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

Filing 164

REPLY in support of motion re #163 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.), #120 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 [Redacted] Declaration of Matthew Becker, #2 [Redacted] Consolidated List of Exhibits, #3 [Redacted] Response to Supplemental Statement of Facts, #4 [Redacted] Response to Statement of Disputed Facts, #5 Supplemental Objections to Evidence, #6 Response to Evidentiary Objections, #7 Supplemental Request for Judicial Notice, #8 Supplemental Declaration of Carl Malamud, #9 Exhibit 1, #10 Exhibit 2, #11 Exhibit 3, #12 Exhibit 4, #13 Exhibit 5, #14 Exhibit 6, #15 Exhibit [Redacted] 7, #16 Exhibit 8, #17 Exhibit 9, #18 Exhibit [Redacted] 10, #19 Exhibit [Redacted] 11, #20 Exhibit 12, #21 Exhibit 13, #22 Exhibit 14, #23 Exhibit 15, #24 Exhibit 16, #25 Exhibit 17)(Bridges, Andrew) Modified text on 2/5/2016 (ztd).

EXHIBIT 2

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF COLUMBIA

3
4

AMERICAN SOCIETY FOR TESTING

5

AND MATERIALS d/b/a ASTM

6

INTERNATIONAL; NATIONAL FIRE

7

PROTECTION ASSOCIATION, INC.,;

8

and AMERICAN SOCIETY OF HEATING,

9

REFRIGERATING, AND AIR-CONDITIONING

10

ENGINEERS, INC.

11
12
13
14

Plaintiffs,
vs.

CIVIL ACTION FILE
NO. 1:13-CV-01215-EGS

PUBLIC.RESOURCE.ORG, INC.,
Defendant.

15
16

30(b)(6) VIDEOTAPED DEPOSITION OF

17

STEVEN COMSTOCK

18

March 5, 2015

19

10:20 a.m.

20

1075 Peachtree Street

21

Suite 3625

22

Atlanta, Georgia

23

30309

Lee Ann Barnes, CCR-1852, RPR, CRR

24
25

PAGES 1 - 199
Page 1
Veritext Legal Solutions
866 299-5127

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

A. The -- the -- the concerns that -- that -that ASHRAE has is to be able to maintain control
over its -- its document for how it's -- it's used
and distributed in the market in accordance with
its -- with its terms.
Whether there's a specific harm that's been
seen from PR -- from the case at hand, I can't speak
to that. But in -- in principle, the -- the
organization sees harm if -- if it -- if -- if its
documents are not able to be maintained.
Q. And apart from that, has ASHRAE detected
any harms, financially or otherwise, to itself
arising from any acts, omissions, or operations of
Public Resource?
A. I -- I've got no evidence. I have not seen
cases of that.
Q. Again, this overlaps a little bit with some
earlier questions.
What -- what are all the factors that you
understand ASHRAE considered in deciding to provide
free viewing to ASHRAE's standards?
A. I was the one who actually launched that
effort, and it was -- so much of what we do is a
balance between trying to assist our members, trying
to help provide a better explanation of the

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

How do ASHRAE's standards function as
working tools for persons who are part of the
engineering community?
A. ASHRAE's stan- -- they -- they provide a -well, many of the standards are method of test, so
they provide methods of testing equipment so that
equipment can be measured -- can be compared with
similar levels of performance.
Our -- some of the standards set
definitions of refrigerants and classify those
refrigerants in terms of their flammability, in terms
of their toxicity, different characteristics.
And then you have a third type of standard,
which is a design standard, which actually provides
guidance that says, "You shall have a -- your design
shall do this in these circumstances."
Q. And as you just mentioned, does that
guidance take the form of specific requirements that
are specified in the standard?
A. It says "shall."
Q. So that answer's yes?
A. Yes.
Q. Were there any other factors involved in
the decision to provide free viewing of ASHRAE's
standards?

Page 94

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

technology, and allowing our -- our business model
to -- to -- to be supported. So it was a combination
of those things.
Number one was to -- in -- in theory, when
we first decided to move in that direction, it was so
that our members could see a document and be able to
determine if they wished to buy it or not. So they
had some familiarity that, yes, this is a document
that would be worthwhile for us to have, and then -then to be able to build into that that notion that
then it's going to lead to a sale.
And then there are -- our mission statement
means that we are to advance technology, so then the
third element would be to make it available to other
people who would have an interest in -- in looking at
the standard, but -- but would not be an engineer or
part of the engineering community, so wouldn't need
the technical depth of the -- the document as a
working tool.
So it's those three factors that went into
our decision to create the -- the free viewing,
which, again, I'm -- I can't recall the exact year,
but it's -- it's 15 years ago, maybe even a little
bit longer than that.
Q. How do the standards func- -- strike that.

Page 96

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

A. No. Those three factors were the -- that
was the -- the -- the thrust of our initiative.
Q. Are there any protocols or procedures at
ASHRAE governing the granting of licenses or
permission requests to anyone outside the
organization? And you can limit your answer to
standards.
A. Typically, the factors that would be
considered would be amount of content that's to be
used. Typically, we would want it to be less than
33 percent of a standard. That's not a hard and fast
rule, but that's a general guideline that my
assistant has.
We would look at what the use is. If it's
a classroom use, that's one thing; if it's posting it
on the Internet, that's another thing; if it's a
company brochure, that's another thing. So it's -it's -- it's how the distribution will be done and -and who is doing it, for example, a company, as
opposed to an educator.
Then there would also be the -- you know,
our expectation that the -- the -- the -- that there
be a citation so that the doc- -- the document is
sourced. And in that particular case, it would be
reprinted as it is unless it's specified that it

Page 95

Page 97

25 (Pages 94 - 97)
Veritext Legal Solutions
866 299-5127

1
2
3

CERTIFICATE

STATE OF GEORGIA:
4
COUNTY OF FULTON:
5
6
I hereby certify that the foregoing transcript was
7 taken down, as stated in the caption, and the
questions and answers thereto were reduced to
8 typewriting under my direction; that the foregoing
pages represent a true, complete, and correct
9 transcript of the evidence given upon said hearing,
and I further certify that I am not of kin or counsel
10 to the parties in the case; am not in the regular
employ of counsel for any of said parties; nor am I
11 in anywise interested in the result of said case.
12
13
14
15 <%signature%>
16 LEE ANN BARNES, CCR B-1852, RPR, CRR
17
18
19
20
21
22
23
24
25
Page 198
1
DEPOSITION ERRATA SHEET
2
3 Our Assignment No. 2023730
Case Caption: AMERICAN SOCIETY FOR TESTING
4 AND MATERIALS d/b/a ASTM INTERNATIONAL, et al. vs.
PUBLIC.RESOURCE.ORG, INC.
5
DECLARATION UNDER PENALTY OF PERJURY
6
I declare under penalty of perjury
that I have read the entire transcript of
7 my Deposition taken in the captioned matter
or the same has been read to me, and
8 the same is true and accurate, save and
except for changes and/or corrections, if
9 any, as indicated by me on the DEPOSITION
ERRATA SHEET hereof, with the understanding
10 that I offer these changes as if still under
oath.
11
Signed on the ______ day of
____________, 20___.
12
___________________________________
13
STEVEN COMSTOCK
14
15
16
17
18
19
20
21
22
23
24
25
Page 199

51 (Pages 198 - 199)
Veritext Legal Solutions
866 299-5127