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

Filing 204

LARGE ADDITIONAL ATTACHMENT(S) to Public Resource's Second Motion for Summary Judgment by PUBLIC.RESOURCE.ORG, INC. 202 MOTION for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC., 203 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 Public Resources Statement of Disputed Facts, # 2 Public Resources Evidentiary Objections, # 3 Public Resources Request for Judicial Notice, # 4 Declaration Carl Malamud, # 5 Declaration Matthew Becker, # 6 Consolidated Index of Exhibits, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7, # 14 Exhibit 8, # 15 Exhibit 9, # 16 Exhibit 10, # 17 Exhibit 11, # 18 Exhibit 12, # 19 Exhibit 13, # 20 Exhibit 14, # 21 Exhibit 15, # 22 Exhibit 16, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Exhibit 22, # 29 Exhibit 23, # 30 Exhibit 24, # 31 Exhibit 25, # 32 Exhibit 26, # 33 Exhibit 27, # 34 Exhibit 28, # 35 Exhibit 29, # 36 Exhibit 30, # 37 Exhibit 31, # 38 Exhibit 32, # 39 Exhibit 33, # 40 Exhibit 34, # 41 Exhibit 35, # 42 Exhibit 36, # 43 Exhibit 37, # 44 Exhibit 38, # 45 Exhibit 39, # 46 Exhibit 40, # 47 Exhibit 41, # 48 Exhibit 42, # 49 Exhibit 43, # 50 Exhibit 44, # 51 Exhibit 45, # 52 Exhibit 46, # 53 Exhibit 47, # 54 Exhibit 48, # 55 Exhibit 49, # 56 Exhibit 50, # 57 Exhibit 51, # 58 Exhibit 52, # 59 Exhibit 53, # 60 Exhibit 54, # 61 Exhibit 55, # 62 Exhibit 56, # 63 Exhibit 57, # 64 Exhibit 58, # 65 Exhibit 59, # 66 Exhibit 60, # 67 Exhibit 61, # 68 Exhibit 62, # 69 Exhibit 63, # 70 Exhibit 64, # 71 Exhibit 65, # 72 Exhibit 66, # 73 Exhibit 67, # 74 Exhibit 68, # 75 Exhibit 69, # 76 Exhibit 70, # 77 Exhibit 71, # 78 Exhibit 72, # 79 Exhibit 73, # 80 Exhibit 74, # 81 Exhibit 75, # 82 Exhibit 76, # 83 Exhibit 77, # 84 Exhibit 78, # 85 Exhibit 79, # 86 Exhibit 80, # 87 Exhibit 81, # 88 Exhibit 82, # 89 Exhibit 83, # 90 Exhibit 84, # 91 Exhibit 85, # 92 Exhibit 86, # 93 Exhibit 87, # 94 Exhibit 88, # 95 Exhibit 89, # 96 Exhibit 90, # 97 Exhibit 91, # 98 Exhibit 92, # 99 Exhibit 93, # 100 Exhibit 94, # 101 Exhibit 95, # 102 Exhibit 96, # 103 Exhibit 97, # 104 Certificate of Service)(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
STATEMENT OF DISPUTED FACTS IN OPPOSITION TO [198] PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT AND A PERMANENT INJUNCTION

[REDACTED VERSION OF DOCUMENT FILED UNDER SEAL]

1

Pursuant to Local Civil Rule 7(h), Public.Resource.Org, Inc. (“Public Resource”) submits
in support of its second motion for summary judgment and opposition to Plaintiffs’ second motion
for summary judgment and permanent injunction a statement of disputed facts to be tried:
Plaintiffs’ Statement of Material Facts
I.

Defendant Public Resource’s Response

PLAINTIFFS’ OWN COPYRIGHTS IN THE
217 STANDARDS AT ISSUE IN THIS
MOTION

ASTM’s Copyrighted Works

1. Plaintiffs Own Copyrights In The 217
Standards At Issue In This Motion.2 ASTM has
obtained copyright registration certificates that
cover its 191 standards at issue in this motion.
Declaration of Jane W. Wise, filed concurrently
herewith, (“Wise Decl.”) ¶¶ 2, 31-149, Exs. 30148; Declaration of Thomas O’Brien, previously
filed at Dkt. 118-7, (“O’Brien Decl.”) ¶¶ 5-12,
Exs. 1-4.

2

Disputed. Plaintiffs do not own copyrights in
the 217 standards at issue in Plaintiffs’ motion.
Plaintiffs did not draft the standards—
volunteers did. SSSMF ¶ 184. The standards
are not works made for hire, refuting the basis
for ownership asserted in Plaintiffs’ copyright
registrations. Plaintiffs did not obtain valid
copyright assignments for the standards. And
although Plaintiffs now attempt to assert that
the standards are joint works and that they are
joint owners of the copyrights, federal
government employees drafted the standards in
the scope of their duties, and so no copyright
ownership can exist in the standards due to 17
U.S.C. 105. Moreover, the standards at issue
are not subject to copyright. SSSMF ¶ 196224.
Disputed. Plaintiffs do not own copyrights in
the 217 standards at issue in Plaintiffs’ motion.
Plaintiffs did not draft the standards—
volunteers did. SSSMF ¶ 184. The standards
are not works made for hire, refuting the basis
for ownership asserted in Plaintiffs’ copyright
registrations. Plaintiffs did not obtain valid
copyright assignments for the standards. And
although Plaintiffs now attempt to assert that
the standards are joint works and that they are
joint owners of the copyrights, federal
government employees drafted the standards in
the scope of their duties, and so no copyright
ownership can exist in the standards due to 17
U.S.C. 105. Moreover, the standards at issue
are not subject to copyright. SSSMF ¶ 196-

The 217 standards at issue in Plaintiffs’ motion for summary judgment are collectively referred
to herein as the “Works” or “Plaintiffs’ Works.”
2

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
224.

2. Specifically, ASTM is the claimant for the
works appearing in Annex A (collectively, the
“ASTM Standards”). Wise Decl. ¶¶ 2, 31-150,
Exs. 30-149; O’Brien Decl. ¶¶ 5- 12, Exs. 1-4.
3. Each and every standard, edition, title, year
of the Annual ASTM Book of Standards
(“BOS”), and copyright registration number
appearing in Annex A is true and correct as
shown in the corresponding exhibits. Wise Decl.
¶¶ 2-150, Exs.1-149; O’Brien Decl. ¶¶ 5-12, Exs.
1-4.

Disputed to the extent that ASTM’s copyright
registrations falsely state that it owns the
copyright to anything other than a thin
compilation of the standards, and disputed to
the extent that ASTM’s copyright registrations
otherwise falsely assert that the standards are
works made for hire. SSSMF ¶ 196-224.

4. The specified edition of each ASTM
Standard identified in Annex A was originally
published in the BOS (identified by year) in the
corresponding row of Annex A. Wise Decl. ¶¶ 233, 35-57, 59-137, 139-150, Exs. 1-32, 34-56,
58-136, 138-149; O’Brien Decl. ¶¶ 7-12, Exs. 34.
5. Each BOS identified in Annex A is the
subject of the copyright registration identified in
the corresponding row of Annex A. Wise Decl.
¶¶ 2-33, 35-57, 59-137, 139-150, Exs. 1-32, 3456, 58-136, 138-149; O’Brien Decl. ¶¶ 7-12,
Exs. 3-4.
6. For each ASTM Standard where no BOS is
identified, the standard is the subject of the
copyright registration identified in the
corresponding row of Annex A. Wise Decl. ¶¶
34, 58, 138, Exs. 33, 57, 137; O’Brien Decl. ¶¶
5-6, Exs. 1-2.
7. The registrations whose numbers appear in
bold Annex A were effective within 5 years of
the date of first publication identified in the
registration certificate. Wise Decl. ¶¶ 2-33, 35-

3

Disputed to the extent that ASTM’s copyright
registrations falsely assert that the standards
are works made for hire or that ASTM owns
any copyright in the standards at issue. SSSMF
¶ 196-224.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

57, 59-65, 67-149, Exs. 1-32, 34-56, 58-148;
O’Brien ¶¶ 7-11, Exs. 3-4.
8. The published version of each ASTM
Standard includes a copyright notice alerting the
public to the fact that the copyright is owned by
ASTM. O’Brien Decl. ¶ 11.

Disputed. The majority of standards that
ASTM published do not bear copyright
notices on each standard. See, e.g., ASTM
A36-1977ae; ASTM D396-1998 (Exhibit 8 to
the O’Brien Declaration, ECF No. 118-7);
ASTM D4329-1999. The exhibits attached to
the O’Brien declaration appear to be more
recent printings of previous ASTM standards
that have subsequently had an ASTM
copyright notice affixed, when no such
copyright notice appeared on earlier
publications of the standard. Compare
O’Brien Exhibit 9 (ASTM D12171993(1998)) with the version of ASTM
D1217-1993(1998) that Public Resource
purchased, scanned, and produced in
discovery. M. Becker Decl. ¶ 149 Ex. 151.
Only in recent years has ASTM affixed a
copyright notice to each ASTM standard.
This copyright notice does not alert the public
(or individuals who participated in the
creation of the standards) what material ASTM
claims copyright over, such as the entire
standard, versus component parts of the
standard, or simply the formatting used for
the final print version. Moreover, this is not a
fact, it is an opinion. Mr. O’Brien lacks
personal knowledge of what information the
public derives from the existence of copyright
notices on ASTM standards, and he is not
qualified as an expert.

NFPA’s Copyrighted Works

Disputed. The NFPA standards at issue are not
subject to copyright.

9. NFPA has obtained copyright registration
certificates for its 23 standards at issue in this
motion, each within five years of publication.
Declaration of Dennis J. Berry, previously filed
at Dkt. 118-3, (“Berry Decl.”) ¶¶ 2-3, Exs. A-B;

Disputed to the extent that NFPA’s copyright
registrations falsely state that the standards are
works made for hire or that NFPA owns any
copyright in the standards at issue. SSSMF
¶ 196-224.

4

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

Supplemental Declaration of James Pauley
Declaration, filed concurrently herewith, (“Supp.
Pauley Decl.”) ¶¶ 6-24, Exs. W-OO (certificates
of registration).
ASHRAE’s Copyrighted Works

Disputed. The ASTM standards at issue are not
subject to copyright.

10. ASHRAE
has
obtained
copyright
registration certificates for its 3 standards at issue
in this motion, each within five years of
publication. Declaration of Stephanie Reiniche,
previously filed at Dkt. 118-10, (“Reiniche
Decl.”) ¶ 15, Exs. 3-5.

Disputed to the extent that ASHRAE’s
copyright registrations falsely state that the
standards are works made for hire or that
ASHRAE properly owns any copyright in the
standards at issue. SSSMF ¶ 196-224.

II.

PRO’S ONGOING INFRINGEMENT OF
Disputed. Public Resource has not infringed
PLAINTIFFS’ WORKS
any works owned by Plaintiffs.
PRO’s Postings To Internet Archive After
Remand From the D.C. Circuit

11. Following the D.C. Circuit remand in July
2018, Defendant Public.Resource.Org (“PRO”)
“reposted the standards at issue . . . to the Internet
Archive” website. Wise Decl. ¶ 165, Ex. 164 at
Interrog. 22.
12. PRO had previously, at the Court’s
suggestion (and prior to the injunction), removed
Plaintiffs’ standards from its website and the
Internet Archive website in November 2015.
SMF ¶ 186.

Disputed but not material. Public Resource
removed the standards at issue because if it did
not, the Court would have instituted a
summary judgment filing schedule in both this
litigation and the sister AERA et al. litigation
that would have made it impossible for Public
Resource to defend itself, relying on pro bono
counsel while the plaintiffs in both cases were
represented by five law firms.

A. PRO Did Not Fix The Errors In Its Disputed for the reasons addressed below.
Versions of Plaintiffs’ Standards
13. During his deposition, Mr. Malamud
claimed that if he were notified of any mistakes,

5

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

he would do a rigorous quality assurance check
and correct any mistakes. SMF ¶ 217 (citing
Declaration of Jordana Rubel, previously filed at
Dkt. 118-12, (“Rubel Decl.”). ¶ 6, Ex. 3 (C.
Malamud Dep. at 140:19-25).
14. Well over three years have passed since Disputed. Mr. Malamud corrected each of the
Plaintiffs notified Mr. Malamud of errors in his errors identified at his deposition and at the
postings. Nonetheless, PRO never corrected deposition of Public Resource. SSSMF ¶ 178.
most of these mistakes, instead reposting
versions of standards which he previously
admitted were not acceptable. SMF ¶ 216 (citing
Rubel Decl. ¶ 6, Ex. 3 (C. Malamud Dep. at
140:19-141:6)).
15. For example, during Mr. Malamud’s
deposition, Plaintiffs notified him that the
HTML version of ASTM D86-07 he had posted
contained a number of errors, including text and
numbers that differ from the information in the
authentic versions of Plaintiffs’ standards. SMF
¶ 215 (citing Rubel Decl. ¶ 6, Ex. 3 (C. Malamud
Dep. at 127:4-139:8)).

Disputed to the extent that these are not errors
in the image that a person reads. These are
instances where the optical character
recognition software that scanned the text
failed to recognize certain characters correctly.
When a sighted person pulls up the page, he or
she will see the correct text, but a computer
may not read it correctly.

16. PRO has not fixed those errors to its HTML Disputed to the extent that these are not errors
version of ASTM D86-07. Wise Decl. ¶ 166, Ex. in the image that a person reads. These are
165.
instances where the optical character
recognition software that scanned the text
failed to recognize certain characters correctly.
When a sighted person pulls up the page, he or
she will see the correct text, but a computer
may not read it correctly.
17. Plaintiffs also alerted PRO to a number of
errors in the HTML posting of the 2011 edition
of the National Electrical Code (“NEC”) that
distort the meaning of substantive provisions of
the standard that were written to protect human
safety and prevent property damage, including
but not limited to erroneously using the letter
“M” (an abbreviation for meters) rather than the
letters “I” and “N” (an abbreviation for inches).

6

Disputed to the extent that these are not errors
in the image that a person reads. These are
instances where the optical character
recognition software that scanned the text
failed to recognize certain characters correctly.
When a sighted person pulls up the page, he or
she will see the correct text, but a computer
may not read it correctly.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

SMF ¶ 219 (citing Declaration of James Pauley
filed at Dkt. 118-8, (“Pauley Decl.”) ¶ 54).
18. PRO has not reposted its version of the
2011 NEC in HTML form, but almost all of
those precise errors remain in its Full Text
posting of the 2011 NEC. Supp. Pauley Decl. ¶
39; Wise Decl. ¶ 167, Ex. 166.

Disputed to the extent that these are not errors
in the image that a person reads. These are
instances where the optical character
recognition software that scanned the text
failed to recognize certain characters correctly.
When a sighted person pulls up the page, he or
she will see the correct text, but a computer
may not read it correctly.

19. PRO has not made meaningful changes to
the process it previously used to rekey text,
convert graphics, reset mathematical formulas or
otherwise make change its quality control
measures. Wise Decl. ¶ 165, Ex. 164 at Interrog.
22.

Disputed. Public Resource provided a fivepage response to Plaintiffs’ interrogatory no.
22, detailing all of the changes that Public
Resource has made to its process and the
documents that it posts online, and linking to
three documents that Public Resource
produced that discuss the process it now uses
for documents it posts online. Dkt. 198-48 at
p. 27-32. Among several issues, Public
Resource described its use of cryptographic
signatures for verification, and its use of errata
for correcting errors that were in the versions
of standards as published by NFPA. Id.

20. PRO acknowledges that Plaintiffs (or
governmental authorities), not PRO, are the
definitive source for accurate copies of the
Plaintiffs’ standards by directing readers “to
check with the standards organizations or
governmental authorities for further information
and access to definitive versions of these
important laws.” See, e.g., Wise Decl. ¶ 168, Ex.
167.

Disputed: Public Resource acknowledges that
Plaintiffs are the definitive source of the
standards, but to the extent the standards have
been corrected or amended without the
corrections or amendments being incorporated
by reference into law they are not definitive
versions of the laws.

A.

PRO Continues To Use
Plaintiffs’ Marks

Disputed to the extent that Plaintiffs refer to
any use other than nominative fair use.

21. PRO stated that it removed all of Plaintiffs’
logos from PRO’s copies of Plaintiffs’ Works.
Wise Decl. ¶ 165, Ex. 164 at Interrog. 22.

7

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

22. As depicted below, PRO has in some
instances “blacked out” Plaintiffs’ logos, but has
typed Plaintiffs’ word marks, combined with the
phrase “Logo Removed,” over the redacted area.

Disputed to the extent that Plaintiffs suggest
that this constitutes a “logo,” or that Public
Resource has engaged in anything other than
nominative fair use by referring to the fact that
it redacted the ASTM logo.

Wise Decl. Wise Decl. 153, Ex. 152 at 180.
23. However, Internet Archive postings show
that not all of Plaintiffs’ logos have been
removed, and PRO has not removed Plaintiffs’
word marks. For example, PRO has not removed
the NEC logo for at least the 2011 and 2014
editions of the NEC or any of the word marks:

Disputed to the extent that the NEC logo is not
a logo of Plaintiffs’ name, and the instances
Plaintiffs complain of are instances where the
logo is used in decorative fashion, not as a
source identifier.

Wise Decl. ¶ 169, Ex. 168; Supp. Pauley Decl. ¶ 32.
24. Similarly, PRO’s Internet Archive postings Disputed to the extent that Plaintiffs have only
continue in some instances to display the ASTM identified a single incident where Public
Logo, as depicted below.
Resource overlooked an ASTM logo.

8

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

Wise Decl. ¶ 166, Ex. 165
25. And even where PRO has redacted the
ASTM logo, PRO has not in any instance
redacted the ASTM word mark. Wise Decl.
¶ 153, Ex. 152.
B.

PRO Changes To Its
“Disclaimers” Are Insufficient

Disputed to the extent that Plaintiffs
incorrectly imply that Public Resource had
said it had redacted ASTM’s name from the
incorporated documents.
Disputed for the reasons addressed below;
moreover, this is argument and not a statement
of fact.

26. PRO’s “disclaimers” take three forms. The
first appears on the cover page of PDF copies of
Plaintiffs’ Works posted by PRO, as depicted
below.

Wise Decl. Wise Decl. ¶ 153, Ex. 152 at 180; Wise Decl. ¶ 168, Ex. 167 at 6.
27. The second disclaimer appears “below the Disputed to the extent that the portion of the
fold” of the Internet Archive webpage; a reader second disclaimer that is visible as soon as the

9

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

must scroll past the PDF copy of the standard to page is loaded depends on the size of the
see the disclaimer at all. Wise Decl. ¶ 168, Ex. viewer’s computer screen and the dimensions
167 at 6.
of the browser window.
28. Finally, PRO’s HTML-format copies of
Plaintiffs’ standards—which are available for
download on the Internet Archive Website—
contain the following “disclaimer,” in the form of
a “PREAMBLE (NOT PART OF THE
STANDARD)”:

Wise Decl. ¶ 166, Ex. 165.
29. This “disclaimer” appears in approximately
the same typeface and size as the rest of the
document. Id.
III.

PRO’S FAILURE TO FOLLOW THE D.C.
CIRCUIT’S DECISION
PRO’s Essentially Did Nothing In Response To
The D.C. Circuit Decision

Disputed. Plaintiffs’ statement is
argumentative and dismisses the work that
Public Resource performed after the Court of
Appeals’ decision.

30. Plaintiffs’ interrogatories asked PRO to
identify the authority and portions of standards
that it contended impose binding legal
obligations; but PRO did not do any analysis to
determine “with specificity each portion(s) of the
Standard at Issue that PRO asserts imposes a
legal obligation on an individual or entity.” See
generally Wise Decl. ¶ 165, Ex. 164 at Interrogs.
17-21.

Disputed. Public Resource identified where in
federal or state regulations each standard at
issue had been incorporated into law in their
entirety (as opposed to incorporations of parts
of those documents), and the complete
document is therefore binding law. Plaintiffs’
interrogatory requests called for legal
conclusions, and although Plaintiffs may
disagree with Public Resource on the scope
and effect of the law, that does not mean that
Public Resource “did not do any analysis.”

31. PRO disavowed any obligation to do any
analysis of the standards to support its fair use
defense: “The entirety of each standard listed [at
issue in this litigation] is incorporated by

Disputed. Public Resource performed an
analysis and determined that where the entire
standard document had been made law through
incorporation, unlike instances where just a

10

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

reference into the law. Public Resource is not an portion of a standard document is made law,
attorney and does not provide legal advice, and then providing the entirety of the law is
cannot provide advice regarding what legal warranted.
obligations an individual or entity may face as a
result of hundreds of different federal, state, and
local laws.” Wise Decl. ¶ 165, Ex. 164 at Interrog.
19.
32. In response to Plaintiffs’ interrogatories
regarding PRO’s basis for copying and
distributing every portion of Plaintiffs’ standards
“verbatim,” PRO explained that “[t]he entirety
of each standard [at issue in this litigation] is
incorporated by reference into the law, and it is
therefore necessary to reproduce the entire
standard verbatim in order to accurately state
what the law is.” Wise Decl. ¶ 165, Ex. 164 at
Interrog. 21.3
A.

PRO Has Failed to Identify
Correct Citations That
Incorporate The Works By
Reference
Incorrect Citations re: ASTM’s Standards

Disputed to the extent that Plaintiffs footnote
no. 3 raises an issue that is not before this
Court. Plaintiffs never asked Public Resource
whether it would post a standard that is
referenced within a standard that is made law
through incorporation, and Public Resource
has never posted a standard on this basis or
asserted that it would.

Disputed. Plaintiffs’ statement is
argumentative and dismisses the work that
Public Resource performed to identify the
incorporations.

33. ASTM standards are reviewed on a 5 year
schedule. Declaration of James Thomas,
previously filed at Dkt. 118-11, (“James Thomas
Decl.”) ¶ 33. ASTM publishes an Annual Book
of ASTM Standards that is composed of a number
of volumes and includes the then-current version
of each of its standards. O’Brien Decl. ¶ 7.
34. Each ASTM standard has a unique
designation comprised of a capital letter
classification A-G which designates the general
classification of the standard (e.g., standards
3

Standards often incorporate other standards by reference. See infra ¶ 69. PRO’s answer does not
explain how it would distinguish between standards that are incorporated by reference directly by
a regulation and the numerous additional standards that are incorporated by reference within the
standards of other related standards.
11

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

beginning with “A” address ferrous metals).
O’Brien Decl. Ex. 3 at 1349.
35. In each serial designation, the number
following the dash indicates the year of original
adoption as a standard, or the year of the
standard’s last revision. Id. Standards that have
been reapproved without change are indicated by
the year of last reapproval in parentheses as part
of the designation number (e.g., C5-79 (1997)
indicates that C5 was reapproved in 1997). Id. A
letter following this number indicates more than
one revision during that year (e.g., A106-04b
indicates the second revision in 2004 to A106).
Id. A superscript epsilon indicates an editorial
change since the last revision or reapproval (e.g.,
A36-97ae1 indicates the first editorial revision of
the 1997 version of A36). Id. If a standard is
written in acceptable metric units, the metric
version is indicated by the letter M (e.g.,
A369M-92 indicates that this version of A389
contains metric units). Id. When ASTM
publishes standards in metric and inch-pound
units it identifies the standard with a dual
designation (e.g., ASTM A369/A369M-92
identifies a dual standard). Id. Regulations like
the Code of Federal Regulations typically
identify ASTM standards according to this
specific designation number. For example, 40
C.F.R. § 114.600 specifies the edition of the
ASTM standards incorporated by reference in 46
C.F.R. § 119.440, including B122/B122M- 95
and B96-93. See 40 C.F.R. § 114.600.
36. As discussed in detail below, PRO has
reproduced and displayed at least 92 standards
that have not been incorporated by the
regulation(s) it identifies in its cover sheets:

12

Disputed. For 75 of the 92 ASTM standards
identified below, Plaintiffs previously admitted
in their response to Public Resource’s
Interrogatory No. 1 that these editions of these
standards were incorporated by reference into
law. Plaintiffs cannot now deny their prior
sworn statement. Incorporations for the
standards at issue can be found at the IBR
Reference Tables at Becker Decl. ¶¶ 56-58,

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
Exs. 89-91.
Plaintiffs appear to be using a sleight of hand.
Because the standards at issue were posted
years ago, before this lawsuit began in 2013,
the citations Public Resource listed on its cover
sheets at the time that it posted the standards
were to earlier versions of the Code of Federal
Regulations. Although those citations may no
longer reflect the current C.F.R., this does not
change the fact that the standards were
incorporated by reference into law. However,
Plaintiffs’ phrasing (“have not been
incorporated”) falsely suggests that these
standards were not incorporated into law, or
that they are not currently incorporated into
law elsewhere.

a. ASTM A36 (1977ae): PRO identifies
24 C.F.R. § 200 as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 1. However, 24 C.F.R. § 200 does not
reference this standard.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

b. ASTM A36/A36M (1997ae1): PRO
identifies 46 C.F.R. § 160.035-3(b)(2) as the
incorporating by reference regulations. Wise
Decl. ¶ 153, Ex. 152 at However, 46 C.F.R.§
160.035 was removed and reserved. See 76 FR
62962, 62975, Oct. 11, 2011.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

c. ASTM A82 (1979): PRO identifies
24 C.F.R. § 200, Subpart S as the incorporating
by reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_ 00092094; Wise Decl. ¶ 165, Ex.
164 at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs

13

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

12. However, 24 C.F.R. § 200, Subpart S does now deny it without explanation. Immaterial:
not reference this standard.
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.
d. ASTM A106/A106 M (2004b): PRO
identifies 49 C.F.R §. 192.113 as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_ 00079099; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19. However,
49 C.F.R. § 192.113 references ASTM A106, not
ASTM A106/A106 M (2004b). And 49 C.F.R. §
192.7, which identifies standards incorpotaed by
reference, references the 2010 version of ASTM
A106/A106 M, not the 2004b version.

Disputed. ASTM A106/A106 M (2004b) is
incorporated by reference at 49 C.F.R. § 192.7
(2010). Immaterial: whether Public Resource
has accurately identified the incorporating
provision does not affect whether it engages in
fair use.

e. ASTM A184 (1979): PRO identifies
24 C.F.R. § 200, Subpart S as the incorporating
by reference regulation. ¶ 153, Ex. 152 at 18.
However, 24 C.F.R. § 200, Subpart S does not
reference this standard.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

f.
ASTM A185 (1979): PRO identifies
24 C.F.R. § 200, Subpart S as the incorporating
by reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_ 00080317; Wise Decl. ¶ 165, Ex.
164 at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
23. However, 24 C.F.R. § 200, Subpart S does
not reference this standard.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

g. ASTM A203/A203 M (1997): PRO
identifies 46 C.F.R. § 54.05-20(b) as the
incorporating by reference regulation. ¶ 153, Ex.
152 at 31. However, 46 C.F.R. § 54.05-20(b)
references ASTM A 203/A 203M-97

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:

14

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

(Reapproved 2007)e1, not ASTM A203/A203 M whether Public Resource has accurately
identified the incorporating provision does not
(1997).
affect whether it engages in fair use.
h. ASTM A242 (1979): PRO identifies
24 C.F.R. § 200, Subpart S as the incorporating
by reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_ 00082342; Wise Decl. ¶ 165, Ex.
164 at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
36. However, 24 C.F.R. § 200, Subpart S does
not reference this standard.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

i.
ASTM A285 (1978): PRO identifies
10 C.F.R. § 440 Appendix A and 24 C.F.R. §
200 Appendix A as the incorporating by
reference regulations. Wise Decl. ¶ 153, Ex. 152
at 40. However, 10 C.F.R. § 440 Appendix A and
24 C.F.R. 200 Appendix A do not reference this
standard.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

j.
ASTM A307 (1978e): PRO identifies
24 C.F.R. § 200, Subpart S and 46 C.F.R. 56.2520(b) as the incorporating by reference
regulation. Wise Decl. ¶ 151, Ex. 150 at PRO_
00082371; Wise Decl. ¶ 165, Ex. 164 at Interrog.
19; Wise Decl. ¶ 153, Ex. 152 at 45. However,
24 C.F.R. § 200, Subpart S does not reference
this standard, and 46 C.F.R. § 56.25-20(b)
references the 1997 version of ASTM A307, not
the 1978e version.

Disputed. ASTM A307 1978 is incorporated
by reference at 24 C.F.R. (Parts 200 to 499)
(2005). ASTM has stated that an “ e ”
designation after the year means a minor, nonsubstantive revision. Immaterial. Whether
Public Resource has accurately identified the
incorporating provision does not affect
whether it engages in fair use.

k. ASTM A325 (1979): PRO identifies
24 C.F.R. § 200, Subpart S as the incorporating
by reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_ 00082401; Wise Decl. ¶ 165, Ex.
164 at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
51. However, 24 C.F.R.§ 200, Subpart S does not
reference this standard.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately

15

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
identified the incorporating provision does not
affect whether it engages in fair use.

l.
ASTM A370-77e2: PRO identifies 49
C.F.R. § 179.102-1(a)(1) as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 62. However, 49 C.F.R. § 179.102-1(a)(1)
incorporates ASTM A370-94 not ASTM A37077e2. 49 C.F.R. § 179.102-1(a)(1).

Disputed. ASTM A370-1977 is incorporated
by reference at 46 C.F.R. § 56.01-1 (1997).
ASTM has stated that an “ e ” designation after
the year means a minor, non-substantive
revision. Immaterial: whether Public Resource
has accurately identified the incorporating
provision does not affect whether it engages in
fair use.

m. ASTM A441-79: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 120. However, 24 C.F.R. § 200, Subpart S does
not reference ASTM A441- 79.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

n. ASTM A449-78a: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 124. However, 24 C.F.R. § 200, Subpart S does
not reference ASTM A449- 78a.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

o. ASTMA475-78(1984)e1:
PRO
identifies 7 C.F.R. § 1755.370(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 131. However, 7 C.F.R.
§ 1755.370(b) incorporates ASTM A476-78, not
ASTM A475-78(1984)e1.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

16

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

p. ASTM A490-79: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00088099; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. 153, Ex. 152 at 138.
However, 24 C.F.R. § 200, Subpart S does not
reference ASTM A490-79.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

q. ASTM A496-78: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 148.
However, 24 C.F.R. § 200, Subpart S does not
reference ASTM A496-78.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

r.
ASTM A497-79: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 155.
However, 24 C.F.R. § 200, Subpart S does not
reference ASTM A497-79.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

s. ASTM A500-78: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 163.
However, 24 C.F.R. § 200, Subpart S does not
reference ASTM A500-78.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

t.
ASTM A501-76: PRO identifies 24 Disputed. In Exhibit A to their response to
C.F.R. § 200, Subpart S as the incorporating by Public Resource’s Interrogatory No. 1 on

17

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00089127; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 171.
However, 24 C.F.R. § 200, Subpart S does not
reference ASTM A501-76.

March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

u. ASTM A502-76: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00090524; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 180.
However, 24 C.F.R. § 200, Subpart S does not
reference ASTM A502-76.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

v. ASTM A514-77: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 186. However, 24 C.F.R. § 200, Subpart S does
not reference ASTM A514- 77.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

w. ASTM A539-90a: PRO identifies 24
C.F.R. § 3280.705(b)(4) as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00091622; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19. However, 24 C.F.R. §
3280.705(b)(4) incorporates ASTM C539-99 not
ASTM C539- 90a. 24 C.F.R. § 3280.705(b)(4).

Disputed. ASTM A539-1990a is incorporated
by reference at 24 C.F.R. § 3280.4 (2004).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

x. ASTM A570-79: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00091642; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 197.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:

18

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

However, 24 C.F.R. § 200, Subpart S does not whether Public Resource has accurately
reference ASTM A570-79.
identified the incorporating provision does not
affect whether it engages in fair use.
y. ASTM A572-79: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Decl. ¶ 153, Ex. 152 at 202.
However, 24 C.F.R. § 200, Subpart S does not
reference ASTM A572- 79.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

z. ASTM A588-79a: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 207. However, 24 C.F.R. § 200, Subpart S does
not reference ASTM A588- 79a.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

aa. ASTM
A611-72(1979):
PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 211. However, 24 C.F.R.
§ 200, Subpart S does not reference ASTM A61172(1979).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

bb. ASTM A615-79: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00091848; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 216.
However, 24 C.F.R. § 200, Subpart S does not
reference ASTM A615-79.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not

19

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
affect whether it engages in fair use.

cc. ASTM A616-79: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 224. However, 24 C.F.R. § 200, Subpart S does
not reference ASTM A616- 79.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

dd. ASTM A617-79: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 232. However, 24 C.F.R. § 200, Subpart S does
not reference ASTM A617- 79.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

ee. ASTM B21-83b: PRO identifies 46
C.F.R. § 56.60-2 as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 246. However, 46 C.F.R. § 56.60-2
incorporates B21-96. Additionally, 46 C.F.R. §
56.60-2 only incorporates this standard with
respect to certain copper alloys addressed in
B21.

Disputed. ASTM B21-1983b is incorporated
by reference at 46 C.F.R. § 56.01-2 (19962008). Immaterial. Whether Public Resource
has accurately identified the incorporating
provision does not affect whether it engages in
fair use.

ff. ASTM B85-84: PRO identifies 46
C.F.R. § 56.60-2 as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 252. However, 46 C.F.R. § 56.60-2
incorporates B85-96. 46 C.F.R. § 56.60-2.
Additionally, 46 C.F.R. § 56.60-2 only
incorporates one table within ASTM B85-96—
table X-2—and states that “[t]ension tests shall
be performed to determine tensile strength, yield
strength, and elongation” in accordance with the
minimum value in X-2. Id. The remainder of the

Disputed. ASTM B85-84 is incorporated by
reference at 46 C.F.R. § 56.01-2 (1997).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

20

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

standard is unnecessary to determine the
minimum value in X-2. Id. Table X-2 also
contains values for sheer strength and fatigue
strength that are unnecessary to understand the
minimum value for the required tension tests. Id.
gg. ASTM B580-79: PRO identifies 49
C.F.R. § 171.7 as the incorporating by reference
regulation. Wise Decl. ¶ 151, Ex. 150 at
PRO_00093063; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 318.
However, 49 C.F.R. § 171.7 incorporates ASTM
B580-79 reapproved in 2000, not ASTM B58079. 49 C.F.R. § 171.7.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

hh. ASTM C5-79(1997): PRO identifies
24 C.F.R. § 200, Subpart S as the incorporating
by reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_00093990; Wise Decl. ¶ 165, Ex.
164 at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
330. However, 24 C.F.R. § 200, Subpart S does
not reference ASTM C5-79.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

ii. ASTM C150-99a: PRO identifies 30
C.F.R. § 250.198 as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 334. However, 30 C.F.R. § 250.198
incorporates ASTM C150-07, not ASTM C15099a. 30 C.F.R. § 250.198.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

jj. ASTM C330-99: PRO identifies 30
C.F.R. § 250.901(a)(18) as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00093937; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 378.
However, 30 C.F.R. § 250.901(a)(18)

Disputed. ASTM C330-1999 is incorporated
by reference at 30 C.F.R. § 250.198 (2007).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

21

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

incorporates ASTM C330-05, not ASTM C33099. 30 C.F.R. § 250.901(a)(18).
kk. ASTM C509-84: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 384. However, 24 C.F.R. § 200, Subpart S
does not reference ASTM C509-84.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

ll. ASTM
C516-80(1996)e1:
PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00094023; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 392. However, 24 C.F.R. § 200,
Subpart S does not reference ASTM C51680(1996)e1.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

mm. ASTM
C549-81(1995)e1:
PRO
identifies 10 C.F.R. § 440, Appendix A as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00094157; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 411. However, 10 C.F.R. § 440,
Appendix A incorporates ASTM C549-81
reapproved in 1986, not ASTM C54981(1995)e1. 10 C.F.R. § 440, Appendix A.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

nn. ASTM
C564-70(1982):
PRO
identifies 24 C.F.R. § 3280.611(d) (5)(iv) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 417. However, 24 C.F.R.
§ 3280.611(d)(5)(iv) incorporates ASTM C56488 not ASTM C564-70(1982). 24 C.F.R.
§ 3280.611(d)(5)(iv).

Disputed. ASTM C564-1970(1976) is
incorporated by reference at 24 C.F.R. (Parts
200 to 499) (2005). The (1982) reissue of that
standard is identical to the 1976 version except
for the number “1982” in the title. Immaterial.
Whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

22

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

oo. ASTM D86-07: PRO identifies 40
C.F.R. § 1065.710 as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00106152; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 423.
However, 40 C.F.R. § 1065.710 incorporates
ASTM D86-12, not ASTM D86-07. 40 C.F.R.
§ 1065.710.

Disputed. ASTM D86-07 is incorporated by
reference at 40 C.F.R. § 80.47(r) (2017).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

pp. ASTM
D512-89(1999):
PRO
identifies 40 C.F.R. § 136.3(a) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00104757; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 466. However, 40 C.F.R.
§ 136.3(a) incorporates ASTM D512a-04,
D512b-04, and D512c-04 not ASTM D51289(1999). 40 C.F.R. § 136.3(a).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

qq. ASTM D814-95: PRO identifies 40
C.F.R. § 1051.245(e)(1) as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00105881; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 493.
However, 40 C.F.R. § 1051.245(e)(1) does not
incorporate ASTM D814-95. 40 C.F.R. §
1051.245(e)(1).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

rr. ASTM D975-07: PRO identifies 40
C.F.R. § 1065.710 as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 517. However, 40 C.F.R. § 1065.710
incorporates ASTM D975-13a, not ASTM
D975-07. 40 C.F.R. § 1065.710.

Disputed. ASTM D975b-2007 is incorporated
by reference at 40 C.F.R. § 1065.1010 (2011).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

ss. ASTM
D1246-95(1999):
PRO Immaterial. Whether Public Resource has
identifies 40 C.F.R. § 136.3(a), Table IB as the accurately identified the incorporating
incorporating by reference regulation. Wise provision does not affect whether it engages in

23

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

Decl. ¶ 153, Ex. 152 at 546. However, 40 C.F.R. fair use.
§ 136.3(a), Table IB incorporates ASTM D124605, not ASTM D1246-95(1999). 40 C.F.R. §
136.3(a), Table IB.
tt. ASTM
D1481-93(1997):
PRO
identifies 40 C.F.R. § 136.3(a), Table IC as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 599. However, 40 C.F.R.
§ 136.3(a), Table IC does not incorporate ASTM
D1481-93(1997). 40 C.F.R. § 136.3(a), Table
IC.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

uu. ASTM D1518-85 (1998)e1: PRO
identifies 46 C.F.R. § 160.174-17(f) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00095007; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 606. However, 46 C.F.R. §
160.174-17(f) incorporates ASTM D1518-85
reapproved in 1990, not ASTM D1518-85
(1998)e1. 46 C.F.R. § 160.174-17(f).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

vv. ASTM D1785-86: PRO identifies 46
C.F.R. § 56.01-2 as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 661. However, 46 C.F.R. § 56.01-2 does not
reference ASTM D1785-86. 46 C.F.R. § 56.012.

Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

ww. ASTM D1890-96: PRO identifies 40
C.F.R. § 136.3(a) as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 678. However, 40 C.F.R. § 136.3(a) does not
reference ASTM D1890-96. 40 C.F.R. §
136.3(a).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

24

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

xx. ASTM D2036-98: PRO identifies 40
C.F.R. § 136.3(a), Table 1B as the incorporating
by reference regulation. Wise Decl. ¶ 153, Ex.
152 at 742. However, 40 C.F.R. § 136.3(a),
Table 1B incorporates a different version of
ASTM D2036. 40 C.F.R. § 136.3(a), Table 1B
incorporates ASTM D2036-09(A) and (B), not
ASTM D2036-98. 40 C.F.R. § 136.3(a), Table
1B.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

yy. ASTM D2163-91 (1996): PRO
identifies 40 C.F.R. § 86.1313-94(f)(3) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 763. However, 40 C.F.R.
§ 86.1313-94 is reserved by 79 FR 23704 and
does not reference ASTM D2163-91 (1996). 40
C.F.R. § 86.1313-94.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

zz. ASTM D2986-95a (1999): PRO
identifies
40
C.F.R.
§ 86.1310
2007(b)(7)(i)(A) as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 861. However, 40 C.F.R. § 86.1310-2007 is
reserved by 79 FR 23704 and does not reference
ASTM D2986-95a (1999). 40 C.F.R. § 86.13102007.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

aaa. ASTM D3120-96: PRO identifies 40
C.F.R. § 80.46(a)(3)(iii) as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00103410; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 868.
However, 40 C.F.R. § 80.46 incorporates a
different version of ASTM D3120. 40 C.F.R. §
80.46 incorporates ASTM D3120- 08, not
ASTM D3120-96. 40 C.F.R. § 80.46.

Disputed. ASTM D3120-1996 is incorporated
by reference at 40 C.F.R. § 80.580(b) (20012003). Immaterial. Whether Public Resource
has accurately identified the incorporating
provision does not affect whether it engages in
fair use.

bbb. ASTM D5257-97: PRO identifies 40 Disputed. In Exhibit A to their response to
C.F.R. § 136.3(a) as the incorporating by Public Resource’s Interrogatory No. 1 on

25

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00104786; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 1017.
However, 40 C.F.R. § 136.3(a) incorporates
ASTM D5257-11, not ASTM D5257-97. 40
C.F.R. § 136.3(a).

March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

ccc. ASTM D5373-93 (1997): PRO
identifies 40 C.F.R. § 75, Appendix G as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00104803; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1025. However, 40 C.F.R. § 75,
Appendix G incorporates a different version of
ASTM D5373. 40 C.F.R. § 75, Appendix G
incorporates ASTM D5373-02 (2007), not
ASTM D5373-93 (1997). 40 C.F.R. § 75,
Appendix G.

Disputed. ASTM D5373-1993 is incorporated
by reference at 40 C.F.R. § 75.6 (2004). The
(1997) reissue that Public Resource posted is
identical except for the date (1997) in the title.
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

ddd. ASTM D5489-96a: PRO identifies
16 C.F.R. § 423.8(g) as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex. 152
at 1031. However, 16 C.F.R. § 423.8(g)
incorporates ASTM D5489-96c, not ASTM
D5489-96a. 16 C.F.R. § 423.8(g).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

eee. ASTM E23-82: PRO identifies 46
C.F.R. § 56.50-105(a)(1)(ii) as the incorporating
by reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_00106690; Wise Decl. ¶ 165, Ex.
164 at Interrog. 19; Wise Decl. ¶ 153, Ex. 152
at
1122. However, 46 C.F.R. § 56.50105(a)(1)(ii) incorporates a different version of
ASTM E23. 46 C.F.R. § 56.50- 105(a)(1)(ii)
incorporates ASTM E23-96, not ASTM E23-82.
46 C.F.R. §§ 56.50-105(a)(1)(ii); 56.01-2(e)(68).

Disputed. ASTM E23-1982 is incorporated by
reference at 46 C.F.R. § 56.01-2 (1997).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

26

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

fff. ASTM E145-94e1: PRO identifies 40
C.F.R. § 63.14 as the incorporating by reference
regulation. Wise Decl. ¶ 151, Ex. 150 at
PRO_00106516; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 1182.
However, 40 C.F.R. § 63.14(h)(103)
incorporates ASTM E145-94 (2001), not ASTM
E145-94e1. 40 C.F.R. § 63.14(h)(103).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

ggg. ASTM E283-91 (1999):
PRO
identifies 10 C.F.R. § 434.402.2 and 24 C.F.R.
§ 200, Appendix A as the incorporating by
reference regulations. Wise Decl. ¶ 151, Ex. 150
at PRO_00106751; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 1223.
However, 10 C.F.R. § 434.402.2 does not
reference ASTM E 283, and 24 C.F.R. § 200,
Appendix A incorporates ASTM E283-91, not
ASTM E283-91 (1999).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

hhh. ASTM E408-71: PRO identifies 16
C.F.R. § 460.5(b) as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00106805; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 1230.
However, 16 C.F.R. § 460.5(b) incorporates
ASTM E408-71, reapproved in 2002, not ASTM
E408-71. 16 C.F.R. § 460.5(b).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

iii. ASTM E424-71: PRO identifies 24
C.F.R. § 200, Subpart S as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00106810; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 1235.
However, 24 C.F.R. § 200, Subpart S does not
reference ASTM E424-71. 24 C.F.R. § 200,
Subpart S.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

27

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

jjj. ASTM E606-80: PRO identifies 24
C.F.R. § 200.946 as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00106820; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 1244.
However, 24 C.F.R. § 200.946 does not
reference ASTM E606-80. 24 C.F.R. § 200.946.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

kkk. ASTM E695-79 (1997)e1: PRO
identifies 24 C.F.R. § 200.946(a)(1)(viii) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00106851; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1273. However, 24 C.F.R. §
200.946(a)(1)(viii) incorporates ASTM E 69579, reapproved in 1991, not ASTM E695-79
(1997)e1. 24 C.F.R. § 200.946(a)(1)(viii).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

lll. ASTM E711-87 (1992): PRO
identifies 40 C.F.R. § 63, Subpart DDDDD,
Table 6 as the incorporating by reference
regulation. Wise Decl. ¶ 151, Ex. 150 at
PRO_00106859; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 1279.
However, 40 C.F.R. § 63, Subpart DDDDD cites
ASTM E711-87, reapproved in 2004, not ASTM
E711-87 (1992). 40 C.F.R. §§ 63, Subpart
DDDDD; 63.14(h)(108).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

mmm.
ASTM E776-87 (1992): PRO
identifies 40 C.F.R. § 63, Subpart DDDDD,
Table 6 as the incorporating by reference
regulation. Wise Decl. ¶ 151, Ex. 150 at
PRO_00106908; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 1300.
However, 40 C.F.R. § 63, Subpart DDDDD,
Table 6 incorporates ASTM E776-87,
reapproved in 2009, not ASTM E776-87 (1992).
40 C.F.R. §§ 63, Subpart DDDDD;
63.14(h)(109).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

28

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

nnn. ASTM E885-88: PRO identifies 40
C.F.R. § 63, Subpart DDDDD, Table 6 as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1308. However, 40
C.F.R. § 63, Subpart DDDDD, Table 6 does not
reference ASTM E885-88. 40 C.F.R. § 63,
Subpart DDDDD, Table 6.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

ooo. ASTM E1337-90 (1996): PRO
identifies 49 C.F.R. §§ 571.105, S6.9.2(a) as the
incorporating by reference regulations. Wise
Decl. ¶ 153, Ex. 152 at 1336. However, 49
C.F.R. §§ 571.105 and 571.5 incorporate ASTM
E1337-90, reapproved in 2008, not ASTM
E1337-90 (1996). 49 C.F.R. §§ 571.105(a), (b);
571.5(d)(39).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

ppp. ASTM F462-79 (1999): PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107383; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19. However,
24 C.F.R. § 200, Subpart S does not reference
ASTM F462-79 (1999). 24 C.F.R. § 200,
Subpart S.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

qqq. ASTM F478-92 (1999):
PRO
identifies 29 C.F.R. § 1910.137(b)(2)(ix) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107415; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1343. However, 29 C.F.R. §
1910.137(b)(2)(ix) incorporates a different
version of ASTM F478. 29 C.F.R. §
1910.137(b)(2)(ix) incorporates ASTM F47809, not ASTM F478-92 (1999).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

29

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

rrr. ASTM F631-80 (1985): PRO
identifies 33 C.F.R. § 156.40 as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1349. However, 33
C.F.R. § 156.40 does not exist; 33 C.F.R. §
156.400 does not reference any ASTM standard,
and 33 C.F.R. § 156.106(e)(1) incorporates a
different version of ASTM F631. 33 C.F.R. §
156.106(e)(1) incorporates ASTM F631-93, not
ASTM F631-80 (1985).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

sss. ASTM F682-82a (1988): PRO
identifies 46 C.F.R. § 56.01-2 as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1361. However, 46
C.F.R. § 56.01-2 incorporates ASTM F682-82a,
reapproved in 2008, not ASTM F682-82a
(1988). 46 C.F.R. § 56.01-2(e)(69).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

ttt. ASTM F715-81 (1986): PRO
identifies 33 C.F.R. § 154.106 as the
incorporating by reference regulations. Wise
Decl. ¶ 153, Ex. 152 at 1368. However, both 33
C.F.R. §§ 155, Appendix B and 154.106
incorporate a different version of ASTM F715.
33 C.F.R. §§ 155, Appendix B and 154.106
incorporate ASTM F715-95, not ASTM F715-81
(1986). 33 C.F.R. §§ 155.140(c)(2); 155,
Appendix B; 154.106(e)(2).

Disputed. ASTM F715-1981 (1986) is
incorporated by reference at 33 C.F.R. §
154.106 (1997-2008). Immaterial. Whether
Public Resource has accurately identified the
incorporating provision does not affect
whether it engages in fair use.

uuu. ASTM F722-82 (1988): PRO
identifies 33 C.F.R. §§ 155.140 as the
incorporating by reference regulations. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107471; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1377. However, 33 C.F.R. §§
155.140 does not reference ASTM F722, and 33
C.F.R. § 154, Appendixes A and B incorporate
ASTM F722-82, reapproved in 2008, not ASTM

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

30

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

F722-82 (1988). 33 C.F.R. § 154, Appendix A,
B; 154.106(e)(3).
vvv. ASTM F808-83 (1988)e1: PRO
identifies 33 C.F.R. § 154, Appendix C, 6.3.1 as
the incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107483; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1389. However, 33 C.F.R. §
154, Appendix C cites, but does not incorporate
by reference, “Item 26 in ASTM F 808.” 33
C.F.R. § 154, Appendix C. ASTM F808-83 is
also not included amongst the ASTM standards
incorporated by reference in 33 C.F.R. §
154.106.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

www.
ASTM F1006-86 (1997): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107009; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1403. However, 46 C.F.R. §
56.60-1(b) incorporates ASTM F1006-86,
reapproved in 2008, not ASTM F1006-86
(1997). 46 C.F.R. §§ 56.60-1(b), 56.60-2(e)(70).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

xxx. ASTM F1007-86 (1996)e1: PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1408. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM F100786, reapproved in 2007, not ASTM F1007-86
(1996)e1. 46 C.F.R. §§ 56.60- 1(b), 56.602(e)(70).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

yyy. ASTM F1020-86 (1996)e1: PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1420. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM F102086, reapproved in 2011, not ASTM F1020-86

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:

31

Plaintiffs’ Statement of Material Facts
(1996)e1.
2(e)(72).

Defendant Public Resource’s Response

46 C.F.R. §§ 56.60- 1(b), 56.01- whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

zzz. ASTM F1120-87 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1424. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM F112087, reapproved in 2010, not ASTM F1120-87
(1998). 46 C.F.R. §§ 56.60-1(b), 56.01-2(e)(73).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

aaaa. ASTM F1121-87 (1998): PRO
identifies 33 C.F.R. § 126.15(a)(5) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107047; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1433. However, 33 C.F.R. §
126.15(a)(5) incorporates ASTM F1121-87,
reapproved in 2010, not ASTM F1121-87
(1998). 33 C.F.R. §§ 126.15(a)(5), 126.5(b).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

bbbb. ASTM F1122-87 (1998): PRO
identifies 33 C.F.R. § 154.500(d)(3) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107055; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1437. However, 33 C.F.R. §
154.500(d)(3) incorporates ASTM F1122-87,
reapproved in 1992, not ASTM F1122-87
(1998). 33 C.F.R. §§ 154.500(d)(3),
154.106(e)(4).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

cccc. ASTM F1123-87 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1451. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM F112387, reapproved in 2010, not ASTM F1123-87
(1998). 46 C.F.R. §§ 56.60-1(b), 56.01-2(e)(74).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately

32

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
identified the incorporating provision does not
affect whether it engages in fair use.

dddd. ASTM F1139-88 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107074; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19. However,
46 C.F.R. § 56.60-1(b) incorporates ASTM
F1139-88, reapproved in 2010, not ASTM
F1139-88 (1998). 46 C.F.R. §§ 56.60-1(b),
56.01-2(e)(75).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

eeee. ASTM F1172-88 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1481. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM F117288, reapproved in 2010, not ASTM F1172-88
(1998). 46 C.F.R. §§ 56.60-1(b), 56.01-2(e)(76).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

ffff. ASTM F1199-88 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1523. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM F119988, reapproved in 2010, not ASTM F1199-88
(1998). 46 C.F.R. §§ 56.60-1(b), 56.01-2(e)(78).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

gggg. ASTM F1200-88 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107162; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19. However,
46 C.F.R. § 56.60-1(b) incorporates ASTM
F1200-88, reapproved in 2010, not ASTM
F1200-88 (1998). 46 C.F.R. §§ 56.60-1(b),
56.01-2(e)(79).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

33

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

hhhh. ASTM F1201-88 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1528. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM F120188, reapproved in 2010, not ASTM F1201-88
(1998). 46 C.F.R. §§ 56.60-1(b), 56.01-2(e)(80).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

iiii. ASTM F1271-90 (1995)e1: PRO
identifies 46 C.F.R. § 39.20-9(c)(1) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00241177; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1534. However, 46 C.F.R. §
39.20-9(c)(1) does not exist, and 46 C.F.R. §
39.2009(a)(3) incorporates a different version of
ASTM F1271. 46 C.F.R. § 39.2009(a)(3)
incorporates a different version of ASTM F1271.
46 C.F.R. § 39.2009(a)(3) incorporates ASTM
F1271-89, not ASTM F1271-90 (1995)e1. 46

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

C.F.R. §§ 39.2009(a)(3), 39.1005(d)(2).
jjjj. ASTM F1273-91 (1996)e1: PRO
identifies 46 C.F.R. § 32.20-10 as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107183; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1540. However, 46 C.F.R. §
32.20-10 incorporates ASTM F1273-91,
reapproved in 2007, not ASTM F1273-91
(1996)e1. 46 C.F.R. §§ 32.20-10, 32.01-1(c)(2).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

kkkk. ASTM F1323-98: PRO identifies 46
C.F.R. § 63.25-9 as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex. 150
at PRO_00107247; Wise Decl. ¶ 165, Ex. 164 at
Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at 1576.
However, 46 C.F.R. § 63.25-9(a) incorporates a
different version of ASTM F1323. 46 C.F.R.

Disputed. ASTM F1323-1998 is incorporated
by reference at 46 C.F.R. § 63.05-1 (2005).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

34

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

§ 63.25-9(a) incorporates ASTM F1323-2001,
not ASTM F1323-98. 46 C.F.R. §§ 63.25-9(a),
63.05-1(d)(1).
llll. ASTM F1471-93: PRO identifies 40
C.F.R. § 86.1310-2007(b)(1)(iv)(B) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1585. However, 40
C.F.R. § 86.1310-2007 is reserved by 79 FR
23704 and does not reference ASTM F1471.
40 C.F.R. § 86.1310-2007.

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

mmmm. ASTM
F1546/F1546M-96:
PRO identifies 46 C.F.R. § 162.027-3(a) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1599. However, 46
C.F.R. § 162.027-3(a) incorporates ASTM
F1546/F1546 M-96, reapproved in 2012, not
ASTM F1546/F1546M-96. 46 C.F.R. §§
162.027-3(a); 162.027-2(b)(1).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

nnnn. ASTM G154-00a: PRO identifies 49
C.F.R. § 571.106, S12.7(b) as the incorporating
by reference regulation. Wise Decl. ¶ 153, Ex.
152 at 1631. However, 49 C.F.R. § 571.106
incorporates ASTM G154-00, not ASTM G15400a. 49 C.F.R. §§ 571.106, 571.5(d)(38).

Disputed. In Exhibit A to their response to
Public Resource’s Interrogatory No. 1 on
March 24, 2014, Plaintiffs identified this
edition of this standard as having been
incorporated by reference into law. Plaintiffs
now deny it without explanation. Immaterial:
whether Public Resource has accurately
identified the incorporating provision does not
affect whether it engages in fair use.

Incorrect Citations re: NFPA’s Standards

Disputed for the reasons addressed below.

37. Additionally, PRO’s posting of the 2000
edition of NFPA 101 states that it is posted “By
Authority of the Code of Federal Regulations: 59
C.F.R. 130.” Wise Decl. ¶ 168, Ex. 167 at 1. The
Code of Federal Regulations, however, currently
spans only Titles 1 to 50; there is no Title 59 See

Disputed to the extent that, although Public
Resource did make an error in its citation,
NFPA 101 2000 is incorporated by reference
in several locations, including 42 C.F.R. §
460.72 (2010), 42 C.F.R. § 483.70 (2011), and
42 C.F.R. § 416.44 (2012). Immaterial.

35

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

Codeof Federal Regulations (Annual Edition), Whether Public Resource has accurately
available at https://www.govinfo.gov/app/ identified the incorporating provision does not
collection/C.F.R.
affect whether it engages in fair use.
38. Similarly, PRO’s postings on the Internet
Archive often point to outdated regulations, with
no information that the regulation has been
superseded. For example, PRO’s posting of the
2005 edition of NFPA 70 says it is posted “By
Authority of the Code of Federal Regulations: 49
C.F.R. 192.189(c).” Wise Decl. ¶ 168, Ex. 167 at
2. That section provides that “[e]lectrical
equipment in vaults must conform to the
applicable requirements of Class 1, Group D, of
the National Electrical Code, NFPA-70
(incorporated by reference, see § 192.7).”
Section 192.7(h), however, incorporates the
2011, not the 2005, edition of NFPA 70. 49
C.F.R. § 192.7(h)(4).

Disputed to the extent that Plaintiffs imply that
laws and regulations that applied in recent
years are no longer relevant, and disputed to
the extent that NFPA 70 2005 is incorporated
by reference at 49 C.F.R. § 192.7 (2009).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

39. Likewise, PRO’s copy of the 2003 NFPA
30 states that it is posted “By Authority of the
Code of Federal Regulations: 49 C.F.R. 192.”
Wise Decl. ¶ 168, Ex. 167 at 3. Section 192.7
of Title 49 incorporates the 2012 edition of
NFPA 30, but not the 2003 edition. 49 C.F.R. §
192.(h)(1).

Disputed to the extent that NFPA 30 2003 is
incorporated by reference at 49 C.F.R. § 192.7
(2009). Immaterial. Whether Public Resource
has accurately identified the incorporating
provision does not affect whether it engages in
fair use.

40. PRO’s posting of the 2005 NFPA 99
contains the same error, telling readers it is
posted “By Authority of the Code of Federal
Regulations: 38 C.F.R. 51.200(b)(4),” Wise
Decl. ¶ 168, Ex. 167 at 4, even though that
section references the 2012 edition of NFPA 99.
38 C.F.R. § 51.200(i)(2)(ii).

Disputed to the extent that Plaintiffs imply that
the citation is in error. NFPA 99 2005 is
incorporated by reference at 46 C.F.R. §
110.10-1 (2009). Immaterial. Whether Public
Resource has accurately identified the
incorporating provision does not affect
whether it engages in fair use.

Incorrect Citations re: ASHRAE’s Standards

Disputed for the reasons addressed below.
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

36

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

41. In addition, PRO’s posting of ASHRAE
Standard 90.1-2004 on the Internet Archive
states that is has been incorporated by reference
in Minnesota, Maine and Nevada, Wise Decl. ¶
170, Ex. 169 at 1, but those states’ codes are
actually based on a different standard, the
International Energy Conservation Code
(“IECC”), for which compliance with ASHRAE
90.1 is just an alternative compliance option,
Wise Decl. ¶ 171, Ex. 170.

Disputed to the extent that Plaintiffs ignore
that ASHRAE 90.1-2004 is incorporated by
reference at 10 C.F.R. § 433.3 (2013).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

42. The same is true with PRO’s posting of
ASHRAE Standard 90.1-2007, which asserts
that the standard has been incorporated in Illinois
and California, ¶ 170, Ex. 169 at 2, which both
have adopted the IECC rather than 90.1 or
created their own codes that are more stringent
than even later versions of 90.1 (that postdate
what PRO has posted), Wise Decl. ¶ 171, Ex.
170.

Disputed to the extent that Plaintiffs ignore
that ASHRAE 90.1-2007 is incorporated by
reference at 10 C.F.R. § 433.3 (2013).
Immaterial. Whether Public Resource has
accurately identified the incorporating
provision does not affect whether it engages in
fair use.

43. PRO’s postings on Internet Archive also
point to instances where the statute or regulation
incorporating the standard triggers an obligation
for a government actor but not for individuals.
For instance, PRO’s postings of ASHRAE 90.12004 and ASHRAE 90.1-2007 both reference 10
C.F.R. § 433.4, which states “[a]ll Federal
agencies shall design new Federal buildings”
that meet the ASHRAE standards, but does not
impose a similar requirement on private actors.
See Wise Decl. ¶ 170, Ex. 169.

Immaterial. Laws that regulate government
actors are equally as relevant as laws that
regulate private persons. The First
Amendment is an example of a “law” that
regulates only government actors.

37

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

B.

PRO Copies and Distributes
Plaintiffs’ Works, Regardless
Of Whether They Are
Essential To Comply With Any
Legal Duty
ASTM Standards (And Portions Thereof) That
Do Not Impose Legal Duties

Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at p. 2 (citing 5 U.S.C. § 552(a)).
The decision as to what material to incorporate
by reference, including the decision as to
whether to incorporate an entire document or
just part of a document, is a decision made by
the regulatory agency. The Director of the
Federal Register then reviews the proposed
incorporation, and either approves or denies
the incorporation. Public Resource therefore
only posted material that federal agencies had
determined was “necessary to understand or
comply with [federal regulations].” Id.

44. Apart from the instances where PRO has
redacted the ASTM logo discussed above, PRO
reproduced and displayed the full text of each of
the ASTM Standards. Wise Decl. ¶¶ 151, 153,
Exs. 150, 152; Rubel Decl. ¶ 5, Ex. 2 (Rule
30(b)(6) Dep. of Public Resource at 158:22159:6).
45. PRO posted in their entirety numerous
standards that are incorporated by regulations in
such a manner as to be optional or references.
For example, 40 C.F.R. § 86.113- 04(a)(1)
incorporates ASTM D86-07, the “Standard Test
Method for Distillation of Petroleum Products
and Liquid Fuels at Atmospheric Pressure.” But
the regulation expressly provides that ASTM
D86 is a mere “reference procedure,” and that
a regulated entity can comply with the codified
requirements by meeting “substantially
equivalent specifications approved by the EPA
Administrator.” See 40 C.F.R. § 86.11304(a)(1).

38

Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at p. 2 (citing 5 U.S.C. § 552(a)).
The decision as to what material to incorporate
by reference, including the decision as to
whether to incorporate an entire document or
just part of a document, is a decision made by
the regulatory agency. That regulatory
agency’s decision must be given deference
over any possible quibble Plaintiffs might have

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
as to whether a portion of an incorporated
document is absolutely necessary to
understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].” Id.
Additionally, D86-07 is mandated by law and
is neither optional nor is it simply a “reference
procedure.” 40 C.F.R. § 80.46(d) states:
"Through December 31, 2015, distillation
parameters must be determined using ASTM
D86. Beginning January 1, 2016, the
distillation parameters must be determined by
a test method approved under § 80.47."
(emphasis added). Additionally, § 80.47
specifically states that the reproducibility (R)
factor equals a specific value which can only
be found in Table 10 of ASTM D86-07 and the
Sc value (average slope or rate of change)
must be calculated according to section 13.2 of
ASTM D86-07. ASTM D86-07 is incorporated
by reference on page 81, Section
80.47. Elsewhere, § 80.128 requires ASTM
D86 or equivalent.
Section 13.2 of ASTM D86-07 concerns
Precision and Bias. Section 13.2 cannot be
read or understood in isolation from the
preceding sections of ASTM D86-07,
including section 3 (terminology), section 5
(significance and use of this test), section 6
(apparatus), section 7 (sampling, storage, and
sample conditioning), section 8 (preparation
of the apparatus), section 9 (calibration and
standardization), section 10 (procedure),
section 11 (calculation), section 12 (reports).

39

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

46. Similarly, PRO identifies 40 C.F.R.
Appendix D to Part 75, the “Optional S02
Emmissional Data Protocol for Gas-Fired and
Oil-Fired Units” as the regulation incorporating
ASTM standard D1217-93, the “Standard Test
Method for Density and Relative Density
(Specific Gravity) of Liquids by Bingham
Pycnometer.” This regulation incorporates the
standard to be optional; Subsection 2.2.4.3(d)
expressly provides an alternative procedure for
sampling oil from shipment tanks or containers
and testing samples for density, of which D121793 is just one. See 40 C.F.R. Appendix D to Part
75.

Disputed. Eeach standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at p. 2 (citing 5 U.S.C. § 552(a)).
The decision as to what material to incorporate
by reference, including the decision as to
whether to incorporate an entire document or
just part of a document, is a decision made by
the regulatory agency. That regulatory
agency’s decision must be given deference
over any possible quibble Plaintiffs might have
as to whether a portion of an incorporated
document is absolutely necessary to
understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].”

47. This is true for other ASTM Works as well. Disputed for the reasons addressed below.
For instance:
a. ASTM F715-95: PRO identifies 33
C.F.R. § 155, Appendix B, 2.4 as the regulation
that incorporates ASTM F715-95, the “Standard
Test Methods for Coated Fabrics Used for Oil
Spill Control and Storage.” Wise Decl. ¶ 153,
Ex. 152 at 1368. This regulation expressly states
that testing must be in accordance with either
ASTM F715 “or other tests approved by the
Coast Guard.”

40

Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at p. 2 (citing 5 U.S.C. § 552(a)).
The decision as to what material to incorporate
by reference, including the decision as to
whether to incorporate an entire document or
just part of a document, is a decision made by

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
the regulatory agency. That regulatory
agency’s decision must be given deference
over any possible quibble Plaintiffs might have
as to whether a portion of an incorporated
document is absolutely necessary to
understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].” IBR Handbook at p. 2
(citing 5 U.S.C. § 552(a)). Immaterial. How
and whether Public Resource has identified an
incorporating provision has no bearing on its
fair use.

b. ASTM F1321-92: PRO identifies 46
C.F.R. § 28.535(d) as the regulation that
incorporates ASTM F1321, the “Standard Guide
for Conducting a Stability Test (Lightweight
Survey and Inclining Experiment) to Determine
Light Ship Displacement and Centers of Gravity
of a Vessel.” Wise Decl. ¶ 153, Ex. 152 at 1546.
This regulation expressly states that ASTM
F1321 “may be used as guidance for any
inclining test or deadweight survey conducted
under this section.”

41

Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” IBR Handbook at p. 2 (citing 5
U.S.C. § 552(a)). The decision as to what
material to incorporate by reference, including
the decision as to whether to incorporate an
entire document or just part of a document, is a
decision made by the regulatory agency. That
regulatory agency’s decision must be given
deference over any possible quibble Plaintiffs
might have as to whether a portion of an
incorporated document is absolutely necessary
to understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].” IBR Handbook at p. 2
(citing 5 U.S.C. § 552(a)). Immaterial. How
and whether Public Resource has identified an
incorporating provision has no bearing on its
fair use.

c. ASTM A369-A369M-92, B42-96,
B68-95, B75-97, B88-96, B111-95, B315-93,
and F1006: PRO identifies 46 C.F.R. § 56.601(b), as the incorporating by reference
regulation. Wise Decl. ¶ 151, Ex. 150 at
PRO_00085147,
PRO_00092176,
PRO_00092980,
PRO_00093012,
PRO_00093103,
PRO_00093196,
PRO_00093301,
and PRO_00107009; Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise Decl.
¶ 153, Ex. 152 at 1403. The regulation contains
a table of acceptable commercial standards from
American National Standards Institute, ASTM,
American Society for Mechanical Engineers,
and several other SDOs that are each considered
to comply with the regulation. 46 C.F.R. § 56.601(b). The regulation also contains a note
indicating that: “The Coast Guard will consider
use of alternative pipes, tubing, and fittings when
it receives certification of their mechanical
properties.” 46 C.F.R. § 56.60-1(b).

Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” IBR Handbook at p. 2 (citing 5
U.S.C. § 552(a)). The decision as to what
material to incorporate by reference, including
the decision as to whether to incorporate an
entire document or just part of a document, is a
decision made by the regulatory agency. That
regulatory agency’s decision must be given
deference over any possible quibble Plaintiffs
might have as to whether a portion of an
incorporated document is absolutely necessary
to understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].” (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)). Immaterial. How
and whether Public Resource has identified an
incorporating provision has no bearing on its
fair use.

48. On numerous occasions, PRO posted entire Disputed for the reasons addressed below.
ASTM Standards, when only a portion of those
standards is actually incorporated by reference
into law. For instance:

42

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

a. ASTM B122/B122M: PRO identifies Disputed. The entire ASTM B122/B122M46 C.F.R. § 119.440 as the incorporating by 1995 is incorporated by reference at 46 C.F.R.
reference regulation, Wise Decl. ¶ 151, Ex. 150 § 58.03-1 (2011):
at PRO_00092264, but that regulation only
incorporates B122/B122M with respect to
46 C.F.R. § 58.03-1, "Incorporation by
copper alloy C71500, one of eleven copper
Reference" (2011):
alloys addressed in the standard. 46 C.F.R. §
119.440. The portions of the standard related to
(a) Certain material is incorporated by
the other ten copper alloys are unnecessary to
reference into this part with the approval
understand the minimum thickness for copper
of the Director of the Federal Register
alloy C71500. See Wise Decl. ¶ 151, Ex. 150 at
under 5 U.S.C. 552(a) and 1 CFR part 51.
PRO_00092264.
To enforce any edition other than that
specified in this section, the Coast Guard
must publish notice
of change in the FEDERAL REGISTER
and the material must be available to the
public. All approved material is available
for inspection at the National Archives and
Records Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030 or
go to
http://www.archives.gov/federallregister/c
odeloflfederallregulations/ibrllocations.ht
ml. This material is also
available for inspection at the U.S. Coast
Guard, Office of Design and Engineering
Standards (CG–521), 2100 2nd St. SW.,
Stop 7126, Washington, DC 20593-7126,
and is available from the sources listed
below.
...
(g) ASTM International (formerly
American Society for Testing and
Materials) (ASTM), 100 Barr Harbor
Drive, West Conshohocken, PA 19428–
2959
...
(3) ASTM B 122/B 122M–95, Standard
Specification for Copper-Nickel-Tin
Alloy, Copper-Nickel-Zinc Alloy (Nickel

43

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
Silver), and Copper-Nickel Alloy Plate,
Sheet, Strip, and Rolled Bar (‘‘ASTM B
122’’), 58.50–5.
Immaterial. How and whether Public
Resource has identified an incorporating
provision has no bearing on its fair use.

b. ASTM B85-96: PRO identifies 46
C.F.R. § 56.60-2 as the incorporating by
reference regulation, Wise Decl. ¶ 153, Ex. 152
at 252, but that regulation only incorporates one
table within ASTM B85-96—table X-2— and
states that “[t]ension tests shall be performed to
determine tensile strength, yield strength, and
elongation” in accordance with the minimum
value in X-2. 46 C.F.R. § 56.60-2. The remainder
of the standard is unnecessary to determine the
minimum value in X-2. See Wise Decl. ¶ 153, Ex.
152 at 252. Table X-2 also contains values for
sheer strength and fatigue strength that are
unnecessary to understand the minimum value
for the required tension tests. Id.

Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” IBR Handbook at p. 2 (citing 5
U.S.C. § 552(a)). The decision as to what
material to incorporate by reference, including
the decision as to whether to incorporate an
entire document or just part of a document, is a
decision made by the regulatory agency. That
regulatory agency’s decision must be given
deference over any possible quibble Plaintiffs
might have as to whether a portion of an
incorporated document is absolutely necessary
to understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].” IBR Handbook at p. 2
(citing 5 U.S.C. § 552(a)).
Immaterial. How and whether Public
Resource has identified an incorporating
provision has no bearing on its fair use.

c. ASTM B283-96: PRO identifies 46 Disputed. Each standard that Public Resource
C.F.R. § 56.60-2 as the incorporating by posts is incorporated into law in its entirety.
reference regulation, Wise Decl. ¶ 151, Ex. 150 The Office of the Federal Register instructs

44

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

at PRO_00092925, but that regulation only
requires that tension tests shall be performed to
determine tensile strength, yield strength, and
elongation with the minimum values listed in
Table 3 of ASTM B283-96. 46 C.F.R. § 56.602. All portions of the standard other than Table 3
are unnecessary to comply with the regulation.
Additionally, Table 3 provides Rockwell
hardness measurements, which are also
unnecessary to understand the minimum value
required for other three measurements. See Wise
Decl. ¶ 151, Ex. 150 at PRO_00092925.

that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at p. 2 (citing 5 U.S.C. § 552(a)).
The decision as to what material to incorporate
by reference, including the decision as to
whether to incorporate an entire document or
just part of a document, is a decision made by
the regulatory agency. That regulatory
agency’s decision must be given deference
over any possible quibble Plaintiffs might have
as to whether a portion of an incorporated
document is absolutely necessary to
understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].” IBR Handbook at p. 2
(citing 5 U.S.C. § 552(a)).
Immaterial. How and whether Public
Resource has identified an incorporating
provision has no bearing on its fair use.

d. ASTM E23: PRO identifies 46 C.F.R.
§ 56.50-105(a)(1)(ii) as the incorporating by
reference regulation, Wise Decl. ¶ 151, Ex. 150
at PRO_00106690, but that regulation requires
testing for low temperature toughness using the
Charpy V-notch specimen as shown in ASTM
E23, Figure 4. 46 C.F.R. 56.50-105(a)(1)(ii).
Only Figure 4—no other part of the standard—is
necessary to determine the low temperature
toughness. Id.

Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at p. 2 (citing 5 U.S.C. § 552(a)).
The decision as to what material to incorporate
by reference, including the decision as to
whether to incorporate an entire document or
just part of a document, is a decision made by
the regulatory agency. That regulatory
agency’s decision must be given deference

45

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
over any possible quibble Plaintiffs might have
as to whether a portion of an incorporated
document is absolutely necessary to
understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].” (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)).
Immaterial. How and whether Public
Resource has identified an incorporating
provision has no bearing on its fair use.

e. ASTM E145-94 (2001): PRO
identifies 40 C.F.R. § 63.14 as the incorporating
by reference regulation, Wise Decl. ¶ 151, Ex.
150 at PRO_00106516, but Appendix A to
Subpart PPPP of 40 C.F.R. § 63.14 references
only forced draft oven types IIA or IIB. 40
C.F.R. § 63.14. The ASTM E145-94 (2001)
standard addresses other types of forced draft
ovens. See Wise Decl. ¶ 151, Ex. 150 at
PRO_001065.

46

Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at p. 2 (citing 5 U.S.C. § 552(a)).
The decision as to what material to incorporate
by reference, including the decision as to
whether to incorporate an entire document or
just part of a document, is a decision made by
the regulatory agency. That regulatory
agency’s decision must be given deference
over any possible quibble Plaintiffs might have
as to whether a portion of an incorporated
document is absolutely necessary to
understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
“necessary to understand or comply with
[federal regulations].” (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)).
Immaterial. How and whether Public
Resource has identified an incorporating
provision has no bearing on its fair use.

49. In addition, PRO posts certain ASTM
Standards in their entirety, despite the fact that
the incorporation by reference has no direct legal
effect on any private party’s conduct. As just one
example, ASTM A307 is incorporated by
reference in 46 C.F.R. § 56.25-20(b), which
governs the design, construction, and installation
of piping systems in marine vessels. The
regulation provides that, with respect to bolts
used in ships’ and barges’ piping systems,
“[w]hen class 250 cast iron flanges are used or
when class 125 cast iron flanges are used with
ring gaskets, the bolting material must be carbon
steel conforming to ASTM A307 (incorporated
by reference, see 46 C.F.R. § 56.01-2), Grade B.”
46 C.F.R. § 56.25-20(b). The persons governed
by the regulation at issue—those who design,
construct and install piping systems in marine
vessels—do not need access to ASTM A307 to
comply with this regulation. They simply have to
purchase bolts that are designated as A307,
Grade B bolts; they do not need to know how to
manufacture such bolts.

Disputed. The complete ASTM A307
document is incorporated into law at 46 C.F.R.
56.01-2. Plaintiffs argue that 46 C.F.R. §
56.25-20(b) does not require those who design,
construct, and install piping systems in marine
vessels to actually read ASTM A307, because
Plaintiffs assert that the regulated individual
can simply outsource this responsibility to a
third party that manufactures bolts. However,
legal responsibility for compliance still rests
on the regulated piping installers, and even if
they choose to trust a third party to
manufacture bolts for their purposes, they still
would require access to ASTM A307 to ensure
for themselves that the bolts they purchase are
in compliance with the regulations.
Immaterial. A law need not have a direct legal
effect on any private party’s conduct. The law
providing for appointment of members of the
Federal Election Commission is a law,
regardless of whether it has a direct legal affect
on any private party’s conduct.

50. ASTM’s standards also contain numerous
non-mandatory portions that are aids or
supplements to the standard. For example,
ASTM’s Manual of Style contains certain
sections that must be included in each ASTM
standard, such as the title of the standard.
O’Brien Decl. Ex. 5 at A-2. Other sections, are
only included when the subject matter is
pertinent to the document. Id.

Disputed to the extent that Plaintiffs imply any
portion of the standards at issue are “nonmandatory” as law. Each standard that Public
Resource posts is incorporated into law in its
entirety. The Office of the Federal Register
instructs that material should only be
incorporated by reference into law “[i]f the
material is necessary to understand or comply
with the regulation.” IBR Handbook at p. 2
(citing 5 U.S.C. § 552(a)). The decision as to
what material to incorporate by reference,
including the decision as to whether to

47

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
incorporate an entire document or just part of a
document, is a decision made by the regulatory
agency. That regulatory agency’s decision
must be given deference over any possible
quibble Plaintiffs might have as to whether a
portion of an incorporated document is
absolutely necessary to understand or comply
with the regulation. After the regulatory
agency determines what material to propose
for incorporation into law, the Director of the
Federal Register then reviews the proposed
incorporation, and either approves or denies
the incorporation. Public Resource therefore
only posted material that federal agencies had
determined was “necessary to understand or
comply with [federal regulations].” IBR
Handbook at p. 2 (citing 5 U.S.C. § 552(a)).

51. ASTM standards may include
following non-mandatory sections:

the Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at p. 2 (citing 5 U.S.C. § 552(a)).
The decision as to what material to incorporate
by reference, including the decision as to
whether to incorporate an entire document or
just part of a document, is a decision made by
the regulatory agency. That regulatory
agency’s decision must be given deference
over any possible quibble Plaintiffs might have
as to whether a portion of an incorporated
document is absolutely necessary to
understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was

48

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
“necessary to understand or comply with
[federal regulations].” IBR Handbook at p. 2
(citing 5 U.S.C. § 552(a)).

a. Appendixes: “Additional information
may be included in one or more annexes or
appendixes . . . . There are times when it is
desirable to include in a specification additional
information for general use and guidance but
which does not constitute a mandatory part of the
[standard]. Id. at B-8.

Disputed for the reasons addressed above at
paragraph 51. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over ASTM’s
opinion.

b. Summary of Changes: Identifies the Disputed for the reasons addressed above at
“location of selected changes to [the] standard paragraph 51. The respective federal agency
since the last issue. . .” Id. at C-3.
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over ASTM’s
opinion.
c. Summary of Test Method: “[a] brief
outline of the test method, describing in the
passive voice its essential features without the
details that are a necessary part of the complete
statement of procedure.” Id. at A-5.

Disputed for the reasons addressed above at
paragraph 51. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over ASTM’s
opinion.

d. Significance and Use: “[i]nclude in Disputed for the reasons addressed above at
this section information that explains the paragraph 51. The respective federal agency

49

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

relevance and meaning of the test. State the determined that the entire standard was
practical uses for the test and how it is typically “necessary to understand or comply with [the
employed.” Id.
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over ASTM’s
opinion.
e. Supplementary
requirements:
“These should not include statements that would
allow the lowering of minimum requirements of
the standard . . . . Usually these only apply when
specified by the purchaser in the purchase order
or contract.” Id. at B-7.

52. There are 61 ASTM standards at issue in this
motion that contain appendixes. Wise Decl. at
¶ 148, Ex. 149.

50

Disputed for the reasons addressed above at
paragraph 51. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over ASTM’s
opinion.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

53. There are 13 ASTM standards at issue in
this motion that contain a summary of changes.
Wise Decl. ¶ 148, Ex. 149.

54. There are 65 ASTM standards at issue in
this motion that contain a summary of test
method section. Wise Decl. ¶ 148, Ex. 149.

51

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

55. There are 95 ASTM standards at issue in
this motion that contain a significance and use
section. Wise Decl. at Ex ¶ 148, Ex. 149.

52

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

53

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

54

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

56. There are 23 ASTM standards at issue in
this motion that contain a supplementary
requirements section. Wise Decl. ¶ 148, Ex. 149.

NFPA Standards (and Portions Thereof) That
Do Not Impose Legal Duties
57. Each of NFPA’s 23 standards at issue in this
case include sections that are optional, or
permissive, designated by the language “shall be
permitted” or “shall not be required.” As
explained in the 2014 NEC: “Permissive rules of
this Code are those that identify actions that are
allowed but not required, are normally used to
describe options or alternative methods, and are
characterized by the use of the terms shall be
permitted or shall not be required.” Supp. Pauley
Decl. ¶ 27, Ex. P (NFPA 70, 2014 ed.) at art.
90.5(B) (NFPA-PR0098088) (emphasis added).
An example of such an optional rule is article
324.56(A) of the 2014 NEC regarding FCC
Systems Alterations, which states “Alterations to
FCC systems shall be permitted.” Id. Ex. P at art.
324.56(A) (NFPA-PR0098260).

55

Disputed for the reasons addressed in
paragraph 57 below.
Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” IBR Handbook at p. 2 (citing 5
U.S.C. § 552(a)). The decision as to what
material to incorporate by reference, including
the decision as to whether to incorporate an
entire document or just part of a document, is a
decision made by the regulatory agency. That
regulatory agency’s decision must be given
deference over any possible quibble Plaintiffs
might have as to whether a portion of an
incorporated document is absolutely necessary
to understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
Resource therefore only posted material that
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].” IBR Handbook at p. 2
(citing 5 U.S.C. § 552(a)).

58. Similar optional provisions appear
throughout the standards. See Supp. Pauley Decl.
Ex. A (NFPA 1, 2003 ed.) at ch. 10.13.3.10 at 149 (NFPA-PR0013107); Ex. B (NFPA 1, 2006
ed.) at ch. 20.5.2.3.2 at 1-139 (NFPAPR0013654); Ex. C (NFPA 10, 2002 ed.) at ch.
6.1.6 at 10-12 (NFPA-PR0014084); Ex. D
(NFPA 11, 2005 ed.) at ch. 6.10.2.3 at 11-25
(NFPA- PR0014167); Ex. E (NFPA 12, 2005
ed.) at ch. 4.3.3.1.2 at 12-8 (NFPA-PR0014251);
Ex. F (NFPA 13, 2002 ed.) at ch. 9.2.4.2 at 1385 (NFPA-PR0014394); Ex. G (NFPA 25, 2002
ed.) at ch. 13.2.3.3 at 25-40 (NFPAPR0020279); Ex. H (NFPA 30, 2003 ed.) at ch.
7.3.7.7 at 30-64 (NFPA-PR0014720); Ex. I
(NFPA 54 (2006 ed.) at ch. 5.3.2.2 at 54-17
(NFPA-PR0014807); Ex. J (NFPA 58, 2001 ed.)
at ch. 8.2.2.6 at 58-60 (NFPA-PR0015018); Ex.
K (NFPA 58, 2004 ed.) at ch. 5.7.1.4(C) at 58-15
(NFPA-PR0015096); Ex. L (NFPA 59, 2004 ed.)
at ch. 5.5.2.6 at 59-13 (NFPA-PR0015228); Ex.
M (NFPA 70, 1999 ed.) at ch. 240-23 at 70-76
(NFPA-PR0015342); Ex. N (NFPA 70, 2005
ed.) at ch. 504.70 at 70-369 (NFPAPR0016284); Ex. O (NFPA 70, 2008 ed.) at ch.
517.77 at 70-441 (NFPA-PR0017137); Ex. P
(NFPA 70, 2014 ed.) at ch. 324.56(A) at 70- 197
(NFPA-PR0098260); Ex. Q (NFPA 72, 2002 ed.)
at ch. 11.3.7 at 72-105 (NFPA-PR0018525); Ex.
R (NFPA 99, 2005 ed.) at ch. 11.7.2.4 at 99-104
(NFPA-PR0018791); Ex. S (NFPA 101, 2000
ed.) at ch. 13.7.4.4.3 at 101-123 (NFPAPR0019081); Ex. T (NFPA 101, 2003 ed.) at ch.
7.5.4.1.3 at 101-65 (NFPA-PR0019422); Ex. U
(NFPA 101, 2006 ed.) at ch. 36.4.4.3.1 at 101268 (NFPA- PR0020039); Ex. V (NFPA 704,
2007 ed.) at ch. 4.1.5 at 704-5 (NFPA-

56

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over NFPA’s
opinion.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

PR0020217); Dubay Decl. Ex. A (NFPA 70,
2011 ed.) at ch. 610.43(B) at 70-531 (NFPAPR0018069).
59. Each of NFPA’s 23 standards at issue,
provide that the specific provisions of the NFPA
standard are not the only way to comply with the
law, using language that expressly allows for
other materials and methods for compliance that
would be acceptable to the authority having
jurisdiction. See, e.g., Supp. Pauley Decl. Ex. I
(NFPA 54, 2006 ed.) at ch. 1.4 at 54-8 (NFPAPR0014798) (“The provisions of this code are
not intended to prevent the use of any material,
method of construction, or installation procedure
not specifically prescribed by this code, provided
any such alternative is acceptable to the authority
having jurisdiction.”).
60. Similar optional provisions appear
throughout the standards. See Supp. Pauley Decl.
¶ 26; Ex. A (NFPA 1, 2003 ed.) at ch. 1.4
(NFPA-PR0013044); Ex. B (NFPA 1, 2006 ed.)
at ch. 1.4 (NFPA-PR0013527); Ex. C (NFPA 10,
2002 ed.) at ch. 1.2.1 (NFPA-PR0014076); Ex.
D (NFPA 11, 2005 ed.) at ch. 1.5 (NFPAPR0014147); Ex. E (NFPA 12, 2005 ed.) at ch.
1.2.2 (NFPA-PR0014247); Ex. F (NFPA 13,
2002 ed.) at ch. 1.5 (NFPA-PR0014320); Ex. G
(NFPA 25, 2002 ed.) at ch. 1.3 (NFPAPR0020244); Ex. H (NFPA 30, 2003 ed.) at
ch. 1.5 (NFPA- PR0014664); Ex. I (NFPA 54,
2006 ed.) at ch. 1.4 (NFPA-PR0014798); Ex. J
(NFPA 58, 2001 ed.) at ch. 1.1.3 (NFPAPR0014963); Ex. K (NFPA 58, 2004 ed.) at ch.
1.5 (NFPA-PR0015087); Ex. L (NFPA 59, 2004
ed.) at ch. 1.4 (NFPA-PR0015220); Ex. M
(NFPA 70, 1999 ed.) at art. 90- 4 (NFPAPR0015285); Ex. N (NFPA 70, 2005 ed.) at art.
90-4 (NFPA-PR0015939); Ex. O (NFPA 70,
2008 ed.) at art. 90-4 (NFPA-PR0016718); Ex. P
(NFPA 70, 2014 ed.) at art. 90-4 (NFPAPR0098088); Ex. Q (NFPA 72, 2002 ed.) at ch.

57

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over NFPA’s
opinion.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

1.5 (NFPA-PR0018433); Ex. R (NFPA 99, 2005
ed.) at ch. 1.4 (NFPA-PR0018700); Ex. S (NFPA
101, 2000 ed.) at § 1.5 (NFPA-PR0018981); Ex.
T (NFPA 101, 2003 ed.) at ch. 1.4 (NFPAPR0019378); Ex. U (NFPA 101, 2006 ed.) at ch.
1.4 (NFPA-PR0019793); Ex. V (NFPA 704,
2007 ed.) at ch. 1.5 (NFPA-PR0020216); Dubay
Decl. Ex. A (NFPA 70, 2011 ed.) at art. 90.4
(NFPA-PR0017560).
61. All 23 of NFPA’s standards include specific
portions of text that do not necessarily set forth
any binding legal obligation. See Supp. Pauley
Decl. ¶¶ 25-29. More specifically, these portions
include the following:

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over NFPA’s
opinion.
Additionally, it is unclear from Plaintiffs’
statement “portions of text that do not
necessarily set forth any binding legal
obligations,” whether Plaintiffs actually
contend that these portions of the standards are
or are not binding. If Plaintiffs themselves
cannot make up their minds on this point, it is
unlikely that a lay citizen could reasonably
determine that he or she was not obligated to
comply with or understand these provisions.

62. Prefatory Notices: All 23 of the NFPA
standards include prefatory notices, disclaimers
and copyright information, such as a “Notice and
Disclaimer of Liability Concerning the Use of
NFPA Documents.” Supp. Pauley Decl. ¶ 28(a),
Ex. A (NFPA 1, 2003 ed.) at NFPAPR0013033-34; Ex. B (NFPA 1, 2006 ed.) at
NFPA-PR0013514-15; Ex. C (NFPA 10, 2002
ed.) at NFPA-PR0014071-72; Ex. D (NFPA 11,

58

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

2005 ed.) at NFPA-PR0014141-42; Ex. E determination is due deference over NFPA’s
(NFPA 12, 2005 ed.) at NFPA-PR0014242-43; opinion.
Ex. F (NFPA 13, 2002 ed.) at NFPAPR0014308-09; Ex. G (NFPA 25, 2002 ed.) at
NFPA-PR0020238-39; Ex. H (NFPA 30, 2003
ed.) at NFPA-PR0014655- 56; Ex. I (NFPA 54,
2006 ed.) at NFPA-PR0014789-90; Ex. J (NFPA
58, 2001 ed.) at NFPA- PR0014957-58; Ex. K
(NFPA 58, 2004 ed.) at NFPA-PR0015080-81;
Ex. L (NFPA 59, 2004 ed.) at NFPAPR0015214-15; Ex. M (NFPA 70, 1999 ed.) at
NFPA-PR0015266-67; Ex. N (NFPA 70, 2005
ed.) at NFPA-PR0015914-15; Ex. O (NFPA 70,
2008 ed.) at NFPA-PR0016695-96; Ex. P
(NFPA 70, 2014 ed.) at NFPA-PR0098062-63;
Ex. Q (NFPA 72, 2002 ed.) at NFPAPR0018419- 20; Ex. R (NFPA 99, 2005 ed.) at
NFPA-PR0018686-67; Ex. S (NFPA 101, 2000
ed.) at NFPA- PR0018957-58; Ex. T (NFPA
101, 2003 ed.) at NFPA-PR0019356-57; Ex. U
(NFPA 101, 2006 ed.) at NFPA-PR0019770-71;
Ex. V (NFPA 704, 2007 ed.) at NFPAPR0020211-12; Dubay Decl. Ex. A (NFPA 70,
2011 ed.) at NFPA-PR0017536-37.
63. History, Development, and Edition
Information: All 23 of the NFPA standards
include a section describing the history and
development of the standard. Supp. Pauley
Decl. ¶ 28(b), Ex. A (NFPA 1, 2003 ed.) at 1-1
(NFPA-PR0013035); Ex. B (NFPA 1, 2006 ed.)
at 1-1 (NFPA-PR0013516-17); Ex. C (NFPA 10,
2002 ed.) at 10-1 (NFPA-PR0014073); Ex. D
(NFPA 11, 2005 ed.) at 11-1 (NFPAPR0014143); Ex. E (NFPA 12, 2005 ed.) at 12-1
(NFPA-PR0014244; Ex. F (NFPA 13, 2002 ed.)
at 13-1 to 13-2 (NFPA-PR0014310-11); Ex. G
(NFPA 25, 2002 ed.) at 25-1 (NFPAPR0020240); Ex. H (NFPA 30, 2003 ed.) at 301 to 30-2 (NFPA-PR0014657-58); Ex. I (NFPA
54, 2006 ed.) at 54-1 to 54-2 (NFPAPR0014791-92); Ex. J (NFPA 58, 2001 ed.) at
58-1 (NFPA-PR0014959); Ex. K (NFPA 58,

59

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over NFPA’s
opinion.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

2004 ed.) at 58-1 (NFPA-PR0015082); Ex. L
(NFPA 59, 2004 ed.) at 59-1 (NFPAPR0015216); Ex. M (NFPA 70, 1999 ed.) at
70-1 (NFPA-PR0015268; Ex. N (NFPA 70,
2005 ed.) at 70-1 (NFPA-PR0015916); Ex. O
(NFPA 70, 2008 ed.) at 70-1 (NFPAPR0016697); Ex. P (NFPA 70, 2014 ed.) at
NFPA-PR0098064; Ex. Q (NFPA 72, 2002 ed.)
at 72-1 (NFPA-PR0018421); Ex. R (NFPA 99,
2005 ed.) at 99-1 (NFPA-PR0018688); Ex. S
(NFPA 101, 2000 ed.) at 101-1 (NFPAPR0018959); Ex. T (NFPA 101, 2003 ed.) at
101-1 (NFPA-PR0019358); Ex. U (NFPA 101,
2006 ed.) at 101-1 (NFPA-PR0019772); Ex. V
(NFPA 704, 2007 ed.) at 704-1 (NFPAPR0020213); Dubay Decl. Ex. A (NFPA 70,
2011 ed.) at NFPA- PR0017538.
64. Reference and Informational Notes: Of
the 23 NFPA standards, 19 also include
informational notes throughout the text that
provide context, background, cross-references,
and other explanatory material, but they do not
set forth any binding legal obligations. Many of
these expressly state that the notes “are
informational only and are not enforceable as
requirements.” E.g., Dubay Decl. Ex. A (NFPA
70, 2011 ed.) at art. 90.5(C) at 70-23 (NFPAPR0017561). For example, NFPA 70 (2011 ed.)
provides the following helpful information:
“Some cleaning and lubricating compounds can
cause severe deterioration of many plastic
materials used for insulating and structural
applications in equipment.” Id. at art. 110.11
(Note 2) at 70-35 (NFPA-PR0017572).
Informational notes appear throughout the main
text of the standards (i.e., not including the
annexes). See, e.g., Supp. Pauley Decl. ¶ 28(c),
Ex. A (NFPA 1, 2003 ed.) at Table 60.2.2.1.(b)
(Note 1) at 1-203 (NFPA-PR0013237); Ex. B
(NFPA 1, 2006 ed.) at Table 60.2.6.5 (Note 1) at
1- 238 (NFPA-PR0013753); Ex. C (NFPA 10,
2002 ed.) at Table 5.3.1 (Notes 1-3) at 10-11

60

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over NFPA’s
opinion.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

(NFPA- PR0014083); Ex. D (NFPA 11, 2005
ed.) at Table 5.2.5.3.4 (Note) at 11-14 (NFPAPR0014156); Ex. E (NFPA 12, 2005 ed.) at
Table 5.3.2.2 (Note) at 12-17 (NFPAPR0014260); Ex. F (NFPA 13, 2002 ed.) at
Table 10.8.3.1.2.2 (Note) at 13-95 (NFPAPR0014404); Ex. G (NFPA 25, 2002 ed.) at
Table 11.1 (Note) at 25-31 (NFPA-PR0020270);
Ex. I (NFPA 54, 2006 ed.) at Table 6.2(f) (Note)
at 54-28 (NFPA-PR0014818); Ex. J (NFPA 58,
2001 ed.) at Table 2.2.2.2 (Notes 1-3) at 58-10
(NFPA-PR0014968); Ex. K (NFPA 58, 2004 ed.)
at Table 5.2.4.2 (Notes) at 58-13 (NFPAPR0015094); Ex. M (NFPA 70, 1999 ed.) at art.
90-2(a)(1) at 70-17 (NFPA-PR0015284); Ex. N
(NFPA 70, 2005 ed.) at art. 230.95(C) (FPN Nos.
1-4) at 70-80 (NFPA-PR0015995); Ex. O (NFPA
70, 2008 ed.) at art. 430.26 (FPN) at 70-306
(NFPA-PR0017002); Ex. P (NFPA 70, 2014 ed.)
at art. 300.20(B) (Informational Note) at 70-151
(NFPA-PR0098214); Ex. Q (NFPA 72, 2002 ed.)
at Table 10.4.2.2 (Note 3) at 72-97 (NFPAPR0018517); Ex. T (NFPA 101, 2003 ed.) at
Table 8.3.4.2 (footnote 2) at 101-72 (NFPAPR0019429); Ex. U (NFPA 101, 2006 ed.) at
Table 8.3.4.2 (footnote†) at 101-77 (NFPAPR0019848); Ex. V (NFPA 704, 2007 ed.) at
Table 5.2 (footnote *) at 704-7 (NFPAPR0020219); Dubay Decl. Ex. A (NFPA 70,
2011 ed.) at art. 505.8 (Informational Note) at
70-402 (NFPA-PR0017939).
65. Diagrams, Figures, and Illustrations: Of
the 23 NFPA standards, 14 also include figures
that illustrate concepts in the text, but that do not
dictate any legal obligations. These include, for
example, Figure 220.1 of the 2011 edition of
NFPA 70, which provides a graphical overview
of the organization of Article 220. See Dubay
Decl. Ex. A (NFPA 70, 2011 ed.) at Figure 220.1
at 70-61 (NFPA-PR0017598). Similar figures
and illustrations appear throughout the text. See,
e.g., Supp. Pauley Decl. ¶ 28(d), Ex. A (NFPA 1,

61

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over NFPA’s
opinion.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

2003 ed.) at Figure 31.3.7.3.3(C) (NFPAPR0013184); Ex. B (NFPA 1, 2006 ed.) at Figure
43.1.4.5.3 at 1-200 (NFPA-PR0013715); Ex. D
(NFPA 11, 2005 ed.) at Figure 5.3.5.3.1 at 11-18
(NFPA-PR0014160); Ex. F (NFPA 13, 2002 ed.)
at Figures 7.7.4.2.1(a), (b) at 13-36 (NFPAPR0014345); Ex. I (NFPA 54, 2006 ed.) at
Figure 12.6.2.1 at 54-85 (NFPA-PR0014875);
Ex. J (NFPA 58, 2001 ed.) at Figure 8.2.10 at
58-63 (NFPA-PR0015021); Ex. M (NFPA 70,
1999 ed.) at Figure 250-2 at 70-81 (NFPAPR0015347); Ex. N (NFPA 70, 2005 ed.) at
Figure 250-126 at 70-113 (NFPA-PR0016028);
Ex. O (NFPA 70, 2008 ed.) at FPN Figures
517.30 Nos. 1 & 2 at 70-431 (NFPAPR0017127); Ex. P (NFPA 70, 2014 ed.) at
Figure 516.4(C)(1) at 70-459 (NFPAPR0098522); Ex. S (NFPA 101, 2000 ed.) at
Figure 7.10.6.2 at 101-67 (NFPA-PR0019025);
Ex. T (NFPA 101, 2003 ed.) at Figure 7.10.6.2.1
at 101-69 (NFPA-PR0019426); Ex. U (NFPA
101, 2006 ed.) at Figure 7.10.6.2.1 at 101-73
(NFPA-PR0019844); Dubay Decl. Ex. A (NFPA
70, 2011 ed.) at Informational Note Figure
505.9(C)(2) at 70-404 (NFPA-PR0017941).
66. Examples: Of the 23 NFPA standards, 18
include lists of examples or illustrative examples
that do not dictate any legal obligations, e.g., a
list of examples of mobile homes not intended as
a dwelling unit. See Dubay Decl. Ex. A (NFPA
70, 2011 ed.) at art. 550.4(A) at 70- 482 (NFPAPR0018019). These examples appear throughout
the text. See, e.g., Supp. Pauley Decl. ¶ 28(e), Ex.
A (NFPA 1, 2003 ed.) at ch. 3.3.61.6 at 1-28
(NFPA-PR0013062); Ex. B (NFPA 1, 2006 ed.)
at ch. 3.3.163 at 1-37 (NFPA-PR0013552); Ex.
D (NFPA 11, 2005 ed.) at ch. 3.3.4 at 11-7
(NFPA-PR0014149); Ex. F (NFPA 13, 2002 ed.)
at ch. 8.16.2.4.7.1 at 13-79 (NFPAPR0014388); Ex. G (NFPA 25, 2002 ed.) at ch.
5.3.3.1 at 25-13 (NFPA-PR0020252; Ex. J
(NFPA 58, 2001 ed.) at ch. 2.2.6.3(1) at 58-12

62

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over NFPA’s
opinion.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

(NFPA-PR0014970); Ex. K (NFPA 58, 2004
ed.) at ch. 5.2.8.2(C)(1) at 58-15 (NFPAPR0015096); Ex. M (NFPA 70, 1999 ed.) at art.
551-73(c) at 70- 419 (NFPA-PR0015685); Ex. N
(NFPA 70, 2005 ed.) at art. 352.26 at 70-191
(NFPA- PR0016106); Ex. O (NFPA 70, 2008
ed.) at art. 518.2(A) at 70-443 (NFPAPR0017139); Ex. P (NFPA 70, 2014 ed.) at art.
551.73(C) at 70-525 (NFPA-PR0098588); Ex. Q
(NFPA 72, 2002 ed.) at ch. 3.3.43.19 at 72-17
(NFPA-PR0018437); Ex. R (NFPA 99, 2005
ed.) at ch. 4.3.3.1.2 at 99- 25 (NFPAPR0018712); Ex. S (NFPA 101, 2000 ed.) at
Table 22.3.8 (footnote ‡) at 101-183 (NFPAPR0019141); Ex. T (NFPA 101, 2003 ed.) at
Table 22.3.8 (footnote ‡) at 101-194 (NFPAPR0019551); Ex. U (NFPA 101, 2006 ed.) at
Table 22.4.4.11 (footnote †) at 101-207 (NFPAPR0019978); Ex. V (NFPA 704, 2007 ed.) at
Table 6.2 at 704-8 to 704-9 (NFPA-PR002022021); Dubay Decl. Ex. A (NFPA 70, 2011 ed.) at
art. 552.47 at 70-508 (NFPA-PR0018045).
67. Informational Annexes: All 23 of the
NFPA standards include informational annexes
that come in a variety of forms. Many are purely
explanatory, e.g., Annex A “Explanatory
Material,” which states “Annex A is not a part of
the requirements of this NFPA document but is
included for informational purposes only. This
annex contains explanatory material numbered
to correspond with the applicable text
paragraphs.” Supp. Pauley Decl. Ex. F at Annex
A (NFPA 13 (2002 ed.)). Some of these are only
binding if specifically incorporated by reference,
e.g.,
Annex
H
“Administration
and
Enforcement,” which states that it is “not a part
of the requirements of this NFPA document and
is included for informational purposes only . . .
unless specifically adopted by the local
jurisdiction adopting the National Electric
Code®.” Id. Ex. P at Annex H (NFPA 70 (2014
ed.)). These examples are not unique, all of the

63

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over NFPA’s
opinion.
Disputed to the extent that Plaintiffs assert that
certain portions are not binding unless
specifically incorporated by reference, when in
fact the regulatory agency has specifically said
that the entire document (which includes
annexes) is incorporated by reference.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

standards include informational annexes. Supp.
Pauley Decl. ¶ 28(f), Ex. A (NFPA 1, 2003 ed.)
at Annexes A-K at 1-320 to 1-449 (NFPAPR0013354-483); Ex. B (NFPA 1, 2006 ed.) at
Annexes A-P at 1-357 to 1-523 (NFPAPR0013872-4038); Ex. C (NFPA 10, 2002 ed.)
at Annexes A-J at 10-17 to 10-53 (NFPAPR0014089-125); Ex. D (NFPA 11, 2005 ed.) at
Annexes A-I at 11-36 to 11-80 (NFPAPR0014178-222); Ex. E (NFPA 12, 2005 ed.) at
Annexes A-H at 12-25 to 12-52 (NFPAPR0014268-95); Ex. F (NFPA 13, 2002 ed.) at
Annexes A-E at 13-198 to 13-315 (NFPAPR0014507-624); Ex. G (NFPA 25, 2002 ed.) at
Annexes A-E at 25-41 to 25-109 (NFPAPR0020280-348); Ex. H (NFPA 30, 2003 ed.) at
Annexes A-H at 30-75 to 30-111 (NFPAPR0014731-67); Ex. I (NFPA 54, 2006 ed.) at
Annexes A-L at 54-111 to 54-151 (NFPAPR0014901-41); Ex. J (NFPA 58, 2001 ed.) at
Annexes A-J at 58-78 to 58-97 (NFPAPR0015036- 15055); Ex. K (NFPA 58, 2004 ed.)
at Annexes A-K at 58-84 to 58-104 (NFPAPR0015165-85); Ex. L (NFPA 59, 2004 ed.) at
Annexes A-F at 59-31 to 59-40 (NFPAPR0015246-55); Ex. M (NFPA 70, 1999 ed.) at
Appendices A-E at 70-571 to 70-619 (NFPAPR0015835-881); Ex. N (NFPA 70, 2005 ed.) at
Annexes A-G at 70-640 to 70-737 (NFPAPR0016555-652); Ex. O (NFPA 70, 2008 ed.) at
Annexes A-H at 70-686 to 70-784 (NFPAPR0017382-480); Ex. P (NFPA 70, 2014 ed.) at
Annexes A-J at 70-772 to 70-867 (NFPAPR0098835-930); Ex. Q (NFPA 72, 2002 ed.) at
Annexes A-F at 72-111 to 72-227 (NFPAPR0018531-647); Ex. R (NFPA 99, 2005 ed.) at
Annexes A-G at 99-124 to 99-238 (NFPAPR0018811-925); Ex. S (NFPA 101, 2000 ed.)
at Annexes A-B at 101-264 to 101-348 (NFPAPR0019222-306); Ex. T (NFPA 101, 2003 ed.)
at Annexes A-B at 101-276 to 101-359 (NFPAPR0019633-716); Ex. U (NFPA 101, 2006 ed.)
at Annexes A-B at 101-301 to 101-389 (NFPAPR0020072-160); Ex. V (NFPA 704, 2007 ed.)

64

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

at Annexes A-G at 704-12 to 704-20 (NFPAPR0020224-32); Dubay Decl. Ex. A (NFPA 70,
2011 ed.) at Informational Annexes A-I at 70727 to 70-829 (NFPA-PR0018264-366).
68. Proposal Forms: NFPA’s standards also
generally include information regarding the
proposal and committee process for NFPA
standards, as well as proposal forms so the reader
can submit suggestions for future editions. This
information and forms do not set forth any
binding legal obligations. Supp. Pauley Decl. ¶
28(g). See, e.g., id. Ex. A (NFPA 1, 2003 ed.) at
NFPA- PR0013508-10; Ex. B (NFPA 1, 2006
ed.) at NFPA-PR0014067-69; Ex. D (NFPA 11,
2005 ed.) at NFPA-PR0014238-40; Ex. E
(NFPA 12, 2005 ed.) at NFPA-PR0014304-06;
Ex. H (NFPA 30, 2003 ed.) at NFPAPR0014785-87; Ex. I (NFPA 54, 2006 ed.) at
NFPA-PR0014953-55; Ex. K (NFPA 58, 2004
ed.) at NFPA-PR0015210-12; Ex. L (NFPA 59,
2004 ed.) at NFPA-PR0015262- 64; Ex. N
(NFPA 70, 2005 ed.) at NFPA-PR0016691-93;
Ex. O (NFPA 70, 2008 ed.) at NFPAPR0017523-34 (and membership information);
Ex. P (NFPA 70, 2014 ed.) at NFPAPR0098986- 89; Ex. R (NFPA 99, 2005 ed.) at
NFPA-PR0018953; Ex. T (NFPA 101, 2003 ed.)
at NFPA- PR0019766-68; Ex. U (NFPA 101,
2006 ed.) at NFPA-PR0020207-09; Ex. V
(NFPA 704, 2007 ed.) at NFPA-PR0020234-36;
Dubay Decl. Ex. A (NFPA 70, 2011 ed.) at
NFPA-PR0018414-17. PRO has posted these
forms as well. See Wise Decl. ¶ 173, Ex. 172.

Disputed for the reasons addressed above at
paragraph 57. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over NFPA’s
opinion.

69. Many standards incorporate other standards Not material. The incorporation of one
by reference, which may in turn reference other standard by another standard is not before this
standards. Supp. Pauley Decl. Ex. B (NFPA 1, Court.
2006 ed.) at ch. 5.3.4 at 1-49 (NFPAPR0013562) (providing that certain structures
must comply with provisions in NFPA 101);
Ex. U (NFPA 101, 2006 ed.) at ch. 9.1.2 at 10184 (NFPA-PRO0019855) (dictating that

65

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

“[e]lectrical wiring and equipment shall
[generally] be in accordance with NFPA 70,
National Electrical Code”).
ASHRAE Standards (and Portions Thereof) That Disputed for the reasons addressed below in
Do Not Impose Legal Duties
paragraph 70.
70. All 3 of ASHRAE’s standards at issue,
which are three different versions of ASHRAE
Standard 90.1, include large portions of the text
that are not necessary for compliance with the
standard and therefore do not set forth any
binding legal obligation in instances where the
standard is incorporated by reference. These
portions include the following:

Disputed. Each standard that Public Resource
posts is incorporated into law in its entirety.
The Office of the Federal Register instructs
that material should only be incorporated by
reference into law “[i]f the material is
necessary to understand or comply with the
regulation.” IBR Handbook at p. 2 (citing 5
U.S.C. § 552(a)). The decision as to what
material to incorporate by reference, including
the decision as to whether to incorporate an
entire document or just part of a document, is a
decision made by the regulatory agency. That
regulatory agency’s decision must be given
deference over any possible quibble Plaintiffs
might have as to whether a portion of an
incorporated document is absolutely necessary
to understand or comply with the regulation.
After the regulatory agency determines what
material to propose for incorporation into law,
the Director of the Federal Register then
reviews the proposed incorporation, and either
approves or denies the incorporation. Public
Resource therefore only posted material that
federal agencies had determined was
“necessary to understand or comply with
[federal regulations].” (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)).

71. Foreword: All 3 of the ASHRAE
standards include a foreword, which does not set
forth any binding legal obligations. In fact, the
forewords open by stating “[t]his foreword is not
part of this standard. It is merely informative and
does not contain requirements necessary for
conformance to the standard.” The forewords go
on to provide, inter alia, historical information

Disputed for the reasons addressed above at
paragraph 70. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of

66

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

about the development of the Standard over time. the regulatory agency, but the agency’s
Declaration of Steve Comstock, previously filed determination is due deference over
at Dkt. 155-5, (“Comstock Decl.”) ¶ 7, Ex. 1 ASHRAE’s opinion.
(ASHRAE 90.1-2004) at 4; Supplemental
Declaration of Stephanie Reiniche (“Supp.
Reiniche Decl.”) ¶ 2, Ex. 1 (ASHRAE 90.12007) at 6, and Ex. 2 (ASHRAE 90.1-2010) at 6.
72. “Informative Appendix E”: All 3 of the
ASHRAE standards include what the standards
refer to as “Informative Appendix E.” The
appendix opens with a disclaimer stating: “This
appendix is not part of this standard. It is merely
informative and does not contain requirements
necessary for conformance to the standard.” The
appendix contains a variety of general
information, including contact information for
certain trade associations that operate in
industries related to the standard. Comstock
Decl. ¶ 7, Ex. 1 (ASHRAE 90.1-2004 at 16566); Supp. Reiniche Decl. ¶ 2, Ex. 1 (ASHRAE
90.1-2007) at 170-71, and Ex. 2 (ASHRAE 90.12010) at 201-02.

Disputed for the reasons addressed above at
paragraph 70. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over
ASHRAE’s opinion.

73. “Informative Appendix F”: All 3 of the
ASHRAE standards include what the standards
refer to as “Informative Appendix F.” The
appendix opens with a disclaimer stating: “This
appendix is not part of this standard. It is merely
informative and does not contain requirements
necessary for conformance to the standard.” The
appendix contains a log tracking changes to the
standard over time. Comstock Decl. ¶ 7, Ex. 1
(ASHRAE 90.1-2004) at 167-69; Supp. Reiniche
Decl. ¶ 2, Ex. 1 (ASHRAE 90.1-2007) at 172-75,
and Ex. 2 (ASHRAE 90.1-2010) at 203-10.

Disputed for the reasons addressed above at
paragraph 70. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over
ASHRAE’s opinion.

74. “Informative Appendix G”: Two of the
ASHRAE standards include what the standards
refer to as “Informative Appendix G.” The
appendix opens with a disclaimer stating: “This
appendix is not part of this standard. It is merely
informative and does not contain requirements

Disputed for the reasons addressed above at
paragraph 70. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and

67

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

necessary for conformance to the standard.” The
appendix contains general information on
multiple different ways to track energy
efficiency with regard to different aspects of
building construction. Comstock Decl. ¶ 7, Ex. 1
(ASHRAE 90.1-2004) at 168-80; Supp.
Reiniche Decl. ¶ 2, Ex. 1 (ASHRAE 90.1-2007)
at 175-185.

approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over
ASHRAE’s opinion.

75. Appendix B and D—Non-U.S. Data in
Accompanying Tables: All 3 of the ASHRAE
standards include an Appendix B and an
Appendix D. The appendices include tables on
general climate data for the United States,
Canada, and various foreign countries.
Comstock Decl. ¶ 7, Ex. 1 (ASHRAE 90.1-2004)
at 110-21, 131-64; Supp. Reiniche Decl. ¶ 2, Ex.
1 (ASHRAE 90.1-2007) at 114-16 and 148-69,
and Ex. 2 (ASHRAE 90.1-2010) at 144-46 and
179-While data about the United States climate
may be helpful to a reader for purposes of
understanding and applying the standards, the
data on foreign climates would not be necessary
for compliance with the standard within the
United States.

Disputed for the reasons addressed above at
paragraph 70. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over
ASHRAE’s opinion.

76. Informational
Notes
and
Policy
Statements: All 3 ASHRAE standards also
include informational notes that have nothing to
do with requirements to comply with the
standards. These include “Instructions For
Submitting a Proposed Change to the Standard,”
a form for submitting proposed changes,
instructions for electronic submission of
comments, a brief description of the ASHRAE
organization, and a “Policy Statement” laying out
ASHRAE’s general position and goals
concerning the environmental impact of its
activities. Comstock Decl. ¶ 7, Ex. 1 (ASHRAE
90.1-2004) at 181-89; Supp. Reiniche Decl. ¶ 2,
Ex. 1 (ASHRAE 90.1-2007) at 189- 92, and Ex.
2 (ASHRAE 90.1-2010) at 225-28.

Disputed for the reasons addressed above at
paragraph 70. The respective federal agency
determined that the entire standard was
“necessary to understand or comply with [the
applicable federal regulation],” and the
Director of the Federal Register reviewed and
approved the incorporation. Plaintiffs may in
their opinion disagree with the assessment of
the regulatory agency, but the agency’s
determination is due deference over
ASHRAE’s opinion.

68

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

IV.

PRO’S CONDUCT HARMS PLAINTIFFS’ Disputed for the reasons addressed below.
ACTUAL AND POTENTIAL MARKETS;
AND AN INJUNCTION IS NECESSARY
A.
Plaintiffs Distribute Their
Standards, Provide Free ReadOnly Access, And Other
Informational Resources
Plaintiffs’ Sales, Licensing, and Derivative
Works

77. Plaintiffs sell their standards, including the
Works, in a variety of formats and for a
reasonable cost to industry professionals and
tradespeople (and the companies and
organizations for which they work) who then use
these standards in the course of their business.
Supp. Pauley Decl. ¶¶ 34, 43; Reiniche Decl.,
¶¶ 17-18; James Thomas Decl. ¶¶ 45-48; see also
Pauley Decl. ¶ 13; Declaration of James
Golinveaux, filed at Dkt. 118-5 (“Golinveaux
Decl.”) ¶ 10.

Disputed to the extent that Plaintiffs imply
they have copyright ownership of the standards
at issue that have been made law, and disputed
to the extent that Plaintiffs imply that there is
any reasonable price for access to the law.

78. Plaintiffs’ sell their standards individually
for prices that range from $25 to $200, or as a
part of a membership or subscription. Rubel
Decl. ¶ 4, Ex. 1 (Jarosz Rep. ¶¶ 84 (ASTM), 92
(NFPA), 99 (ASHRAE).
79. Plaintiffs depend on the sale of standards to
fuel their overall mission-driving work. The vast
majority of that revenue is from the sale of codes
and standards, including those that have been
incorporated by reference and posted by PRO.
Supp. Pauley Decl. ¶ 33; Supp. Reiniche Decl. ¶
4; James Thomas Decl. ¶¶ 37-38; Rubel Decl. ¶
4, Ex. 1 (Jarosz Rep. ¶¶ 107-08).

69

Disputed and immaterial. The vast majority of
standards that Plaintiffs publish are not
incorporated into law and are not at issue.
Plaintiffs do not identify how much of their
revenue comes from outdated or withdrawn
standards, such as every standard at issue in
this litigation. The majority of Plaintiffs’
revenue from standards comes from the first
year or two that a standard is on the market,
meaning standards that are incorporated into
the law do not produce much revenue for
Plaintiffs because they are typically outdated.
ASHRAE gets very little of its revenue from
the sale of standards compared to other sources

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
of revenue.

80. ASTM sells its standards in books and as
individual standards. Wise Decl. ¶¶ 158-161,
Exs. 157-160. ASTM derives revenue from not
only the initial publication of a given standard but
also from revised, reapproved, and reissued
versions of standards. Id.

Disputed and Immaterial to the extent that
ASTM implies it obtains much revenue from
reapproved or reissued versions of standards,
compared to the first two years after the initial
publication of standards and revised standards.
Disputed also to the extent that Plaintiffs’
general statement concerns the majority of
standards that are not incorporated by
reference into law and therefore not at issue in
this litigation.

81. For example, B580 issued in 1979 has been
reapproved and reissued in its original form
every five years since 1979. Wise Decl. ¶ 160,
Ex. 159. This standard originally appeared in
ASTM’s Annual Book of ASTM Standards in
1980. Wise Decl. ¶ 9, Ex. 8. The latest version of
this standard still appears in ASTM’s 2019
Annual Book of ASTM Standards. Wise Decl.
¶ 156, Ex. 155; Wise Decl. ¶ 161, Ex. 160, at
ASTM103529, Section 02 Volume 05; Wise
Decl. ¶ 159, Ex. 158 at ASTM103291, Section
02 Volume 05.
82. NFPA also earns significant revenue from
licensing its standards to other companies and
organizations to use in their products and
services, for example, derivative works like
checklists based on the standards. Supp. Pauley
Decl. ¶ 36.

Disputed and Immaterial to the extent that
Plaintiffs’ general statement concerns the
majority of standards that are not incorporated
by reference into law and therefore not at issue
in this litigation.

83. Plaintiffs’ revenue from complementary
and downstream products and services like elearning and in person training courses and other
derivative works is also dependent on their
copyrights in their standards because they
market these products as including copies of the
published material. James S. Thomas Decl. ¶¶ 4,
5-9; Rubel Decl. ¶ 4, Ex. 1 (Jarosz Rep. ¶¶ 10911, 145).

Disputed and Immaterial to the extent that
Plaintiffs’ general statement concerns the
majority of standards that are not incorporated
by reference into law and therefore not at issue
in this litigation. Also Disputed to the extent
that Public Resource does not challenge
Plaintiffs’ ability to include copies of standards
along other products and services, and
Plaintiffs have no evidence that they would not

70

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
be able to sell products and services like these
if Public Resource’s activities are deemed a
fair use.

84. As the copyright owners, Plaintiffs’ ability
to include its standards as reference material for
these training courses gives them a competitive
advantage over competitors, such as third-party
training programs. James S. Thomas Decl. ¶ 10.
This advantage is “a significant driver” of these
sources of revenue “is the provision of the
protected publications in, for example, trainings
and seminars.” Rubel Decl. ¶ 4, Ex. 1 (Jarosz
Rep. ¶ 146)).

Disputed and Immaterial. Plaintiffs have a
competitive advantage over other companies
and organizations because they are the official
publishers of the standards at issue, and
industry members look to them as authorities.

85. Plaintiffs also provide read-only access to
the Works—excluding certain of the Works that
are simply not incorporated by reference as
claimed by PRO—on their websites, and
sometimes linked through other websites, such
as local and state government websites. This is
provided at no cost to the user. Supp. Pauley
Decl. ¶¶ 40-41, 44; Reiniche Decl., ¶ 19; O’Brien
Decl. ¶ 60; Wise Decl. ¶ 157, Ex. 156.

Disputed to the extent that Plaintiffs do not
offer read-only access to all standards that
Plaintiffs publish that are incorporated into
law. Also disputed that the read-only access is
provided at no cost to the user. Although a
user does not have an immediate monetary
cost, the user must register, provide personal
details and contact information that is then
used for marketing solicitations, and agree to
adhesive contract terms that include forum
selection and waiver of rights, simply so the
user can read the law (but not copy and speak
the law, which is still prohibited).

86. Plaintiffs’ provision of free read-only
access to and other resources for researching
their standards serves Plaintiffs’ overall missions
by providing a resource for individuals to educate
themselves as to the contents of standards,
including standards that have been incorporated
by reference. Supp. Pauley Decl. ¶ 43, 45; Supp.
Reiniche Decl. ¶ 3; Declaration of James S.
Thomas, dated October 4, 2019, filed
concurrently herewith, (“James S. Thomas
Decl.”) ¶ 12.

71

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

87. Plaintiffs’ provision of free read-only Disputed to the extent
access and research tools also benefits the public,
because they can be sure of the authenticity and
accuracy of the copy of the standard they are
not to provide the
reading. Supp. Reiniche Decl. ¶ 3; O’Brien Decl. public with a readily usable, easy to navigate
¶¶ 52-53; Supp. Pauley Decl. ¶ 39.
means of reading the law. SSSMF ¶ 39.
88. Although industry professionals and
tradespeople who purchase Plaintiffs’ standards
to use in the course of their work might reference
Plaintiffs’ free access websites, the carefully
controlled read-only environment do not provide
a substitute for purchasing a copy of the Works.
James S. Thomas Decl. ¶ 14; Supp. Pauley Decl.
¶ 45. Rather, Plaintiffs’ online copies serve those
“parties that are interested in or affected by
[Plaintiffs’ standards], but who do not
necessarily need a digital or hardcopy of the
standards.” Rubel Decl. ¶ 4, Ex. 1 (Jarosz Rep. ¶
86).

Disputed. Plaintiffs’ read-only environments
do not fully serve the needs of people who are
interested in and affected by the standards,
including those who are subject to the
standards as laws and who are interested in
better understanding and engaging in the laws
by which their government and other entities
operate. Plaintiffs’ reading rooms are userunfriendly and
subject users to a
user interface that is unwieldy, particularly for
lengthy documents such as 800-plus page
standards.

SSMF
¶ 39.
89. Plaintiffs are not harmed by the provision of
these free access websites because the users who
visit them engage with their other products and
services in furtherance of Plaintiffs’ overall
missions and because the read-only format
prevents unauthorized distribution. Supp. Pauley
Decl. ¶ 45; Supp. Reiniche Decl. ¶ 4; James S.
Thomas Decl. ¶ 15.

72

Disputed. Only NFPA has provided an
analysis of the effect of the reading room on its
sales, and that analysis is outdated. If
Plaintiffs’ sales are not cannibalized by their
reading rooms, it is because the reading rooms
are user-unfriendly and hardly usable due to
the
poor user-interface design, and
restrictions on users’ ability to interact with the
law that is posted there. Additionally,
Plaintiffs’ statement that users “engage with
[Plaintiffs’] other product and services”
corresponds to the fact that Plaintiffs use the
personal information of users obtained through
their registration for the reading room, in order
to send marketing communications to them
without their consent. SSSMF ¶ 39.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

90. NFPA has also developed additional
resources for researching that consolidate
information regarding the jurisdictions that have
incorporated NFPA’s standards by reference into
local, state, or federal laws or regulations. These
resources include the NEC Adoptions Map and
CodeFinderTM, which serves the “purpose of
creating general public awareness of some of the
jurisdictions where [AHJs] may require the use
of NFPA codes and/or standards.” Supp. Pauley
Decl. ¶¶ 46-47.

Disputed. The evidence does not establish the
fact, and a review of the sites to which NFPA
refers provide only a marketing benefit to
NFPA without any substantial public benefit.

B.

PRO’s Posting Of Its Versions
Of Plaintiffs’ Works Online Is
Substitutional And Harmful
PRO’s Conduct Threatens Plaintiffs’ Actual and
Derivative Markets

Disputed. Plaintiff have no evidence of harm,
and their claim that Public Resource’s
activities “threaten” the market for their works
and derivative works lacks credibility
considering that Plaintiffs have not adduced
evidence of harm eleven years after Public
Resource first posted one of the standards at
issue. SSSMF ¶ 133-165.

91. The expert report of John Jarosz concluded
that PRO’s activities would threaten the market
both for Plaintiffs’ standards and for derivative
works, including future standards, trainings and
seminars. Rubel Decl. ¶ 4, Ex. 1 (Jarosz Rep. ¶¶
85, 92, 100, 130-49).

Disputed to the extent that Plaintiffs’ expert
John Jarosz predicted that Plaintiffs would be
harmed, yet over four years later Plaintiffs still
have no evidence of harm. Also disputed to
the extent that Mr. Jarosz’ claims were not
based on credible evidence, but were instead
merely parroted the self-serving claims of
Plaintiffs’ executives in a manner that
attempted to dress up Plaintiffs’ executives’
testimony in the cloth of an expert report.
SSSMF ¶ 142-149.

92. Anyone visiting PRO’s postings of the
Works on the Internet Archive website can
download, copy, print, and redistribute the
entirety of Plaintiffs’ Works, which are available
without restriction in multiple formats, such as
Full Text and PDF. Declaration of Christopher
Butler, of Internet Archive (“Butler Decl.”) ¶ 9;
Supp. Pauley Decl. ¶ 31; Wise Decl. ¶ 168, Ex.
167.

Disputed to the extent that Public Resource has
posted only standards that have become laws
by incorporation, not any of Plaintiffs’
standards that are not law.

73

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

93. The individuals and entities who use PRO’s
unrestricted versions of the Plaintiffs’ standards
include the same sorts of industry professionals
and tradespeople, such as engineers, as would
otherwise typically obtain copies of Plaintiffs’
standards directly from Plaintiffs. Wise Decl. ¶
174, Ex. 173 at PRO_00267293 (engineer asking
after remand from the D.C. Circuit, “Does
Friday’s decision mean you can update the
site?”), PRO_00267241 (engineering firm
saying it heard about PRO from a “colleague”
and asking “How might we access the
documents you offer?”); Wise Decl. ¶ 165, Ex.
164 at Interrog. 22.

Disputed. The citations do not establish the
fact claimed. Plaintiffs have no evidence that a
single person who used the documents posted
by Public Resource is “the same sorts of
industry professionals and tradespeople, such
as engineers, as would otherwise typically
obtain copies of Plaintiffs’ standards directly
from Plaintiffs.” Nor do Plaintiffs have any
evidence that a single person who accessed a
document that Public Resource posted would
have purchased the document from Plaintiffs,
but for Public Resource’s posting. Exhibit 173
consists of two emails. One is an email where
an individual from Wichita State University
asked Mr. Malamud about the legal effect of
the Court of Appeals’ decision—it is not a
statement that the person accessed a standard
at issue through Public Resource’s postings, or
that the person would have purchased a
document from Plaintiffs but for Public
Resource’s activities. The other email is the
owner of a small business who states that he is
obligated to follow California as well as other
state law, but “[t]he challenge we have is
ensuring access to relevant, current codes
(whole codes – not just errata) for the states
and municipalities in which we provide our
engineering services.” He then asks Mr.
Malamud to first tell him how Public Resource
does not violate copyright law, and then to tell
him how to access the laws that Public
Resource posts. Public Resource declined to
provide this individual with legal advice, and
as with the other email, there is no statement
that the person accessed a standard at issue
through Public Resource’s postings, or that the
person would have purchased a document from
Plaintiffs but for Public Resource’s activities.
Plaintiffs’ final citation to Wise Decl. ¶ 165,
Ex. 164 at Interrog. 22 appears to be in error
and does not provide any evidence supporting
Plaintiffs’ assertions.

74

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

94. PRO’s versions of Plaintiffs’ standards
compete directly with Plaintiffs’ standards in the
market because if the professionals and
tradespeople are able to access and download
nearly identical standards without cost through
PRO’s postings to the Internet Archive, they will
not buy Plaintiffs’ publications or use their free
access websites. PRO’s postings to the Internet
Archive therefore substitute for both sales of
Plaintiffs’ Works and use of Plaintiffs’ free
access websites. Supp. Pauley Decl. ¶ 35; Supp.
Reiniche Decl. ¶ 5; James S. Thomas Decl. ¶ 16;
Rubel Decl. ¶ 4, Ex. 1 (Jarosz Rep. ¶¶ 109-111,
149).

Disputed. The citations do not establish the
fact claimed. Plaintiffs’ publications and
website have the authority that comes with
being the official publisher of the standards
incorporated into law, and therefore
individuals and businesses that want the
official versions will turn to Plaintiffs, not
Public Resource or any other source.
Moreover, Public Resource does not compete
directly with Plaintiffs because Public
Resource provides access only to law, not to
standards that are not the law, and the
standards at issue are outdated as industry
standards but still relevant as law.
Additionally, Plaintiffs cannot claim harm to
viewership of standards on their reading
rooms, when Plaintiffs’ purpose in setting up
the reading rooms was principally to use them
as argumentative tools for influencing
policymakers to refrain from mandating
disclosure of the standards incorporated into
law. Public Resource’s use does not affect that
purpose.

95. PRO’s
provision
of
unrestricted,
downloadable PDF and HTML copies of
Plaintiffs’ works competes directly with not only
sale of the Works but also ancillary products
such as training courses that include copies of the
Works. James S. Thomas Decl. ¶ 16; Rubel Decl.
¶ 4, Ex. 1 (Jarosz Rep. ¶¶ 131-41, 145-49).

Disputed for the reasons addressed in
paragraph 94. Also disputed because
Plaintiffs, as the official publishers of the
standards, have authority within the relevant
industries that drives sales of ancillary
products and services. Additionally, Plaintiffs
can continue to provide copies of the standards
at issue. Also disputed to the extent that
Plaintiffs imply, without evidence, that they
continue to sell products and services for
outdated standards, such as the standards at
issue, rather than for the most up-to-date
standards.

96. The harm resulting from PRO’s posting and
dissemination of unrestricted copies of ASTM’s
standards for free extends beyond PRO’s impact
on the sale of the same version of the ASTM
work PRO copied. Prior versions of ASTM’s

Disputed. The citations do not establish the
fact claimed. It is not reasonable for Plaintiffs
to assert, without evidence, that trained
industry members who purchase standards that
Plaintiffs publish would settle for outdated

75

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

standards can serve as a substitute for new ones
because significant portions—and in some
instances the entire standard—may remain
unchanged from edition to edition. As a result,
for many users, prior versions of ASTM’s works
may be a perfect or near perfect substitute that
interferes with the market for the current version
of ASTM’s standards. James S. Thomas Decl.
¶ 17.

standards on the hope that some of the
provisions therein might remain unchanged in
the latest versions. Plaintiffs’ sales documents
and Plaintiffs’ admissions indicate that sales of
standards are highest in the one or two years
immediately after the new version is released,
and that industry members therefore do not
wait years until the standard is finally
incorporated into law.

97. A simple comparison between views of
ASTM Standards in the ASTM reading room
and data regarding downloads and access to the
ASTM Standards on the PRO website and the
Internet Archive website shows the damaging
impact on the marketplace for ASTM’s works.
From 2013-2018, ASTM averaged 3,600
standards viewed per year in its Reading Room
across all ASTM standards. Wise Decl. ¶ 158,
Ex. 157 at ASTM103291.

Disputed. The citations do not establish the
fact claimed. ASTM’s low viewership for its
reading room does not show that Public
Resource is having a damaging impact; it
instead proves that ASTM has succeeded in
making its reading room “user-unfriendly” and
as a result citizens cannot rely on it. This is
evidenced by the fact that even during late
2015 through mid-2018 when Public Resource
was subject to the injunction, the viewership
rates were still paltry. Instead, ASTM’s
viewership figures show that Public Resource
has not had an effect on usage of the ASTM
reading room, and it disproves any possible
argument that people would have used
ASTM’s reading room, but for the availability
of standards through Public Resource.
Additionally, Plaintiffs cannot claim harm to
viewership of standards on their reading
rooms, when Plaintiffs’ purpose in setting up
the reading rooms was principally to use them
as argumentative tools for influencing
policymakers to refrain from mandating
disclosure of the standards incorporated into
law. Public Resource’s use does not affect that
purpose.

98. PRO’s reproduction and display of ASTM’s Disputed to the extent that the asserted
Works dwarfs ASTM’s Reading Room “download” and “access” figures do not

76

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

impressions. PRO’s download data and access
data was only available up to 2014. Wise Decl.
¶ 163, Ex. 162 at PRO_00245530; Wise Decl.
¶ 164, Ex. 163 at PRO_00232651; Wise
Decl.¶ 152, Ex. 151.

distinguish actual human downloads or
accesses, as opposed to automated processes
such as web crawlers and bots. Because Public
Resource does not require citizens to provide
their personal information, set up an account,
agree to adhesive terms, or otherwise wall off
the laws that it posts, any automated process
that scans the web, such as search engines, the
Internet Archive, and other indexing tools, will
all cause these figures to increment every time
they check back on a document that Public
Resource has posted. Further disputed to the
extent that Plaintiffs use the term “impact”
where they should instead state “total.”

77

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

78

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

79

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

80

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

99. The cumulative impact of PRO’s
reproduction and display of ASTM’s standards
on its own website and on Internet Archive
represents more than 7 times ASTM’s total
views across all six years combined. Compare
Wise Decl. ¶ 158, Ex. 157 at ASTM103291, with
Wise Decl. ¶ 163, Ex. 162 at PRO_00245530
and Wise Decl. ¶ 164, Ex. 163 at
PRO_00232651.

Disputed. The citations do not establish the
facts claimed. Plaintiffs have no evidence of
any “impact” on their sales or viewership, as
evidenced by the consistently low viewership
figures for the ASTM reading room. ASTM’s
low viewership for its reading room proves
ASTM has succeeded in making its reading
room
and as a result citizens
cannot rely on it. This is evidenced by the fact
that even during late 2015 through mid-2018
when Public Resource was subject to the
injunction, the viewership rates were still
paltry. Instead, ASTM’s viewership figures
show that Public Resource has not had an
effect on usage of the ASTM reading room,
and it disproves any possible argument that
people would have used ASTM’s reading
room, but for the availability of standards
through Public Resource. Additionally,
Plaintiffs cannot claim harm to viewership of
standards on their reading rooms, when

81

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
Plaintiffs’ purpose in setting up the reading
rooms was principally to use them as
argumentative tools for influencing
policymakers to refrain from mandating
disclosure of the standards incorporated into
law. Public Resource’s use does not affect that
purpose.

100. With respect to NFPA, revenue is
somewhat cyclical with publications, but in
recent years, NFPA’s revenue from the sale of
standards has been declining. NFPA attributes
this decline, at least in part, to PRO’s making
copies of NFPA’s standards widely available,
including for use by those same industry
professionals who would otherwise purchase
copies or digital subscription access. Supp.
Pauley Decl. ¶ 38.

Disputed to the extent that NFPA attributes
any decline in its sales to Public Resource’s
activities. NFPA’s sales figures show that its
sales have been in steady decline for years
before Public Resource first posted an NFPA
standard. Becker Decl. Ex. 77. Other than
NFPA’s CEO’s unsupported assertion, NFPA
has no evidence that Public Resource’s
activities have cost it any sales—even though
Public Resource posted its first NFPA standard
in 2008, eleven years ago. Moreover, NFPA is
correct that its sales data shows its sales are
cyclical: sales are highest in the first and
second year of publication, and then decline
steadily. In contrast, the standards at issue are
outdated.

101. NFPA’s licenses likely would lose
significant value if the licensees or their
customers could obtain the same material from
PRO in digital format, without cost, and without
restrictions on further dissemination. Supp.
Pauley Decl. ¶ 36.

Disputed. NFPA’s claim that its licenses
“likely would” lose value is disproven by the
fact that there is no evidence they have lost
value during the first six years that Public
Resource was posting the standards at issue
online “in digital format, without cost, and
without restrictions on further dissemination.”
Nor is there evidence that the value of those
license increased when Public Resource was
enjoined from posting, or that the value again
dropped after the Court of Appeals vacated the
injunction and indicated that posting the law is
likely to be a fair use. In fact, NFPA states
that it 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

82

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
Dep. 140:11–18).

102. A review of the Internet Archive websites
to which PRO posted its versions of Plaintiffs’
Works reveals that the 2011 National Electrical
Code has been “View[ed],” which includes
being accessed or downloaded, 40,151 times
since originally uploaded. Supp. Pauley Decl. ¶
31; Wise Decl. ¶ 168, Ex. 167 at 5. This is an
increase of nearly 10,000 in the 13 months since
PRO has reposted this standard. SMF ¶ 242
(NFPA’s 2011 NEC was downloaded 30,350
times from the Internet Archive website) (citing
Rubel Decl. ¶ 5, Ex. 2 (Rule 30(b)(6) Dep. of
Public Resource at 254:14-256:16)); Rubel Decl.
¶ 43, Ex. 39 (Ex. 51 to Rule 30(b)(6) Dep. of
Public Resource).

Disputed to the extent that the asserted
“View[ed]”, “downloaded”, and “accessed”
figures do not distinguish actual human
downloads or accesses, as opposed to
automated processes such as web crawlers and
bots.

PRO’s Conduct Threatens Further Harm from Disputed for the reasons addressed below.
Widespread Anonymous Dissemination
103. The Internet Archive website is among the
top 300 most-visited websites in the world by
alexa.com rankings and millions of people visit
the Internet Archive every day. See Butler Decl.
¶ 4.
104. Neither PRO nor the Internet Archive keeps
information regarding the individuals and
entities that download and use PRO’s versions of
Plaintiffs’ Works or the reasons that they do so.
PRO has “adopted a policy of not talking to its
users and not answering any questions or asking
questions” of those users regarding Plaintiffs’
Works. Wise Decl. ¶ 165, Ex. 164 at Interrog. 23.
Likewise, the Internet Archive does not keep
records identifying information regarding the
individuals who use or download PRO’s
versions of Plaintiffs’ Standards. Butler Decl.
¶¶ 4, 9 (“as a general matter we avoid keeping
the IP (Internet Protocol) addresses of our
readers” and “[aside from counting the number of

83

Immaterial, but disputed to the extent that
Plaintiffs imply that Public Resource’s and the
Internet Archive’s practice of not
unnecessarily collecting and storing user
information is anything other than a best
practice for treating user information on the
Internet.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

users] Internet Archive does not otherwise
monitor how users view, access, download, or
otherwise use the content posted on the
websites”).
105. Accordingly, PRO’s download information
is under-inclusive because it fails to account for
versions of its standards re-posted by PRO’s
users. For example, Scribd.com is a subscription
service in which users must sign up for premium
access to view beyond the PRO cover page. Wise
Decl. ¶ 155, Ex. 154.

106. The open publishing forum at Scribd.com
contains dozens of ASTM works bearing the
PRO cover sheet. Wise Decl. ¶ 154, Ex. 153.
107. PRO’s postings threaten Plaintiffs’ ability
to control the further dissemination and use of its
standards. Because PRO offers unrestricted and
anonymous access to standards in multiple
formats, Plaintiffs cannot easily track down those
individuals who use PRO’s versions of NFPA’s
standards for their commercial businesses, or for
sale to other individuals and entities. Supp.
Pauley Decl. ¶ 37.

84

Disputed to the extent that Plaintiffs assert they
should have the “ability to control the further
dissemination and use” of the law. Disputed to
the extent that Plaintiffs assert that they
“cannot easily track down those individuals
who use PRO’s versions of NFPA’s standards
for their commercial businesses,” when
Plaintiffs have not shown an attempt to
identify a single such individual or business,
which presumably they would be in a strong
position to investigate by asking their many
thousands of members. Disputed to the extent
that Plaintiffs assert they cannot track
individuals who allegedly sell standards
acquired from the Public Resource website,
when they should be able to do so via a simple

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
Internet search (for instance, by searching for
Plaintiffs’ names and text found in Public
Resource’s disclaimers).

C.

PRO Does Not Make Use of
Internet Archive’s Features
That Would Protect Plaintiffs’
Standards

108. Although Internet Archive has the
functionality to provide access to books through
“borrowing,” which allows registered users to
“borrow books for two weeks, after which the
loaned item expires and is removed from the
user’s device,” PRO does not use this function.
Butler Decl. ¶ 5.
109. Although Internet Archive has the
functionality to offer access to the blind and print
disabled in Digital Accessible Information
System (DAISY) format protected by encryption
and accessible through a key provided by the
Library of Congress National Library Service to
residents of the United States and American
citizens abroad, PRO offers DAISY format
without any encryption. Butler Decl. ¶ 6.
D.

Injunctive Relief Is Necessary

Disputed. Plaintiffs have adduced no evidence
of irreparable harm sufficient to justify an
injunction.

110. PRO has and will continue to post versions
of additional standards owned by Plaintiffs if not
enjoined. For example, PRO posted the 2017
edition of the NEC in January 2019. Supp.
Pauley Decl. ¶ 30; Wise Decl. ¶ 168, Ex. 167 at
6.

Disputed to the extent that Public Resource has
said only that it will post documents that have
been made law. The 2017 edition of the NEC
is now the law of numerous states, as NFPA’s
own materials show.

111. PRO has limited financial resources
available to pay any damages award because it is
dependent on fundraising for it activities. PRO
Answer, Dkt. 21 at ¶¶ 46-47 (“[nearly] all of

Disputed to the extent that Plaintiffs have
failed to enumerate their damages in a way that
shows that Public Resource’s funds are not
sufficient to cover the damages actually

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Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

PRO’s funding comes from charitable attributable to Public Resource’s activities.
donations”). PRO describes itself as a “charity.” Plaintiffs’ statement assumes large but vague
Wise Decl. ¶ 165, Ex. 164 at Interrog. 22.
damages of an amount that somehow outstrips
what is possible to raise through nonprofit
fundraising, without foundation or justification
for that assumption.
112. At the initial summary judgment hearing,
when asked what would be an appropriate
remedy, counsel for PRO responded “I am not
able to say.” Transcript of Hearing on Motion for
Summary Judgment, Dkt. 173 at 133:16
(Sept. 12, 2016).

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Immaterial and Incomplete. Counsel for PRO
also responded: “Let me be clear.
Public.Resource would take direction from this
Court. Logos: yes or no? It doesn't care. It
simply tried to replicate the law which consists
of these documents incorporated by reference.”
Dkt. 173 at 116:22-25.

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.

B9620/00403/FW/11117828.3

87