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
PUBLIC RESOURCE’S RESPONSE
TO PLAINTIFFS’ EVIDENTIARY
OBJECTIONS IN OPPOSITION TO
DEFENDANT PUBLIC RESOURCE’S
MOTION FOR SUMMARY
JUDGMENT
Action Filed: August 6, 2013

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

Public Resource submits the following response to Plaintiffs’ evidentiary objections to
Public Resource’s Motion for Summary Judgment (ECF 155-2). As a threshold matter, Public
Resource does not believe that Plaintiffs have any basis under LCvR 7(h) to file their Response
to Public Resource’s Statement of Disputed Facts (ECF No. 155-3), and Public Resource has
objected to that document and moved to strike it in Public Resource’s objections to evidence.
Because Plaintiffs have combined their statement of disputed facts with their objections to
evidence into a single document (ECF 155-2), Public Resource responds only to Plaintiffs’
objections to evidence in that document (distinguished in bold text):
Defendant’s Statement of Fact

Plaintiffs’ Response

1. Public.Resource.org is a
nonprofit corporation, funded
entirely by donations,
contributions, and grants. C.
Malamud Decl. ¶ 3.

Undisputed

2. Public Resource’s core mission
is to make the 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.

Undisputed

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.

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.

4. Public Resource has made
judicial opinions, Internal Revenue
Service records, patent filings, and
safety regulations accessible on

Disputed. The claim that
Defendant began posting
portions of the standards at
issue in this case in 2008 is

Defendant’s Reply

1

If Public Resource was
unable to purchase
many standards from
Plaintiffs after a search,

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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.

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.

then he has a foundation
for concluding they
were not being offered
for sale. Mr. Malamud’s
opinion as to the cause
was based upon his
direct experience, not
requiring an expert
opinion.

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.

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.

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.”

The cited declaration
testimony does not support
this statement.

2

Public Resource’s
Statement of Undisputed
Material Facts contains
a numbering error. This
statement should have
referred to Paragraph 24
of Mr. Malamud’s
Declaration, which
supports the statement.

Defendant’s Statement of Fact
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

Defendant’s Reply

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 Plaintiffs. See Pls.
SUMF ¶ 225, 228, 229.

Public Resource’s
Statement of Undisputed
Material Facts contains
a numbering error. This
statement should have
referred to Paragraph 30
of Mr. Malamud’s
Declaration, which
supports the statement.

The cited declaration
testimony does not support
this statement.
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.

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.

8. Plaintiffs are three standards
development organizations
(“SDOs”) that publish voluntary
consensus standards. Pls. Mem. 4–
9; Compl. Ex. A–C.

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

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).

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

10. ASTM’s Mission Statement
reads: “To be recognized globally
as the premier developer and
provider of voluntary consensus

Undisputed

3

Defendant’s Statement of Fact

Plaintiffs’ Response

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”
Undisputed
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
conditioning and refrigeration to
serve humanity and promote a
sustainable world.” M. Becker
Decl. ¶ 100, Ex. 102.

Undisputed.

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.

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

4

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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.

This is a legal conclusion,
not a fact.

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).

This is a legal conclusion,
not a fact.

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).

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.

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).

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.

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.

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

5

Defendant’s Reply

The Court can take
judicial notice of
matters communicated
to the public on
government websites.
Additionally, the
statement is admissible
as a record of the Office
of the Federal Register
made in the ordinary
course of business.

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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

Objection. The OFR
statement is hearsay and is
inadmissible to prove the
truth of the matter
asserted.

20. Public Resource has posted at
least some of the incorporated
standards at issue online. C.
Malamud Decl. ¶ 15–19.

Disputed. Defendant has
posted all of the standards at
issue online. Pls. SUMF
¶ 187.

21. Plaintiffs have discussed
Public Resource’s activities at the
highest levels of their

Disputed entirely as to
ASHRAE’s involvement in
discussions since 2010.

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.

6

The Court can take
judicial notice of
matters communicated
to the public on
government websites.
Additionally, the
statement is admissible
as a record of the Office
of the Federal Register
made in the ordinary
course of business.
Additionally, the
quotation is not offered
for the truth of the
statement, but rather for
the fact that the OFR
makes such
representation to the
public.

Defendant’s Statement of Fact

Plaintiffs’ Response

organizations since at least 2010,
but waited until August 2013 to
file this lawsuit. For instance, in
2010 the President of NFPA
emailed the President of ASTM to
arrange a meeting about Public
Resource, stating: “Have you seen
this [YouTube clip about Public
Resource]? . . . I left a message at
your office about possibly
planning a strategy together. This
one could heat up fast and I am not
too comfortable that we have
adequately sensitized policy
makers in D.C.” M. Becker Decl.
¶ 148, Ex. 150.

Disputed as a vague and
misleading with respect to
the references to “Public
Resource’s activities” and
“Have you seen this
[YouTube clip about Public
Resource].” Defendant
misleadingly suggests that
Plaintiffs were discussing
Public Resource’s posting of
their standards online in
2010. In fact, Public
Resource did not post
Plaintiffs’ standards in bulk
until December 2012. See
Pls. SUMF ¶ 250.

22. Each standard at issue on
Public Resource’s websites was
incorporated by reference into law.
C. Malamud Decl. ¶ 23; Pls. Mem.
9. Nearly all of the standards at
issue were promulgated as private
industry standards several years
before being incorporated into law
by government agencies. See, e.g.,
ASTM D396-1998 “Standard
Specification for Fuel Oils”,
incorporated into reference into
law at 41 C.F.R. § 60.17 (2011);
M. Becker Decl. ¶ 151, Ex. 153
(ASTM email stating that “[a]n
unscientific scan suggests over 90
percent of ASTM standards
incorporated by reference are not
the most recent versions, and
many are way out of date
versions”).

Disputed to the extent it
implies that incorporation by
reference of a standard
makes the standard itself law.
Disputed to the extent it
characterizes Plaintiffs’
standards as private industry
standards. They are voluntary
consensus standards.
Disputed that “nearly all” of
the standards at issue that
were developed by NFPA
and ASHRAE had existed for
several years before they
were incorporated by
reference. Defendant offers
no evidence supporting this
proposition and it is not true.
See Pls. SUMF ¶ 93 (noting
the NEC is updated every
three years).
Objection as to foundation,
relevance and undue
prejudice with respect to
reliance on an admittedly
“unscientific scan” of
ASTM standards

7

Defendant’s Reply

These facts are relevant
as they rebut Plaintiffs’
claims of market harm
and irreparable harm.
These facts are founded
on Mr. Malamud’s
personal knowledge of
the multiplicity of
versions of the standards
he posted and of which
versions are
incorporated by
reference. See ECF No.
118-13, Ex. 36.
A statement by ASTM’s
employee is not
prejudicial simply
because it characterizes
a scan as “unscientific.”
Scientific precision is
not required, and the
correspondent in an
email internal to ASTM
had a strong incentive to

Defendant’s Statement of Fact

Plaintiffs’ Response
incorporated by reference.

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).

Objection. This statement
is inadmissible hearsay to
the extent it is offered to
prove the truth of the
matter asserted. It is
otherwise irrelevant.

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).

This is a legal conclusion,
not a fact.

convey accurate
information.

Undisputed

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.

Defendant’s Reply

The statements as to the legal
effect of incorporation by
reference are legal
conclusions not facts.

The Court can take
judicial notice of
matters communicated
to the public on
government websites.
Additionally, the
statement is admissible
as a record of the Office
of the Federal Register
made in the ordinary
course of business.
Additionally, the
quotation is not offered
for the truth of the
statement, but rather for
the fact that the OFR
makes such
representation to the
public.

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

8

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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

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.

The statement is
relevant to show that
legally binding safety
standards, of which the
standards at issue in this
case are examples, are
laws that carry criminal
penalties.

Unduly prejudicial. There is
no evidence that this
Nothing in the statement
conviction related in any way is prejudicial.
to a standard at issue in this
case.
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.

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.
Objection to Exhibits 97-99
as hearsay and lacking
foundation/personal
knowledge.

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).

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

9

Exhibits 97-99 are a
compilation of data
from Plaintiffs’ own
publications and
websites and are capable
of verification by
Plaintiffs’ employees
and records at trial.

Defendant’s Statement of Fact

Plaintiffs’ Response
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,
105-08, 152-53. None of the
cited evidence suggests
otherwise.

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.

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

10

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

loss of revenue from
standards incorporated by
reference. Reply ISO MSJ
42-45.
30. ASHRAE has a Government
Affairs office in Washington D.C.
Becker Decl. ¶ 50, Ex. 52.

It is undisputed that
ASHRAE has an office in
Washington DC. Some of
the activities that office takes
could be characterized as
“Government Affairs.”

31. ASHRAE’s Government
Affairs office has encouraged
members of congress and other
policy makers to incorporate
ASHRAE standards into law. M.
Becker Decl. ¶ 10, Ex. 12
(Reiniche Dep. 136:11–21;
138:24–140:10; 210:19–211:09).

Objection to the relevance
of the cited testimony to the
extent it refers to ASHRAE
standards not at issue in
this litigation (Fed. R. Evid.
402).
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 161-2007, which is
not at issue in this case.

11

The testimony is
relevant to show that
ASHRAE has a practice
of encouraging
policymakers to
incorporate ASHRAE
standards into law, and
employees who do so as
part of their duties.

Defendant’s Statement of Fact

Plaintiffs’ Response

32. ASHRAE started a grassroots
program to advocate for adoption
of building codes into law,
including the standard known as
ASHRAE 90.1. M. Becker Decl.
¶ 10, Ex. 12 (Reiniche Dep.
144:06–145:23).

Objection to Relevance
(Fed. R. Evid. 402).

33. ASHRAE refers to the citation
of ASHRAE 90.1 in the Energy
Policy Act (“EPAct”) as
ASHRAE’s “EPAct advantage,”
because ASHRAE 90.1 is
referenced over other energy
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).

Objection to Relevance
(Fed. R. Evid. 402)

The evidence is relevant
to show that ASHRAE
has a practice of
encouraging
policymakers to
incorporate ASHRAE
standards into law, and
expends resources to
that end.

ASHRAE does not dispute
that certain ASHRAE
documents have referenced
an “EPAct advantage.”
However, EPAct does not
require states to adopt
Standard 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;
150:14-151:12.

34. ASHRAE has repeatedly
entered into a “Memorandum of
Understanding” with the DOE that
states that both orgs are committed

Defendant’s Reply

Defendant overstates the
testimony, which 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.

ASHRAE admits it has

12

The evidence is relevant
to show that ASHRAE
has a practice of
collaborating with

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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).

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; 113:13114:1.

government officials
concerning government
use of ASHRAE
standards.

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).

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. 236:1425).

13

Defendant’s Statement of Fact

Plaintiffs’ Response

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).

Disputed. The cited
testimony and exhibit
demonstrate that ASTM
encourages government
agencies who plan to
reference an ASTM standard
to reference the most up-todate version of that standard.
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.

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).

Objection. Relevance.

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).

Objection. Relevance;
unduly prejudicial.

39. On December 3, 2015, ASTM

Undisputed

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;

14

Defendant’s Reply

The evidence is relevant
to show that ASTM has
a practice of
collaborating with
government officials on
the subject of
incorporation by
reference, implicitly or
explicitly promoting
such incorporation, and
that ASTM expends
resources to that end.
Relevant to rebut
Plaintiffs’ assertion that
they believe
incorporation by
reference would cause
an uncompensated
taking.
The testimony contains
nothing that would
influence the factfinder
on emotional or other
improper grounds, thus
is not unduly
prejudicial.
Relevant to demonstrate

Defendant’s Statement of Fact

Plaintiffs’ Response

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”).

unduly prejudicial.

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).

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 ¶¶ 9091.

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).

Undisputed

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.

Disputed. Defendant
mischaracterizes the
testimony which states “I
guess it depends on the, how
you would define

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.

15

Defendant’s Reply
that ASTM actively
promoted incorporation
by reference of its
standards and close
involvement of
government officials in
the standards
development process,
which further shows that
the standards
development process is
a forum for the
development of laws.
The document contains
nothing that would
influence the factfinder
on emotional or other
improper grounds, thus
is not unduly
prejudicial.

Defendant’s Statement of Fact

Plaintiffs’ Response

82:13–25).

‘advocacy.’ We’re
advocating for fire safety,
and we believe that the
adoption and use of standards
promotes fire safety.” Def.
Ex. 4 (Bliss Dep.) 82:13-16.

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.

Objection. The OFR
statement is hearsay and is
inadmissible to prove the
truth of the matter
asserted.

44. According to a statement by
the Modification and Replacement
Parts Association: “The burden of
paying high costs simply to know
the requirements of regulations
may have the effect of driving
small businesses and competitors
out of the market, or worse
endanger the safety of the flying
public by making adherence to
regulations more difficult due to
fees . . . .” M. Becker Decl. ¶ 103,
Ex. 105 (ABA Section of
Administrative Law and
Regulatory Practice Resolution,

Objection. The cited
evidence is hearsay. It is
also irrelevant and unfairly
prejudicial, especially since
there is no evidence to
suggest this statement
relates to any standard at
issue in this case.

Defendant’s Reply

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.

Disputed. There is no
admissible evidence
supporting this statement.

16

The Court can take
judicial notice of
matters communicated
to the public on
government websites.
Further, the matter
quoted is a statement of
the content of federal
regulations. The Court
can take judicial notice
of federal regulations.

The statement is
relevant to show the
harmful effect of
barriers to access to
regulations.
The document contains
nothing that would
influence the factfinder
on emotional or other
improper grounds, thus
is not unduly
prejudicial. Plaintiffs
admit that their legally
incorporated standards
are critical for public

Defendant’s Statement of Fact

Plaintiffs’ Response

submitted November 17, 2015).

Defendant’s Reply
safety.
The statement is capable
of authentication by
testimony at trial.

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.

These documents show
ASTM’s frequent and
routine practice of
granting liberal
permission to selected
organizations to
reproduce and excerpt
ASTM standards.
Plaintiffs have stated
that they do not treat
standards incorporated
by reference differently
from other standards.
Nothing in the
documents is
prejudicial.

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. 116; ¶ 115, 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. In
addition, there is no
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 noncommercial purposes. Pls.
SUMF ¶ 68. ASTM denies

17

These documents show
ASTM’s frequent and
routine practice.
Plaintiffs have stated
that they do not treat
standards incorporated
by reference differently
from other standards.
Nothing in the
documents is
prejudicial.
The similarity of the
requests to those cited in
Paragraph 45 is selfevident.

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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.

Plaintiffs’ response
asserts an absolute right
to grant preferential and
discriminatory access to
standards incorporated
into law.

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.

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.

These documents show
ASTM’s frequent and
routine practice.
Plaintiffs have stated
that they do not treat
standards incorporated
by reference differently
from other standards.

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.

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.

These documents show
ASTM’s frequent and
routine practice.
Plaintiffs have stated
that they do not treat
standards incorporated
by reference differently
from other standards.

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

18

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

would be “posted online
through wikispaces.” See
Def. 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.
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.

51. Plaintiffs provide “reading
rooms” for some of the
incorporated standards. Thomas
Decl. ¶ 50, ECF No. 118-11;
O’Brien Decl. ¶ 60, ECF No. 1187; Pauley Decl. ¶ 45, ECF No.
118-8; Reiniche Decl. ¶ 19–20,
ECF No. 188-10.

Disputed. NFPA and
ASHRAE make all of their
standards that have been
incorporated by reference
into government regulations
available online for free readonly 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.

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).

Objection. Inadmissible
opinion testimony. Mr.
Fruchterman has been
offered as an expert on
accessibility of materials to
people who are visually

These documents show
ASTM’s frequent and
routine practice.
Plaintiffs have stated
that they do not treat
standards incorporated
by reference differently
from other standards.

19

The statement is based
on Mr. Fruchterman’s
percipient testimony
about Plaintiffs’
websites, not his expert
opinion.

Defendant’s Statement of Fact

Plaintiffs’ Response
impaired. He is not
competent to testify about
software-based searching
and analysis.

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).

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. 110:823; 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
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

20

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response
requested and not received an
accommodation. Id. ¶ 6.

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).

Undisputed

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).

Undisputed

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

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
21

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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 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.

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 5by-7 pane.

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).

Undisputed

58. ASHRAE posted some of its
Undisputed
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

Undisputed

22

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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).

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.

61. Plaintiffs do not allow people
Undisputed
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).

Disputed.

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 process of ASTM
standards. M. Becker Decl. ¶ 6,
Ex. 8; ¶ 23, Ex. 25 (Grove Dep.
268:14–269:4).

Objection. Best evidence
rule.

The cited deposition
testimony does not support
this proposition.

Disputed. ASTM’s form and
style guide sets forth
guidelines for drafting
different types of ASTM
standards, not for
participating in the drafting
and revision process. Pls.

23

The form and style
guide is relevant
because it exists, and as
to how ASTM uses it in
the standards
development process,
not for its contents. The
best evidence rule does
not apply.

Defendant’s Statement of Fact

Plaintiffs’ Response
SUMF ¶¶ 33-34.

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).

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.

24

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

65. ASHRAE described one of the Undisputed.
standards at issue, the 1993
Objection to relevance (Fed.
ASHRAE Handbook:
R. Evid. 402).
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-at-issue 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); ¶ 10, Ex. 12 (Reiniche
Dep. 94–95). Jarosz Rep. 26–30,
ECF No. 117-1.

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.

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. 117-1.

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.

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

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

25

Defendant’s Reply

Defendant’s Statement of Fact
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).

Plaintiffs’ Response
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.

69. ASHRAE says its standards
define “the minimum acceptable
performance for the relevant
products.” Jarosz Rep. 33, ECF
No. 117-1.

Undisputed.

26

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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 Decl. ¶ 10,
Ex. 12 (Reiniche Dep. 102:23–25).

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 members should
have some level of expertise
in the field.

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).

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

27

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response
within the field. Def. Ex. 6
(Dubay Dep.) 29:12-30:4.

72. The volunteers who work on
the standards don’t view them as
creative expression. Volunteers
debate wording in the standards so
as to have the most precise and
accurate description of the process,
system, or methods that comprise
the standards. The exact wording
matters, and it is not sufficient to
try to rephrase this language as
rephrasing could introduce errors.
M. Becker Decl. ¶ 2, Ex. 4 (Bliss
Dep. 140:1–140:10).

Disputed. There is no
support for the contention
that volunteers do not view
their work as creative
expression or the implication
that they would have to view
their expression as creative
under copyright law. There
is also no support for the
proposition that exact
wording matters and
rephrasing the language
could 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 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 why their standards
are ultimately incorporated by
reference. M. Becker Decl. ¶ 6,
Ex. 8 (Grove Dep. 235:2–23).

Undisputed that Plaintiffs
believe technical expertise is
one reason why their
standards are ultimately
incorporated by reference.

28

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

74. NFPA wants to make it easy as
possible for users to understand
the structure of the standard. M.
Becker Decl. ¶ 4, Ex. 6 (Dubay
Dep. 138–139).

Undisputed that NFPA seeks
to makes it easy for users to
understand the structure of its
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
(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.,
29

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response
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).

30

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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).

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.
31

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response
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).

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).

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.
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 90.12004) with Dubay Decl., Ex.
A at 70-26 (NFPA NEC
2011). Likewise, the

32

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response
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).

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).

Disputed as incomplete.

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).

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.) 32:2033:10.

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.

There is no evidence that
supports this statement in
connection with ASHRAE or
ASTM.
79. Plaintiffs enforce whether
people follow the requirements of
standards incorporated into law.
M. Becker Decl. ¶ 2, Ex. 4 (Bliss
Dep. 30:1–37:25).

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

33

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response
enforcement.” See, e.g., Def.
Ex. 4 (Bliss Dep.) 32:2033:10. Defendant provides
no evidence that ASTM or
ASHRAE enforce
compliance with their
standards.

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).

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.

34

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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).

Objection as to
completeness. The NEC
Style Manual includes
substantial other general
and specific guidelines.

82. Public Resource posted some
of the incorporated standards at
issue in standard Web 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.

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

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

Disputed that the conversion
of standards into HTML was
transformative.

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.

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

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.

35

Defendant’s Reply
Plaintiffs do not assert
that any other guidelines
in the NEC Style
Manual, or any other
evidence, contradict the
quoted statement.

Defendant’s Statement of Fact

Plaintiffs’ Response

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.

Defendant’s Reply

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.

84. Hypertext Markup Language
Undisputed
(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.

Undisputed

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.

Undisputed

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.

Undisputed

88. The Public Resource websites
are directed at researchers and
engaged citizens. C. Malamud
Decl. ¶ 4, 26.

Objection as to relevance of
Mr. Malamud’s or Public
Resource’s supposed
subjective intent.
Disputed. Defendant’s
36

The testimony
characterizes the
contents of the Public
Resource websites and
Public Resource’s

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

websites are accessible by
the general public and
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.

communications to the
public, not merely
Public Resource’s
subjective intent.

89. Public Resource’s stated
purpose for providing an archive
or laws and other government
documents on its websites is to
bolster the public’s ability “to
know and speak the law.” C.
Malamud Decl. ¶ 28
(https://law.resource.org/pub/12tab
les.html).

Objection. Defendant’s
stated purpose is irrelevant.
Hearsay to the extent that
the out of court statements
are relied upon to prove the
truth of the matters
asserted.

The material is a
statement of opinion by
Public Resource offered
to show what was
communicated to the
public, not the truth of
the matters asserted.

90. Plaintiffs sell copies of the
incorporated standards at issue.
Thomas Decl. ¶ 44, ECF No. 11811; Pauley Decl. ¶ 44, ECF No.
118-8; Rubel Decl. Ex. 8
(Comstock Dep. 104:21–106:23),
ECF No. 118-12.

Undisputed

91. Public Resource’s versions of
the incorporated standards at issue
are reasonably accessible to the
print-disabled. People who are
print-disabled can use screen
reader software to read and
navigate the HTML versions of the
standards. James Fruchterman,
Public Resource’s expert on
accessibility, concluded that “a
blind person using a screen reader”
can “read the standard . . . navigate
to a specific place in the document
. . . and search for key terms.”).

Disputed. 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. 175:5176:9, 218:3-23). Mr.
Fruchterman also
acknowledged that he had
asked a visually disabled

In addition, the intent of
the use is relevant to a
determination of fair
use.

In addition, the intent of
the use is relevant to a
determination of fair
use.

37

Defendant’s Statement of Fact

Plaintiffs’ Response

Mr. Fruchterman also observed
that “standard HTML” as used by
Public Resource “is also highly
accessible to people with other
print disabilities and the assistive
technology they use to access
print,” such as people with “vision
impairment, dyslexia, brain injury
and physical disabilities.” M.
Becker Decl. ¶ 94, Ex. 96
(Fruchterman Rep. 5–7); ¶ 8, Ex.
10 (R. Malamud Dep. 233:15–
234:7); ¶ 5, Ex. 7 (Fruchterman
Dep. 125:10–11).

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. 256:12259:6). In addition, the
documents posted on
Defendant’s website are not
the standards at issue. They
are Defendant’s mistakeladed creations. Pls. SUMF
¶¶ 182-185, 188-201.

92. Plaintiffs’ versions of the
incorporated standards at issue
online are not as accessible to the
print-disabled as Public
Resource’s versions of those
standards. None of the Plaintiffs
provide free electronic access to
standards incorporated into law for
people with disabilities. For
example, NFPA’s website requires
visitors to register before viewing
the standards, and its registration
process cannot be completed by
blind users. None 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

Disputed to the extent the
statements relates to people
with non-print disabilities.
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. 77:2178:4; Comstock Dep. 10:2311:3. 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. Mr.
Fruchterman admitted he
38

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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).

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. 175:5176:9, 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. 256:12259:6).
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
39

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response
online library for the
visually-impaired website.
Pls. Suppl. SUMF ¶ 3
(Fruchterman Dep. 209:18213:23). There is no
evidence that the other
standards at issue are
unavailable on that or similar
websites for the visuallyimpaired.
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.

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).

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.

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.

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.

40

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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.

Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.

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.

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.

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.

Disputed. Defendant has not
transformed the information
in the standards. Plaintiffs
make their standards
accessible to the general
public. Pls. SUMF ¶¶ 57-69,
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 Defendant
posted the standards to
provide access for the
visually-impaired. There is
no evidence to support that
suggestion.

98. Public Resource does search
engine optimization so that the
standards are accurately described
in search engine results. C.
Malamud Decl. ¶ 29.

Disputed to the extent it
suggests this is Defendant’s
only purpose in doing search
engine optimization.

99. Technology that would allow a
blind person access but prevent a

Disputed. The Chafee
Amendment to the Copyright

41

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

non-disabled person from
accessing text does not yet exist.
M. Becker Decl. ¶ 94, Ex. 96
(Fruchterman Rep. 101:8–14).

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. 52:154:2). 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. 80:981:25; 84:7-85:8; 86:789:12).

100. ASTM has a policy against
permitting the posting of ASTM
standards on the public internet.
M. Becker Decl. ¶ 142, Ex. 144.

Disputed. ASTM posts many
of its own standards on the
public internet. Pls. 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 post the
information in the ASTM D200012 standard. M. Becker Decl.
¶ 143, Ex. 145.

Objection. Relevance;
unfair prejudice. This
standard is not at issue in
this litigation.

Defendant’s Reply

42

Relevant to show
Plaintiffs’ practice of
seeking to limit the
online availability of the
standards they publish.
Plaintiffs have stated
that they do not treat
standards incorporated
by reference differently
from other standards.

Defendant’s Statement of Fact

Plaintiffs’ Response

102. People want to use the most
recent version of ASTM’s
standards, even if an older version
is incorporated by reference into
law. M. Becker Decl. ¶ 6, Ex. 8
(Grove Dep. 171:5–8).

Disputed to the extent it
implies that there is no value
to an older version of an
ASTM standard or that older
versions of ASTM standards
do not need copyright
protection.

103. ASTM seeks to get Congress
to incorporate the most recent
version of any particular standard
because incorporation “freezes …
that reference in statute for years
to come.” M. Becker Decl. ¶ 6,
Ex. 8 (Grove Dep. 260:25–
261:15).

Disputed. ASTM does not
lobby for incorporation of its
standards by reference.
However, if a government is
going to incorporate an
ASTM standard 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 standards
because the older version may be
the version that is incorporated by
reference in a code or regulation.
M. Becker Decl. ¶ 3, Ex. 5
(Comstock Dep. 19:20–24).

Disputed because this is pure
speculation, not a statement
of fact.

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).

Undisputed

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

43

Defendant’s Reply

Plaintiffs have
suggested no reason
why this testimony by
ASHRAE is not
applicable to ASTM and
NFPA, as all three
Plaintiffs regularly
publish new versions of
standards while older
versions remain the law.

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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; 63:1016; 64:20–25).

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.

Mr. Comstock’s
testimony refers directly
to “the defendant’s
conduct in this case.” M.
Becker Decl. Ex. 5
(Comstock Dep. 64:716).

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).
ASTM and NFPA object to
the use of evidence
regarding ASHRAE
against them as irrelevant
and unfairly prejudicial.

44

Defendant’s Statement of Fact

Plaintiffs’ Response

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).

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.

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).

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.) 212:16213:3.

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).

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,

45

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response
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.) 212:16213:3.

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).

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 ¶¶ 214-15, 241, 24345,

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).

Disputed. Plaintiffs
presented evidence of
Defendant’s posting versions
of ASTM standards that
contain errors online. Pls.
SUMF ¶¶ 214-15, 245.

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).

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.

46

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

113. Plaintiffs’ expert Jarosz was
not aware of any documents
showing NFPA suffered harm
from Public Resource’s activities.
M. Becker Decl. ¶ 7, Ex. 9 (Jarosz
Dep. 123:9–18).

Disputed. This fact is
entirely not true as are the
claims in Defendant’s brief
that 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.

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

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.

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).

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.

47

Defendant’s Reply

Defendant’s Statement of Fact
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).

Plaintiffs’ Response
Undisputed

117. Plaintiffs’ expert Jarosz did
Undisputed
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).

Disputed. Mr. Jarosz stated
that Plaintiffs had suffered
financial losses but they were
exceedingly difficult to
quantify. Pls. SUMF ¶¶ 23839, 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 (Jarosz Dep.) 212:16213:3.

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).

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

48

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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.
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).

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

49

Mr. Comstock’s
testimony refers directly
to “the defendant’s
conduct in this case.” M.
Becker Decl. Ex. 5
(Comstock Dep. 64:716).

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

was not quantified. See
Comstock Dep. 63:17-25.
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).

Undisputed

122. ASHRAE has not attempted
to track losses due to Public
Resource’s conduct. M. Becker
Decl. ¶ 3, Ex. 5 (Comstock Dep.
63:10–16).

Undisputed

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).

Undisputed

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).

Undisputed

125. According to NFPA’s Bruce
Mullen, “If I had to guess, the nonbusiness or government purchases
is probably less than 1% of total
sales.” M. Becker Decl. ¶ 9, Ex.
11 (Mullen Dep. 187:14–23).

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

50

The statement is
admissible as the
admission of a party, as
it was a statement by a
Division Director of
NFPA.

Defendant’s Statement of Fact

Plaintiffs’ Response
what Defendant alleges he
did.
Objection. Inadmissible
hearsay.

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).

Disputed. This statement is
unsupported by the cited
source and Defendant
provides no other basis for it.

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).

This is a legal conclusion and
not a factual statement.

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).

Disputed. This statement is
not supported by the cited
source and Defendant
provides no other basis for it.

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).

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 2627.

130. Almost all of the standards at
issue that 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.

Undisputed

51

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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.

Undisputed

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.

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.

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).

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.

52

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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. 49:0850:11); ¶ 10, Ex. 12 (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.”).

Defendant’s Reply

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.

135. Volunteers voted on the final Undisputed
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

This statement is not
supported by the cited

53

The testimony was
based on the personal

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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. 138:22139:12) (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).

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 ¶¶ 3435, 117, 137-39, 141.

knowledge of Plaintiffs’
designated Rule
30(b)(6) witnesses based
on their direct
knowledge and
experience with
standards development
and personal contact
with countless
participants.

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 -cannot be members of our

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 ¶¶ 3435, 117, 137-39, 141.

Objection. Lack of
foundation to the extent
Defendant relies on
testimony from persons
regarding the motivations
of anyone other themselves.

54

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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).

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

55

The cited evidence
demonstrates that
Plaintiffs had no
authority over the final
contents of any of the
standards at issue.

Defendant’s Statement of Fact

Plaintiffs’ Response
standards on a regular
schedule. Pls. SUMF
¶¶ 42,93, 140.

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.
118-2. 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, and 2008).

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 hire” language “for
many years.” Pauley Decl.
¶ 34. Defendant’s citation to
pre-2007 forms is limited
only to certain forms for
proposals from members of
the public, not the committee
application.
Undisputed as to ASTM and
ASHRAE.

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.

Undisputed

141. In a 2011 memorandum,
then-NFPA President James
Shannon observed that NFPA and
other standards organizations had
problems with their copyright

Disputed as incomplete. The
footnote states: “Another
example of our aggressive
steps to protect copyrights
the action we took to make

56

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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.

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.

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)).

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.

143. ASHRAE requires volunteers
who contribute to standard
development to sign a copyright

Disputed insofar as the
copyright release also
contains the following

57

Defendant’s Reply

Defendant’s Statement of Fact
release explicitly granting
ASHRAE “non-exclusive” rights
in those contributions. M.
BeckerDecl. ¶ 10, Ex. 12
(Reiniche Dep. 70:02-70:11).

Plaintiffs’ Response
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
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 AirConditioning 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.
58

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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.

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.”).

146. All but four of the 229 ASTM Undisputed
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).

Undisputed

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).

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

59

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response
to ASTM. SUMF ¶¶ 18, 2024. 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.

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.”).

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.

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

Disputed. ASTM’s
ownership claims do not
depend on, but are confirmed
by, the understanding of all
60

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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).

participants in the standard
development process intend
ASTM to own the copyrights
in standards.

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”).

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.

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).

Undisputed

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,

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.

61

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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).

Objection. Hearsay; lack
of personal knowledge;
irrelevant and prejudicial.

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 in the
ASTM IP to ASTM.” M. Becker
Decl. ¶ 75, Ex. 77, ¶ 77, Ex. 79
(Compare Section V.D. in both
documents).

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 resides
in ASTM. See Def. Ex. 77.

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

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.

The evidence is not
hearsay because it is not
a statement; it is
evidence of the nonexistence of any
statement before a given
date.
Relevant to show that
many of the standards at
issue were developed in
whole or part without
any implicit or explicit
joint authorship
agreement or agreement
to assign copyright.

62

Defendant’s Statement of Fact

Plaintiffs’ Response

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).

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, 2024. 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.

63

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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. 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.”).

Objection. Vague and
ambiguous as to “exercise
control.”

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).

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. The statement is
not supported by the cited
testimony.

Disputed that clicking on
“continue” in the online
process is not an indication
of assent.

64

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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. ¶¶ 8284, Exs. 91 ¶¶82–84, Ex. 93
(examples of ASTM forms
without any assignment language).

Disputed. The membership
form in Defendant’s Exhibit
91 includes copyright
assignment language.
Defendant produced tens of
thousands of pages of hardcopy 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.

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.
¶¶ 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

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

65

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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 non-exclusive rights. M.
Becker Decl. ¶¶ 52–71, 73–74, Ex.
54–76; Ex. 129.

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.

Relevant because the
2011 and NEC and 2014
NEC incorporate
significant portions of
the 2008 NEC.

163. For example, an NFPA
document soliciting proposed text
for the 2011 edition of the
National Electrical Code, includes
the following text:

Undisputed

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).

I hereby grant the NFPA the nonexclusive, royalty-free rights,
including non-exclusive, royaltyfree 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

Disputed to the extent it

66

Defendant’s Statement of Fact

Plaintiffs’ Response

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. 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).

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

Undisputed
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

67

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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.

Objection to Plaintiff’s
reliance on Ex. 20. It is
hearsay.

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).

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 presented no evidence to
support these assertions.

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.

68

Plaintiffs presented Mr.
Malamud with this
document at his
deposition and
questioned him about it.
If called at trial, Mr.
Malamud could verify
the statements within.
The document is
capable of admission at
trial. Fed. R. Civ. P.
56(c)(2).

Defendant’s Statement of Fact

Plaintiffs’ Response

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).

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.

169. Public Resource voluntarily
applies notices to the incorporated
standards at issue on its website
describing the process it uses to

Disputed. The cited exhibit
shows application of a notice
on the HTML version of a
standard that it posted online

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.

69

Defendant’s Reply

Defendant’s Statement of Fact
copy standards and disclaiming
affiliation with any SDOs. C.
Malamud Decl. ¶ 30, Ex. 3.

Plaintiffs’ Response

Defendant’s Reply

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 D86-07
posted on Defendant’s
website).

170. Each of the incorporated laws Disputed to the extent it
at issue has a title that contains one states that Plaintiffs’
of the Plaintiffs’ names. Compl.
standards are laws.
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.

Objection. Defendant’s
webpage is hearsay if it is
offered to prove the truth
of any of the matters
asserted therein.

Undisputed

Plaintiffs questioned
Mr. Malamud at length
at deposition about the
contents of the Public
Resource websites. Mr.
Malamud can and would
testify to the contents of
the websites at trial. The
websites are fully
capable of being
admitted at trial. Fed. R.
Civ. P. 56(c)(2).

172. ASTM itself states that the

Disputed to the extent it

The quoted statement is

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.

70

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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.

implies that Defendant is
merely citing the ASTM
standards.

admissible as a party
admission. ASTM has
personal knowledge of
statements made on its
website.

173. Public Resource purchased a
physical copy of each of the
incorporated laws at issue. C.
Malamud Decl. ¶ 24.

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

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.

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.

175. For some of the incorporated
laws at issue, Public Resource
posted versions in HTML and
SVG formats. C. Malamud Decl.
¶ 25–26.

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

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.

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

Objection to Exhibit 147 as
hearsay and lacking
foundation/personal
knowledge.

71

Defendant’s Statement of Fact

Plaintiffs’ Response

177. Public Resource’s addition of
embedded text 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.

Disputed to the extent it
states that Plaintiffs’
standards are themselves
laws. Otherwise, undisputed.

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.

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).

179. The 2011 edition of the
National Electric Code (“NEC”)
spans 886 pages. C. Malamud
Decl. ¶ 34.

Undisputed

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.

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.

181. NFPA issued two errata to the Undisputed

72

Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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.

Disputed. See Pls. SUMF
¶ 218.

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 hazards.
It’s in the public interest that
people be educated about those
requirements or those standards.”).

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.

184. It is in the public interest for
Undisputed
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.”).

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Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

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.”).

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

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).

This is not a statement of
fact.

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Defendant’s Reply

Defendant’s Statement of Fact

Plaintiffs’ Response

Defendant’s Reply

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.”

Disputed to the extent it
suggests that NFPA and
ASHRAE described
copyright protection as a
“private monopoly to control
the reproduction” of
materials.

The brief is admissible
as the admissions of a
party. As the quoted
statements are
statements of NFPA’s
and ASHRAE’s
opinion, they require no
further foundation.
Public Resource does
not cite the brief for the
truth of its assertions but
to show NFPA and
ASHRAE’s stated
opinions.

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)).

Objection to Exhibit 121 as
hearsay and lacking
foundation/personal
knowledge.

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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.

76