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).

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-DAR
SUPPLEMENTAL STATEMENT OF
UNDISPUTED MATERIAL FACTS
IN SUPPORT OF DEFENDANTCOUNTERCLAIMANT PUBLIC.
RESOURCE.ORG, INC.’S MOTION
FOR SUMMARY JUDGMENT
Action Filed: August 6, 2013

Plaintiffs/Counter-defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

REDACTED VERSION SOUGHT TO BE FILED UNDER SEAL

GLOSSARY OF CITATIONS
Short Form Citation

Document Title

M. Becker Supp. Decl.

Supplemental Declaration of Matthew Becker
in support of Defendant-Counterclaimant’s
Reply to Motion for Summary Judgment

Supp. Decl. of Carl Malamud

Supplemental Declaration of Carl Malamud in
support of Defendant-Counterclaimant’s
Motion for Summary Judgment

Opp.

Plaintiffs Opposition to Defendant’s Motion
for Summary Judgment and Reply
Memorandum of Law in support of Their
Motion for Summary Judgment and for a
Permanent Injunction, ECF No. 155

SRJN

Supplemental Request for Judicial Notice in
further support of Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Motion for
Summary Judgment

Bliss Dep.

Videotaped 30(b)(6) deposition of National
Fire Protection Association, Inc. through
Donald P. Bliss, March 3, 2015

Comstock Dep.

Videotaped 30(b)(6) deposition of American
Society of Heating, Refrigerating, and Air
Conditioning Engineers through Steven
Comstock, March 5, 2015

Smith Dep.

Videotaped 30(b)(6) deposition of American
Society for Testing & Materials, through
Daniel Smith, July 24, 2015

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Pursuant to Local Rule 7(h), Defendant Public.Resource.Org (“Public Resource”)
contends that there are no genuine disputes as to the following facts. Each of the following facts
supports Public Resource’s Motion for Summary Judgment:
1.

Eleven states and United States territories jointly filed an amicus brief in support

of Peter Veeck in the case Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791, 801 (5th Cir.
2002), in which they asserted that “[c]opyright, while permitted by the Constitution, is at base
only a statutory right . . . . On the other hand, due process is a constitutional right of the first
order.” M. Becker Supp. Decl. ¶ 6, Ex. 5 at 4.
2.

ASHRAE standards take the form of specific requirements that “provide methods

of testing equipment so that equipment can be measured [and] compared with similar levels of
performance.” M. Becker Supp. Decl. ¶ 3, Ex. 2 (Comstock Dep. 96:01–22).
3.

ASTM standards are “[s]pecifications, test methods, practices, guides,

classifications and terminology.” ECF No. 122-2 (Smith Dep. 14:22–15:18).
4.

An NFPA standard provides a consistent process for fire investigation. M. Becker

Supp. Decl. ¶ 4, Ex. 3 (Bliss Dep. 106:09–24).
5.

After the Veeck decision, ASTM International and many other SDOs filed briefs

seeking Supreme Court review. In those briefs, they insisted, at length, that if that decision stood
it would destroy the standards development process. (M. Becker Supp. Decl. ¶¶ 7, 13, Exs. 6,
17).
6.

The Internet is fast becoming the primary means of obtaining information about

government operations and policies. See U.S. Department of Justice, Civil Rights Division,
“Accessibility of State and Local Government Websites to People with Disabilities,”
http://www.ada.gov/websites2.htm. Accessibility best practices follow the principle of universal

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design, which states that the best accommodations for people with disabilities are those that
benefit everyone:
When accessible features are built into web pages, websites are more convenient
and more available to everyone—including users with disabilities. Web designers
can follow techniques developed by private and government organizations to
make even complex web pages usable by everyone including people with
disabilities.
Id.
7.

A special commission of the Department of Education concluded in the field of

accessibility for higher education that requiring people with disabilities to use special
accommodations from the providers of instructional material is disfavored. “Rather, the ideal is
for . . . instructional materials to be available in accessible forms in the same manner that and at
the same time as traditional materials.” Advisory Commission on Accessible Instructional
Materials, Report of the Advisory Commission on Accessible Instructional Materials in
Postsecondary Education for Students with Disabilities at 49 (December 6, 2011),
http://www2.ed.gov/about/bdscomm/list/aim/meeting/aim-report.pdf. The Chafee Amendment,
codified at 17 U.S.C. § 121, has never been the Copyright Act’s sole means of promoting
accessibility, and federal officials now consider it outdated and in need of reform. See id. at 4344.
8.

Public Resource first posted the 2008 National Electric Code on its website in

2008. Supp. Decl. of Carl Malamud ¶¶ 5–7.
9.

Courts regularly purchase bound volumes and electronic access to statutes and

case law. SRJN ¶ 5.
10.

ASTM now admits that it only started asking for copyright assignments in 2005,

Opp. at 32, which is years after 226 of the 229 ASTM standards at issue had been developed. See

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ECF No. 1-1 (Complaint Exhibit A, listing ASTM standards at issue and their date of
publication).
11.

ASTM’s Rule 30(b)(6) representative on the subject of copyright ownership and

assignment claimed that he was told that an unidentified ASTM employee consulted with an
unnamed individual at the Copyright Office at some unknown date before 1980, and that
unidentified ASTM employee was told by the individual at the Copyright Office to list ASTM as
the sole author on its copyright registration applications. The Rule 30(b)(6) representative stated
that there was no record of this alleged communication with an individual from the Copyright
Office, nor does ASTM have any documentation memorializing or evidencing that this
communication occurred. M. Becker Supp. Decl. ¶ 5, Ex. 4 (Smith Dep. 125:06–135:14).
12.

A “reapproval” of an ASTM standard means that an older standard is re-evaluated

and republished without any changes to its content. M. Becker Supp. Decl. ¶ 5, Ex. 4 (Smith
Dep. 151:01–152:02).
13.

Michael Collier was not an individual member of ASTM; he represented his

employer Petroleum Analyzer Co. LP, which had an organizational membership. See M. Becker
Supp. Decl. ¶ 8, Ex. 7
Exhibit 5 to the O’Brien Supplemental Declaration (ECF
No. 155-7) (listing a work email address for Michael Collier at Petroleum Analyzer Co. LP);
Exhibit 10 to the O’Brien Supplemental Declaration, p. 4 (ECF No. 155-7) (listing Michael
Collier as having registered with ASTM through an organizational membership, as opposed to an
individual membership); see also Membership Types and Benefits,
ASTM.org (accessed Feb. 4, 2016), http://www.astm.org/MEMBERSHIP/MemTypes.htm
(describing that ASTM organizational memberships cost $400 and are intended for

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organizations, allowing transferable membership between individuals within that organization, in
contrast to individual membership which is intended for individuals, costs $75, and is not
transferable) M. Becker Supp. Decl. ¶ 9, Ex. 8.
14.

NFPA states that “[m]embership is issued to individuals on behalf of their

company or organization.” FAQs, NFPA.org (accessed Feb. 4, 2016),
http://www.nfpa.org/about-nfpa/international/faqs. M. Becker Supp. Decl. ¶ 10, Ex. 9.
15.

The annual revenue from all editions of ASHRAE 90.1 combined account for

only a minority of ASHRAE’s annual revenue from the sale of standards. M. Becker Supp. Decl.
¶ 11, Ex. 10.
16.

ASHRAE’s revenue from the combined sale of all ASHRAE standards accounts

for only a minority of ASHRAE’s annual revenue. This is evident because “ASHRAE’s revenue
stream is well diversified with standards accounting for about 8%.” M. Becker Supp. Decl. ¶ 12,
Ex. 11.

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Dated: February 4, 2016

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Sebastian E. Kaplan (pro hac vice pending)
[e-mail]
Matthew Becker (admitted)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

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