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 DISTRICTOF 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.

PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS IN
OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
FOR PERMANENT INJUNCTION
Plaintiffs respectfully submit this response to Defendant’s Objections to Plaintiffs’
Evidence in Support of Plaintiffs’ Motion for Summary Judgment and Permanent Injunction
(Dkt. No. 204-2). As an initial matter, Plaintiffs note that Defendant’s filing of a separate
document does not appear to be contemplated by applicable procedural rules, and Plaintiffs
believe the document to be unnecessary. Nevertheless, in an abundance of caution, Plaintiffs
hereby respond to each objection in case the Court wished to consider any of Defendant’s
specific objections.

1

As a general matter, Defendant raises numerous objections that are inapplicable. For
instance, Defendant raises objections pursuant to Federal Rule of Evidence 403, even though
that rule is generally inapplicable in bench trials. United States v. Preston, 706 F.3d 1106,
1117-18 (9th Cir. Feb. 5, 2013). Additionally, Defendant argues for a hyper-technical
application of the Federal Rules of Evidence that incorrectly assumes all evidence used at
summary judgment must be presented in a form admissible at trial. This is the wrong
standard. At the summary judgment stage, the correct challenge from a non-offering party is
that the evidence is not capable of being presented in an admissible manner at trial. Fed. R.
Civ. Proc. 56(c)(2); Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the
summary-judgment stage, we do not focus on the admissibility of the evidence’s form. We
instead focus on the admissibility of its contents.”). For these reasons, and the specific
arguments presented below in response to each objection, the Court should overrule
Defendant’s objections.

2

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
3. NFPA owns the copyrights to
over 300 standards it has published.
This litigation involves 23 of
NFPA’s copyrighted standards.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument. The declarant is not
offering legal opinion testimony.

FRE 1002 Secondary Evidence. The
witness has not provided the original
copyright registrations. Public
Resource also objects under FRE
1006 because this assertion is an
improper summary.
5. NFPA previously submitted the
To the extent that the Plaintiffs rely
copyright registration certificates for upon the copyright registration
NFPA 70, the National Electrical
certificates to suggest their
Code (2011 ed.) and (2014 ed.), as
ownership of copyrights, FRE 701
Exhibits A & B to the declaration of Improper legal opinion: This states
Dennis Berry (Dkt. 118-3).
an improper legal conclusion of
Copyright registration certificates
ownership, which is especially
for NFPA’s other standards at issue troublesome in this case where the
in this litigation are attached hereto
Plaintiffs’ evidence showed an lack
as set forth below.
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
3

FRE 1002 is not applicable. The
declaration is not intended to prove
the contents of each of the 300
copyright registrations. Regardless,
FRE 1006 would permit them to be
produced before trial, if necessary.

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

registrations contradict the theory of
ownership.

6. NFPA owns a United States
copyright registration for NFPA 1
(2003 ed.), the Uniform Fire Code.
Attached as Exhibit W to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 5-970- 602.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

copyrights at issue and have
standing to bring their
claims.” American Society for
Testing and Materials v.
Public.Resource.org, Inc., No. 13cv-1215-TSC, 2017 WL 473822, at
*7 (D.D.C., 2017) (“ASTM I”).

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

4

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.
7. NFPA owns a United States
copyright registration for NFPA 1
(2006 ed.), the Uniform Fire Code.
Attached as Exhibit X to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 6-261- 668.

8. NFPA owns a United States
copyright registration for NFPA 10
(2002 ed.) the Standard for Portable
Fire Extinguishers, NFPA 13 (2002
ed.) Installation of Sprinkler
Systems, NFPA 25 (2002 ed.)
Inspection, Testing and
Maintenance of Water-Based Fire
Protection Systems, registered under
the title “National Fire Codes Vol.

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

To the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
5

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
1-12 and Master Index.” Attached as
Exhibit Y to this declaration is a true
and correct copy of the registration
certificate for this work, TX 5-752623.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

Plaintiffs to abandon their first two
theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal

6

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
10. NFPA owns a United States
copyright registration for NFPA 12
(2005 ed.) the Standard on Carbon
Dioxide Extinguishing Systems.
Attached as Exhibit AA to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 6-232- 876.

11. NFPA owns a United States
copyright registration for NFPA 30
(2003 ed.) Flammable and
Combustible Liquids Code.
Attached as Exhibit BB to this
declaration is a true and correct

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

To the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
7

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
copy of the registration certificate
for this work, TX 5-905-038.

12. NFPA owns a United States
copyright registration for NFPA 54
(2006 ed.) National Fuel Gas Code.
Attached as Exhibit CC to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 6-261- 666.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

“legal opinion” objection is just a
summary of its “ownership”
argument.

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

8

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

9

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
14. NFPA owns a United States
copyright registration for NFPA 58
(2004 ed.) Liquefied Petroleum Gas
Code. Attached as Exhibit EE to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 5-956- 112.

15. NFPA owns a United States
copyright registration for NFPA 59
(2004 ed.) Utility LP Gas Plant
Code. Attached as Exhibit FF to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 5-953- 205.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

To the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
10

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

16. NFPA owns a United States
copyright registration for NFPA 70
(1999 ed.) National Electrical Code.
Attached as Exhibit GG to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 4-092- 419.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as

11

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
17. NFPA owns a United States
copyright registration for NFPA 70
(2005 ed.) National Electrical Code.
Attached as Exhibit HH to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 6-108- 410.

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

12

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
18. NFPA owns a United States
copyright registration for NFPA 70
(2008 ed.) National Electrical Code.
Attached as Exhibit II to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 6-966- 113.

19. NFPA owns a United States
copyright registration for NFPA 72
(2002 ed.) National Fire Alarm
Code. Attached as Exhibit JJ to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 5-841- 133.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

To the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
13

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

20. NFPA owns a United States
copyright registration for NFPA 99
(2005 ed.) Health Care Facilities
Code. Attached as Exhibit KK to
this declaration is a true and correct
copy of the registration certificate
for this work, TX 6- 153-939.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as

14

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

21. NFPA owns a United States
copyright registration for NFPA 101
(2000 ed.) Life Safety Code.
Attached as Exhibit LL to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 5-371- 918.

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

15

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
22. NFPA owns a United States
copyright registration for NFPA 101
(2003 ed.) Life Safety Code.
Attached as Exhibit MM to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 5-841- 134.

23. NFPA owns a United States
copyright registration for NFPA 101
(2006 ed.) Life Safety Code.
Attached as Exhibit NN to this
declaration is a true and correct
copy of the registration certificate
for this work, TX 6-294- 334.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

To the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
16

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as

17

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 602, 701/2: This is fact
evidence based on personal
knowledge. Mr. Pauley is the CEO
of NFPA. Supp. Pauley Decl. ¶ 1.
Based on his experience and
responsibilities as CEO, including
overseeing standards development,
he has personal knowledge
regarding the facts of how AHJs use
NFPA’s standards.

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

18

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
26. The NFPA standards at issue in
this litigation provide that there may
be other ways, in addition to those
set out within a published standard,
for persons within a jurisdiction to
satisfy their particular legal
obligations. For example, NFPA 54,
2006 ed., the National Fuel Gas
Code, states that its provisions “are
not intended to prevent the use of
any material, method of
construction, or installation
procedure not specifically
prescribed by this code, provided
any such alternative is acceptable to
the authority having jurisdiction.”
Ex. I at ch. 1.4 “Equivalency”
(NFPA- PR0014798). I am aware
that substantively similar provisions
appear in each of the other standards
at issue.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.

27. Although AHJs or other entities
may incorporate our standards by
reference, portions within each of
our standards provide options or
examples. As explained in, for
example, the 2014 NEC (NFPA 70),
the standards include “Permissive
Rules” which are defined as “those
that identify actions that are allowed
but not required, are normally used
to describe options or alternative
methods, and are characterized by

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

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

FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an
expert (including as a legal expert)
and therefore cannot testify as to
facts beyond the witness’s personal
knowledge. This assertion
19

FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.
FRE 1002 and 1006 are
inapplicable. The referenced
document is attached to this
declaration, and the declaration is
not intended to prove the content of
the document for the obvious reason
that the document itself is attached.
FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 701/702: PRO has not
identified what portion of this

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
the use of the terms shall be
permitted or shall not be required.”
Ex. P at art. 90-5(B) (NFPAPR0098088). An example of such
an optional rule is article 324.56(A)
of the 2014 NEC regarding FCC
Systems Alterations, which states
“Alterations to FCC systems shall
be permitted. . . . It shall be
permitted to leave unused cable runs
and associated cable connectors in
place and energized.” Id. at art.
324.56(A) (NFPAPR0098260).

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

constitutes an improper lay opinion.

paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.

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

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

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

FRE 602 Lack of Personal
Knowledge. The witness has not
a. Prefatory Notices: NFPA’s
standards generally include a section established any personal knowledge
about this subject.
setting forth notices, including
information regarding the voluntary
FRE 701/2 Improper Opinion and
consensus standards development
Unqualified Expert Opinion. The
process, and disclaimers and
copyright information, regarding the witness has not been qualified as an
expert (including as a legal expert)
publication.
and therefore cannot testify as to
facts beyond the witness’s personal
b. History, Development and
knowledge. This assertion
Edition Information: NFPA’s
constitutes an improper lay opinion.
standards generally include
introductory and background
information about, for example, the FRE 1002 Secondary Evidence. The
witness is testifying about the
origin of the standards and its
purpose, relation to other standards, contents of a writing. Public
and edition-specific information.
Resource also objects under FRE
1006 because this assertion is an
improper summary.
c. Reference and Informational
20

FRE 1002 and 1006 are
inapplicable. The referenced
document is attached to this
declaration, and the declaration is
not intended to prove the content of
the document for the obvious reason
that the document itself is attached.
FRE 403 is inapplicable to bench
trials and “obligation” has its
ordinary meaning.
FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.

SUPPLEMENTAL
PUBLIC.RESOURCE.ORG’S
DECLARATION OF JAMES T.
OBJECTIONS
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
Notes: NFPA’s standards often
include in-line informational notes
throughout the text of each standard.
The informational notes provide
context, background, crossreferences, and other explanatory
material. For some of our standards,
the text explicitly qualifies the
informational notes as “not
enforceable as requirements.” For
example, article 90-5(C) of the 2014
NEC (NFPA 70) provides:
“Explanatory material, such as
references to other standards,
references to relates sections of this
Code, or information related to a
Code rule, is included in this Code
in the form of informational notes.”
Ex. P at art. 90-5(C) (NFPAPR0098088). As the NEC makes
clear: “such notes are informational
only and are no enforceable as
requirements of this Code.” Id.
(emphasis added). An example of
the type of material written in
informational notes is art. 110-11,
Informational Note No. 2, of the
same publication: “Some cleaning
and lubricating compounds can
cause severe deterioration of many
plastic materials used for insulating
and structural applications in
equipment.” Id. at art. 110-11 n.2
(NFPA- PR0098100). Someone
could paraphrase or use their own
words to describe this same
information, rather than copying
NFPA’s words.

21

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 1002 and 1006 are
inapplicable. The referenced
document is attached to this
declaration, and the declaration is
not intended to prove the content of
the document for the obvious reason
that the document itself is attached.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
d. Diagrams, Figures, and
Illustrations: NFPA’s standards
generally include diagrams, figures,
or illustrations that depict material
set forth in the text of the standard,
but that do not themselves state any
legal duty. For example, in the 2014
NEC, Figure 220.1 provides a
graphical summary of how the text
of Article 220 is organized. Ex. P at
Figure 220.1 (NFPA- PR0098129).
If someone wanted to write their
own description of the
organizational structure of Article
220, that person could do so using
different words or different
illustrations than the one NFPA
created.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

e Examples: NFPA’s standards
generally include non-exhaustive
lists or exemplary
calculations. For example, in the
2014 NEC, article 550.4(A) lists
examples of a mobile home not
intended as a dwelling unit: “those
equipped for sleeping purposes only,
contractor’s on-site offices,
construction job dormitories, mobile
studio dressing rooms, banks,
clinics, mobile stores, or intended
for the display or demonstration of
merchandise or machinery.” Id. at
art. 550.4(A) (NFPA- PR0098568).
These illustrative examples do not
impose any requirement. If
someone wanted to create their own
list of examples of a mobile home
that is not intended as a dwelling
22

PLAINTIFF’S RESPONSE TO
OBJECTIONS

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
unit, that person could come up with
their own examples, could use
different words to describe even the
examples that NFPA provides, and
could list their examples in a
different order.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

f. Informational Annexes: All of the
standards in this litigation, and our
standards generally, include
informational annexes. These
informational annexes typically
provide that they are informational
only, although they can contain a
variety of material. For example,
Annex A to NFPA 13 (2002 ed.),
Installation of Sprinkler Systems, is
entitled “Explanatory Material,”
which states “Annex A is not a part
of the requirements of this NFPA
document but is included for
informational purposes only. This
annex contains explanatory material
numbered to correspond with the
applicable text paragraphs.” Ex. F at
Annex A (NFPA- PR0014507).
Some informational annexes contain
standards that may be binding, but
only if an AHJ specifically
incorporates the informational annex
by reference. For example, Annex H
to NFPA 70 (2014 ed.), the National
Electrical Code, is entitled
“Administration and Enforcement.”
That annex specifically states that it
is “not a part of the requirements of
this NFPA document and is included
for informational purposes only . . .
unless specifically adopted by the
23

PLAINTIFF’S RESPONSE TO
OBJECTIONS

SUPPLEMENTAL
PUBLIC.RESOURCE.ORG’S
DECLARATION OF JAMES T.
OBJECTIONS
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
local jurisdiction adopting the
National Electrical Code®.” Ex. P at
Annex H (NFPA-PR0098919).
g. Proposal Forms: Our standards
generally include information about
the committee process and proposal
forms so the reader can submit
suggested language for future
editions.
29. The non-binding materials I
have described in the preceding
paragraph serves NFPA’s overall
goal of public safety by providing
the ultimate user of the standard—
whether an engineer, contractor,
architect, or anyone else—with
additional references or material
related to the subject of the standard.

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

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

FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal knowledge
about this subject.
FRE 1002 Secondary Evidence. The
witness is testifying about the
contents of a writing. Public
24

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 701/2: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards. Mr. Pauley’s use of the
phrase “non-binding” is based on his
personal knowledge and experience
and does not make his testimony
improper expert opinion.
FRE 1002 and 1006 are
inapplicable. The referenced
document is attached to this
declaration, and the declaration is
not intended to prove the content of
the document for the obvious reason
that the document itself is attached.
FRE 602: This is fact evidence
based on personal knowledge from
Mr. Pauley’s experience and
responsibilities as CEO. Supp.
Pauley Decl. ¶ 1. If necessary,
further foundation for that
knowledge would be presented at
trial.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

Resource also objects under FRE
1006 because this assertion is an
improper summary.
31. In addition, I am aware that after
the D.C. Circuit remand,
Public.Resource.Org re-posted
NFPA’s standards to the Internet
Archive website. Those versions
have received many more views and
downloads since they were reposted.
Anyone can freely download, copy,
print and redistribute these versions
of NFPA’s standards from the
Internet Archive website.

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

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

FRE 402 Relevance. This testimony
is not relevant to the subject matter
of this litigation.

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

FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal knowledge
about this subject, as his need to
refer to someone else’s declaration
demonstrates.
FRE 1002 Secondary Evidence. The
witness is testifying about the
contents of a writing. Public
Resource also objects under FRE
1006 because this assertion is an
improper summary.
25

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 1002/1006: The witness is not
testifying to the contents of a
document. If necessary, the
document can be produced at trial.
FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 1002 and 1006 are
inapplicable. The referenced
document is attached to this
declaration, and the declaration is
not intended to prove the content of
the document for the obvious reason
that the document itself is attached.
FRE 401/402: PRO’s continued use
of NFPA’s logos is relevant to
Plaintiffs’ trademark claims and
their motion for a permanent
injunction.
FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 1002 and 1006 are

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

inapplicable. The referenced
document is attached to this
declaration, and the declaration is
not intended to prove the content of
the document for the obvious reason
that the document itself is attached.
33. NFPA depends on the sale of
standards to fuel its overall missiondriven work. In 2018, NFPA’s
publication sales accounted for
approximately 64% of NFPA’s total
operating revenues. The vast
majority of that revenue is from the
sale of codes and standards,
including those standards that have
been incorporated by reference.

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

26

FRE 403 is inapplicable to bench
trials.
FRE 401/402: The testimony
regarding revenue from standards,
which includes those IBR’d, is
clearly relevant. PRO’s evidentiary
objection is argument that goes to
weight and not admissibility.
FRE 602: This is fact evidence
based on personal knowledge from
Mr. Pauley’s experience and
responsibilities as CEO. Supp.
Pauley Decl. ¶ 1. If necessary,
further foundation for that
knowledge would be presented at
trial.
FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
34. NFPA’s standards are purchased
and used predominantly by industry
professionals and tradespeople
(either individually or by their
companies and organizations) who
use these standards in the course of
their business, such as contractors,
engineers, electricians, architects,
and electrical equipment
manufacturers.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 402 Relevance and 403
Prejudice. The witness has cherrypicked selected persons to highlight
as purchasers and users of NFPA’s
standards, and especially those
standards that are laws by
incorporation, by failing to discuss a
balanced cross-section of purchasers
and users, including (among other
persons with similar needs)
government officials at every level
of government and courts, all of
whom need to know what the law is.
The witness has also blurred the
distinction between NFPA’s works
that have become laws by
incorporation and those that have
not become laws by incorporation in
order to confuse the reader about the
market for laws by incorporation as
distinct from the market for
standards that are not laws by
incorporation.

FRE 403 is inapplicable to bench
trials.

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

27

FRE 401/402: The testimony
regarding individuals who use
NFPA’s standards is clearly
relevant. PRO’s evidentiary
objection is argument that goes to
weight and not admissibility.
FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
35. The versions of our standards
posted by Public.Resource.Org and
available for unrestricted download
and use compete directly with our
standards in the market. If the
professionals and tradespeople are
able to access and download nearlyidentical standards without incurring
any cost through
Public.Resource.Org’s postings to
the Internet Archive, they will not
buy our publications (or use our free
access website, as I discuss more
below). This hurts our revenue and,
in turn, ability to pursue our overall
mission.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 403 is inapplicable to bench
trials. PRO’s evidentiary objection
is argument that goes to weight and
not admissibility.

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

28

FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
36. NFPA also earns significant
revenue from licensing its standards
to other companies and
organizations to use in their
products and services, for example,
derivative works like checklists
based on the standards. Pursuant to
those licenses, NFPA provides
licensees with copies of its standards
or portions thereof in formats that
the licensee may use in conjunction
with software or other forms of
dissemination. NFPA’s licenses
likely would lose significant value if
the licensees or their customers
could obtain the same material from
Public.Resource.Org in digital
format, without cost, and without
restrictions on further dissemination.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 403 Prejudice. The witness has
not provided any foundation for his
theoretical supposition that NFPA’s
“licenses” would lose “significant
value,” especially in light of
NFPA’s failure to prove that Public
Resource’s actual posting of the
standards has caused it any harm.
The witness has blurred the
distinction between NFPA’s works
that have become laws by
incorporation and those that have
not become laws by incorporation in
order to confuse the reader about the
different revenues and license
values of laws by incorporation and
those of standards that have not
become laws by incorporation.

FRE 403 is inapplicable to bench
trials. PRO’s evidentiary objection
is argument that goes to weight and
not admissibility.

FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal knowledge
concerning NFPA’s licensing
practices, nor any basis for opining
on whether such licensing fees
constitute a “significant” source of
revenue for NFPA.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an
expert and therefore cannot testify
as to facts beyond the witness’s
personal knowledge. This assertion
constitutes an improper lay opinion.
FRE 1002 Secondary Evidence. The
witness is testifying about the
contents of a writing. Public
29

FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.
FRE 1002/1006: The witness is not
testifying to the contents of a
document. If necessary, the
document can be produced at trial.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

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

30

PLAINTIFF’S RESPONSE TO
OBJECTIONS

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
37. Public.Resource.Org’s postings
threaten NFPA’s ability to control
the further dissemination and use of
its standards. Because
Public.Resource.Org offers
unrestricted and anonymous access
to NFPA’s standards in multiple
formats (unlike NFPA’s free
access), NFPA has absolutely no
means of tracking down those
individuals who use
Public.Resource.Org’s versions of
NFPA’s standards for their
commercial businesses, or for sale
to other individuals and entities.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

No objection to this statement:
“Public.Resource.Org offers
unrestricted and anonymous access
to NFPA’s standards in multiple
formats (unlike NFPA’s free
access).”

FRE 403 is inapplicable to bench
trials. PRO’s evidentiary objection
is argument that goes to weight and
not admissibility.

FRE 403 Prejudice. The question of
NFPA’s ability to control
dissemination and use of the law is
at issue in this case, and testimony
that there is a “threat” to its control
of the law is improper argument;
moreover, the failure of the witness
to distinguish between the small
number of NFPA standards that are
laws by incorporation, and therefore
at issue in this case, and the much
larger number of NFPA standards
that are not at issue is confusing and
prejudicial.
FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal knowledge
about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an
expert and therefore cannot testify
as to facts beyond the witness’s
personal knowledge. This assertion
constitutes an improper lay opinion.

31

FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
38. Although our revenue is
somewhat cyclical with our
publications (higher when new
publications are released), in recent
years, NFPA’s revenue from the
sale of standards has been declining.
We attribute this decline, at least in
part, to Public.Resource.Org’s
making copies of NFPA’s standards
widely available, including for use
by those same industry professionals
who would otherwise purchase
copies or digital subscription access.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 402 Relevance and FRE 403
Prejudice. Testimony about revenue
from standards that are not laws by
incorporation and are therefore not
in this case is irrelevant, and the
failure of the witness to distinguish
between the small number of NFPA
standards that are laws by
incorporation, and therefore at issue
in this case, and the much larger
number of NFPA standards that are
not at issue is confusing and
prejudicial, especially where the
witness has not provided details
regarding revenue from all standards
(both those that are laws by
incorporation and those that are
not).

FRE 403 is inapplicable to bench
trials.

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

32

FRE 401/402: NFPA’s revenue is
clearly relevant. PRO’s evidentiary
objection is argument that goes to
weight and not admissibility.
FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
39. I understand that
Public.Resource.Org converted
NFPA standards to different formats
and posted those versions on the
internet. The conversion process
inevitably resulted in errors. For
example, I am aware that the full
text version of the 2011 version of
the NEC that was posted to
Public.Resource.Org’s website
contains many errors. These include
many obvious typographical errors,
but they also include errors that
distort the meaning of the standard.
Some of those errors are:

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

No objection to the statement that
Public.Resource.Org converted
standards (only ones that have
become laws by incorporation) to
different formats to make them
available to researchers and to the
print disabled.

FRE 401/402: PRO does not
challenge the factual assertion. This
evidence does not have to be
admissible at trial in its presented
form, instead the correct challenge
from the non-offering party is that
the evidence is not capable of being
presented in an admissible manner
at trial. Fed. R. Civ. P. at 56(c)(2);
Fraser, 342 F.3d at 1036. PRO’s
evidentiary objection is argument
that goes to weight and not
admissibility.

FRE 402 Relevance. The witness’s
understanding is not relevant to any
claim in this litigation.

FRE 403 Prejudice. The witness’s
testimony is prejudicial for claiming
errors in Public Resource’s posting
of standards that existed in NFPA’s
own printing of its standards and for
a. Article 310.10(F) of the 2011
failing to put into context NFPA’s
NEC addresses conductors used in
direct-burial applications, and states: own errors. Where an error is in an
“Cables rated above 2000 volts shall original standard that has become a
law by incorporation, the law by
be shielded.” This requirement that
high- voltage cables in direct-burial incorporation contains the same
applications be shielded is important error.
to prevent damage to the cables and
FRE 602 Lack of Personal
a resulting risk of electrical shock.
Knowledge. The witness has not
This language, however, is
established any personal knowledge
completely omitted from the full
about this subject.
text version that was posted on
Public.Resource.Org’s website.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
b. Article 424.59 of the 2011 NEC
witness has not been qualified as an
states that “heaters installed within
expert and therefore cannot testify
1.2m (4 ft) of the outlet of an airas to facts beyond the witness’s
moving device . . . may require
personal knowledge. This assertion
turning vanes, pressure plates, or
other devices on the inlet side of the constitutes an improper lay opinion.
duct heater to ensure an even
FRE 1002 Secondary Evidence. The
distribution of air over the face of
witness is testifying about the
the heater.” In
33

FRE 403 is inapplicable to bench
trials.
FRE 602: This is fact evidence
based on personal knowledge. Mr.
Pauley is the CEO of NFPA. Supp.
Pauley Decl. ¶ 1. Based on his
experience and responsibilities as
CEO, including overseeing
standards development, he has
personal knowledge regarding the
standards.
FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.
FRE 1002/1006 are inapplicable.
Links to the referenced documents

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
Public.Resource.Org’s full text
version however, the “m”—
representing meters—is incorrectly
rendered as “in”—which represents
inches. In other words, the
Public.Resource.Org version says
that the requirement is only
triggered if a heater is less than 1.2
inches from an air-moving device,
rather than the correct and much
greater distance of 1.2 meters.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

contents of the version of the NEC
published by NFPA and the version
posted on Public Resource’s
website. This is especially
significant here where the content of
the original 2011 NEC has been
amended by several errata which
appear to explain the so-called
errors in the witness’s declaration.
Public Resource also objects under
FRE 1006 because this assertion is
an improper summary.

are provided in footnotes to this
declaration, and the declaration is
not intended to prove the content of
the document for the obvious reason
that the document speaks for itself.
PRO attempts to confuse NFPA’s
duly issued errata (which are
irrelevant here) with PRO’s
uncorrected errors (which are the
point of the declaration). PRO’s
evidentiary objection is argument
that goes to weight and not
admissibility.

c. Article 430.35(B) of the 2011
NEC states that “motor overload
protection shall not be shunted or
cut out during the starting period if
the motor is automatically started”
(emphasis added). Inadequate motor
overload protection can result in
overheating and damage. In
Public.Resource.Org’s full text
version, however, this provision
incorrectly says that motor overload
protection shall not be shunted or
cut out during the “stalling period”
(emphasis added).3
d. There are many typographical
errors in the cross-references in
Public.Resource.Org’s full text
version. In order to understand a
provision of the NEC that contains a
cross-reference, the user must be
able to identify and refer to the
Article identified in that cross
reference. However,
Public.Resource.Org’s full text
version contains many erroneous
cross-references including in
34

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
Articles 310.10(E), 410.140(D),
430.75, 504.70, 645.10(B),
670.3(B), 680.25(B).

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

40. Since 2006, NFPA has offered a
dedicated website that provides free
access to its standards. It has been
and remains committed to providing
the full text of NFPA standards that
have been incorporated by reference
available, without cost, for viewing
on its website.

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

FRE 403 is inapplicable to bench
trials.

35

FRE 401/402: NFPA’s free access
website for IBR’d standards is
clearly relevant. PRO’s evidentiary
objection is argument that goes to
weight and not admissibility.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
41. Each of the 23 standards at issue
in this litigation is available through
a link, and after logging into that
individual’s account, on our free
access website, available at
https://www.nfpa.org/Codes-andStandards/All-Codes-andStandards/Free- access.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 403 is inapplicable to bench
trials.

36

FRE 401/402: NFPA’s making
available the IBR standards via its
free access website is clearly
relevant. PRO’s evidentiary
objection is argument that goes to
weight and not admissibility.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
42. This access ensures that if
someone does not have ready access
to a printed copy of a particular
standard, that person can locate and
read the material that is of interest to
them. Thousands of individuals
access NFPA’s standards through
the free access website each year.
This access is “read only,” meaning
that someone viewing the material
online cannot download, copy, or
disseminate the published standard.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 402 Relevance and FRE 403
Prejudice. The declarant testifies as
to a “free access” website without
revealing that the “free access”
requires entering into a contract by
which a user must waive important
rights and must consent to personal
jurisdiction and venue for litigation
against the user in Norfolk County,
Massachusetts and that the “free
access” does not allow the freedom
to search the text. The user must
also become subject to spam
marketing messages advertising, for
example, that the user needs to
acquire NFPA publications in order
to know the law. There is indeed a
cost for the access.

FRE 403 is inapplicable to bench
trials.

FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal knowledge
about this historical status of
NFPA’s “reading room.” The
witness also lacks personal
knowledge about whether any
member of the public may access
the “reading room.” For example,
people who rely on screen reader
technologies because they have print
disabilities are not able to review the
standards in “read-only” formats.

37

FRE 401/402: NFPA’s making
available the IBR standards via its
free access website is clearly
relevant. PRO’s evidentiary
objection is argument that goes to
weight and not admissibility.
FRE 602: This is fact evidence
based on personal knowledge from
Mr. Pauley’s experience and
responsibilities as CEO. Supp.
Pauley Decl. ¶ 1. If necessary,
further foundation for that
knowledge would be presented at
trial.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
43. We believe that our read only
access appropriately balances our
rights and our need to generate
revenue to pursue our mission with
the desire of others to read the codes
and standards. We also believe that
it is efficient to spread the cost of
the standards development activity
across the world of professionals
who use our standards to do their
jobs such that any one is paying a
reasonable cost (around $100 or
less) for a copy of one of our
standards. I created a video
regarding this balance which is
available on our website at
https://www.nfpa.org/Codes-andStandards/All-Codes-andStandards/Free- access.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 402 Relevance and FRE 403
Prejudice. The declarant provides
argument in the guise of factual
assertions. He also testifies as to
“read-only access” website without
revealing that the “access” requires
entering into a contract by which a
user must waive important rights
and must consent to personal
jurisdiction and venue for litigation
against the user in Norfolk County,
Massachusetts and that the “access”
does not allow the freedom to search
the text or to do other activities that
are normally available with an
electronic document. The user must
also become subject to spam
marketing messages advertising, for
example, that the user needs to
acquire NFPA publications in order
to know the law. There is indeed a
cost for the access. Moreover, the
witness has blurred the distinction
between NFPA’s works that have
become laws by incorporation and
those that have not become laws by
incorporation in order to confuse the
reader as to the amount of revenue
that NFPA receives by controlling
access to laws by incorporation.

FRE 403 is inapplicable to bench
trials.

FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal knowledge
about this historical status of
NFPA’s “reading room.” The
witness also lacks personal
knowledge about whether any
member of the public may access
38

FRE 401/402: NFPA’s making
available the IBR standards via its
free access website is clearly
relevant. PRO’s evidentiary
objection is argument that goes to
weight and not admissibility.
FRE 602: This is fact evidence
based on personal knowledge from
Mr. Pauley’s experience and
responsibilities as CEO. Supp.
Pauley Decl. ¶ 1. If necessary,
further foundation for that
knowledge would be presented at
trial.
FRE 701/702: PRO has not
identified what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

the “reading room.” For example,
people who rely on screen reader
technologies because they have print
disabilities are not able to review the
standards in “read-only” formats.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an
expert and therefore cannot testify
as to facts beyond the witness’s
personal knowledge. This assertion
constitutes an improper lay opinion.

39

PLAINTIFF’S RESPONSE TO
OBJECTIONS

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
44. When NFPA becomes aware of
jurisdictions that incorporate its
standards by reference, NFPA
encourages those jurisdictions to
link their websites to NFPA’s free,
online version of the standards.
NFPA provides a “Free Access
Widget” that easily enables such
access.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 403 is inapplicable to bench
trials.

40

FRE 401/402: NFPA’s making
available the IBR standards via its
free access website is clearly
relevant. PRO’s evidentiary
objection is argument that goes to
weight and not admissibility.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
45. NFPA views this free access as
in furtherance of its overall mission.
Read only access allows any
member of the public wishing to
know what an incorporated standard
says on any topic that may be of
interest to that member of the
public. NFPA’s free access also
encourages increased visits to
NFPA’s website. Users who visit
NFPA’s website may engage with
NFPA on public-safety awareness
efforts, trainings, and publications.
NFPA hopes that these individuals
may someday become members,
contributors, and otherwise involved
in NFPA’s important work.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 403 is inapplicable to bench
trials.

FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal knowledge
about this historical status of
NFPA’s “reading room.” The
witness also lacks personal
knowledge about whether any
member of the public may access
the “reading room.” For example,
people who rely on screen reader
technologies because they have print
disabilities are not able to review the
standards in “read-only” formats.

41

FRE 401/402: NFPA’s making
available the IBR standards via its
free access website is clearly
relevant. PRO’s evidentiary
objection is argument that goes to
weight and not admissibility.
FRE 602: This is fact evidence
based on personal knowledge from
Mr. Pauley’s experience and
responsibilities as CEO. Supp.
Pauley Decl. ¶ 1. If necessary,
further foundation for that
knowledge would be presented at
trial.

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
46. NFPA has also devoted
resources to researching and
consolidating information regarding
which jurisdictions have
incorporated NFPA standards into
local, state, or federal laws or
regulations. This information is
provided as an informational and
educational resource so the public
can know which NFPA standards
govern in particular jurisdictions.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 402 Relevance and FRE 403
Prejudice. NFPA has never
furnished such a complete list of
incorporations of NFPA standards
as laws, and in that context this
statement is strongly prejudicial.
The declarant also presents
argument in the guise of a factual
assertion.

FRE 403 is inapplicable to bench
trials.

FRE 1002 Secondary Evidence. The
witness is testifying about the
contents of a writing. Public
Resource also objects under FRE
1006 because this assertion is an
improper summary. Even the
websites that the declarant identifies
in the next paragraph do not contain
the complete information.

FRE 402 Relevance and FRE 403
Prejudice. NFPA has never
furnished such a complete list of
incorporations of NFPA standards
as laws, and in that context this
statement is strongly prejudicial.
The declarant also presents
argument in the guise of a factual
assertion. Review of the web sites to
which he refers reveals the web sites
to be marketing and sales tools to
promote sale of NFPA’s standards
that have become laws by
incorporation, and they provide no
complete information or even useful
knowledge about the precise
incorporations or their extent.
42

FRE 401/402: NFPA’s
informational resources regarding
IBR status of its standards are
relevant to whether PRO’s
purported purpose is transformative.
PRO’s evidentiary objection is
argument that goes to weight and
not admissibility.
FRE 1002/1006 are inapplicable.
Links to the referenced documents
are provided in the next paragraph
of this declaration, and the
declaration is not intended to prove
the content of the document for the
obvious reason that the document
speaks for itself. PRO’s objection
that those links “do not contain the
complete information” is wrong.
FRE 403 is inapplicable to bench
trials.
FRE 401/402: NFPA’s
informational resources regarding
IBR status of its standards are
relevant to whether PRO’s
purported purpose is transformative.
PRO’s evidentiary objection is
argument that goes to weight and
not admissibility.
FRE 1002/1006 are inapplicable.
Links to the referenced documents
are provided in the next paragraph
of this declaration, and the
declaration is not intended to prove

SUPPLEMENTAL
DECLARATION OF JAMES T.
PAULEY IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

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

43

PLAINTIFF’S RESPONSE TO
OBJECTIONS

the content of the document for the
obvious reason that the document
speaks for itself.

SUPPLEMENTAL
DECLARATION OF
STEPHANIE REINICHE IN
SUPPORT OF PLAINTIFFS’
SECOND MOTION FOR
SUMMARY JUDGMENT AND A
PERMANENT INJUNCTION
3. To further ensure public access,
ASHRAE offers online read-only
access to many of its standardsparticularly those standards that
have been incorporated into codeson the ASHRAE website, available
at https://www.ashrae.org/
technical-resources/ standards-andguidelines/read-only-versions-ofashrae- standards. This portion of
the ASHRAE website allows
viewers to read ASHRAE standards,
including the 2004, 2007, and 2010
versions of Standard 90.1. ASHRAE
feels it is important to provide this
public service so that the public can
have access to authentic versions of
our standards in a format that allows
readers to educate themselves on the
standards but that does not harm
ASHRAE’s business.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 402 Relevance and FRE 403
Prejudice. The witness offers selfserving argument in the guise of
factual assertions offers and
ASHRAE’s self-serving feelings
regarding its motives. Moreover, the
statements are especially prejudicial
without candid disclosure of the
document to which the testimony
refers (also subject to a FRE 1002
objection). The “online read-only
access” is manifestly unusable. To
see the text in context, the text is
illegibly small; if one enlarges the
text to make it legible, one cannot
see a line from margin to margin or
a paragraph from start to finish. One
might as well say that a text is
subject to “public access” if it
delivers one word per click and thus
enables access to an entire document
with merely 20,000 clicks.

FRE 402: Defendant has not
explained how or why this is
unfairly prejudicial. Information
concerning the reading room is
highly relevant to the first fair use
factor, the public interest factor for
injunctive relief, Defendant’s
arguments regarding adequate
access to standards, and Defendant’s
complaint about the costs of
purchasing copies of the standards at
issue. Moreover, the majority of the
“objection” is Defendant’s
substantive response to the
statement and not a proper
evidentiary objection that speaks to
the statements relevance.

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

44

FRE 602: In paragraph 1 of this
declaration, Ms. Reiniche confirms
that she is the Director of
Technology at ASHRAE. She also
confirms that she has worked at
ASHRAE for 16 years, and, as
explained in her deposition, Ms.
Reiniche was formerly the Manager
of Standards at ASHRAE.. As a
result, Ms. Reiniche certainly has
personal knowledge on this topic.
FRE 701/702: Ms. Reiniche’s
testimony is based on personal
perception and personal knowledge
of a product she helps manage. It is
unclear what portion of this
paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
knowledge. When and if Defendant

SUPPLEMENTAL
PUBLIC.RESOURCE.ORG’S
DECLARATION OF
OBJECTIONS
STEPHANIE REINICHE IN
SUPPORT OF PLAINTIFFS’
SECOND MOTION FOR
SUMMARY JUDGMENT AND A
PERMANENT INJUNCTION
FRE 1002 Secondary Evidence. The
witness is testifying about the
contents of a writing. Public
Resource also objects under FRE
1006 because this assertion is an
improper characterization in the
guise of a summary.

45

PLAINTIFF’S RESPONSE TO
OBJECTIONS

identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.
FRE 1002/1006 are inapplicable.
Links to the referenced documents
are provided in the contested
paragraph, and the declaration is not
intended to prove the content of the
document for the obvious reason
that the document speaks for itself.

SUPPLEMENTAL
DECLARATION OF
STEPHANIE REINICHE IN
SUPPORT OF PLAINTIFFS’
SECOND MOTION FOR
SUMMARY JUDGMENT AND A
PERMANENT INJUNCTION
4. Each time new versions of
ASHRAE standards are developed,
ASHRAE offers those standards for
sale. Sales of the standards are an
important piece of ASHRAE’s
yearly revenues. ASHRAE also
relies on membership fees as a
significant source of its revenues,
and a primary driver of
memberships is that members gain
access to ASHRAE standards at a
discount. These sources of revenue
permit ASHRAE to keep operating
and developing new standards. As
stated above, ASHRAE also makes
new versions of many of its
standards available for read-only
access on its website. ASHRAE
does not believe it is harmed by
operating the reading room or that
the reading room significantly
compromises ASHRAE’s ability to
generate revenue. Instead, the
reading room allows for ASHRAE
to maintain control over its
standards and insure use in ways
that benefit ASHRAE. For instance,
a user that samples the standard on
the ASHRAE site may decide they
prefer a mobile version of the
standard to take to a construction
job site; since the free version is
read-only, that user would then buy
a copy of the standard. For users
that are content viewing the standard
on the website, it still provides
ASHRAE an opportunity to expose
that individual to other products
offered by ASHRAE, including by

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 402 Relevance and 403
Prejudice. The witness offers
argument in the guise of factual
assertions. The witness also testifies
about ASHRAE standards generally
without distinguishing between the
standards at issue in this case, which
are laws by incorporation, and other
standards that are not laws by
incorporation, thereby creating
confusion on the question of the
importance of revenues from laws
by incorporation. Moreover, the
statements are especially prejudicial
without candid disclosure of the
document to which the testimony
refers (also subject to a FRE 1002
objection). The “online read-only
access” is manifestly unusable. To
see the text in context, the text is
illegibly small; if one enlarges the
text to make it legible, one cannot
see a line from margin to margin or
a paragraph from start to finish. One
might as well say that a text is
subject to “public access” if it
delivers one word per click and thus
enables access to an entire document
with merely 20,000 clicks.

FRE 402: Defendant has not
explained how or why this is
irrelevant or unfairly prejudicial.
Instead, the “objection” is
Defendant’s substantive response to
the statement and not a proper
evidentiary objection that speaks to
the statements relevance.
Information concerning ASHRAE’s
business model and that it makes its
standards publicly available is
plainly relevant to both Defendant’s
fair use defense and Plaintiff’s
request for a permanent injunction,
both of which require looking at the
economic impact of Defendant’s
actions.

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

FRE 701/702: Ms. Reiniche’s
testimony is based on personal
perception and personal knowledge
of a product she helps manage (the
reading room) and the business
model of an organization which she
has worked at n high level positions
for 13 years. It is unclear what
portion of this paragraph is allegedly

FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as an
expert and therefore cannot testify
46

FRE 602: In paragraph 1 of this
declaration, Ms. Reiniche confirms
that she is the Director of
Technology at ASHRAE. She also
confirms that she has worked at
ASHRAE for 16 years, and, as
explained in her deposition, Ms.
Reiniche was formerly the Manager
of Standards at ASHRAE.. As a
result, Ms. Reiniche certainly has
personal knowledge on this topic.

SUPPLEMENTAL
DECLARATION OF
STEPHANIE REINICHE IN
SUPPORT OF PLAINTIFFS’
SECOND MOTION FOR
SUMMARY JUDGMENT AND A
PERMANENT INJUNCTION
promoting trainings, conferences,
and certifications offered on the
ASHRAE website.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

as to facts beyond the witness’s
personal knowledge. This assertion
constitutes an improper lay opinion.

expert opinion or otherwise
constitutes facts beyond this
witness’s personal knowledge.
When and if Defendant identifies
any specific testimony, Plaintiffs
reserve the right to respond to any
identification.

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

47

FRE 1002/1006 are inapplicable—
this paragraph does not even
reference a document. To the extent
Defendant is objecting because there
is a mention of ASHRAE’s reading
room, links to the referenced portion
of the reading room are provided in
the preceding paragraph of the
declaration, and the declaration is
not intended to prove the content of
the document for the obvious reason
that the document speaks for itself.

SUPPLEMENTAL
DECLARATION OF
STEPHANIE REINICHE IN
SUPPORT OF PLAINTIFFS’
SECOND MOTION FOR
SUMMARY JUDGMENT AND A
PERMANENT INJUNCTION
5. Unlike ASHRAE’s read-only
versions of the standards, ASHRAE
believes that versions provided for
free (in a downloadable or printable
format) by others are harmful to
ASHRAE’s business. When a thirdparty, like Public.Resource.Org,
purports to offer the exact same
standard for free online, ASHRAE
believes that provides ASHRAE’s
target market, which includes
builders, contractors, and architects,
with free access to products they
would otherwise purchase from
ASHRAE. These potential
customers can now use printed
versions of the ASHRAE standards
without paying ASHRAE and
without interacting with the
ASHRAE website.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 402 Relevance and FRE 403
Prejudice. The witness offers
argument in the guise of factual
assertions. Moreover, the testimony
wrongly cherry-picks the “target
market” of ASHRAE’s standards
and omits reference to the many
government officials (including
courts) that may need to consult
laws by incorporation in order to
know what the law is. Testimony
about what ASHRAE believes is
harmful, and about its speculation, is
prejudicial where, as here,
ASHRAE has not identified any
actual harm arising from Public
Resource’s activities in this case.

FRE 402: Defendant’s “objection”
is nothing more than a substantive
response to the statement and not a
proper evidentiary objection that
speaks to the statements relevance.
Information concerning harm caused
to ASHRAE by Defendant is plainly
relevant to both Defendant’s fair use
defense and Plaintiff’s request for a
permanent injunction, both of which
require looking at the economic
impact of Defendant’s actions.

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

48

FRE 602: In paragraph 1 of this
declaration, Ms. Reiniche confirms
that she has worked at ASHRAE for
16 years in high-level positions.
She is testifying about a believe held
by ASHRAE, in the context of a
declaration that ASHRAE
authorized her to make, which is
based on her vast experience at the
company.
FRE 701/702: Ms. Reiniche’s
testimony is based on personal
perception and personal knowledge
gained at working at ASHRAE for
16 years. It is unclear what portion
of this paragraph is allegedly expert
opinion or otherwise constitutes
facts beyond this witness’s personal
perception. When and if Defendant
identifies any specific testimony,
Plaintiffs reserve the right to
respond to any identification.
FRE 1002/1006 are inapplicable—
this paragraph does not even

SUPPLEMENTAL
PUBLIC.RESOURCE.ORG’S
DECLARATION OF
OBJECTIONS
STEPHANIE REINICHE IN
SUPPORT OF PLAINTIFFS’
SECOND MOTION FOR
SUMMARY JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

reference a document. When and if
Defendant identifies a document
that is being improperly
characterized, Plaintiffs reserve the
right to respond to any
identification.

49

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION
8. ASTM offers a variety of onsite or in-person
training courses, including:

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal
a. Since at least 1996, ASTM has offered an in- knowledge about this subject.
person training course on Diesel Fuels:
FRE 1002 Secondary Evidence.
Specifications and Test Methods. The course
The witness is testifying about the
materials include: ASTM’s D86, D975,
contents of a writing. Public
D1266, D1552, D2622, D3120, D4177, and
Resource also objects under FRE
D4294. Attached as Exhibit 1 is a true and
1006 because this assertion is an
correct copy of the description of ASTM’s
Diesel Fuels: Specifications and Test Methods improper summary.
course available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+28+traindetail.frm.
b. Since at least 1996, ASTM has offered an
in- person training course on Gasoline:
Specifications, Testing, and Technology. The
course materials include ASTM’s D86.
Attached as Exhibit 2 is a true and correct copy
of the description of ASTM’s Gasoline:
Specifications, Testing, and Technology
available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+4+traindetail.frm.
c. Since at least 1996, ASTM has offered a
two- day, on-site training course on Textiles:
Quality and Performance Standards. The
course materials include ASTM’s D5489.
Attached as Exhibit 3 is a true and correct copy
of the description of ASTM’s Textiles course
available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+25+traindetail.frm.

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
In paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in
his declaration are based on
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American
Society for Testing and
Materials. Paragraphs 4-7
of the Thomas declaration
describe the type of training
courses ASTM offers, who
their target audiences are,
and what materials come
with its training courses.
Defendant does not object
to paragraphs 4-7 of the
Thomas declaration. As
paragraphs 3-7 suggest, Mr.
Thomas has personal
knowledge of the training
courses ASTM offers and
what course materials are
included in those courses.
FRE 1002 is inapplicable.
The referenced documents
are attached to this
declaration.
To the extent paragraph 8 is
a summary of the websites
cited therein, it is unclear
what about it is allegedly
improper. Exhibits 1-6 are
29 pages long, including
cover pages, and reference
anywhere from 11 to more
than 50 ASTM standards.

d. Since at least 1997, ASTM has offered a
three-day, in-person training course on Marine
Fuels: Specifications, Testing, Purchase, and
Use. The course materials include D1298, and
D4294. Attached as Exhibit 4 is a true and
correct copy of the description of ASTM’s
50

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION
Marine Fuels course available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+18+traindetail.frm.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
Moreover, Plaintiffs have
complied with FRE 1006
by attaching copies of these
websites as Exhibits 1-6 to
the Thomas declaration.

e. ASTM’s Fuels Technology course is a fiveday, in-person training. The course materials
include: ASTM D86, D975, D1298, and
D4294. Attached as Exhibit 5 is a true and
correct copy of the description of ASTM’s
Fuels Technology course available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+392+traindetail.frm.

When and if Defendant
identifies a more specific
FRE 1006 objection,
Plaintiffs reserve the right
to respond.

f. ASTM’s Crude Oil: Sampling, Testing and
Evaluation course is a three-day, in-person
training. The course materials include: D1298,
D2622, D4177, and D4294. Attached as
Exhibit 6 is a true and correct copy of the
description of ASTM’s Crude Oil course
available at
https://www.astm.org/TRAIN/filtrexx40.cgi?P+ID+51+traindetail.frm.

51

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION
9. Similarly, ASTM includes its standards as
reference material for its e-learning modules,
including:
a. ASTM’s #2 Diesel Fuel Certificate Program
includes video demonstrations, checklists,
presentations, data sheets and glossaries
designed to address the 24 standards in the
program, including D86, D1298, D2622, and
D4294. Each of the 24 standards has its own
learning module, and a copy of the standard is
included in the price of the training. Attached
as Exhibit 7 is a true and correct copy of the
description of ASTM’s #2 Diesel Fuel
Certificate Program available at
https://www.astm.org/TRAIN/train_136.htm.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS

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

In paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in
his declaration are based on
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American
Society for Testing and
Materials. Paragraphs 4-7
of the Thomas declaration
describe the type of training
courses ASTM offers, who
their target audiences are,
and what reference
materials come with its
training courses.
Defendant does not object
to paragraphs 4-7 of the
Thomas declaration. As
paragraphs 3-7 suggest, Mr.
Thomas has personal
knowledge of the e-learning
modules ASTM offers and
what materials are included
in those courses.

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

b. ASTM’s Petroleum Lab Technician Series is
a series of e-learning courses. The training
bundle includes a training module on ASTM’s
D611. The e-learning module includes ASTM
D611 as reference material for the course.
Attached as Exhibit 8 is a true and correct copy
of the description of ASTM’s Petroleum Lab
Technician Series available at
https://www.astm.org/TRAIN/train_226.htm.
c. ASTM’s e-Learning module on ASTM E23
Standard Test Methods for Notched Bar impact
testing of Metallic Materials, which includes a
copy of ASTM E23. Attached as Exhibit 9 is a
true and accurate copy of the description of
ASTM’s e-Learning module on E23 Standard
Test Methods available at
https://www.astm.org/TRAIN/filtrexx40.cgi?+P+ID+224+traindetail.frm.

FRE 1002 is inapplicable.
The referenced documents
are attached to this
declaration.
To the extent paragraph 9 is
a summary of the websites
cited therein, it is unclear
what about it is allegedly
improper. Moreover,
Plaintiffs have complied
with FRE 1006 by
attaching copies of these
52

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
websites as Exhibits 7-9 to
the Thomas declaration.
When and if Defendant
identifies a more specific
FRE 1006 objection,
Plaintiffs reserve the right
to respond.

10. Unlike ASTM, ASTM’s competitors
typically cannot and do not provide copies of
ASTM’s standards to their customers, at least
in part because ASTM’s competitors are
prohibited from reproducing ASTM’s
standards without acquiring a license from
ASTM. As a result, ASTM’s ability to offer
excerpts or copies of its standards with its
training courses gives ASTM an advantage
over its competitors.

FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as
an expert and therefore cannot
testify as to facts beyond the
witness’s personal knowledge.
This assertion constitutes an
improper lay opinion.
53

In paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in
his declaration are based on
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American
Society for Testing and
Materials. Paragraphs 4-7
of the Thomas declaration

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
describe the type of training
courses ASTM offers, who
their target audiences are,
and what reference
materials come with its
training courses.
Defendant does not object
to paragraphs 4-7 of the
Thomas declaration.
Under these circumstances,
there is no basis for
Defendant’s suggestion that
Mr. Thomas lacks personal
knowledge regarding what
ASTM’s competitors
typically provide and what
ASTM’s advantages are
over its competitors.
Mr. Thomas’s testimony is
based on personal
perception based on his
experience with ASTM.
He does not offer an expert
opinion that runs afoul of
Rule 701. It is unclear
what portion of this
paragraph is allegedly
expert opinion or otherwise
constitutes facts beyond
this witness’s personal
knowledge. When and if
Defendant identifies any
specific testimony,
Plaintiffs reserve the right
to respond to any
identification.

54

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION
11. If ASTM was unable to fund its standard
development through the sale of its
copyrighted standards, ASTM could not fund
its standards development mission. The
revenues associated with ASTM’s training
program could not compensate for the loss of
such revenue to fund the cost of ASTM’s
standard development expenses.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS

FRE 402 Relevance and FRE 403
Prejudice. The witness offers
argument in the guise of factual
assertions. The statements are also
prejudicial because in discussing
ASTM’s revenue they do not
distinguish between ASTM’s
standards that have become laws
by incorporation (and are at issue
in this case) from those standards
that have not become laws by
incorporation, creating confusion
regarding the necessity of
revenues from laws by
incorporation.

The effect of ASTM’s
inability to sell its
copyright standards is
relevant at least to the
fourth fair use factor and
the irreparable harm and
public interest factors for
injunctive relief.

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

Defendant has not shown
any prejudicial effect or
real risk of confusion,
especially in light of the
fact that this is a bench trial
and therefore there is no
risk of unfair prejudice or
confusion.
Defendant’s counter
assertions regarding
ASTM’s revenue is a
substantive response not an
evidentiary objection and is
substantively responded to
in Plaintiff’s Reply in
Support of its Motion for
Summary Judgment and/or
Plaintiffs’ Response to
Defendant’s Statement of
Disputed Facts.
This is a fact based on
personal knowledge and, if
necessary, further
foundation for that
knowledge would be
presented at trial. In
paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in
his declaration are based on

55

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American
Society for Testing and
Materials. Under these
circumstances, there is no
basis for Defendant’s
suggestion that Mr. Thomas
lacks personal knowledge
regarding the impact a loss
of revenue would have on
ASTM.
Mr. Thomas’s testimony is
based on personal
perception based on his
experience with ASTM.
He does not offer an expert
opinion that runs afoul of
Rule 701. It is unclear
what portion of this
paragraph is allegedly
expert opinion or otherwise
constitutes facts beyond
this witness’s personal
knowledge. When and if
Defendant identifies any
specific testimony,
Plaintiffs reserve the right
to respond to any
identification.

56

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION
12. ASTM provides free, read-only access to
view incorporated standards online in its
Reading Room. ASTM views this information
as educational and central to its overall
mission.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS

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

Defendant has not
explained how this is
unfairly prejudicial. It is
highly relevant to the first
fair use factor, the public
interest factor for injunctive
relief, Defendant’s
arguments regarding
access, Defendant’s
complaints about ASTM’s
Reading Room, and
Defendant’s complaint
about the costs of
purchasing copies of the
standards at issue from
ASTM.

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

Defendant’s counter
assertions regarding
ASTM’s Reading Room is
a substantive response not
an evidentiary objection
and is substantively
responded to in Plaintiff’s
Reply in Support of its
Motion for Summary
Judgment and/or Plaintiffs’
Response to Defendant’s
Statement of Disputed
Facts.
These statements are facts
based on personal
knowledge and, if
necessary, further
foundation for that
knowledge would be
presented at trial. In
paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in

57

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
his declaration are based on
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American
Society for Testing and
Materials. Under these
circumstances, there is no
basis for Defendant’s
suggestion that Mr. Thomas
lacks personal knowledge
regarding accessibility of
ASTM’s standards and
ASTM’s mission.
Mr. Thomas’s testimony is
based on personal
perception based on his
experience with ASTM.
He does not offer an expert
opinion that runs afoul of
Rule 701. It is unclear
what portion of this
paragraph is allegedly
expert opinion or otherwise
constitutes facts beyond
this witness’s personal
knowledge. When and if
Defendant identifies any
specific testimony,
Plaintiffs reserve the right
to respond to any
identification.

58

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION
13. However, the provision of this free
resource does not compete with ASTM’s sale
of ASTM’s standards because the standards
available in the Reading Room are carefully
restricted to prevent download or copying.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS

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

Defendant has not
explained how this is
unfairly prejudicial. It is
highly relevant to at least
the first and fourth fair use
factors.

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

59

Defendant’s counter
assertions regarding
ASTM’s Reading Room is
a substantive response not
an evidentiary objection
and is substantively
responded to in Plaintiff’s
Reply in Support of its
Motion for Summary
Judgment and/or Plaintiffs’
Response to Defendant’s
Statement of Disputed
Facts.
This is a fact based on
personal knowledge and, if
necessary, further
foundation for that
knowledge would be
presented at trial. In
paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in
his declaration are based on
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American
Society for Testing and
Materials. Under these
circumstances, there is no
basis for Defendant’s
suggestion that Mr. Thomas

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
lacks personal knowledge
regarding Reading Room
restrictions or the effect of
the Reading Room on
ASTM’s sales.
Mr. Thomas’s testimony is
based on personal
perception based on his
experience with ASTM.
He does not offer an expert
opinion that runs afoul of
Rule 701. It is unclear
what portion of this
paragraph is allegedly
expert opinion or otherwise
constitutes facts beyond
this witness’s personal
knowledge. When and if
Defendant identifies any
specific testimony,
Plaintiffs reserve the right
to respond to any
identification.

60

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION
14. Although industry professionals and
tradespeople who purchase ASTM’s standards
to use in the course of their work might
reference the ASTM’s Reading Room, it is not
a substitute for purchasing a copy.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS

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

Defendant has not
explained how this is
unfairly prejudicial. It is
highly relevant to at least
the first and fourth fair use
factors.

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

61

Defendant’s counter
assertions regarding
ASTM’s Reading Room is
a substantive response not
an evidentiary objection
and is substantively
responded to in Plaintiff’s
Reply in Support of its
Motion for Summary
Judgment and/or Plaintiffs’
Response to Defendant’s
Statement of Disputed
Facts.
This is a fact based on
personal knowledge and, if
necessary, further
foundation for that
knowledge would be
presented at trial. In
paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in
his declaration are based on
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American
Society for Testing and
Materials. Under these
circumstances, there is no
basis for Defendant’s
suggestion that Mr. Thomas

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
lacks personal knowledge
regarding the effect of the
Reading Room on ASTM’s
sales.

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

FRE 402 Relevance and FRE 403
Prejudice. The statements are selfserving argument in the guise of
factual assertions. Moreover, the
statements are misleading and
prejudicial in this context without
disclosing that the “free” access
requires creation of an account
and the surrender of personal
information by a user and also
limits normal tools persons use to
navigate through electronic
documents. The statements also
fail to provide the context of
ASTM’s explicit efforts to make
the reading room “user
unfriendly.”
FRE 602 Lack of Personal
62

Mr. Thomas’s testimony is
based on personal
perception based on his
experience with ASTM.
He does not offer an expert
opinion that runs afoul of
Rule 701. It is unclear
what portion of this
paragraph is allegedly
expert opinion or otherwise
constitutes facts beyond
this witness’s personal
knowledge. When and if
Defendant identifies any
specific testimony,
Plaintiffs reserve the right
to respond to any
identification.
Defendant has not
explained how this is
unfairly prejudicial. It is
highly relevant to at least
the first and fourth fair use
factors.
Defendant’s counter
assertions regarding
ASTM’s Reading Room is
a substantive response not
an evidentiary objection
and is substantively
responded to in Plaintiff’s
Reply in Support of its
Motion for Summary
Judgment and/or Plaintiffs’
Response to Defendant’s
Statement of Disputed

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS

Knowledge. The witness has not
established any personal
knowledge about this subject.

Facts.

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

This is a fact based on
personal knowledge and, if
necessary, further
foundation for that
knowledge would be
presented at trial. In
paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in
his declaration are based on
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American
Society for Testing and
Materials. Under these
circumstances, there is no
basis for Defendant’s
suggestion that Mr. Thomas
lacks personal knowledge
regarding ASTM’s use of
the Reading Room for
promotional purposes.
Mr. Thomas’s testimony is
based on personal
perception based on his
experience with ASTM.
He does not offer an expert
opinion that runs afoul of
Rule 701. It is unclear
what portion of this
paragraph is allegedly
expert opinion or otherwise
constitutes facts beyond
this witness’s personal
knowledge. When and if
Defendant identifies any

63

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
specific testimony,
Plaintiffs reserve the right
to respond to any
identification.

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

FRE 402 Relevance and FRE 403
Prejudice. The statements are also
prejudicial because in discussing
ASTM’s revenue they do not
distinguish between ASTM’s
standards that have become laws
by incorporation (and are at issue
in this case) from those standards
that have not become laws by
incorporation, creating confusion
regarding the importance of
revenues from laws by
incorporation.
FRE 602 Lack of Personal
Knowledge. The witness has not
established any personal
knowledge about this subject.
FRE 701/2 Improper Opinion and
Unqualified Expert Opinion. The
witness has not been qualified as
an expert and therefore cannot
64

Defendant’s direct
competition with ASTM’s
sales is highly relevant to at
least the fourth fair use
factor and irreparable harm
factor for injunctive relief.
Defendant has not shown
any prejudicial effect or
real risk of confusion,
especially in light of the
fact that this is a bench trial
and therefore there is no
risk of unfair prejudice or
confusion.
Defendant’s counter
assertions regarding
ASTM’s revenue is a
substantive response not an
evidentiary objection and is
substantively responded to
in Plaintiff’s Reply in

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS

testify as to facts beyond the
witness’s personal knowledge.
This assertion constitutes an
improper lay opinion.

Support of its Motion for
Summary Judgment and/or
Plaintiffs’ Response to
Defendant’s Statement of
Disputed Facts.
In paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in
his declaration are based on
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American
Society for Testing and
Materials. Under these
circumstances, there is no
basis for Defendant’s
suggestion that Mr. Thomas
lacks personal knowledge
regarding how Defendant’s
provision of unrestricted,
downloadable PDF and
HTML copies of ASTM’s
standards directly competes
with ASTM’s sales. If
necessary, further
foundation for that
knowledge would be
presented at trial.
Mr. Thomas’s testimony is
based on personal
perception based on his
experience with ASTM. He
does not offer an expert
opinion that runs afoul of
Rule 701. It is unclear
what portion of this
paragraph is allegedly

65

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
expert opinion or otherwise
constitutes facts beyond
this witness’s personal
knowledge. When and if
Defendant identifies any
specific testimony,
Plaintiffs reserve the right
to respond to any
identification.

17. The harm resulting from Public Resource’s
posting and dissemination of such unrestricted
copies of ASTM’s works for free is not limited
to the exact version of the ASTM work Public
Resource copies. For many users, prior
versions of ASTM’s works may be a perfect or
near perfect substitute that interferes with the
market for the current version of ASTM’s
standards.

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

66

Defendant has not
explained how this is
unfairly prejudicial. It is
highly relevant to at least
the first, third, and fourth
fair use factors and the
irreparable harm factor for
injunctive relief.
This is a fact based on
personal knowledge and, if
necessary, further
foundation for that
knowledge would be
presented at trial. In
paragraph 2 of his
declaration, Mr. Thomas
confirms that this statement
and all other statements in
his declaration are based on
his personal knowledge. In
paragraph 3, Mr. Thomas
confirms that he is Vice
President, Sales &
Marketing for American

DECLARATION OF JAMES S. THOMAS
IN SUPPORT OF PLAINTIFFS’ SECOND
MOTION FOR SUMMARY JUDGMENT
AND A PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S
RESPONSE TO
OBJECTIONS
Society for Testing and
Materials. Under these
circumstances, there is no
basis for Defendant’s
suggestion that Mr. Thomas
lacks personal knowledge
regarding how Defendant’s
provision of unrestricted,
downloadable PDF and
HTML copies of ASTM’s
standards interferes with
the market for the current
version of ASTM’s
standards.
Mr. Thomas’s testimony is
based on personal
perception based on his
experience with ASTM.
He does not offer an expert
opinion that runs afoul of
Rule 701. It is unclear
what portion of this
paragraph is allegedly
expert opinion or otherwise
constitutes facts beyond
this witness’s personal
knowledge. When and if
Defendant identifies any
specific testimony,
Plaintiffs reserve the right
to respond to any
identification.

67

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
2. Attached as Exhibit 1 is a true
and correct copy of excerpts from
Part 24 of the 1967 Annual Book of
ASTM Standards showing ASTM
D1335-67. The copyright
registration for Part 24 of the 1967
Book of ASTM Standards that
identifies ASTM as the owner is
attached as Exhibit 74.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
68

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
PRO does not explain its FRE 402
relevance objection.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

32. Attached as Exhibit 31 is a true
and correct copy of the registration
certificate numbered TX 4-873-764
obtained from the Copyright Office
for Volume 1.04 of the 1999Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO

69

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

70

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
34. Attached as Exhibit 33 is a true
and correct copy of the registration
certificate numbered TX 7-685-938
obtained from the Copyright Office
for A106/A106M that identifies
ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
71

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

72

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

73

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
38. Attached as Exhibit 37 is a true
and correct copy of the registration
certificate numbered TX 4-083-251
obtained from the Copyright Office
for Volume 1.01 of the 1995 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

39. Attached as Exhibit 38 is a true
and correct copy of the registration
certificate numbered TX 4-029-508
obtained at my direction from the
Copyright Office for Volume 1.03
of the 1995 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
74

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

75

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

76

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
42. Attached as Exhibit 41 is a true
and correct copy of the registration
certificate numbered A 0-721-891
obtained from the Copyright Office
for Part 4 of the 1976 Annual Book
of ASTM Standards that identifies
ASTM as the owner of the
copyright. These photos fairly and
accurately depict the appearance of
the registration certificate for A 0721-891.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
77

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

78

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

45. Attached as Exhibit 44 is a true
and correct copy of the registration
certificate numbered A 0-316-410
obtained from the Copyright Office
for Part 4 of the 1972 Annual Book
of ASTM Standards that identifies
ASTM as the owner of the
copyright. These photos fairly and
accurately depict the appearance of
the registration certificate for A 0316-410.

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

79

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
46. Attached as Exhibit 45 is a true
and correct copy of the registration
certificate numbered TX 3-614-178
obtained from the Copyright Office
for Volume 2.01 of the 1993 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
80

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

81

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

82

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
50. Attached as Exhibit 49 is a true
and correct copy of the registration
certificate numbered TX 4-737-834
obtained from the Copyright Office
for Volume 2.01 of the 1998 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
83

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

84

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

53. Attached as Exhibit 52 is a true
and correct copy of the registration
certificate numbered TX 4-768-932
obtained from the Copyright Office
for Volume 2.02 of the 1998 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

85

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
54. Attached as Exhibit 53 is a true
and correct copy of the registration
certificate numbered TX 0-648-336
obtained from the Copyright Office
for Part 8 of the 1980 Annual Book
of ASTM Standards that identifies
ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
86

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

87

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

88

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
58. Attached as Exhibit 57 are true
and correct copy the registration
certificate numbered TX 7- 685-927
for ASTM C150 that identifies
ASTM as the owner.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
89

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

60. Attached as Exhibit 59 is a true
and correct copy of the registration
certificate numbered TX 2-984-931
obtained from the Copyright Office
for Volume 4.06 of the 1990 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

90

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

91

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
62. Attached as Exhibit 61 is a true
and correct copy of the registration
certificate numbered TX 1-696-496
obtained from the Copyright Office
for Volume 9.02 of the 1985 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
92

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

93

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

94

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
66. Attached as Exhibit 65 is a true
and correct copy of the registration
certificate numbered A 0-176-757
obtained from the Copyright Office
for Part 28 of the 1970 Annual Book
of ASTM Standards that identifies
ASTM as the owner of the
copyright. These photos fairly and
accurately depict the appearance of
the registration certificate for A 0176-757.

67. Attached as Exhibit 66 is a true
and correct copy of the registration
certificate numbered TX 4-223-325
obtained from the Copyright Office
for Volume 5.01 of the 1996 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
95

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

96

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

97

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
70. Attached as Exhibit 69 is a true
and correct copy of the registration
certificate numbered TX 4-145-800
obtained from the Copyright Office
for Volume 9.01 of the 1995 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
98

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

99

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

100

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
74. Attached as Exhibit 73 is a true
and correct copy of the registration
certificate numbered TX 5-071-596
obtained from the Copyright Office
for Volume 5.01 of the 2000 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

75. Attached as Exhibit 74 is a true
and correct copy of the registration
certificate numbered A 0-942-436
for Part 24 of the 1967 Book of
ASTM Standards that identifies
ASTM as the owner of the
copyright. These photos fairly and
accurately depict the appearance of
the registration certificate for A 0942-436.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
101

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

102

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

103

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
78. Attached as Exhibit 77 is a true
and correct copy of the registration
certificate numbered TX 2-814-346
obtained from the Copyright Office
for Volume 6.01 of the 1990 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
104

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

105

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

81. Attached as Exhibit 80 is a true
and correct copy of the registration
certificate numbered TX 4-497-876
obtained from the Copyright Office
for Volume 11.02 of the 1997
Annual Book of ASTM Standards
that identifies ASTM as the owner
of the copyright.

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

106

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
82. Attached as Exhibit 81 is a true
and correct copy of the registration
certificate numbered TX 4-557-835
obtained from the Copyright Office
for Volume 5.05 of the 1997 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
107

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

108

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

109

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
86. Attached as Exhibit 85 is a true
and correct copy of the registration
certificate numbered TX 3-450-603
obtained from the Copyright Office
for Volume 5.02 of the 1992 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
110

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

88. Attached as Exhibit 87 is a true
and correct copy of the registration
certificate numbered TX 4-951-524
obtained from the Copyright Office
for Volume 5.05 of the 1999 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

111

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

112

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
90. Attached as Exhibit 89 is a true
and correct copy of the registration
certificate numbered TX 3-512-412
obtained from the Copyright Office
for Volume 5.01 of the 1993 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
113

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

114

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

115

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
94. Attached as Exhibit 93 is a true
and correct copy of the registration
certificate numbered TX 4-920-028
obtained from the Copyright Office
for Volume 11.01 of the 1999
Annual Book of ASTM Standards
that identifies ASTM as the owner
of the copyright.

95. Attached as Exhibit 94 is a true
and correct copy of the registration
certificate numbered TX 4-622-434
obtained from the Copyright Office
for Volume 5.02 of the 1998 Annual
Book of ASTM Standards that
identifies ASTM as the owner of the
copyright.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
116

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

117

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

118

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
98. Attached as Exhibit 97 is a true
and correct copy of the registration
certificate numbered TX 3-553-811
obtained from the Copyright Office
for Volume 11.02 of the 1993
Annual Book of ASTM Standards
that identifies ASTM as the owner
of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
119

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

120

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

121

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
102. Attached as Exhibit 101 is a
true and correct copy of the
registration certificate numbered TX
4-248-138 obtained from the
Copyright Office for Volume 5.03
of the 1996 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, this states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
122

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

123

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

124

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
106. Attached as Exhibit 105 is a
true and correct copy of the
registration certificate numbered TX
4-787-691 obtained from the
Copyright Office for Volume 11.03
of the 1998 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
125

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

126

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

127

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
110. Attached as Exhibit 109 is a
true and correct copy of the
registration certificate numbered TX
0-988-070 obtained from the
Copyright Office for Part 10 of the
1982 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

111. Attached as Exhibit 110 is a
true and correct copy of the
registration certificate numbered
TX-3-135-932 obtained from the
Copyright Office for Volume 2.03
of the 1991 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
128

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

129

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

130

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
114. Attached as Exhibit 113 is a
true and correct copy of the
registration certificate numbered TX
1-210-036 obtained from the
Copyright Office for Volume 12.02
of the 1983 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
131

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

132

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

133

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
118. Attached as Exhibit 117 is a
true and correct copy of the
registration certificate numbered TX
0-565-132 obtained from the
Copyright Office for Part 10 of the
1980 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
134

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

135

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

136

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
122. Attached as Exhibit 121 is a
true and correct copy of the
registration certificate numbered TX
2-407-753 obtained from the
Copyright Office for Volume 11.04
of the 1988 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
137

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

138

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

139

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
126. Attached as Exhibit 125 is a
true and correct copy of the
registration certificate numbered TX
0-565-140 obtained from the
Copyright Office for Part 46 of the
1980 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
140

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

141

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

142

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
130. Attached as Exhibit 129 is a
true and correct copy of the
registration certificate numbered TX
4-126-631 obtained from the
Copyright Office for Volume 11.04
of the 1995 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
143

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

144

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

133. Attached as Exhibit 132 is a
true and correct copy of the
registration certificate numbered TX
2-046-852 obtained from the
Copyright Office for Volume 1.02
of the 1987 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

145

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
134. Attached as Exhibit 133 is a
true and correct copy of the
registration certificate numbered TX
3-524-687 obtained from the
Copyright Office for Volume 1.07
of the 1993 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
146

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

147

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

148

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
138. Attached as Exhibit 137 is a
true and correct copy of the
registration certificate numbered TX
7-763-690 for ASTM F1193
obtained from the Copyright Office
that identifies ASTM as the owner
of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
149

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

150

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

151

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
142. Attached as Exhibit 141 is a
true and correct copy of the
registration certificate numbered TX
3-614-184 obtained from the
Copyright Office for Volume 14.02
of the 1993 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
152

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

144. Attached as Exhibit 143 is a
true and correct copy of the
registration certificate numbered TX
4-029-465 obtained from the
Copyright Office for Volume 1.07
of the 1995 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

153

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

154

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
146. Attached as Exhibit 145 is a
true and correct copy of the
registration certificate numbered TX
3-114-937 obtained from the
Copyright Office for Volume 8.03
of the 1991 Annual Book of ASTM
Standards that identifies ASTM as
the owner of the copyright.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
155

The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.

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

The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.
FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round

156

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

of summary judgment motions, see
Dkt. 121-4.

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

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

FRE 701 is not applicable. The
declaration attaches a copyright
registration certificate that, as
explained in Plaintiffs’ Second
Statement of Material Facts, is
evidence of ownership. PRO’s
“legal opinion” objection is just a
summary of its “ownership”
argument.
The Court has already found that
“Defendant failed to meet its initial
burden, since it did not adduce any
additional evidence disproving
Plaintiffs’ authorship…” and
“conclude[d] that the ASTM
Plaintiffs [] are the owners of the
copyrights at issue and have
standing to bring their claims.”
ASTM I, 2017 WL 473822, at *7.
The declarant is not offering legal
opinion testimony, as PRO
recognized by not asserting 701 as
an objection during the first round
of summary judgment motions, see
Dkt. 121-4.

157

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
150. Attached as Exhibit 149 is a
compilation of true and correct
copies of the 191 ASTM standards
shown in Annex A to Plaintiffs’
Motion for Summary Judgment.

151. Attached as Exhibit 150 is a
compilation of true and correct
copies of the PRO infringing
standards, which are the subject of
this motion, as produced by PRO in
this matter, including:
PRO_00082456, PRO_00083027,
PRO_00092094, PRO_00079099,
PRO_00080317, PRO_00082342,
PRO_00082371, PRO_00082401,
PRO_00082439, PRO_00085147,
PRO_00086108, PRO_00086524,
PRO_00087387, PRO_00087615,
PRO_00088099, PRO_00089056,
PRO_00089070, PRO_00089092,
PRO_00089127, PRO_00090507,
PRO_00090524, PRO_00090715,
PRO_00091622, PRO_00091642,

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

FRE 402 Relevance and FRE 701
Improper Opinion Testimony. To
the extent that the Plaintiffs rely
upon the copyright registration
certificates to suggest their
ownership of copyrights, FRE 701
Improper legal opinion: This states
an improper legal conclusion of
ownership, which is especially
troublesome in this case where the
Plaintiffs’ evidence showed an lack
of ownership, which caused
Plaintiffs to abandon their first two
theories of copyright ownership
(works made for hire, then
ownership by assignment) in favor
of a third theory of ownership,
namely joint authorship of joint
works, where the copyright
registrations contradict the theory of
ownership..
FRE 403 Prejudice. Assumes that
Public Resource has infringed
something.

PRO does not explain its FRE 402
relevance objection. The text of the
standards is relevant to the fair use
analysis, as instructed by the D.C.
Circuit. American Society for
Testing and Materials, et al. v.
Public.Resource.Org, Inc., 896 F.3d
437, 452 (D.C. Cir. 2018)
(analyzing the “amount of the
standard’s text [that] might be fairly
reproduced”).

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

158

FRE 701 is not applicable. The
declaration attaches copies of the
standards. Regardless PRO’s “legal
opinion” objection is just a summary
of its “ownership” argument.

FRE 403 is an improper objection
for summary judgment. In any
event, the objection (which appears
limited to the word “infringing”)
regards the way the document is
characterized–not the document
itself–and therefore has no impact
on admissibility of Exhibit 150.
FRE 602, 701/2 are inapplicable.
The declaration attaches documents
produced by PRO which are the
subject of this litigation. Mr.
Malamud can authenticate them at
trial and the Court will determine
the question of infringement.

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
PRO_00091681, PRO_00091708,
PRO_00091718, PRO_00091848,
PRO_00091891, PRO_00091919,
PRO_00091991, PRO_00092428,
PRO_00092802, PRO_00093012,
PRO_00093103, PRO_00093196,
PRO_00093234, PRO_00093301,
PRO_00093351, PRO_00092176,
PRO_00092264, PRO_00092306,
PRO_00092702, PRO_00092827,
PRO_00092925, PRO_00092980,
PRO_00093036, PRO_00093063,
PRO_00093139, PRO_00093990,
PRO_00093661, PRO_00093765,
PRO_00093904, PRO_00093937,
PRO_00094004, PRO_00094070,
PRO_00094023, PRO_00094157,
PRO_00094182, PRO_00106152,
PRO_00094717, PRO_00104153,
PRO_00104757, PRO_00105023,
PRO_00105309, PRO_00105881,
PRO_00106371, PRO_00106312,
PRO_00094595, PRO_00094611,
PRO_00094626, PRO_00094675,
PRO_00094756, PRO_00094822,
PRO_00094836, PRO_00094914,
PRO_00094936, PRO_00095007,
PRO_00095921, PRO_00096949,
PRO_00097934, PRO_00100185,
PRO_00101043, PRO_00101068,
PRO_00101090, PRO_00101136,
PRO_00101163, PRO_00101220,
PRO_00101269, PRO_00101349,
PRO_00101825, PRO_00101844,
PRO_00101895, PRO_00102865,
PRO_00102894, PRO_00102907,
PRO_00103138, PRO_00103173,
PRO_00103201, PRO_00103260,
PRO_00103325, PRO_00103385,
PRO_00103410, PRO_00103442,

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

159

PLAINTIFF’S RESPONSE TO
OBJECTIONS

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
PRO_00103727, PRO_00103788,
PRO_00103821, PRO_00103869,
PRO_00103893, PRO_00103921,
PRO_00104044, PRO_00104096,
PRO_00104357, PRO_00104411,
PRO_00104441, PRO_00104464,
PRO_00104481, PRO_00104686,
PRO_00104707, PRO_00104729,

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

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

This evidence does not have to be
admissible at trial in its presented
form, instead the correct challenge
from the non-offering party is that
the evidence is not capable of being
presented in an admissible manner
at trial. Fed. R. Civ. P. 56(c)(2);
Wood v. American Federation of
Gov’t Employees, 316 F. Supp. 3d
475, 481 n.2 (D.D.C. 2018); Fraser,
342 F.3d at 1036. This document is
a business record pursuant to Fed.
R. Evid. 803, and, if necessary,
ASTM will produce a custodian at
trial.
The declaration need not establish
facts that show the relevance of this
document. Under Fed. R. Evid.
104(b), the court may admit the
proposed evidence on the condition
that the proof be introduced later.
As shown in Plaintiffs’ Second
Supplemental Statement of Facts,
this document is relevant to showing
how ASTM sells its standards and
how it derives revenue from both
initial publication and subsequent
versions of standards. Plaintiffs’
Second Supplemental Statement of
Facts, ¶¶ 80-81.

FRE 901 Lack of Authentication.
ASTM has failed to disclose the
identity of any custodian of records
who would be able to authenticate
this document.

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

FRE 104(b), 401, 402. The
purported relevance of this
document depends on facts that
ASTM has failed to establish in this
declaration.
FRE 802 Hearsay. ASTM has failed
to disclose the identity of any
custodian of records who would be
able to satisfy the requirements of
the business records exception to
hearsay for this document.
FRE 901 Lack of Authentication.
ASTM has failed to disclose the
identity of any custodian of records
160

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PLAINTIFF’S RESPONSE TO
OBJECTIONS

who would be able to authenticate
this document.

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

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

This evidence does not have to be
admissible at trial in its presented
form, instead the correct challenge
from the non-offering party is that
the evidence is not capable of being
presented in an admissible manner
at trial. Fed. R. Civ. P. 56(c)(2);
Wood, 316 F. Supp. 3d at 481 n.2;
Fraser, 342 F.3d at 1036. This
document is a business record
pursuant to Fed. R. Evid. 803, and,
if necessary, ASTM will produce a
custodian at trial.
The declaration need not establish
facts that show the relevance of this
document. Under Fed. R. Evid.
104(b), the court may admit the
proposed evidence on the condition
that the proof be introduced later. As
shown in Plaintiffs’ Second
Supplemental Statement of Facts,
this document is relevant to showing
how ASTM sells its standards and
how it derives revenue from both
initial publication and subsequent
versions of standards. Plaintiffs’
Second Supplemental Statement of
Facts, ¶¶ 80-81.

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

161

This evidence does not have to be
admissible at trial in its presented
form, instead the correct challenge
from the non-offering party is that
the evidence is not capable of being
presented in an admissible manner
at trial. Fed. R. Civ. P. 56(c)(2);
Wood, 316 F. Supp. 3d at 481 n.2;
Fraser, 342 F.3d at 1036. This
document is a business record
pursuant to Fed. R. Evid. 803, and,

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

if necessary, ASTM will produce a
custodian at trial.

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

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

162

The declaration need not establish
facts that show the relevance of this
document. Under Fed. R. Evid.
104(b), the court may admit the
proposed evidence on the condition
that the proof be introduced later. As
shown in Plaintiffs’ Second
Supplemental Statement of Facts,
this document is relevant to showing
how ASTM sells its standards and
how it derives revenue from both
initial publication and subsequent
versions of standards. Plaintiffs’
Second Supplemental Statement of
Facts, ¶¶ 80-81.
This evidence does not have to be
admissible at trial in its presented
form, instead the correct challenge
from the non-offering party is that
the evidence is not capable of being
presented in an admissible manner
at trial. Fed. R. Civ. P. 56(c)(2);
Wood, 316 F. Supp. 3d at 481 n.2;
Fraser, 342 F.3d at 1036. This
document is a business record
pursuant to Fed. R. Evid. 803, and,
if necessary, ASTM will produce a
custodian at trial.

DECLARATION OF JANE W.
WISE IN SUPPORT OF
PLAINTIFFS’ SECOND
MOTION FOR SUMMARY
JUDGMENT AND A
PERMANENT INJUNCTION
162. Attached hereto as Exhibit 161
are true and correct copies of a
document Bates labeled
ASTM003631, which was produced
by ASTM in this matter.

PUBLIC.RESOURCE.ORG’S
OBJECTIONS

PLAINTIFF’S RESPONSE TO
OBJECTIONS

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

The declaration need not establish
facts that show the relevance of this
document. Under Fed. R. Evid.
104(b), the court may admit the
proposed evidence on the condition
that the proof be introduced later.

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

163

This evidence does not have to be
admissible at trial in its presented
form, instead the correct challenge
from the non-offering party is that
the evidence is not capable of being
presented in an admissible manner
at trial. Fed. R. Civ. P. 56(c)(2);
Wood, 316 F. Supp. 3d at 481 n.2;
Fraser, 342 F.3d at 1036. This
document is a business record
pursuant to Fed. R. Evid. 803, and,
if necessary, ASTM will produce a
custodian at trial.