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

Filing 213

RESPONSE re 202 MOTION for Summary Judgment filed by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC.. (Attachments: # 1 Plaintiffs' Third Supplemental Statement of Material Facts, # 2 Declaration of Thomas O'Brien, # 3 Declaration of Jane W. Wise, # 4 Exhibit 174, # 5 Exhibit 175, # 6 Exhibit 176, # 7 Exhibit 177 (Part 1), # 8 Exhibit 177 (Part 2), # 9 Exhibit 177 (Part 3), # 10 Exhibit 178, # 11 Exhibit 179, # 12 Exhibit 180, # 13 Exhibit 181, # 14 Exhibit 182, # 15 Exhibit 183, # 16 Exhibit 184, # 17 Exhibit 185, # 18 Exhibit 186, # 19 Plaintiffs' Response to Defendant's Statement of Disputed Facts (Redacted), # 20 Plaintiffs' Statement of Disputed Facts and Objections, # 21 Plaintiffs' Response to Defendant's Evidentiary Objections, # 22 Plaintiffs' Opposition to Defendant's Request for Judicial Notice)(Fee, J.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,

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

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.

PLAINTIFF’S STATEMENT OF DISPUTED FACTS AND OBJECTIONS TO CERTAIN
EVIDENCE IN OPPOSITION TO PRO’S SECOND SUPPLEMENTAL STATEMENT
OF MATERIAL FACTS
[REDACTED]

Pursuant to Local Civil Rule 7(h), Plaintiffs submit the following Statement of Disputed
Facts in opposition to PRO’s Second Motion for Summary Judgment and in support of Plaintiffs’
Motion for Summary Judgment and Permanent Injunction. Instead of filing separate documents
objecting to evidence PRO attempted to introduce through its Second Supplemental Statement of
Facts, Plaintiffs have objected to the proposed evidence in this consolidated document.1
DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

I.

INCORPORATION BY REFERENCE

A.

The Nature of Incorporation by Reference

1.
Incorporation by reference is an
alternative to direct inclusion of language into a
government’s published laws or regulations.
See 5 U.S.C. §552(a)(1); 1 C.F.R. §§ 51.151.11.

This is a legal conclusion, not a fact.
Moreover, in many circumstances, “direct
inclusion of language” from a privately
authored standard is prohibited by the
Copyright Act, 17 U.S.C. § 106, requires a
license, and/or requires payment of
reasonable and entire compensation for such
use, 28 U.S.C. § 1498.

2.
The Office of the Federal Register has
explained that material incorporated by
reference is “like any other properly issued rule,
has the force and effect of law.” Dkt. 122-9 at
86.

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

3.
The federal government initiated the
practice of incorporating some materials by
reference instead of reproducing them to limit
the bulk of the Code of Federal Regulations
(“CFR”). Dkt. 122-9 at 86.

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

1

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

Likewise, Plaintiffs have not submitted separate evidentiary objections to the declarations
that PRO submitted, but does not rely on in its Second Supplemental Statement of Facts. That
evidence is all irrelevant. Plaintiffs reserve their right to object to those declarations if/when PRO
seeks to rely upon them, either at this summary judgment stage or at another point in the
proceeding.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed to the extent it suggests that the
federal government’s only or principal
reason for endorsing incorporation by
reference is to limit the bulk of the Code of
Federal Regulations. As explained in
Plaintiffs’ briefing, that is inaccurate. Reply
at Background Part A.
4.
States and municipalities also turn
standards into law, through incorporation by
reference and in other instances by reproducing
an entire standard verbatim in the text of the
law. See, e.g., Minn. Admin. Rule 4761.2460,
Subp. 2(C); California Code of Regulations,
Title 24, Part 3.

Objection. This statement is irrelevant to the
extent it relates to incorporation of standards
that are not at issue in this case. Plaintiffs
further object that the statement is a legal
conclusion, not a fact.
Disputed. PRO failed to cite any evidentiary
support for this proposition. Disputed to the
extent that “turn standards into law” implies
that incorporation by reference of a standard
makes the standard itself law.
Disputed to the extent it implies that
California Code of Regulations Title 24, Part
3 reproduces an entire standard verbatim in
the text of a law. E.g., Becker Decl. ¶ 3, Ex.
36 (Marvelli Depo.) at 43:4-9 (noting
California amendments in Title 24, Part 3).

5.
Governments may prosecute and punish
persons for failing to obey standards that have
become law. To take just two examples: The
Supreme Court of Virginia treated violation of
the National Electrical Code as equivalent to a
violation of the Virginia Building Code, which
incorporated the NEC by reference, and subject
to criminal sanctions. Virginia Elec. & Power
Co. v. Savoy Const. Co., 294 S.E.2d 811, 81617 (Va. 1982).

Objection. This is a legal conclusion, not a
fact.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law.
Disputed to the extent PRO suggests that
governments prosecute standards and punish
persons for failing to obey standards.
Additionally, the cited reference does not
support the statement, as it involves a civil
lawsuit initiated by a private party.

6.
After the deadly “Ghost Ship” fire in Objection. Relevance. The cited material
Oakland, California, prosecutors charged does not indicate that any of the Plaintiffs
2

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

principal tenant and alleged manager of the
building with manslaughter for violation of fire
safety codes that are incorporated by reference.
Supplemental Declaration of Matthew Becker
in support of Public Resource’s Opposition to
Plaintiffs’ Second Motion for Summary
Judgment and in Support of Public Resource’s
Second Motion for Summary Judgment
(“Becker Decl.”) ¶ 59, Ex. 93 (Declaration in
Support of Probable Cause, California v.
Harris, No. 17-CR-017349A (Cal. Super. Ct.
June
5,
2017),
available
at
https://www.scribd.com/document/350446988/
Ghost-Ship-fire-criminal-charges; Becker Decl.
¶ 60, Ex. 94 (Criminal Complaint, California v.
Harris, No. 17-CR-017349A (Cal. Super. Ct.
June
5,
2017)),
available
at
https://web.archive.org/web/
20170729051241/https://cbssanfran.files.word
press.com/2017/06/almena-and-harriscomplaint.
pdf.).

developed any of the referenced “fire safety
codes” or that any of those codes are at issue
in this case. PRO’s characterization of the
prosecution documents is a legal conclusion,
not a fact. There is no evidence that these
charges are related to any standard at issue in
this case.

7.
ASTM has publicly stated that
“[k]nowledge of ASTM standards is important
for complying with U.S. regulations and
procurement requirements” Dkt. 122-3 (Grove
Ex. 1032 “ASTM Standards Regulations &
Trade, Power Point”) at 21.

ASTM admits that an ASTM employee
stated that “[k]nowledge of ASTM standards
is important for complying with U.S.
regulations and procurement requirements.”

It is undisputed that the Ghost Ship fire was
a tragedy and resulted in prosecutions;
however, these facts underscore the
importance of Plaintiffs and their standards
to the public interest in safety and, as a
result, the risk posed by PRO’s conduct,
which undermines Plaintiffs’ source of
revenue. PRO’s statement that “prosecutors
charged principal tenant and alleged manager
of the building with manslaughter for
violation of fire safety codes that are
incorporated by reference” is also inaccurate
and misleading. The cited criminal
complaint does not link the manslaughter
charges to violations of the safety codes.
The declaration in support of probable cause
outlines numerous allegations of dangerous
conduct, including violations of incorporated
safety codes, violations of municipal codes
that do not incorporate safety codes, and
conduct that an ordinarily careful person
would not undertake.

8.
NFPA acknowledges that failure to Objection. The witness was testifying
comply with the standards incorporated by law regarding his time as a government
may result in penalties. Becker Decl., ¶ 13, Ex. employee, not making a statement on behalf
46 (Bliss Depo.) at 37:1–19.

3

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

of NFPA. Becker Decl. ¶ 13, Ex. 46 (Bliss
Depo.) at 33:8-12.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law. PRO further
mischaracterizes the evidence. The cited
reference states that when the witness was
acting as a government employee, he would
sometimes provide a property owner with a
written report identifying any ways in which
the property owner was not in compliance
with applicable codes. Becker Decl. ¶ 13,
Ex. 46 (Bliss Depo.) at 37:1–19; see also
Bliss Depo. at 34:3-8. The witness stated
that this written report typically did not cite
the specific provision with which the owner
was not in compliance, but that a follow-up
letter or document would. Id. at 37:7–19.
The cited reference does not include any
discussion of penalties—nor does it indicate
that any such penalties could arise from
violation of codes that incorporated privately
developed standards, much less any
standards at issue in this case.
9.
The former head of Massey Energy was Objection. Relevance. The cited material
convicted of conspiring to violate safety does not indicate that any of the relevant
standards. Dkt. 122-9, Ex. 156-157.
safety standards were privately developed
standards incorporated by reference or, to the
extent that they were, that they were
developed by any of the Plaintiffs or are at
issue in this case. Plaintiffs object to this
statement as hearsay to the extent PRO relies
on them for the truth of the matter asserted.
There is no evidence that this conviction
related in any way to a standard at issue in
this case.
B.

The Process of Incorporation by Reference

10.
The process of incorporation by Objection. This is a legal conclusion, not a
reference is careful and deliberate. At the fact.
4

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

federal level, it starts when an agency
responsible for regulating an industry publishes
a notice in the Federal Register concerning the
agency’s intent to incorporate a standard into
law and asks the public to submit comments. 5
U.S.C. §553.

Disputed. This statement is entirely
unsupported. Defendant has presented no
evidence that the process of incorporation by
reference is careful or deliberate, or how
federal agencies initiate the process of
incorporation by reference. The cited
reference relates to agency rulemaking
generally; it does not relate to how federal
agencies incorporate material by reference.

11.
A federal agency must publish proposed Objection. This is a legal conclusion, not a
rule changes in the Federal Register, including fact.
changes to a standard incorporated by reference
into the Code of Federal Regulations. 5 U.S.C.
§553(b); 1 C.F.R. § 51.11(a) (2015).
12.
A standard incorporated by reference
into the Code of Federal Regulations must be a
“proposed rule” or “final rule” of a federal
agency. 1 C.F.R. §51.5(a)-(b) (2019). Before
the federal government incorporates a standard
by reference into law as a final rule, the Director
of the Federal Register must approve the
incorporation. 1 C.F.R. § 51.3 (2019).

Objection. This is a legal conclusion, not a
fact.

13.
Standards
are
incorporated
by
reference—as opposed to reprinting the entire
text of the standards—to limit the length of the
Code of Federal Regulations. Dkt. 122-9 at 86
(“Incorporation by Reference” webpage of the
Office
of
the
Federal
Register,
http://www.archives.gov/federalregister/cfr/ibr-locations.html).

Objection. The OFR statement is hearsay
and is inadmissible to prove the truth of the
matter asserted (i.e., the purported only
reason why standards are incorporated by
references as opposed to reprinting the entire
text). It is otherwise irrelevant to the
question of fair use.

Disputed to the extent it suggests that the
cited reference states that an incorporated
standard is itself is a “proposed rule” or a
“final rule.” Disputed that a “proposed rule”
would constitute an incorporation by
reference of a standard into the Code of
Federal Regulations. Disputed to the extent
it implies that incorporation by reference of a
standard makes the standard itself law.

Disputed that the only or principal purpose
of incorporating standards by reference is to
limit the length of the Code of Federal
Regulations; as explained in Plaintiffs’
briefing, that is inaccurate. Reply at
Background Part A. Disputed that were it
5

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

not for concerns about length, the entire text
of the standards would be reprinted. The
copying of the entire text of standards by the
federal government would subject the federal
government to liability under 28 U.S.C.
§ 1498 and/or the takings clause of the
Constitution. ECF No. 118-1 (Pls.’ Mem.) at
27-28.
14.
Standards are also incorporated by
reference into state and local laws. See, e.g.,
Md. Admin. Rule 09.12.26.06(E)(1)(c)(i);
Minn. Admin. Rule 4761.2460, Subp. 2(C).

Objection. Relevance. The cited
administrative rules do not indicate that any
of the Works at issue have been incorporated
by reference into state or local law. This is a
legal conclusion, not a fact.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.

15.
State adoptions are equally rigorous.
For example, the State of California
incorporates model codes into Title 24 of the
California Code of Regulations on a triennial
cycle, with a 45-day public-comment period, a
six-month publication requirement, and a threemonth delay to allow local governments to
implement them. The California Building
Standards Law precisely defines this process.
See Cal. Dep’t of Gen. Servs., 2015 Triennial
Code
Adoption
Cycle
(Dec.
2014),
https://web.archive.org/web/20170207201000/
https://www.documents.dgs.ca.gov/BSC/2015
TriCycle/2015TricycleTimeline.pdf; 18-Month
Code Adoption Cycle, Cal. Bldg. Standards
Comm’n,
https://www.dgs.ca.gov/BSC/Rulemaking (last
visited Nov. 8, 2019).

Objection. This statement is either a legal
conclusion or an inadmissible opinion, not a
statement of fact, and is entirely
unsupported. Defendant has presented no
evidence that the process of incorporation by
reference by any state, let alone all states, is
“equally rigorous” to that of the federal
government. Even if it had, the statement
would be meaningless as PRO has not
presented any evidence regarding how
“rigorous” the federal government’s
incorporation process is.
To the extent PRO relies on the content of
websites not attached to the brief, Plaintiffs
object to PRO’s summaries of documents
that have not been included in the record.
Plaintiffs further object to the information on
the websites as hearsay to the extent PRO
relies on them for the truth of the matter
asserted. They are otherwise irrelevant.
Objection. Relevance. California’s
incorporation practices are irrelevant and
immaterial to the question of fair use and do

6

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

not dictate the extent to which, if at all,
portions are necessary to comply with a legal
duty. Neither the statement nor the cited
material identifies a Work at issue allegedly
incorporated by reference into California
law.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
16.
The Office of the Federal Register
(OFR) states: “The legal effect of incorporation
by reference is that the material is treated as if
it were published in the Federal Register and
CFR. This material, like any other properly
issued rule, has the force and effect of law.
Congress authorized incorporation by reference
in the Freedom of Information Act to reduce the
volume of material published in the Federal
Register and CFR.” Dkt. 122-9 at 86.

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

17.
In addition, when the Code of Federal
Regulations incorporates a standard, the code
itself informs readers that they may obtain a
copy of the standards from the Office of the
Federal Register (“OFR”) or from the SDO that
published the standard, effectively promoting
sales of the standard. Dkt. 122-9 at 86.

Objection. This statement is inadmissible
hearsay to the extent it is offered to prove the
truth of the matter asserted. It is otherwise
irrelevant. The assertion that the C.F.R. is
“effectively promoting sales of the standard”
is PRO’s argument and not supported by the
citation.

The statements as to the legal effect of
incorporation by reference are legal
conclusions, not facts.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.

The statements as to the legal effect of
incorporation by reference are legal
conclusions, not facts.
This statement is entirely unsupported by the
document cited. Defendant has presented no
evidence that the cited statement “effectively
promotes sales of the standards,” which does
not appear in the cited document.
18.
In order to enact rules, a federal agency This is a legal conclusion, not a fact.
must follow minimum procedures to guarantee

7

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

adequate public notice and opportunity to
comment. 5 U.S.C. §553.
19.
A federal agency must publish proposed This is a legal conclusion, not a fact.
rule changes in the Federal Register, including
changes to a standard incorporated by reference
into the Code of Federal Regulations. 5 U.S.C.
§553(b); 1 C.F.R. § 51.11(a) (2015).
20.
Standards incorporated by reference
into the Code of Federal Regulations are made
available in the Washington D.C. reading room
of the Office of the Federal Register, or for
purchase from the Plaintiffs. The OFR directs
people who want to read incorporated standards
to “contact the standards organization that
developed the material.” Alternatively, one may
submit a written request to the OFR to inspect
(and make limited photocopies of) an
incorporated standard in Washington, D.C.
Dkt. 122-9 at 86; Becker Decl. ¶ 58, Ex. 92
(printout of National Archives website on
incorporation by reference).

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

21.
The Office of the Federal Register is
required to maintain a copy of each
incorporated standard. It makes a copy of each
standard available for public viewing, upon
written request for an appointment, at its
Washington, D.C. reading room. Dkt. 122-9 at
86.

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

8

Disputed to the extent it implies that the
standards incorporated by reference are only
available at the reading room of the Office of
the Federal Register or for purchase from
Plaintiffs. All of the standards at issue for
which PRO has accurately identified a
regulation incorporating the standard by
reference and many other standards are
available for free in Plaintiffs’ reading
rooms. ECF No. 118-2 (Pls.’ SMF) ¶¶ 61,
63, 100, 161; ECF No. 198-3 (Pls.’ 2d. Supp.
SMF) ¶ 85. In addition, the standards at
issue and other standards are available for
purchase at reasonable prices. ECF No. 1182 (Pls.’ SMF) ¶¶ 58, 99, 158; ECF No. 198-3
(Pls.’ 2d. Supp. SMF) ¶ 77.

Disputed to the extent it implies that the
standards incorporated by reference are only
available at the reading room of the Office of
the Federal Register or for purchase from
Plaintiffs. All of the standards at issue for
which PRO has accurately identified a
regulation incorporating the standard by
reference and many other standards are
available for free in Plaintiffs’ reading

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

rooms. ECF No. 118-2 (Pls.’ SMF) ¶¶ 61,
63. 100, 161; ECF No. 198-3 (Pls.’ 2d. Supp.
SMF) ¶ 85. In addition, the standards at
issue and other standards are available for
purchase at reasonable prices. ECF No. 1182 (Pls.’ SMF) ¶¶ 58, 99, 158; ECF No. 198-3
(Pls.’ 2d. Supp. SMF) ¶ 77.
C.

Objects of Incorporation

22.
According to the Office of the Federal
Register’s Incorporation by Reference (“IBR”)
Handbook, any time a federal agency refers to
material when it is developing regulations, it
must consider two questions: First, “does it
have a legal citation?” If yes, the agency must use
the legal citation. If not, the agency then must
consider the second question: “Is it required to
understand or comply with the regulations? Do
your regulations require that a party “resort to”
material that is not published in the Federal
Register?” If the material is necessary to
understand or comply with the regulation, the
agency must seek IBR approval from the
Director of the Federal Register. Becker Decl.,
¶ 25, Ex. 58 (IBR Handbook) at p. 2 (citing 5
U.S.C. § 552(a)).

Objection. The OFR statement is hearsay
and is inadmissible to prove the truth of the
matter asserted. This portion of the 2018
IBR Handbook is otherwise irrelevant,
especially with respect to any regulation for
which IBR approval was sought prior to the
Handbook’s effective date of July 2018 or
that was promulgated before that date.

23.
Only the Director of the Federal
Register can approve IBR requests, and
“[p]ublication in the Federal Register of a
document
containing
reference(s)
to
incorporated material does not in itself
constitute an approval of the IBR by the
Director.” Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at 6.

Objection. The OFR statement is hearsay
and is inadmissible to prove the truth of the
matter asserted. This portion of the 2018
IBR Handbook is otherwise irrelevant,
especially with respect to any regulation for
which IBR approval was sought prior to the
Handbook’s effective date of July 2018 or
that was promulgated before that date.

Plaintiffs object that the 2018 IBR Handbook
does not state that “If the material is
necessary to understand or comply with the
regulation, the agency must seek IBR
approval from the Director of the Federal
Register.”
This is a legal conclusion, not a fact.

This is a legal conclusion, not a fact.
24.
Similarly, the Federal Register may
contain references to incorporated material, but
the referenced material is not actually
incorporated by reference when it has not
9

Objection. The OFR statement is hearsay
and is inadmissible to prove the truth of the
matter asserted. This portion of the 2018
IBR Handbook is otherwise irrelevant,

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

received the Director’s formal approval. especially with respect to any regulation for
Becker Decl., ¶ 25, Ex. 58 (IBR Handbook) at which IBR approval was sought prior to the
11.
Handbook’s effective date of July 2018 or
that was promulgated before that date.
This is a legal conclusion, not a fact.
25.
To be eligible for incorporation by
reference, the material must be published and
“impossible or impractical” to print in the
C.F.R. Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at 6. This means it is typically
documents, or portions of documents, that are
incorporated by reference—not mere text,
which could otherwise be printed in the C.F.R.
See Becker Decl., ¶ 25, Ex. 58 (IBR Handbook)
at 11-12.

Objection. The OFR statement is hearsay
and is inadmissible to prove the truth of the
matter asserted. This portion of the 2018
IBR Handbook is otherwise irrelevant,
especially with respect to any regulation for
which IBR approval was sought prior to the
Handbook’s effective date of July 2018 or
that was promulgated before that date.
The statement that the referenced portion of
the 2018 IBR Handbook “means it is
typically documents, or portions of
documents, that are incorporated by
reference—not mere text, which could
otherwise be printed in the C.F.R.” is PRO’s
argument, not fact.
The statement about what is typically
incorporated and that “mere text” could be
printed in the C.F.R. is not supported by the
cited document. As explained in Plaintiffs’
briefing, agencies use and the federal
government endorses incorporation by
reference for reasons other than simply
reducing the bulk of the Code of Federal
Regulations. Reply at Background Part A.

26.
According to the Director of Legal
Affairs and Policy at the Office of the Federal
Register, if an agency identifies a document in
its IBR language and does not specify a specific
section of that document, the entire document is
incorporated by reference. Malamud Decl.
¶ 40, Ex. 34.

10

This is a legal conclusion, not a fact.
Objection. The OFR statement is hearsay
and is inadmissible to prove the truth of the
matter asserted. It is otherwise irrelevant as
the privately expressed views of one federal
employee do not dictate agency policy or
practice. It also is improper opinion
testimony.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

PRO’s paraphrase of the email exchange
mischaracterizes it. PRO concedes in the
same document that the proposition is not
supported by any OFR document, handbook,
or other policy.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law and,
as explained in Plaintiffs’ Reply, Plaintiffs
dispute PRO’s conclusions from this
inaccurate premise.
D.

Incorporation of Parts of Documents Versus Incorporation of Complete
Documents

27.
Where a federal agency seeks to
incorporate only parts of a standards document,
it is explicit.
For example, 24 CFR §
3280.4(aa)(4) (2019) states that only specific
parts of the 2005 edition of the National
Electrical Code, NFPA 70, are incorporated into
law:
(a) The specifications, standards, and
codes of the following organizations
are incorporated by reference in 24
CFR part 3280 (this Standard)
pursuant to 5 U.S.C. 552(a) and 1 CFR
part 51 as though set forth in full.
…
(aa)
National
Fire
Protection
Association (NFPA), 1 Batterymarch
Park, Quincy, MA 02269, phone
number 617-770-3000, fax number
617-770-0700,
Web
site:
http://www.nfpa.org.
…

11

This is a legal conclusion, not a fact.
Disputed. The cited reference neither states
nor supports PRO’s statement that “[w]here
a federal agency seeks to incorporate only
parts of a standards document, it is explicit.”
PRO offers no evidence regarding the reason
that the cited reference identifies specific
portions of NFPA 70 and the cited reference
does not indicate any. Further, while PRO
draws an inference that because this
regulation identifies certain sections of the
standard, regulations that do not identify
particular sections of a standard should be
treated differently, there is no factual or legal
basis for such an inference; PRO offers no
evidence that this particular regulation is
representative of regulations from the
promulgating agency or from other agencies
across the federal government.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

(4) NFPA No. 70-2005, National
Electrical Code, IBR approved as
follows:
(i) Article 110.22, IBR approved for
§§ 3280.803(k) and 3280.804(k).
(ii) Article 210.12(A) and (B), IBR
approved for § 3280.801(b).
(iii) Article 220.61, IBR approved for
§ 3280.811(b).
(iv) Article 230, IBR approved for §§
3280.803(k) and 3280.804(k).
…
24 CFR § 3280.4(aa)(4)(i)-(iv).
28.
In contrast, the full 2005 edition of the This is a legal conclusion, not a fact.
National Electrical Code, NFPA 70, is
incorporated by reference at 49 C.F.R. § 192.7 Disputed to the extent PRO intends this
citation to support the previous paragraph’s
(2009):
statement that “[w]here a federal agency
§ 192.7 What documents are
seeks to incorporate only parts of a standards
incorporated by reference partly or
document, it is explicit.” PRO offers no
wholly in this part?
evidence regarding the reason that the cited
(a) Any documents or portions thereof
reference refers to NFPA 70 as it does, and
incorporated by reference in this part
the cited reference does not indicate any.
are included in this part as though set
Further, while PRO draws an inference that
out in full. When only a portion of a
because one regulation (identified in ¶ 27)
document is referenced, the remainder
identifies certain sections of the standard,
is not incorporated in this part.
regulations that do not identify particular
(b) . . . These materials have been
sections of a standard should be treated
approved for incorporation by
differently, there is no factual or legal basis
reference by the Director of the
for such an inference; PRO offers no
Federal Register in accordance with 5
evidence that the identified regulation is
U.S.C. 552(a) and 1 CFR part 51. . . .
representative of regulations from the
F.
National
Fire
Protection
promulgating agency or from other agencies
Association (NFPA): . . .
across the federal government.
(4) NFPA 70 (2005) ‘‘National
Electrical Code.’’
Disputed to the extent PRO suggests that the
cited reference does not identify specific
portions of NFPA 70. The cited reference
identifies two regulations for which the
standard is being incorporated:
12

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PLAINTIFFS’ RESPONSE

§§ 192.163(e) and 192.189(c). 49 C.F.R.
§ 192.7 (2009). Section 192.163(e) states
that “[e]lectrical equipment and wiring
installed in compressor stations must
conform to the National Electrical Code,
ANSI/NFPA 70, so far as that code is
applicable.” 49 C.F.R. § 192.163(e) (2009).
Section 192.189(c) states that “[e]lectrical
equipment in vaults must conform to the
applicable requirements of Class 1, Group D,
of the National Electrical Code, ANSI/NFPA
70.” Both of the regulations in the cited
reference thus identify specific fields
(“electrical equipment and wiring installed in
compressor stations”; “electrical equipment
in vaults”) and specific provisions
(“applicable” provisions; “applicable
requirements of Class 1, Group D”).
E.

Incorporation by Reference Versus Extrinsic Unincorporated Standards

29.
Sometimes external documents are
referred to in the C.F.R. or in other government
edicts but not formally incorporated into law.
When a document is referenced but not
formally incorporated, it serves as only an
“extrinsic standard”. See, e.g., Practice Mgmt.
Info. Corp. v. Am. Med. Ass’n, 121 F.3d 516
(9th Cir. 1997) (regulations required Medicare
and Medicaid claimants to use a private medical
coding system but did not incorporate the
medical coding system into law). Likewise,
CCC Information Services, Inc. v. Maclean
Hunter Market Reports, Inc., concerned a
document that was one of several automobile
valuation references that regulations approved
for use in insurance adjusting. 44 F.3d 61 (2d
Cir. 1994). The regulation stated “[m]anuals
approved for use are…The Redbook….,”
without any mention of incorporating those
manuals into enforceable laws. See N.Y.
Comp. Codes, R. & Regs. tit. 11,

13

This is a legal conclusion, not a fact.
Objection. This is attorney argument not
fact and consists of an incorrect legal
interpretation of the cases, not a fact. It also
is vague to the extent it refers to
“government edicts.” It is also irrelevant.
PRO mischaracterizes the cases. The quoted
language “extrinsic standard” does not
appear in Practice Management Information
Corp. v. American Medical Association, 121
F.3d 516 (9th Cir. 1997), which involved
IBR: “HCFA published notices in the
Federal Register incorporating the CPT in
HCFA’s Common Procedure Coding
System, see 48 Fed. Reg. 16750, 16753
(1983); 50 Fed. Reg. 40895, 40897 (1985),
and adopted regulations requiring applicants
for Medicaid reimbursement to use the CPT.
See 42 C.F.R. § 433.112(b)(2) (requiring
compliance with Part 11 of the State

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

§ 216.7(c)(1)(i) (West 1999), cited in CCC, 44 Medicaid Manual, which requires states
F.3d at 73 n.29.
receiving federal funding for Medicaid to
adopt the Administration’s Common
Procedure Coding System as the exclusive
medical procedure coding system).” Id. at
518; see also id. n.3 (citing additional IBRs).
Likewise, the Court’s holding in
CCC Information Services, Inc. v. Maclean
Hunter Market Reports, Inc., 44 F.3d 61 (2d
Cir. 1994) presumed IBR status and
nevertheless found in favor of the copyright
holder. These cases do not say what PRO
purports that they say and do not help PRO.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law.
II.

STANDARDS THAT HAVE BECOME LAW ARE NOT GENERALLY AND
FREELY ACCESSIBLE

30.
Without the database that Public
Resource provides, citizens have few options
for accessing laws and regulations by
incorporation.
First, one may make an
appointment to visit the National Archives in
Washington, D.C., to read a paper version of a
federally incorporated standard. See, e.g., 10
C.F.R. § 433.3. This option does not provide
meaningful access for persons without the
means to travel to Washington, or persons with
visual disabilities, and it does not allow
computer-aided analysis.

Objection. This statement is PRO’s
argument not based on any cited facts and, in
any event, would be irrelevant to the extent it
relates to any standards other than the
Works. The statement’s discussion of
access for individuals with visual disabilities
is irrelevant, as the D.C. Circuit previously
held that “the district court properly rejected
some of PRO’s arguments as to its
transformative use—for instance, that PRO
was converting the works into a format more
accessible for the visually impaired or that it
was producing a centralized database of all
incorporated standards.” Am. Soc’y for
Testing & Materials v. Public.Resource.Org,
Inc., 896 F.3d 437, 450 (D.C. Cir. 2018).
Disputed. The statement is entirely
unsupported.
Disputed to the extent it implies that any of
the standards at issue are not reasonably

14

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PLAINTIFFS’ RESPONSE

available. Standards are only eligible to be
incorporated by reference if they are
reasonably available. 1 C.F.R. § 51.7. There
are numerous options for accessing the
Works in addition to visiting the National
Archives. Plaintiffs provide read-only
access to the Works for free—excluding
certain of the Works that are not
incorporated by reference as claimed by
PRO—on their websites, and sometimes
linked through other websites, such as local
and state government websites. See ECF No.
198-3 (Pls.’ 2d. Supp. SMF) ¶ 85. The
Works are also available for purchase at
reasonable prices. ECF No. 118-2 (Pls.’
SMF) ¶¶ 57-61, 99, 158; ECF No. 198-3
(Pls.’ 2d. Supp. SMF) ¶ 77, and are often
available through subscription services. ECF
No. 118-2 (Pls.’ SMF) ¶ 160; ECF No. 198-3
(Pls.’ 2d. Supp. SMF) ¶ 78; Declaration of
Thomas O’Brien, Jr. dated Dec. 20, 2019
(O’Brien Decl. III”) ¶¶ 9-10. Plaintiffs’
standards are also available through thirdparty subscription services. O’Brien Decl.
III ¶¶ 9-10.
Disputed to the extent PRO intends to
suggest that it provides citizens with
“options for accessing laws and regulations
by incorporation.” PRO’s copies of
standards contain errors; PRO does not
provide comprehensive information
regarding where standards have been
incorporated by reference; and, to the extent
PRO does identify information about any
incorporating regulations, that information is
often inaccurate. Mot. 15 & n.10.
Disputed to the extent PRO intends to
suggest that it provides meaningful access
for persons with visual disabilities. Public
Resource’s copies also are not meaningfully

15

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

accessible to persons with visual disabilities.
ECF No. 155-1 (Pls.’ Supp. SMF ¶¶ 4-7).
31.
Second, one can sometimes purchase
copies. This can be not only expensive but also
difficult, because where, as here, the standards
are currently effective as law, but are obsolete
as standards, at least some publishers
apparently see little reason to make them widely
available. Some standards are available only on
paper because the sponsoring standards
development organization (SDO) has not
authorized electronic versions, and thus they are
unavailable to persons with visual disabilities or
for computer-aided analysis. Becker Decl. ¶ 62,
Ex. 96 (Fruchterman expert report). Even when
available, the standards can cost hundreds of
dollars, plus shipping and handling. See
Plaintiffs Second Supplemental Statement of
Material Facts (“Plf. SSSMF”) ¶ 78. And many
older standards are not available for purchase.
See, e.g., Getty Petroleum Mktg., Inc., 391 F.3d
at 320-21, 330 (1st Cir. 2004) (court and parties
unable to locate NFPA standard).

Objection. This statement is PRO’s
argument and, in any event, would be
irrelevant to the extent it relates to any
standards other than the Works, and it
contains inadmissible opinion testimony with
respect to the characterizations that
purchasing standards can be expensive and
difficult. The statement’s discussion of
access for individuals with visual disabilities
is irrelevant, as the D.C. Circuit previously
held that “the district court properly rejected
some of PRO’s arguments as to its
transformative use—for instance, that PRO
was converting the works into a format more
accessible for the visually impaired or that it
was producing a centralized database of all
incorporated standards.” Am. Soc’y for
Testing & Materials v. Public.Resource.Org,
Inc., 896 F.3d 437, 450 (D.C. Cir. 2018).
There is no support for the statement that the
standards at issue in this lawsuit are (1)
expensive, (2) not available for purchase, (3)
available only on paper, (4) currently
effective as law, or (5) obsolete as standards.
Disputed to the extent that PRO implies that
Plaintiffs’ standards are unreasonably priced.
There has been “no outcry at all to date from
the standards-consuming public about either
a lack of access to standards or
unreasonably-priced standards. With the
exception of Defendant, Plaintiffs have not
received any complaints about lack of
accessibility of their standards.” ECF No.
118-12 (Rubel Decl.) ¶ 4, Ex. 1 (Jarosz
Report. ¶ 161).
Disputed to the extent it implies that any of
the standards at issue are not reasonably

16

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

available. Standards are only eligible to be
incorporated by reference if they are
reasonably available. 1 C.F.R. § 51.7. None
of the Works are available only on paper—
all of the Works that have been incorporated
by reference are available in a digital format
in Plaintiffs’ online reading rooms, and many
are available for purchase in digital format.
ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶¶ 77,
80, 85. In addition, many of the Works are
available in digital format from subscription
services. ECF No. 118-2 (Pls.’ SMF) ¶ 160;
ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶ 78;
O’Brien Decl. III ¶¶ 9-10. Standards are also
available through third-party subscription
services that are fully text-searchable.
O’Brien Decl. III ¶¶ 9-10.
PRO mischaracterizes Getty Petroleum
Marketing, Inc. v. Capital Terminal Co., 391
F.3d 312, 320 (1st Cir. 2004), which
addresses whether Capital Terminal’s
request for judicial notice was wrongly
refused where Capital Terminal failed to
supply a certified copy of NFPA 30 (1987)
and the court did not find a copy. First, the
case does not stand for the proposition that
“many older standards are not available for
purchase.” Second, NFPA 30 (1987) is
available for purchase on NFPA’s website.
Supplemental Decl. of Jane Wise (“Wise
Decl. II”) ¶ 8, Ex. 180.
The availability of the 1987 version of this
publication is also irrelevant because it is not
one of the standards at issue. Finally, this
case is hearsay and is inadmissible to prove
the truth of the matter asserted.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law. PRO’s

17

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

assertion that “the standards are currently
effective as law” is unsupported by the
record evidence and contradicted by PRO’s
own admission that it has posted standards
that are not law: “when attempting to post
the relevant law, Public Resource
accidentally posted an edition of an ASTM
standard that was not the precise edition
listed in the C.F.R. incorporating language.”
ECF No. 203-1, Opp. 6 n.3.
Disputed that Plaintiffs’ standards are not
available to persons with visual disabilities.
Plaintiffs will make electronic versions of
any of the Works available to persons with
visual disabilities. ECF No. 155-1 (Pls.’
Supp. SUMF) ¶¶ 8-12.
Disputed to the extent PRO intends to
suggest that it provides meaningful access
for persons with visual disabilities. Public
Resource’s copies also are not meaningfully
accessible to persons with visual disabilities.
ECF No. 155-1 (Pls.’ Supp. SMF ¶¶ 4-7).
NFPA has a commitment to make
accommodations for persons with disabilities
to access NFPA materials. For each request
by a visually impaired individual for access
to an NFPA standard, NFPA has responded
by providing that individual with a copy they
can use at no charge. ECF No. 155-6
(Dubay Decl.) ¶¶ 6-7. NFPA is not aware of
any other individuals who have requested
and not received an accommodation. Id. ¶ 6.
32.
Third, one can search libraries for
standards. Contrary to the SDOs’ suggestion,
library availability is poor; libraries typically
carry current standards but not earlier standards
that still function as law, and library copies are
typically only on paper. See, e.g., Getty

18

Objection. This statement is PRO’s
argument not based on any cited facts and, in
any event, would be irrelevant to the extent it
relates to any standards other than the
Works.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Petroleum Mktg., Inc., 391 F.3d at 320-21, 330 There is no support for the statement that the
(1st Cir. 2004).
standards at issue in the lawsuit are
unavailable in libraries.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law. PRO’s
assertion that “standards still function as
law” is unsupported by the record evidence
and contradicted by PRO’s own admission
that it has posted standards that are not law:
“when attempting to post the relevant law,
Public Resource accidentally posted an
edition of an ASTM standard that was not
the precise edition listed in the C.F.R.
incorporating language.” ECF No. 203-1,
Opp. 6 n.3.
Disputed to the extent it implies that any of
the standards at issue are not reasonably
available. Standards are only eligible to be
incorporated by reference if they are
reasonably available. 1 C.F.R. § 51.7. All of
the Works that have been incorporated by
reference are available in a digital format in
Plaintiffs’ online reading rooms, and many
are available for purchase in digital format.
ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶¶ 77,
80, 85. In addition, many of the Works are
available in digital format from subscription
services. ECF No. 118-2 (Pls.’ SMF) ¶ 160;
ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶ 78;
O’Brien Decl. III ¶¶ 9-10. Standards are also
available through third-party subscription
services. O’Brien Decl. III ¶¶ 9-10.
PRO mischaracterizes Getty Petroleum
Marketing, Inc. v. Capital Terminal Co., 391
F.3d 312, 320 (1st Cir. 2004), which
addresses whether Capital Terminal’s
request for judicial notice was wrongly
refused where Capital Terminal failed to

19

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

supply a certified copy of NFPA 30 (1987)
and the court did not find a copy. First, the
case does not stand for the proposition that
“many older standards are not available for
purchase.” Second, NFPA 30 (1987) is
available for purchase on NFPA’s website.
Wise Decl. II”) ¶ 8, Ex. 180.
The availability of the 1987 version of this
publication also is irrelevant because it is not
one of the standards at issue. Finally, this
case is hearsay and is inadmissible to prove
the truth of the matter asserted.
33.
Finally, one can access some standards
through online “reading rooms”—all but one of
which standards publishers established only
after Public Resource embarrassed them by
highlighting the lack of public access. But
many standards that are part of the law are not
available in any online reading room. See, e.g.,
Becker Decl., ¶ 11, Ex. 44 (Comstock Depo.) at
20:19–22.

Objection. This statement is PRO’s
argument not based on any cited facts and, in
any event, would be irrelevant to the extent it
relates to any standards other than the
Works.
There is no support for the statement that
standards publishers established reading
rooms “only after Public Resource
embarrassed them by highlighting the lack of
public access.” The cited reference simply
addresses ASHRAE’s policy regarding
which standards to post in its reading
rooms—not its (or ASTM’s or NFPA’s)
reasons for establishing the reading rooms.
ASTM started planning its reading room in
2011 and NFPA and ASHRAE have
provided free read-only access for over a
decade. ECF No. 155-1 (Pls.’ Supp. SMF)
¶¶ 23-24. The statement is irrelevant. There
is no support for the statement that many
standards (and all of the Works that were
actually incorporated by reference into the
C.F.R.) are not available in any online
reading room.
Moreover, the cited reference says nothing of
whether many standards incorporated by
reference are available on the reading rooms.

20

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

The cited reference merely indicates that
ASHRAE sometimes removes older
standards from its reading room (but says
nothing of whether those standards are
incorporated by reference or are the same
standards at issue here. Becker Decl. ¶ 11,
Ex. 44 (Comstock Depo.) at 20:19–22. And
ASHRAE has provided clear testimony that
all standards at issue in this case are
available on its reading room. Reiniche
Decl. [Dkt No. 199-34] ¶ 3.
Disputed to the extent it implies that any of
the standards at issue are not reasonably
available. Standards are only eligible to be
incorporated by reference if they are
reasonably available. 1 C.F.R. § 51.7. All of
the Works that have been incorporated by
reference are available in a digital format in
Plaintiffs’ online reading rooms, and many
are available for purchase in digital format.
ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶¶ 77,
80, 85. In addition, many of the Works are
available in digital format from subscription
services. ECF No. 118-2 (Pls.’ SMF) ¶ 160;
ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶ 78.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law. PRO’s
statement that standards “are part of the law”
is unsupported by the record evidence
contradicted by PRO’s own admission that it
has posted standards that are not law: “when
attempting to post the relevant law, Public
Resource accidentally posted an edition of an
ASTM standard that was not the precise
edition listed in the C.F.R. incorporating
language.” ECF No. 203-1, Opp. 6 n.3.
34.
Plaintiffs provide “reading rooms” for Disputed. PRO does not identify any Work
some of the incorporated standards. Dkt. 118- that has been incorporated that is not
11, ¶ 50; Dkt. 118-7, ¶ 60; Dkt. 118-8, ¶ 45; available in one of Plaintiffs’ reading rooms.
21

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Dkt. 188-10, ¶¶ 19–20; Dkt. 198-53, ¶ 3; Dkt. NFPA makes all of its standards (and one
198-52, ¶ 41
previously edition available online for free
read-only access) and both NFPA and
ASHRAE make all of their standards that
have been incorporated by reference into
government regulations available online for
free read-only viewing. ECF No. 118-2
(Pls.’ SMF) ¶¶ 100, 161; ECF No. 198-3
(Pls.’ 2d. Supp. SMF) ¶ 85. ASTM makes
all of the ASTM Works and all ASTM
standards that it is aware have been
incorporated by reference by the federal
government available for read-only viewing
in its reading room. ECF No. 118-2 (Pls.’
SMF) ¶ 63; ECF No. 198-3 (Pls.’ 2d. Supp.
SMF) ¶ 85.
Plaintiffs object to PRO’s reliance on ECF
No. 188-10, as no such docket entry exists.
35.
Plaintiffs’ “reading rooms” do not
permit software-based searching and analysis of
the incorporated standards. Becker Decl. ¶ 62,
Ex. 96 (Fruchterman Rep.) at 6.

Objection. Inadmissible opinion testimony.
Mr. Fruchterman has been offered as an
expert on accessibility of materials to people
who are visually impaired. He is not
competent to testify about software-based
searching and analysis.
Disputed that Plaintiffs’ standards are not
available to persons with visual disabilities.
Plaintiffs make accessible versions of any of
the Works available to persons with visual
disabilities. ECF No. 155-1 (Pls.’ Supp.
SUMF) ¶¶ 8-12.

36.
Plaintiffs online “Reading Rooms” do
not allow people with print disabilities to use
software based screen readers to access the
legally mandated standards. Becker Decl. ¶ 62,
Ex. 96 (Fruchterman Rep.) at 7–13.

22

Objection. Relevance. The D.C. Circuit
previously held that “the district court
properly rejected some of PRO’s arguments
as to its transformative use—for instance,
that PRO was converting the works into a
format more accessible for the visually
impaired or that it was producing a
centralized database of all incorporated
standards.” Am. Soc’y for Testing &

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Materials v. Public.Resource.Org, Inc., 896
F.3d 437, 450 (D.C. Cir. 2018).
Disputed. To protect their copyrighted
standards from exposure to mass copying,
Plaintiffs have provided versions of their
standards on their reading rooms that provide
read-only access. See, e.g., ECF No. 204-51,
Ex. 45 (Grove Depo.) at 110:8-23; ECF No.
204-47, Ex. 41 (Dubay Depo.) 77:21-78:4;
ECF No. 204-50, Ex. 44 (Comstock Depo.)
at 10:23-11:3. There is no evidence that
Plaintiffs placed any purposeful restriction
on the use of screen readers by people with
print disabilities on their reading rooms. To
the extent a screen reader requires the ability
to do more than read from an image of the
standard on the screen, it is undisputed that
the screen reader will not be able to read the
versions of Plaintiffs’ standards on their
reading rooms.
Disputed that Plaintiffs’ standards are not
available to persons with visual disabilities.
Plaintiffs make accessible versions of any of
the Works available to persons with visual
disabilities. ECF No. 155-1 (Pls.’ Supp.
SUMF) ¶¶ 8-12.
NFPA has a commitment to make
accommodations for persons with disabilities
to access NFPA materials. For each request
by a visually impaired individual for access
to an NFPA standard, NFPA has responded
by providing that individual with a copy they
can use at no charge. ECF No. 155-6
(Dubay Decl.) ¶¶ 6-7. NFPA is not aware of
any other individuals who have requested
and not received an accommodation. Id. ¶ 6.
37.
People must register to access the Undisputed.
reading rooms established by ASTM and
NFPA. The registration process requires a
23

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

40.
A user of ASTM’s reading room must Undisputed.
click a box that states the user agrees to
ASTM’s end user license agreement before
accessing the reading room. NFPA’s reading
room also contains terms of service. Dkt. 122-8
Ex. 35 (ASTM License Agreement Webpage);
Dkt. 122-8 Ex. 135 (ASTM Reading Room
Terms); Dkt. 122-8 Ex. 137 (NFPA Free Access
Terms).
41.
ASHRAE posted some of its standards Undisputed.
for public viewing in a format that restricted
downloading. Becker Decl., ¶ 11, Ex. 44
(Comstock Depo.) at 11:25–12:7.
42.
ASHRAE posted its standards for public Undisputed.
viewing with the intent of increasing demand
for the posted standards. Becker Decl., ¶ 11, Ex.
44(Comstock Depo.) at 11:25–12:7.
43.
ASHRAE removes older standards
incorporated by reference from its reading
room. Becker Decl., ¶ 11, Ex. 44 (Comstock
Depo.) at 20:19–22.

Disputed. The cited reference says that
ASHRAE sometimes takes older standards
out of its reading rooms. It does not say that
ASHRAE removes standards that are still
incorporated into current laws. See Becker
Decl. ¶ 11, Ex. 44 (Comstock Depo.) at
20:19–22.

44.
Plaintiffs do not allow people to print or Undisputed.
download the standards on their reading rooms.
Dkt. 122-8, Ex. 134 (ASTM Reading Room
Disclaimer); Dkt. 198-52, ¶ 42.
III.

THE STANDARDS ARE DESIGNED TO BE FOLLOWED AS LAW

45.
Plaintiffs monitor whether people
follow the requirements of standards
incorporated into law. Becker Decl., ¶ 13, Ex.
46 (Bliss Depo.) at 30:1–37:25.

25

Disputed. The cited deposition testimony
does not describe the actions of Plaintiffs.
The testimony describes NFPA’s Mr. Bliss’s
previous “service as a government
employee,” not his actions on behalf of
NFPA. See, e.g., ECF No. 122-1, Def. Ex. 4
(Bliss Depo.) 32:20-33:10. The evidence is
to the contrary. NFPA standards state

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

expressly “The NFPA has no power nor does
it undertake, to police or enforce
compliance.” See, e.g., Dkt. 199-12 (sealed),
Supp. Pauley Decl. Ex. A (NFPAPR0013033).
There is no evidence that supports this
statement in connection with any Plaintiff,
and PRO does not even cite any statement
that relates to ASHRAE or ASTM.
46.
Plaintiffs enforce whether people follow Objection. The phrase “Plaintiffs enforce” is
the requirements of standards incorporated into vague and ambiguous.
law. Becker Decl., ¶ 13, Ex. 46 (Bliss Depo.) at
30:1–37:25.
Disputed. The testimony describes NFPA’s
Mr. Bliss’s previous “service as a
government employee,” not his actions on
behalf of NFPA. See, e.g., ECF No. 122-1,
Def. Ex. 4 (Bliss Depo.) 32:20-33:10. The
evidence is to the contrary. NFPA standards
state expressly “The NFPA has no power nor
does it undertake, to police or enforce
compliance.” See, e.g., Dkt. 199-12 (sealed),
Supp. Pauley Decl. Ex. A (NFPAPR0013033).
There is no evidence that supports this
statement in connection with any Plaintiff,
and PRO does not even cite any statement
that relates to ASHRAE or ASTM.
47.
The standards at issue are dictated by
external factors, including international
principles and the desire to satisfy regulations
and laws. Dkt. 122-7, Ex. 106 (Public Policy &
Corporate Outreach Presentation, Sep. 2015);
Becker Decl., ¶ 12, Ex. 45 (Grove Depo.) at
94:24-95:01.

Disputed. The proposition that Plaintiffs’
standards are dictated by external factors,
including international principles and the
desire to satisfy laws and regulations, is not
supported by the cited testimony or
document.
In response the question “What regulatory
purposes do you anticipate government
agencies have that causes them to examine
industry standards?” the witness answered,
“I don’t have an answer for that. I think you

26

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STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

could assume that government participants in
the standardization process bring knowledge
of regulatory agendas and regulatory needs
of agencies to the voluntary consensus
community of which ASTM is one member
amongst others.” ECF No. 204-51, Ex. 45
(Grove Depo.) at 94:15-95:3. Similarly, the
cited document is a PowerPoint presentation
that contains no statements about any factors
that dictate the content of Plaintiffs’
standards.
There is no evidence that supports this
statement in connection with any Plaintiff,
and PRO does not even cite any statement
that relates to NFPA or ASHRAE.
48.
NFPA’s Style Manual for the NEC, for
example, specifies that because the NEC is
“intended to be suitable for adoption as a
regulatory document, it is important that it
contain clearly stated mandatory requirements
in the code text” so as to “encourage uniform
adoption . . . without alterations.” Additionally,
ASHRAE circulates a detailed Manual
designed to ensure that technical committees
draft standards that will be easily adopted as
regulations. Dkt. 122-8, Ex. 122 (Style Manual
for the NEC) at 4; Dkt. 122-7, Ex. 103
(ASHRAE Guide to Writing Standards in Code
Intended Language).
IV.

Objection as to completeness. The NEC
Style Manual includes substantial other
general and specific guidelines. E.g., Dkt.
122-8, Ex. 122 at p. 8 (describing annexes
inclusion of “nonmandatory material”); id. at
p. 13 (describing process for drafting
nonmandatory permissive rules and
informational notes).
Disputed as to ASTM. None of the cited
evidence relates to ASTM or its standards,
yet PRO implies that this statement applies
universally to all Plaintiffs.

PLAINTIFFS LOBBY TO HAVE THEIR STANDARDS MADE LAW

49.
ASTM seeks to get Congress to
incorporate the most recent version of any
particular standard because incorporation
“freezes … that reference in statute for years to
come.” Becker Decl., ¶ 12, Ex. 45 (Grove
Depo.) at 260:25–261:15.

27

Disputed. ASTM does not lobby for
incorporation of its standards by reference.
However, if a government is going to
incorporate an ASTM standard by reference,
ASTM believes that it should use the most
up-to-date standard rather than outdated
materials. ECF No. 204-51, Ex. 45 (Grove
Depo.) at 124:10–125:05.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

50.
The adoption or incorporation of NFPA
codes and standards into law may benefit NFPA
financially because it encourages industries to
purchase the standard. Becker Decl., ¶ 13, Ex.
46 (Bliss Depo.) at 118:23–119:1; Becker
Decl., ¶ 5, Ex. 38 (Jarosz Depo.) at 209:16–
210:7.

Disputed. The cited references do not
indicate that incorporation encourages
industries to purchase standards. In the
deposition of Mr. Bliss, he offered his
opinion that individuals might purchase a
standard that had been incorporated; he did
not identify any evidence that supports
PRO’s speculation. In the cited portion of
Mr. Jarosz’s deposition, he states that
incorporation allows Plaintiffs to serve the
industry; that testimony does not say that
incorporation encourages industries to
purchase the standards.
Disputed as incomplete. NFPA has not
identified any direct correlation between
incorporation by reference and sales. ECF
No. 122-2, Def. Ex. 11 (Mullen Depo.) 95:325.

51.
ASHRAE has a Government Affairs It is undisputed that ASHRAE has an office
office in Washington D.C. Dkt. 122-4, , Ex. 52. in Washington DC. Some of the activities
that office takes could be characterized as
“Government Affairs.”
52.
ASHRAE’s Government Affairs office
has encouraged members of congress and other
policy makers to incorporate ASHRAE
standards into law. Becker Decl., ¶ 10, Ex. 43
(Reiniche Depo.) at 136:11–21; 138:24–
140:10; 210:19–211:09.

Disputed. ASHRAE does not dispute that it
offers technical assistance to members of
congress when requested. However,
Defendant overstates the evidence it cites.
Ms. Reiniche’s actual testimony reflects that
ASHRAE staff or volunteers would meet
with agencies “when they were requesting
that type of thing.” The cited testimony also
concerns ASHRAE’s involvement in a
“High-Performance Building Congressional
Caucus Coalition” that may meet with
Congress. Finally, the cited testimony refers
specifically to ASHRAE Standard 161-2007,
which is not at issue in this case.
Objection to the relevance of the cited
testimony to the extent that it refers to

28

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

ASHRAE standards not at issue in this
litigation (Fed. R. Evid. 402).
53.
ASHRAE started a grassroots program
to advocate for adoption of building codes into
law, including the standard known as ASHRAE
90.1. Becker Decl., ¶ 10, Ex. 43 (Reiniche
Depo.) at 144:06–145:23.

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

54.
ASHRAE refers to the citation of
ASHRAE 90.1 in the Energy Policy Act
(“EPAct”) as ASHRAE’s “EPAct advantage,”
because ASHRAE 90.1 is referenced over other
energy efficiency commercial building codes.
Dkt. 122-4, Ex. 50; Becker Decl., ¶ 10, Ex. 43
(Reiniche Depo.) at 127:13–127:18, 128:07–
130:21.

ASHRAE does not dispute that certain
ASHRAE documents have referenced an
“EPAct advantage.” However, EPAct does
not require states to adopt Standard 90.1;
instead it requires that their standards be “no
less stringent” than 90.1 (or no less stringent
than a building code from a competing SDO,
the International Code Council, depending
on building type). ECF No. 204-49, Ex. 43
(Reiniche Depo.) at 31:6-20; 150:14-151:12.

55.
ASHRAE has repeatedly entered into a
“Memorandum of Understanding” with the
Department of Energy (DOE) that states that
both organizations are “committed to working
together toward . . . [c]ooperating in promotion
of ANSI/ASHRAE standards adoption in
building codes.” Dkt. 122-4, Ex. 49; Becker
Decl., ¶ 10, Ex. 43 (Reiniche Depo.) at 110:20–
111:16; 113:13–114:01.

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

29

Defendant overstates the testimony, which
actually reflects that volunteer members of
ASHRAE chapters may speak to local
government officials “when we are made
aware of references” to standards. In other
words, this grassroots campaign does not
necessarily involve adoption of standards but
could be about a number of issues, and
engagement appears to occur once the topic
of incorporation by reference has already
arisen independent of ASHRAE. ECF No.
204-49, Ex. 43 (Reiniche Depo.) at 144:06–
145:23.

ASHRAE admits it has entered a
memorandum of understanding with the
DOE. However, it disputes that the evidence
regarding “adoption into building codes” is
relevant. As Ms. Reniche explained in the
testimony that Defendant cites, this
“adoption” most likely pertained to 90.1
serving as an alternate form of compliance to
an International Code Council code (not
direct incorporation into federal law). ECF

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

No. 204-49, Ex. 43 (Reiniche Depo.) at
111:4-11; 113:13-114:1.
56.
ASTM makes governments aware of
ASTM standards, and takes pride in the
incorporation by reference of its standards.
Becker Decl., ¶ 12, Ex. 45 (Grove Depo.) at
235:02–236:02.

Disputed. Defendant’s characterization of
the testimony is misleading. Mr. Grove
testified: “As a matter of policy, we make
organizations – sorry – governments aware
of our standards and point out and
connection with agency missions. But in the
end, we respect that agencies should be the
ones that determine whether or not our
standards are incorporated or not.” ECF No.
204-51, Ex. 45 (Grove Depo.) at 235:5-10.
Mr. Grove also testified that he did not
believe ASTM would have an official
position as to whether it is pleased when
governments incorporate its standards by
reference. ECF No. 204-51, Ex. 45 (Grove
Depo.) at 236:14-25.

57.
ASTM reaches out to congressional
staffers and government agencies to suggest the
use of particular editions of standards and
particular language in legislation. Dkt. 122-3,
Ex. 24; Becker Decl., ¶ 12, Ex. 45 (Grove
Depo.) at 124:10–125:05; 258:16–261:23;
263:05–263:09.

Disputed. The cited testimony and exhibit
demonstrate that ASTM encourages
government agencies who plan to reference
an ASTM standard to reference the most upto-date version of that standard. ASTM does
not lobby for the incorporation by reference
of its standards or for the inclusion of any
particular language in legislation. ECF No.
118-2 (Pls.’ SMF) ¶ 56.

58.
ASTM participated in an “Incorporation Objection. Relevance.
by Reference Public Workshop” with the U.S.
Department of Transportation on July 13, 2012. Undisputed.
Becker Decl., ¶ 12, Ex. 45 (Grove Depo.) at
270:7–19.
59.
ASTM has never requested that
Congress or a federal agency not incorporate an
ASTM standard by reference into law. Becker
Decl., ¶ 12, Ex. 45 (Grove Depo.) at 261:25–
262:08.

30

Objection. Relevance.
Disputed to the extent it implies that
Congress or any federal agency has ever
sought permission from ASTM before

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

incorporating by reference an ASTM
standard.
60.
On December 3, 2015, ASTM cosponsored an event in Washington D.C. entitled
“What Do Airplanes, Robots, Toys, Flat Screen
TVs Amusement Parks & 3D Printing Have in
Common?” The promotional literature for the
event states that the event “will highlight the
importance of government participation in and
the reliance on voluntary standards and
conformance.” Dkt. 122-7, Ex. 104 (“Capitol
Hill Event to Feature Policy and Business
Leader Insights on Voluntary Standards and
Conformance”).

Objection. Relevance. Objection to the
extent that PRO implies that a statement on
American National Standard Institute’s
website about the event is attributed to
ASTM. Objection to the extent it
mischaracterizes the document, which states
“The event —on December 4, 2015, from
12:00-1:30 p.m. EST—will feature
discussions between policy and business
leaders who will highlight the importance of
government participation in and the reliance
on voluntary standards and conformance.”
Plaintiffs further object to the statement as
hearsay.
Disputed as to characterization of the
supporting exhibit as “promotional
literature.”
Disputed to the extent it falsely suggests that
ASTM is referencing anything other than the
importance of having government
representation in the standards development
process, as well as the input of industry,
public interest groups and others. ASTM
does not lobby for the incorporation by
reference of its standards or for the inclusion
of any particular language in legislation.
ECF No. 118-2 (Pls.’ SMF) ¶ 56.

61.
NFPA engages in activities to promote
the adoption and incorporation by reference of
NFPA codes and standards into law. Becker
Decl., ¶ 13, Ex. 46 (Bliss Depo.) at 46:19–
48:20; 62:20–63:08; 82:09–18.

31

Disputed to the extent that PRO suggests that
NFPA engages in activities with the sole
purpose of encouraging the adoption of its
standards—as opposed to engaging in
activities with another primary purpose (e.g.,
education of the public or increasing public
safety), that have the secondary effect of
encouraging jurisdictions to adopt its
standards.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed to the extent this suggests that
NFPA’s purpose in developing standards is
for them to be incorporated by reference.
NFPA does not develop any standards solely
for that purpose. ECF No. 118-2 (Pls.’ SMF)
¶¶ 90-91.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law.
62.
NFPA is not aware of any situation Disputed to the extent it implies that
where it would discourage the adoption of a incorporation by reference of a standard
standard into law. Becker Decl., ¶ 13, Ex. 46 makes the standard itself law.
(Bliss Depo.) at 48:21–49:04.
63.
NFPA is “advocating for fire safety”
through the adoption and use of its standards by
governments and industries. Becker Decl., ¶ 13,
Ex. 46 (Bliss Depo.) at 82:13–25.

Objection. The statement is irrelevant to the
extent that it relates to ways that industry and
government use standards other than
incorporation by reference.
Disputed. Defendant mischaracterizes the
testimony, which states, “I guess it depends
on the, how you would define ‘advocacy.’
We’re advocating for fire safety, and we
believe that the adoption and use of
standards promotes fire safety.” Def. Ex. 4
(Bliss Depo.) 82:13-16.

64.
According to a statement by the
Modification
and
Replacement
Parts
Association: “The burden of paying high costs
simply to know the requirements of regulations
may have the effect of driving small businesses
and competitors out of the market, or worse
endanger the safety of the flying public by
making adherence to regulations more difficult
due to fees . . . .” Dkt. 122-7, Ex. 105 (ABA
Section of Administrative Law and Regulatory
Practice Resolution, submitted November 17,
2015).

32

Objection. The cited evidence is hearsay. It
is also irrelevant, especially since there is no
evidence to suggest this statement relates to
any standard at issue in this case.
Disputed. There is no admissible evidence
supporting this statement.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

V.

PUBLIC RESOURCE AND CARL MALAMUD

A.

Carl Malamud’s Record of Public Service

65.
Carl Malamud is the President and
Founder of Public Resource. Since the 1980’s,
Mr. Malamud has dedicated his career to
matters of public interest with a focus on
Internet connectivity and public access. Mr.
Malamud’s career began as a Senior Systems
Analyst at Indiana University.
After
completing his doctoral coursework with a
focus on antitrust and regulation at the Indiana
University School of Business, Mr. Malamud
left the program to work on early relational
database programs and computer networking.
Declaration of Carl Malamud in Support of
Public Resource’s Motion for Summary
Judgment and Opposition to Plaintiffs’ Motion
for Summary Judgment (“Malamud Decl”) ¶ 3.
In 1984, Mr. Malamud assisted the Board of
Governors of the Federal Reserve System in
using computer and network technology to
improve key indicators such as forecasts of the
money supply.
Malamud Decl. ¶ 4.
Throughout the rest of the 1980’s Mr. Malamud
continued his public service 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. Malamud Decl. ¶ 5. In
1993, Mr. Malamud founded the first radio
station on the Internet, which he ran as a
501(c)(3) nonprofit public station. Malamud
Decl. ¶ 6.

Objection. Relevance. Mr. Malamud’s prior
work experience is irrelevant. Plaintiffs
object that the statement that Mr. Malamud
founded the first radio station on the internet
lacks foundation. Objection to the extent the
statement is not supported by the declaration.

66.
In January 1994, Mr. Malamud began to
make government and legal materials more
widely available to the public. Using a National
Science Foundation grant, he purchased all
electronic filings corporations submitted to the

Objection. Relevance. The last sentence is
unsupported to the extent that it relies upon
inadmissible hearsay to prove the truth of the
matter asserted. Mr. Malamud’s prior work
experience is also irrelevant.

33

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Securities and Exchange Commission (SEC)
and created the Electronic Data Gathering and
Retrieval (EDGAR) service, which he made
available for free on the Internet. Malamud
Decl. ¶ 7. In August 1995, he donated
computers and software to the SEC so the
Commission could take over this service. Id.
The SEC continues to operate this popular
service, and reports that the system processes
about 3,000 filings per day and 3,000 terabytes
of data annually. See “About EDGAR,”
https://www.sec.gov /edgar/aboutedgar.htm.
67.
Also in 1994, Mr. Malamud 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. Malamud Decl. ¶ 9. He later assisted the
Joint Economic Committee in hosting the first
congressional hearing on the Internet. Malamud
Decl. ¶ 10. That year, Mr. Malamud also
purchased feeds of all U.S. patents and made
them available for free on the Internet, and later
convinced the U.S. Patent and Trademark
Office to provide this service to the public itself.
Malamud Decl. ¶ 12.

Objection. Relevance. Mr. Malamud’s prior
work experience is irrelevant. Objection to
the New York Times Article, ECF No. 2048, Def. Ex. 2, as hearsay to the extent PRO
relies on it for the truth of the matter asserted
therein.

68.
Throughout the 2000s, Mr. Malamud
continued his mission of making government
information more accessible to the public. In
2005 and 2006, Mr. Malamud was the Chief
Technology Officer for the non-profit education
organization Center for American Progress.
While there, he focused on developing a plan to
make all congressional hearing available to the
public as high-resolution video. Malamud Decl.
¶ 13. And, in 2007, Mr. Malamud founded
Public Resource. Through Public Resource,
Mr. Malamud has spearheaded successful
efforts to make government records and

Objection. Mr. Malamud’s prior work
experience is irrelevant.

34

The statement is further disputed to the
extent it implies that Mr. Malamud’s efforts
have not violated copyright law.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

information publicly accessible. Malamud
Decl. ¶ 14.
69.
In January 2009, President Barack
Obama’s transition effort recruited Mr.
Malamud to develop plans and assist with
transforming the Federal Register.
The
resulting program won the first-ever Walter
Gellhorn Award for innovation in government
services by the Administrative Conference of
the United States. The Archivist of the United
States, Hon. David Ferriero, recognized Mr.
Malamud’s efforts in a letter dated April 2,
2019, stating: “Our Founding Fathers believed
that an informed and involved citizenry was key
to our democracy and Public Resource helps us
make[] this true.” Malamud Decl. ¶ 22.

Objection. This statement is unsupported to
the extent that it relies upon inadmissible
hearsay to prove the truth of the matter
asserted. Mr. Malamud’s prior work
experience is also irrelevant. Plaintiffs
further object to the last sentence as
incomplete to the extent it selectively quotes
from a letter.

70.
Mr. Malamud has been recognized by
numerous government officials for his efforts to
make government information freely accessible
on the Internet. For example, Hon. Nancy
Pelosi,
Speaker
of
the
House
of
Representatives, wrote to Mr. Malamud on
April 17, 2008, stating: “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.” Malamud Decl. ¶ 13. Hon. John
Boehner, then Speaker of the House of
Representatives, together with Representative
Darrell Issa, Chair of the House Committee on
Oversight and Government Reform, wrote to
Mr. Malamud on January 5, 2011, stating:
“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 Reform Committee
in their entirety,” and later recognized Public

Objection. This statement is unsupported to
the extent that it relies upon inadmissible
hearsay to prove the truth of the matter
asserted. Mr. Malamud’s prior work
experience is also irrelevant. Plaintiffs
further object to selective quotes from the
attached letters as incomplete. Plaintiffs
object to PRO’s reference to receiving
commendations from “many others” as
vague and ambiguous. Plaintiffs further
object to PRO’s reliance on PRO’s
summaries of purported commendations
under FRE 1002, to the extent that PRO fails
to attach a writing, recording, or document to
the declaration.

35

Plaintiffs object to the extent PRO implies
that the federal government approves of
PRO’s posting any of the Works. Numerous
federal agencies have explicitly taken the
position that incorporation by reference of
materials into regulations does not destroy
the copyright in those materials. ECF No.
118-2 (Pls.’ SMF) ¶ 177.

Plaintiffs object to the extent PRO implies
that the federal government approves of
PRO’s posting any of the Works. Numerous
federal agencies have explicitly taken the
position that incorporation by reference of
materials into regulations does not destroy

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Resource from the floor of the House. Malamud the copyright in those materials. ECF No.
Decl. ¶ 15. Mr. Malamud has also received 118-2 (Pls.’ SMF) ¶ 177.
commendations from Hon. Lee H. Rosenthal,
Chair of the Committee on Rules of Practice
and Procedure of the Judicial Conference of the
United States, and many others. Malamud Decl.
¶ 18.
71.
In addition to recognition from
government officials, organizations have
routinely recognized Mr. Malamud’s efforts to
make government information more accessible,
including awards from Harvard University, the
Society of Professional Journalists, the First
Amendment Coalition, and the American
Association of Law Libraries. Malamud Decl.
¶ 23.

B.

Objection. Relevance. Plaintiffs further
object to PRO’s reliance on PRO’s
summaries of purported awards under FRE
1002 to the extent that PRO fails to attach
any writing, recording, or document to the
declaration. Plaintiffs object to PRO’s
characterizations of specific awards received
“routinely recognize[ing] Malamud’s
efforts.” As Plaintiffs noted in their opening
brief, the Harvard Law Review disputed Mr.
Malamud’s rights to use the BlueBook
without authorization. See Dkt. 200 n. 3.

Public Resource’s Mission

72.
Public Resource is a non-profit
charitable organization that provides online
access to many kinds of government materials,
from judicial opinions to video recordings of
congressional hearings. Malamud Decl. ¶ 1. As
part of this mission, Public Resource operates a
website providing public access to the law,
including statutes, judicial opinions, and public
safety and other standards that federal and state
governments have incorporated into law by
reference. Dkt. 121-5. Public Resource also
contributes its materials to the Internet Archive.
Id. Public Resource aims to create a public
collection of government edicts. Malamud
Decl.
¶ 38;
see
generally
http://www.public.resource.org/.
Public
Resource does not limit, or charge for, access to
its platform. Dkt. 121-5 ¶ 24. It does not
display, or derive any revenue from,

36

Objection as to relevance of Mr. Malamud’s
or Public Resource’s supposed subjective
intent or “aims.” As explained in Plaintiffs’
briefing, fair use turns on how a work
appears to a reasonable observer, not on the
infringer’s subjective intent. Reply at Part
I.A.1.b.
Objection. “Government edicts” is vague
and ambiguous and requires a legal
conclusion.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law or
government-authored materials. Disputed to
the extent it implies that each of the
standards at issue has been incorporated by
reference in its entirety or at all for the
reasons stated in response to Paragraph 84.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

advertising. It relies entirely on contributions Disputed to the extent it suggests that PRO
and grants. Dkt. 121-5 ¶ 30.
posts Plaintiffs’ standards on PRO’s website.
73.
Public Resource promotes public
discourse by making laws and regulations,
including those incorporated by reference, more
accessible. For example, by reformatting
documents, Public Resource allows persons
with visual disabilities to enlarge the text or use
electronic text-to-speech readers to hear the
text. Dkt. 121-5 ¶ 26. Similarly, Public
Resource often translates images into scalable
vector graphics for better enlargement.
Malamud Decl. ¶ 27.. It uses optical character
recognition and often painstakingly retypes
documents into Hypertext Markup Language
(“HTML”) and converts formulas to
Mathematics Markup Language (“MML”). Id.
This makes documents newly word-searchable
and allows researchers to analyze them at large
scale with techniques such as machine learning.
Id.

Objection. This statement is irrelevant. The
D.C. Circuit has already rejected
Defendant’s argument that converting works
into a format more accessible for the visually
impaired is a transformative use. Am. Soc’y
for Testing & Materials v.
Public.Resource.Org, Inc., 896 F.3d 437,
450 (D.C. Cir. 2018) (“[T]he district court
properly rejected some of PRO’s arguments
as to its transformative use—for instance,
that PRO was converting the works into a
format more accessible for the visually
impaired or that it was producing a
centralized database of all incorporated
standards.”).
Disputed to the extent PRO claims that it
“promotes public discourse.” There is no
evidentiary support for this claim or any
claim as to how persons use PRO’s copies of
the Works.
Disputed. PRO cites no evidence to support
its assertion that its postings of the Works
have been used by researchers in any way,
including to analyze them at large scale with
techniques such as machine learning.
Disputed that PRO “painstakingly retypes
documents” to the extent that it suggests that
it accurately or carefully retypes documents.
PRO’s copies of documents, including of the
Works, contain numerous mistakes. ECF
No. 118-2 (Pls.’ SMF) ¶¶ 214-19; ECF No.
198-3 (Pls.’ 2d. Supp. SMF) ¶¶ 13-20. PRO
also hired Point.B Studio, which used
children from a mentoring program whose
target audience was 7- to 14-year-olds to
convert formulas to MathML and drawings
to SVG. ECF No. 118-2 (Pls.’ SMF) ¶ 199.

37

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed. PRO’s assertion that its copying
made documents “newly word-searchable” is
unsupported by the record evidence.
Plaintiffs’ publish standards in a variety of
formats, including searchable PDFs, HTML,
and XML. See ECF No. 118-2 (Pls.’ SMF)
¶¶ 57, 99, 157. Standards are also available
through third-party subscription services that
are fully text-searchable. O’Brien Decl. III
¶¶ 9-10.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law or
government-authored materials. Disputed to
the extent it implies that each of the
standards at issue has been incorporated by
reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
74.
Public Resource endeavors to post on its
website only standards that have become a
federal or state law or regulation through
incorporation by reference. Malamud Decl.
¶ 38.

C.

Objection as to relevance of Mr. Malamud’s
or Public Resource’s supposed subjective
intent.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law or
government-authored materials. Disputed to
the extent it implies that each of the
standards at issue has been incorporated by
reference in its entirety or at all for the
reasons stated in response to Paragraph 84.

Public Resource’s Litigation and Other Disputes

75.
In January 2013, the Sheet Metal and
Air Conditioning Contractors National
Association (SMACNA) threatened Public
Resource with litigation for posting the “HVAC
Air Duct Leakage Test Manual,” which was
incorporated by reference into 10 CFR §

38

Objection. Relevance. PRO’s
characterization of being threatened with
litigation by an entity not a party to this
action regarding PRO’s posting of materials
not authored by Plaintiffs and not at issue in
this case is irrelevant. Plaintiffs also object
to the statement as hearsay.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

434.403 as well as incorporated into state
regulations. Malamud Decl., ¶ 33.
76.
Public Resource sued for declaratory
relief in the U.S. District Court for the Northern
District of California, Case 3:13-cv-00815.
Malamud Decl., ¶ 34. 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 the
four standards explicitly incorporated into the
CFR, not to assert copyright in those
documents, and to pay Public Resource a token
one dollar. See Malamud Decl., ¶ 34, Ex. 27.

Objection. Relevance. PRO’s discussion of
litigation involving an entity not a party to
this action regarding PRO’s posting of
materials not authored by Plaintiffs and not
at issue in this case is irrelevant. Plaintiffs
also object to the statement as hearsay.

77.
When the State of Oregon objected to
Public Resource’s posting of the Oregon
Revised Statutes, Carl Malamud spoke to the
Legislative Counsel Committee, a joint
committee of the Oregon Legislature chaired by
the Speaker of the House and the Senate
President. After hearing him and other
witnesses, including the Legislative Counsel,
the committee voted to abandon assertions of
copyright over the Oregon Revised Statutes.
See Malamud Decl., ¶ 24, Ex. 23.

Objection. Relevance. PRO’s discussion of
negotiations involving an entity not a party
to this action regarding PRO’s posting of
materials not authored by Plaintiffs and not
at issue in this case is irrelevant. Plaintiffs
also object to the statement as hearsay.

78.
Similarly, in 2012, after Public
Resource posted the official Code of the District
of Columbia, the General Counsel of the
District of Columbia studied the situation and
decided to produce a 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 and available at
https://code.dccouncil.us/. See Malamud Decl.,
¶ 25.

Objection. Relevance. PRO’s discussion of
activities of an entity not a party to this
action related to PRO’s posting of materials
not authored by Plaintiffs and not at issue in
this case is irrelevant.
Hearsay and lack of foundation/personal
knowledge as to what the General Counsel of
the District of Columbia studied or what
software is maintained by Open Law
Library.

79.
The State of Georgia sued Public Objection. Relevance. PRO’s discussion of
Resource for posting online the Official Code litigation involving an entity not a party to
of Georgia Annotated. Malamud Decl., ¶ 26. this action related to PRO’s posting of
That case concerns Georgia’s only official law,
39

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

which the state publishes as the “Official Code
of Georgia Annotated” with annotations that the
state has designated as “official.” The Eleventh
Circuit held that Public Resource’s actions were
lawful: it ruled the entire Code, with
annotations, is a government edict not subject to
copyright. See Code Revision Commission v.
Public.Resource.Org, 906 F.3d 1229, 1233,
1244 (11th Cir. 2018). That case is now before
the U.S. Supreme Court. See State of Georgia
v. Public.Resource.Org, Inc., U.S. Supreme
Court Docket 18-1150. Malamud Decl., ¶ 26.

materials not authored by Plaintiffs and not
at issue in this case is irrelevant.
Improper opinion testimony regarding the
supposed holding. The Eleventh Circuit’s
ruling regarding Defendant’s posting of the
Official Code of Georgia Annotated (law
authored by the Georgia Legislature), as
opposed to standards authored by private
entities and allegedly incorporated by
reference into law, is irrelevant. See ECF
No. 195 at 1 (opposing a stay in this case on
the basis that “Georgia v.
Public.Resource.Org is unlikely to affect
significantly the questions immediately
before this Court, namely fair use and
copyright ownership determinations based
on the facts of this case.”).
PRO’s description of the Eleventh Circuit’s
holding is a legal conclusion and not a
factual statement.

80.
Mr. Malamud and Public Resource
posted to the Internet Archive the version of the
2002 version of the National Electrical Safety
Code (NESC) that the Indiana Supreme Court
reviewed in Bellwether Properties, LLC, v.
Duke Energy Indiana, Inc., 87 N.E.3d 462,
468–69 (Ind. 2017), which is located at
https://ia600704.us.archive.org/16/items/gov.law
.ieee.c2.2002/
ieee.c2.2002.pdf. Malamud Decl. ¶ 42. The
metadata page for the 2002 version of the NESC
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.la
w.ieee.c2.2002/ieee.c2.2002.
pdf_meta.txt. Id.

40

Objection. Hearsay and lack of
foundation/personal knowledge as to
whether the Indiana Supreme Court reviewed
PRO’s website. Defendant’s posting of the
NESC, a code not authored by Plaintiffs and
not at issue in this case, purportedly relied
upon by the Indiana Supreme Court, is
irrelevant.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
VI.

PLAINTIFFS’ RESPONSE

PUBLIC RESOURCE’S POSTING OF STANDARDS AT ISSUE

81.
Public Resource has posted the Disputed to the extent it implies that each of
incorporated standards at issue online. Dkt. the standards at issue has been incorporated
121-5 ¶ 15–19.
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it suggests that PRO’s
postings accurately and completely
reproduce Plaintiffs’ standards without any
errors.
Plaintiffs do not dispute that PRO
reproduced and displayed versions of the
Works, although those versions introduced
errors not present in the authentic Works.
82.
A “reapproval” of an ASTM standard
means that an older standard is re-evaluated and
republished without any changes to its content.
Becker Decl., ¶ 7, Ex. 40 (Smith Depo.) at
151:01–152:02.

Disputed. Defendant mischaracterizes the
testimony, which states that when an ASTM
standard is reapproved, there is “nothing
technically significant” that differs from the
previous version. ECF No. 204-46, Becker
Decl. ¶ 7, Ex. 40 (Smith Depo.) at 151:01–
152:02. Standards that have been
reapproved without a technically significant
change are indicated by the year of last
reapproval in parentheses as part of the
designation number (e.g., C5-79 (1997)
indicates that C5 was reapproved in 1997).
ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶ 35.

83.
As a public officer (but not as an NFPA
employee), NFPA Vice President Donald Bliss
has experienced confusion as to which version
or edition of the code is in force in a jurisdiction
because NFPA produces a number of different
editions. Becker Decl., ¶ 13, Ex. 46 (Bliss
Depo.) at 215:13–23.

Disputed. Mr. Bliss testified that, during his
time as a public officer, he had encountered
other professionals who had confusion over
which version of a code was in force. He
neither testified that he experienced any such
confusion himself, nor that any confusion
was over which version of a standard
developed by NFPA—or ASTM or
ASHRAE—had been incorporated.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves “in

41

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

force” or are law, which is a legal
conclusion.
84.
Each standard at issue on Public
Resource’s websites was incorporated by
reference into law. Dkt. 121-5 ¶ 23; Pls. Mem.
9. A small minority of the ASTM standards that
Public Resource posted were not the precise
edition that is mentioned in the C.F.R. Often
this is because Public Resource posted an
identical reissue of the standard where it could
not obtain the precise edition that was cited.
But in several instances, the editions Public
Resource posted may have minor editorial
differences, or rarely a substantive difference.
For a complete listing of the standards at issue,
citations to the incorporation, and excerpts of
the incorporating language, see the IBR
Reference Tables at Becker Decl. ¶¶ 56-58,
Exs. 89-91.

Objection. The statement is unsupported by
the cited evidence.
Plaintiffs also object to PRO’s misleading
reliance on Pls.’ Mem. at 9 as evidence, to
the extent it relies on Plaintiffs’ quoting of
PRO’s own self-serving and unsupported
response to PRO’s response to
interrogatories. Plaintiffs likewise object to
Dkt. 121-5 ¶ 23 (Malamud Decl.), which
does not support the statement that each of
the 217 standards at issue in this lawsuit has
been incorporated by reference, and merely
states that “73 of the documents on the
Public Resource web site” that Malamud
posted in 2012 appeared in the Standards
Incorporated by Reference (“SIBR”)
database. That is not sufficient to establish
an IBR. To the extent PRO relies on
Malamud’s testimony for the proposition that
standards incorporated by reference
constitutes the law, Plaintiffs object that this
is improper expert testimony by a lay
witness; Malamud’s opinions on this issue
are irrelevant.
Disputed to the extent it implies that
incorporation by reference of a standard
makes the standard itself law.
Disputed to the extent that PRO asserts that
“Each standard that Public Resource posts is
incorporated into law in its entirety” or in
many cases at all. This is a legal conclusion
and is unsupported by the undisputed record
evidence. PRO admits that “when
attempting to post the relevant law, Public
Resource accidentally posted an edition of an
ASTM standard that was not the precise
edition listed in the C.F.R. incorporating

42

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

language.” ECF No. 203-1, Opp. 6 n.3.
PRO ignores numerous examples where it
has incorporated the wrong version of an
ASTM standard or where the relevant
regulation only incorporates a portion of
ASTM’s standards. See ECF No. 155-3,
Pls.’ Response to PRO Disputed Facts ¶¶ 3643.
Disputed to the extent PRO implies that such
errors are immaterial.
Plaintiffs objects to Defendant’s Exhibits 8991 as irrelevant to the extent that they
address ASTM Standards that are not the
subject of this motion and legal analyses (not
facts).
PRO relies on its chart of citations to the
incorporation, and excerpts of the
incorporating language, for the proposition
that some version of the C.F.R. previously
incorporated at least a similar version of the
Works that PRO reproduced and displayed
on its website. However, PRO’s Exhibits
89-91 fail to support PRO’s statement of
fact. See Wise Decl. II, Exs. 175, 176, 186
(Responsive Charts).
With respect to more than 20% of ASTM
Works, PRO identified a citation to the
C.F.R. that was not promulgated until years
after PRO posted the standards. This means
that (1) PRO did not rely on those
incorporations when it posted the standards;
and (2) at a minimum, PRO has no defense
for its infringement from the time it posted
the standards until the IBR it identifies (and
even then, for the reasons Plaintiffs’ explain,
PRO’s wholesale copying is not fair use).
Wise Decl. II ¶ 4, Ex. 176.

43

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE





PRO Ex. 90 at 42, PRO asserts D1335-67
(1972) was incorporated by 24 C.F.R. §
200.942 (2015);



PRO Ex. 90 at 43, PRO reproduced and
displayed D1518-85 (1998)e1, PRO
asserts D1518-85 (1990) was
incorporated by 46 C.F.R. § 160.174-3
(2014);



PRO Ex. 90 at 44, PRO asserts D1535-89
was incorporated by 7 C.F.R. § 1755.910
(2014);



PRO Ex. 90 at 48, PRO asserts that
D1945-96 was incorporated by 41 C.F.R.
§ 60.17 (2019);



PRO Ex. 90 at 50, PRO asserts that
D2015-96 was incorporated by 40 C.F.R.
§ 60.17 (2015);



PRO Ex. 90 at 51, PRO asserts that
D2216-98 was incorporated by 40 C.F.R.
§ 258.41 (2014);



PRO Ex. 90 at 62, PRO asserts that
D3236-88 (1999) was incorporated by 21
C.F.R. § 177.1520 (2013);



PRO Ex. 90 at 64, PRO asserts that
D3371-95 was incorporated by 40 C.F.R.
136.3 (2014);



PRO Ex. 90 at 65, PRO reproduced and
displayed D3697-92 (1996), PRO asserts
that D3697-92 was incorporated by
reference in 21 C.F.R. § 165.110 (2015);



44

PRO Ex. 90 at 40, PRO reproduced and
displayed D1298-99, PRO asserts that
D1298-99 (2005) was incorporated by 40
C.F.R. § 600.011 (2013);

PRO Ex. 90 at 69, PRO Asserts that
D4268-93 was incorporated by 33 C.F.R.
§ 164.03 (2014);

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE





PRO Ex. 90 at 71, PRO asserts that
D4809-95 was incorporated by 40 C.F.R.
§ 61.18 (2014);



PRO Ex. 90 at 72, PRO asserts that
D4986-98 was incorporated by 46 C.F.R.
§ 31.01-1 (2014);



PRO Ex. 90 at 74, PRO reproduced and
displayed D5489-96a, PRO asserts
D5489-96c was incorporated by 16
C.F.R. § 423.8 (2014);



PRO Ex. 90 at 76, PRO reproduced and
displayed D611-82 (1998), PRO asserts
D611-82 was incorporated by 21 C.F.R.
§ 176.170 (2014);



PRO Ex. 90 at 77, PRO asserts that
D6420-99 was incorporated by 40 C.F.R.
§ 63.14 (2019);



PRO Ex. 90 at 78, PRO asserts that
D665-98 was incorporated by reference
at 46 C.F.R. § 61.03-1 (2014);



PRO Ex. 90 at 79, PRO asserts D86-07
was incorporated by reference in 40
C.F.R. § 80.47(r) (2017);



PRO Ex. 90 at 81, PRO asserts E11-95
was incorporated by reference in 33
C.F.R. § 159.4 (2014);



PRO Ex. 90 at 85, PRO asserts E185-82
was incorporated by reference in 10
C.F.R. § 50 App. H (2014);



45

PRO Ex. 90 at 70, PRO asserts that
D4329-99 was incorporated by 49 C.F.R.
§ 571.5 (2014);

PRO Ex. 90 at 88, PRO reproduced and
displayed E408-71, PRO asserts that
E408-71 (2002) was incorporated by
reference in 16 C.F.R. § 460.5 (2014);

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE





PRO Ex. 90 at 92, PRO asserts E774-97
was incorporated by reference in 24
C.F.R. § 3280.4 (2014);



PRO Ex. 90 at 93, PRO reproduced and
displayed E775-87 (1992), PRO asserts
that E775-87 (2004) was incorporated by
reference in 40 C.F.R. § 49.123 (2014);



PRO Ex. 90 at 94, PRO asserts E96-95
was incorporated by reference in 24
C.F.R. § 3280.4 (2014);



PRO Ex. 90 at 95, PRO asserts F1003-86
(1992) was incorporated by reference in
46 C.F.R. § 199.05 (2014);



PRO Ex. 90 at 96, PRO asserts F1014-92
was incorporated by reference in 46
C.F.R. § 199.05 (2014);



PRO Ex. 90 at 98, PRO reproduced and
displayed F1121-87 (1998), PRO asserts
F1121-87 (2010) was incorporated by
reference in 46 C.F.R. § 193.01-3 (2014);



PRO Ex. 90 at 98, PRO reproduced and
displayed F1121-87 (1998), PRO asserts
F1121-87 (1992) was incorporated by
reference in 33 C.F.R. § 154.106 (2014);



PRO Ex. 90 at 100, PRO asserts F115598 was incorporated by reference in 33
C.F.R. § 154.106 (2014);



PRO Ex. 90 at 101, PRO reproduced and
displayed F1193-06, PRO asserts that
E1193-97 (2004) was incorporated by
reference in 40 C.F.R. § 799.5087
(2014);



46

PRO Ex. 90 at 92, PRO asserts E773-97
was incorporated by reference in 24
C.F.R. § 3280.4 (2014);

PRO Ex. 90 at 105, PRO reproduced and
displayed F1273-91 (1996)e1, PRO

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

asserts that F1273-91 (2007) was
incorporated by reference in 33 C.F.R. §
154.106 (2014);


PRO Ex. 90 at 105, PRO reproduced and
displayed F1273-91 (1996)e1, PRO
asserts that F1273-91 (2007) was
incorporated by reference in 33 C.F.R. §
154.106 (2014);



PRO Ex. 90 at 108, PRO asserts F195199 was incorporated by reference in 36
C.F.R. § 1191 App. B (2014);



PRO Ex. 90 at 110, PRO asserts F631-93
was incorporated by reference in 33
C.F.R. § 154.106 (2014);



PRO Ex. 90 at 112, PRO asserts F715-95
was incorporated by reference in 33
C.F.R. § 154.106 (2014);



PRO Ex. 90 at 113, PRO reproduced and
displayed F722-82 (1988), PRO asserts
F722-82 (2008) was incorporated by
reference in 33 C.F.R. § 154.106 (2014);



PRO Ex. 90 at 114, PRO asserts G151-97
was incorporated by reference in 49
C.F.R. § 571.5 (2014);



PRO Ex. 90 at 115, PRO reproduced and
displayed G154-2000a, PRO asserts
G154-00 was incorporated by reference
in 49 C.F.R. § 571.5 (2014); and



PRO Ex. 90 at 115, PRO asserts G21-90
was incorporated by reference in 7
C.F.R. § 1755.910 (2014).

Additionally, for 56 ASTM Works, PRO
identified a citation to a version of the C.F.R.
that had been amended to eliminate reference
to the ASTM Work at issue or to incorporate
a different standard before PRO posted the
Works (and was therefore not an effective

47

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

regulation at the time PRO posted the
Works). Wise Decl. II ¶ 4, Ex. 176.




PRO Ex. 90 at 1, PRO asserts that A106 /
A106 M-04b was incorporated by
reference in 49 C.F.R. § 192.7 (2010).
That regulation was amended in 2011 to
eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).



PRO Ex. 90 at 14, PRO asserts that
A539-90a was incorporated by reference
in 24 C.F.R. § 3280.4 (2004). That
regulation was amended in 2007 to
eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).



48

PRO Ex. 90 at 1-12, 15-19, 33-34, 36,
89-90, 109, PRO asserts that A184-79,
A185-79, A242-79, A307-78e, A325-79,
A36-77ae, A441-79, A449-78a, A49079, A496-78, A497-79, A500-78, A50176, A502-76, A514-77, A570-79, A57279, A588-79a, A611-72 (1979), A61579, A616-79, A617-79, A82-79, C5-79
(1997), C516-80 (1996)e1, C564-70
(1982), E424-71, E606-80, E695-79
(1997)e1, and F462-79 (1999) were
incorporated by reference in 24 C.F.R.
Parts 200 to 499 (2005). That regulation
was amended in 2009 to eliminate
reference to these ASTM Works and/or
incorporate different ASTM standards.

PRO Ex. 90 at 24, PRO asserts that B2183b was incorporated by reference in 46
C.F.R. § 56.01-2 (1996-2008). That
regulation was amended in 2000 to
eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE





PRO Ex. 90 at 31, 33, PRO asserts that
C150-99a and C330-99 were
incorporated by reference in 30 C.F.R. §
250.198 (2007). That regulation was
amended in 2010 to eliminate reference
to these ASTM Works and/or to
incorporate a different ASTM standards.



PRO Ex. 90 at 39, PRO asserts that
D1266-98 was incorporated by reference
in 40 C.F.R. § 1065.1010 (2005). That
regulation was amended in 2006 to
eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).



PRO Ex. 90 at 51, PRO asserts that
D2163-91 (1996) was incorporated by
reference in 40 C.F.R. § 1065.1010(a)
and Table 1 (2003-2008). Those
regulations were amended in 2008 to
eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).



PRO Ex. 90 at 59, PRO asserts that
D3120-96 was incorporated by reference
in 40 C.F.R. § 80.580(b) (2001-2003).
That regulation was amended in 2004 to
eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).



49

PRO Ex. 90 at 29, PRO asserts that B8584 was incorporated by reference in 46
C.F.R. § 56.01-2 (1997). That regulation
was amended in 2000 to eliminate
reference to this ASTM Work and/or to
incorporate a different ASTM
standard(s).

PRO Ex. 90 at 74, PRO asserts that
D5373-93 (1997) was incorporated by
reference in 40 C.F.R. § 75.6 (2004).
That regulation was amended in 2008 to

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).




PRO Ex. 90 at 86, 95, 97, 99-100, 103104, 111, PRO asserts that E23-82,
F1006-86 (1997), F1120-87 (1998),
F1123-87 (1998), F1139-88 (1998),
F1172-88 (1998), F1199-88 (1998),
F1200-88 (1998), F1201-88 (1998), and
F682-82a (1988) were incorporated by
reference in 46 C.F.R. § 56.01-2 (1997).
That regulation was amended in 2000 to
eliminate reference to these ASTM Work
and/or to incorporate different ASTM
standards.



PRO Ex. 90 at 90, PRO asserts that
E681-85 was incorporated by reference
in 49 C.F.R. § 171.7 (2002). That
regulation was amended in 2004 to
eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).



PRO Ex. 90 at 106, PRO asserts that
F1323-98 was incorporated by reference
in 46 C.F.R. § 63.05-1 (2005). That
regulation was amended in 2008 to
eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).



50

PRO Ex. 90 at 79, PRO asserts that
D814-95 was incorporated by reference
in 40 C.F.R. § 1051.810 (2007). That
regulation was amended in 2008 to
eliminate reference to this ASTM Work
and/or to incorporate a different ASTM
standard(s).

PRO Ex. 90 at 111, 114, PRO asserts that
F631-80 (1985) and F808-83 (1988)e1
were incorporated by reference in 33
C.F.R. § 154.106 (1999). That regulation

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

was amended in 2009 to eliminate
reference to these ASTM Works and/or
to incorporate different ASTM standards.


PRO Ex. 90 at 112, PRO asserts F715-81
(1986) was incorporated by reference in
33 C.F.R. § 154.106 (1997-2008). That
regulation was amended in 2009 to
eliminate reference to these ASTM
Works and/or to incorporate different
ASTM standards.

Accordingly, even at the time PRO
reproduced and displayed numerous
ASTM’s Works, no regulation identified by
PRO incorporated the standard PRO posted.
Disputed to the extent PRO intends to use
this paragraph or Exhibits 89-91 to the
Declaration of Matthew Becker to support its
claim that “federal law has incorporated by
reference every one of the documents at
issue here at least once,” Opp. 6, or that
“[t]he federal government has incorporated
into law every entire standard at issue.”
Opp. 8. For the reasons explained in
Plaintiffs’ briefing, that claim fails both
legally and factually. Reply Br. Part. I.A.1.a.
Moreover, the exhibits that PRO has
produced do not support the claim; Exhibit
91 does not identify any federal regulation
that incorporates any part of NFPA 1 (2003),
NFPA 1 (2006), or NFPA 54 (2006). Ex. 91
at 1, 5. Exhibit 91 identifies 24 C.F.R.
§ 3285.4 (2013) as incorporating NFPA 70
(2008), but, as the “text of incorporation”
column shows, that regulation refers to the
2005 edition of NFPA 70, not the 2008
edition, Ex. 91 at 8; Exhibit 91 does not
identify any other federal regulation that
purportedly incorporates NFPA 70 (2008).
See Wise Decl. II, Ex. 175.

51

DEFENDANT’S SECOND
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STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed to the extent it suggests that PRO’s
postings accurately and completely
reproduce Plaintiffs’ standards without any
errors. PRO posted versions of the standards
at issue, although those versions introduced
errors not present in the authentic Works.
87.
Public Resource posted the incorporated
standards at issue using Hypertext Markup
Language (HTML), Mathematics Markup
Language (MathML), and Scalable Vector
Graphics (SVG). Over time, Public Resource
used contractors to assist in transforming the
standards into HTML format. Two people
independently type out most of the standards on
Public Resource’s websites and compare any
discrepancies between their versions to confirm
the accuracy of the transcription in a process
called “double-keying.” Public Resource’s
contractor also worked to convert the diagrams
into Scalable Vector Graphics (“SVG”) and the
mathematical formulae into Mathematics
Markup Language (“MathML”). Dkt. 121-5
¶ 25.

Disputed that the conversion of standards
into HTML or other formats was
transformative. The cited evidence is
irrelevant. The D.C. Circuit considered and
rejected this argument. Am. Soc’y for
Testing & Materials v. Public.Resource.Org,
Inc., 896 F.3d 437, 450 (D.C. Cir. 2018)
(citing Am. Geophysical Union v. Texaco
Inc., 60 F.3d 913, 923–24 (2d Cir. 1994)
(holding that photocopying articles “into a
form more easily used in a laboratory” does
not constitute transformative use but
acknowledging “the benefit of a more usable
format”)).
Disputed as to the process Defendant’s
contractor used to convert the standards into
HTML format. The contractor testified that
it used optical character recognition to
extract text unless the image quality of the
document was poor. ECF No. 118-2 (Pls.’
SMF) ¶ 192.
Disputed to the extent that it suggests that
PRO used professional “contractors” to do
the conversion of diagrams and formulas.
“Public Resource’s contractor” (i.e., Mr.
Malamud’s wife’s unincorporated business)
used children in an after-school program to
convert diagrams into SVG format and
formulas into MathML, which was
advertised as targeting children aged 7 to 14.
ECF No. 118-2 (Pls.’ SMF) ¶ 199.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.

53

DEFENDANT’S SECOND
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PLAINTIFFS’ RESPONSE

Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent PRO suggests that it
posted all of the Works in HTML format.
Wise Decl. II ¶ 2, Ex. 174, at Interrog. 2.
Disputed to the extent it suggests that PRO’s
postings accurately and completely
reproduce Plaintiffs’ standards without any
errors. PRO posted versions of the standards
at issue, although those versions introduced
errors not present in the authentic Works.
88.
Hypertext Markup Language (HTML), Undisputed.
Mathematics Markup Language (MathML),
and Scalable Vector Graphics (SVG) permit
users to perform software-based searching and
analysis. Dkt. 121-5 ¶ 25.
89.
Public Resource does not restrict the
public from viewing any of the incorporated
standards at issue on its websites. Dkt. 121-5
¶ 23.

Disputed to the extent it suggests that PRO’s
postings of the Works are available on
PRO’s website, rather than on the Internet
Archive.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it suggests that PRO’s
postings accurately and completely
reproduce Plaintiffs’ standards without any
errors. PRO posted versions of the standards
at issue, although those versions introduced
errors not present in the authentic Works.

90.
Public Resource does not require people Disputed to the extent it suggests that PRO’s
to log in to its website before viewing any of the postings of the Works are available on

54

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

incorporated standards at issue on its websites. PRO’s website, rather than on the Internet
Dkt. 121-5 ¶ 23.
Archive.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it suggests that PRO’s
postings accurately and completely
reproduce Plaintiffs’ standards without any
errors. PRO posted versions of the standards
at issue, although those versions introduced
errors not present in the authentic Works.
91.
Public Resource does not require people
to pay Public Resource before viewing any of
the incorporated standards at issue on its
websites. Dkt. 121-5 ¶ 23.

Disputed to the extent it suggests that PRO’s
postings of the Works are available on
PRO’s website, rather than on the Internet
Archive.
Disputed to the extent it suggests Plaintiffs
require payment from individuals who access
the read-only versions on their websites.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it suggests that PRO’s
postings accurately and completely
reproduce Plaintiffs’ standards without any
errors. PRO posted versions of the standards
at issue, although those versions introduced
errors not present in the authentic Works.

55

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

92.
The Public Resource websites are Objection as to relevance of Mr. Malamud’s
directed at researchers and engaged citizens. or Public Resource’s supposed subjective
Dkt. 121-5 ¶ 4, 26.
intent. Objection as to the relevance, as PRO
does not currently post its versions of
Plaintiffs’ standards on its website.
Disputed. Defendant’s websites are
accessible by the general public and
Defendant has both disavowed any desire to
know who uses the versions of standards it
posts and has no ability to identify who has
downloaded, made additional copies of, or
printed the versions of Plaintiffs’ standards
from its website. ECF No. 118-2 (Pls.’
SMF) ¶ 248.
93.
Public Resource’s stated purpose for
providing an archive or laws and other
government documents on its websites is to
bolster the public’s ability “to know and speak
the
law.”
Dkt.
121-5
¶ 28
(https://law.resource.org/pub/12tables.html).

Objection. Defendant’s stated purpose is
irrelevant. As explained in Plaintiffs’
briefing, fair use turns on how a work
appears to a reasonable observer, not on the
infringer’s subjective intent. Reply at Part
I.A.1.b.
Hearsay to the extent that the out of court
statements are relied upon to prove the truth
of the matters asserted.
Disputed to the extent it suggests that PRO’s
postings of the Works are available on
PRO’s website, rather than on the Internet
Archive.

94.
Plaintiffs sell copies of the incorporated
standards at issue. Thomas Decl. ¶ 44, ECF No.
118-11; Pauley Decl. ¶ 44, ECF No. 118-8;
Becker Decl., ¶ 11, Ex. 44 (Comstock Depo.) at
104:21–106:23.

Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Plaintiffs do not dispute that they sell the
Works.

56

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

95.
Public Resource’s versions of the
incorporated standards at issue are accessible to
the print-disabled. People who are printdisabled can use screen reader software to read
and navigate the HTML versions of the
standards.
James
Fruchterman,
Public
Resource’s expert on accessibility, concluded
that “a blind person using a screen reader” can
“read the standard . . . navigate to a specific
place in the document . . . and search for key
terms.”). Mr. Fruchterman also observed that
“standard HTML” as used by Public Resource
“is also highly accessible to people with other
print disabilities and the assistive technology
they use to access print,” such as people with
“vision impairment, dyslexia, brain injury and
physical disabilities.” Becker Decl. ¶ 62, Ex. 96
(Fruchterman Rep. 5–7); ¶ 17, Ex. 50 (R.
Malamud Depo. 233:15–234:7); Becker Decl.,
¶ 6, Ex. 39 (Fruchterman Depo.) at 125:10–11.

Objection. The statement’s discussion of
access for individuals with visual disabilities
is irrelevant as the D.C. Circuit previously
held that “the district court properly rejected
some of PRO’s arguments as to its
transformative use—for instance, that PRO
was converting the works into a format more
accessible for the visually impaired or that it
was producing a centralized database of all
incorporated standards.” Am. Soc’y for
Testing & Materials v. Public.Resource.Org,
Inc., 896 F.3d 437, 450 (D.C. Cir. 2018).

96.
Plaintiffs’ versions of the incorporated
standards at issue online are not as accessible to
the print-disabled as Public Resource’s versions
of those standards. None of the Plaintiffs
provide free electronic access to standards
incorporated into law for people with
disabilities. For example, NFPA’s website
requires visitors to register before viewing the

Objection. The cited evidence is irrelevant
and its probative value is substantially
outweighed by the unfair prejudice to
Plaintiffs. The D.C. Circuit previously held
that “the district court properly rejected some
of PRO’s arguments as to its transformative
use—for instance, that PRO was converting
the works into a format more accessible for

57

Disputed. Mr. Fruchterman admitted he
could not opine that a visually disabled
person would actually be able to use the
HTML versions of Plaintiffs’ standards
posted on Defendant’s website. ECF No.
155-1 (Pls.’ Supp. SUMF) ¶ 4 (Fruchterman
Depo. 175:5-176:9, 218:3-23). Mr.
Fruchterman also acknowledged that he had
asked a visually disabled person to evaluate
the PDF versions of Plaintiffs’ standards that
were posted on Defendant’s website, and that
person informed him that those documents
could not be considered to be accessible.
ECF No. 155-1 (Pls.’ Supp. SUMF) ¶ 5
(Fruchterman Depo. 256:12-259:6). In
addition, the documents posted on
Defendant’s website are not the standards at
issue. They are Defendant’s mistake-laded
creations. ECF No. 118-2 (Pls.’ SMF) ¶¶
182-185, 188-201.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

standards, and its registration process cannot be
completed by blind users. None of the Plaintiffs
provides machine-readable text of the
incorporated standards through their free
reading portals. They provide only “a picture of
the text,” which causes screen-reading software
to “stop working.” Nor do the Plaintiffs’
websites provide any means for disabled
visitors to search or navigate the documents.
Thus, “Public.Resource.Org currently provides
the only accessible option for people/citizens
with print disabilities to access these
standards.”
Becker Decl., ¶ 6, Ex. 39
(Fruchterman Depo.) at 43:21–23; 112:1–8;
133:5; 143:10–14; 165:17–166:7; 167:8;
205:2–13; Becker Decl. ¶ 62, Ex. 96
(Fruchterman Rep. 5–13); Becker Decl., ¶ 13,
Ex. 46 (Bliss Depo.) at 220:1–221:25; ¶ 2, Ex.
4 (Bliss Ex. 1003); Becker Decl., ¶ 11, Ex. 44
(Comstock Depo.) at 20:22; 44:1–46:25.

the visually impaired or that it was producing
a centralized database of all incorporated
standards.” Am. Soc’y for Testing &
Materials v. Public.Resource.Org, Inc., 896
F.3d 437, 450 (D.C. Cir. 2018).

58

Disputed to the extent the statements relates
to people with non-print disabilities. To
protect their copyrighted standards from
exposure to mass copying, Plaintiffs have
provided versions of their standards on their
reading rooms that provide read-only access.
See, e.g., ECF No. 204-51, Ex. 45 (Grove
Depo.) at 110:8-23; ECF No. 204-47, Ex. 41
(Dubay Depo.) 77:21-78:4; ECF No. 204-50,
Ex. 44 (Comstock Depo.) at 10:23-11:3.
There is no evidence that Plaintiffs placed
any purposeful restriction on the use of
screen readers by people with print
disabilities on their reading rooms. To the
extent a screen reader requires the ability to
do more than read from an image of the
standard on the screen, it is undisputed that
the screen reader will not be able to read the
versions of Plaintiffs’ standards on their
reading rooms. Mr. Fruchterman admitted
he could not opine that a visually disabled
person would actually be able to use the
HTML versions of Plaintiffs’ standards
posted on Defendant’s website. ECF No.
155-1 (Pls. Suppl. SUMF) ¶ 4 (Fruchterman
Depo. 175:5-176:9, 218:3-23). Mr.
Fruchterman also acknowledged that he had
asked a visually disabled person to evaluate
the PDF versions of Plaintiffs’ standards that
were posted on Defendant’s website, and that
person informed him that those documents
could not be considered to be accessible.
ECF No. 155-1 (Pls. Suppl. SUMF) ¶ 5
(Fruchterman Depo. 256:12-259:6).

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

ASTM is not aware of any visually impaired
person who has informed ASTM that he/she
was having difficulty accessing an ASTM
standard due to a print disability. If a
visually impaired person requested access to
an ASTM standard due to a print disability,
ASTM would provide a copy of the relevant
standard in a format that accommodated the
person’s disability at no additional cost to the
requester. ECF No. 155-1 (Pls. Suppl.
SUMF) ¶ 8 (citing O’Brien Suppl. Decl. ¶
17.)
Mr. Fruchterman testified that the 2014
edition of the NEC is available on Mr.
Fruchterman’s company’s online library for
the visually impaired website. ECF No. 1551 (Pls. Suppl. SUMF) ¶ 3 (Fruchterman
Depo. 209:18-213:23). There is no evidence
that the other standards at issue are
unavailable on that or similar websites for
the visually impaired.
NFPA has a commitment to make
accommodations for persons with disabilities
to access NFPA materials. For each request
by a visually impaired individual for access
to an NFPA standard, NFPA has responded
by providing that individual with a copy they
can use at no charge. ECF No. 155-1 (Pls.’
Supp. SUMF) ¶ 9. NFPA is not aware of any
other individuals who have requested and not
received an accommodation. ECF No. 155-1
(Pls.’ Supp. SUMF) ¶ 10.
97.
Downloading an incorporated standard
allows more flexibility for using and sharing
that standard. Becker Decl., ¶ 11, Ex. 44 (Jarosz
Depo.) at 215:9–15; 215:21–216:1.

Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it suggests that the
inability to download a standard would
prevent use of the standard. Undisputed that

59

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

the ability to download a standard makes it
easier to share that standard.
98.
It is not Public Resource’s intention to
make copies that are similar to the standards
actually sold by ASTM available on its website
because they post standards that have been
explicitly and specifically incorporated by
reference into federal or state law. Dkt. 121-5
¶ 4–15.

Objection as to relevance of PRO’s supposed
subjective intent. As explained in Plaintiffs’
briefing, fair use turns on how a work
appears to a reasonable observer, not on the
infringer’s subjective intent. Reply at Part
I.A.1.b.
Vague and ambiguous in its entirety.
Disputed to the extent it suggests that
Defendant has not made copies of standards
that ASTM sells available on its website.

99.
Public Resource posted the incorporated Objection as to relevance of Public
standards at issue to inform citizens about the Resource’s supposed subjective intent. As
content of the law. Dkt. 121-5 ¶ 4.
explained in Plaintiffs’ briefing, fair use
turns on how a work appears to a reasonable
observer, not on the infringer’s subjective
intent. Reply at Part I.A.1.b.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it implies PRO places
any restrictions on access to the copies of
Plaintiffs’ Works that it posts online to only
citizens interested in the contents of the law
or for any educational purpose. PRO does
not prevent individuals from downloading,
printing, and making derivative works. ECF
No. 118-2 (Pls.’ SMF) ¶ 221-22.
100. Public Resource posted the incorporated Objection as to relevance of Public
standards at issue on its website in formats Resource’s supposed subjective intent. As
explained in Plaintiffs’ briefing, fair use

60

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

meant to increase citizen access to the law. Dkt. turns on how a work appears to a reasonable
121-5 ¶ 26.
observer, not on the infringer’s subjective
intent. Reply at Part I.A.1.b.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it suggests that
citizens did not have access to Plaintiffs’
standards prior to Defendant’s posting their
infringing copies. Standards are only
eligible to be incorporated by reference if
they are reasonably available. 1 C.F.R. §
51.7. Plaintiffs provide read-only access to
the Works—excluding certain of the Works
that are not incorporated by reference as
claimed by PRO—on their websites, and
sometimes linked through other websites,
such as local and state government websites.
See ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶
85.
101. Public Resource posted the incorporated
standards at issue for the purpose of
transforming the information in the standards
by making that information accessible to people
who did not necessarily have access to that
information before. Dkt. 121-5 ¶ 35.

61

Objection as to relevance of Public
Resource’s supposed subjective intent. As
explained in Plaintiffs’ briefing, fair use
turns on how a work appears to a reasonable
observer, not on the infringer’s subjective
intent. Reply at Part I.A.1.b. Further, the
D.C. Circuit previously held that “the district
court properly rejected some of PRO’s
arguments as to its transformative use—for
instance, that PRO was converting the works
into a format more accessible for the visually
impaired or that it was producing a
centralized database of all incorporated
standards.” Am. Soc’y for Testing &
Materials v. Public.Resource.Org, Inc., 896
F.3d 437, 450 (D.C. Cir. 2018).

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it suggests that
citizens did not have access to Plaintiffs’
standards prior to Defendant’s posting their
infringing copies. Standards are only
eligible to be incorporated by reference if
they are reasonably available. 1 C.F.R. §
51.7. Plaintiffs provide read-only access to
the Works—excluding certain of the Works
that are not incorporated by reference as
claimed by PRO—on their websites, and
sometimes linked through other websites,
such as local and state government websites.
See ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶
85.
Disputed. Defendant has not transformed the
information in the standards. Plaintiffs make
their standards accessible to the general
public. ECF No. 118-2 (Pls.’ SMF) ¶¶ 5769, 99-103, 157-62.
Disputed to the extent it suggests that
Defendant posted the standards to provide
access for the visually impaired. There is no
evidence to support that suggestion.
102. Public Resource does search engine
optimization so that the standards are accurately
described in search engine results. Dkt. 121-5
¶ 29.
VII.

Disputed to the extent it suggests this is
Defendant’s only purpose in using search
engine optimization. ECF No. 118-2 (Pls’
SUMF) ¶¶ 225-26.

PLAINTIFFS’ LIMIT USE OF THE STANDARDS

103. ASTM gives government bodies like the Objection. This statement and the cited
U.S. Geological Survey and the State of evidence are irrelevant because there is no
Georgia, fellow standards development
62

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

organizations like NFPA, IAPMO, and ICC,
and favored corporations liberal permission to
copy standards in both paper and electronic
format, and to use excerpts from standards in
other documents. Dkt. 122-7, Exs. 107, 108,
109; 110, 111, and 112.

evidence that these statements relate to any
of the standards at issue.

104. ASTM regularly refuses to give similar
permissions to graduate students, universities,
libraries, and smaller businesses. Dkt. 122-7
Exs. 113, 115, 116, 117, 120; Dkt. 122-8 Exs.
130, 131.

Objection. This statement and the cited
evidence are irrelevant because there is no
evidence that these statements relate to any
of the standards at issue. In addition, there is
no evidence supporting the proposition that
the cited requests are “similar” to the
previously mentioned requests.

Disputed. ASTM routinely grants
permission to researchers, academics and
others to reproduce its standards at no cost
for non-commercial purposes. ECF No. 1182 (Pls.’ SMF) ¶ 68.

Disputed. ASTM routinely grants permission
to researchers, academics and others to
reproduce its standards at no cost for noncommercial purposes. ECF No. 118-2 (Pls.’
SMF) ¶ 68. ASTM denies permission to use
its standards when the requester seeks to post
the standard on a public website with no
reasonable time limit and/or with no
limitation on the number of people who can
access it. See Def. Exs. 113, 115, 117, 120,
130; see also O’Brien Suppl. Decl. ¶ 16.
ASTM may also, as it entitled to do under
copyright law, deny permission to a party
requesting to make a copy of a complete
standard or to make a derivative work based
on an ASTM standard. See Def. Ex. 116.
105. ASTM gave the structural engineering
firm SGH, “a big supporter of ASTM,”
permission to excerpt a number of figures and
tables from a standard. Dkt. 122-7, Ex. 112.

Objection. This statement and the cited
evidence are irrelevant because there is no
evidence that these statements relate to any
of the standards at issue.

106. ASTM refused to allow an engineering Objection. This statement and the cited
student at the University of Pennsylvania to use evidence are irrelevant because there is no
evidence that these statements relate to any
of the standards at issue.
63

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

“photographs and figures” from another
standard in a case study. Dkt. 122-7, Ex. 117.
Disputed. ASTM denies permission to use its
standards when the requester seeks to post
the standard on a public website. Unlike the
requested license in ¶ 105, this student was
requesting permission to include the standard
in an article that would be “posted online
through wikispaces.” See ECF No. 122-7,
Def. Ex. 117.
107. When an ASTM employee wrote that
“we typically do not provide figures [from
standards] for reproduction purposes,” John
Pace, ASTM’s Vice President of Publications
and Marketing, responded that ASTM has a
“‘triple standard’ here on considerations for
such requests,” and that the owner of a chemical
company, Sheldon Dean, who was “platinum
level” because of his “connection status” with
ASTM committees, should be given permission
to use excerpts from an ASTM standard in a
forthcoming book. Dkt. 122-7, Ex. 119.

Objection. This statement and the cited
evidence are irrelevant because there is no
evidence that these statements relate to any
of the standards at issue.
Objection to the extent the quotations imply
that ASTM only grants permissions to
individuals with a connection to ASTM
committees. The email also states that “the
fact that such figures are extracted from
various standards so the potential impact on
any one [standard] is significantly reduced.”
Dkt. 122-7, Ex. 119 at ASTM091243.
Disputed to the extent it suggests that
citizens did not have access to Plaintiffs’
standards prior to Defendant’s posting their
infringing copies. Standards are only
eligible to be incorporated by reference if
they are reasonably available. 1 C.F.R. §
51.7. Plaintiffs provide read-only access to
the Works—excluding certain of the Works
that are not incorporated by reference as
claimed by PRO—on their websites, and
sometimes linked through other websites,
such as local and state government websites.
See ECF No. 198-3 (Pls.’ 2d. Supp. SMF) ¶
85.

108. ASTM refused to allow Columbia Objection. This statement and the cited
Analytical to reproduce several abstracts from evidence are irrelevant because there is no
evidence that these statements relate to any
an ASTM standard. Dkt. 122-7, Ex. 120.
of the standards at issue.
64

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed. ASTM denies permission to use
its standards when the requester seeks to post
the standard on a public website. ASTM
denied a request to post abstracts on a
publicly available website. See ECF No.
122-7, Def. Ex. 120; see also ECF No. 1187, O’Brien Suppl. Decl. ¶ 16.
109. ASTM has a policy against permitting Disputed. ASTM posts many of its own
the posting of ASTM standards on the public standards on the public internet. ECF No.
internet. Dkt. 122-9, Ex. 144.
118-2 (Pls.’ SMF) ¶¶ 63-64, 66. ASTM does
not allow third parties to post ASTM
standards on the public internet. See, e.g.,
ECF No. 122-7, Def. Ex. 113.
110. ASTM did not permit a person in the Objection. Relevance. This standard is not
UK to post the information in the ASTM at issue in this litigation.
D2000-12 standard. Dkt. 122-9, Ex. 145.
111. Plaintiffs’ assertion of copyright in
incorporated standards makes it more difficult
for others to produce materials such as training
and user manuals. Becker Decl., ¶ 11, Ex. 44
(Jarosz Depo.) at 217–224.

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

VIII. PLAINTIFFS’ MISSIONS AND PURPOSES FOR PUBLISHING STANDARDS
DIFFERS FROM PUBLIC RESOURCE’S MISSION AND PURPOSE
112. Plaintiffs
are
three
standards
development organizations (“SDOs”) that
publish voluntary consensus standards. Dkt.
118-1 at 4–9; Compl. Ex. A–C.

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

113. According to Plaintiffs, ASTM has
published approximately 12,000 standards,
NFPA has published over 300 standards, and
ASHRAE has published over 100 standards.
ECF No. 117-1 (Jarosz Rep.) ¶ 13 (ASTM);
¶ 17 (NFPA); ECF No. 118-10 (Reiniche Decl.)
¶ 2, (ASHRAE).

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

65

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

114. ASTM’s Mission Statement reads: “To Undisputed.
be recognized globally as the premier developer
and provider of voluntary consensus standards,
related technical information, and services that
promote public health and safety, support the
protection
and
sustainability
of
the
environment, and the overall quality of life;
contribute to the reliability of materials,
products, systems and services; and facilitate
international,
regional,
and
national
commerce.” Dkt. 122-6, Ex. 100.
115. NFPA’s “About NFPA” webpage
states: “Founded in 1896, NFPA is a global,
nonprofit organization devoted to eliminating
death, injury, property and economic loss due to
fire, electrical and related hazards. The
association delivers information and knowledge
through more than 300 consensus codes and
standards, research, training, education,
outreach and advocacy; and by partnering with
others who share an interest in furthering the
NFPA mission.” Dkt. 122-6, Ex. 101.

Disputed to the extent it implies that the
NFPA’s website currently contains the
quoted text. The cited reference describes
NFPA’s website as of December 19, 2015.

116. ASHRAE’s Mission is “To advance the Undisputed.
arts and sciences of heating, ventilation, air
conditioning and refrigeration to serve
humanity and promote a sustainable world.”
Dkt. 122-6, Ex. 102.
IX.

EVEN BEFORE BECOMING LAW, THE STANDARDS WERE FACTUAL
WORKS

117. ASTM defines the standards they
produce
as
documents
comprising
“specifications, test methods, practices, guides,
classification and terminology.” Becker Decl., ¶
12, Ex. 45 (Grove Depo.) at 14:22–15:6.

66

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed. The cited deposition testimony
does not support this proposition.
118. ASTM has a form and style guide that
sets forth the rules that persons generally must
follow in participating in the drafting and
revision process of ASTM standards. Dkt. 1221, Ex. 8; Becker Decl., ¶ 12, Ex. 45 (Grove
Depo.) at 268:14–269:4.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination. Best
evidence rule.
Disputed. ASTM’s form and style guide sets
forth guidelines for drafting different types
of ASTM standards, not for participating in
the drafting and revision process. ECF No.
118-2 (Pls.’ SMF) ¶¶ 33-34.

119. According to NFPA’s corporate
designee, Donald Bliss, codes and standards are
procedures and practices. Becker Decl., ¶ 13,
Ex. 46 (Bliss Depo.) at 21:18–22:11.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Disputed. Defendant takes Mr. Bliss’s
testimony wholly out of context. Nothing
about Mr. Bliss’s statement supports the
proposition.
In response to the question “What, in your
view, makes codes and standards essential to
reducing fire loss, fire deaths and property
losses?” Mr. Bliss answered, “Codes and
standards are the result of a number of
things. One is actual lessons learned from
events that have happened in the past, fire
incidents, electrical problems, electrocutions,
explosions. And based on the analysis of
those events, we can learn from them and
then establish the procedures and practices

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that should be followed to prevent that from
happening. The second way is from actual
research, looking at potential problems,
looking proactively to determine whether or
not a risk or a hazard exists, and then based
on that research, generating guidelines and
standards that would prevent those events
from happening.” ECF No. 122-1, Def. Ex.
4 (Bliss Depo.) 21:18-22:11.
120. ASHRAE described one of the
standards at issue, the 1993 ASHRAE
Handbook: Fundamentals, as “a tool for
engineers to use when they’re working with the
topics covered in that book.” Becker Decl., ¶ 10,
Ex. 43 (Reiniche Depo.) at 158:20–24.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.

121. The content of the ASHRAE standardsat-issue is based on a technical committee’s
review of the relevant research, public input
and committee expertise, all of which is
intended to determine the best rule—the
consensus standard—for the relevant industry.
Becker Decl., ¶ 13, Ex. 46 (Bliss Depo.) at
140:1–41:4; Becker Decl., ¶ 8, Ex. 41 (Dubay
Depo.) at 29:12–21, 68:9–20, 73:16–25;
Becker Decl., ¶ 10, Ex. 43 (Reiniche Depo.) at
94–95; Dkt. 117-1 (Jarosz Rep.) 26–30.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.

122. NFPA is committed to reducing “the
worldwide burden of fire and other hazards” by
developing and disseminating codes that will
minimize fire risk. Dkt. 117-1 (Jarosz Rep. 29).

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Disputed. Defendant misstates the statement
in the report “NFPA’s mission is ‘to reduce
the worldwide burden of fire and other
hazards on the quality of life by providing

68

Disputed to the extent that Ms. Reiniche’s
cited testimony never makes any qualitative
assessment as to whether the ASHRAE
standard is the “best rule” for the relevant
industry.

DEFENDANT’S SECOND
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PLAINTIFFS’ RESPONSE

and advocating consensus codes and
standards, research, training, and
education.’” See ECF No. 118-12 (Rubel
Decl.) Ex. 1 (Jarosz Rep.) ¶ 68.
123. Bliss testified that, when he was a
committee member, his motivation was to
develop the “best” standard, and “best” meant
“understanding the problem based on past
experience and events, having as much
scientifically based research to contribute to the
development of the standard and then a very,
very open and transparent consensus process.”
After that:
There’s a tremendous amount of public
input and vetting of the concepts and
the actual language which in reality
mirrors a government adoption of
legislative process.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Disputed to the extent PRO relies on this
mischaracterization to support a claim that
the standards are systems and method. Mr.
Bliss’s testimony does not support that point:
Q. And what makes a fire safety standard the
best available?
A. In my view, it’s a combination of factors.
One is understanding the problem based on
past experience with fires and events, having
as much scientifically based research to
contribute to the development of the standard
and then a very, very open and transparent
consensus process.

Becker Decl., ¶ 13, Ex. 46 (Bliss Depo.) at
139:07–140:10.

Q. And what about the standards make them,
makes them the best for adoption into law?
A. I think for the reasons that I indicated, is
that there’s lessons learned from past events.
There’s research that goes into the process.
There’s a tremendous amount of public input
and vetting of the ideas and of the concepts
and of the actual language which in reality
mirrors a governmental adoption or
legislative process. It takes advantage of a
wide range of expertise and perspectives.
124. ASHRAE says its standards define “the Objection. Relevance. PRO appears to
minimum acceptable performance for the intend to use this statement to support a
claim that the standards are “factual” or

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relevant products.” Dkt. 117-1 (Jarosz Rep.) at otherwise not subject to copyright, but it has
33.
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Undisputed.
125. The main benefit of the consensus
process, according to ASHRAE, is that it relies
on experts who understand “how to make that
product or how to construct that building or how
to make something more energy efficient.”
Becker Decl., ¶ 10, Ex. 43 (Reiniche Depo.) at
102:23–25.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Disputed. The cited testimony does not say
that this is the “main benefit” of the
consensus process or even that it is a benefit
of the consensus process at all. The
testimony discusses why committee
members should have some level of
expertise in the field.

126. As NFPA puts it, there are two types of
changes: technical changes, which are
“scientific” and wording changes, which
involve making potentially confusing language
more clear “to make it easier to interpret of
understand what that actual technical
requirement is.” Becker Decl., ¶ 8, Ex. 41
(Dubay Depo.) at 28:22–30:4.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Disputed to the extent Defendant
characterizes changes as merely for clarity.
Mr. Dubay’s full testimony makes clear that
the standards involve creative judgment and
numerous choices to settle on final wording:
Q: Who determines what wording changes
are appropriate in the technical committees?
A. It’s a combination of extensive public
review and comment, the committee’s
review of that and their expertise and with
the help of our technical staff to land on the

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final wording, which is ultimately decided by
the technical committee.
Q. What criteria do the members of the
technical committee use in choosing the
wording of a code or standard?
A. Ultimately those decisions are based upon
the technical committee members’ expertise
and knowledge within the field. ECF No.
204-47, Ex. 41 (Dubay Depo.) at 29:12-30:4.
127. The volunteers who draft the standards
do not view them as creative expression.
Volunteers debate wording in the standards so
as to have the most precise and accurate
description of the process, system, or methods
that comprise the standards. The exact wording
matters, and it is not sufficient to try to rephrase
this language as rephrasing could introduce
errors. Becker Decl., ¶ 13, Ex. 46 (Bliss Depo.)
at 140:1–140:10.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Additionally, this statement and the cited
evidence are irrelevant because there is no
evidence that these statements relate to any
of the standards at issue.
This statement and the cited evidence also
lacks foundation. The witness lacks personal
knowledge as to the state of mind of
volunteers who participate in the creation of
standards. The assertion that “it is not
sufficient to try to rephrase this language” is
inadmissible opinion testimony.
Disputed. There is no support for the
contention that volunteers do not view their
work as creative expression or the
implication that they would have to view
their expression as creative under copyright
law. There is also no support for the
proposition that exact wording matters and
rephrasing the language could introduce
errors. Am. Soc’y for Testing & Materials v.
Public.Resource.Org, Inc., 896 F.3d 437,
451 (D.C. Cir. 2018) (“PRO’s claim that a

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paraphrase or summary would always be
inadequate to serve its purposes seems less
persuasive.”)
The cited transcript does not support
Defendant’s purported fact: “I think for the
reasons that I indicated, is that there’s
lessons learned from past events. There’s
research that goes into the process. There’s a
tremendous amount of public input and
vetting of the ideas and of the concepts and
of the actual language which in reality
mirrors a governmental adoption or
legislative process. It takes advantage of a
wide range of expertise and perspectives.”
ECF No. 203-5, Def. Ex. 46 (Bliss Depo.)
140:1-10.
There is also no support for this fact with
respect to ASTM or ASHRAE.
128. Plaintiffs believe that technical
excellence is why their standards are ultimately
incorporated by reference. M Becker Decl., ¶
12, Ex. 45 (Grove Depo.) at 235:2–23.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Undisputed that Plaintiffs believe technical
expertise is one reason why their standards
are ultimately incorporated by reference.

129. NFPA
asserted
that
“standard
developers converge around terminology and
format that works for their constituents that
utilize their standards.” Becker Decl., ¶ 8, Ex.
41 (Dubay Depo.) at 139:03–06.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Undisputed that NFPA seeks to use
terminology and format that works for

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constituents that utilize their standards, but
disputed to the extent that Defendant
misleadingly isolates this one snippet of Mr.
Dubay’s testimony to suggest that this effort
does not require creative expression. See
ECF No. 121-1, Opp. 33 (describing the
Works as turning on only practical concerns
without “a whit of expressive creativity”).
As Mr. Dubay testified at length, NFPA’s
staff, committee members, and members of
the public engage in a lengthy standards
development process that involves many
creative decisions that result in the creation
of the final standard. ECF No. 204-47, Ex.
41 (Dubay Depo.) at 24-28, 31-33, 50-56,
59-62, 66-69.
As is clear from the Works filed with the
Court, they are each unique and reflect the
Plaintiffs’ distinct expressive choices. For
example, NFPA and ASHRAE both define
“automatic,” but author different expressions
of that definition. Compare ECF No. 155-5
(Comstock Decl.) Ex. 1 at 5 (ASHRAE 90.12004) with ECF No. 155-6 (Dubay Decl.)
Ex. A at 70-26 (NFPA NEC 2011).
Likewise, the standards each use drawings in
different ways and the style of those
drawings is distinct. Compare ECF No. 1555 (Comstock Decl.) Ex. 1 at 18
(straightforward figure style in ASHRAE
90.1-2004) with ECF No. 118-7 (O’Brien
Decl.) Ex. 6 at 3, 17 (complex drawing style
in ASTM in ASTM D86-07).
130. ASHRAE standards take the form of
specific requirements that “provide methods of
testing equipment so that equipment can be
measured [and] compared with similar levels
of performance.” Becker Decl., ¶ 11, Ex. 44
(Comstock Depo.) at 96:01–22.

73

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.

DEFENDANT’S SECOND
SUPPLEMENTAL
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PLAINTIFFS’ RESPONSE

Disputed. In the cited testimony, the witness
does not refer to ASHRAE standards as
“specific requirements” (that is how PRO’s
attorney references them). Also, the quoted
text was in response to a specific question
about possible uses of ASHRAE standards; it
was not a general description of ASHRAE
standards provided by the witness. Becker
Decl. ¶ 11, Ex. 44 (Comstock Depo.) at
96:01–22.
131. ASTM standards are “[s]pecifications,
test methods, practices, guides, classifications
and terminology.” Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 14:22–15:18.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
Disputed.
The cited deposition testimony does not
support this proposition.
Disputed to the extent it implies that ASTM
standards include only specifications, test
methods, practices, guides, classifications,
and technology. ASTM standards also
include diagrams, explanatory materials, aids
and supplements to the standard. ECF No.
198-3 ¶¶ 50-51.

132. An NFPA standard provides a
consistent process for fire investigation.
Becker Decl., ¶ 13, Ex. 46 (Bliss Depo.) at
106:09–24.

Objection. Relevance. PRO appears to
intend to use this statement to support a
claim that the standards are “factual” or
otherwise not subject to copyright, but it has
made no argument in the present summary
judgment briefing on this basis and, in any
event, that is a legal determination.
The statement is also not relevant as it relates
to NFPA 971, which is not one of the
standards at issue in this litigation.
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available. Becker Decl., ¶ 12, Ex. 45 (Grove standards from ASTM. ECF No. 118-2
Depo.) at 152:19–24.
(Pls.’ SMF) ¶¶ 241, 243-44 (showing over
88,000 accesses of ASTM’s standards from
Defendant’s website in a 10-month period
and thousands of downloads of ASTM’s
standards from the Internet Archive); Def.
Ex. 9 (Jarosz Depo.) 212:16-213:3; ECF No.
198-3 (Pls.’ 2d. Supp. SMF) ¶¶ 98-99
(showing the download and access data from
PRO’s website and in the Internet Archive
showing seven times more views than
ASTM’s total views across all six years).
139. ASTM has no evidence that Public
Resource caused ASTM to lose money. Becker
Decl., ¶ 12, Ex. 45 (Grove Depo.) at 154:25–
155:5.

Disputed. While ASTM has not calculated a
precise number of damages, the evidence
demonstrates that ASTM has suffered
damage as a result of Defendant’s conduct.
ASTM presented evidence that many people
accessed versions of ASTM standards that
Defendant placed online, some of whom may
have otherwise purchased the standards from
ASTM. ECF No. 118-2 (Pls.’ SMF) ¶¶ 241,
243-44 (showing over 88,000 accesses of
ASTM’s standards from Defendant’s website
in a 10-month period and thousands of
downloads of ASTM’s standards from the
Internet Archive); Def. Ex. 9 (Jarosz Depo.)
212:16-213:3; ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶¶ 98-99 (showing the
download and access data from PRO’s
website and in the Internet Archive showing
seven times more views than ASTM’s total
views across all six years).

140. ASTM has no knowledge of any
evidence that Public Resource caused ASTM
any property damage or injury. Becker Decl., ¶
12, Ex. 45 (Grove Depo.) at 155:7–12.

Undisputed that ASTM has no knowledge of
evidence that Defendant caused ASTM
property damage. Disputed as to the
existence of evidence that Defendant caused
ASTM injury. ECF No. 118-2 (Pls.’ SMF)
¶¶ 214-15, 241, 243-45.

141. ASTM has no evidence that Public Disputed. Plaintiffs presented evidence of
Resource caused ASTM any damage to Defendant’s posting versions of ASTM
77

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ASTM’s reputation. Becker Decl., ¶ 12, Ex. 45 standards that contain errors online. ECF
(Grove Depo.) at 165:12–15.
No. 118-2 (Pls.’ SMF) ¶¶ 214-15, 245.
142. Plaintiffs’ expert Jarosz was unable to
quantify any financial losses to Plaintiffs as a
consequence of Public Resource’s activities.
Becker Decl., ¶ 11, Ex. 44 (Jarosz Depo.) at
63:3–10.

Disputed. Mr. Jarosz stated that Plaintiffs
had suffered financial losses but they were
exceedingly difficult to quantify a precise
number for those losses with great certainty.
ECF No. 118-2 (Pls.’ SMF) ¶¶ 238-39, 246.

143. Plaintiffs’ expert Jarosz was not aware
of any documents showing NFPA suffered
harm from Public Resource’s activities. Becker
Decl., ¶ 11, Ex. 44 (Jarosz Depo.) at 123:9–18.

Disputed. This is not true. The cited
testimony does not support the fact, and Mr.
Jarosz stated numerous times that he relied
on documents referenced in paragraph 133 of
his report, among others, that show harm.

144. Plaintiffs’ expert Jarosz’s only evidence
of harm is statements by plaintiffs’ officers.
Becker Decl., ¶ 11, Ex. 44 (Jarosz Depo.) at
155–163.

Disputed. In addition to relying on persons
with knowledge of relevant information, Mr.
Jarosz relied on documentary evidence,
including, but not limited to, documents
showing the number of downloads of copies
of Defendant’s copies of Plaintiffs’ standards
and documents showing that Defendant did
not correctly copy Plaintiff’s standards. Mr.
Jarosz also relied on the testimony of Public
Resource and Carl Malamud. See Jarosz
Report, Tab 2.

145. Plaintiffs’ expert Jarosz was not aware
of any direct evidence of the impact of Public
Resource’s activities on Plaintiffs’ financials.
Becker Decl., ¶ 11, Ex. 44 (Jarosz Depo.) at
160:3–6.

Disputed. Mr. Jarosz relied on direct
evidence of the harm and its impact to
Plaintiffs as cited in response to paragraph
144 above, among other evidence.

146. Plaintiffs’ expert Jarosz did not Undisputed.
correlate Public Resource’s posting of the
standards at issue with Plaintiffs’ revenues from
the sale of the standards at issue. Becker Decl.,
¶ 11, Ex. 44 (Jarosz Depo.) at 177:17–178:5.
147. Plaintiffs’ expert Jarosz did no analysis Undisputed.
to distinguish the profitability of the standards
at issue from the profitability of standards that
have not been incorporated by reference into

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law. Becker Decl., ¶ 11, Ex. 44 (Jarosz Depo.)
at 183:4–15.
148. Plaintiffs’ expert Jarosz lacks certainty
that Public Resource’s posting of the standards
at issue caused any economic loss to Plaintiffs.
Becker Decl., ¶ 11, Ex. 44 (Jarosz Depo.) at
212:11–213:3.

Disputed. Mr. Jarosz stated that Plaintiffs
had suffered financial losses but they were
exceedingly difficult to quantify. ECF No.
118-2 (Pls.’ SMF) ¶¶ 238-39, 246.
Additionally, Mr. Jarosz stated that he could
say with reasonable certainty that if people
had not accessed or downloaded versions of
ASTM’s standards that Defendant posted
online, in some instances they would have
obtained the ASTM standards from ASTM
through legal means. Def. Ex. 9 (Jarosz
Depo.) 212:16-213:3.

149. Plaintiffs’ expert Jarosz did not evaluate
the extent of distribution of the standards at
issue via Public Resource’s website. Becker
Decl., ¶ 11, Ex. 44 (Jarosz Depo.) at 214:13–
215:3; 216:2–5; 245–49.

Disputed to the extent it suggests that it
would be possible to evaluate the extent of
distribution of the standards via Defendant’s
website. Defendant does not know what
people do with the versions of Plaintiffs’
standards that are posted on Defendant’s
website. And Defendant admitted it has no
way to identify who downloaded, made
additional copies of, or printed the versions
of Plaintiffs’ standards from its website.
ECF No. 118-2 (Pls.’ SMF) ¶¶ 247-48.

150. ASHRAE is not aware of any revenue
lost from the free availability of ASHRAE
standards online. Becker Decl., ¶ 11, Ex. 44
(Comstock Depo.) at 12:2–11; 63:10–16;
64:20–25.

Disputed. The citation to Mr. Comstock’s
testimony, which involved the observed
impact of ASHRAE’s own postings of
standards in its reading room on a read-only
basis, not Public Resource’s posting of
standards, is incredibly misleading and does
not support the asserted proposition. (See
ECF No. 204-50 (Def’s Ex. 44) (Comstock
Depo.) at 11-12). Also, because this
testimony does not relate to the posting by
Defendant, ASHRAE also objects to the use
of the testimony on the basis of relevance
(Fed. R. Evid. 402).

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Becker Decl., ¶ 11, Ex. 44 (Comstock Depo.) at
63:10–16.
155. NFPA has not identified “any direct Undisputed.
correlation” between adoption of an edition and
an increase in sales. “The only general
correlation is that once a new version of the
code is out, we will sell more of the new edition
and less of the old edition, but nothing – no
general correlation to adoption or specific
spikes.” Becker Decl., ¶ 9, Ex. 42 (Mullen
Depo.) at 95:3–25.
156. NFPA does not have a number on any Undisputed.
balance sheet that corresponds to the value of
the copyrights it holds because NFPA does not
“attempt to place any value on any intangible
asset.” Becker Decl., ¶ 9, Ex. 42 (Mullen Depo.)
at 140:11–18.
157. According to NFPA’s Bruce Mullen, “If
I had to guess, the non-business or government
purchases is probably less than 1 percent of the
total sales.” Becker Decl., ¶ 9, Ex. 42 (Mullen
Depo.) at 187:14–23.

Disputed. Defendant’s purported fact is a
quote from an email that was shown to Mr.
Mullen at his deposition which he did not
author, receive, or recognize. Mr. Mullen
simply did not state what Defendant alleges
he did.
Objection. Inadmissible hearsay.

158. Allowing “unauthorized persons” to use This is a legal conclusion and not a factual
standards without training is not a cognizable statement.
harm. Becker Decl., ¶ 11, Ex. 44 (Jarosz Depo.)
at 227:14–228:14.
Disputed. The cited source addresses the
provision of training or guidance by
unauthorized persons. It does not contain
any conclusion or opinion that such training
is not a cognizable harm or that such training
does not cause Plaintiffs other forms of
cognizable injuries (e.g., financial harm).
159.
“Confusion” between incorporated This is a legal conclusion and not a factual
standards and newer versions of Plaintiffs’ statement.
standards does not harm Plaintiffs. Becker
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Decl., ¶ 11, Ex. 44 (Jarosz Depo.) at 254:14– Disputed. This statement is not supported by
257:9.
the cited source and Defendant provides no
other basis for it.
160. In 2002, Plaintiffs NFPA and ASHRAE
argued that a lack of private monopoly to
control the reproduction of mandatory building
codes would “destroy” the “ability of private
standards developers to underwrite the
development and updating of their standards.”
Dkt. 122-8, Ex. 121 (Brief of American Medical
Assoc. et al. as Amici Curiae at 12, Veeck v.
Southern
Building
Code
Congress
International, Inc., 293 F.3d 791 (5th Cir. 2002)
(No. 99-40632)).

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

161. After the Veeck decision, ASTM
International and many other SDOs filed briefs
seeking Supreme Court review. In those
briefs, they insisted, at length, that if that
decision stood it would destroy the standards
development process. Dkt. 164-14. Yet
certiorari was not granted.

Objection. This statement is unsupported by
the evidence, which attaches an amicus brief
filed by ASTM, not “other SDOs.” It is
otherwise irrelevant.

162. Plaintiffs have no evidence that they
suffered any loss of revenues in Texas,
Louisiana, or Mississippi since 2002, when the
Fifth Circuit Court of Appeals decided Veeck v.
S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791,
796 (5th Cir. 2002) (en banc). Becker Decl., ¶
11, Ex. 44 (Jarosz Depo.) at 130:6–19.

Disputed. The Veeck decision explicitly
stated it did not apply to standards
incorporated by reference, like Plaintiffs’
standards. Thus there would be no basis for
expecting Plaintiffs to have suffered loss of
revenue as a result of the Veeck decision. See
ECF No. 118-1 (Pls.’ Mem.) at 26-27.

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

Disputed to the extent it states ASTM was
seeking Supreme Court review. ASTM was
not a party in Veeck case. See Veeck v.
Southern Building Code Congress
International, Inc., 293 F.3d 791 (5th Cir.
2002).

Moreover, following the Veeck decision, the
OFR considered and rejected the argument
that the Veeck decision resulted in the loss of
copyright protection in incorporated
standards. 1 C.F.R. § 51 at 66268 (“In our
discussion of the copyright issues raised by
the petitioners and commenters, we noted
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that recent developments in Federal law,
including the Veeck decision and the
amendments to FOIA, and the NTTAA have
not eliminated the availability of copyright
protection for privately developed codes and
standards referenced in or incorporated into
federal regulations. Therefore, we agreed
with commenters who said that when the
Federal government references copyrighted
works, those works should not lose their
copyright.”)
163. Eleven states and United States
territories jointly filed an amicus brief in
support of Peter Veeck in the case Veeck v. S.
Bldg. Code Cong. Int’l, Inc., 293 F.3d 791,
801 (5th Cir. 2002), in which they asserted that
“[c]opyright, while permitted by the
Constitution, is at base only a statutory right . .
. . On the other hand, due process is a
constitutional right of the first order.” Dkt.
164-13 at 4.

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

164. People want to use the most recent
version of ASTM’s standards, even if an older
version is incorporated by reference into law.
Becker Decl., ¶ 12, Ex. 45 (Grove Depo.) at
171:5–8.

Objection. Lack of foundation/personal
knowledge. The witness lacks a basis for
opining about what “people want.”

165. People may want to read older versions
of standards because the older version may be
the version that is incorporated by reference in
a code or regulation. Becker Decl., ¶ 11, Ex. 44
(Comstock Depo.) at 19:20–24.

Objection. Lack of foundation/personal
knowledge. The witness lacks a basis for
opining about what “people want.”

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

Objection by ASTM and NFPA. The
testimony relates only to ASHRAE standards
and is irrelevant to ASTM and NFPA.
Disputed because this is unsupported
speculation, not a statement of fact.

83

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
XI.

PLAINTIFFS’ RESPONSE

PUBLIC RESOURCE’S NOMINATIVE FAIR USE AND ABSENCE OF
CONSUMER CONFUSION

166. Public Resource voluntarily applies
notices to the incorporated standards at issue on
its website describing the process it uses to copy
standards and disclaiming affiliation with any
SDOs. See, e.g., an example of one of the
standards posted on the Internet Archive, at
https://archive.org/details/gov.law.nfpa.13.200
2; see also Dkt. 121-5 ¶ 30, Ex. 3.

Objection. Disputed to the extent that PRO
failed to attach as evidence the page that
appears at the URL
https://archive.org/details/gov.law.nfpa.13.20
02. Plaintiffs are unable to tell what
information appeared when PRO posted this
page, and PRO’s disclaimers have changed
over time. ECF No. 198-3 (Pls.’ 2d. Supp.
SMF) ¶¶ 26-29. Plaintiffs object to this
citation as violating the best evidence rule.
Disputed. The cited exhibit shows
application of a notice on the HTML version
of a standard that PRO posted online in 2015
and is not a Work at issue. Defendant
presented no evidence that it applied this
notice on any PDF or HTML version of a
standard at issue when it posted it in 2012.
The HTML versions of at least some of the
standards at issue in this litigation do not
include this disclaimer. See Wise Decl. ¶
166, Ex. 165 (showing HTML version of
ASTM standard D86-07).

167. Each of the incorporated laws at issue Disputed to the extent it suggests that
has a title that contains one of the Plaintiffs’ Plaintiffs’ standards are themselves law.
names. Compl. Exs. A–C, ECF No. 1.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
168. Public Resource displays links to
standards incorporated by reference into the
Code of Federal Regulations in a table that
identifies the standards by their alphanumeric
code, e.g., ASTM D396-98, its year, the
developing organization, the title of the
standard, and the C.F.R. section that

84

Objection. Defendant’s webpage is hearsay
if it is offered to prove the truth of any of the
matters asserted therein.
Disputed to the extent PRO suggests that the
information contained in the exhibit
accurately reflects the current contents of its
website. The page in question does not

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

incorporated the standard by reference. Dkt. currently include any standards published by
121-5 ¶ 28, Ex. 2.
Plaintiffs. Wise Decl. II ¶ 10, Ex. 182
(https://law.resource.org/pub/us/cfr/manifest.
us.html).
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it suggests that PRO
provides accurate information regarding
incorporation by reference. As explained in
Plaintiffs’ briefing, PRO often provides
inaccurate information. E.g., Mot. 15 &
n.10.
169. Planintiffs’ [sic] names must be used in
order to refer to the standards at issue. For
example, ASTM states that the citation format
for this standard is: “ASTM D396-98, Standard
Specification
for
Fuel
Oils,
ASTM
International, West Conshohocken, PA, 2001,
www.astm.org.” Dkt. 122-9, Ex. 147.

Objection. PRO’s reliance on ASTM’s
citation format to give proper attribution to
an ASTM work is irrelevant to the question
of whether PRO can use the ASTM
trademark in other contexts.
PRO’s statement that “names must be used”
is a legal conclusion, not a fact.
Disputed to the extent it implies PRO has no
alternative but to use ASTM’s trademark.
PRO cites no evidence to refute the fact that
it could refer to ASTM standards by their
designation (e.g., D396-98) or by “the
standard incorporated by reference in” the
relevant incorporating regulation.

170. Public Resource purchased a physical Disputed to the extent it suggests that
copy of each of the incorporated laws at issue. Plaintiffs’ standards are themselves law.
Dkt. 121-5 ¶ 24.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.

85

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

171. Public Resource posted on its website a
PDF version of each incorporated law at issue.
The PDF version accurately appeared as a scan
of a physical version of the incorporated law.
Dkt. 121-5 ¶ 24.

Disputed. Defendant added a cover page to
the PDF versions of Plaintiffs’ standards so
PRO’s postings do not accurately appear as a
scan of a physical version of Plaintiffs’
standards. ECF No. 118-2 (Pls.’ SMF) ¶¶
183-84. Defendant also admits that it made
errors in creating the PDF versions of
Plaintiffs’ standards, including skipping
pages and scanning pages upside down.
ECF No. 118-2 (Pls.’ SMF) ¶¶ 214, 216.
Disputed to the extent it states that Plaintiffs’
standards are themselves law. Disputed to
the extent it implies that each of the
standards at issue has been incorporated by
reference in its entirety or at all for the
reasons stated in response to Paragraph 84.

172. For some of the incorporated laws at Disputed to the extent it suggests that
issue, Public Resource posted versions in Plaintiffs’ standards are themselves law.
HTML and SVG formats. Dkt. 121-5 ¶ 25–26. Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it implies that posting
versions of Plaintiffs’ Works is
transformative as addressed in Plaintiffs’
brief. Reply at Part I.A.1.b.
173. For some of the PDF versions of the
incorporated laws, Public Resource attached its
own cover page, which indicated where the law
was incorporated by reference. Dkt. 121-5
¶ 20–22; Compl. Ex. G, ECF No. 1-7.

Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Defendant presented no evidence that it
added a cover page to only some, rather than
all, of the PDF versions of Plaintiffs’
standards. See ECF No. 118-2 (Pls.’ SMF)
¶¶ 183-84.

86

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed to the extent it suggests that PRO
provides accurate information regarding
incorporation by reference. As explained in
Plaintiffs’ briefing, PRO often provides
inaccurate information. E.g., Mot. 15 &
n.10.
174. Public
Resource’s
addition
of
embedded text and metadata in the PDF
versions of incorporated laws on its website did
not change the appearance of the PDF versions.
Dkt. 121-5 ¶ 25.

Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.

175. The embedded text in the PDF versions Objection. This is statement is supported
of incorporated laws on Public Resource’s solely by inadmissible opinion testimony.
website enabled software based searching and
text to speech functionality. Dkt. 121-5 ¶ 25.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.
Disputed to the extent it states that Plaintiffs’
standards are themselves laws. Disputed to
the extent it implies any individual who
accessed the PDF versions actually
performed software based searching and/or
used text-to-speech functions. Disputed to
the extent it implies that an individual who
used text-to-speech functions would consider
the versions of Plaintiffs’ standards on
Defendant’s website to be accessible. See
Pls.’ Supp. SMF ¶ 5 (Fruchterman Depo.
256:12-259:6).
Disputed. There is no record evidence
supporting that the embedded text in the
PRO’s PDF versions of the Works actually
this enabled speech functionality.
Additionally, Mr. Fruchterman
87

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

acknowledged that he had asked a visually
disabled person to evaluate the PDF versions
of Plaintiffs’ standards that were posted on
Defendant’s website, and that person
informed him that those documents could not
be considered to be accessible. ECF No.
155-1 (Pls.’ Supp. SMF) ¶ 5 (Fruchterman
Depo. 256:12-259:6).
A.

The Standards that Plaintiffs Publish Already Have Errors

176. Public Resource purchased a physical
copy of the 2011 NEC, which did not include a
requirement that high-voltage cables be
shielded. Public Resource posted an electronic
version of that physical copy on its website in
PDF and HTML formats. Dkt. 121-5 ¶ 34.

Disputed to the extent it suggests that
Defendant acted reasonably in posting a
version of the 2011 NEC with these errors.
The errata in question was issued by NFPA
and posted on NFPA’s website in April
2011, more than a year before Defendant
posted the 2011 NEC on its website.

177. NFPA issued two errata to the 2011 Undisputed.
NEC. The errata included the addition of a
requirement that high-voltage cables be
shielded as well as changes to cross-references
in various sections. Dkt. 122-8, Exs. 123–24.
178. Public Resource promptly corrected the
errors to certain HTML versions of
incorporated laws that Plaintiffs’ counsel
identified during the course of the deposition of
Carl Malamud. Dkt. 121-5 ¶ 33.

Disputed—PRO has still not corrected the
errors. See ECF No. 118-2 (Pls.’ SMF) ¶
218; ECF. No. 198-3 (Pls.’ 2d. Supp. SMF)
¶¶ 14-25.
Disputed to the extent it suggests that
Plaintiffs’ standards are themselves law.
Disputed to the extent it implies that each of
the standards at issue has been incorporated
by reference in its entirety or at all for the
reasons stated in response to Paragraph 84.

XII.

PUBLIC INTEREST CONSIDERATIONS

179. It is in the public interest for people to
be educated about the NFPA standards. Becker
Decl., ¶ 13, Ex. 46 (Bliss Depo.) at 121:22–
122:4 (“NFPA’s standards establish ways to

88

Disputed to the extent Defendant
characterizes Mr. Bliss’s testimony as a legal
conclusion regarding the public interest or
that Mr. Bliss’s statement would apply to

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

When accessible features are built into
web pages, websites are more
convenient and more available to
everyone—including
users
with
disabilities. Web designers can follow
techniques developed by private and
government organizations to make
even complex web pages usable by
everyone including people with
disabilities.

This statement also is improper opinion
testimony.
Disputed. This statement is not supported by
any admissible evidence.

Id.
183. A special commission of the
Department of Education concluded in the
field of accessibility for higher education that
requiring people with disabilities to use special
accommodations from the providers of
instructional material is disfavored. “Rather,
the ideal is for . . . instructional materials to be
available in accessible forms in the same
manner that and at the same time as traditional
materials.” Advisory Commission on
Accessible Instructional Materials, Report of
the Advisory Commission on Accessible
Instructional Materials in Postsecondary
Education for Students with Disabilities at 49
(December 6, 2011),
http://www2.ed.gov/about/bdscomm/list/aim/
meeting/aim-report.pdf. The Chafee
Amendment, codified at 17 U.S.C. § 121, has
never been the Copyright Act’s sole means of
promoting accessibility, and federal officials
now consider it outdated and in need of
reform. See id. at 43-44.

Objection. The statement by the Advisory
Commission on Accessible Instructional
Materials is inadmissible hearsay to the
extent it is offered to prove the truth of the
matter asserted.
The statement is also irrelevant. The D.C.
Circuit has already rejected Defendant’s
argument that converting works into a format
more accessible for the visually impaired is
transformative use. Am. Soc’y for Testing &
Materials, 896 F.3d at 450.
This statement also is improper opinion
testimony.
Disputed. This statement is not supported by
any admissible evidence.

XIII. DRAFTING OF THE STANDARDS AT ISSUE
184. Each standard at issue was developed by
a large number of unpaid volunteers, including
federal government employees, state and
municipal government employees, employees
of private companies and organizations, and
ordinary citizens. Becker Decl., ¶ 7, Ex. 40
90

Objection. Vague as to the use of the term
“developed.”
Disputed to the extent it implies that
volunteers were the only developers of the
standards. Plaintiffs presented evidence that

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

(Smith Depo.) at 56:03–57:06; ¶ 79, Ex. 81;
Becker Decl., ¶ 12, Ex. 45 (Grove Depo.) at
97:25–98:07; ¶ 20, Ex.22; ¶ 22, Ex. 24; Becker
Decl., ¶ 8, Ex. 41 (Dubay Depo.) at 15:16–
16:10, 51:20–52:15, 75:17–76:11, 240:22–
242:04; Becker Decl., ¶ 9, Ex. 42 (Mullen
Depo.) at 114:22–115:23; Becker Decl., ¶ 10,
Ex. 43 (Reiniche Depo.) at 21:01–23:21,
105:08–106:18 194:04–194:07; ¶ 42, Ex. 44;
¶ 46, Ex. 48.

their employees drafted language that
appears in the standards. ECF No. 118-2
(Pls.’ SMF) ¶¶ 34-35, 117, 137-39, 141.
Disputed to the extent it suggests that the
individuals who authored each standard or
any portion thereof included federal, state
and municipal government employees
because Defendant provides no support for
this proposition.

185. Volunteers or members of the public
proposed the creation or revision of the
standards at issue. Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 18:05–18:19, 280:10–280:20;
¶ 93, Ex. 95; ¶ 123, Ex. 125, p. 4; Becker Decl.,
¶ 10, Ex. 43 (Reiniche Depo.) at 94:20–98:24;
¶ 124, Ex. 126, p. 5 (discussing ASHRAE
membership categories).

Disputed. Plaintiffs’ rules dictate the process
and procedures for developing, revising and
updating the standards on a regular schedule.
ECF No. 118-2 (Pls.’ SMF) ¶¶ 42, 93, 140.

186. Volunteers drafted the language for the
standards at issue, with public input, and
determine the arrangement and inclusion of
proposed text. Becker Decl., ¶ 7, Ex. 40 (Smith
Depo.) at 18:05–18:23, 20:04–20:11; ¶ 93, Ex.
95; Becker Decl., ¶ 13, Ex. 46 (Bliss Depo.) at
45:12–46:02 (“We use a system of volunteers to
serve on committees to develop the standard.
It’s volunteers that serve on the standards
council. It’s volunteers that serve as our
membership to make the final voting.”); Becker
Decl., ¶ 13, Ex. 46 (Bliss Depo.) at 46:03–
46:13; Becker Decl., ¶ 8, Ex. 41 (Dubay Depo.)
at 29:12–29:21; Becker Decl., ¶ 10, Ex. 43
(Reiniche Depo.) at 49:08-50:11; Becker Decl.,
¶ 10, Ex. 43 (Reiniche Depo.) at 60:05–60:12

Disputed to the extent it implies that
volunteers were the only drafters of the
standards. Plaintiffs presented evidence that
their employees drafted language that
appears in the standards. ECF No. 118-2
(Pls.’ SMF) ¶¶ 34-35, 117, 137-39, 141.

91

Plaintiffs also have a role in deciding
whether or not to develop a standard. See,
e.g., ECF No. 118-2 (Pls.’ SMF) ¶ 92.
Plaintiffs control the development of the
standards they publish. ECF No. 118-2
(Pls.’ SMF) ¶¶ 30-36, 117-18, 138-41.
Plaintiffs have procedures in place to ensure
that standards meet their required form and
style guidelines. ECF No. 118-2 (Pls.’ SMF)
¶¶ 34, 118, 139.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

(“[ASHRAE] Standard 90.1 is on continuous
maintenance, so anyone at any time can propose
a change to the standard. It could be a project
committee member or the public.”).
187. Volunteers voted on the final content of Undisputed.
the standards at issue at the end of the
development or revision process. Becker Decl.,
¶ 7, Ex. 40 (Smith Depo.) at 15:25–16:10,
17:14–17:24, 98:07–98:25, 186:21–186:25,
274:23–276:12; Becker Decl., ¶ 13, Ex. 46
(Bliss Depo.) at 45:12–46:13; Becker Decl., ¶ 8,
Ex. 41 (Dubay Depo.) at 55:22–57:17; Becker
Decl., ¶ 10, Ex. 43 (Reiniche Depo.) at 94:20–
96:02 (describing the volunteer committee
resolution process that votes on drafts and
revisions of ASHRAE standards).
188. The volunteers who developed the
standards at issue did so out of service to their
country as federal, state, or municipal
employees, in furtherance of the business
interests of the private companies or
organizations they worked for, or because of
personal interest. Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 45:16–46:04 (stating that
volunteers develop ASTM standards because “a
company or an individual would be interested
in having an ASTM standard that they could say
their product or service is in compliance with”);
Becker Decl., ¶ 13, Ex. 46 (Bliss Depo.) at
138:22139:12 (as a public official, Mr. Bliss
participated in NFPA standard development
because his “motivation was to try and establish
the best possible fire safety standards that could
be developed”); Becker Decl., ¶ 10, Ex. 43
(Reiniche Depo.) at 50:12-51:06 (volunteers or
members of the public participate because it
affects their business interests and they want to
write the language that is adopted into code, or
because of personal interest).

92

Objection. Vague as to the use of the term
“developed.” The motivations of volunteers
who participated in Plaintiffs’ standards
development process is also irrelevant.
Disputed. This statement is not supported by
the cited sources. Defendant has no basis for
drawing any conclusions about the
motivations of any, much less all, of the
hundreds of thousands of volunteers who
participated in Plaintiffs’ standards
development process.
Disputed to the extent it implies that
volunteers were the only developers of the
standards. Plaintiffs presented evidence that
their employees drafted language that
appears in the standards. ECF No. 118-2
(Pls.’ SMF) ¶¶ 34-35, 117, 137-39, 141.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

189. Plaintiffs’ employees set up meetings to
discuss drafts of the standards at issue at public
locations, advised the volunteers who drafted
the standards, and assisted with formatting.
Becker Decl., ¶ 7, Ex. 40 (Smith Depo.) at
268:13–272:25 (listing the ways in which
ASTM staff assist the people who actually draft
the standards); Becker Decl., ¶ 8, Ex. 41 (Dubay
Depo.) at 52:16–53:04 (“NFPA employees are
not -- cannot be members of our technical
committees. However, as I stated previously,
it’s important -- there’s an important role that
NFPA staff plays in guiding, advising the
committee, coordinating the activities and
providing their technical expertise, especially
technical staff liaison into this committee
process. But they do not have -- they’re not
members of the committee, and they do not
carry a vote in the decisions of the
committees.”); Becker Decl., ¶ 10, Ex. 43
(Reiniche Depo.) at 97:13–98:19 (involvement
of ASHRAE staff in development and updating
of standard 90.1 is limited to reviewing and
making suggestions to the volunteers who draft
and vote on the text of the standard).

Disputed to the extent it implies that these
are the only tasks performed by Plaintiffs’
employees. Plaintiffs presented evidence
that their employees drafted language that
appears in the standards. ECF No. 118-2
(Pls.’ SMF) ¶¶ 34-35, 117, 137-39, 141.

190. Plaintiffs did not have control over the
content of the standards at issue during the
development and revision of those standards.
The decision to develop or revise the standards
at issue was made by volunteers, not by the
Plaintiffs. Becker Decl., ¶ 7, Ex. 40 (Smith
Depo.) at 15:25–16:10, 17:14–17:24, 98:07–
98:25, 186:21–186:25, 274:23–276:12; Becker
Decl., ¶ 13, Ex. 46 (Bliss Depo.) at 45:12–
46:02, 46:03–46:13 (NFPA employees assist
the volunteers, but the volunteers have the
“ultimate decision . . . as to what the language
will actually say”); Becker Decl., ¶ 8, Ex. 41
(Dubay Depo.) at 55:22–57:17; Becker Decl., ¶
10, Ex. 43 (Reiniche Depo.) at 94:20–96:02.

Objection. Vague and ambiguous as to the
term “control.”

93

Disputed. Plaintiffs presented evidence that
their employees drafted language that
appears in the standards. ECF No. 118-2
(Pls.’ SMF) ¶¶ 34-35, 117, 137-39, 141.
Disputed to the extent it omits reference to
the Plaintiffs, to whom the volunteers
proposed the creation or revision of the
standards.
Plaintiffs have a role in deciding whether or
not to develop a standard. See, e.g., ECF No.
118-2 (Pls.’ SMF) ¶ 92. Plaintiffs’ rules
dictate the process and procedures for

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

developing, revising and updating the
standards on a regular schedule. ECF No.
118-2 (Pls.’ SMF) ¶¶ 42, 93, 140. Plaintiffs
control the development of the standards
they publish. ECF No. 118-2 (Pls.’ SMF) ¶¶
30-36, 117-18, 138-41. Plaintiffs also have
procedures in place to ensure that standards
meet their required form and style
guidelines. ECF No. 118-2 (Pls.’ SMF) ¶¶
34, 118, 139.
191. Federal
government
employees
authored parts of the standards at issue. M.
Becker Decl. ¶ 20, Ex. 20 at 1; ¶ 21, Ex. 23 at
9. See also Table 6 of “Comment on Safety
Standard for Automatic Residential Garage
Door Operators”, Public.Resource.Org, Nov.
16, 2015, at https://law.resource.org/pub/us/cfr
/regulations.gov.docket.15/cpsc.gov.20151116.
html#t6 (cata-loguing nineteen textual
contributions to the National Electrical Code
from Consumer Product Safety Commission
staff).

Objection to PRO’s reliance on Exhibit 20.
It is hearsay. As it appears to be a statement
Mr. Malamud made to the Ninth Circuit—
not any evidence that federal government
employees authored standards—it is
irrelevant. Plaintiffs further object to PRO’s
reliance on Table 6 of “Comment on Safety
Standard for Automatic Residential Garage
Door Operators” as irrelevant hearsay and
for lack of authenticity. The document was
not attached as an exhibit to PRO’s motion
and the link directs to a letter from Carl
Malamud titled: “Status Code 451: Your
Request Has Been Denied.” Plaintiffs
further object as, to the extent the cited
evidence does not relate to one of the Works,
it is irrelevant.
To the extent PRO intends to rely on the
document at the website
https://law.resource.org/pub/us/cfr/regulation
s.gov.docket.15/cpsc.gov.20151116.html,
that document’s Table 6 offers no support for
its self-serving assertion that federal
government employees drafted any portion
of any standard. Specifically, all of the links
in that Table take a visitor to a Consumer
Product Safety Commission website that
reads “Be Right Back…”
Disputed. This statement is entirely
unsupported by the cited documents.

94

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Defendant has presented no evidence that
federal government employees drafted any
language that appears in any of the standards
at issue.
Moreover, federal government employees
may participate in the development of
private standards without altering the
copyrightability of that standard. Revised
OMB Circular No. A-119, 81 FR 4673,
(2016).
192. Employees of third party companies,
organizations, or government entities authored
parts of the standards at issue in their capacity
as employees of those third party companies,
organizations, or government entities. Becker
Decl., ¶ 13, Ex. 46 (Bliss Depo.) at 163:04–
164:19.

Disputed. Plaintiffs are the organizational
authors who oversee the development of the
Works. See Veeck v. Southern Bldg. Code
Cong. Int’l, Inc., 293 F.3d 791, 794 (5th Cir.
2003) (en banc). Moreover, Plaintiffs own
copyright registrations for each of the
Works. ECF No. 198-3 (Pls.’ SSUMF) ¶¶ 1,
7, 9-10. Defendants also do not dispute that
ASTM has copyright registrations that cover
each of the standards at issue in this
litigation. ECF No. 155-3 ¶ 70.
Disputed to the extent it implies that any or
all employees of any company, organization
or government entity participate in Plaintiffs’
standard development processes in their
capacity as employees of those entities.
Disputed to the extent it implies that any
employees of government entities authored
any parts of the standards at issue.
Defendant has presented no evidence to
support these assertions. Defendant does not
even cite any evidence related to ASTM or
ASHRAE to support this statement.

193. Plaintiffs have no procedures to ensure
that employees of third party companies,
organizations, or government entities are
capable of transferring any copyright in the
standards at issue to Plaintiffs, and that such
copyright is not instead held by the employer.
95

Objection. Relevance. Defendant has not
identified any language in any of the
standards at issue that were authored in
whole or in part by an employee of a thirdparty company, organization, or government
entity.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Plaintiffs do not have any procedures in place to
ensure that governmental and private company
employees who participate in the development
of standards have the authority or ability to
transfer copyright to the Plaintiff organizations,
and Plaintiffs did not request copyright
assignments from the employers of the
individuals who authored components of the
standards at issue. Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 46:12–49:25, 166:17-170:19;
Dkt. 120, Ex. 74; Becker Decl., ¶ 8, Ex. 41
(Dubay Depo.) at 220:15–220:25 (“NFPA
verifies through our policy the submission from
the individual. We do not go to their companies
to verify authority of their signature.”); Becker
Decl., ¶ 10, Ex. 43 (Reiniche Depo.) at 92:13–
93:07.

Disputed. NFPA’s and ASHRAE’s
assignment forms require the person signing
to warrant that he/she has the authority to
enter into the assignment. ECF No. 118-8,
(Pauley Decl.) ¶ 31, Ex. B (NFPA
assignment forms state: I hereby warrant that
. . . I have full power and authority to enter
into this assignment.”); ECF No. 121-2 (Def.
SUMF) ¶ 144 (ASHRAE forms state: “I
hereby attest that I have the authority and I
am empowered to grant this copyright
release.”).
Disputed to the extent it implies that
Plaintiffs have an affirmative obligation to
ensure that individuals who sign assignment
forms are authorized to sign such forms.
Plaintiffs also have intellectual property
policies and registration forms that are
widely available and distributed. See, e.g.,
ECF No. 122-5, Def. Ex. 79. To the extent
employers direct any employees to
participate in the SDO process, they are or
should be aware of the conditions under
which all individuals participate, including
the requirement that they assign any
copyright interest that they may have to the
SDO.

A.

Copyright is not One of the Incentives for Drafting the Standards.

194. Persons who volunteer to create and
develop voluntary consensus standards have
incentives to do so that are independent of
owning the copyright to the standards or
earning revenue from the sale of the standards.
Becker Decl., ¶ 11, Ex. 44 (Jarosz Depo.) at
82:9–17; Becker Decl., ¶ 7, Ex. 40 (Smith
Depo.) at 45:16–46:10; Becker Decl., ¶ 13, Ex.
46 (Bliss Depo.) at 21:1–3; 15–17; Becker
Decl., ¶ 10, Ex. 43 (Reiniche Depo.) at 50:12–
96

Objection. Lack of foundation and/or
personal knowledge. The fact witnesses
cited by Defendant lack person knowledge of
the incentives of volunteers who create and
develop standards. Relevance. The
incentives of persons who are not authors of
standards at issue are irrelevant.
Undisputed that volunteers who assist in the
development of voluntary consensus

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51:6; Becker Decl., ¶ 13, Ex. 46 (Bliss Depo.) standards participate in the standards
at 118:09–119:01.
development process for a variety of reasons,
but those volunteers neither bear the
significant costs of creating and publishing
of the standards, nor do they do all of the
work that is necessary for the creation and
publication of the standards. Only SDOs
such as Plaintiffs do that work. ECF No.
118-2 (Pls.’ SMF) ¶¶ 43, 104, 105, 152.
Disputed to the extent this implies that
Plaintiffs would have the incentive to create
and develop their standards if they did not
own the copyrights in the standards. See ECF
No. 118-2 (Pls.’ SMF) ¶¶ 45-47, 105-08,
152-53. None of the cited evidence suggests
as much.
195. Plaintiffs have earned revenue from
sources other than selling copies of the
standards. These sources include revenue from
selling interpretative material related to
incorporated standards; standards that have not
been incorporated into law; membership dues;
conference fees; training services; and public
grants and contracts. Becker Decl., ¶ 9, Ex. 42
(Mullen Depo.) at 130:21–133:03; 228:11–
229:23; Becker Decl., ¶ 11, Ex. 44 (Jarosz
Depo.) at 192:22–193:6; Becker Decl., ¶ 13, Ex.
46 (Bliss Depo.) at 199:23–201:12; 158:06–
159:15; Becker Decl., ¶ 12, Ex. 45 (Grove
Depo.) at 264:22–266:19; Becker Decl., ¶ 11,
Ex. 44 (Comstock Depo.) at 48:23–56:21;
59:03–60:02;
72:5–74:15.
Plaintiffs
acknowledge that other standards development
organizations operate without asserting a right
to exclude. ECF No. 117-1 (Jarosz Rep.) ¶ 81.

97

Objection. Relevance. The methods of
operation of non-party standards
development organizations with different
business models are irrelevant.
Undisputed as to the first two sentences.
Plaintiffs acknowledge that certain European
standards development organizations do not
depend on the sales of their standards to
support the development of their standards.
These standards development organizations
are funded in a front-loaded fashion, in
which they charge members to participate
and contribute to the standards development
process. ECF No. 118-12, Ex. 1 (Jarosz
Rep.) ¶ 81. Unlike Plaintiffs, these SDOs do
not create voluntary consensus standards that
comply with ANSI requirements. ECF No.
118-2 (Pls.’ SMF) ¶¶ 7-8, 12, 88, 139. The
funding model these European SDOs use,
which Plaintiffs do not use, creates barriers
to broad participation in the standard
development process. ECF No. 118-2 (Pls.’
SMF) ¶¶ 259-60.

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Disputed to the extent Defendant suggests
that these other sources of revenue mean
Plaintiffs would not suffer market harm or
irreparable harm from the loss of revenue
from standards incorporated by reference.
ECF No. 155, Pls.’ Reply Br. at Parts I.A.4.b
and III.B.1.
B.

copyright registration and assignment

196. Almost all of the standards at issue that
Plaintiffs registered with the Copyright Office
are registered as “works made for hire” (with
the exception of one NFPA standard, NFPA 54
National Fuel Gas Code 2006). Dkt. 122-2 Ex.
13 (ASTM Certificates of Registration); Dkt.
122-2 Ex. 15 (NFPA Certificates of
Registration); ¶ 14, Ex. 16 (ASRAE
Certificates of Registration).

Objection. The deposition testimony cited at
ECF No. 122-2, Exhibit 13 is irrelevant.
Disputed to the extent that Defendant implies
that Plaintiffs’ ownership of the Works is
exclusively pursuant to evidence of work for
hire authorship because, even if not
necessary, Plaintiffs have submitted
additional evidence of ownership via
assignments of copyright. E.g., ECF No.
118-2 (Pls.’ SMF) ¶¶ 18, 20-24, 112-113,
115; ECF No. 155-1 (Pls.’ Supp. SUMF) ¶¶
14-15, 20-22; see also Am. Soc’y for Testing
& Materials v. Public.Resource.org, Inc.,
No. 13-CV-1215 (TSC), 2017 WL 473822,
at *7 (D.D.C. Feb. 2, 2017), rev’d in part,
vacated in part, 896 F.3d 437 (D.C. Cir.
2018) (finding that Defendant’s effort to
“point[] to weaknesses in the additional
evidence that Plaintiffs proffered to establish
their ownership, including questioning
whether every one of the hundreds of
Plaintiffs’ members who contributed to the
standards at issue signed an agreement with
appropriate language transferring or
assigning copyright ownership to Plaintiffs”
“did not adduce any additional evidence
disproving Plaintiffs’ authorship”).

197. Plaintiffs have not provided evidence Objection. Irrelevant. ASTM D323 1958
that one standard at issue, ASTM D323 1958 (1968) is not at issue in this motion. See
ECF 198-2, Pls’ Appendix A; ECF No. 202,
Def.’s Mot. (moving for summary judgment
98

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(1968), was ever registered with the copyright on the “works listed in Appendix A to
office. Complaint, Ex. A at 4, ECF No. 1-1.
Plaintiffs’ motion (Dkt. 198-2)”).
198. NFPA is the only Plaintiff to allege that
a work made for hire agreement was signed by
developers of the standards at issue. Plaintiffs’
Statement of Material Facts ¶ 115, ECF No.
118-2. This language attempting to classify the
work of volunteers as “work made for hire” was
added to NFPA forms only in 2007, after most
of the standards at issue were already published,
and used inconsistently thereafter. Dkt. 122-8
Exs. 127, 128, 129 (compare NEC proposal
forms from 2005, 2007, and 2008).

Undisputed that NFPA alleges that a work
made for hire agreement was signed.
Disputed that those individuals are the
“developers” of the standards at issue, which
also includes NFPA staff.
Disputed that the “work made for hire”
language was only added in 2007. The
undisputed testimony is that the NFPA
committee application form is signed by all
members of NFPA technical committees
who participate in the development of the
standards, and that it has contained
unchanged “work made for hire” language
“for many years.” Pauley Decl. ¶ 34.
Defendant’s citation to pre-2007 forms is
limited only to certain forms for proposals
from members of the public, not the
committee application.
Disputed to the extent that PRO implies that
ASTM did not offer evidence to support that
the ASTM Works are works made for hire of
ASTM. Declaration of Thomas O’Brien,
previously filed at Dkt. 118-7, (“O’Brien
Decl.”) ¶¶ 17-39 (ASTM employees are
involved in drafting certain components of
“every ASTM standard,”); see Veeck v.
Southern Bldg. Code Cong. Int’l, Inc., 293
F.3d 791, 794 (5th Cir. 2003) (en banc) (“As
the organizational author of original works,
SBCCI indisputably holds a copyright in its
model building codes”).

199. Plaintiffs claim to be assignees of any Disputed to the extent that Defendant implies
copyright that the volunteers or members of the that the assignments from volunteers and
public who authored the standards at issue members are the only basis for Plaintiffs’
copyright ownership of the Standards at
Issue or that the record evidence is
99

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and that the members that submit change – or
the public that submits change proposals sign
when they submit a change proposal”); Becker
Decl., ¶ 10, Ex. 43 (Reiniche Depo.) at 193:08–
17 (stating that the people who authored the
standards are not employees of ASHRAE).
202. ASHRAE requires volunteers who
contribute to standard development to sign a
copyright release explicitly granting ASHRAE
“non-exclusive” rights in those contributions.
Becker Decl., ¶ 10, Ex. 43 (Reiniche Depo.) at
70:02-70:11.

101

Disputed insofar as the copyright release also
contains the following language: “I
understand that I acquire no rights in
publication of such documents in which my
contributions or other similar analogous form
are used.” ECF No. 118-10 (Reiniche Decl.)
Ex. 2; see also ECF No. 118-10 (Reiniche
Decl.) Ex. 1 (“I understand that I acquire no
rights in publication of the standard in which
my proposals in this or other analogous form
is used.”).

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203. ASHRAE indicated the following
language from one of its alleged “assignment”
forms when asked to indicate what language
from that form it believes serves as an
assignment of copyright rights:

Undisputed.

If elected as a member of any ASHRAE
Standard
or
Guideline
Project
Committee or appointed as a consultant
to such committee I hereby grant the
American
Society
of
Heating,
Refrigerating and Air-Conditioning
Engineers (ASHRAE) the nonexclusive, royalty-free rights, including
nonexclusive,
royalty
rights
in
copyright, to any contributions I make
to documents prepared by or for such
committee for ASHRAE publication
and I understand that I acquire no rights
in publication of such documents in
which my contributions or other similar
analogous form are used. I hereby attest
that I have the authority and I am
empowered to grant this copyright
release.
M. Becker Decl. ¶ 46, Ex. 48 (Reiniche Ex.
1155) (emphasis added); Becker Decl., ¶ 10,
Ex. 43 (Reiniche Depo.) at 94:12–94:14.
204. Every document that ASHRAE has
produced to support its claim that the people
who drafted the ASHRAE standards at issue
assigned their copyrights to ASHRAE states
explicitly that the grant of rights is nonexclusive. Becker Decl., ¶ 10, Ex. 43 (Reiniche
Depo.) at 69:19–94:19; Dkt. 122-3, Exs. 27–48.

102

Disputed insofar as the copyright release also
contains the following language: “I
understand that I acquire no rights in
publication of such documents in which my
contributions or other similar analogous form
are used.” ECF No. 118-10 (Reiniche Decl.)
Ex. 2; see also ECF No. 118-10 (Reiniche
Decl.) Ex. 1 (“I understand that I acquire no
rights in publication of the standard in which
my proposals in this or other analogous form
is used.”). Further disputed in that this
statement addresses forms signed by
ASHRAE volunteers but says nothing of
documents produced that relate to

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ASHRAE’s argument that ASHRAE is an
institutional author and that employees of
ASHRAE contribute to authorship of the
standards.
205. All but four of the 229 ASTM standards
at issue in this case were developed and
published prior to 2003. ECF No. 1-1
(Complaint) Ex. A.

Disputed to the extent Defendant suggests
that all but four of the 229 ASTM standards
at issue in this case were only published
prior to 2003.

206. ASTM admits that it did not request
copyright assignments from the people who
drafted ASTM standards until approximately
2003. Becker Decl., ¶ 7, Ex. 40 (Smith Depo.)
at 24:18–26:12; 27:07–27:14; 40:22–41:15;
214:24–215:06.

Undisputed to the extent the statement
asserts that ASTM did not have written and
executed documents evidencing copyright
assignments prior to 2003. Disputed to the
extent it implies ASTM does not own
copyrights in the ASTM Works.

207. ASTM has not produced signed
copyright assignments for any of the standards
at issue. Becker Decl., ¶ 7, Ex. 40 (Smith Depo.)
at 24:18–26:12; 27:07–27:14; 40:22–41:15;
214:24–215:06.

Disputed. For the four standards for which
ASTM previously moved for summary
judgment (ASTM D86-07, ASTM D975-07,
ASTM D1217-93, and ASTM D396-98),
ASTM presented evidence that it obtained
assignments of copyrights from individual
contributors to the standards to ASTM.
SUMF ¶¶ 18, 20-24. With respect to the
remaining ASTM standards at issue in this
case, ASTM has produced evidence that over
25,000 members completed membership
renewal forms every year since 2007. ECF
No. 155-1 (Pls. Suppl. SUMF) ¶ 14. The
vast majority of these members completed
their membership renewals using the online
membership form. ECF No. 155-1 (Pls.
Suppl. SUMF) ¶ 15. Although ASTM did
not request signed writings evidencing
copyright assignments from its members
until approximately 2003, the language in the
assignments it obtained since then
retroactively assigned any copyrights that
individual possessed in any ASTM standard
to ASTM. See ECF No. 118-2 (Pls.’ SMF) ¶
18.

103

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208. Prior to 2003, ASTM did not believe
that it needed formal assignment agreements.
Becker Decl., ¶ 7, Ex. 40 (Smith Depo.) at
42:15–42:16 (“[ASTM] didn’t feel like we
needed any formal, any formal assignment
paper.”).

Disputed. Prior to and after 2003, ASTM
believed it had a basis for claiming
ownership of its standards separate and apart
from any assignments from participants in
the development process based on its role as
the organizational author of the standards
and its employees’ contribution of language
in the standards. ECF No. 118-1 (Pls.’
Mem.) at 16; ECF No. 200 (Pls.’ Mem.) at
10-11; Am. Soc’y for Testing & Materials v.
Public.Resource.org, Inc., No. 13-CV-1215
(TSC), 2017 WL 473822, at *7 (D.D.C. Feb.
2, 2017), rev’d in part, vacated in part, 896
F.3d 437 (D.C. Cir. 2018) (“Defendant has
not identified any evidence that . . . the
ASTM Plaintiffs . . . do not own the
copyrights of the standards, in whole or in
part. The court therefore concludes that the
ASTM Plaintiffs . . . are the owners of the
copyrights at issue and have standing to
bring their claims”). ASTM consulted with
the Copyright Office about how to complete
its copyright applications. ECF No. 155-1
(Pls.’ Supp. SUMF) ¶ 13. The Copyright
Office instructed ASTM to fill out its
copyright applications noting itself as the
sole author of the standards as works made
for hire. ECF No. 155-1 (Pls.’ Supp. SUMF)
¶ 13.

209. ASTM now admits that it only started
asking for copyright assignments in 2005,
Opp. at 32, which is years after 226 of the 229
ASTM standards at issue had been developed.
See ECF No. 1-1 (Complaint Exhibit A, listing
ASTM standards at issue and their date of
publication).

Disputed to the extent it implies ASTM does
not own copyrights in the ASTM Works.
Although ASTM does not have written and
executed documents evidencing copyright
assignments prior to 2003, ASTM has
produced evidence that over 25,000
members completed membership renewal
forms every year since 2007. ECF No. 1551 (Pls. Suppl. SUMF) ¶ 14. The vast
majority of these members completed their
membership renewals using the online
membership form. ECF No. 155-1 (Pls.

104

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Suppl. SUMF) ¶ 15; Am. Soc’y for Testing
& Materials v. Public.Resource.org, Inc.,
No. 13-CV-1215 (TSC), 2017 WL 473822,
at *7 (D.D.C. Feb. 2, 2017), rev’d in part,
vacated in part, 896 F.3d 437 (D.C. Cir.
2018) (“Defendant has not identified any
evidence that . . . the ASTM Plaintiffs . . . do
not own the copyrights of the standards, in
whole or in part. The court therefore
concludes that the ASTM Plaintiffs . . . are
the owners of the copyrights at issue and
have standing to bring their claims”); ECF
No. 204-1 (PRO’s Second Supp. Statement
of Disputed Facts) ¶ 7 (PRO does not dispute
that the copyright registrations for the ASTM
standards appearing in bold in Annex A were
effective within five years of the date of first
publication and thus, under 17 U.S.C. §
410(c), constitute prima facie evidence of the
valid copyright in ASTM’s standards and its
work for hire authorship and ownership of
the ASTM Works).
210. ASTM alleges that it relied on an
unspoken “basic understanding” that the
volunteers who drafted the standards at issue
intended to create standards that ASTM would
eventually distribute. Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 42:18–44:01; 94:01–94:20.

Disputed. ASTM’s ownership claims do not
depend on, but are confirmed by, the
understanding of all participants in the
standard development process intend ASTM
to own the copyrights in standards.

211. ASTM has not produced any evidence
of the existence of an alleged “basic
understanding” between the creators of the
standards at issue and ASTM, nor any evidence
of what the contours of this “basic
understanding” were. Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 44:03–45:14; 104:21–105:24
(“Q: Did Mr. Lively provide any basis for his
statement that there was an understanding in the
early ‘80s that ASTM would copyright the
material provided by individuals that was
incorporated into the standards drafts? A: No.
I think it was just his belief just as it was my

Disputed. ASTM has presented evidence
that participants in the standard development
process intend ASTM to own the copyrights
in standards. See ECF No. 118-2 (Pls.’
SMF) ¶ 40; ECF No. 118-11 (Thomas Decl.)
¶ 23; ECF No. 118-4 (Cramer Decl.) ¶¶ 6,
10, 11, 15; ECF No. 118-6 (Jennings Decl.)
¶¶ 7-9, 12.

105

ASTM has always openly claimed ownership
of these works without objection. ECF No.
118-2 (Pls.’ SMF) ¶ 26; ECF No. 122-5, Def.
Ex. 77 at 6 (ASTM’s Intellectual Property

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belief.”); Becker Decl., ¶ 7, Ex. 40 (Smith
Depo.) at 44:03–45:14 (stating that ASTM
“didn’t think that documentation [of the alleged
‘basic understanding’] was needed”).

Policy adopted in 1999); ECF No. 122-5,
Def. Ex. 78 at (VI)(A)(1) (ASTM’s
Intellectual Property Policy 2003); ECF No.
122-5, Def. Ex. 79 at (VI)(A)(1) (ASTM’s
Intellectual Property Policy 2010).
Moreover, many of the participants pay for
copies of the ASTM standards from ASTM
and bearing ASTM’s copyright notice. ECF
No. 118-2 (Pls.’ SMF) ¶¶ 16-18, 40. ASTM
is not aware of any individual or other
person who claims to own any copyright
interest in any ASTM standard. O’Brien
Decl. III ¶ 6. Since ASTM filed the lawsuit
in 2013, no participant or volunteer has
contacted ASTM to assert copyright
ownership or otherwise challenge ASTM’s
copyright interest in any of the ASTM
Works. O’Brien Decl. III ¶ 7.

212. ASTM claimed that the ASTM “IP Undisputed.
Policy” somehow confirms the existence of this
alleged “basic understanding.” Becker Decl., ¶
7, Ex. 40 (Smith Depo.) at 57:23–59:25.
213. The earliest IP Policy document that
ASTM produced in this litigation was approved
by ASTM on April 28, 1999 and put into effect
thereafter. ASTM had no IP Policy prior to
April 28, 1999. Dkt. 122-5, Ex. 77, ¶ 77; Dkt.
122-5 Ex. 79; Dkt. 122-9, Ex. 152 (Internet
Archive capture of the ASTM home page the
day before the ASTM IP Policy was approved,
and a capture after the ASTM Policy was
approved, showing that the link to the IP Policy
in the lower-right corner of the page was not
present on April 27, 1999).

Disputed. It is undisputed that the earliest IP
Policy produced in this litigation was
approved on April 28, 1999, but there is no
support for the proposition that ASTM had
no IP policy prior to that date.

214. In 2010, approximately three years after
the publishing of the most recent ASTM
standard at issue, the ASTM IP Policy was
amended to include the following language:
“Each member agrees, by such participation
and enjoyment of his/her annual membership

Objection. Objection to the characterization
of the ASTM documents based on the best
evidence rule. Plaintiffs also object to the
quoted text as an incomplete.

106

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benefits, to have transferred any and all
ownership interest, including copyright, they
possess or may possess in the ASTM IP to
ASTM.” Dkt. 122-5, Ex. 77 and Ex. 79
(Compare Section V.D. in both documents).

Disputed to the extent it omits reference to
the statement in the 1999 IP Policy that “[b]y
participating in any ASTM technical
committee and /or participating in the
creation and adoption of ASTM’s
Intellectual Property, participants and
committee members acknowledge that the
copyright to such Intellectual Property
resides in ASTM. See ECF No. 122-5, Def.
Ex. 77.

215. There was no means that ASTM
imposed for the volunteers who drafted the
ASTM standards at issue to signify that they
had read and agreed to the ASTM IP Policy.
Becker Decl., ¶ 7, Ex. 40 (Smith Depo.) at
173:10–181:12 (admitting that ASTM does not
know if members read or understood the
assignment clause, nor whether they assented to
transfer their copyright to ASTM).

Disputed. Certain ASTM membership forms
stated: “By applying for or renewing your
ASTM membership, you acknowledge you
have read and agree to abide by ASTM’s
Intellectual Property Policy.” See, e.g., ECF
No. 120-20, Def. Ex. 87.
ASTM has always openly claimed ownership
of these works without objection. ECF No.
118-2 (Pls.’ SMF) ¶ 26; ECF No. 122-5, Def.
Ex. 77 at 6 (ASTM’s Intellectual Property
Policy adopted in 1999); ECF No. 122-5,
Def. Ex. 78 at (VI)(A)(1) (ASTM’s
Intellectual Property Policy 2003); ECF No.
122-5, Def. Ex. 79 at (VI)(A)(1) (ASTM’s
Intellectual Property Policy 2010).
Moreover, many of the participants pay for
copies of the ASTM standards from ASTM
and bearing ASTM’s copyright notice. ECF
No. 118-2 (Pls.’ SMF) ¶¶ 16-18, 40. ASTM
is not aware of any individual or other
person who claims to own any copyright
interest in any ASTM standard. O’Brien
Decl. III ¶ 6. Since ASTM filed the lawsuit
in 2013, no participant or volunteer has
contacted ASTM to assert copyright
ownership or otherwise challenge ASTM’s
copyright interest in any of the ASTM
Works. O’Brien Decl. III ¶ 7.

216. ASTM has not retained or produced in Disputed. For the four standards for which
this litigation completed membership forms ASTM moved for summary judgment,
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pertaining to any of the standards at issue. The
membership forms that ASTM has produced
date from 2008 and later, with only one
membership form from 2007. M. Becker Decl.
¶ 90, Ex. 92; Becker Decl., ¶ 7, Ex. 40 (Smith
Depo.) at 258:11–258:23.

ASTM presented evidence that the leader of
the group that developed the standard and/or
a member of the committee that drafted the
standard assigned any copyrights in their
individual contributions to the standards to
ASTM. ECF No. 118-2 (Pls.’ SMF) ¶¶ 18,
20-24. With respect to the remaining ASTM
standards at issue in this case, ASTM has
produced evidence that over 25,000
members completed membership renewal
forms every year since 2007, which is as far
back as ASTM maintains membership
records. ECF No 155-1 (Pls.’ Supp. SUMF)
¶ 14. The vast majority of these members
completed their membership renewals using
the online membership form. ECF No 155-1
(Pls.’ Supp. SUMF) ¶ 15. Although ASTM
did not request executed written copyright
assignments from its members until
approximately 2003, the language in the
assignments it obtained since then
retroactively assigned any copyrights that
individual possessed in any ASTM standard
to ASTM. See ECF No. 118-2 (Pls.’ SMF) ¶
18.

217. ASTM has failed to exercise control
over the creation and enforcement of its
membership and participation forms (that it
terms copyright “assignments”), resulting in a
multiplicity of forms that either have no
assignment language at all, or have various
iterations of language that ASTM claims grants
it copyright assignments. Becker Decl., ¶ 7, Ex.
40 (Smith Depo.) at 216:01–217:12, 225:05–
225:19 (membership forms were prepared ad
hoc by any number of people, and he does not
know if anyone knows how many different
variations of ASTM membership form were
used from 2007 to 2014, because his
“experience as being a staff manager is I don’t
think people think about the version of an
application that’s being used.
I think it’s

Objection. Vague and ambiguous as to the
terms “exercise control” and “enforcement.”
In addition, it is irrelevant whether ASTM
exercised control of the creation and
enforcement of membership and
participation forms, especially with respect
to individuals who were not involved with
the development of the Works.

108

Disputed. The statement is not supported by
the cited testimony.

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viewed as a tool that enables an individual to
join a technical committee.”),
218. Many individuals renew their ASTM
memberships through alternate channels other
than using ASTM membership renewal forms
or renewing through ASTM’s online portal, and
thereby do not encounter or formally assent to
any copyright assignment language. Becker
Decl., ¶ 7, Ex. 40 (Smith Depo.) at 278:04–
278:18 (ASTM members can renew their
membership by phone or by email, without
using the online portal or using ASTM’s mailin forms); Dkt. 120, Ex. 94 (example of an
ASTM member renewing by email). ASTM’s
online membership agreement process does not
require a member to click “yes,” or “I agree,” or
any other affirmation to the language discussing
copyright assignment that appears on the web
page. Instead, members click a button labeled
“continue” that appears below the message:
“[c]lick ‘continue’ to place your ASTM
membership renewal in the shopping cart.” Dkt.
122-9, Ex. 149.

Disputed to the extent that there is no
evidence that “many” individuals renew their
ASTM memberships through alternate
challenge. Defendant has found several
isolated instances of ASTM members
renewing their ASTM memberships outside
of the normal channels. These individuals
and their renewal methods are irrelevant
because there is no evidence that they were
involved in the development of any of the
Works.

219. The membership forms that ASTM has
produced usually do not include language
asking for an assignment of copyright rights.
Becker Decl., ¶ 7, Ex. 40 (Smith Depo.) at
211:24-212:12 (acknowledging ASTM forms
that did not have assignment language. Dkt.
120, Exs. 91 and 93 (examples of ASTM forms
without any assignment language).

Objection. Evidence that persons who were
not involved in the development of any
ASTM Work at issue is irrelevant.

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

Disputed. The membership form in
Defendant’s Exhibit 91 includes copyright
assignment language. Defendant produced
tens of thousands of pages of hard-copy
membership forms. ECF No. 155-1 (Pls.
Suppl. SUMF) ¶ 16. Defendant identified a
very small percentage of those forms that do
not include language regarding assignment
of copyright. See ECF No. 122-6, Def. Ex.
93.
Defendant did not produce any evidence that
any of the persons who signed those forms
were involved in the development of the

109

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contributions or other similar analogous form
are used.” Dkt. 122-4, Ex. 48.
XIV. INCORPORATION OF THE NATIONAL ELECTRICAL CODE INTO
CALIFORNIA TITLE 24
225. The California Building Standards
Commission (“CBSC”) generally issues a new
California Building Standards Code Title 24
every three years. The current effective
California Building Standards Code is a 2016
edition. The rulemaking processes for the next
edition (the 2019 edition) is complete; the new
code was published on or around July 1, 2019,
and it will become effective January 1, 2020.
Becker Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at
22:21-23:6, 35:6-25.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.
Objection. Hearsay.

226. The California Building Code includes
three categories of building standards—namely,
(1) reference standards that have been adopted
without change; (2) those that have been
adopted and adapted from national model code,
with amendments; and (3) those authorized by
the California legislature but which are not
covered by the national model codes. Becker
Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at 40:641:16, Ex. 3.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Objection to the relevance of
this statement to the extent it does not relate
to any of the Works.
Objection. Hearsay.
Objection to the statement’s use of “adopted
without change” as vague and ambiguous, as
there is no indication of what material these
reference standards are adopting. Objection
to the use of the undefined terms “national
model codes” and “reference standards” as
vague and ambiguous.

227. The CBSC incorporates by reference Objection to the relevance of the
certain reference standards by making them development of California’s Building
“part of the model code.” In some cases, the Standards Code. As explained in Plaintiffs’
112

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incorporation involves referring to the reference
standard, such that a reader might have to refer
to a separate reference standard. In other
instances, the reference code may itself be
reprinted in the model code. Becker Decl. ¶ 3,
Ex. 36 (Marvelli Depo.) at 30:23-31:25, 32:715.

briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.
Objection. Hearsay.
Objection to the use of the undefined terms
“model code,” “reference standards,” and
“reference code” as vague and ambiguous.

228. California Building Standards law
requires California to adopt the most recent
version of model codes that refer to reference
standards. Becker Decl. ¶ 3, Ex. 36 (Marvelli
Depo.) at 27:17-28:16, 44:14-46:14.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.
Objection. Hearsay.
Objection to the use of the undefined terms
“model codes” and “reference standards” as
vague and ambiguous.
Objection. Improper opinion/lack of
foundation. This is a legal conclusion, not a
fact.

229. Until the 2019 edition of the California
Building Standards Code goes into effect, the
2016 edition is the law. The national model
codes adopted into Title 24 apply to all
occupancies in California, including residences,
office buildings, schools, hospitals, government

113

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

buildings, etc. Becker Decl. ¶ 3, Ex. 36 to the extent it does not relate to any of the
(Marvelli Depo.) at 36:1-8, 41:17-43:2, Ex. 3. Works.
Objection. Hearsay.
Objection. Improper opinion/lack of
foundation. This is a legal conclusion, not a
fact.
Objection as incomplete. As the deponent
later explained, Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 182:13-19, Exhibit 3 to
the Marvelli deposition reads: “All
occupancies in California are subject to
national and model codes adopted into Title
24, and occupancies are further subject to
amendments adopted by state agencies and
ordinances implemented by local
jurisdictions’ governing bodies.” Wise Decl.
II ¶ 11, Ex. 183. Accordingly, all
occupancies in the state must look to state
agency amendments and local jurisdictions’
rules to determine their conduct. Becker
Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at 182:13184:19.
230. In a previous role as an architectural
associate for the California Department of
General Services, Ms. Marvelli developed
construction drawings for state building so they
complied with the California Building
Standards Code. Multiple state and local
agencies enforce compliance with the
California Building Codes. Becker Decl. ¶ 3,
Ex. 36 (Marvelli Depo.) at 23:7-24:5, 118:6119:15, 124:3-125:8, 127:15-130:3.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.
Objection. Hearsay.
Objection. Improper opinion/lack of
foundation as to how state and local agencies
act.

114

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231. Title 24 contains multiple parts; for
example, the 2019 triennial edition of the code
has thirteen parts. Each part of Title 24 pertains
to a different subject matter. For instance, Part
1 of Title 24 is the California Administrative
Code. The most relevant one for this case is
Part 3, which is the California Electrical Code.
The California Electrical Code has two
sources—namely, (1) NFPA 70, also known as
the National Electrical Code; and (2) the
California amendments. For instance, the 2019
California Electrical Code is based on the 2017
version of the National Electrical Code; the
2016 California Electrical Code is based on the
2014 version of the National Electrical Code;
the 2013 California Electrical Code is based on
the 2011 version of the National Electrical
Code. Becker Decl. ¶ 3, Ex. 36 (Marvelli
Depo.) at 36:1-25, 43:4-44:12, 78:25-79:5.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.

232. Adoption of the code is a deliberative
process. Mia Marvelli is Executive Director of
the California Building Standards Commission
(CBSC), a state commission that administers
the California Building Standards process. The
California Building Standards law is found in
the California Health and Safety Code, and the
CBSC uses the processes under the
Administrative Procedure Act to administer the
rulemaking process for Title 24 (also known as
the California Building Standards Code) of the
California Code of Regulations. The CBSC
receives rulemaking documents from State
agencies, and then conducts public hearings and
public comment periods on the documents. The
CBSC ultimately takes one of four actions on
those rulemaking document: (1) approve; (2)
approve as amended; (3) disapprove; or (4)
further action. Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 9:25-10:1, 13:14-15:10,
44:14-47:11.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.

115

Objection. Hearsay.
Objection to the use of the phrase “based on”
as vague and ambiguous.

Objection. Hearsay.
Objection to the undefined and subjective
term “deliberative process” as vague and
ambiguous.
Disputed that California uses “a deliberative
process” as the cited reference does not
support this proposition.

DEFENDANT’S SECOND
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PLAINTIFFS’ RESPONSE

233. There are ten commissioners that
conduct the rulemakings. The Governor of
California appoints the commissioners under
the authority of the California Building
Standards law. Each commissioner represents
a different type of interest (e.g., building
officials, construction industry), and all the
commissioners participate together in a public
hearing on the rulemaking. If the commission
approves the regulations, they are assembled for
the publisher to the develop the next edition of
the California Building Standards Code.
Becker Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at
15:13-19, 16:13-19, 16:24-20:3, 22:17-20.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.

234. The “Acknowledgements” section of
the California Electrical Code states that “the
California Electrical Code was developed
through the outstanding collaborative efforts
of” a number of State agencies, such as the
Department of Housing and Community
Development. Ms. Marvelli was not aware of
any State agencies that have sought a copyright
in their contributions to any version of the
California Electrical Code. Becker Decl. ¶ 3,
Ex. 36 (Marvelli Depo.) at 74:12-79:25, Ex. 4.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.

Objection. Hearsay.

Objection. Hearsay.
Objection. Improper opinion/lack of
foundation and incomplete. The witness
testified that she would “have to research”
whether any organizations sought a
copyright in the California Electrical Code.
Becker Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at
77:16-17.
Disputed to the extent PRO attempts to draw
any inference from the fact that Ms. Marvelli
was unaware of the information in question.
Disputed to the extent it suggests that any
state agencies made contributions to any

116

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version of the California Electrical Code.
The cited reference does not support that
proposition.
235. State agencies apply the nine-point
criteria in Section 18930 of the Health and
Safety Code in deciding whether to adopt a
reference standard into the California Building
Code. If all the criteria are met, the commission
generally approves the package. If one of the
criteria is not met, the commission may still
approve adoption of the reference standards, as
amended. The nine criteria that state agencies
consider are (1) whether the proposed building
standards do not conflict with, overlap or
duplicate other building standards; (2) whether
the proposed building standards are within the
parameters established by enabling legislation
and are not expressly within the exclusive
jurisdiction of another agency; (3) whether the
public interest requires the adoption of the
building standards; (4) whether the proposed
building standards are not unreasonable,
arbitrary, unfair or capricious in whole or in
part; (5) whether the cost to the public is
reasonable, based on the overall benefit to be
derived from the building standards; (6)
whether the proposed building standard is not
unnecessarily ambiguous or vague, in whole or
in part; (7) whether the applicable national
specifications, published standards, and model
codes have been incorporated; (8) whether the
format of the proposed building standards is
consistent with that adopted by the commission;
and (9) whether the proposed building
standards, if they promote fire and panic safety
as determined by the State Fire Marshal, have
the written approval of the State Fire Marshall.
Becker Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at
29:6-30:14, 103:22-106:22.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.
Objection. Hearsay.
Objection. Improper opinion/lack of
foundation.

236. Portions of California Electrical Code Objection to the relevance of the
are reproduced with permission from the development of California’s Building
117

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PLAINTIFFS’ RESPONSE

National Electrical Code, and the California
Electrical Code states that “no portions of NEC
material may be reproduced except with
permission of the National Fire Protection
Association.” The California Electrical Code
includes a legend that tells the reader how to
distinguish between model code portions and
California amendments. Aside from appearing
in the California Electrical Code itself,
California amendments “may or may not”
appear in a document called the Final Statement
of Reasons that state agencies issue during the
rulemaking process; if a California amendment
does not appear in the Final Statement of
Reasons, Ms. Marvelli did not know how a
person would access the amendment without
going to the California Electrical Code itself.
Becker Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at
61:20-64:12, 65:18-67:25, 68:16-69:8, Ex. 4.

Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.

237. The NFPA and CBSC has a “zero
dollar” contract under which NFPA grants
CBSC a nonexclusive license to use and copy
the National Electrical Code solely to create and
publish the California Electrical Code. In
exchange, CBSC grants NFPA “an exclusive,
worldwide license to copy, print, publish,
distribute and sell the Code and all Code
Supplements . . . .” When asked at her
deposition, Ms. Marvelli did not recall whether
the NFPA established any method for
distribution of the 2016 California Electrical
Code in consultation with NFPA. Becker Decl.
¶ 3, Ex. 36 (Marvelli Depo.) at 107:11-23,
108:18-109:12,
134:19-135:17,
Ex.
7
(agreement for 2016 triennial edition of
California Electrical Code) at § 4.

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.

118

Objection. Hearsay.
Objection. Improper opinion/lack of
foundation.
Disputed to the extent PRO attempts to draw
any inference from the fact that Ms. Marvelli
was unaware of the information in question.

Objection. Hearsay.
Objection. Improper opinion/lack of
foundation.
Objection as incomplete. The cited
provision reads, in full, “CBSC hereby
grants NFPA an exclusive, worldwide
license to copy, print, publish, distribute and
sell the Code and all Code Supplements in
accordance with the terms of this

DEFENDANT’S SECOND
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PLAINTIFFS’ RESPONSE

Agreement.” Wise Decl. II ¶ 12, Ex. 184
(Ex. 7 to Marvelli deposition).
Disputed to the extent PRO attempts to draw
any inference from the fact that Ms. Marvelli
was unaware of the information in question.
Disputed to the extent the statement suggests
that the cited language is representative or
has appeared in all contracts between NFPA
and CBSC related to the California Electrical
Code.
238. The contract with NFPA is subject to a
noncompetitive bid coordination process.
Becker Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at
141:21-142:11, Ex. 9 (forms for 2016 triennial
edition).

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.
Objection. Hearsay.
Disputed to the extent the statement suggests
that this statement is representative of all
contract negotiations between NFPA and
CBSC related to the California Electrical
Code.

239. The CBSC administers a web page with
information about the part of Title 24 at the
following
URL:
https://www.dgs.ca.gov/BSC/Codes.
But
CBSC does not store an accessible version of
the 2013, 2016, or 2019 triennial edition of the
California Building Standards Code on the
webpage. The CBSC webpage instead points to
model code publisher in a section titles
“Purchase the Codes”, listing the parts that are
119

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

available through each publisher. The publisher
of the 2016 edition of the California Electrical
Code is BNi; for the 2019, it is NFPA. Becker
Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at 34:1835:22, 37:1-23, 38:2-19, 51:16-52:2, 53:3-6,
54:9-12, 70:23-74:1, Ex. 84.

240. CBSC has the practical ability to post a
searchable PDF version of the 2016 California
Electrical Code on its website, and it has done
so in the past by “mistake.” Becker Decl. ¶ 3,
Ex. 36 (Marvelli Depo.) at 99:22-102:4.

Objection. Hearsay.
Disputed to the extent the statement suggests
that the CBSC website’s only link to the
codes is under a heading that reads
“Purchase the Codes.” The website links to
the codes higher up on the page under
headings that list the edition (e.g., 2019
Triennial Edition of Title 24) and the Part
(e.g., California Electrical Code). Wise
Decl. II ¶ 11, Ex. 183 (Ex. 3 to Marvelli
deposition).
Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.
Objection. Hearsay.
Disputed to the extent it suggests that CBSC
could post a searchable PDF version of the
2016 California Electrical Code on its
website without violating its contractual
obligations or without infringing NFPA’s
copyright.

241. The CBSC does not know whether the
publisher provides full access to the text of the
California Electrical Code without payment, or
whether the publisher is a commercial actor or
not. In addition, Ms. Marvelli did not know
whether the online NFPA viewer could print,
copy, or search the text of the 2019 version of
the California Electrical Code. Nor did she
know how many screenshots would be
120

Objection to the relevance of the
development of California’s Building
Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

necessary to reproduce the entire California
Electrical Code from the NFPA viewer. The
CBSC has received calls where people have
been unable to access the California Electrical
Code, but it has no ability to fix the access
issues and notifies the publisher of the issue.
Ms. Marvelli had no knowledge of whether the
NFPA had made any efforts to make the
California Electrical Code available to printdisabled
individuals,
mobility-impaired
individuals, or individuals who lack eyesight,
and the CBSC has not taken steps to make the
California Electrical Code available to these
persons. Becker Decl. ¶ 3, Ex. 36 (Marvelli
Depo.) at 56:8-57:20, 57:22-58:7, 58:24-61:19,
70:23-74:1, 82:10-17, 91:10-23, 136:23-138:2,
Ex. 4; see also id. at 93:17-94:2, 95:14-98:1
(similarly, no knowledge of whether a person
can print, copy, or search the text of the
California Residential Code, Part 2.5 of Title
24, from the website of the publisher,
International Code Council (ICC)).

to the extent it does not relate to any of the
Works.
Objection. Hearsay.
Disputed. The cited reference does not
support PRO’s claim that “CBSC does not
know” any information. When asked
whether “anybody in [Ms. Marvelli’s] office
know[s] what BNi offers,” Ms. Marvelli
responded “I don’t know that. I wouldn’t
know that.” Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 57:1-6.
Disputed to the extent it suggests that any
individual has been unable to access the
California Electrical Code. Ms. Marvelli
testified that she was not aware of anyone
who wanted to access the California
Electrical Code who was unable to do so.
Becker Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at
179:10-14.
Disputed to the extent it suggests that any
print-disabled individuals, mobility-impaired
individuals, or individuals who lack eyesight
have been unable to access the California
Electrical Code or have requested that the
CBSC make the California Electrical Code
more accessible. Ms. Marvelli testified that
she was not aware of any such individuals
having difficulty accessing the California
Electrical Code, nor was she aware of any
requests for access from such individuals.
Becker Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at
137:19-21, 137:25-138:2, 179:21-180:17.
Disputed to the extent PRO attempts to draw
any inference from the fact that Ms. Marvelli
was unaware of the information in question.

242. CBSC operates under a legal mandate Objection to the relevance of the
requiring the publication of codes 180 days development of California’s Building
121

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prior to the effective. For instance, for the 2016
California Electrical Code, the publication date
was required to be July 1, 2016. But, as of
August 2, 2016, the California Electrical Code
published by NFPA was not available for online
access. Becker Decl. ¶ 3, Ex. 36 (Marvelli
Depo.) at 131:3-134:8, Ex. 87.

Standards Code. As explained in Plaintiffs’
briefing, PRO has staked its entire fair use
argument on the incorporation by reference
process the federal government—not any
state—uses. Reply at Part I.A.1.a.
Objection to the relevance of this statement
to the extent it does not relate to any of the
Works.
Objection. Hearsay. The statement’s
assertion that the California Electrical Code
was not available for online access is based
on an email that the deponent did not send
and was not even sure if she received.
Becker Decl. ¶ 3, Ex. 36 (Marvelli Depo.) at
132:18-22. Both the deponent’s testimony
and the underlying email are hearsay to the
extent they are used for the truth of the
matter asserted.
Disputed. The deponent testified that she did
not know whether the California Electrical
Code was available for online access prior to
August 1, 2016. Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 132:6-8. When
questioned about an email, she said that she
read the email as indicating that CBSC did
not yet have a link to the California
Electrical Code on its website, not that the
California Electrical Code was not available
for online access on NFPA’s or some other
website. Id. at 133:20-134:8. The deponent
never stated nor implied that the California
Electrical Code was not available for online
access as of August 2, 2016. Further
disputed that the 2016 California Electrical
Code was “published by NFPA,” as
acknowledged in 239, BNi published the
2016 California Electrical Code.

122

Dated: December 23, 2019

Respectfully submitted,
/s/ J. Kevin Fee
J. Kevin Fee (D.C. Bar: 494016)
Jane W. Wise (D.C. Bar: 1027769)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel For American Society For Testing And
Materials d/b/a ASTM International
/s/ Kelly M. Klaus
Kelly M. Klaus (pro hac vice)
MUNGER, TOLLES & OLSON LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
Rose L. Ehler (pro hac vice)
MUNGER, TOLLES & OLSON LLP
350 South Grand Ave., 50th Floor
Los Angeles, CA 90071
Tel: [phone]
Email: [e-mail]
Rachel G. Miller-Ziegler
MUNGER, TOLLES & OLSON LLP
1155 F St. NW, 7th Floor
Washington, DC 20004
Tel: [phone]
Email: [e-mail]
Counsel for National Fire Protection Association, Inc.

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/s/ J. Blake Cunningham
Jeffrey S. Bucholtz (D.C. Bar: 452385)
David Mattern
King & Spalding LLP
1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
Tel: [phone]
Email: [e-mail]
J. Blake Cunningham
King & Spalding LLP
101 Second Street, Ste. 2300
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
Counsel for American Society of Heating, Refrigerating,
and Air Conditioning Engineers

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