Disputed to the extent it implies that
Defendant is merely citing the ASTM
standards.
Objection to Exhibit 147 as hearsay and
lacking foundation/personal knowledge.
Disputed to the extent it states that
Plaintiffs’ standards are laws.
Disputed. Defendant added a cover page
to the PDF versions of Plaintiffs’
standards. Pls. SUMF ¶¶ 183-84.
Defendant also admits that it made errors
in creating the PDF versions of Plaintiffs’
standards, including skipping pages and
scanning pages upside down. Pls. SUMF
¶ 214, 216. Disputed to the extent it
states that Plaintiffs’ standards are laws.
Disputed to the extent it states that
Plaintiffs’ standards are laws.
Disputed. Disputed to the extent it states
that Plaintiffs’ standards are themselves
laws. Defendant presented no evidence
that it added a cover page to only some,
rather than all, of the PDF versions of
Plaintiffs’ standards. See Pls. SUMF ¶¶
183-84
Disputed to the extent it states that
45

DEFENDANT’S STATEMENT OF FACT
and metadata in the PDF versions of incorporated
laws on its website did not change the appearance
of the PDF versions. C. Malamud Decl. ¶ 25.
178. The embedded text in the PDF versions of
incorporated laws on Public Resource’s website
enabled software based searching and text to
speech functionality. C. Malamud Decl. ¶ 25.

179. The 2011 edition of the National Electric
Code (“NEC”) spans 886 pages. C. Malamud
Decl. ¶ 34.
180. Public Resource purchased a physical copy
of the 2011 NEC, which did not include a
requirement that high-voltage cables be shielded.
Public Resource posted an electronic version of
that physical copy on its website in PDF and
HTML formats. C. Malamud Decl. ¶ 34.

181. NFPA issued two errata to the 2011 NEC.
The errata included the addition of a requirement
that high-voltage cables be shielded as well as
changes to cross-references in various sections.
M. Becker Decl. Exs. 123–24.
182. Public Resource promptly corrected the
errors to certain HTML versions of incorporated
laws that Plaintiffs’ counsel identified during the
course of the deposition of Carl Malamud. C.
Malamud Decl. ¶ 33.
183. It is in the public interest for people to be
educated about the NFPA standards. . Becker
Decl. ¶2, Ex. 4 (Bliss Dep. 121:22–122:4)
(“NFPA’s standards establish ways to make
buildings safer and processes to be safer and for
people to act or react in a more safe manner when
it comes to fire, electrical safety and other

PLAINTIFFS’ RESPONSE
Plaintiffs’ standards are themselves laws.
Otherwise, undisputed.
Disputed to the extent it states that
Plaintiffs’ standards are themselves laws.
Disputed to the extent it implies any
individual who accessed the PDF versions
actually performed software based
searching and/or used text to speech
functions. Disputed to the extent it
implies that individual who used text to
speech functions would consider the
versions of Plaintiffs’ standards on
Defendant’s website to be accessible. See
Pls. Suppl. SUMF ¶ 5 (Fruchterman Dep.
256:12-259:6).
Undisputed

Disputed to the extent it suggests that
Defendant acted reasonably in posting a
version of the 2011 NEC with these
errors. The errata in question was issued
by NFPA and posted on NFPA’s website
in April 2011, more than a year before
Defendant posted the 2011 NEC on its
website.
Undisputed

Disputed. See Pls. SUMF ¶ 218.

Disputed to the extent Defendant
characterizes Mr. Bliss’s testimony as a
legal conclusion. The NFPA and its
standard development work more broadly
serves the public interest. Pls. SUMF ¶
95.

46

DEFENDANT’S STATEMENT OF FACT
hazards. It’s in the public interest that people be
educated about those requirements or those
standards.”).
184. It is in the public interest for people to use
the ASTM standards. M. Becker Decl. ¶ 20, Ex.
22 (“For more than 100 years, ASTM has served
society by providing a global forum for the
development and publication of voluntary
consensus standards for materials, products,
systems, and services that are utilized by ninety
industrial sectors in the United States and in most
geographic regions of the world.”).
185. Public.Resource.org seeks to inform the
public about the content of the law. M. Becker
Decl. ¶15, Ex. 17 (C. Malamud Ex. 33) (Public
Resource “tries to put more government
information online. We’ve had a big impact on
putting more judicial information on the Internet,
but also do fiche and a variety of other documents
such as IRS nonprofit tax returns.”).
186. M. Becker Decl. ¶16, Ex. 18 (C. Malamud
Ex. 38) (“In order to promote public education
and public safety, equal justice for all, a better
informed citizenry, the rule of law work trade and
world peace, this legal document is hereby made
available on a noncommercial basis, as it is the
right of all human to know and speak the laws
that govern them.”); ¶ 17, Ex. 19 (C. Malamud
Ex. 57); ¶ 18, Ex. 20 (C. Malamud Ex. 58)
(appeal to donors describing mission).
187. In 2002, Plaintiffs NFPA and ASHRAE
argued that a lack of private monopoly to control
the reproduction of mandatory building codes
would “destroy” the “ability of private standards
developers to underwrite the development and
updating of their standards.”
M. Becker Decl. ¶ 119, Ex. 121 (Brief of
American Medical Assoc. et al. as Amici Curiae
at 12, Veeck v. Southern Building Code Congress
International, Inc., 293 F.3d 791 (5th Cir. 2002)
(No. 99-40632)).

PLAINTIFFS’ RESPONSE

Undisputed

Disputed to the extent it implies that
Plaintiffs’ standards are themselves laws.

This is not a statement of fact.

Disputed to the extent it suggests that
NFPA and ASHRAE described copyright
protection as a “private monopoly to
control the reproduction” of materials.
Objection to Exhibit 121 as hearsay and
lacking foundation/personal knowledge.

47

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
48

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

49