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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Case No. 1:13-cv-01215-TSC-DAR
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;
DEFENDANTNATIONAL FIRE PROTECTION
COUNTERCLAIMANT
ASSOCIATION, INC.; and
PUBLIC.RESOURCE.ORG, INC.’S
RESPONSE TO PLAINTIFFS’
AMERICAN SOCIETY OF HEATING,
SUPPLEMENTAL STATEMENT OF
REFRIGERATING, AND AIR
MATERIAL FACTS (ECF NO. 155-1)
CONDITIONING ENGINEERS,
Action Filed: August 6, 2013
Plaintiffs/Counter-defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

REDACTED VERSION SOUGHT TO BE FILED UNDER SEAL

1

Public.Resource.Org (“Public Resource”) submits this Response to Supplemental
Statement of Material Facts in opposition to Plaintiffs’ Supplemental Statement of Material Facts
(ECF No. 155-1).
Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)
1. The Chafee Amendment to the
Copyright Act provides an avenue for
providing access to copyrighted
materials to blind people if certain
requirements are followed, including
only making the materials available to
blind people. Supplemental Declaration
of Jordana Rubel (“Rubel Suppl. Decl.”)
¶ 4, Ex. 1 (Fruchterman Dep. 52:1-54:2).

Public.Resource.Org’s Response
This is a legal conclusion, not a fact.
Disputed to the extent that Plaintiffs imply that the
Chafee Amendment to the Copyright Act provides
the only avenue that is used to provide access to
copyrighted materials to people who are blind or
visually disabled. Fair use provides another avenue.
See Authors Guild, Inc. v. HathiTrust, 755 F.3d 87,
97–98 (2d Cir. 2015).
Irrelevant because Public Resource does not claim to
have used the Chafee Amendment as a basis for its
posting of the incorporated standards at issue in this
litigation.

2. Defendant’s expert, James
Fruchterman, testified about programs
entities that seek to provide access to the
materials for the blind use to comply
with the requirement of the Chafee
Amendment that the materials be made
available only to blind people, including
collecting certifications of disability
from users. Rubel Suppl. Decl. ¶ 4, Ex.
1 (Fruchterman Dep. 80:9-81:25; 84:785:8; 86:7-89:12)

Irrelevant because Public Resource does not claim to
have used the Chafee Amendment as a basis for its
posting of the incorporated standards at issue in this
litigation.

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

Disputed to the extent that Plaintiffs allege that
“nothing would prevent Carl Malamud or another
volunteer from uploading the rest of Plaintiffs’
standards to that [Bookshare] library.” The cited
deposition transcript does not support this conclusion,
and the transcript in fact details limitations on what
content Bookshare will host in its library.
Disputed as misleading to the extent that Plaintiffs
fail to state that the other incorporated standards at
issue are not available through Bookshare.

1

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response
Merely legal argument, and disputed, to the extent
that Plaintiffs imply that Public Resource should
upload the laws that it posts online to Bookshare,
rather than hosting them on its own website, or that
Bookshare should be the only means for people who
are blind or visually disabled to have access to legally
binding material such as the incorporated standards at
issue.

4. Mr. Fruchterman admitted he could
not opine that a visually disabled person
would actually be able to use the HTML
versions of Plaintiffs’ standards posted
on Defendant’s website. Rubel Suppl.
Decl. ¶ 4, Ex. 1 (Fruchterman Dep.
175:5-176:9, 218:3-23).

Disputed. Plaintiffs misconstrue the cited deposition
testimony. Mr. Fruchterman stated that he evaluated
the accessibility of HTML versions of the standards
at issue as posted on the Public Resource website but
did not go in to such great detail as to evaluate
whether particular sections, such as graphical
material singled out by Plaintiffs’ counsel, would be
fully accessible via a screen reader. Plaintiffs’
counsel also asked “Do you have enough information
to know whether a visually impaired fire safety
professional could use the HTML version of NFPA
101 that is available on Public Resource's website and
safely rely on that for professional purposes?” to
which Mr. Fruchterman responded: “I am not a fire
professional expert, so I can't evaluate how this
applies specifically to that profession.” Mr.
Fruchterman has stated that the incorporated
standards in HTML format that he evaluated on the
Public Resource website would be accessible to
someone who is blind or visually disabled. ECF No.
122-6 (Expert Report of Mr. Fruchterman, Ex. 96 to
Public Resource’s Motion for Summary Judgment),
pp. 14–17.

5. Mr. Fruchterman asked one visually
disabled person to evaluate the PDF
versions of Plaintiffs’ standards that
were posted on Defendant’s website,
and that person informed him that those
documents could not be considered to be
accessible. Rubel Suppl. Decl. ¶¶ 4-5,
Exs. 1 (Fruchterman Dep. 256:12259:6), 2 (Exhibit 4006 to Fruchterman
Dep.).

Disputed. Plaintiffs have failed to adduce admissible
evidence to support this statement, as the
communication in question is hearsay.
Disputed as misleading inaccurate. The cited email in
question makes clear that the visually disabled
individual was able to read part of the document, and
that the optical character recognition feature in the
program he was using was not able to process such a
large document in its entirety, but that other programs
such as Open Book or Kurzweil would allow him to

2

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response
read it in its entirety. In the cited deposition
testimony, Mr. Fruchterman clarifies that the visually
disabled individual did not think that a PDF version
of the standards at issue would meet Bookshare’s
accessibility standard, not that it was not accessible.
See Rubel Suppl. Decl. Exs. 1 (Fruchterman Dep.
259:02–06), 2 (Exhibit 4006 to Fruchterman Dep.).
Disputed as misleading to the extent that this
concerns only a PDF version of on one of the
incorporated standards, and not an HTML format
version, which is the version that Public Resource has
created to be more broadly accessible, and which Mr.
Fruchterman directs his analysis to in his report.

6. Mr. Fruchterman did not ask any
visually disabled persons to assess the
accessibility of Defendant’s HTML
standards. See Rubel Suppl. Decl. ¶ 4,
Ex. 1 (Fruchterman Dep. 142:10143:24).

Disputed. Plaintiffs have no evidence to support their
claim. The cited deposition testimony simply states
that Mr. Fruchterman did not ask one particular
individual with a visual disability to evaluate the
incorporated standards posted on the Public Resource
website. As Mr. Fruchterman stated in the cited
deposition testimony, he asked a colleague who is
visually disabled to confirm that he could not access
the incorporated standards on the Plaintiffs’ online
reading rooms.

7. Fruchterman had not considered and
did not know whether visually disabled
persons would be able to use any of
Plaintiffs’ versions of Plaintiffs’
standards aside from Plaintiffs’ online
read-only versions, such as the e-book
and PDF versions that Plaintiffs make
available for sale. Nor did he have any
knowledge of whether Plaintiffs provide
any other accommodations to such
persons. Rubel Suppl. Decl. ¶ 4, Ex. 1
(Fruchterman Dep. 205:20-208:25).

Disputed. In the cited deposition testimony,
Plaintiffs’ counsel asked if Mr. Fruchterman had
evaluated the accessibility of the PDF documents that
Plaintiffs sell; he responded that he had not evaluated
them, but in his experience most PDF documents are
not as accessible to people who are visually disabled
as HTML documents. Plaintiffs have no support for
their claim that Mr. Fruchterman did not have any
knowledge of whether Plaintiffs provide other
accommodations to persons who are visually
disabled. Disputed as misleading also to the extent
that Plaintiffs suggest, without providing evidence,
that they have any routine accommodations to
persons who are visually disabled.

8. ASTM is not aware of any visually
impaired person who has informed
ASTM that he/she was having difficulty

Disputed. Plaintiffs only cite the testimony of one
employee of ASTM, who says “I am not aware of any
visually-impaired person who has informed ASTM

3

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response

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

that he/she was having difficulty accessing an ASTM
standard due to print disability.” Plaintiffs have no
evidence supporting the broader statement that
ASTM, as opposed to a single employee, is not aware
of any such contacts with ASTM.

9. NFPA has a commitment to make
accommodations for persons with
disabilities to access NFPA materials.
To date, there has been only one request
by a visually impaired individual for
access to an NFPA standard and NFPA
responded by providing that individual
with a PDF copy. Declaration of
Christian Dubay (“Dubay Decl.”) ¶¶ 45.

The second sentence is an opinion, not a fact, and it is
a self-serving hypothetical.
Immaterial and disputed also to the extent that
Plaintiffs imply that a person who is visually disabled
should have to seek assistance from ASTM in order
to perceive the law, or that she should be expected to
have sought ASTM’s assistance, rather than using
alternative options, such as that provided by Public
Resource.
Disputed. The evidence that Plaintiffs cite in
paragraphs 4 and 5 of Mr. Dubay’s declaration does
not support the facts asserted.
Elsewhere in Mr. Dubay’s declaration (paragraph 7),
he says “I am aware of one instance in which NFPA
received a request for accommodation in accessing an
NFPA standard from a person who had low vision.”
Plaintiffs have no evidence supporting the broader
statement that NFPA as a whole has received only
one request by a visually impaired individual for
access to an NFPA standard.
Immaterial and disputed also to the extent that
Plaintiffs imply that a person who is visually disabled
should have to seek assistance from NFPA in order to
perceive the law, or that she should be expected to
have sought NFPA’s assistance, rather than using
alternative options, such as that provided by Public
Resource.

10. NFPA is not aware of any other
individuals who have requested and not
received an accommodation. Dubay
Decl. ¶ 4.

Disputed. The evidence that Plaintiffs cite in
paragraph 4 of Mr. Dubay’s declaration does not
support the fact asserted.

11. ASHRAE is aware of only two
instances in which individuals requested
that ASHRAE make alternate forms of

Disputed. Plaintiffs cite the testimony of only one
employee of ASHRAE, who said “I recall only two
specific examples where individuals requested that

4

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response

access to ASHRAE publications
available due to a disability. In both
instances, ASHRAE provided the
requested accommodation. In 2013,
ASHRAE sent a digital copy of an
ASHRAE published textbook on HVAC
systems to a visually impaired student so
the student could employ screen reader
software to access the material audibly.
A hearing impaired individual also
alerted ASHRAE he wished to attend a
class related to HVAC design and
ASHRAE provided sign-language
interpretation. Declaration of Steven
Comstock (“Comstock Decl.”) ¶ 4.

ASHRAE make alternate forms of access to
ASHRAE publications available due to a
disability . . .” Plaintiffs have no evidence supporting
the broader statement that ASHRAE, as opposed to a
single employee, is aware of only two instances
where individuals requested that ASHRAE make
alternate forms of access to ASHRAE publications
available due to a disability.

12. ASHRAE has undertaken efforts to
ensure that disabilities do not
unnecessarily limit access to ASHRAE’s
standards and services. ASHRAR [sic]
has provided accommodations to
individuals with disabilities in the past
and intends to continue to do so in the
future. Comstock Decl. ¶¶ 5-6.

Immaterial and disputed also to the extent that
Plaintiffs imply that a person who is visually disabled
should have to seek assistance from ASHRAE in
order to perceive the law, or that she should be
expected to have sought ASHRAE’s assistance,
rather than using alternative options, such as that
provided by Public Resource.

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

Disputed. Plaintiffs have not adduced admissible
evidence to support this contention, and they have not
provided any evidence whatever to indicate what
information ASTM furnished to the Copyright Office
(or to indicate whether that information was truthful
and accurate) in that “consultation.” Moreover, the
Copyright Office has a long-standing policy of not
providing legal advice to persons seeking assistance.
See United States Copyright Office, Copyright Basics
(Circular 1) at 12, available at
http://www.copyright.gov/circs/circ01.pdf (“The
Copyright Office may not give legal advice.”).

14. ASTM produced evidence that over
25,000 members completed membership
renewal forms every year since 2007.
See, e.g., O’Brien Suppl. Decl. ¶¶ 24-26,
Exs. 9-10.

Disputed. Plaintiffs have not adduced admissible
evidence to support this contention.

Immaterial and disputed also to the extent that
Plaintiffs imply that a person who is visually disabled
should have to seek assistance from ASHRAE in
order to perceive the law, or that she should be
expected to have sought ASHRAE’s assistance,
rather than using alternative options, such as that
provided by Public Resource.

Disputed to the extent that the evidence cited only
establishes that over 25,000 people signed up for new
memberships or renewed their membership with

5

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response
ASTM in 2007 (not that they completed forms in
order to do so, nor that any information is provided
subsequent to 2007). As stated by Mr. O’Brien in
paragraphs 25 and 26 to his supplemental declaration,
Exhibits 9 and 10 to the O’Brien Supplemental
Declaration are purportedly printouts from records of
membership forms completed in 2007. This does not
establish that over 25,000 members completed
membership renewal forms for every year since 2007.
Moreover, Mr. O’Brien does not say that these are all
“renewal” forms, as opposed to membership
applications, he instead implies that these are both
“new membership and membership renewal”
records,” as stated in paragraph 24 of his
supplemental declaration. This is supported by the
fact that some of the promo codes say
“MEM.REN.FAX” or “MEM.REN.TELEPHONE”
while others do not include the “REN” designation,
suggesting that these are not exclusively membership
renewals, but are in large part records of new
membership applications (which have no relevance to
this litigation, because individuals starting their
memberships in 2007 or later would not be expected
to have been involved in standards created in years or
decades prior). The “MEM.REN.TELEPHONE”
entries also show that not all renewals required a
person to fill out a form.

15. The vast majority of these members
completed their membership renewals
using the online membership form. See,
e.g., O’Brien Suppl. Decl. ¶¶ 24-26,
Exs. 9-10.

Disputed. Plaintiffs have not adduced admissible
evidence to support this contention.
Neither Mr. O’Brien’s supplemental declaration nor
Exhibits 9 and 10 to his supplemental declaration
state that the “vast majority” of membership renewals
(or new membership forms for that matter) were
completed through ASTM’s online membership form.
Exhibits 9 and 10 appear to show that this is not the
case, because far fewer records under “Promo Codes”
say “WEB.WEB.WEB” than say “MAIL”, “FAX”,
“TELEPHONE”, “INTERNAL”, or are simply left
blank.
As stated by Mr. O’Brien in paragraphs 25 and 26 to
his supplemental declaration, Exhibits 9 and 10 to the
O’Brien Supplemental Declaration are purportedly
6

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response
printouts from records of membership forms
completed in 2007. This does not establish that over
25,000 members completed membership renewal
forms for every year since 2007. Moreover, Mr.
O’Brien does not say that these are all “renewal”
forms, as opposed to membership applications, he
instead implies that these are both “new membership
and membership renewal” records,” as stated in
paragraph 24 of his supplemental declaration. This is
supported by the fact that some of the promo codes
say “MEM.REN.FAX” or
“MEM.REN.TELEPHONE” while others do not
include the “REN” designation, suggesting that these
are not exclusively membership renewals, but are in
large part records of new membership applications
(which have no relevance to this litigation, because
individuals starting their memberships in 2007 or
later would not be expected to have been involved in
standards created in years or decades prior).

16. ASTM produced copies of tens of
thousands of paper membership renewal
forms to Defendant in this litigation.
Rubel Suppl. Decl. ¶ 7.

Immaterial, and disputed as misleading, to the extent
that Plaintiffs fail to mention that these membership
renewal forms were from 2008 or later, with only one
dating from 2007, and therefore were completed after
the standards at issue in this litigation were developed
and published (and after ASTM obtained copyright
registrations on the pretenses that it already owned
the copyright to the standards), and these forms are
therefore irrelevant. Plaintiffs’ obfuscatory dumping
of tens of thousands of irrelevant documents on
Public Resource in this litigation is neither admirable
nor probative of any issue in this litigation.

17. Michael Collier was the technical
contact for ASTM D86-07. Michael
Collier renewed his ASTM membership
in 2007 using ASTM’s online
membership renewal form. O’Brien
Suppl. Decl. ¶¶ 20, 26, Exs. 5, 10.

Disputed to the extent that Plaintiffs have not
adduced evidence that Michael Collier developed
copyrightable content or otherwise authored the
standard ASTM D86-07.
Disputed to the extent that Plaintiffs have not
adduced evidence that, if Michael Collier wrote any
copyrightable content or otherwise authored the
standard ASTM D86-07, he (as opposed to his
employer) owned the copyright to that content or had
authority to transfer any copyright of his employer to

7

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response
ASTM. Michael Collier was not an individual
member of ASTM; he represented his employer
Petroleum Analyzer Co. LP, which had an
organizational membership. See Exhibit 5 to the
O’Brien Supplemental Declaration (listing a work
email address for Michael Collier at Petroleum
Analyzer Co. LP); Exhibit 10 to the O’Brien
Supplemental Declaration, p. 4 (listing Michael
Collier as having registered with ASTM through an
organizational membership, as opposed to an
individual membership), and Public Resource’s
Supplemental Statement of Material Facts (“SSMF”)
¶ 13, Ex. 7
see also Membership Types and
Benefits, ASTM.org (accessed Feb. 1, 2016),
http://www.astm.org/MEMBERSHIP/MemTypes.ht
m, SSMF ¶ 13, Ex. 8 (describing that ASTM
organizational memberships cost $400 and are
intended for 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).

18. John Chandler was the technical
contact for ASTM D975-07 and ASTM
D396-98. John Chandler renewed his
ASTM membership in 2007 using
ASTM’s online membership renewal
form. O’Brien Supp. Decl. ¶¶ 21, 22, 25,
Exs. 6, 7, 9.

Disputed to the extent that Plaintiffs have not
adduced evidence that John Chandler wrote
copyrightable content or otherwise authored the
standards ASTM D975-07 and ASTM D396-98.

19. Jimmy King was the technical
contact for ASTM D1217-98. Jimmy
King renewed his ASTM membership in
2007. O’Brien Suppl. Decl. ¶¶ 23, 25,
Exs. 8, 9.

Disputed to the extent that Plaintiffs have not
adduced evidence that Jimmy King wrote
copyrightable content or otherwise authored the
standard ASTM D1217-98. Jimmy King was
involved in the 1998 “reapproval” of the 1993 version
of the ASTM D1217, as opposed to the development

Disputed to the extent that Plaintiffs have not
adduced evidence that, if John Chandler wrote any
copyrightable content or otherwise authored the
standards ASTM D975-07 and ASTM D396-98, he
(as opposed to his employer) owned the copyright to
that content or had authority to transfer any copyright
of his employer to ASTM.

8

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response
or revision of the standard. A “reapproval” means
that an older standard is re-evaluated and republished
without any changes to its content, meaning that
Jimmy King did not make any copyrightable
contribution to the standard and therefore had no
copyright to assign to ASTM. SSMF ¶ 12.
Disputed to the extent that Plaintiffs have not
adduced evidence that Jimmy King renewed his
membership in 2007 in a manner that would
effectively assign copyright to ASTM. Unlike
Michael Collier and John Chandler, Jimmy King
renewed his ASTM membership by mail, not by
ASTM’s online portal. See O’Brien Supplemental
Declaration Exhibit 9, p. 36 (listing “Jimmy King” as
“MEM.RN07.MAIL”). ASTM’s postal mail renewal
forms do not require members to agree to assign their
copyrights to ASTM, and members were frequently
able to renew their membership through mail by way
of modified forms. Public Resource’s Memorandum
of Points and Authorities in Support of Its Motion for
Summary Judgment (“P.R.O. Mem.”) at 52–53;
Public Resource’s Statement of Material Facts in
Support of Its Motion for Summary Judgment
(“SMF”) ¶¶ 158–161.
Disputed to the extent that Plaintiffs have not
adduced evidence that, if Jimmy King wrote any
copyrightable content or otherwise authored any
ASTM standards, he (as opposed to his employer)
owned the copyright to that content or had authority
to transfer any copyright of his employer to ASTM.
Exhibit 8 to the O’Brien Supplemental Declaration
shows Jimmy King’s employment email address at
ConocoPhillips as his contact information.

20. NFPA provided evidence of
assignment forms signed by several
contributors to the 2011 and 2014
editions of the NEC. Pauley Decl. ¶ 31,
Exs. A, B.

Disputed to the extent that Plaintiffs imply that these
proposal forms are evidence of transfer of copyright
to Plaintiffs. Plaintiffs have failed to adduce
admissible evidence that any copyrightable content in
these proposal forms was incorporated into any of the
standards at issue. Plaintiffs have also failed to
adduce admissible evidence that the individuals who
allegedly filled out these proposal forms owned the
copyright to the content listed in these proposal
9

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response
forms, as opposed to ownership by their employers
listed on those forms (along with their work email
addresses), or that these individuals had authority to
transfer any copyright held by their employers. NFPA
states that “[m]embership is issued to individuals on
behalf of their company or organization.” FAQs,
NFPA.org (accessed Feb. 1, 2016),
http://www.nfpa.org/about-nfpa/international/faqs
SSMF ¶ 14, Ex. 9.

21. NFPA’s copyright assignment forms
require the person signing to warrant
that he/she has the authority to enter into
the assignment. Pauley Decl. ¶ 31, Ex.
B.

Disputed as misleading or immaterial to the extent
that Plaintiffs imply that asking someone who lacks
authority to enter into an agreement to (incorrectly)
state that she does in fact have authority to enter into
such an agreement has any legal effect or relevance.
If a person does not own a copyright, that person
cannot transfer it to Plaintiffs, regardless of whether
or not she warrants that she has authority to do so.

22. ASHRAE’s copyright assignment
forms require the person signing to
warrant that he/she has the authority to
enter into the assignment. Reiniche
Decl. ¶ 13, Exs. 1, 2.

Disputed as misleading or immaterial to the extent
that Plaintiffs imply that asking someone who lacks
authority to enter into an agreement to (incorrectly)
state that she does in fact have authority to enter into
such an agreement has any legal effect or relevance.
If a person does not own a copyright, that person
cannot transfer it to Plaintiffs, regardless of whether
or not she warrants that she has authority to do so.

23. ASTM started planning the launch of
its Reading Room in 2011. Rubel
Suppl. Decl. ¶ 8, Ex. 4 (Grove Dep.
109:15-110:7).

Disputed to the extent that Plaintiffs attempt to
mislead by implying that ASTM’s work on its
Reading Room was not in response to public policy
issues raised by Public Resource.
See, e.g., P.R.O.
Mem. at 73 fn. 22, SMF ¶ 21, Ex. 150.

10

Plaintiff’s Supplemental Statement of
Material Facts (ECF No. 155-1)

Public.Resource.Org’s Response

P.R.O. Mem. at 7, SMF ¶ 56, Ex. 141.
24. NFPA and ASHRAE have provided
free read-only access to their standards
for over a decade. Pauley Decl. ¶ 45;
Rubel Suppl. Decl. ¶ 11, Ex 7.
(Comstock Dep. 10:23-11:8).

Disputed as misleading: Mr. Comstock states in the
cited deposition testimony that ASHRAE provided
read-only access to only a minority of ASHRAE
standards (10 out of approximately 75 standards, as
of March 2015).

25. Standard 90.1 is ASHRAE’s most
popular standard. It accounts for a
significant portion of ASHRAE’s
publications revenue. Rubel Suppl.
Decl. ¶ 11, Ex. 7 (Comstock Dep. 34:1037:11).

This is an opinion, not a fact.

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

This is an opinion, not a fact. It is not clear what
Plaintiffs mean by “flagship.”

27. Defendant promotes its own
activities and solicits donations on its
websites. Rubel Suppl. Decl. ¶ 9, Ex. 5
(C. Malamud Dep. 47:23-25).

Disputed as misleading and immaterial. Plaintiffs
have not adduced admissible evidence to support this
statement, as the full text that is cited states “Q: Now,
Public Resource solicits donations on its website,
doesn’t it? A: We have – yes.” Public Resource
promotes the availability of the law in an accessible
format to all citizens.

Disputed to the extent that all editions of ASHRAE
90.1 combined account for a minority of ASHRAE’s
revenue from the sale of standards, and ASHRAE’s
revenue from the sale of standards itself accounts for
only a minority of ASHRAE’s annual revenue. SSMF
¶¶ 15–16, Exs. 10 & 11.

11

Dated: February 04, 2015

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

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