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

Filing 202

MOTION for Summary Judgment by PUBLIC.RESOURCE.ORG, INC. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support)(Bridges, Andrew)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;

Case No. 1:13-cv-01215-TSC

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs/Counter-defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

PUBLIC RESOURCE’S SECOND MOTION FOR SUMMARY JUDGMENT
Defendant-Counterclaimant Public.Resource.Org, Inc. (“Public Resource”) respectfully
moves for summary judgment against Plaintiffs 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 because Public Resource’s reproduction, display,
and distribution of the works listed in Appendix A to Plaintiffs’ motion (Dkt. 198-2) does not
constitute copyright infringement and because the Plaintiffs have not met their burden for
obtaining a permanent injunction under the Supreme Court’s standard in eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388 (2006).
As Public Resource describes in the accompanying memorandum of law in support of its
motion for summary judgment and opposition to Plaintiffs’ motion for summary judgment and

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permanent injunction, there are no genuine issues of material fact that would preclude summary
judgment in favor of Public Resource. Public Resource’s use of the incorporated standards is a noninfringing fair use. Moreover, Plaintiffs have not articulated any facts to meet all requirements for a
permanent injunction under eBay and thus conclusively fail to show any right to the relief they seek
in the case.
Public Resource further asserts that the Plaintiffs cannot assert copyright in the laws by
incorporation at issue because the complete works they claim are binding laws of the United States
and at least one state; because they are not copyrightable subject matter, excluded by 17 U.S.C.
§ 102(b); because the merger doctrine precludes enforcement of copyright in the works that the
Plaintiffs assert, which have become government edicts and political facts as laws by incorporation;
and because enforcement of the copyrights through the prior restraint that the Plaintiffs seek in this
case would violate the First, Fifth, and Fourteenth Amendments of the United States Constitution.
Because the United States Court of Appeals for the District of Columbia Circuit reserved a ruling on
these issues in the recent appeal and remanded the case to this Court for re-evaluation of the fair use
doctrine, and because Public Resource wishes to preserve these issues for a further appeal if
necessary, Public Resource formally reasserts its earlier arguments on these points and incorporates
here by reference the filings in support of its first motion for summary judgment at Docket Nos. 120126, 146-147, 149, 151, 160-161, and 163-168.
Public Resource requests an oral hearing on its motion and its opposition to Plaintiffs’
second motion for summary judgment and motion for a permanent injunction.
This motion relies on the attached memorandum of points and authorities; the declarations
of Carl Malamud and Matthew Becker; Public Resource’s request for judicial notice; the index of
consolidated exhibits and the exhibits accompanying this motion; Public Resource’s proposed

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order, the pleadings and papers on file, specifically including Public Resource’s filings on its
earlier summary judgment motion; and any further material and argument that the parties may
present to the Court at the hearing.
Dated: November 12, 2019

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (USDC-DC AR0002)
[e-mail]
Matthew B. Becker (admitted pro hac vice)
[e-mail]
Armen N. Nercessian (pending pro hac vice)
[e-mail]
Shannon E. Turner (pending pro hac vice)
[e-mail]
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
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
CSRL 2nd Floor
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

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