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 EVIDENTIARY OBJECTIONS IN OPPOSITION TO [198]
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND FOR PERMANENT
INJUNCTION

Defendant-Counterclaimant Public.Resource.Org, Inc. (“Public Resource”) hereby
submits the following objections to evidence on which Plaintiffs rely in their second motion for
summary judgment and for a permanent injunction, Dkt. 198.
I.

STANDARDS FOR ADMISSIBLE EVIDENCE ON A MOTION FOR SUMMARY
JUDGMENT
Trial courts “can only consider admissible evidence in ruling on a motion for summary

judgment.” Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002) (emphasis added); see
also Fed. R. Civ. P. 56(c); Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in the
courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 101). Hearsay,
documents that cannot be authenticated, out-of-context excerpts, and evidence with no
foundation will not suffice, and are not to be considered by the court in ruling on motions for
summary judgment or adjudication. See Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th
Cir. 2001) (consideration of a declaration’s facts not based on personal knowledge was an abuse
of discretion because the facts were inadmissible). Much of the evidence on which Plaintiffs rely
fails to meet the minimum threshold requirements of admissibility, as Public Resource sets forth
below:
A.

Irrelevant Evidence

Irrelevant evidence cannot be considered in summary judgment proceedings. See Fed. R.
Evid. 402; see also U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 608 F.3d 871, 897
(D.C. Cir. 2010) (“To be admitted, evidence must be relevant.”); Smith v. Hughes Aircraft Co.,
22 F.3d 1432, 1439 (9th Cir. 1993) (affirming trial court’s refusal to consider irrelevant evidence
on summary judgment); Uche-Uwakwe v. Shinseki, 972 F. Supp. 2d 1159, 1165 (C.D. Cal. 2013)
(sustaining objection that statement filed in support of motion for summary judgment was
inadmissible for lack of relevance and foundation).

B.

Lack of Personal Knowledge/Foundation

A fact witness may not testify to a matter unless the witness has personal knowledge of
the matter. Fed. R. Evid. 602; Fed. R. Civ. P. 56(c) (“declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated”); U.S. v.
Davis, 596 F.3d 852, 856 (D.C. Cir. 2010) (“The Rules also prohibit a witness from testifying
unless he has personal knowledge of the subject of his testimony.”); Orr, 285 F.3d at 774 & n.9;
Express, LLC v. Fetish Group, Inc., 464 F. Supp. 2d 965, 973 (C.D. Cal. 2006) (“Declarations
submitted in conjunction with summary judgment proceedings must . . . be based on personal
knowledge”). Further, “[a] declarant’s mere assertions that he or she possesses personal
knowledge and competency to testify are not sufficient.” Boyd v. City of Oakland, 458 F. Supp.
2d 1015, 1023 (N.D. Cal. 2006). A declarant must show personal knowledge and competency
“affirmatively,” under Rule 56, for example, by “the nature of the declarant’s position and nature
of participation in matter.” Id.; see also Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018
(9th Cir. 1990) (inferring personal knowledge from affiants’ “positions and the nature of their
participation in the matters to which they swore”). The fact that Public Resource does not object
to the witnesses’ conclusory statements that they have personal knowledge of the facts stated in
their declarations and are competent to testify does not signal Public Resource’s acquiescence
with those assertions. Those assertions are inadequate to show personal knowledge and may be
false.
C.

Improper Lay Testimony on Legal Conclusions or Expert Subject Matter

Legal conclusions are not admissible evidence. See Pierce v. Kaiser Found. Hospitals,
CV 09-03837 WHA, 2010 WL 4590930, at *8 (N.D. Cal. Nov. 4, 2010), aff’d, 470 F. App’x 649
(9th Cir. 2012) (excluding numerous declarant statements containing inadmissible legal
2

conclusions). The Declarants, without any legal expertise, repeatedly state legal conclusions and
the legal effects of documents. See Fed. R. Evid. 701; see also Evangelista v. Inlandboatmen’s
Union of Pac., 777 F.2d 1390, 1398 n.3 (9th Cir. 1985) (lay opinion construing contract
provisions is inadmissible); Pierce, 2010 WL 4590930, at *8 (declaration that opponent
“breached” agreement or “violated” laws is inadmissible legal conclusion).
Only a witness who qualifies as an expert, with the necessary knowledge, skill,
experience, training, or education, may offer testimony requiring scientific, technical, or other
specialized knowledge. Opinion testimony of a lay person is inadmissible. Fed. R. Evid. 701,
702; see also United States v. Hampton, 718 F.3d 978, 981–82 (D.C. Cir. 2013) (error for district
court to allow FBI agent to testify as a lay witness in the form of an opinion without an
applicable exception in Rule 701); U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc.,
296 F. Supp. 2d 1322, 1331 (S.D. Ala. 2003) (unqualified expert opinions inadmissible at
summary judgment).
The “proponent of the expert bears the burden of demonstrating that the expert is
qualified.” Gable v. Nat’l Broad. Co., 727 F. Supp. 2d 815, 833 (C.D. Cal. 2010), aff’d, 438 F.
App’x 587 (9th Cir. 2011) (citing United States v. 87.98 Acres of Land More or Less in the
County of Merced, 530 F.3d 899, 904-05 (9th Cir. 2008)). See also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-48 (1999) (expert must have specialized knowledge).
Improper lay opinion includes unsupported, speculative, and conclusory statements.
These statements and claims and arguments of opposing parties and their attorneys are not
evidence and do not raise a genuine issue of material fact to preclude summary judgment.
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990) (The purpose of Rule 56(e) is “not to
replace conclusory allegations of the complaint with conclusory allegations of an affidavit.”).

3

Instead, “[w]here the moving party will have the burden of proof at trial, it must affirmatively
demonstrate that no reasonable trier of fact could find other than for the moving party.” Int’l
Church of Foursquare Gospel v. City of San Leandro, 902 F. Supp. 2d 1286, 1290-91 (N.D. Cal.
2012) (citing Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)). Cf. Orr,
285 F.3d at 783 (“To defeat summary judgment, [one opposing summary judgment] must
respond with more than mere hearsay and legal conclusions”); Cambridge Elecs. Corp. v. MGA
Elecs., Inc., 227 F.R.D. 313, 320 (C.D. Cal. 2004) (“Conclusory, speculative testimony in
affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary
judgment”).
D.

Hearsay

Generally, “inadmissible hearsay evidence may not be considered on a motion for
summary judgment.” Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 n.4
(9th Cir. 1995); see also Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir.
1980) (“hearsay evidence is inadmissible and may not be considered by this court on review of a
summary judgment”); Riggsbee v. Diversity Servs., Inc., 637 F.Supp.2d 39, 46 (D.D.C. 2009)
(“on summary judgment, statements that are impermissible hearsay or that are not based on
personal knowledge are precluded from consideration by the Court.”); In re Cypress
Semiconductor, Inc. Sec. Litig., 891 F. Supp. 1369, 1374 (N.D. Cal. 1995) (hearsay evidence
cannot be considered in summary judgment proceedings), aff’d, 113 F.3d 1240 (9th Cir. 1997).
E.

Unauthenticated Documents

Authentication or identification is a condition precedent to the admissibility of a
document. Fed. R. Evid. 901. Under Federal Rule of Civil Procedure 56, evidence in support of
a motion for summary judgment is objectionable if it cannot be presented in a form that would be
admissible. A document cannot be authenticated by one who does not have personal knowledge
4

of its authenticity. The testimony of a witness with personal knowledge of the facts who attests
to the identity and due execution of the document and, where appropriate, its delivery is
necessary to lay the foundation for a document. United States v. Dibble, 429 F.2d 598, 602 (9th
Cir. 1970). If Plaintiffs are unable to show that they could authenticate a document at trial, the
Court should not consider it on Plaintiffs’ motion for summary judgment.
F.

Secondary Evidence Rule

The “secondary evidence rule” requires that a proponent prove the contents of documents
by producing the document itself. Fed. R. Evid. 1001, 1002. Relatedly, a party may advance a
summary to the prove the content of “voluminous” writings or documents only if it makes the
originals or duplicates available for examination. Fed. R. Evid. 1006.
II.

OBJECTIONS TO DECLARATIONS FILED IN SUPPORT OF PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
Public Resource incorporates by reference here its earlier objections (Dkt. 121-4) to the

evidence that Plaintiffs submitted on their first motion for summary judgment.
A.

Objections to the Supplemental Declaration of James T. Pauley in Support of
Plaintiffs’ Second Motion for Summary Judgment and a Permanent
Injunction

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

3. NFPA owns the copyrights to over 300
standards it has published. This litigation
involves 23 of NFPA’s copyrighted standards.

FRE 701 Improper legal opinion: This states
an improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed a lack
of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright

5

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

registrations contradict the theory of
ownership.
FRE 1002 Secondary Evidence. The witness
has not provided the original copyright
registrations. Public Resource also objects
under FRE 1006 because this assertion is an
improper summary.
5. NFPA previously submitted the copyright
registration certificates for NFPA 70, the
National Electrical Code (2011 ed.) and (2014
ed.), as Exhibits A & B to the declaration of
Dennis Berry (Dkt. 118-3). Copyright
registration certificates for NFPA’s other
standards at issue in this litigation are attached
hereto as set forth below.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

6. NFPA owns a United States copyright
registration for NFPA 1 (2003 ed.), the
Uniform Fire Code. Attached as Exhibit W to
this declaration is a true and correct copy of the
registration certificate for this work, TX 5-970602.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

6

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

7. NFPA owns a United States copyright
registration for NFPA 1 (2006 ed.), the
Uniform Fire Code. Attached as Exhibit X to
this declaration is a true and correct copy of the
registration certificate for this work, TX 6-261668.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

8. NFPA owns a United States copyright
registration for NFPA 10 (2002 ed.) the
Standard for Portable Fire Extinguishers, NFPA
13 (2002 ed.) Installation of Sprinkler Systems,
NFPA 25 (2002 ed.) Inspection, Testing and
Maintenance of Water-Based Fire Protection
Systems, registered under the title “National
Fire Codes Vol. 1-12 and Master Index.”
Attached as Exhibit Y to this declaration is a
true and correct copy of the registration
certificate for this work, TX 5-752-623.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

9. NFPA owns a United States copyright
registration for NFPA 11 (2005 ed.) the
Standard for Low Medium and High Expansion
Foam. Attached as Exhibit Z to this declaration
is a true and correct copy of the registration
certificate for this work, TX 6-160-768.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright

7

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.
10. NFPA owns a United States copyright
registration for NFPA 12 (2005 ed.) the
Standard on Carbon Dioxide Extinguishing
Systems. Attached as Exhibit AA to this
declaration is a true and correct copy of the
registration certificate for this work, TX 6-232876.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

11. NFPA owns a United States copyright
registration for NFPA 30 (2003 ed.) Flammable
and Combustible Liquids Code. Attached as
Exhibit BB to this declaration is a true and
correct copy of the registration certificate for
this work, TX 5-905-038.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

12. NFPA owns a United States copyright
registration for NFPA 54 (2006 ed.) National

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest

8

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

Fuel Gas Code. Attached as Exhibit CC to this
declaration is a true and correct copy of the
registration certificate for this work, TX 6-261666.

their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

13. NFPA owns a United States copyright
registration for NFPA 58 (2001 ed.) Liquefied
Petroleum Gas Code (title registered as
“National Fire Codes Vol 3”). Attached as
Exhibit DD to this declaration is a true and
correct copy of the registration certificate for
this work, TX 5-401-672.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

14. NFPA owns a United States copyright
registration for NFPA 58 (2004 ed.) Liquefied
Petroleum Gas Code. Attached as Exhibit EE to
this declaration is a true and correct copy of the
registration certificate for this work, TX 5-956112.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third

9

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.
15. NFPA owns a United States copyright
registration for NFPA 59 (2004 ed.) Utility LP
Gas Plant Code. Attached as Exhibit FF to this
declaration is a true and correct copy of the
registration certificate for this work, TX 5-953205.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

16. NFPA owns a United States copyright
registration for NFPA 70 (1999 ed.) National
Electrical Code. Attached as Exhibit GG to this
declaration is a true and correct copy of the
registration certificate for this work, TX 4-092419.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

17. NFPA owns a United States copyright
registration for NFPA 70 (2005 ed.) National
Electrical Code. Attached as Exhibit HH to this
declaration is a true and correct copy of the

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an

10

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

registration certificate for this work, TX 6-108410.

improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

18. NFPA owns a United States copyright
registration for NFPA 70 (2008 ed.) National
Electrical Code. Attached as Exhibit II to this
declaration is a true and correct copy of the
registration certificate for this work, TX 6-966113.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

19. NFPA owns a United States copyright
registration for NFPA 72 (2002 ed.) National
Fire Alarm Code. Attached as Exhibit JJ to this
declaration is a true and correct copy of the
registration certificate for this work, TX 5-841133.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright

11

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

registrations contradict the theory of
ownership.
20. NFPA owns a United States copyright
registration for NFPA 99 (2005 ed.) Health
Care Facilities Code. Attached as Exhibit KK
to this declaration is a true and correct copy of
the registration certificate for this work, TX 6153-939.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

21. NFPA owns a United States copyright
registration for NFPA 101 (2000 ed.) Life
Safety Code. Attached as Exhibit LL to this
declaration is a true and correct copy of the
registration certificate for this work, TX 5-371918.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

22. NFPA owns a United States copyright
registration for NFPA 101 (2003 ed.) Life
Safety Code. Attached as Exhibit MM to this
declaration is a true and correct copy of the
registration certificate for this work, TX 5-841134.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case

12

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.
23. NFPA owns a United States copyright
registration for NFPA 101 (2006 ed.) Life
Safety Code. Attached as Exhibit NN to this
declaration is a true and correct copy of the
registration certificate for this work, TX 6-294334.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

24. NFPA owns a United States copyright
registration for NFPA 704 (2007 ed.) Standard
System for the Identification of the Hazards of
Materials for Emergency Response. Attached
as Exhibit OO to this declaration is a true and
correct copy of the registration certificate for
this work, TX 6-445-855.

To the extent that the Plaintiffs rely upon the
copyright registration certificates to suggest
their ownership of copyrights, FRE 701
Improper legal opinion: This states an
improper legal conclusion of ownership,
which is especially troublesome in this case
where the Plaintiffs’ evidence showed an
lack of ownership, which caused Plaintiffs to
abandon their first two theories of copyright
ownership (works made for hire, then
ownership by assignment) in favor of a third
theory of ownership, namely joint authorship
of joint works, where the copyright
registrations contradict the theory of
ownership.

13

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

25. Federal agencies, states, and local
governments sometimes incorporate NFPA’s
standards (or portions thereof) by reference into
their regulations, statutes, or ordinances. Such
entities frequently set forth their own
amendments or modifications that are specific
to their respective jurisdictions. We refer to an
entity (usually a governmental body) that
enforces a standard as an Authority Having
Jurisdiction (“AHJ”). It is the incorporating
entity of agency or the relevant AHJ, not
NFPA, that decides which legal duties will
apply, to whom those duties will apply, and the
procedures and policies relating to enforcement,
within the entity’s or the AHJ’s jurisdiction.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

26. The NFPA standards at issue in this
litigation provide that there may be other ways,
in addition to those set out within a published
standard, for persons within a jurisdiction to
satisfy their particular legal obligations. For
example, NFPA 54, 2006 ed., the National Fuel
Gas Code, states that its provisions “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.”
Ex. I at ch. 1.4 “Equivalency” (NFPAPR0014798). I am aware that substantively
similar provisions appear in each of the other
standards at issue.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

27. Although AHJs or other entities may
incorporate our standards by reference, portions
within each of our standards provide options or
examples. As explained in, for example, the

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

14

FRE 701/2 Improper Opinion/Unqualified
Expert Opinion. The witness has not been
qualified as an expert and therefore cannot
testify as to facts beyond the witness’s
personal knowledge. This assertion
constitutes an improper lay opinion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of writings:
every incorporation by reference requires a
written statement to the effect. Public
Resource also objects under FRE 1006
because this assertion is an improper
summary.

FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE
1006 because this assertion is an improper
summary.

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

2014 NEC (NFPA 70), the standards include
“Permissive Rules” which are defined as “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.” Ex. P at art. 90-5(B) (NFPAPR0098088). 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. . . . It shall be permitted to leave
unused cable runs and associated cable
connectors in place and energized.” Id. at art.
324.56(A) (NFPAPR0098260).

FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
(including as a legal expert) and therefore
cannot testify as to facts beyond the
witness’s personal knowledge. This
assertion constitutes an improper lay
opinion.

28. Further, all of NFPA’s standards include
text that does not set forth any obligation. I
describe these sections below.

FRE 403 Prejudice. The testimony is vague
and confusing as to “obligation.”

a. Prefatory Notices: NFPA’s standards
generally include a section setting forth notices,
including information regarding the voluntary
consensus standards development process, and
disclaimers and copyright information,
regarding the publication.
b. History, Development and Edition
Information: NFPA’s standards generally
include introductory and background
information about, for example, the origin of
the standards and its purpose, relation to other
standards, and edition-specific information.
c. Reference and Informational Notes:
NFPA’s standards often include in-line
informational notes throughout the text of each
standard. The informational notes provide
context, background, cross-references, and
other explanatory material.

15

FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE
1006 because this assertion is an improper
summary.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
(including as a legal expert) and therefore
cannot testify as to facts beyond the
witness’s personal knowledge. This
assertion constitutes an improper lay
opinion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE
1006 because this assertion is an improper
summary.

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

For some of our standards, the text explicitly
qualifies the informational notes as “not
enforceable as requirements.” For example,
article 90-5(C) of the 2014 NEC (NFPA 70)
provides: “Explanatory material, such as
references to other standards, references to
relates sections of this Code, or information
related to a Code rule, is included in this Code
in the form of informational notes.” Ex. P at art.
90-5(C) (NFPA-PR0098088). As the NEC
makes clear: “such notes are informational only
and are no enforceable as requirements of this
Code.” Id. (emphasis added). An example of
the type of material written in informational
notes is art. 110-11, Informational Note No. 2,
of the same publication: “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 n.2 (NFPAPR0098100). Someone could paraphrase or use
their own words to describe this same
information, rather than copying NFPA’s
words.
d. Diagrams, Figures, and Illustrations:
NFPA’s standards generally include diagrams,
figures, or illustrations that depict material set
forth in the text of the standard, but that do not
themselves state any legal duty. For example, in
the 2014 NEC, Figure 220.1 provides a
graphical summary of how the text of Article
220 is organized. Ex. P at Figure 220.1 (NFPAPR0098129). If someone wanted to write their
own description of the organizational structure
of Article 220, that person could do so using
different words or different illustrations than
the one NFPA created.
e. Examples: NFPA’s standards generally
include non-exhaustive lists or exemplary

16

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

calculations. For example, in the 2014 NEC,
article 550.4(A) lists examples of a mobile
home not intended as a dwelling unit: “those
equipped for sleeping purposes only,
contractor’s on-site offices, construction job
dormitories, mobile studio dressing rooms,
banks, clinics, mobile stores, or intended for the
display or demonstration of merchandise or
machinery.” Id. at art. 550.4(A) (NFPAPR0098568). These illustrative examples do
not impose any requirement. If someone
wanted to create their own list of examples of a
mobile home that is not intended as a dwelling
unit, that person could come up with their own
examples, could use different words to describe
even the examples that NFPA provides, and
could list their examples in a different order.
f. Informational Annexes: All of the standards
in this litigation, and our standards generally,
include informational annexes. These
informational annexes typically provide that
they are informational only, although they can
contain a variety of material. For example,
Annex A to NFPA 13 (2002 ed.), Installation of
Sprinkler Systems, is entitled “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.” Ex. F at Annex A (NFPAPR0014507). Some informational annexes
contain standards that may be binding, but only
if an AHJ specifically incorporates the
informational annex by reference. For example,
Annex H to NFPA 70 (2014 ed.), the National
Electrical Code, is entitled “Administration and
Enforcement.” That annex specifically states
that it is “not a part of the requirements of this
NFPA document and is included for

17

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

informational purposes only . . . unless
specifically adopted by the local jurisdiction
adopting the National Electrical Code®.” Ex. P
at Annex H (NFPA-PR0098919).
g. Proposal Forms: Our standards generally
include information about the committee
process and proposal forms so the reader can
submit suggested language for future editions.
29. The non-binding materials I have described
in the preceding paragraph serves NFPA’s
overall goal of public safety by providing the
ultimate user of the standard—whether an
engineer, contractor, architect, or anyone else—
with additional references or material related to
the subject of the standard.

FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
(including as a legal expert as to what is or is
not “binding”) and therefore cannot testify as
to facts beyond the witness’s personal
knowledge. This assertion constitutes an
improper lay opinion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE
1006 because this assertion is an improper
summary.

30. I am aware that Public.Resource.Org has
copied and published NFPA’s 2017 National
Electrical Code to the Internet Archive website.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE
1006 because this assertion is an improper
summary.

31. In addition, I am aware that after the D.C.
Circuit remand, Public.Resource.Org re-posted
NFPA’s standards to the Internet Archive
website. Those versions have received many
more views and downloads since they were
reposted. Anyone can freely download, copy,

18

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

print and redistribute these versions of NFPA’s
standards from the Internet Archive website.

Public Resource also objects under FRE
1006 because this assertion is an improper
summary.

32. I understand that Public.Resource.Org has
represented that it has removed all of the
Plaintiffs’ logos from the versions of the
standards it posts to the Internet Archive
website. PRO has not removed the trademarked
logo for the National Electrical Code. See Berry
Decl. ¶¶ 8-9, Exs. H, I (trademarks for NFPA
70 and NEC logo).

FRE 402 Relevance. This testimony is not
relevant to the subject matter of this
litigation.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject, as his need to
refer to someone else’s declaration
demonstrates.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE
1006 because this assertion is an improper
summary.

33. NFPA depends on the sale of standards to
fuel its overall mission-driven work. In 2018,
NFPA’s publication sales accounted for
approximately 64% of NFPA’s total operating
revenues. The vast majority of that revenue is
from the sale of codes and standards, including
those standards that have been incorporated by
reference.

FRE 402 Relevance and 403 Prejudice. The
witness has blurred the distinction between
NFPA’s works that have become laws by
incorporation and those that have not
become laws by incorporation in order to
confuse the reader regarding the proportion
of revenue that comes from sale of laws by
incorporation and the ability of NFPA to
thrive and compensate its management from
sales of standards that have not become laws
by incorporation.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.

19

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

This assertion constitutes an improper lay
opinion.
34. NFPA’s standards are purchased and used
predominantly by industry professionals and
tradespeople (either individually or by their
companies and organizations) who use these
standards in the course of their business, such
as contractors, engineers, electricians,
architects, and electrical equipment
manufacturers.

FRE 402 Relevance and 403 Prejudice. The
witness has cherry-picked selected persons
to highlight as purchasers and users of
NFPA’s standards, and especially those
standards that are laws by incorporation, by
failing to discuss a balanced cross-section of
purchasers and users, including (among other
persons with similar needs) government
officials at every level of government and
courts, all of whom need to know what the
law is. The witness has also blurred the
distinction between NFPA’s works that have
become laws by incorporation and those that
have not become laws by incorporation in
order to confuse the reader about the market
for laws by incorporation as distinct from the
market for standards that are not laws by
incorporation.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The witness has
not been qualified as an expert and therefore
cannot testify as to facts beyond the
witness’s personal knowledge. This
assertion constitutes an improper lay
opinion.

35. The versions of our standards posted by
Public.Resource.Org and available for
unrestricted download and use compete directly
with our standards in the market. If the
professionals and tradespeople are able to
access and download nearly-identical standards
without incurring any cost through

20

FRE 403 Prejudice. The witness has not
provided any foundation for his hypothetical
supposition that “professionals and
tradespeople” will not buy NFPA’s
standards, especially in light of NFPA’s
failure to prove that Public Resource’s actual
posting of the standards has caused it any

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

Public.Resource.Org’s postings to the Internet
Archive, they will not buy our publications (or
use our free access website, as I discuss more
below). This hurts our revenue and, in turn,
ability to pursue our overall mission.

harm.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

36. 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. Pursuant to
those licenses, NFPA provides licensees with
copies of its standards or portions thereof in
formats that the licensee may use in
conjunction with software or other forms of
dissemination. NFPA’s licenses likely would
lose significant value if the licensees or their
customers could obtain the same material from
Public.Resource.Org in digital format, without
cost, and without restrictions on further
dissemination.

FRE 403 Prejudice. The witness has not
provided any foundation for his theoretical
supposition that NFPA’s “licenses” would
lose “significant value,” especially in light of
NFPA’s failure to prove that Public
Resource’s actual posting of the standards
has caused it any harm. The witness has
blurred the distinction between NFPA’s
works that have become laws by
incorporation and those that have not
become laws by incorporation in order to
confuse the reader about the different
revenues and license values of laws by
incorporation and those of standards that
have not become laws by incorporation.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge concerning NFPA’s licensing
practices, nor any basis for opining on
whether such licensing fees constitute a
“significant” source of revenue for NFPA.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts

21

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE
1006 because this assertion is an improper
summary.
37. Public.Resource.Org’s postings threaten
NFPA’s ability to control the further
dissemination and use of its standards. Because
Public.Resource.Org offers unrestricted and
anonymous access to NFPA’s standards in
multiple formats (unlike NFPA’s free access),
NFPA has absolutely no means of tracking
down those individuals who use
Public.Resource.Org’s versions of NFPA’s
standards for their commercial businesses, or
for sale to other individuals and entities.

No objection to this statement:
“Public.Resource.Org offers unrestricted and
anonymous access to NFPA’s standards in
multiple formats (unlike NFPA’s free
access).”
FRE 403 Prejudice. The question of NFPA’s
ability to control dissemination and use of
the law is at issue in this case, and testimony
that there is a “threat” to its control of the
law is improper argument; moreover, the
failure of the witness to distinguish between
the small number of NFPA standards that are
laws by incorporation, and therefore at issue
in this case, and the much larger number of
NFPA standards that are not at issue is
confusing and prejudicial.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

22

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

38. Although our revenue is somewhat cyclical
with our publications (higher when new
publications are released), in recent years,
NFPA’s revenue from the sale of standards has
been declining. We attribute this decline, at
least in part, to Public.Resource.Org’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.

FRE 402 Relevance and FRE 403 Prejudice.
Testimony about revenue from standards
that are not laws by incorporation and are
therefore not in this case is irrelevant, and
the failure of the witness to distinguish
between the small number of NFPA
standards that are laws by incorporation, and
therefore at issue in this case, and the much
larger number of NFPA standards that are
not at issue is confusing and prejudicial,
especially where the witness has not
provided details regarding revenue from all
standards (both those that are laws by
incorporation and those that are not).
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

39. I understand that Public.Resource.Org
converted NFPA standards to different formats
and posted those versions on the internet. The
conversion process inevitably resulted in
errors. For example, I am aware that the full
text version of the 2011 version of the NEC that
was posted to Public.Resource.Org’s website
contains many errors. These include many
obvious typographical errors, but they also
include errors that distort the meaning of the
standard. Some of those errors are:
a. Article 310.10(F) of the 2011 NEC addresses
conductors used in direct-burial applications,

23

No objection to the statement that
Public.Resource.Org converted standards
(only ones that have become laws by
incorporation) to different formats to make
them available to researchers and to the print
disabled.
FRE 402 Relevance. The witness’s
understanding is not relevant to any claim in
this litigation.
FRE 403 Prejudice. The witness’s testimony
is prejudicial for claiming errors in Public
Resource’s posting of standards that existed

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

and states: “Cables rated above 2000 volts shall
be shielded.” This requirement that highvoltage cables in direct-burial applications be
shielded is important to prevent damage to the
cables and a resulting risk of electrical shock.
This language, however, is completely omitted
from the full text version that was posted on
Public.Resource.Org’s website.
b. Article 424.59 of the 2011 NEC states that
“heaters installed within 1.2m (4 ft) of the
outlet of an air-moving device . . . may require
turning vanes, pressure plates, or other devices
on the inlet side of the duct heater to ensure an
even distribution of air over the face of the
heater.” In Public.Resource.Org’s full text
version however, the “m”—representing
meters—is incorrectly rendered as “in”—which
represents inches. In other words, the
Public.Resource.Org version says that the
requirement is only triggered if a heater is less
than 1.2 inches from an air-moving device,
rather than the correct and much greater
distance of 1.2 meters.
c. Article 430.35(B) of the 2011 NEC states
that “motor overload protection shall not be
shunted or cut out during the starting period if
the motor is automatically started” (emphasis
added). Inadequate motor overload protection
can result in overheating and damage. In
Public.Resource.Org’s full text version,
however, this provision incorrectly says that
motor overload protection shall not be shunted
or cut out during the “stalling period”
(emphasis added).3
d. There are many typographical errors in the
cross-references in
Public.Resource.Org’s full text version. In
order to understand a provision of the NEC that

24

in NFPA’s own printing of its standards and
for failing to put into context NFPA’s own
errors. Where an error is in an original
standard that has become a law by
incorporation, the law by incorporation
contains the same error.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of the version
of the NEC published by NFPA and the
version posted on Public Resource’s website.
This is especially significant here where the
content of the original 2011 NEC has been
amended by several errata which appear to
explain the so-called errors in the witness’s
declaration. Public Resource also objects
under FRE 1006 because this assertion is an
improper summary.

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

contains a cross-reference, the user must be
able to identify and refer to the Article
identified in that cross reference. However,
Public.Resource.Org’s full text version contains
many erroneous cross-references including in
Articles 310.10(E), 410.140(D), 430.75,
504.70, 645.10(B), 670.3(B), 680.25(B).
40. Since 2006, NFPA has offered a dedicated
website that provides free access to its
standards. It has been and remains committed
to providing the full text of NFPA standards
that have been incorporated by reference
available, without cost, for viewing on its
website.

FRE 402 Relevance and FRE 403 Prejudice.
The declarant testifies as to “free access”
without revealing that the “free access”
requires entering into a contract by which a
user must waive important rights and must
consent to personal jurisdiction and venue
for litigation against the user in Norfolk
County, Massachusetts and that the “free
access” does not allow the freedom to search
the text or to do other activities that are
normally available with an electronic
document. The user must also become
subject to spam marketing messages
advertising, for example, that the user needs
to acquire NFPA publications in order to
know the law. There is indeed a cost to the
user for the access. The declarant also refers
generally to “standards” without explaining
that the “free access” is to only a small
fraction of NFPA’s standards. The statement
also constitutes argument instead of factual
assertions.

41. Each of the 23 standards at issue in this
litigation is available through a link, and after
logging into that individual’s account, on our
free access website, available at
https://www.nfpa.org/Codes-andStandards/All-Codes-and-Standards/Freeaccess.

FRE 402 Relevance and FRE 403 Prejudice.
The declarant testifies as to “availability” of
standards” and a “free access” website
without revealing that the “availability” of
standards and the “free access” website both
require entering into a contract by which a
user must waive important rights and must
consent to personal jurisdiction and venue
for litigation against the user in Pennsylvania
and that the “availability” and “free access”

25

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

do not allow the freedom to search the text
or to do other activities that are normally
available with an electronic document. The
user must also become subject to spam
marketing messages advertising, for
example, that the user needs to acquire
NFPA publications in order to know the law.
There is indeed a cost for the access.
42. This access ensures that if someone does
not have ready access to a printed copy of a
particular standard, that person can locate and
read the material that is of interest to them.
Thousands of individuals access NFPA’s
standards through the free access website each
year. This access is “read only,” meaning that
someone viewing the material online cannot
download, copy, or disseminate the published
standard.

FRE 402 Relevance and FRE 403 Prejudice.
The declarant testifies as to a “free access”
website without revealing that the “free
access” requires entering into a contract by
which a user must waive important rights
and must consent to personal jurisdiction and
venue for litigation against the user in
Norfolk County, Massachusetts and that the
“free access” does not allow the freedom to
search the text. The user must also become
subject to spam marketing messages
advertising, for example, that the user needs
to acquire NFPA publications in order to
know the law. There is indeed a cost for the
access.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this historical status of
NFPA’s “reading room.” The witness also
lacks personal knowledge about whether any
member of the public may access the
“reading room.” For example, people who
rely on screen reader technologies because
they have print disabilities are not able to
review the standards in “read-only” formats.

43. We believe that our read only access
appropriately balances our rights and our need
to generate revenue to pursue our mission with
the desire of others to read the codes and

26

FRE 402 Relevance and FRE 403 Prejudice.
The declarant provides argument in the guise
of factual assertions. He also testifies as to
“read-only access” website without revealing
that the “access” requires entering into a

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

standards. We also believe that it is efficient to
spread the cost of the standards development
activity across the world of professionals who
use our standards to do their jobs such that any
one is paying a reasonable cost (around $100 or
less) for a copy of one of our standards. I
created a video regarding this balance which is
available on our website at
https://www.nfpa.org/Codes-andStandards/All-Codes-and-Standards/Freeaccess.

contract by which a user must waive
important rights and must consent to
personal jurisdiction and venue for litigation
against the user in Norfolk County,
Massachusetts and that the “access” does not
allow the freedom to search the text or to do
other activities that are normally available
with an electronic document. The user must
also become subject to spam marketing
messages advertising, for example, that the
user needs to acquire NFPA publications in
order to know the law. There is indeed a
cost for the access. Moreover, the witness
has blurred the distinction between NFPA’s
works that have become laws by
incorporation and those that have not
become laws by incorporation in order to
confuse the reader as to the amount of
revenue that NFPA receives by controlling
access to laws by incorporation.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this historical status of
NFPA’s “reading room.” The witness also
lacks personal knowledge about whether any
member of the public may access the
“reading room.” For example, people who
rely on screen reader technologies because
they have print disabilities are not able to
review the standards in “read-only” formats.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

27

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

44. When NFPA becomes aware of
jurisdictions that incorporate its standards by
reference, NFPA encourages those jurisdictions
to link their websites to NFPA’s free, online
version of the standards. NFPA provides a
“Free Access Widget” that easily enables such
access.

FRE 402 Relevance and FRE 403 Prejudice.
The declarant testifies as to “free, online
version[s]” of standards” and a “Free
Access” widget without revealing that the
“free access” requires entering into a
contract by which a user must waive
important rights and must consent to
personal jurisdiction and venue for litigation
against the user in Norfolk County,
Massachusetts and that the “free, online
version[s]” and “free access” do not allow
the freedom to search the text or to do other
activities that are normally available with an
electronic document. The user must also
become subject to spam marketing messages
advertising, for example, that the user needs
to acquire NFPA publications in order to
know the law. There is indeed a cost for the
access.

45. NFPA views this free access as in
furtherance of its overall mission. Read only
access allows any member of the public
wishing to know what an incorporated standard
says on any topic that may be of interest to that
member of the public. NFPA’s free access also
encourages increased visits to NFPA’s website.
Users who visit NFPA’s website may engage
with NFPA on public-safety awareness efforts,
trainings, and publications. NFPA hopes that
these individuals may someday become
members, contributors, and otherwise involved
in NFPA’s important work.

FRE 402 Relevance and FRE 403 Prejudice.
The declarant offers argument in the guise of
factual assertions. He also testifies as to
“free access” without revealing that the “free
access” requires entering into a contract by
which a user must waive important rights
and must consent to personal jurisdiction and
venue for litigation against the user in
Norfolk County, Massachusetts and that the
“free access” does not allow the freedom to
search the text or to do other activities that
are normally available with an electronic
document. The user must also become
subject to spam marketing messages
advertising, for example, that the user needs
to acquire NFPA publications in order to
know the law. There is indeed a cost for the
access.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal

28

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

knowledge about this historical status of
NFPA’s “reading room.” The witness also
lacks personal knowledge about whether any
member of the public may access the
“reading room.” For example, people who
rely on screen reader technologies because
they have print disabilities are not able to
review the standards in “read-only” formats.
46. NFPA has also devoted resources to
researching and consolidating information
regarding which jurisdictions have incorporated
NFPA standards into local, state, or federal
laws or regulations. This information is
provided as an informational and educational
resource so the public can know which NFPA
standards govern in particular jurisdictions.

FRE 402 Relevance and FRE 403 Prejudice.
NFPA has never furnished such a complete
list of incorporations of NFPA standards as
laws, and in that context this statement is
strongly prejudicial. The declarant also
presents argument in the guise of a factual
assertion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE
1006 because this assertion is an improper
summary. Even the websites that the
declarant identifies in the next paragraph do
not contain the complete information.

47. NFPA offers two dedicated websites with
this information: The NEC Adoptions Map,
https://www.nfpa.org/NEC/NEC-adoption-anduse/NEC-adoption-maps, and CodeFinderTM
https://codefinder.nfpa.org. As NFPA explains
to the public when they use the CodeFinderTM
tool: “Publication of this tool is for the sole
purpose of creating general public awareness of
some of the jurisdictions where [AHJs] may
require the use of NFPA codes and/or
standards.”

29

FRE 402 Relevance and FRE 403 Prejudice.
NFPA has never furnished such a complete
list of incorporations of NFPA standards as
laws, and in that context this statement is
strongly prejudicial. The declarant also
presents argument in the guise of a factual
assertion. Review of the web sites to which
he refers reveals the web sites to be
marketing and sales tools to promote sale of
NFPA’s standards that have become laws by
incorporation, and they provide no complete
information or even useful knowledge about
the precise incorporations or their extent.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE

Supplemental Declaration of James T.
Pauley In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant Public
Resource’s Objections

1006 because this assertion is an improper
characterization in the guise of a summary.

30

B.

Objections to the Supplemental Declaration of Stephanie Reiniche in
Support of Plaintiffs’ Second Motion for Summary Judgment and a
Permanent Injunction

Supplemental Declaration of Stephanie
Reiniche In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

3. To further ensure public access, ASHRAE
offers online read-only access to many of its
standards- particularly those standards that have
been incorporated into codes-on the ASHRAE
website, available at https://www.ashrae.org/
technical-resources/ standards-andguidelines/read-only-versions-of-ashraestandards. This portion of the ASHRAE
website allows viewers to read ASHRAE
standards, including the 2004, 2007, and 2010
versions of Standard 90.1. ASHRAE feels it is
important to provide this public service so that
the public can have access to authentic versions
of our standards in a format that allows readers
to educate themselves on the standards but that
does not harm ASHRAE's business.

FRE 402 Relevance and FRE 403 Prejudice.
The witness offers self-serving argument in
the guise of factual assertions offers and
ASHRAE’s self-serving feelings regarding
its motives. Moreover, the statements are
especially prejudicial without candid
disclosure of the document to which the
testimony refers (also subject to a FRE 1002
objection). The “online read-only access” is
manifestly unusable. To see the text in
context, the text is illegibly small; if one
enlarges the text to make it legible, one
cannot see a line from margin to margin or a
paragraph from start to finish. One might as
well say that a text is subject to “public
access” if it delivers one word per click and
thus enables access to an entire document
with merely 20,000 clicks.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject. The witness
has manifestly not attempted to do any
meaningful reading of the standards in
ASHRAE’s reading room.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE

31

Supplemental Declaration of Stephanie
Reiniche In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

1006 because this assertion is an improper
characterization in the guise of a summary.
4. Each time new versions of ASHRAE
standards are developed, ASHRAE offers those
standards for sale. Sales of the standards are an
important piece of ASHRAE's yearly revenues.
ASHRAE also relies on membership fees as a
significant source of its revenues, and a primary
driver of memberships is that members gain
access to ASHRAE standards at a discount.
These sources of revenue permit ASHRAE to
keep operating and developing new standards.
As stated above, ASHRAE also makes new
versions of many of its standards available for
read-only access on its website. ASHRAE does
not believe it is harmed by operating the
reading room or that the reading room
significantly compromises ASHRAE's ability to
generate revenue. Instead, the reading room
allows for ASHRAE to maintain control over
its standards and insure use in ways
that benefit ASHRAE. For instance, a user that
samples the standard on the ASHRAE site may
decide they prefer a mobile version of the
standard to take to a construction job site; since
the free version is read-only, that user would
then buy a copy of the standard. For users that
are content viewing the standard on the
website, it still provides ASHRAE an
opportunity to expose that
individual to other products offered by
ASHRAE, including by promoting trainings,
conferences, and certifications offered on the
ASHRAE website.

FRE 402 Relevance and 403 Prejudice. The
witness offers argument in the guise of
factual assertions. The witness also testifies
about ASHRAE standards generally without
distinguishing between the standards at issue
in this case, which are laws by incorporation,
and other standards that are not laws by
incorporation, thereby creating confusion on
the question of the importance of revenues
from laws by incorporation. Moreover, the
statements are especially prejudicial without
candid disclosure of the document to which
the testimony refers (also subject to a FRE
1002 objection). The “online read-only
access” is manifestly unusable. To see the
text in context, the text is illegibly small; if
one enlarges the text to make it legible, one
cannot see a line from margin to margin or a
paragraph from start to finish. One might as
well say that a text is subject to “public
access” if it delivers one word per click and
thus enables access to an entire document
with merely 20,000 clicks.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE

32

Supplemental Declaration of Stephanie
Reiniche In Support of Plaintiffs’ Second
Motion for Summary Judgment And A
Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

1006 because this assertion is an improper
characterization in the guise of a summary.
5. Unlike ASHRAE's read-only versions of the
standards, ASHRAE believes that versions
provided for free (in a downloadable or printable
format) by others are harmful to ASHRAE's
business. When a third-party, like
Public.Resource.Org, purports to offer the exact
same standard for free online, ASHRAE believes
that provides ASHRAE's target market, which
includes builders, contractors, and architects, with
free access to products they would otherwise
purchase from ASHRAE. These potential
customers can now use printed versions of the
ASHRAE standards without paying ASHRAE
and without interacting with the ASHRAE
website.

FRE 402 Relevance and FRE 403 Prejudice.
The witness offers argument in the guise of
factual assertions. Moreover, the testimony
wrongly cherry-picks the “target market” of
ASHRAE’s standards and omits reference to
the many government officials (including
courts) that may need to consult laws by
incorporation in order to know what the law
is. Testimony about what ASHRAE believes
is harmful, and about its speculation, is
prejudicial where, as here, ASHRAE has not
identified any actual harm arising from
Public Resource’s activities in this case.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.
FRE 1002 Secondary Evidence. The witness
is testifying about the contents of a writing.
Public Resource also objects under FRE
1006 because this assertion is an improper
characterization in the guise of a summary.

33

C.

Objections to the Declaration of James S. Thomas in Support of Support of
Plaintiffs’ Second Motion for Summary Judgment and a Permanent
Injunction

Declaration of James S. Thomas In Support
of Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

8. ASTM offers a variety of onsite or in-person
training courses, including:

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

a. Since at least 1996, ASTM has offered an inperson training course on Diesel Fuels:
Specifications and Test Methods. The course
materials include: ASTM’s D86, D975, D1266,
D1552, D2622, D3120, D4177, and D4294.
Attached as Exhibit 1 is a true and correct copy
of the description of ASTM’s Diesel Fuels:
Specifications and Test Methods course
available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+28+traindetail.frm.
b. Since at least 1996, ASTM has offered an inperson training course on Gasoline:
Specifications, Testing, and Technology. The
course materials include ASTM’s D86.
Attached as Exhibit 2 is a true and correct copy
of the description of ASTM’s Gasoline:
Specifications, Testing, and Technology
available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+4+traindetail.frm.
c. Since at least 1996, ASTM has offered a twoday, on-site training course on Textiles: Quality
and Performance Standards. The course
materials include ASTM’s D5489. Attached as
Exhibit 3 is a true and correct copy of the
description of ASTM’s Textiles course
available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+25+traindetail.frm.

34

FRE 1002 Secondary Evidence. The
witness is testifying about the contents of a
writing. Public Resource also objects under
FRE 1006 because this assertion is an
improper summary.

Declaration of James S. Thomas In Support
of Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

d. Since at least 1997, ASTM has offered a
three-day, in-person training course on Marine
Fuels: Specifications, Testing, Purchase, and
Use. The course materials include D1298, and
D4294. Attached as Exhibit 4 is a true and
correct copy of
the description of ASTM’s Marine Fuels course
available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+18+traindetail.frm.
e. ASTM’s Fuels Technology course is a fiveday, in-person training. The course materials
include: ASTM D86, D975, D1298, and
D4294. Attached as Exhibit 5 is a true and
correct copy of the description of ASTM’s
Fuels Technology course
available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+392+traindetail.frm.
f. ASTM’s Crude Oil: Sampling, Testing and
Evaluation course is a three-day, in-person
training. The course materials include: D1298,
D2622, D4177, and D4294. Attached as Exhibit
6 is a true and correct copy of the description of
ASTM’s Crude Oil course available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+51+traindetail.frm.
9. Similarly, ASTM includes its standards as
reference material for its e-learning modules,
including:

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

a. ASTM’s #2 Diesel Fuel Certificate Program
includes video
demonstrations, checklists, presentations, data
sheets and glossaries designed to address the 24
standards in the program, including D86,
D1298, D2622, and D4294. Each of the
24 standards has its own learning module, and a
copy of the standard is included in the price of

FRE 1002 Secondary Evidence. The
witness is testifying about the contents of a
writing. Public Resource also objects under
FRE 1006 because this assertion is an
improper summary.

35

Declaration of James S. Thomas In Support
of Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

the training. Attached as Exhibit 7 is a true and
correct copy of the description of
ASTM’s #2 Diesel Fuel Certificate Program
available at
https://www.astm.org/TRAIN/train_136.htm.
b. ASTM’s Petroleum Lab Technician Series is
a series of e-learning courses. The training
bundle includes a training module on ASTM’s
D611. The e-learning module includes ASTM
D611 as reference material for the course.
Attached as Exhibit 8 is a true and correct copy
of the description of ASTM’s Petroleum Lab
Technician Series available at
https://www.astm.org/TRAIN/train_226.htm.
c. ASTM’s e-Learning module on ASTM E23
Standard Test Methods for Notched Bar impact
testing of Metallic Materials, which includes a
copy of ASTM E23. Attached as Exhibit 9 is a
true and accurate copy of the description of
ASTM’s e-Learning module on E23 Standard
Test Methods available at
https://www.astm.org/TRAIN/filtrexx40.cgi?+P+ID+224+traindetail.frm.
10. Unlike ASTM, ASTM’s competitors
typically cannot and do not provide copies of
ASTM’s standards to their customers, at least
in part because ASTM’s competitors are
prohibited from reproducing ASTM’s standards
without acquiring a license from ASTM. As a
result, ASTM’s ability to offer excerpts or
copies of its standards with its training courses
gives ASTM an advantage over its competitors.

FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.

11. If ASTM was unable to fund its standard
development through the sale of its copyrighted
standards, ASTM could not fund its standards
development mission. The revenues

FRE 402 Relevance and FRE 403
Prejudice. The witness offers argument in
the guise of factual assertions. The
statements are also prejudicial because in

36

FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

Declaration of James S. Thomas In Support
of Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

associated with ASTM’s training program
could not compensate for the loss of such
revenue to fund the cost of ASTM’s standard
development expenses.

discussing ASTM’s revenue they do not
distinguish between ASTM’s standards that
have become laws by incorporation (and are
at issue in this case) from those standards
that have not become laws by incorporation,
creating confusion regarding the necessity
of revenues from laws by incorporation.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

12. ASTM provides free, read-only access to
view incorporated standards online in its
Reading Room. ASTM views this information
as educational and central to its overall mission.

FRE 402 Relevance and FRE 403
Prejudice. The statements are self-serving
argument in the guise of factual assertions.
Moreover, the statements are misleading
and prejudicial in this context without
disclosing that the “free” access requires
creation of an account and the surrender of
personal information by a user and also
limits normal tools persons use to navigate
through electronic documents. The
statements also fail to provide the context of
ASTM’s explicit efforts to make the reading
room “user unfriendly.”
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts

37

Declaration of James S. Thomas In Support
of Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

13. However, the provision of this free resource
does not compete with ASTM’s sale of
ASTM’s standards because the standards
available in the Reading Room are carefully
restricted to prevent download or copying.

FRE 402 Relevance and FRE 403
Prejudice. The statements are self-serving
argument in the guise of factual assertions.
Moreover, the statements are misleading
and prejudicial in this context without
disclosing that the “free” access requires
creation of an account and the surrender of
personal information by a user and also
limits normal tools persons use to navigate
through electronic documents. The
statements also fail to provide the context of
ASTM’s explicit efforts to make the reading
room “user unfriendly.”
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

14. Although industry professionals and
tradespeople who purchase ASTM’s standards
to use in the course of their work might
reference the ASTM’s Reading Room, it is not
a substitute for purchasing a copy.

38

FRE 402 Relevance and FRE 403
Prejudice. The statements are self-serving
argument in the guise of factual assertions.
Moreover, the statements are misleading
and prejudicial in this context without
disclosing that the “free” access requires
creation of an account and the surrender of
personal information by a user and also
limits normal tools persons use to navigate
through electronic documents. The
statements also fail to provide the context of

Declaration of James S. Thomas In Support
of Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ASTM’s explicit efforts to make the reading
room “user unfriendly.”
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

15. Rather, ASTM’s Reading Room serves as
an opportunity for ASTM to promote its
products and service offerings, including the
sale of its standards and training modules.

FRE 402 Relevance and FRE 403
Prejudice. The statements are self-serving
argument in the guise of factual assertions.
Moreover, the statements are misleading
and prejudicial in this context without
disclosing that the “free” access requires
creation of an account and the surrender of
personal information by a user and also
limits normal tools persons use to navigate
through electronic documents. The
statements also fail to provide the context of
ASTM’s explicit efforts to make the reading
room “user unfriendly.”
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

39

Declaration of James S. Thomas In Support
of Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

16. By providing unrestricted, downloadable
PDF and HTML copies of ASTM’s standards,
Public Resource directly competes with
ASTM’s sale of its individual standards,
volume sales, and other educational resources.

FRE 402 Relevance and FRE 403
Prejudice. The statements are also
prejudicial because in discussing ASTM’s
revenue they do not distinguish between
ASTM’s standards that have become laws
by incorporation (and are at issue in this
case) from those standards that have not
become laws by incorporation, creating
confusion regarding the importance of
revenues from laws by incorporation.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

17. The harm resulting from Public Resource’s
posting and dissemination of such unrestricted
copies of ASTM’s works for free is not limited
to the exact version of the ASTM work Public
Resource copies. 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.

FRE 402 Relevance and FRE 403
Prejudice. The witness offers argument in
the guise of factual assertions.
FRE 602 Lack of Personal Knowledge. The
witness has not established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an expert
and therefore cannot testify as to facts
beyond the witness’s personal knowledge.
This assertion constitutes an improper lay
opinion.

40

D.

Objections to the Declaration of Jane W. Wise in Support of Plaintiffs’
Second Motion for Summary Judgment and a Permanent Injunction

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

2. Attached as Exhibit 1 is a true and correct
copy of excerpts from Part 24 of the 1967
Annual Book of ASTM Standards showing
ASTM D1335-67. The copyright registration for
Part 24 of the 1967 Book of ASTM Standards
that identifies ASTM as the owner is attached as
Exhibit 74.

To the extent that the Plaintiffs rely upon
the copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

31. Attached as Exhibit 30 is a true and correct
copy of the registration certificate numbered TX
0-013-350 obtained from the Copyright Office
for Part 4 of the 1978 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance FRE 701 Improper
Opinion Testimony. To the extent that
the Plaintiffs rely upon the copyright
registration certificates to suggest their
ownership of copyrights, this states an
improper legal conclusion of ownership,
which is especially troublesome in this
case where the Plaintiffs’ evidence
showed an lack of ownership, which
caused Plaintiffs to abandon their first two
theories of copyright ownership (works
made for hire, then ownership by
assignment) in favor of a third theory of
ownership, namely joint authorship of
joint works, where the copyright
registrations contradict the theory of
ownership.

32. Attached as Exhibit 31 is a true and correct
copy of the registration certificate numbered TX
4-873-764 obtained from the Copyright Office

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

41

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

for Volume 1.04 of the 1999Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

33. Attached as Exhibit 32 is a true and correct
copy of the registration certificate numbered TX
0-464-573 obtained from the Copyright Office
for Part 4 of the 1980 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

34. Attached as Exhibit 33 is a true and correct
copy of the registration certificate numbered TX
7-685-938 obtained from the Copyright Office
for A106/A106M that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

42

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

35. Attached as Exhibit 34 is a true and correct
copy of the registration certificate numbered TX
4-654-921 obtained from the Copyright Office
for Volume 1.04 of the 1998 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

36. Attached as Exhibit 35 is a true and correct
copy of the registration certificate numbered TX
0-243-321 obtained from the Copyright Office
for Part 4 of the 1979 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

43

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

37. Attached as Exhibit 36 is a true and correct
copy of the registration certificate numbered TX
0-226-040 obtained from the Copyright Office
for Part 1 of the 1979 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

38. Attached as Exhibit 37 is a true and correct
copy of the registration certificate numbered TX
4-083-251 obtained from the Copyright Office
for Volume 1.01 of the 1995 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

39. Attached as Exhibit 38 is a true and correct
copy of the registration certificate numbered TX
4-029-508 obtained at my direction from the

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

44

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

Copyright Office for Volume 1.03 of the 1995
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

40. Attached as Exhibit 39 is a true and correct
copy of the registration certificate numbered TX
0-013-355 obtained from the Copyright Office
for Part 1 of the 1978 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

41. Attached as Exhibit 40 is a true and correct
copy of the registration certificate numbered TX
0-278-720 obtained from the Copyright Office
for Part 3 of the 1979 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

45

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

42. Attached as Exhibit 41 is a true and correct
copy of the registration certificate numbered A
0-721-891 obtained from the Copyright Office
for Part 4 of the 1976 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright. These photos fairly and accurately
depict the appearance of the registration
certificate for A 0-721-891.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

43. Attached as Exhibit 42 is a true and correct
copy of the registration certificate numbered TX
4-179-992 obtained from the Copyright Office
for Volume 1.01 of the 1996 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

46

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

44. Attached as Exhibit 43 is a true and correct
copy of the registration certificate numbered TX
3-043-643 obtained from the Copyright Office
for Volume 1.01 of the 1991 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

45. Attached as Exhibit 44 is a true and correct
copy of the registration certificate numbered A
0-316-410 obtained from the Copyright Office
for Part 4 of the 1972 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright. These photos fairly and accurately
depict the appearance of the registration
certificate for A 0-316-410.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

46. Attached as Exhibit 45 is a true and correct
copy of the registration certificate numbered TX
3-614-178 obtained from the Copyright Office

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

47

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

for Volume 2.01 of the 1993 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

47. Attached as Exhibit 46 is a true and correct
copy of the registration certificate numbered TX
1-374-252 obtained from the Copyright Office
for Volume 2.01 of the 1984 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

48. Attached as Exhibit 47 is a true and correct
copy of the registration certificate numbered TX
4-497-885 obtained from the Copyright Office
for Volume 2.01 of the 1997 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

48

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

49. Attached as Exhibit 48 is a true and correct
copy of the registration certificate numbered TX
4-243-005 obtained from the Copyright Office
for Volume 2.01 of the 1996 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

50. Attached as Exhibit 49 is a true and correct
copy of the registration certificate numbered TX
4-737-834 obtained from the Copyright Office
for Volume 2.01 of the 1998 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

49

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

51. Attached as Exhibit 50 is a true and correct
copy of the registration certificate numbered TX
1-453-716 obtained from the Copyright Office
for Volume 2.02 of the 1984 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

52. Attached as Exhibit 51 is a true and correct
copy of the registration certificate numbered TX
3-883-920 obtained from the Copyright Office
for Volume 2.01 of the 1994 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

53. Attached as Exhibit 52 is a true and correct
copy of the registration certificate numbered TX
4-768-932 obtained from the Copyright Office

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

50

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

for Volume 2.02 of the 1998 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

54. Attached as Exhibit 53 is a true and correct
copy of the registration certificate numbered TX
0-648-336 obtained from the Copyright Office
for Part 8 of the 1980 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

55. Attached as Exhibit 54 is a true and correct
copy of the registration certificate numbered TX
0-534-160 obtained from the Copyright Office
for Part 9 of the 1980 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

51

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

56. Attached as Exhibit 55 is a true and correct
copy of the registration certificate numbered TX
1-846-702 obtained from the Copyright Office
for Volume 2.01 of the 1986 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

57. Attached as Exhibit 56 is a true and correct
copy of the registration certificate numbered TX
0-627-128 obtained from the Copyright Office
for Part 13 of the 1980 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

52

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

58. Attached as Exhibit 57 are true and correct
copy the registration certificate numbered TX 7685-927 for ASTM C150 that identifies ASTM
as the owner.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

59. Attached as Exhibit 58 is a true and correct
copy of the registration certificate numbered TX
4-584-449 obtained from the Copyright Office
for Volume 4.06 of the 1997 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

60. Attached as Exhibit 59 is a true and correct
copy of the registration certificate numbered TX
2-984-931 obtained from the Copyright Office

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

53

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

for Volume 4.06 of the 1990 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

61. Attached as Exhibit 60 is a true and correct
copy of the registration certificate numbered TX
5-008-019 obtained from the Copyright Office
for Volume 4.02 of the 1999 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

62. Attached as Exhibit 61 is a true and correct
copy of the registration certificate numbered TX
1-696-496 obtained from the Copyright Office
for Volume 9.02 of the 1985 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

54

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

63. Attached as Exhibit 62 is a true and correct
copy of the registration certificate numbered TX
0-829-453 obtained from the Copyright Office
for Part 18 of the 1981 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

64. Attached as Exhibit 63 is a true and correct
copy of the registration certificate numbered TX
3-278-409 obtained from the Copyright Office
for Volume 4.06 of the 1991 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

55

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

65. Attached as Exhibit 64 is a true and correct
copy of the registration certificate numbered TX
1-041-470 obtained from the Copyright Office
for Part 18 of the 1982 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

66. Attached as Exhibit 65 is a true and correct
copy of the registration certificate numbered A
0-176-757 obtained from the Copyright Office
for Part 28 of the 1970 Annual Book of ASTM
Standards that identifies ASTM as the owner of
the copyright. These photos fairly and accurately
depict the appearance of the registration
certificate for A 0-176-757.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

67. Attached as Exhibit 66 is a true and correct
copy of the registration certificate numbered TX
4-223-325 obtained from the Copyright Office

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

56

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

for Volume 5.01 of the 1996 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

68. Attached as Exhibit 67 is a true and correct
copy of the registration certificate numbered TX
2-866-002 obtained from the Copyright Office
for Volume 11.01 of the 1990 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

69. Attached as Exhibit 68 is a true and correct
copy of the registration certificate numbered TX
1-152-729 obtained from the Copyright Office
for Volume 6.03 of the 1983 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

57

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

70. Attached as Exhibit 69 is a true and correct
copy of the registration certificate numbered TX
4-145-800 obtained from the Copyright Office
for Volume 9.01 of the 1995 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

71. Attached as Exhibit 70 is a true and correct
copy of the registration certificate numbered TX
3-840-415 obtained from the Copyright Office
for Volume 5.01 of the 1994 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

58

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

72. Attached as Exhibit 71 is a true and correct
copy of the registration certificate numbered TX
4-497-877 obtained from the Copyright Office
for Volume 11.01 of the 1997 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

73. Attached as Exhibit 72 is a true and correct
copy of the registration certificate numbered TX
2-081-531 obtained from the Copyright Office
for Volume 11.01 of the 1987 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

74. Attached as Exhibit 73 is a true and correct
copy of the registration certificate numbered TX
5-071-596 obtained from the Copyright Office

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

59

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

for Volume 5.01 of the 2000 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

75. Attached as Exhibit 74 is a true and correct
copy of the registration certificate numbered A
0-942-436 for Part 24 of the 1967 Book of
ASTM Standards that identifies ASTM as the
owner of the copyright. These photos fairly and
accurately depict the appearance of the
registration certificate for A 0-942-436.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

76. Attached as Exhibit 75 is a true and correct
copy of the registration certificate numbered TX
3-936-510 obtained from the Copyright Office
for Volume 5.05 of the 1994 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

60

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

77. Attached as Exhibit 76 is a true and correct
copy of the registration certificate numbered TX
1-725-733 obtained from the Copyright Office
for Volume 7.01 of the 1985 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

78. Attached as Exhibit 77 is a true and correct
copy of the registration certificate numbered TX
2-814-346 obtained from the Copyright Office
for Volume 6.01 of the 1990 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

61

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

79. Attached as Exhibit 78 is a true and correct
copy of the registration certificate numbered TX
4-257-533 obtained from the Copyright Office
for Volume 11.01 of the 1996 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

80. Attached as Exhibit 79 is a true and correct
copy of the registration certificate numbered TX
2-058-606 obtained from the Copyright Office
for Volume 8.04 of the 1987 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

81. Attached as Exhibit 80 is a true and correct
copy of the registration certificate numbered TX
4-497-876 obtained from the Copyright Office

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

62

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

for Volume 11.02 of the 1997 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

82. Attached as Exhibit 81 is a true and correct
copy of the registration certificate numbered TX
4-557-835 obtained from the Copyright Office
for Volume 5.05 of the 1997 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

83. Attached as Exhibit 82 is a true and correct
copy of the registration certificate numbered TX
2-992-651 obtained from the Copyright Office
for Volume 5.05 of the 1990 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

63

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

84. Attached as Exhibit 83 is a true and correct
copy of the registration certificate numbered TX
2-201-054 obtained from the Copyright Office
for Volume 5.05 of the 1987 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

85. Attached as Exhibit 84 is a true and correct
copy of the registration certificate numbered TX
4-929-091 obtained from the Copyright Office
for Volume 11.02 of the 1999 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

64

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

86. Attached as Exhibit 85 is a true and correct
copy of the registration certificate numbered TX
3-450-603 obtained from the Copyright Office
for Volume 5.02 of the 1992 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

87. Attached as Exhibit 86 is a true and correct
copy of the registration certificate numbered TX
4-893-151 obtained from the Copyright Office
for Volume 4.08 of the 1999 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

88. Attached as Exhibit 87 is a true and correct
copy of the registration certificate numbered TX
4-951-524 obtained from the Copyright Office

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

65

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

for Volume 5.05 of the 1999 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

89. Attached as Exhibit 88 is a true and correct
copy of the registration certificate numbered TX
4-693-073 obtained from the Copyright Office
for Volume 11.02 of the 1998 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

90. Attached as Exhibit 89 is a true and correct
copy of the registration certificate numbered TX
3-512-412 obtained from the Copyright Office
for Volume 5.01 of the 1993 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

66

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

91. Attached as Exhibit 90 is a true and correct
copy of the registration certificate numbered TX
4-029-468 obtained from the Copyright Office
for Volume 5.02 of the 1995 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

92. Attached as Exhibit 91 is a true and correct
copy of the registration certificate numbered TX
4-898-490 obtained from the Copyright Office
for Volume 5.02 of the 1999 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

67

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

93. Attached as Exhibit 92 is a true and correct
copy of the registration certificate numbered TX
2-209-876 obtained from the Copyright Office
for Volume 7.01 of the 1987 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

94. Attached as Exhibit 93 is a true and correct
copy of the registration certificate numbered TX
4-920-028 obtained from the Copyright Office
for Volume 11.01 of the 1999 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

95. Attached as Exhibit 94 is a true and correct
copy of the registration certificate numbered TX
4-622-434 obtained from the Copyright Office

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

68

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

for Volume 5.02 of the 1998 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

96. Attached as Exhibit 95 is a true and correct
copy of the registration certificate numbered TX
4-399-608 obtained from the Copyright Office
for Volume 11.03 of the 1996 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

97. Attached as Exhibit 96 is a true and correct
copy of the registration certificate numbered TX
4-511-604 obtained from the Copyright Office
for Volume 5.02 of the 1997 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

69

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

98. Attached as Exhibit 97 is a true and correct
copy of the registration certificate numbered TX
3-553-811 obtained from the Copyright Office
for Volume 11.02 of the 1993 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

99. Attached as Exhibit 98 is a true and correct
copy of the registration certificate numbered TX
4-768-933 obtained from the Copyright Office
for Volume 5.05 of the 1998 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

70

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

100. Attached as Exhibit 99 is a true and correct
copy of the registration certificate numbered TX
3-970-770 obtained from the Copyright Office
for Volume 7.02 of the 1995 Annual Book of
ASTM Standards that identifies ASTM as the
owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

101. Attached as Exhibit 100 is a true and
correct copy of the registration certificate
numbered TX 4-951-512 obtained from the
Copyright Office for Volume 8.03 of the 1999
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

102. Attached as Exhibit 101 is a true and
correct copy of the registration certificate
numbered TX 4-248-138 obtained from the

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the

71

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

Copyright Office for Volume 5.03 of the 1996
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

103. Attached as Exhibit 102 is a true and
correct copy of the registration certificate
numbered TX 2-697-913 obtained from the
Copyright Office for Volume 5.05 of the 1989
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

104. Attached as Exhibit 103 is a true and
correct copy of the registration certificate
numbered TX 3-614-549 obtained from the
Copyright Office for Volume 5.05 of the 1993
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of

72

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

105. Attached as Exhibit 104 is a true and
correct copy of the registration certificate
numbered TX 4-394-571 obtained from the
Copyright Office for Volume 7.02 of the 1996
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership.

106. Attached as Exhibit 105 is a true and
correct copy of the registration certificate
numbered TX 4-787-691 obtained from the
Copyright Office for Volume 11.03 of the 1998
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights, this
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

73

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership.

107. Attached as Exhibit 106 is a true and
correct copy of the registration certificate
numbered TX 5-202-199 obtained from the
Copyright Office for Volume 11.03 of the 2000
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

108. Attached as Exhibit 107 is a true and
correct copy of the registration certificate
numbered TX 5-369-432 obtained from the
Copyright Office for Volume 11.02 of the 2001
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

74

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

109. Attached as Exhibit 108 is a true and
correct copy of the registration certificate
numbered TX 4-143-803 obtained from the
Copyright Office for Volume 14.02 of the 1995
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

110. Attached as Exhibit 109 is a true and
correct copy of the registration certificate
numbered TX 0-988-070 obtained from the
Copyright Office for Part 10 of the 1982 Annual
Book of ASTM Standards that identifies ASTM
as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

111. Attached as Exhibit 110 is a true and
correct copy of the registration certificate
numbered TX-3-135-932 obtained from the
Copyright Office for Volume 2.03 of the 1991

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to

75

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

112. Attached as Exhibit 111 is a true and
correct copy of the registration certificate
numbered TX 4-811-646 obtained from the
Copyright Office for Volume 4.06 of the 1998
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

113. Attached as Exhibit 112 is a true and
correct copy of the registration certificate
numbered TX 2-153-942 obtained from the
Copyright Office for Volume 14.01 of the 1987
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially

76

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

114. Attached as Exhibit 113 is a true and
correct copy of the registration certificate
numbered TX 1-210-036 obtained from the
Copyright Office for Volume 12.02 of the 1983
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

115. Attached as Exhibit 114 is a true and
correct copy of the registration certificate
numbered TX 4-512-210 obtained from the
Copyright Office for Volume 14.02 of the 1997
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of

77

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

116. Attached as Exhibit 115 is a true and
correct copy of the registration certificate
numbered TX 3-972-349 obtained from the
Copyright Office for Volume 4.07 of the 1995
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

117. Attached as Exhibit 116 is a true and
correct copy of the registration certificate
numbered A 0-257-751 obtained from the
Copyright Office for Part 30 of the 1971 Annual
Book of ASTM Standards that identifies ASTM
as the owner of the copyright. These photos
fairly and accurately depict the appearance of
the registration certificate for A 0-257-751.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

78

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership..

118. Attached as Exhibit 117 is a true and
correct copy of the registration certificate
numbered TX 0-565-132 obtained from the
Copyright Office for Part 10 of the 1980 Annual
Book of ASTM Standards that identifies ASTM
as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

119. Attached as Exhibit 118 is a true and
correct copy of the registration certificate
numbered TX 1-846-704 obtained from the
Copyright Office for Volume 14.02 of the 1986
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

79

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

120. Attached as Exhibit 119 is a true and
correct copy of the registration certificate
numbered TX 3-689-742 obtained from the
Copyright Office for Volume 11.04 of the 1993
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

121. Attached as Exhibit 120 is a true and
correct copy of the registration certificate
numbered TX 4-571-119 obtained from the
Copyright Office for Volume 4.07 of the 1997
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

122. Attached as Exhibit 121 is a true and
correct copy of the registration certificate
numbered TX 2-407-753 obtained from the
Copyright Office for Volume 11.04 of the 1988

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to

80

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

123. Attached as Exhibit 122 is a true and
correct copy of the registration certificate
numbered TX 3-128-183 obtained from the
Copyright Office for Volume 4.03 of the 1991
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

124. Attached as Exhibit 123 is a true and
correct copy of the registration certificate
numbered TX 0-339-441 obtained from the
Copyright Office for Part 46 of the 1979 Annual
Book of ASTM Standards that identifies ASTM
as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially

81

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

125. Attached as Exhibit 124 is a true and
correct copy of the registration certificate
numbered TX 3-450-276 obtained from the
Copyright Office for Volume 10.03 of the 1992
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

126. Attached as Exhibit 125 is a true and
correct copy of the registration certificate
numbered TX 0-565-140 obtained from the
Copyright Office for Part 46 of the 1980 Annual
Book of ASTM Standards that identifies ASTM
as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of

82

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

127. Attached as Exhibit 126 is a true and
correct copy of the registration certificate
numbered TX 3-883-919 obtained from the
Copyright Office for Volume 11.04 of the 1994
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

128. Attached as Exhibit 127 is a true and
correct copy of the registration certificate
numbered TX 1-094-853 obtained from the
Copyright Office for Volume 1.02 of the 1983
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

83

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership..

129. Attached as Exhibit 128 is a true and
correct copy of the registration certificate
numbered TX 0-814-687 obtained from the
Copyright Office for Part 46 of the 1981 Annual
Book of ASTM Standards that identifies ASTM
as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

130. Attached as Exhibit 129 is a true and
correct copy of the registration certificate
numbered TX 4-126-631 obtained from the
Copyright Office for Volume 11.04 of the 1995
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

84

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

131. Attached as Exhibit 130 is a true and
correct copy of the registration certificate
numbered TX 0-988-069 obtained from the
Copyright Office for Part 46 of the 1982 Annual
Book of ASTM Standards that identifies ASTM
as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

132. Attached as Exhibit 131 is a true and
correct copy of the registration certificate
numbered TX 1-187-014 obtained from the
Copyright Office for Volume 11.04 of the 1983
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

133. Attached as Exhibit 132 is a true and
correct copy of the registration certificate
numbered TX 2-046-852 obtained from the
Copyright Office for Volume 1.02 of the 1987

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to

85

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

134. Attached as Exhibit 133 is a true and
correct copy of the registration certificate
numbered TX 3-524-687 obtained from the
Copyright Office for Volume 1.07 of the 1993
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

135. Attached as Exhibit 134 is a true and
correct copy of the registration certificate
numbered TX 2-606-739 obtained from the
Copyright Office for Volume 1.02 of the 1989
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially

86

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

136. Attached as Exhibit 135 is a true and
correct copy of the registration certificate
numbered TX 4-862-629 obtained from the
Copyright Office for Volume 1.07 of the 1999
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

137. Attached as Exhibit 136 is a true and
correct copy of the registration certificate
numbered TX 4-216-101 obtained from the
Copyright Office for Volume 1.07 of the 1996
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of

87

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

138. Attached as Exhibit 137 is a true and
correct copy of the registration certificate
numbered TX 7-763-690 for ASTM F1193
obtained from the Copyright Office that
identifies ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

139. Attached as Exhibit 138 is a true and
correct copy of the registration certificate
numbered TX 2-864-187 obtained from the
Copyright Office for Volume 1.07 of the 1990
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

88

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership..

140. Attached as Exhibit 139 is a true and
correct copy of the registration certificate
numbered TX 3-035-186 obtained from the
Copyright Office for Volume 1.07 of the 1991
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

141. Attached as Exhibit 140 is a true and
correct copy of the registration certificate
numbered TX 3-278-410 obtained from the
Copyright Office for Volume 1.07 of the 1992
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

89

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

142. Attached as Exhibit 141 is a true and
correct copy of the registration certificate
numbered TX 3-614-184 obtained from the
Copyright Office for Volume 14.02 of the 1993
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

143. Attached as Exhibit 142 is a true and
correct copy of the registration certificate
numbered TX 4-654-755 obtained from the
Copyright Office for Volume 1.07 of the 1998
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

144. Attached as Exhibit 143 is a true and
correct copy of the registration certificate
numbered TX 4-029-465 obtained from the
Copyright Office for Volume 1.07 of the 1995

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to

90

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections

Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

145. Attached as Exhibit 144 is a true and
correct copy of the registration certificate
numbered TX 5-058-024 obtained from the
Copyright Office for Volume 15.07 of the 1999
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

146. Attached as Exhibit 145 is a true and
correct copy of the registration certificate
numbered TX 3-114-937 obtained from the
Copyright Office for Volume 8.03 of the 1991
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially

91

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

147. Attached as Exhibit 146 is a true and
correct copy of the registration certificate
numbered TX 4-755-309 obtained from the
Copyright Office for Volume 14.02 of the 1998
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

148. Attached as Exhibit 147 is a true and
correct copy of the registration certificate
numbered TX 5-410-705 obtained from the
Copyright Office for Volume 14.04 of the 2001
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of

92

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

149. Attached as Exhibit 148 is a true and
correct copy of the registration certificate
numbered TX 2-567-321 obtained from the
Copyright Office for Volume 5.02 of the 1989
Annual Book of ASTM Standards that identifies
ASTM as the owner of the copyright.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,
where the copyright registrations
contradict the theory of ownership..

150. Attached as Exhibit 149 is a compilation of
true and correct copies of the 191 ASTM
standards shown in Annex A to Plaintiffs’
Motion for Summary Judgment.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To the
extent that the Plaintiffs rely upon the
copyright registration certificates to
suggest their ownership of copyrights,
FRE 701 Improper legal opinion: This
states an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack of
ownership, which caused Plaintiffs to
abandon their first two theories of
copyright ownership (works made for
hire, then ownership by assignment) in
favor of a third theory of ownership,
namely joint authorship of joint works,

93

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
where the copyright registrations
contradict the theory of ownership..

151. Attached as Exhibit 150 is a compilation of
true and correct copies of the PRO infringing
standards, which are the subject of this motion,
as produced by PRO in this matter, including:

FRE 403 Prejudice. Assumes that Public
Resource has infringed something.
FRE 602 Lack of Personal Knowledge.
The witness has not established any
personal knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The witness
has not been qualified as an expert and
therefore cannot testify as to facts beyond
the witness’s personal knowledge.

158. Attached hereto as Exhibit 157 is a true
and correct copy of a document Bates labeled
ASTM103291, which was produced by ASTM
in this matter.

FRE 802 Hearsay. ASTM has failed to
disclose the identity of any custodian of
records who would be able to satisfy the
requirements of the business records
exception to hearsay for this document.
FRE 901 Lack of Authentication. ASTM
has failed to disclose the identity of any
custodian of records who would be able to
authenticate this document.

159. Attached hereto as Exhibit 158 are true and
correct copies of a document Bates labeled
ASTM103527, which was produced by ASTM
in this matter.

FRE 104(b), 401, 402. The purported
relevance of this document depends on
facts that ASTM has failed to establish in
this declaration.
FRE 802 Hearsay. ASTM has failed to
disclose the identity of any custodian of
records who would be able to satisfy the
requirements of the business records
exception to hearsay for this document.

94

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
FRE 901 Lack of Authentication. ASTM
has failed to disclose the identity of any
custodian of records who would be able to
authenticate this document.

160. Attached hereto as Exhibit 159 are true and
correct copies of a document Bates labeled
ASTM103529, which was produced by ASTM
in this matter.

FRE 104(b), 401, 402. The purported
relevance of this document depends on
facts that ASTM has failed to establish in
this declaration.
FRE 802 Hearsay. ASTM has failed to
disclose the identity of any custodian of
records who would be able to satisfy the
requirements of the business records
exception to hearsay for this document.
FRE 901 Lack of Authentication. ASTM
has failed to disclose the identity of any
custodian of records who would be able to
authenticate this document.

161. Attached hereto as Exhibit 160 are true and
correct copies of Bates a document Bates labeled
ASTM003523, which was produced by ASTM
in this matter.

FRE 104(b), 401, 402. The purported
relevance of this document depends on
facts that ASTM has failed to establish in
this declaration.
FRE 802 Hearsay. ASTM has failed to
disclose the identity of any custodian of
records who would be able to satisfy the
requirements of the business records
exception to hearsay for this document.
FRE 901 Lack of Authentication. ASTM
has failed to disclose the identity of any
custodian of records who would be able to
authenticate this document.

162. Attached hereto as Exhibit 161 are true and
correct copies of a document Bates labeled
ASTM003631, which was produced by ASTM
in this matter.

95

FRE 104(b), 401, 402. The purported
relevance of this document depends on
facts that ASTM has failed to establish in
this declaration.

Declaration of Jane W. Wise In Support of
Plaintiffs’ Second Motion for Summary
Judgment And A Permanent Injunction

Defendant-Counterclaimant
Public Resource’s Objections
FRE 802 Hearsay. ASTM has failed to
disclose the identity of any custodian of
records who would be able to satisfy the
requirements of the business records
exception to hearsay for this document.
FRE 901 Lack of Authentication. ASTM
has failed to disclose the identity of any
custodian of records who would be able to
authenticate this document.

96

Dated: November 12, 2019

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[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.

97