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.

DECLARATION OF CARL MALAMUD IN OPPOSITION TO [198] PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANT
PUBLIC.RESOURCE.ORG., INC.’S CROSS MOTION FOR SUMMARY JUDGMENT
1.

Since 2007, I have been the President and Founder of Public.Resource.Org

(“Public Resource”), a nonprofit corporation incorporated in California which operates solely for
educational and charitable purposes and is registered under Section 501(c)(3) of the Internal
Revenue Code. I have personal knowledge of the matters stated in this declaration and could
competently testify to them if called as a witness.
2.

In this declaration, I address: (I) Some background on my previous work; and (II)

my motivation and practices concerning the issues currently before the Court.

1

I.

CONTRIBUTIONS TO GOVERNMENT AND TO THE PUBLIC, AND EFFORTS
TO MAKE GOVERNMENT AND LEGAL INFORMATION FREELY
AVAILABLE
3.

I completed my doctoral coursework in Economics at the Indiana University

School of Business, with a focus on antitrust and regulation. I dropped out of that program to
work for the Indiana University computing center, where I worked on early relational database
programs and computer networking, managed a large computer literacy program for business
students, and assisted the computing center in connecting our university to the Internet.
4.

In 1984, I was part of a small team at the Board of Governors of the Federal

Reserve System that substantially changed how the Board used computers. We created a
distributed architecture for the Research Division, installed Unix workstations and a computer
network, and provided economists tools that led to substantial improvements in key indicators
such as forecasts of the money supply.
5.

I spent the rest of the 1980s as a computer consultant to the Argonne and

Lawrence Livermore National Laboratories and the Department of Defense, as well as teaching
advanced seminars in relational databases and computer networks. During that time, I shifted my
focus to writing, authoring six books including a three-volume professional series on computer
networks and one of the earliest books on relational databases. I also wrote extensively for the
press as a featured columnist for publications such as Data Communications, Communications
Week, and the Bangkok Post.
6.

In the 1990s, I began to shift my focus exclusively to the global Internet, and in

1993 I founded the first radio station on the Internet, which I ran as a 501(c)(3) nonprofit public
station. My weekly radio program “Geek of the Week” is considered the first “podcast.” We
live-streamed all the luncheon addresses from the National Press Club, and I helped put the club
on-line. Exhibit 1 is a copy I obtained of an article about my work in this matter: John Markoff,
2

“Turning the Desktop PC Into a Talk Radio Medium,” New York Times, March 4, 1993.
7.

In January 1994, I began efforts to make government materials, and especially

legal materials, more widely available on the Internet. I used a National Science Foundation
grant to purchase all electronic filings submitted by corporations to the Securities and Exchange
Commission and made the Electronic Data Gathering and Retrieval (known as “EDGAR”)
service available for free on the Internet. Exhibit 2 is a copy of an article about my work in this
matter: John Markoff, “Plan Opens More Data To Public,” New York Times, October 22, 1993.
8.

In August 1995, I donated computers and software to the Securities and Exchange

Commission so that it was were able to take over the EDGAR service. It ran the service on the
Internet for several years using software we developed. Exhibit 3 is a letter from the Securities
and Exchange Commission to me on August 31, 1995 , stating in part: “Looking forward to your
support as we continue down the road you’ve paved.” The SEC is still running this popular
service today (now using their own software), making SEC filings available to the public at no
cost, here: https://www.sec.gov/edgar.shtml.
9.

In 1994, I obtained the first “new media” credentials from the Radio-TV Gallery

of the U.S. House of Representatives and started live-streaming all proceedings from the floors
of the House and Senate. Exhibit 4 is a copy of an article written about my work in this matter:
John Schwartz, “Superhighway Routed Through Capitol Hill,” Washington Post, September 9,
1994.
10.

In 1995, I assisted the Joint Economic Committee in doing the first congressional

hearing on the Internet, including live-streaming of the proceedings and questions received for
the witnesses from viewers on the Internet. Exhibit 5 is a letter from Senator Connie Mack to me
on June 16, 1995, concerning the hearing.

3

11.

In 1996, I led a team of colleagues from around the world to create the first

World’s Fair on the Internet. The fair attracted 5 million unique visitors, and included real-world
events throughout the globe in locations such as Japan, Taiwan, the Netherlands, India, and
Kazakhstan. The fair received letters of support from numerous heads of state including
Presidents William J. Clinton and Boris Yeltsin; and my book on the world’s fair, published by
MIT Press, included a foreword from His Holiness the Dalai Lama. Exhibit 6 is a copy of an
article about my work in this matter: Katie Hafner, “The Man With Ideas: The Robert Moses of
Cyberspace Plans a 1996 World’s Fair,” Newsweek, July 24, 1995. Exhibit 7 is a copy of the
foreword from my book: “Foreword by His Holiness the Dalai Lama,” A World’s Fair for the
Information Age, MIT Press (1997).
12.

In 1994, I purchased feeds of all U.S. patents and made them available for free on

the Internet. I sought to convince the U.S. Patent and Trademark Office to provide this service
instead of me, and in 1998 I engaged in a successful campaign to have the government make this
information directly available to the public without charge. Exhibit 8 is a of an article about my
work in this matter: John Schwartz, “Ideas Whose Time for Free Access Has Come,”
Washington Post, June 29, 1998. Exhibit 9 is a copy of another article about my work in this
matter: John Markoff, “U.S. to Release Patent Data On a World Wide Web Site,” New York
Times, June 25, 1998.
13.

In 2005 and 2006, I was the Chief Technology Officer for the non-profit

education organization Center for American Progress. While there, I spent considerable time
developing a plan that would make all congressional hearings available to the public in highresolution video. The plan generated considerable interest throughout government. After I left
the Center, I continued to pursue this idea. Exhibit 10 is a letter to me from the Public Printer of

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the United States on July 27, 2006 supporting my proposal. Exhibit 11 is a letter to me from
Hon. Nancy Pelosi, the Speaker of the House of Representatives, on April 17, 2008, supporting
my “FedFlix” initiative, in which she stated: “I thank you for your work to increase public
discourse on technology, public domain, and transparency issues and look forward to continuing
to work with you.”
14.

In 2007, I created Public.Resource.Org. One of the first intensive projects Public

Resource undertook was to make congressional hearings more broadly available. After C-SPAN
asserted copyright over the broadcast feed of the Speaker testifying before the House, I
intervened and the result was broader availability of congressional hearings. As part of that
effort, I purchased hundreds of DVDs of congressional hearings, with C-SPAN’s blessing, and
posted them for free access on the net. Exhibit 12 is a copy of an article about my work in this
matter: James Fallows, “Another Win for Carl Malamud,” Atlantic Monthly, March 9, 2007.
15.

In 2011, in one of his first acts upon taking office, Speaker John Boehner,

together with Representative Darrell Issa, chair of the House Committee on Oversight and
Government Reform, asked me to assist the U.S. House of Representatives in making
congressional video more broadly available. As part of that effort, I helped make the Committee
on Oversight and Government Reform the first committee to provide closed-captioning of video,
and over the course of the project I posted over 14,000 hours of congressional video spanning a
decade, and assisted committees in posting some of these videos on their own web sites. That
effort was later recognized on the floor of the House. Exhibit 13 is a letter from Speaker
Boehner and Chairman Issa to me, on January 5, 2011, stating in part: “We’re writing today to
thank you for your nearly two decades of work to increase the availability of public data, and
more recently your efforts to publish proceedings of the House Oversight and Government

5

Reform Committee in their entirety.” Exhibit 14 is a correct copy of the Remarks of
Congressman Issa titled “Commemorating the Tenth Anniversary of Public.Resource.Org,”
Congressional Record, Page E285, March 7, 2017.
16.

From 2007 to 2015, Public Resource purchased and processed over 2,000 DVDs

from the Internal Revenue Service containing the tax returns of non-profit organizations. In the
course of that work, I found and redacted over 450,000 social security numbers and other privacy
violations and submitted numerous reports to the IRS until it made substantial changes in its
regulations to provide for the redaction of personal information. I also pressed the IRS to release
e-file versions of non-profit tax returns and pursued a successful Freedom of Information suit in
the U.S. District Court which resulted in the release of over 1.5 million e-file returns and
substantial changes in IRS policy. Public.Resource.org v. U.S. Internal Revenue Serv., 78 F.
Supp. 3d 1262 (N.D. Cal. 2015). The data I processed forms the basis for the non-profit
journalism organization ProPublica’s free search service for non-profit returns. Exhibit 15 is a
copy of an article about my work in this matter: Suzanne Perry, “IRS Plans to Begin Releasing
Electronic Nonprofit Tax Forms Next Year,” Chronicle of Philanthropy, June 30, 2015.
17.

In 2007, Public Resource made available for the first time historical opinions of

all circuits of the U.S. Court of Appeals for free access on the Internet.
18.

In the process of posting the Court of Appeals opinions, I found numerous Social

Security Numbers in the opinions, some of which were visible on court web sites. I informed the
Clerks of all the Circuits of this so that they were able to redact this information. Exhibit 16 is a
copy of an article about my work in this matter: Robert Ambrogi, “1.8M Pages of Federal Case
Law To Go Public,” Law Sites, November 14, 2007. Exhibit 17 is a copy of a letter to me from
the Hon. Lee H. Rosenthal, Chair of the Committee on Rules of Practice and Procedure of the

6

Judicial Conference of the United States, on July 16, 2008, thanking me for the information I
provided and stating “[i]t is enormously helpful to have the benefit of the empirical research that
you have done.”
19.

In 2008, I discovered thousands of documents with privacy violations in the

PACER database of federal court filings after a colleague downloaded documents from a public
access site of the Administrative Office of the U.S. Courts. I informed chief judges of 32 U.S.
district courts about these issues, and many of them responded by ensuring that the documents
were properly redacted. I also briefed congressional officials and, at the request of that court’s
Chief Judge, the U.S. Court of Appeals for the Ninth Circuit. Exhibit 18 is a copy of a letter to
me from Chief Judge Royce C. Lamberth, U.S. District Court for the District of Columbia, on
January 28, 2009, thanking me for my work and stating that the documents I had identified with
social security numbers would be replaced with partially redacted versions. Exhibit 19 is a copy
of a letter from U.S. Senator Joseph I. Lieberman to Hon. Lee H. Rosenthal, on February 27,
2009, addressing my work and the need to better ensure redactions of sensitive personal data.
Exhibit 20 is a copy of my prepared statement before the U.S. Court of Appeals for the Ninth
Circuit on June 23, 2010.
20.

In April 2009, I signed Agreement No. NTIS-1832 with the National Technical

Information Service, a part of the Department of Commerce, to start the FedFlix project I created
to post decades of films and videos produced by the federal government. As part of that effort,
NTIS sent me several hundred videos in various old formats. I digitized those videos and
returned them to NTIS along with a disk drive of the digitized videos. I then posted the videos on
YouTube and the Internet Archive.
21.

In 2010, I met with the Honorable David Ferriero, Archivist of the United States,

7

and he agreed to let me send volunteers into the National Archives along with DVD duplicators.
The volunteers, whom we called the “International Amateur Scanning League,” reproduced over
5,000 videos. Those were added to the YouTube and Internet Archive sites. The YouTube
FedFlix channel has over 186,000 subscribers and has had over 74 million views. It can be
accessed at https://www.youtube.com/user/PublicResourceOrg. The Internet Archive FedFlix
collection has had close to 18 million views and can be accessed at
https://archive.org/details/FedFlix.
22.

In January 2009, President Obama’s transition effort asked me to develop plans

for transforming the Federal Register. Those plans were adopted, and this resulted in making
source code for the Federal Register available to the public at no charge. This code was then used
by a number of open source programmers in California to create a vastly better version of the
Federal Register, and this new version was subsequently adopted by the Office of the Federal
Register as its official web site. I assisted the Office of the Federal Register and the White House
throughout this process. I nominated the Office of the Federal Register for the first-ever Walter
Gellhorn Award for innovation in government services by the Administrative Conference of the
United States, of which I was a member, and was delighted that they won. The Archivist of the
United States subsequently recognized my efforts. Exhibit 21 is a copy of my submission to the
Presidential Transition Effort (“Change.Gov”), titled “Federal Register 2.0,” on January 5, 2009.
Exhibit 22 is a copy of a letter from the Hon. David Ferriero, Archivist of the United States to
me, on April 2, 2019, describing Public Resource’s “long-term commitment to public access,”
mentioning receipt of the Walter Gellhorn Award, and stating in closing: “Our Founding Fathers
believed that an informed and involved citizenry was key to our democracy and Public Resource
helps us make[] this true.”

8

23.

A number of organizations have recognized my efforts to make government

information more accessible. In 2008, Harvard University presented me the Berkman Award for
“outstanding contributions to the Internet’s impact on society.” In 2008 and 2016, the Society of
Professional Journalists presented me the James Madison Award for Freedom of Information. In
2009, the First Amendment Coalition presented me the Bill Farr Award for furthering the
principles of free speech, free press, and public access to government. In 2009, the Electronic
Frontier Foundation, an organization with a mission to protect and promote privacy, civil
liberties, and free expression (and one of the lead pro bono counsel for Public.Resource.Org in
this case), presented me the Pioneer Award. In 2019, the American Association of Law Libraries
presented me the Public Access to Government Information award.
II.

PUBLIC RESOURCE’S EFFORTS TO MAKE THE LAW FREELY AVAILABLE
24.

My efforts to make the law available began with the judicial branch, but I was

also keenly interested in state statutes. After the State of Oregon objected to Public Resource’s
posting of the Oregon Revised Statutes, I was invited to appear before the Legislative Counsel
Committee, a joint committee of the Oregon Legislature chaired by the Speaker of the House and
the Senate President. After hearing from a number of witnesses, including the Legislative
Counsel, the committee voted to waive all assertions of copyright over the Oregon Revised
Statutes. Exhibit 23 is a copy of my prepared statement before the Oregon State Legislature
Legislative Counsel Committee on June 19, 2008.
25.

In 2012, a similar situation occurred regarding the posting of the official Code of

the District of Columbia. After the General Counsel of the District of Columbia studied the
situation, he actively encouraged a number of my colleagues in the open source community to
work with the code, and the results were a spectacularly better web site for public access to the
laws of the District of Columbia. The software is maintained by the non-profit Open Law Library
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and can be seen at https://code.dccouncil.us/.
26.

Not all states have been as welcoming to such efforts. The States of Georgia and

Mississippi both objected strenuously to efforts to make their state laws more broadly accessible,
and the State of Georgia sued Public.Resource.Org. That case is now before the U.S. Supreme
Court, and it has attracted widespread attention from a number of amici and commentators. State
of Georgia et. al. v. Public.Resource.Org, U.S. Supreme Court Docket 18-1150. Exhibit 24 is a
copy of an article about my work in this matter: The Editorial Board, “The Law©?,” New York
Times, June 25, 2019.
27.

Because of my long-standing interest in administrative law and my interaction

with groups such as the Office of the Federal Register, I was naturally drawn to the regulations
of my home state, California. I spent considerable effort converting the California Code of
Regulations into HTML (hypertext markup language), including conversion of all the diagrams
to the open “SVG” (scalable vector graphics) standard, which allows high-quality diagrams to be
resized and coded the formulas to the open “MathML” standard, which makes the mathematical
expressions accessible to the visually impaired.
28.

Although most portions of the California Code of Regulations are freely available

online, a notable gap in the California Code of Regulations is Title 24, which are the public
safety codes of California, including the building, fire, electrical, plumbing, mechanical, and
other state-wide public safety codes. The codes are developed and released on a triennial cycle
which includes numerous public hearings coordinated by the Building Standards Commission
with the strong participation of 13 additional state agencies. The process results in a triennial
release of heavily amended versions of model codes, versions that are issued under the authority
of the State of California and must be enforced by all municipalities and counties in the state.

10

29.

After deep study of the mechanics of this process of adoption, and reading legal

decisions relevant to the question, such as the Veeck decision of the Fifth Circuit, I began
purchasing and posting Title 24 of the California Code of Regulations in 2008. I then carefully
examined other state statutes and regulations looking for explicit and deliberate incorporation by
reference of other codes that had binding effect in state laws and regulations.
30.

In 2010, I wrote to Ms. Maureen Brodoff, General Counsel of NFPA, and asked

for a meeting with Mr. James Shannon, then the President of the organization. In June 2011, I
met with Ms. Brodoff and Mr. Shannon. They requested that the meeting be governed by a NonDisclosure Agreement so I am not able to discuss the details, but I can say the meeting was
cordial and informative. In 2012, NFPA asked if I could come to Boston to discuss issues with
its technical staff and offered to pay for my plane ticket.
31.

Based on my frequent interactions with the Government Printing Office and the

Office of the Federal Register and my membership in the Administrative Conference of the
United States, I was quite familiar with the Code of Federal Regulations and the process of
incorporation by reference. In 2012, I made a careful study of the Code of Federal Regulations
and purchased a number of standards that it had incorporated. I made copies of those standards,
added additional materials including a number of letters addressed to government officials, and
sent these packets to 10 standards bodies and a number of government agencies. In those
packets, I set out my thoughts as to why these materials were binding law and should be made
available to the general public. I asked for comments from the standards bodies, but not one
responded. Exhibit 25 is a correct copy of a document I sent in these mailings, with the title
“Notice of Incorporation,” dated March 15, 2012.
32.

After waiting 45 days for comments (and sending notes to organizations such as

11

NFPA to make sure they had received the packets), I began posting standards that the federal
government had incorporated by reference into the Code of Federal Regulations. I heard nothing
from standards bodies, with the exception of two take-down notices, one in November 2012 from
the American Petroleum Institute and one in December 2012 from the National Standard
Plumbing Code Committee. In each case I responded with a letter stating why I believed these
documents were properly incorporated into law, and in both cases I did not hear back from the
organizations.
33.

In January 2013, I was contacted by the Sheet Metal and Air Conditioning

Contractors National Association (SMACNA) concerning the posting of the “HVAC Air Duct
Leakage Test Manual” which was incorporated by reference into 10 CFR § 434.403 as well into
state regulations. I responded to SMACNA stating my reasons for posting the document in
question. Exhibit 26 is a copy of my response to SMACNA, on January 11, 2013.
34.

After SMACNA continued to object and threatened suit, Public Resource sued for

declaratory relief in the U.S. District Court for the Northern District of California,
Public.Resource.Org v. Sheet Metal and Air Conditioning Contractors’ National Association,
Inc., Case No. 3:13-cv-00815. On July 9, 2013 SMACNA agreed to a stipulated judgment in
which it agreed no longer to threaten Public Resource or other parties for the posting of 4
standards explicitly incorporated into the CFR, not to assert copyright in those documents, and to
pay Public Resource a token one dollar. Exhibit 27 is a correct copy of the Stipulation and
Judgment resolving that lawsuit.
35.

Throughout the six years this lawsuit has been ongoing, I have been driven by one

key fact, one that is uncontested: standards incorporated by reference into the U.S. Code of
Federal Regulations have the force of law. As S. Joe Bhatia, the President of the American

12

National Standards Institute, has said, “A standard that has been incorporated by reference does
have the force of law, and it should be available.” He stated this when ANSI and other standards
bodies, including the plaintiffs in the present action, announced they were making standards
available for the first time for public viewing in a carefully controlled “reading room.” This
action was a direct response to my posting of standards in 2012 and occurred in conjunction with
the filing of this lawsuit. Exhibit 28 is a copy I of an article from the ANSI website, titled
“ANSI Launches Online Portal for Standards Incorporated by Reference,” dated October 28,
2013.
36.

I applaud the action of ANSI and the plaintiffs in the current action in finally

taking a step to make their documents available, if only for limited reading. This is a step
forward and is certainly different from their posture before my initiative in 2012. But it is not
enough in terms of promulgating the law widely. I believe the issue is whether citizens have the
right to speak the law in a way that allows others to better understand their rights and obligations.
I am inspired by the example of John B. West, who created the National Reporter System, an
action that would not have been possible if state and federal courts had asserted copyright over
the opinions of the judges. I presented this view before the House of Delegates of the American
Bar Association. Exhibit 29 is a copy of my prepared remarks before the ABA House of
Delegates on August 9, 2016. Exhibit 30 is a copy of an article about my work in this matter:
Lorelei Laird, “After debate, ABA House calls for publication of privately drafted standards used
in legislation,” ABA Journal, August 9, 2016.
37.

I have also been inspired by the story of the Hot Oil case, where a case reached

the U.S. Supreme Court in which nobody knew what the law really was. Panama Refining Co. v.
Ryan, 293 U.S. 388 (1935). This led Justice Brandeis to reach out to Felix Frankfurter, who

13

drafted a young professor named Erwin Griswold to write a seminal article in the Harvard Law
Review resulting in the passage of the Administrative Procedures Act and the creation of the
Federal Register. This story was told on the 70th Anniversary of the Federal Register and then
again on the 75th Anniversary when the Office of the Federal Register formally released an
official “Federal Register 2.0,” which I helped create. Exhibit 31 is a correct copy of an article
about that event: Hon. David Ferriero, “Federal Register 2.0,” The White House Blog, July 26,
2010. Exhibit 32 is a copy of a document commemorating this event: History of the Federal
Register, March 14, 2006.
38.

My focus has been the law. I realize that, in this lawsuit, the works at issue are

the standards published by the plaintiffs. Butfor me the work at issue has always been the Code
of Federal Regulations and state codes such as Title 24 of the California Code of Regulations.
My goal has always been to create an unabridged version of the law, one that is able to better
inform my fellow citizens about their rights and obligations. Because of the lawsuit, Public
Resource’s work on making the unabridged CFR available has been greatly hampered, but we
are continuing our efforts to improve access to the CFR. For example, Public Resource has been
assisting the Cornell Legal Information Institute by redrawing the diagrams in the CFR into
SVG, coding the mathematics, and taking the forms and tables that are often included as bitmap
images into valid HTML code. The Cornell version of the CFR is far more accessible than the
government versions, and I believe that the Cornell version is also used far more often by
citizens. Exhibit 33 is a copy of an article about my work with the Cornell Legal Information
Institute: Cornell Legal Information Institute, “Worth A Thousand Words: We’re Upping Our
Game for Images,” April 4, 2019.
39.

In twelve years of studying standards incorporated by reference, I am struck by

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the fact that I have never once come across an instance of a standards body objecting to a
standard being incorporated by reference into law (except where it objects to having an older
edition incorporated into law, preferring a newer edition). Indeed, in the vast majority of the
instances, incorporation into law is an explicit goal of the standards organizations. I realize that a
great deal of material is incorporated by reference; indeed, in many instances I believe that
regulators and standards bodies are too quick to make the law more voluminous than it should
be. But it is not my place to second-guess the regulators.
40.

I have exercised great care in trying to only post materials that have been made

into law, including having numerous conversations with the Office of the Federal Register to
understand exactly what has been incorporated. For example, Exhibit 34 is a copy of an email
exchange on March 1, 2016, that I had with Amy Bunk, Director of Legal Affairs and Policy at
the Office of the Federal Register, in which she stated: “Our regulations require that agencies
specifically identify the materials they wish to incorporate by reference, whether it is an entire
publication or sections of a publication. If an agency hasn't identified a specific section of a
publication, they have incorporated the entire publication.” The fact that a standards body
coordinated a document, often with the participation and encouragement of numerous
government agencies among the actual authors, strikes me no different than the fact that
numerous lobbyists on K Street assist the Congress and regulators by coordinating (and often
writing) draft legislative texts that become laws and regulations. The true authors of the law,
once it is promulgated, are the people of the United States, and thus no claim of copyright can
prevent or constrain citizens from speaking their own laws.
41.

I do not believe I am unique in my passion for making the law available. In a

democracy, promulgation is a key aspect of the rule of law. It is the key to our democratic system

15

of government. I am inspired and often quote the words of John Adams in his seminal “A
Dissertation on the Canon and Feudal Law.” He said: “liberty cannot be preserved without a
general knowledge among the people, who have a right, from the frame of their nature, to
knowledge ... they have a right ... to that most dreaded and envied kind of knowledge, I mean, of
the characters and conduct of their rulers. Rulers are no more than attorneys, agents, and trustees
for the people. … let the public disputations become researches into the grounds and nature and
ends of government, and the means of preserving the good and demolishing the evil. ... In a
word, let every sluice of knowledge be opened and set a-flowing.” Exhibit 35 is a copy of John
Adams’ “Dissertation on the Canon and Feudal Law.”
42.

I am aware that in its opinion for Bellwether Properties, LLC, v. Duke Energy

Indiana, Inc., 87 N.E.3d 462, 468–69 (Ind. 2017), the Indiana Supreme Court stated that the only
way it was able to access a version of the 2002 version of the National Electrical Safety Code
(NESC), which the Institute of Electrical and Electronic Engineers (IEEE) had promulgated, was
by finding it online on the Internet Archive, at
https://ia600704.us.archive.org/16/items/gov.law.ieee.c2.2002/ieee.c2.2002.pdf. I am the person
who posted that 2002 version of the NESC to that location on the Internet Archive, in the course
of my efforts to make the law freely available. The metadata page for this document indicates
that it was “Uploaded by Public.Resource.Org,” see
https://archive.org/details/gov.law.ieee.c2.2002 and
https://ia600704.us.archive.org/16/items/gov.law.ieee.c2.2002/ieee.c2.2002.pdf_meta.txt.

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I declare under penalty of per ury under the laws of the United States that the foregoing is
true and correct. E ecuted this 4th day of November, 2019 at New Delhi, India.

Carl Malamud

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