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

Filing 215

REPLY to opposition to motion re 202 Second 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. (This document is SEALE filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: # 1 [REDACTED] Defendant's Response to Plaintiffs' Objections to Certain Evidence In Support of Defendant's Second Supplemental Statement of Material Facts, # 2 Public Resource's Evidentiary Objections In Reply to Plaintiffs' Opposition to Public Resource's Second Motion for Summary Judgment and Reply In Support of Plaintiffs' Second Motion for Summary Judgment and for A Permanent Injunction [Dkt. 213], # 3 Supplemental Reply Declaration of Matthew Becker In Support of Public Resource's Second Motion for Summary Judgment, # 4 Exhibit 98, # 5 Exhibit 99, # 6 Exhibit 100, # 7 Exhibit 101, # 8 Exhibit 102, # 9 Exhibit 103, # 10 Public Resource's Statement of Disputed Facts In Opposition to [213-1] Plaintiffs' Third Supplemental Statement of Material Facts In Support of Their Second Motion for Summary Judgment and A Permanent Injunction, # 11 Public Resource's Reply In Support of Its Request for Judicial Notice [Dkt. 204-3], # 12 Public Resource's Motion to Strike Plaintiffs' Response to Public Resource's Statement of Disputed Facts [Dkt. 213-21], # 13 Text of Proposed Order Granting Public Resource's Motion to Strike Plaintiffs' Response to Public Resource's Statement of Disputed Facts [Dkt. 213-21])(Bridges, Andrew) Modified on 1/17/2020 (ztd).

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

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

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ OBJECTIONS TO CERTAIN
EVIDENCE IN SUPPORT OF DEFENDANT’S SECOND SUPPLEMENTAL
STATEMENT OF MATERIAL FACTS

[PUBLIC REDACTED VERSION]

Public Resource submits the following response to Plaintiffs’ evidentiary objections to
Public Resource’s Second Supplemental Statement of Material Facts in support of its Second
Motion for Summary Judgment (ECF No. 202). As a threshold matter, Public Resource does not
believe that Plaintiffs have any basis under LCvR 7(h) to file their Response to Public Resource’s
Statement of Disputed Facts (ECF No. 213-21), and Public Resource has objected to that document
and moved to strike it in Public Resource’s objections to evidence. Because Plaintiffs have
combined their statement of disputed facts with their objections to evidence into a single document
(ECF No. 213-20), Public Resource responds only to Plaintiffs’ objections to evidence in that
document (distinguished in bold text):1

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

I.

INCORPORATION BY REFERENCE

A.

DEFENDANT’S REPLY

The Nature of Incorporation by Reference

1.
Incorporation
by
reference is an alternative to
direct inclusion of language
into a government’s published
laws or regulations. See 5
U.S.C. §552(a)(1); 1 C.F.R. §§
51.1-51.11.

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

1

If the Court does not grant motion to strike Plaintiffs’ Response to Public Resource’s Statement
of Disputed Facts, Public Resource requests leave to file its own statement responding to Plaintiffs’
Statement of Disputed Facts.
2

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

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

Objection. This statement
is inadmissible hearsay to
the extent it is offered to
prove the truth of the
matter asserted.
The statements as to the legal
effect of incorporation by
reference are legal
conclusions, not facts.

DEFENDANT’S REPLY

The Court can take judicial
notice of matters
communicated to the public
on government websites.
Additionally, the statement is
admissible as a record of the
Office of the Federal
Register made in the ordinary
course of business. It is also
a record or statement of a
public office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Additionally, the quotation is
not offered for the truth of
the statement, but rather for
the fact that the OFR makes
such representation to the
public.

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

Objection. This statement
is inadmissible hearsay to
the extent it is offered to
prove the truth of the
matter asserted. It is
otherwise irrelevant.
Disputed to the extent it
suggests that the federal
government’s only or
principal reason for
endorsing incorporation by
reference is to limit the bulk
of the Code of Federal
Regulations. As explained in
Plaintiffs’ briefing, that is
inaccurate. Reply at
Background Part A.

3

The Court can take judicial
notice of matters
communicated to the public
on government websites.
Additionally, the statement is
admissible as a record of the
Office of the Federal
Register made in the ordinary
course of business. It is also
a record or statement of a
public office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Additionally, the quotation is
not offered for the truth of
the statement, but rather for
the fact that the OFR makes
such representation to the
public.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

This evidence is relevant to
evaluating the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which bears directly
on fair use and related
questions.
4.
States
and
municipalities
also
turn
standards into law, through
incorporation by reference and
in
other
instances
by
reproducing an entire standard
verbatim in the text of the law.
See, e.g., Minn. Admin. Rule
4761.2460,
Subp.
2(C);
California
Code
of
Regulations, Title 24, Part 3.

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

5.
Governments
may Objection. This is a legal
prosecute and punish persons conclusion, not a fact.
for failing to obey standards
4

This evidence is relevant to
evaluating the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which bears directly
on fair use and related
questions.
Nothing in the statement is
prejudicial.
Further, this evidence is not a
legal conclusion, but a
statement concerning state
and municipal practices of
incorporating standards by
reference into law. Cf. Nisus
Corp. v. Perma-Chink Sys.,
Inc., No. 3:03-CV-120, 2005
WL 6112992, at *4 (E.D.
Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).
This evidence is not a legal
conclusion, but a statement
of actual consequences that

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

that have become law. To take
just two examples: The
Supreme Court of Virginia
treated violation of the
National Electrical Code as
equivalent to a violation of the
Virginia Building Code, which
incorporated the NEC by
reference, and subject to
criminal sanctions. Virginia
Elec. & Power Co. v. Savoy
Const. Co., 294 S.E.2d 811,
816-17 (Va. 1982).

Disputed to the extent it
implies that incorporation by
reference of a standard
makes the standard itself law.

have followed from failure to
meet standards incorporated
by reference into law.

6.
After the deadly “Ghost
Ship” fire in Oakland,
California,
prosecutors
charged principal tenant and
alleged manager of the
building with manslaughter for
violation of fire safety codes
that are incorporated by
reference.
Supplemental
Declaration
of
Matthew
Becker in support of Public
Resource’s Opposition to
Plaintiffs’ Second Motion for
Summary Judgment and in
Support of Public Resource’s
Second Motion for Summary
Judgment (“Becker Decl.”) ¶
59, Ex. 93 (Declaration in
Support of Probable Cause,
California v. Harris, No. 17CR-017349A (Cal. Super. Ct.
June 5, 2017), available at
https://www.scribd.com/docu
ment/350446988/Ghost-Shipfire-criminal-charges; Becker
Decl. ¶ 60, Ex. 94 (Criminal
Complaint,
California
v.
Harris, No. 17-CR-017349A

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

Disputed to the extent PRO
suggests that governments
prosecute standards and
punish persons for failing to
obey standards. Additionally,
the cited reference does not
support the statement, as it
involves a civil lawsuit
initiated by a private party.

It is undisputed that the
Ghost Ship fire was a tragedy
and resulted in prosecutions;
however, these facts
underscore the importance of
Plaintiffs and their standards
to the public interest in safety
and, as a result, the risk
posed by PRO’s conduct,
which undermines Plaintiffs’
source of revenue. PRO’s
statement that “prosecutors
5

The statement is relevant to
show that legally binding
safety standards, of which the
standards at issue in this case
are examples, are laws that
carry criminal penalties.

The statement is relevant to
show that legally binding
safety standards, of which the
standards at issue in this case
are examples, are laws that
carry criminal penalties.
This evidence is not a legal
conclusion, but a statement
of actual consequences that
have followed from failure to
meet standards incorporated
by reference into law.
Nothing in the statement is
prejudicial.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

(Cal. Super. Ct. June 5, 2017)),
available
at
https://web.archive.org/web/
20170729051241/https://cbssa
nfran.files.wordpress.com/201
7/06/almena-and-harriscomplaint.
pdf.).

charged principal tenant and
alleged manager of the
building with manslaughter
for violation of fire safety
codes that are incorporated
by reference” is also
inaccurate and misleading.
The cited criminal complaint
does not link the
manslaughter charges to
violations of the safety codes.
The declaration in support of
probable cause outlines
numerous allegations of
dangerous conduct, including
violations of incorporated
safety codes, violations of
municipal codes that do not
incorporate safety codes, and
conduct that an ordinarily
careful person would not
undertake.

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

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

8.
NFPA acknowledges
that failure to comply with the
standards incorporated by law
may result in penalties. Becker
Decl., ¶ 13, Ex. 46 (Bliss
Depo.) at 37:1–19.

Objection. The witness was
testifying regarding his
time as a government
employee, not making a
statement on behalf of
NFPA. Becker Decl. ¶ 13,
Ex. 46 (Bliss Depo.) at 33:812.

6

DEFENDANT’S REPLY

The witness was testifying as
a corporate representative of
NFPA about understandings
he had concerning
enforcement of compliance
with standards incorporated
by reference into law. The
witness did not state that
those understands were any
different than those he held

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

while working within the
Disputed to the extent it
implies that incorporation by scope of his duties as an
officer of NFPA.
reference of a standard
makes the standard itself law.
PRO further mischaracterizes
the evidence. The cited
reference states that when the
witness was acting as a
government employee, he
would sometimes provide a
property owner with a
written report identifying any
ways in which the property
owner was not in compliance
with applicable codes.
Becker Decl. ¶ 13, Ex. 46
(Bliss Depo.) at 37:1–19; see
also Bliss Depo. at 34:3-8.
The witness stated that this
written report typically did
not cite the specific provision
with which the owner was
not in compliance, but that a
follow-up letter or document
would. Id. at 37:7–19. The
cited reference does not
include any discussion of
penalties—nor does it
indicate that any such
penalties could arise from
violation of codes that
incorporated privately
developed standards, much
less any standards at issue in
this case.
9.
The former head of
Massey Energy was convicted
of conspiring to violate safety
standards. Dkt. 122-9, Ex. 156157.

Objection. Relevance. The
cited material does not
indicate that any of the
relevant safety standards
were privately developed
standards incorporated by
reference or, to the extent
7

The statement is relevant to
show that legally binding
safety standards, of which the
standards at issue in this case
are examples, are laws that
carry criminal penalties.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

that they were, that they
were developed by any of
the Plaintiffs or are at issue
in this case. Plaintiffs
object to this statement as
hearsay to the extent PRO
relies on them for the truth
of the matter asserted.

DEFENDANT’S REPLY

Nothing in the statement is
prejudicial.

There is no evidence that this
conviction related in any way
to a standard at issue in this
case.
B.

The Process of Incorporation by Reference

10.
The
process
of
incorporation by reference is
careful and deliberate. At the
federal level, it starts when an
agency
responsible
for
regulating
an
industry
publishes a notice in the
Federal Register concerning
the
agency’s
intent
to
incorporate a standard into law
and asks the public to submit
comments. 5 U.S.C. §553.

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

11.
A federal agency must Objection. This is a legal
publish proposed rule changes conclusion, not a fact.
in the Federal Register,
including changes to a standard
incorporated by reference into
the
Code
of
Federal

8

This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).
This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Regulations. 5 U.S.C. §553(b);
1 C.F.R. § 51.11(a) (2015).

DEFENDANT’S REPLY

Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

12.
A
standard
incorporated by reference into
the
Code
of
Federal
Regulations must be a
“proposed rule” or “final rule”
of a federal agency. 1 C.F.R.
§51.5(a)-(b) (2019). Before
the
federal
government
incorporates a standard by
reference into law as a final
rule, the Director of the Federal
Register must approve the
incorporation. 1 C.F.R. § 51.3
(2019).

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

This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
Disputed to the extent it
incorporation of reference of
suggests that the cited
reference states that an
a standard into law. Cf.
incorporated standard is itself Nisus Corp. v. Perma-Chink
is a “proposed rule” or a
Sys., Inc., No. 3:03-CV-120,
“final rule.” Disputed that a 2005 WL 6112992, at *4
“proposed rule” would
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
constitute an incorporation
by reference of a standard
general procedures does not
constitute an inadmissible
into the Code of Federal
Regulations. Disputed to the legal conclusion) (“Expert
extent it implies that
testimony regarding general
incorporation by reference of procedures of the patent
a standard makes the
application process may be
standard itself law.
helpful to a jury and is
therefore admissible.”).

13.
Standards
are
incorporated by reference—as
opposed to reprinting the entire
text of the standards—to limit
the length of the Code of
Federal Regulations. Dkt. 1229 at 86 (“Incorporation by
Reference” webpage of the
Office of the Federal Register,
http://www.archives.gov/feder

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

9

The Court can take judicial
notice of matters
communicated to the public
on government websites.
Additionally, the statement is
admissible as a record of the
Office of the Federal
Register made in the ordinary
course of business. It is also

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
al-register/cfr/ibrlocations.html).

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

otherwise irrelevant to the
question of fair use.

a record or statement of a
public office that sets out the
office’s activities. Fed. R.
Evid. 803(8).

Disputed that the only or
principal purpose of
incorporating standards by
reference is to limit the
length of the Code of Federal
Regulations; as explained in
Plaintiffs’ briefing, that is
inaccurate. Reply at
Background Part A.
Disputed that were it not for
concerns about length, the
entire text of the standards
would be reprinted. The
copying of the entire text of
standards by the federal
government would subject
the federal government to
liability under 28 U.S.C.
§ 1498 and/or the takings
clause of the Constitution.
ECF No. 118-1 (Pls.’ Mem.)
at 27-28.
14.
Standards are also
incorporated by reference into
state and local laws. See, e.g.,
Md.
Admin.
Rule
09.12.26.06(E)(1)(c)(i); Minn.
Admin. Rule 4761.2460, Subp.
2(C).

Additionally, the quotation is
not offered for the truth of
the statement, but rather for
the fact that the OFR makes
such representation to the
public.
This evidence is relevant to
evaluating the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which bears directly
on fair use and related
questions.

Objection. Relevance. The
cited administrative rules
do not indicate that any of
the Works at issue have
been incorporated by
reference into state or local
law. This is a legal
conclusion, not a fact.

This evidence is relevant to
show that state and local
governments incorporate
standards, such as the
standards at issue in this
case, into law. This relates to
the nature and character of
Public Resource’s use of
standards incorporated by
Disputed to the extent it
reference into law, which
suggests that Plaintiffs’
bears directly on fair use and
standards are themselves law. related questions.
Nothing in the statement is
prejudicial.
This statement is not a legal
conclusion, but rather a

10

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

statement of state and local
practices and procedures
regarding the incorporation
of reference of a standard
into law. Cf. Nisus Corp. v.
Perma-Chink Sys., Inc., No.
3:03-CV-120, 2005 WL
6112992, at *4 (E.D. Tenn.
May 27, 2005) (holding that
testimony as to general
procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).
15.
State adoptions are
equally rigorous. For example,
the State of California
incorporates model codes into
Title 24 of the California Code
of Regulations on a triennial
cycle, with a 45-day publiccomment period, a six-month
publication requirement, and a
three-month delay to allow
local
governments
to
implement them.
The
California Building Standards
Law precisely defines this
process. See Cal. Dep’t of
Gen. Servs., 2015 Triennial
Code Adoption Cycle (Dec.
2014),
https://web.archive.org/web/2
0170207201000/https://www.
documents.dgs.ca.gov/BSC/20
15TriCycle/2015TricycleTime
line.pdf;
18-Month
Code
Adoption Cycle, Cal. Bldg.

Objection. This statement
is either a legal conclusion
or an inadmissible opinion,
not a statement of fact, and
is entirely unsupported.
Defendant has presented no
evidence that the process of
incorporation by reference
by any state, let alone all
states, is “equally rigorous”
to that of the federal
government. Even if it had,
the statement would be
meaningless as PRO has
not presented any evidence
regarding how “rigorous”
the federal government’s
incorporation process is.
To the extent PRO relies on
the content of websites not
attached to the brief,
Plaintiffs object to PRO’s
summaries of documents
11

This evidence is relevant to
show the process by which
governments incorporate
standards, such as the
standards at issue in this
case, into law. This relates to
the nature and character of
Public Resource’s use of
standards incorporated by
reference into law, which
bears directly on fair use and
related questions.
Nothing in the statement is
prejudicial.
This statement is not a legal
conclusion, but rather a
statement of state practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Standards
Comm’n,
https://www.dgs.ca.gov/BSC/
Rulemaking (last visited Nov.
8, 2019).

that have not been included
in the record. Plaintiffs
further object to the
information on the websites
as hearsay to the extent
PRO relies on them for the
truth of the matter
asserted. They are
otherwise irrelevant.

(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

Objection. Relevance.
California’s incorporation
practices are irrelevant and
immaterial to the question
of fair use and do not
dictate the extent to which,
if at all, portions are
necessary to comply with a
legal duty. Neither the
statement nor the cited
material identifies a Work
at issue allegedly
incorporated by reference
into California law.

Additionally, the statement is
admissible as a record of the
State of California made in
the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).

Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
16.
The Office of the
Federal Register (OFR) states:
“The
legal
effect
of
incorporation by reference is
that the material is treated as if
it were published in the Federal
Register and CFR. This
material, like any other
properly issued rule, has the
force and effect of law.
Congress
authorized
incorporation by reference in
the Freedom of Information
Act to reduce the volume of

Objection. This statement
is inadmissible hearsay to
the extent it is offered to
prove the truth of the
matter asserted. It is
otherwise irrelevant to the
question of fair use.
The statements as to the
legal effect of incorporation
by reference are legal
conclusions, not facts.

12

Additionally, the quotation is
not offered for the truth of
the statement, but rather for
the fact that the State of
California makes such
representation to the public.

The Court can take judicial
notice of matters
communicated to the public
on government websites.
Additionally, the statement is
admissible as a record of the
Office of the Federal
Register made in the ordinary
course of business. It is also
a record or statement of a
public office that sets out the
office’s activities. Fed. R.
Evid. 803(8).

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

material published in the Disputed to the extent it
Additionally, the quotation is
Federal Register and CFR.” suggests that Plaintiffs’
not offered for the truth of
Dkt. 122-9 at 86.
standards are themselves law. the statement, but rather for
the fact that the OFR makes
such representation to the
public.
This evidence is relevant to
evaluating the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which bears directly
on fair use and related
questions.
This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).
17.
In addition, when the
Code of Federal Regulations
incorporates a standard, the
code itself informs readers that
they may obtain a copy of the
standards from the Office of
the Federal Register (“OFR”)
or from the SDO that published

Objection. This statement
is inadmissible hearsay to
the extent it is offered to
prove the truth of the
matter asserted. It is
otherwise irrelevant. The
assertion that the C.F.R. is
“effectively promoting sales
13

The Court can take judicial
notice of matters
communicated to the public
on government websites.
Additionally, the statement is
admissible as a record of the
Office of the Federal

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

the
standard,
effectively of the standard” is PRO’s
promoting sales of the argument and not
standard. Dkt. 122-9 at 86.
supported by the citation.
The statements as to the
legal effect of incorporation
by reference are legal
conclusions, not facts.

DEFENDANT’S REPLY

Register made in the ordinary
course of business. It is also
a record or statement of a
public office that sets out the
office’s activities. Fed. R.
Evid. 803(8).

Additionally, the quotation is
not offered for the truth of
the statement, but rather for
This statement is entirely
the fact that the OFR makes
unsupported by the document such representation to the
cited. Defendant has
public.
presented no evidence that
This evidence is relevant to
the cited statement
evaluating the nature and
“effectively promotes sales
of the standards,” which does character of Public
Resource’s use of standards
not appear in the cited
incorporated by reference
document.
into law, which bears directly
on fair use and related
questions.
This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

14

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

18.
In order to enact rules, This is a legal conclusion,
a federal agency must follow not a fact.
minimum
procedures
to
guarantee adequate public
notice and opportunity to
comment. 5 U.S.C. §553.

This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

19.
A federal agency must This is a legal conclusion,
publish proposed rule changes not a fact.
in the Federal Register,
including changes to a standard
incorporated by reference into
the
Code
of
Federal
Regulations. 5 U.S.C. §553(b);
1 C.F.R. § 51.11(a) (2015).

This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

20.
Standards incorporated Objection. The OFR
by reference into the Code of statement is hearsay and is
Federal Regulations are made inadmissible to prove the

The Court can take judicial
notice of matters

15

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

available in the Washington
D.C. reading room of the
Office of the Federal Register,
or for purchase from the
Plaintiffs. The OFR directs
people who want to read
incorporated standards to
“contact
the
standards
organization that developed the
material.” Alternatively, one
may submit a written request to
the OFR to inspect (and make
limited photocopies of) an
incorporated
standard
in
Washington, D.C. Dkt. 122-9
at 86; Becker Decl. ¶ 58, Ex. 92
(printout of National Archives
website on incorporation by
reference).

truth of the matter
asserted.

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

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

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

Disputed to the extent it
implies that the standards
incorporated by reference are
only available at the reading
room of the Office of the
Federal Register or for
purchase from Plaintiffs. All
of the standards at issue for

16

DEFENDANT’S REPLY

communicated to the public
on government websites.
Additionally, the statement is
admissible as a record of the
Office of the Federal
Register made in the ordinary
course of business. It is also
a record or statement of a
public office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Additionally, the quotation is
not offered for the truth of
the statement, but rather for
the fact that the OFR makes
such representation to the
public.

The Court can take judicial
notice of matters
communicated to the public
on government websites.
Additionally, the statement is
admissible as a record of the
Office of the Federal
Register made in the ordinary
course of business. It is also
a record or statement of a
public office that sets out the
office’s activities. Fed. R.
Evid. 803(8).

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

DEFENDANT’S REPLY

which PRO has accurately
identified a regulation
incorporating the standard by
reference and many other
standards are available for
free in Plaintiffs’ reading
rooms. ECF No. 118-2 (Pls.’
SMF) ¶¶ 61, 63. 100, 161;
ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶ 85. In
addition, the standards at
issue and other standards are
available for purchase at
reasonable prices. ECF No.
118-2 (Pls.’ SMF) ¶¶ 58, 99,
158; ECF No. 198-3 (Pls.’
2d. Supp. SMF) ¶ 77.
C.

PLAINTIFFS’ RESPONSE

Additionally, the quotation is
not offered for the truth of
the statement, but rather for
the fact that the OFR makes
such representation to the
public.

Objects of Incorporation

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

Objection. The OFR
statement is hearsay and is
inadmissible to prove the
truth of the matter
asserted. This portion of
the 2018 IBR Handbook is
otherwise irrelevant,
especially with respect to
any regulation for which
IBR approval was sought
prior to the Handbook’s
effective date of July 2018
or that was promulgated
before that date.
Plaintiffs object that the
2018 IBR Handbook does
not state that “If the
material is necessary to
understand or comply with
the regulation, the agency
must seek IBR approval

17

This evidence is admissible
as a record of the Office of
the Federal Register made in
the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Additionally, any quotations
are not offered for the truth
of the statement, but rather
for the fact that the OFR
makes such representation to
the public.
The cited document supports
the assertion that “If the
material is necessary to
understand or comply with
the regulation, the agency
must seek IBR approval from
the Director of the Federal

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

the Federal Register. Becker from the Director of the
Decl., ¶ 25, Ex. 58 (IBR Federal Register.”
Handbook) at p. 2 (citing 5
U.S.C. § 552(a)).
This is a legal conclusion,
not a fact.

DEFENDANT’S REPLY

Register.” Public Resource
does not claim, as Plaintiffs
imply, that this is a direct
quote from the cited
document.
This evidence is relevant to
evaluating the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which bears directly
on fair use and related
questions.
Nothing in the statement is
prejudicial.
This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

23.
Only the Director of the
Federal Register can approve
IBR
requests,
and
“[p]ublication in the Federal
Register of a document
containing reference(s) to

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

18

This evidence is admissible
as a record of the Office of
the Federal Register made in
the ordinary course of
business. It is also a record
or statement of a public

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
incorporated material does not
in itself constitute an approval
of the IBR by the Director.”
Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at 6.

PLAINTIFFS’ RESPONSE

otherwise irrelevant,
especially with respect to
any regulation for which
IBR approval was sought
prior to the Handbook’s
effective date of July 2018
or that was promulgated
before that date.
This is a legal conclusion,
not a fact.

DEFENDANT’S REPLY

office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Additionally, any quotations
are not offered for the truth
of the statement, but rather
for the fact that the OFR
makes such representation to
the public.
This evidence is relevant to
evaluating the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which bears directly
on fair use and related
questions.
Nothing in the statement is
prejudicial.
This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

24.
Similarly, the Federal Objection. The OFR
Register
may
contain statement is hearsay and is
19

This evidence is admissible
as a record of the Office of

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

references to incorporated
material, but the referenced
material is not actually
incorporated by reference
when it has not received the
Director’s formal approval.
Becker Decl., ¶ 25, Ex. 58 (IBR
Handbook) at 11.

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

the Federal Register made in
the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).

This is a legal conclusion,
not a fact.

Additionally, any quotations
are not offered for the truth
of the statement, but rather
for the fact that the OFR
makes such representation to
the public.
This evidence is relevant to
evaluating the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which bears directly
on fair use and related
questions.
Nothing in the statement is
prejudicial.
This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be

20

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

helpful to a jury and is
therefore admissible.”).
25.
To be eligible for
incorporation by reference, the
material must be published and
“impossible or impractical” to
print in the C.F.R. Becker
Decl., ¶ 25, Ex. 58 (IBR
Handbook) at 6. This means it
is typically documents, or
portions of documents, that are
incorporated by reference—not
mere text, which could
otherwise be printed in the
C.F.R. See Becker Decl., ¶ 25,
Ex. 58 (IBR Handbook) at 1112.

Objection. The OFR
statement is hearsay and is
inadmissible to prove the
truth of the matter
asserted. This portion of
the 2018 IBR Handbook is
otherwise irrelevant,
especially with respect to
any regulation for which
IBR approval was sought
prior to the Handbook’s
effective date of July 2018
or that was promulgated
before that date.
The statement that the
referenced portion of the
2018 IBR Handbook
“means it is typically
documents, or portions of
documents, that are
incorporated by
reference—not mere text,
which could otherwise be
printed in the C.F.R.” is
PRO’s argument, not fact.

This evidence is admissible
as a record of the Office of
the Federal Register made in
the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Additionally, any quotations
are not offered for the truth
of the statement, but rather
for the fact that the OFR
makes such representation to
the public.
This evidence is relevant to
evaluating the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which bears directly
on fair use and related
questions.
Nothing in the statement is
prejudicial.

The cited reference supports
The statement about what
Public Resource’s assertions.
is typically incorporated
and that “mere text” could
be printed in the C.F.R. is
not supported by the cited
document. As explained in
Plaintiffs’ briefing, agencies
use and the federal
government endorses
incorporation by reference
for reasons other than
simply reducing the bulk of
the Code of Federal
21

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

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

This is a legal conclusion,
not a fact.
Objection. The OFR
statement is hearsay and is
inadmissible to prove the
truth of the matter
asserted. It is otherwise
irrelevant as the privately
expressed views of one
federal employee do not
dictate agency policy or
practice. It also is
improper opinion
testimony.
PRO’s paraphrase of the
email exchange
mischaracterizes it. PRO
concedes in the same
document that the
proposition is not
supported by any OFR
document, handbook, or
other policy.
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law
and, as explained in
Plaintiffs’ Reply, Plaintiffs
dispute PRO’s conclusions
from this inaccurate premise.

22

This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference of
a standard into law. Cf.
Nisus Corp. v. Perma-Chink
Sys., Inc., No. 3:03-CV-120,
2005 WL 6112992, at *4
(E.D. Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).
This evidence is admissible
as a record of the Office of
the Federal Register made in
the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Additionally, any quotations
are not offered for the truth
of the statement, but rather
for the fact that the OFR
made that representation to
Mr. Malamud. The
statement is by an officer of
the OFR, concerning matters
within her personal
knowledge, made during the
course of her employment at

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

OFR and within the scope of
her duties there; it does not
constitute an improper
opinion, and the statement is
supported by Public
Resource’s other evidence
concerning public statements
that the OFR makes about
incorporation by reference of
standards into law.
D.

Incorporation of Parts of Documents Versus Incorporation of Complete
Documents

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

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

23

This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference
into law of a standard NFPA
claims to own. Cf. Nisus
Corp. v. Perma-Chink Sys.,
Inc., No. 3:03-CV-120, 2005
WL 6112992, at *4 (E.D.
Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

phone number 617770-3000, fax number
617-770-0700, Web
site:
http://www.nfpa.org.

DEFENDANT’S REPLY

promulgating agency or from
other agencies across the
federal government.

…
(4) NFPA No. 702005,
National
Electrical Code, IBR
approved as follows:
(i) Article 110.22,
IBR approved for §§
3280.803(k)
and
3280.804(k).
(ii) Article 210.12(A)
and
(B),
IBR
approved
for
§
3280.801(b).
(iii) Article 220.61,
IBR approved for §
3280.811(b).
(iv) Article 230, IBR
approved for §§
3280.803(k)
and
3280.804(k).
…
24 CFR § 3280.4(aa)(4)(i)(iv).
28.
In contrast, the full
2005 edition of the National
Electrical Code, NFPA 70, is
incorporated by reference at 49
C.F.R. § 192.7 (2009):
§
192.7
documents
incorporated

What
are
by

This is a legal conclusion,
not a fact.
Disputed to the extent PRO
intends this citation to
support the previous
paragraph’s statement that
“[w]here a federal agency
seeks to incorporate only
parts of a standards
24

This statement is not a legal
conclusion, but rather a
statement of federal practices
and procedures regarding the
incorporation of reference
into law of a standard NFPA
claims to own. Cf. Nisus
Corp. v. Perma-Chink Sys.,
Inc., No. 3:03-CV-120, 2005
WL 6112992, at *4 (E.D.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

reference partly or
wholly in this part?
(a) Any documents or
portions
thereof
incorporated
by
reference in this part
are included in this
part as though set out
in full. When only a
portion of a document
is referenced, the
remainder is not
incorporated in this
part.
(b) . . .
These
materials have been
approved
for
incorporation
by
reference by the
Director
of
the
Federal Register in
accordance with 5
U.S.C. 552(a) and 1
CFR part 51. . . .
F. National Fire
Protection
Association
(NFPA): . . .
(4) NFPA 70 (2005)
‘‘National Electrical
Code.’’

document, it is explicit.”
PRO offers no evidence
regarding the reason that the
cited reference refers to
NFPA 70 as it does, and the
cited reference does not
indicate any. Further, while
PRO draws an inference that
because one regulation
(identified in ¶ 27) identifies
certain sections of the
standard, regulations that do
not identify particular
sections of a standard should
be treated differently, there is
no factual or legal basis for
such an inference; PRO
offers no evidence that the
identified regulation is
representative of regulations
from the promulgating
agency or from other
agencies across the federal
government.

Tenn. May 27, 2005)
(holding that testimony as to
general procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

Disputed to the extent PRO
suggests that the cited
reference does not identify
specific portions of NFPA
70. The cited reference
identifies two regulations for
which the standard is being
incorporated: §§ 192.163(e)
and 192.189(c). 49 C.F.R.
§ 192.7 (2009). Section
192.163(e) states that
“[e]lectrical equipment and
wiring installed in
compressor stations must
conform to the National
Electrical Code, ANSI/NFPA
70, so far as that code is

25

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

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

Incorporation by Reference Versus Extrinsic Unincorporated Standards

29.
Sometimes
external
documents are referred to in
the C.F.R. or in other
government edicts but not
formally incorporated into law.
When a document is referenced
but not formally incorporated,
it serves as only an “extrinsic
standard”. See, e.g., Practice
Mgmt. Info. Corp. v. Am. Med.
Ass’n, 121 F.3d 516 (9th Cir.
1997) (regulations required
Medicare
and
Medicaid
claimants to use a private
medical coding system but did
not incorporate the medical
coding system into law).
Likewise, CCC Information
Services, Inc. v. Maclean
Hunter Market Reports, Inc.,

This statement is not a legal
conclusion, but rather a
statement of federal and
Objection. This is attorney other governmental practices
argument not fact and
and procedures regarding the
incorporation of reference
consists of an incorrect
legal interpretation of the
into law of a standard NFPA
claims to own. Cf. Nisus
cases, not a fact. It also is
vague to the extent it refers Corp. v. Perma-Chink Sys.,
to “government edicts.” It Inc., No. 3:03-CV-120, 2005
WL 6112992, at *4 (E.D.
is also irrelevant.
Tenn. May 27, 2005)
(holding that testimony as to
PRO mischaracterizes the
cases. The quoted language general procedures does not
“extrinsic standard” does
constitute an inadmissible
not appear in Practice
legal conclusion) (“Expert
testimony regarding general
Management Information
Corp. v. American Medical
procedures of the patent
application process may be
Association, 121 F.3d 516
(9th Cir. 1997), which
This is a legal conclusion,
not a fact.

26

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

concerned a document that was
one of several automobile
valuation
references
that
regulations approved for use in
insurance adjusting. 44 F.3d
61 (2d Cir. 1994).
The
regulation stated “[m]anuals
approved for use are…The
Redbook….,” without any
mention of incorporating those
manuals into enforceable laws.
See N.Y. Comp. Codes, R. &
Regs. tit. 11, § 216.7(c)(1)(i)
(West 1999), cited in CCC, 44
F.3d at 73 n.29.

involved IBR: “HCFA
published notices in the
Federal Register
incorporating the CPT in
HCFA’s Common
Procedure Coding System,
see 48 Fed. Reg. 16750,
16753 (1983); 50 Fed. Reg.
40895, 40897 (1985), and
adopted regulations
requiring applicants for
Medicaid reimbursement to
use the CPT. See 42 C.F.R.
§ 433.112(b)(2) (requiring
compliance with Part 11 of
the State Medicaid Manual,
which requires states
receiving federal funding
for Medicaid to adopt the
Administration’s Common
Procedure Coding System
as the exclusive medical
procedure coding system).”
Id. at 518; see also id. n.3
(citing additional IBRs).
Likewise, the Court’s
holding in
CCC Information Services,
Inc. v. Maclean Hunter
Market Reports, Inc., 44
F.3d 61 (2d Cir. 1994)
presumed IBR status and
nevertheless found in favor
of the copyright holder.
These cases do not say what
PRO purports that they say
and do not help PRO.
Disputed to the extent it
implies that incorporation by
reference of a standard
makes the standard itself law.

27

DEFENDANT’S REPLY

helpful to a jury and is
therefore admissible.”).
This evidence is relevant to
evaluating the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which bears directly
on fair use and related
questions.
Nothing in the statement is
prejudicial.
Plaintiffs mischaracterize the
cited cases and the
underlying facts upon which
they rely. The cited
materials support the
assertions that Public
Resource makes.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
II.

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

STANDARDS THAT HAVE BECOME LAW ARE NOT GENERALLY AND
FREELY ACCESSIBLE

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

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

28

The cited material supports
the assertions in this
statement. This evidence is
relevant to show access
issues for a standard NPFA
claims to own, that was
incorporated by reference
into law and thus it bears on
the nature and character of
Public Resource’s use of
standards incorporated by
reference into law, which in
turn relates to fair use and
related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

available. 1 C.F.R. § 51.7.
There are numerous options
for accessing the Works in
addition to visiting the
National Archives. Plaintiffs
provide read-only access to
the Works for free—
excluding certain of the
Works that are not
incorporated by reference as
claimed by PRO—on their
websites, and sometimes
linked through other
websites, such as local and
state government websites.
See ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶ 85. The
Works are also available for
purchase at reasonable
prices. ECF No. 118-2 (Pls.’
SMF) ¶¶ 57-61, 99, 158;
ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶ 77, and are
often available through
subscription services. ECF
No. 118-2 (Pls.’ SMF) ¶ 160;
ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶ 78;
Declaration of Thomas
O’Brien, Jr. dated Dec. 20,
2019 (O’Brien Decl. III”) ¶¶
9-10. Plaintiffs’ standards
are also available through
third-party subscription
services. O’Brien Decl. III
¶¶ 9-10.
Disputed to the extent PRO
intends to suggest that it
provides citizens with
“options for accessing laws
and regulations by

29

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

incorporation.” PRO’s
copies of standards contain
errors; PRO does not provide
comprehensive information
regarding where standards
have been incorporated by
reference; and, to the extent
PRO does identify
information about any
incorporating regulations,
that information is often
inaccurate. Mot. 15 & n.10.
Disputed to the extent PRO
intends to suggest that it
provides meaningful access
for persons with visual
disabilities. Public
Resource’s copies also are
not meaningfully accessible
to persons with visual
disabilities. ECF No. 155-1
(Pls.’ Supp. SMF ¶¶ 4-7).
31.
Second,
one
can
sometimes purchase copies.
This can be not only expensive
but also difficult, because
where, as here, the standards
are currently effective as law,
but are obsolete as standards, at
least
some
publishers
apparently see little reason to
make them widely available.
Some standards are available
only on paper because the
sponsoring
standards
development
organization
(SDO) has not authorized
electronic versions, and thus
they are unavailable to persons
with visual disabilities or for
computer-aided
analysis.

Objection. This statement
is PRO’s argument and, in
any event, would be
irrelevant to the extent it
relates to any standards
other than the Works, and
it contains inadmissible
opinion testimony with
respect to the
characterizations that
purchasing standards can
be expensive and difficult.
The statement’s discussion
of access for individuals
with visual disabilities is
irrelevant, as the D.C.
Circuit previously held that
“the district court properly
rejected some of PRO’s

30

The cited material supports
the assertions in this
statement. This evidence is
relevant to show access
issues for a standard NPFA
claims to own, that was
incorporated by reference
into law and thus it bears on
the nature and character of
Public Resource’s use of
standards incorporated by
reference into law, which in
turn relates to fair use and
related questions.
The case Getty Petroleum
Marketing, Inc. v. Capital
Terminal Co., 391 F.3d 312
(1st Cir. 2004) is relevant to
show access issues for a

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Becker Decl. ¶ 62, Ex. 96
(Fruchterman expert report).
Even when available, the
standards can cost hundreds of
dollars, plus shipping and
handling.
See Plaintiffs
Second
Supplemental
Statement of Material Facts
(“Plf. SSSMF”) ¶ 78. And
many older standards are not
available for purchase. See,
e.g., Getty Petroleum Mktg.,
Inc., 391 F.3d at 320-21, 330
(1st Cir. 2004) (court and
parties unable to locate NFPA
standard).

arguments as to its
transformative use—for
instance, that PRO was
converting the works into a
format more accessible for
the visually impaired or
that it was producing a
centralized database of all
incorporated standards.”
Am. Soc’y for Testing &
Materials v.
Public.Resource.Org, Inc.,
896 F.3d 437, 450 (D.C. Cir.
2018).

standard NPFA claims to
own, that was incorporated
by reference into law.
Moreover, the case falls
within the exceptions to
hearsay, because it is a public
record and a record of a
regularly conducted activity.
Fed. R. Evid. 803. If
necessary, the case should
also fall under the residual
exception of Fed. R. Evid.
807; Plaintiffs do not contest
the facts asserted in the case,
nor they cast any doubt on its
trustworthiness.

There is no support for the
statement that the
standards at issue in this
lawsuit are (1) expensive,
(2) not available for
purchase, (3) available only
on paper, (4) currently
effective as law, or (5)
obsolete as standards.
Disputed to the extent that
PRO implies that Plaintiffs’
standards are unreasonably
priced. There has been “no
outcry at all to date from the
standards-consuming public
about either a lack of access
to standards or unreasonablypriced standards. With the
exception of Defendant,
Plaintiffs have not received
any complaints about lack of
accessibility of their
standards.” ECF No. 118-12
(Rubel Decl.) ¶ 4, Ex. 1
(Jarosz Report. ¶ 161).

31

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed to the extent it
implies that any of the
standards at issue are not
reasonably available.
Standards are only eligible to
be incorporated by reference
if they are reasonably
available. 1 C.F.R. § 51.7.
None of the Works are
available only on paper—all
of the Works that have been
incorporated by reference are
available in a digital format
in Plaintiffs’ online reading
rooms, and many are
available for purchase in
digital format. ECF No. 1983 (Pls.’ 2d. Supp. SMF) ¶¶
77, 80, 85. In addition, many
of the Works are available in
digital format from
subscription services. ECF
No. 118-2 (Pls.’ SMF) ¶ 160;
ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶ 78; O’Brien
Decl. III ¶¶ 9-10. Standards
are also available through
third-party subscription
services that are fully textsearchable. O’Brien Decl. III
¶¶ 9-10.
PRO mischaracterizes
Getty Petroleum Marketing,
Inc. v. Capital Terminal Co.,
391 F.3d 312, 320 (1st Cir.
2004), which addresses
whether Capital Terminal’s
request for judicial notice
was wrongly refused where
Capital Terminal failed to
supply a certified copy of

32

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

NFPA 30 (1987) and the
court did not find a copy.
First, the case does not
stand for the proposition
that “many older standards
are not available for
purchase.” Second, NFPA
30 (1987) is available for
purchase on NFPA’s
website. Supplemental
Decl. of Jane Wise (“Wise
Decl. II”) ¶ 8, Ex. 180.
The availability of the 1987
version of this publication
is also irrelevant because it
is not one of the standards
at issue. Finally, this case is
hearsay and is inadmissible
to prove the truth of the
matter asserted.
Disputed to the extent it
implies that incorporation by
reference of a standard
makes the standard itself law.
PRO’s assertion that “the
standards are currently
effective as law” is
unsupported by the record
evidence and contradicted by
PRO’s own admission that it
has posted standards that are
not law: “when attempting to
post the relevant law, Public
Resource accidentally posted
an edition of an ASTM
standard that was not the
precise edition listed in the
C.F.R. incorporating
language.” ECF No. 203-1,
Opp. 6 n.3.

33

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Disputed that Plaintiffs’
standards are not available to
persons with visual
disabilities. Plaintiffs will
make electronic versions of
any of the Works available to
persons with visual
disabilities. ECF No. 155-1
(Pls.’ Supp. SUMF) ¶¶ 8-12.
Disputed to the extent PRO
intends to suggest that it
provides meaningful access
for persons with visual
disabilities. Public
Resource’s copies also are
not meaningfully accessible
to persons with visual
disabilities. ECF No. 155-1
(Pls.’ Supp. SMF ¶¶ 4-7).
NFPA has a commitment to
make accommodations for
persons with disabilities to
access NFPA materials. For
each request by a visually
impaired individual for
access to an NFPA standard,
NFPA has responded by
providing that individual
with a copy they can use at
no charge. ECF No. 155-6
(Dubay Decl.) ¶¶ 6-7. NFPA
is not aware of any other
individuals who have
requested and not received an
accommodation. Id. ¶ 6.
32.
Third, one can search
libraries
for
standards.
Contrary to the SDOs’
suggestion, library availability

Objection. This statement
is PRO’s argument not
based on any cited facts
and, in any event, would be

34

The cited material supports
the assertions in this
statement. This evidence is
relevant to show access

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
is poor; libraries typically carry
current standards but not
earlier standards that still
function as law, and library
copies are typically only on
paper.
See, e.g., Getty
Petroleum Mktg., Inc., 391
F.3d at 320-21, 330 (1st Cir.
2004).

PLAINTIFFS’ RESPONSE

irrelevant to the extent it
relates to any standards
other than the Works.
There is no support for the
statement that the
standards at issue in the
lawsuit are unavailable in
libraries.
Disputed to the extent it
implies that incorporation by
reference of a standard
makes the standard itself law.
PRO’s assertion that
“standards still function as
law” is unsupported by the
record evidence and
contradicted by PRO’s own
admission that it has posted
standards that are not law:
“when attempting to post the
relevant law, Public
Resource accidentally posted
an edition of an ASTM
standard that was not the
precise edition listed in the
C.F.R. incorporating
language.” ECF No. 203-1,
Opp. 6 n.3.
Disputed to the extent it
implies that any of the
standards at issue are not
reasonably available.
Standards are only eligible to
be incorporated by reference
if they are reasonably
available. 1 C.F.R. § 51.7.
All of the Works that have
been incorporated by
reference are available in a

35

DEFENDANT’S REPLY

issues for a standard NPFA
claims to own, that was
incorporated by reference
into law and thus it bears on
the nature and character of
Public Resource’s use of
standards incorporated by
reference into law, which in
turn relates to fair use and
related questions.
The case Getty Petroleum
Marketing, Inc. v. Capital
Terminal Co., 391 F.3d 312
(1st Cir. 2004) is relevant to
show access issues for a
standard NPFA claims to
own, that was incorporated
by reference into law.
Moreover, the case falls
within the exceptions to
hearsay, because it is a public
record and a record of a
regularly conducted activity.
Fed. R. Evid. 803. If
necessary, the case should
also fall under the residual
exception of Fed. R. Evid.
807; Plaintiffs do not contest
the facts asserted in the case,
nor they cast any doubt on its
trustworthiness.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

digital format in Plaintiffs’
online reading rooms, and
many are available for
purchase in digital format.
ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶¶ 77, 80, 85. In
addition, many of the Works
are available in digital format
from subscription services.
ECF No. 118-2 (Pls.’ SMF) ¶
160; ECF No. 198-3 (Pls.’
2d. Supp. SMF) ¶ 78;
O’Brien Decl. III ¶¶ 9-10.
Standards are also available
through third-party
subscription services.
O’Brien Decl. III ¶¶ 9-10.
PRO mischaracterizes
Getty Petroleum Marketing,
Inc. v. Capital Terminal Co.,
391 F.3d 312, 320 (1st Cir.
2004), which addresses
whether Capital Terminal’s
request for judicial notice
was wrongly refused where
Capital Terminal failed to
supply a certified copy of
NFPA 30 (1987) and the
court did not find a copy.
First, the case does not
stand for the proposition
that “many older standards
are not available for
purchase.” Second, NFPA
30 (1987) is available for
purchase on NFPA’s
website. Wise Decl. II”) ¶
8, Ex. 180.
The availability of the 1987
version of this publication

36

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

also is irrelevant because it
is not one of the standards
at issue. Finally, this case is
hearsay and is inadmissible
to prove the truth of the
matter asserted.
33.
Finally, one can access
some standards through online
“reading rooms”—all but one
of which standards publishers
established only after Public
Resource embarrassed them by
highlighting the lack of public
access. But many standards
that are part of the law are not
available in any online reading
room. See, e.g., Becker Decl.,
¶ 11, Ex. 44 (Comstock Depo.)
at 20:19–22.

Objection. This statement
is PRO’s argument not
based on any cited facts
and, in any event, would be
irrelevant to the extent it
relates to any standards
other than the Works.
There is no support for the
statement that standards
publishers established
reading rooms “only after
Public Resource
embarrassed them by
highlighting the lack of
public access.” The cited
reference simply addresses
ASHRAE’s policy
regarding which standards
to post in its reading
rooms—not its (or ASTM’s
or NFPA’s) reasons for
establishing the reading
rooms. ASTM started
planning its reading room
in 2011 and NFPA and
ASHRAE have provided
free read-only access for
over a decade. ECF No.
155-1 (Pls.’ Supp. SMF) ¶¶
23-24. The statement is
irrelevant. There is no
support for the statement
that many standards (and
all of the Works that were
actually incorporated by

37

The cited material supports
the assertions in this
statement. This evidence is
relevant to show access
issues for standards
ASHRAE claims to own that
are incorporated by reference
into law and thus it bears on
the nature and character of
Public Resource’s use of
standards incorporated by
reference into law, which in
turn relates to fair use and
related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

reference into the C.F.R.)
are not available in any
online reading room.
Moreover, the cited
reference says nothing of
whether many standards
incorporated by reference
are available on the reading
rooms. The cited reference
merely indicates that
ASHRAE sometimes
removes older standards
from its reading room (but
says nothing of whether
those standards are
incorporated by reference
or are the same standards
at issue here. Becker Decl.
¶ 11, Ex. 44 (Comstock
Depo.) at 20:19–22. And
ASHRAE has provided
clear testimony that all
standards at issue in this
case are available on its
reading room. Reiniche
Decl. [Dkt No. 199-34] ¶ 3.
Disputed to the extent it
implies that any of the
standards at issue are not
reasonably available.
Standards are only eligible to
be incorporated by reference
if they are reasonably
available. 1 C.F.R. § 51.7.
All of the Works that have
been incorporated by
reference are available in a
digital format in Plaintiffs’
online reading rooms, and
many are available for

38

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

purchase in digital format.
ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶¶ 77, 80, 85. In
addition, many of the Works
are available in digital format
from subscription services.
ECF No. 118-2 (Pls.’ SMF) ¶
160; ECF No. 198-3 (Pls.’
2d. Supp. SMF) ¶ 78.
Disputed to the extent it
implies that incorporation by
reference of a standard
makes the standard itself law.
PRO’s statement that
standards “are part of the
law” is unsupported by the
record evidence contradicted
by PRO’s own admission
that it has posted standards
that are not law: “when
attempting to post the
relevant law, Public
Resource accidentally posted
an edition of an ASTM
standard that was not the
precise edition listed in the
C.F.R. incorporating
language.” ECF No. 203-1,
Opp. 6 n.3.
34.
Plaintiffs
provide
“reading rooms” for some of
the incorporated standards.
Dkt. 118-11, ¶ 50; Dkt. 118-7,
¶ 60; Dkt. 118-8, ¶ 45; Dkt.
188-10, ¶¶ 19–20; Dkt. 198-53,
¶ 3; Dkt. 198-52, ¶ 41

Disputed. PRO does not
identify any Work that has
been incorporated that is not
available in one of Plaintiffs’
reading rooms. NFPA makes
all of its standards (and one
previously edition available
online for free read-only
access) and both NFPA and
ASHRAE make all of their
standards that have been
incorporated by reference

39

The reference to Dkt. 188-10,
¶¶ 19–20, contained a typo.
The correct reference is Dkt.
118-10, ¶¶ 19–20.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

into government regulations
available online for free readonly viewing. ECF No. 1182 (Pls.’ SMF) ¶¶ 100, 161;
ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶ 85. ASTM
makes all of the ASTM
Works and all ASTM
standards that it is aware
have been incorporated by
reference by the federal
government available for
read-only viewing in its
reading room. ECF No. 1182 (Pls.’ SMF) ¶ 63; ECF No.
198-3 (Pls.’ 2d. Supp. SMF)
¶ 85.
Plaintiffs object to PRO’s
reliance on ECF No. 18810, as no such docket entry
exists.
35.
Plaintiffs’
“reading
rooms” do not permit softwarebased searching and analysis of
the incorporated standards.
Becker Decl. ¶ 62, Ex. 96
(Fruchterman Rep.) at 6.

Objection. Inadmissible
opinion testimony. Mr.
Fruchterman has been
offered as an expert on
accessibility of materials to
people who are visually
impaired. He is not
competent to testify about
software-based searching
and analysis.
Disputed that Plaintiffs’
standards are not available to
persons with visual
disabilities. Plaintiffs make
accessible versions of any of
the Works available to
persons with visual

40

The statement is based on
Mr. Fruchterman’s percipient
testimony about Plaintiffs’
websites, not his expert
opinion.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

disabilities. ECF No. 155-1
(Pls.’ Supp. SUMF) ¶¶ 8-12.
36.
Plaintiffs
online
“Reading Rooms” do not allow
people with print disabilities to
use software based screen
readers to access the legally
mandated standards. Becker
Decl.
¶ 62,
Ex.
96
(Fruchterman Rep.) at 7–13.

Objection. Relevance. The
D.C. Circuit previously
held that “the district court
properly rejected some of
PRO’s arguments as to its
transformative use—for
instance, that PRO was
converting the works into a
format more accessible for
the visually impaired or
that it was producing a
centralized database of all
incorporated standards.”
Am. Soc’y for Testing &
Materials v.
Public.Resource.Org, Inc.,
896 F.3d 437, 450 (D.C. Cir.
2018).
Disputed. To protect their
copyrighted standards from
exposure to mass copying,
Plaintiffs have provided
versions of their standards on
their reading rooms that
provide read-only access.
See, e.g., ECF No. 204-51,
Ex. 45 (Grove Depo.) at
110:8-23; ECF No. 204-47,
Ex. 41 (Dubay Depo.) 77:2178:4; ECF No. 204-50, Ex.
44 (Comstock Depo.) at
10:23-11:3. There is no
evidence that Plaintiffs
placed any purposeful
restriction on the use of
screen readers by people with
print disabilities on their
reading rooms. To the extent
a screen reader requires the
41

This evidence is relevant to
show access issues for
standards Plaintiffs claim to
own that are incorporated by
reference into law and thus it
bears on the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which in turn
relates to fair use and related
questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

ability to do more than read
from an image of the
standard on the screen, it is
undisputed that the screen
reader will not be able to
read the versions of
Plaintiffs’ standards on their
reading rooms.
Disputed that Plaintiffs’
standards are not available to
persons with visual
disabilities.
Plaintiffs make accessible
versions of any of the Works
available to persons with
visual disabilities. ECF No.
155-1 (Pls.’ Supp. SUMF) ¶¶
8-12.
NFPA has a commitment to
make accommodations for
persons with disabilities to
access NFPA materials. For
each request by a visually
impaired individual for
access to an NFPA standard,
NFPA has responded by
providing that individual
with a copy they can use at
no charge. ECF No. 155-6
(Dubay Decl.) ¶¶ 6-7. NFPA
is not aware of any other
individuals who have
requested and not received an
accommodation. Id. ¶ 6.
37.
People must register to Undisputed.
access the reading rooms
established by ASTM and
NFPA.
The
registration
process requires a visitor to
provide ASTM and NFPA with

42

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

their names and email address.
ASTM also requires visitors to
provide additional information,
including the visitors address
and phone number. Becker
Decl., ¶ 12, Ex. 45(Grove
Depo.) at 213:14–19; Becker
Decl., ¶ 13, Ex. 46 (Bliss
Depo.) at 79:4–7; Becker
Decl., ¶ 9, Ex. 42 (Mullen
Depo.) at 50:4–18; Dkt. 122-8,
Ex. 132 (ASTM Reading
Library Registration Screen,
Page) at 1; Dkt. 122-8, Ex. 133
(ASTM Reading Library
Registration Screen) at 2; Dkt.
122-8, Ex. 138 (NFPA Sign In
Webpage).
38.
NFPA
uses
the Objection. Relevance.
information gathered from
visitors to its online Reading
Room to send marketing
materials. Becker Decl., ¶ 9,
Ex. 42(Mullen Depo.) at
51:17–52:2.

This evidence is relevant to
show conditions that
Plaintiffs place on access to
standards Plaintiffs claim to
own that are incorporated by
reference into law and thus it
bears on the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which in turn
relates to fair use and related
questions.

39.
The
visitor
to
Plaintiffs’ reading rooms will
find the standard displayed in a
small box on the visitor’s
screen, in text that is
sometimes degraded, in a small
font size that is difficult for
many
people
to
read.
Magnification of the text
makes the text appear blurry. In

The cited materials support
the assertions that Public
Resource makes.

Objection. This statement
is PRO’s argument.
Disputed. There is no
support for the contentions
that the text of the standards
is sometimes degraded, the
font size is difficult for many
people to read, magnification
of the text makes the text
43

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

general, only a small part of
each page of the standard is
visible at once, and with
greater magnification even a
single line cannot be viewed
without scrolling. Each page
of each standard is stamped
over the text with a warning
that
the
material
is
copyrighted. Becker Decl., ¶
12, Ex. 45(Grove Depo.) at
217:1–19; Dkt. 122-8, Ex. 140;
Dkt. 122-9, Ex. 141; Dkt. 1229, Ex. 142; Dkt. 122-9, Ex.
143; Becker Decl., ¶ 13, Ex. 46
(Bliss Depo.) at 219:18221:05; Dkt. 122-8, Ex. 139
(ASHRAE Reading Room
Screenshot);
Dkt.
118-7.

appear blurry, or only a small
part of each page can be
viewed without scrolling.
Not all Plaintiffs stamp each
page of the text with a
copyright notice. Objection
to the characterization of the
ASTM documents based on
the best evidence rule.

Disputed to the extent it
mischaracterizes the
statements by ASTM, which
speak for themselves and that
are quoted out of context.
See ECF No. 122-8, Def. Ex.
140, ECF No. 122-9, Def.
Ex. 141. There is no
evidence that the standards
are displayed in a “small”
box. The only cited evidence
Becker Decl. ¶ 61, of the size is a 5-by-7 pane.

Ex.

95.

Becker
Decl. ¶ 63, Ex. 97.
40.
A user of ASTM’s Undisputed.
reading room must click a box
that states the user agrees to
ASTM’s end user license
agreement before accessing the
reading room. NFPA’s reading
room also contains terms of
service. Dkt. 122-8 Ex. 35
(ASTM License Agreement
Webpage); Dkt. 122-8 Ex. 135
(ASTM
Reading
Room

44

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DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Terms); Dkt. 122-8 Ex. 137
(NFPA Free Access Terms).
41.
ASHRAE posted some Undisputed.
of its standards for public
viewing in a format that
restricted downloading. Becker
Decl., ¶ 11, Ex. 44 (Comstock
Depo.) at 11:25–12:7.
42.
ASHRAE posted its Undisputed.
standards for public viewing
with the intent of increasing
demand for the posted
standards. Becker Decl., ¶ 11,
Ex. 44(Comstock Depo.) at
11:25–12:7.
43.
ASHRAE
removes
older standards incorporated
by reference from its reading
room. Becker Decl., ¶ 11, Ex.
44 (Comstock Depo.) at 20:19–
22.

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

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

THE STANDARDS ARE DESIGNED TO BE FOLLOWED AS LAW

45.
Plaintiffs
monitor
whether people follow the
requirements of standards
incorporated into law. Becker

Disputed. The cited
deposition testimony does
not describe the actions of
Plaintiffs. The testimony
describes NFPA’s Mr.

45

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Decl., ¶ 13, Ex. 46 (Bliss Bliss’s previous “service as a
Depo.) at 30:1–37:25.
government employee,” not
his actions on behalf of
NFPA. See, e.g., ECF No.
122-1, Def. Ex. 4 (Bliss
Depo.) 32:20-33:10. The
evidence is to the contrary.
NFPA standards state
expressly “The NFPA has no
power nor does it undertake,
to police or enforce
compliance.” See, e.g., Dkt.
199-12 (sealed), Supp.
Pauley Decl. Ex. A (NFPAPR0013033).
There is no evidence that
supports this statement in
connection with any Plaintiff,
and PRO does not even cite
any statement that relates to
ASHRAE or ASTM.
46.
Plaintiffs
enforce
whether people follow the
requirements of standards
incorporated into law. Becker
Decl., ¶ 13, Ex. 46 (Bliss
Depo.) at 30:1–37:25.

Objection. The phrase
“Plaintiffs enforce” is
vague and ambiguous.
Disputed. The testimony
describes NFPA’s Mr.
Bliss’s previous “service as a
government employee,” not
his actions on behalf of
NFPA. See, e.g., ECF No.
122-1, Def. Ex. 4 (Bliss
Depo.) 32:20-33:10. The
evidence is to the contrary.
NFPA standards state
expressly “The NFPA has no
power nor does it undertake,
to police or enforce
compliance.” See, e.g., Dkt.
199-12 (sealed), Supp.

46

The cited materials support
the assertions that Public
Resource makes. To the
extent that there is any
ambiguity, the cited material
provides examples of
conduct by Plaintiff to
“enforce” requirements.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Pauley Decl. Ex. A (NFPAPR0013033).
There is no evidence that
supports this statement in
connection with any Plaintiff,
and PRO does not even cite
any statement that relates to
ASHRAE or ASTM.
47.
The standards at issue
are dictated by external factors,
including
international
principles and the desire to
satisfy regulations and laws.
Dkt. 122-7, Ex. 106 (Public
Policy & Corporate Outreach
Presentation, Sep. 2015);
Becker Decl., ¶ 12, Ex. 45
(Grove Depo.) at 94:24-95:01.

Disputed. The proposition
that Plaintiffs’ standards are
dictated by external factors,
including international
principles and the desire to
satisfy laws and regulations,
is not supported by the cited
testimony or document.
In response the question
“What regulatory purposes
do you anticipate government
agencies have that causes
them to examine industry
standards?” the witness
answered, “I don’t have an
answer for that. I think you
could assume that
government participants in
the standardization process
bring knowledge of
regulatory agendas and
regulatory needs of agencies
to the voluntary consensus
community of which ASTM
is one member amongst
others.” ECF No. 204-51,
Ex. 45 (Grove Depo.) at
94:15-95:3. Similarly, the
cited document is a
PowerPoint presentation that
contains no statements about
any factors that dictate the

47

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

content of Plaintiffs’
standards.
There is no evidence that
supports this statement in
connection with any Plaintiff,
and PRO does not even cite
any statement that relates to
NFPA or ASHRAE.
48.
NFPA’s Style Manual
for the NEC, for example,
specifies that because the NEC
is “intended to be suitable for
adoption as a regulatory
document, it is important that it
contain
clearly
stated
mandatory requirements in the
code text” so as to “encourage
uniform adoption . . . without
alterations.”
Additionally,
ASHRAE circulates a detailed
Manual designed to ensure that
technical committees draft
standards that will be easily
adopted as regulations. Dkt.
122-8, Ex. 122 (Style Manual
for the NEC) at 4; Dkt. 122-7,
Ex. 103 (ASHRAE Guide to
Writing Standards in Code
Intended Language).
IV.

Objection as to
completeness. The NEC
Style Manual includes
substantial other general
and specific guidelines.
E.g., Dkt. 122-8, Ex. 122 at
p. 8 (describing annexes
inclusion of
“nonmandatory material”);
id. at p. 13 (describing
process for drafting
nonmandatory permissive
rules and informational
notes).

Plaintiffs do not assert that
any other guidelines in the
NEC Style Manual, or any
other evidence, contradict the
quoted statement.
The guidelines in the NEC
Style Manual do not conflict
with or otherwise undermine
the assertions that Public
Resource makes here.

Disputed as to ASTM. None
of the cited evidence relates
to ASTM or its standards, yet
PRO implies that this
statement applies universally
to all Plaintiffs.

PLAINTIFFS LOBBY TO HAVE THEIR STANDARDS MADE LAW

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

Disputed. ASTM does not
lobby for incorporation of its
standards by reference.
However, if a government is
going to incorporate an
ASTM standard by reference,
ASTM believes that it should
use the most up-to-date
standard rather than outdated

48

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

materials. ECF No. 204-51,
Ex. 45 (Grove Depo.) at
124:10–125:05.
50.
The
adoption
or
incorporation of NFPA codes
and standards into law may
benefit NFPA financially
because
it
encourages
industries to purchase the
standard. Becker Decl., ¶ 13,
Ex. 46 (Bliss Depo.) at 118:23–
119:1; Becker Decl., ¶ 5, Ex.
38 (Jarosz Depo.) at 209:16–
210:7.

Disputed. The cited
references do not indicate
that incorporation encourages
industries to purchase
standards. In the deposition
of Mr. Bliss, he offered his
opinion that individuals
might purchase a standard
that had been incorporated;
he did not identify any
evidence that supports PRO’s
speculation. In the cited
portion of Mr. Jarosz’s
deposition, he states that
incorporation allows
Plaintiffs to serve the
industry; that testimony does
not say that incorporation
encourages industries to
purchase the standards.
Disputed as incomplete.
NFPA has not identified any
direct correlation between
incorporation by reference
and sales. ECF No. 122-2,
Def. Ex. 11 (Mullen Depo.)
95:3-25.

51.
ASHRAE
has
a
Government Affairs office in
Washington D.C. Dkt. 122-4, ,
Ex. 52.

It is undisputed that
ASHRAE has an office in
Washington DC. Some of
the activities that office takes
could be characterized as
“Government Affairs.”

52.
ASHRAE’s
Government Affairs office has
encouraged
members
of
congress and other policy

Disputed. ASHRAE does not
dispute that it offers technical
assistance to members of
congress when requested.

49

This evidence is relevant to
show actions by ASHRAE to
encourage governmental
bodies to incorporate by

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

makers
to
incorporate
ASHRAE standards into law.
Becker Decl., ¶ 10, Ex. 43
(Reiniche Depo.) at 136:11–
21; 138:24–140:10; 210:19–
211:09.

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

reference into law safety
standards, of which the
works at issue in this case are
an example. Accordingly,
this relates to the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which in turn
relates to fair use and related
questions.

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

Objection to Relevance
(Fed. R. Evid. 402).
Defendant overstates the
testimony, which actually
reflects that volunteer
members of ASHRAE
chapters may speak to local
government officials “when
we are made aware of
references” to standards. In
other words, this grassroots
campaign does not
necessarily involve adoption
of standards but could be
about a number of issues, and
engagement appears to occur

50

This evidence is relevant to
show actions by ASHRAE to
encourage governmental
bodies to incorporate by
reference into law safety
standards, of which the
works at issue in this case are
an example. Accordingly,
this relates to the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which in turn
relates to fair use and related
questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

once the topic of
incorporation by reference
has already arisen
independent of ASHRAE.
ECF No. 204-49, Ex. 43
(Reiniche Depo.) at 144:06–
145:23.
54.
ASHRAE refers to the
citation of ASHRAE 90.1 in
the Energy Policy Act
(“EPAct”) as ASHRAE’s
“EPAct advantage,” because
ASHRAE 90.1 is referenced
over other energy efficiency
commercial building codes.
Dkt. 122-4, Ex. 50; Becker
Decl., ¶ 10, Ex. 43 (Reiniche
Depo.) at 127:13–127:18,
128:07–130:21.

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

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

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

This evidence is relevant to
show actions by ASHRAE to
encourage governmental
ASHRAE admits it has
bodies to incorporate by
entered a memorandum of
reference into law safety
understanding with the DOE. standards that it claims to
However, it disputes that the own, of which the works at
evidence regarding “adoption issue in this case are an
into building codes” is
example. Accordingly, this
relevant. As Ms. Reniche
relates to the nature and
explained in the testimony
character of Public
that Defendant cites, this
Resource’s use of standards
“adoption” most likely
incorporated by reference
pertained to 90.1 serving as
into law, which in turn
an alternate form of
relates to fair use and related
compliance to an
questions.
International Code Council
code (not direct incorporation
51

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

into federal law). ECF No.
204-49, Ex. 43 (Reiniche
Depo.) at 111:4-11; 113:13114:1.
56.
ASTM
makes
governments aware of ASTM
standards, and takes pride in
the incorporation by reference
of its standards. Becker Decl.,
¶ 12, Ex. 45 (Grove Depo.) at
235:02–236:02.

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

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

Disputed. The cited
testimony and exhibit
demonstrate that ASTM
encourages government
agencies who plan to
reference an ASTM standard
to reference the most up-todate version of that standard.
ASTM does not lobby for the
incorporation by reference of
its standards or for the
inclusion of any particular

52

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

language in legislation. ECF
No. 118-2 (Pls.’ SMF) ¶ 56.
58.
ASTM participated in Objection. Relevance.
an
“Incorporation
by
Reference Public Workshop” Undisputed.
with the U.S. Department of
Transportation on July 13,
2012. Becker Decl., ¶ 12, Ex.
45 (Grove Depo.) at 270:7–19.

This evidence is relevant to
show actions by ASTM to
encourage governmental
bodies to incorporate by
reference into law safety
standards that it claims to
own, of which the works at
issue in this case are an
example. Accordingly, this
relates to the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which in turn
relates to fair use and related
questions.

59.
ASTM
has
never
requested that Congress or a
federal agency not incorporate
an ASTM standard by
reference into law. Becker
Decl., ¶ 12, Ex. 45 (Grove
Depo.) at 261:25–262:08.

This evidence is relevant to
show actions by ASTM with
respect to the incorporation
by reference into law by
governmental entities of
safety standards that it claims
to own, of which the works at
issue in this case are an
example. Accordingly, this
relates to the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which in turn
relates to fair use and related
questions.

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

60.
On December 3, 2015, Objection. Relevance.
ASTM co-sponsored an event Objection to the extent that
in Washington D.C. entitled PRO implies that a

53

This evidence is relevant to
show actions by ASTM to
encourage governmental

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

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

statement on American
National Standard
Institute’s website about
the event is attributed to
ASTM. Objection to the
extent it mischaracterizes
the document, which states
“The event —on December
4, 2015, from 12:00-1:30
p.m. EST—will feature
discussions between policy
and business leaders who
will highlight the
importance of government
participation in and the
reliance on voluntary
standards and
conformance.” Plaintiffs
further object to the
statement as hearsay.

bodies to incorporate by
reference into law safety
standards that it claims to
own, of which the works at
issue in this case are an
example. Accordingly, this
relates to the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which in turn
relates to fair use and related
questions.

Disputed as to
characterization of the
supporting exhibit as
“promotional literature.”
Disputed to the extent it
falsely suggests that ASTM
is referencing anything other
than the importance of
having government
representation in the
standards development
process, as well as the input
of industry, public interest
groups and others. ASTM
does not lobby for the
incorporation by reference of
its standards or for the
inclusion of any particular
language in legislation. ECF
No. 118-2 (Pls.’ SMF) ¶ 56.

54

Additionally, any quotations
are not offered for the truth
of the statement, but rather
for the fact that ASTM, as a
co-sponsor of the event,
makes such representation to
the public.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

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

DEFENDANT’S REPLY

Disputed to the extent that
PRO suggests that NFPA
engages in activities with the
sole purpose of encouraging
the adoption of its
standards—as opposed to
engaging in activities with
another primary purpose
(e.g., education of the public
or increasing public safety),
that have the secondary
effect of encouraging
jurisdictions to adopt its
standards.
Disputed to the extent this
suggests that NFPA’s
purpose in developing
standards is for them to be
incorporated by reference.
NFPA does not develop any
standards solely for that
purpose. ECF No. 118-2
(Pls.’ SMF) ¶¶ 90-91.
Disputed to the extent it
implies that incorporation by
reference of a standard
makes the standard itself law.

62.
NFPA is not aware of
any situation where it would
discourage the adoption of a
standard into law. Becker
Decl., ¶ 13, Ex. 46 (Bliss
Depo.) at 48:21–49:04.

Disputed to the extent it
implies that incorporation by
reference of a standard
makes the standard itself law.

63.
NFPA is “advocating
for fire safety” through the
adoption and use of its
standards by governments and
industries. Becker Decl., ¶ 13,

Objection. The statement
is irrelevant to the extent
that it relates to ways that
industry and government
use standards other than
incorporation by reference.
55

This evidence is relevant to
show actions by NFPA to
encourage governmental
bodies to incorporate by
reference into law safety
standards that it claims to

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Ex. 46 (Bliss Depo.) at 82:13–
25.
Disputed. Defendant
mischaracterizes the
testimony, which states, “I
guess it depends on the, how
you would define
‘advocacy.’ We’re
advocating for fire safety,
and we believe that the
adoption and use of standards
promotes fire safety.” Def.
Ex. 4 (Bliss Depo.) 82:13-16.

own, of which the works at
issue in this case are an
example. Accordingly, this
relates to the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which in turn
relates to fair use and related
questions.

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

The statement is relevant to
show the harmful effect of
barriers to access to
regulations.

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

The document contains
nothing that would influence
the factfinder on emotional
or other improper grounds,
thus is not unduly prejudicial.
Plaintiffs admit that their
legally incorporated
standards are critical for
public safety.
The statement is capable of
authentication by testimony
at trial.

V.

PUBLIC RESOURCE AND CARL MALAMUD

A.

Carl Malamud’s Record of Public Service

65.
Carl Malamud is the
President and Founder of
Public Resource. Since the
1980’s, Mr. Malamud has
dedicated his career to matters
of public interest with a focus
on Internet connectivity and

Objection. Relevance. Mr.
Malamud’s prior work
experience is irrelevant.
Plaintiffs object that the
statement that Mr.
Malamud founded the first
radio station on the

56

The declaration of Mr.
Malamud supports the
assertions that Public
Resource makes.
This evidence lays
foundation for Mr.
Malamud’s testimony about

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

public access. Mr. Malamud’s
career began as a Senior
Systems Analyst at Indiana
University. After completing
his doctoral coursework with a
focus
on
antitrust
and
regulation at the Indiana
University School of Business,
Mr. Malamud left the program
to work on early relational
database
programs
and
computer
networking.
Declaration of Carl Malamud
in
Support
of
Public
Resource’s
Motion
for
Summary
Judgment
and
Opposition
to
Plaintiffs’
Motion
for
Summary
Judgment (“Malamud Decl”)
¶ 3. In 1984, Mr. Malamud
assisted
the
Board
of
Governors of the Federal
Reserve System in using
computer
and
network
technology to improve key
indicators such as forecasts of
the money supply. Malamud
Decl. ¶ 4. Throughout the rest
of the 1980’s Mr. Malamud
continued his public service as
a computer consultant to the
Argonne
and
Lawrence
Livermore
National
Laboratories
and
the
Department of Defense as well
as teaching advanced seminars
in relational databases and
computer networks. Malamud
Decl. ¶ 5. In 1993, Mr.
Malamud founded the first
radio station on the Internet,
which he ran as a 501(c)(3)

internet lacks foundation.
Objection to the extent the
statement is not supported
by the declaration.

Public Resource’s activities,
and it is relevant to the public
and non-commercial nature
and character of Public
Resource’s use.

57

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

66.
In January 1994, Mr.
Malamud began to make
government and legal materials
more widely available to the
public.
Using a National
Science Foundation grant, he
purchased all electronic filings
corporations submitted to the
Securities
and
Exchange
Commission
(SEC)
and
created the Electronic Data
Gathering
and
Retrieval
(EDGAR) service, which he
made available for free on the
Internet. Malamud Decl. ¶ 7. In
August 1995, he donated
computers and software to the
SEC so the Commission could
take over this service. Id. The
SEC continues to operate this
popular service, and reports
that the system processes about
3,000 filings per day and 3,000
terabytes of data annually. See
“About
EDGAR,”
https://www.sec.gov
/edgar/aboutedgar.htm.

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

This evidence lays
foundation for Mr.
Malamud’s testimony about
Public Resource’s activities,
and it is relevant to the public
and non-commercial nature
and character of Public
Resource’s use.

67.
Also in 1994, Mr.
Malamud obtained the first
“new media” credentials from
the Radio-TV Gallery of the
U.S. House of Representatives
and started live-streaming all
proceedings from the floors of
the House and Senate.
Malamud Decl. ¶ 9. He later
assisted the Joint Economic
Committee in hosting the first
congressional hearing on the

Objection. Relevance. Mr.
Malamud’s prior work
experience is irrelevant.
Objection to the New York
Times Article, ECF No.
204-8, Def. Ex. 2, as
hearsay to the extent PRO
relies on it for the truth of
the matter asserted therein.

nonprofit
public
Malamud Decl. ¶ 6.

station.

Additionally, the last
sentence is admissible as a
record of the SEC made in
the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Additionally, any quotations
are not offered for the truth
of the statement, but rather
for the fact that the SEC
makes such representation to
the public.

58

This evidence lays
foundation for Mr.
Malamud’s testimony about
Public Resource’s activities,
and it is relevant to the public
and non-commercial nature
and character of Public
Resource’s use.
The New York Times Article
falls under the residual
exception of Fed. R. Evid.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Internet. Malamud Decl. ¶ 10.
That year, Mr. Malamud also
purchased feeds of all U.S.
patents and made them
available for free on the
Internet, and later convinced
the U.S. Patent and Trademark
Office to provide this service to
the public itself. Malamud
Decl. ¶ 12.

68.
Throughout the 2000s,
Mr. Malamud continued his
mission of making government
information more accessible to
the public. In 2005 and 2006,
Mr. Malamud was the Chief
Technology Officer for the
non-profit
education
organization
Center
for
American Progress.
While
there,
he
focused
on
developing a plan to make all
congressional
hearing
available to the public as highresolution video. Malamud
Decl. ¶ 13. And, in 2007, Mr.
Malamud founded Public
Resource.
Through Public
Resource, Mr. Malamud has
spearheaded successful efforts
to make government records
and information publicly
accessible. Malamud Decl.
¶ 14.

DEFENDANT’S REPLY

807; Plaintiffs do not contest
the facts asserted in the
article, nor they cast any
doubt on its trustworthiness.
In any case, the New York
Times Article is not offered
for the truth of the statement,
but rather for the fact that
such representations have
been made to the public
regarding Mr. Malamud
work.

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

This evidence lays
foundation for Mr.
Malamud’s testimony about
Public Resource’s activities,
and it is relevant to the public
and non-commercial nature
and character of Public
Resource’s use.

69.
In
January
2009, Objection. This statement
This evidence lays
President Barack Obama’s is unsupported to the extent foundation for Mr.
transition effort recruited Mr. that it relies upon
Malamud’s testimony about
59

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

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

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

70.
Mr. Malamud has been
recognized
by
numerous
government officials for his
efforts to make government
information freely accessible
on the Internet. For example,
Hon. Nancy Pelosi, Speaker of
the House of Representatives,
wrote to Mr. Malamud on April
17, 2008, stating: “I thank you
for your work to increase
public
discourse
on
technology, public domain,
and transparency issues and
look forward to continuing to
work with you.” Malamud
Decl. ¶ 13. Hon. John Boehner,
then Speaker of the House of

Objection. This statement
is unsupported to the extent
that it relies upon
inadmissible hearsay to
prove the truth of the
matter asserted. Mr.
Malamud’s prior work
experience is also
irrelevant. Plaintiffs
further object to selective
quotes from the attached
letters as incomplete.
Plaintiffs object to PRO’s
reference to receiving
commendations from
“many others” as vague
and ambiguous. Plaintiffs
further object to PRO’s

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

60

DEFENDANT’S REPLY

Public Resource’s activities,
and it is relevant to the public
and non-commercial nature
and character of Public
Resource’s use.
Additionally, the Ferriero
letter is not offered for the
truth of the statement, but
rather for the fact that a
government official has made
such statements concerning
Public Resource’s work.
Plaintiffs fail to identify any
part of the Ferriero letter that
contradicts or undermines the
quoted language.

This evidence lays
foundation for Mr.
Malamud’s testimony about
Public Resource’s activities,
and it is relevant to the public
and non-commercial nature
and character of Public
Resource’s use.
Additionally, the references
to commendations that Mr.
Malamud has received are
not offered for the truth of
the statements, but rather for
the fact that government
officials have made such
statements concerning Public
Resource’s work.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Representatives, together with
Representative Darrell Issa,
Chair of the House Committee
on Oversight and Government
Reform, wrote to Mr. Malamud
on January 5, 2011, stating:
“We’re writing today to thank
you for your nearly two
decades of work to increase the
availability of public data, and
more recently your efforts to
publish proceedings of the
House
Oversight
and
Government
Reform
Committee in their entirety,”
and later recognized Public
Resource from the floor of the
House. Malamud Decl. ¶ 15.
Mr. Malamud has also received
commendations from Hon. Lee
H. Rosenthal, Chair of the
Committee on Rules of
Practice and Procedure of the
Judicial Conference of the
United States, and many
others. Malamud Decl. ¶ 18.

reliance on PRO’s
summaries of purported
commendations under FRE
1002, to the extent that
PRO fails to attach a
writing, recording, or
document to the
declaration.

Plaintiffs fail to identify any
portions of the referenced
letters that contradicts or
undermines the quoted
language.

71.
In
addition
to
recognition from government
officials, organizations have
routinely recognized Mr.
Malamud’s efforts to make
government information more
accessible, including awards
from Harvard University, the
Society
of
Professional
Journalists,
the
First
Amendment Coalition, and the
American Association of Law
Libraries.
Malamud Decl.
¶ 23.

Objection. Relevance.
Plaintiffs further object to
PRO’s reliance on PRO’s
summaries of purported
awards under FRE 1002 to
the extent that PRO fails to
attach any writing,
recording, or document to
the declaration. Plaintiffs
object to PRO’s
characterizations of specific
awards received “routinely
recognize[ing] Malamud’s
efforts.” As Plaintiffs noted
in their opening brief, the
Harvard Law Review

This evidence lays
foundation for Mr.
Malamud’s testimony about
Public Resource’s activities,
and it is relevant to the public
and non-commercial nature
and character of Public
Resource’s use.

The materials that Plaintiffs
cite do not undermine the
assertion that members of the
federal government approve
Plaintiffs object to the
of Public Resource’s work
extent PRO implies that the and mission.
federal government
approves of PRO’s posting Public Resource does not
rely on improper summaries,
any of the Works.
Numerous federal agencies and Mr. Malamud has
personal knowledge of the
have explicitly taken the
position that incorporation commendations that he and
Public Resource have
by reference of materials
received.
into regulations does not
destroy the copyright in
those materials. ECF No.
118-2 (Pls.’ SMF) ¶ 177.

61

Plaintiffs’ reference to the
BlueBook does not contradict
or undermine the fact that
many organizations,
including Harvard
University, have recognized
Mr. Malamud’s work with

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

DEFENDANT’S REPLY

disputed Mr. Malamud’s
rights to use the BlueBook
without authorization. See
Dkt. 200 n. 3.

B.

PLAINTIFFS’ RESPONSE

awards for Public Resource’s
work and mission.
Public Resource does not
rely on improper summaries,
and Mr. Malamud has
personal knowledge of the
awards and recognitions that
he and Public Resource have
received.

Public Resource’s Mission

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

Objection as to relevance of
Mr. Malamud’s or Public
Resource’s supposed
subjective intent or “aims.”
As explained in Plaintiffs’
briefing, fair use turns on
how a work appears to a
reasonable observer, not on
the infringer’s subjective
intent. Reply at Part
I.A.1.b.
Objection. “Government
edicts” is vague and
ambiguous and requires a
legal conclusion.
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law
or government-authored
materials. Disputed to the
extent it implies that each of
the standards at issue has
been incorporated by
reference in its entirety or at
all for the reasons stated in
response to Paragraph 84.
Disputed to the extent it
suggests that PRO posts
62

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.
The phrase “government
edicts,” as used here, is not
vague or ambiguous. Its
usage is also clarified by
context and the reference to
the Public Resource website.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

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

Objection. This statement
is irrelevant. The D.C.
Circuit has already rejected
Defendant’s argument that
converting works into a
format more accessible for
the visually impaired is a
transformative use. Am.
Soc’y for Testing &
Materials v.
Public.Resource.Org, Inc.,
896 F.3d 437, 450 (D.C. Cir.
2018) (“[T]he district court
properly rejected some of
PRO’s arguments as to its
transformative use—for
instance, that PRO was
converting the works into a
format more accessible for
the visually impaired or
that it was producing a
centralized database of all
incorporated standards.”).
Disputed to the extent PRO
claims that it “promotes
public discourse.” There is
no evidentiary support for
this claim or any claim as to
how persons use PRO’s
copies of the Works.
Disputed. PRO cites no
evidence to support its
assertion that its postings of
the Works have been used by
researchers in any way,
including to analyze them at

63

This evidence is relevant to
show the nature and
character of Public
Resource’s use, which bears
directly on fair use and
related questions. The
assertions in the statement
concern matters other than
measures Public Resource
takes with respect to
accessibility by visually
impaired persons.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

large scale with techniques
such as machine learning.
Disputed that PRO
“painstakingly retypes
documents” to the extent that
it suggests that it accurately
or carefully retypes
documents. PRO’s copies of
documents, including of the
Works, contain numerous
mistakes. ECF No. 118-2
(Pls.’ SMF) ¶¶ 214-19; ECF
No. 198-3 (Pls.’ 2d. Supp.
SMF) ¶¶ 13-20. PRO also
hired Point.B Studio, which
used children from a
mentoring program whose
target audience was 7- to 14year-olds to convert formulas
to MathML and drawings to
SVG. ECF No. 118-2 (Pls.’
SMF) ¶ 199.
Disputed. PRO’s assertion
that its copying made
documents “newly wordsearchable” is unsupported
by the record evidence.
Plaintiffs’ publish standards
in a variety of formats,
including searchable PDFs,
HTML, and XML. See ECF
No. 118-2 (Pls.’ SMF) ¶¶ 57,
99, 157. Standards are also
available through third-party
subscription services that are
fully text-searchable.
O’Brien Decl. III ¶¶ 9-10.
Disputed to the extent it
suggests that Plaintiffs’

64

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

standards are themselves law
or government-authored
materials. Disputed to the
extent it implies that each of
the standards at issue has
been incorporated by
reference in its entirety or at
all for the reasons stated in
response to Paragraph 84.
74.
Public
Resource
endeavors to post on its
website only standards that
have become a federal or state
law or regulation through
incorporation by reference.
Malamud Decl. ¶ 38.

C.

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

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.

Public Resource’s Litigation and Other Disputes

75.
In January 2013, the
Sheet
Metal
and
Air
Conditioning
Contractors
National
Association
(SMACNA) threatened Public
Resource with litigation for
posting the “HVAC Air Duct
Leakage Test Manual,” which
was incorporated by reference
into 10 CFR § 434.403 as well
as incorporated into state
regulations. Malamud Decl., ¶
33.

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

65

This evidence lays
foundation for a past dispute
that Public Resource
encountered with a
standards-setting
organization and is relevant
to show the public and noncommercial nature and
character of Public
Resource’s use, which bears
directly on fair use and
related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

The assertion is not hearsay;
Mr. Malamud is testifying
directly about a matter within
his personal knowledge, and
he does not rely on any
statement offered for the
truth of the matter asserted.

76.
Public Resource sued
for declaratory relief in the
U.S. District Court for the
Northern District of California,
Case 3:13-cv-00815. Malamud
Decl., ¶ 34. On July 9, 2013
SMACNA agreed to a
stipulated judgment in which it
agreed no longer to threaten
Public Resource or other
parties for the posting of the
four
standards
explicitly
incorporated into the CFR, not
to assert copyright in those
documents, and to pay Public
Resource a token one dollar.
See Malamud Decl., ¶ 34, Ex.
27.

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

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.

77.
When the State of
Oregon objected to Public
Resource’s posting of the
Oregon Revised Statutes, Carl
Malamud spoke to the
Legislative
Counsel
Committee, a joint committee
of the Oregon Legislature
chaired by the Speaker of the
House
and
the
Senate
President. After hearing him
and other witnesses, including
the Legislative Counsel, the

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

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.

66

The assertion is not hearsay;
Mr. Malamud is testifying
directly about a matter within
his personal knowledge, and
he does not rely on any
statement offered for the
truth of the matter asserted.

The assertion is not hearsay;
Mr. Malamud is testifying
directly about a matter within
his personal knowledge, and

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

committee voted to abandon
assertions of copyright over the
Oregon Revised Statutes. See
Malamud Decl., ¶ 24, Ex. 23.

DEFENDANT’S REPLY

he does not rely on any
statement offered for the
truth of the matter asserted.

78.
Similarly, in 2012, after
Public Resource posted the
official Code of the District of
Columbia, the General Counsel
of the District of Columbia
studied the situation and
decided to produce a better
web site for public access to the
laws of the District of
Columbia. The software is
maintained by the non-profit
Open Law Library and
available
at
https://code.dccouncil.us/. See
Malamud Decl., ¶ 25.

Objection. Relevance.
PRO’s discussion of
activities of an entity not a
party to this action related
to PRO’s posting of
materials not authored by
Plaintiffs and not at issue in
this case is irrelevant.

79.
The State of Georgia
sued Public Resource for
posting online the Official
Code of Georgia Annotated.
Malamud Decl., ¶ 26. That
case concerns Georgia’s only
official law, which the state
publishes as the “Official Code
of Georgia Annotated” with
annotations that the state has
designated as “official.” The
Eleventh Circuit held that
Public Resource’s actions were
lawful: it ruled the entire Code,

Objection. Relevance.
PRO’s discussion of
litigation involving an
entity not a party to this
action related to PRO’s
posting of materials not
authored by Plaintiffs and
not at issue in this case is
irrelevant.

Hearsay and lack of
foundation/personal
knowledge as to what the
General Counsel of the
District of Columbia
studied or what software is
maintained by Open Law
Library.

Improper opinion
testimony regarding the
supposed holding. The
Eleventh Circuit’s ruling

67

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.
The assertion is not hearsay;
Mr. Malamud is testifying
directly about a matter within
his personal knowledge, and
he does not rely on any
statement offered for the
truth of the matter asserted.
The reference to actions
taken by the General Counsel
of the District of Columbia
are ones that Mr. Malamud
has personal knowledge of

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.
Plaintiffs mischaracterize the
Georgia v.
Public.Resource.Org case.
And Plaintiffs also ignore the
fact that they sought a stay of
this action pending the

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

with
annotations,
is
a
government edict not subject to
copyright. See Code Revision
Commission
v.
Public.Resource.Org, 906 F.3d
1229, 1233, 1244 (11th Cir.
2018). That case is now before
the U.S. Supreme Court. See
State
of
Georgia
v.
Public.Resource.Org,
Inc.,
U.S. Supreme Court Docket
18-1150. Malamud Decl., ¶
26.

regarding Defendant’s
posting of the Official Code
of Georgia Annotated (law
authored by the Georgia
Legislature), as opposed to
standards authored by
private entities and
allegedly incorporated by
reference into law, is
irrelevant. See ECF No.
195 at 1 (opposing a stay in
this case on the basis that
“Georgia v.
Public.Resource.Org is
unlikely to affect
significantly the questions
immediately before this
Court, namely fair use and
copyright ownership
determinations based on
the facts of this case.”).

Supreme Court’s decision in
Georgia v.
Public.Resource.Org, based
on the argument “that PRO is
going to make the same
arguments in both this Court
and the Supreme Court . . . .”
ECF No. 196 at 2.

PRO’s description of the
Eleventh Circuit’s holding
is a legal conclusion and
not a factual statement.
80.
Mr. Malamud and
Public Resource posted to the
Internet Archive the version of
the 2002 version of the
National Electrical Safety
Code (NESC) that the Indiana
Supreme Court reviewed in
Bellwether Properties, LLC, v.
Duke Energy Indiana, Inc., 87
N.E.3d 462, 468–69 (Ind.
2017), which is located at
https://ia600704.us.archive.org/
16/items/gov.law.ieee.c2.2002/
ieee.c2.2002.pdf.
Malamud
Decl. ¶ 42. The metadata page
for the 2002 version of the

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

68

The case Bellwether
Properties, LLC, v. Duke
Energy Indiana, Inc., is a
matter of public record of
which a court may take
judicial notice. See, e.g.,
Bebchick v. Washington
Metro. Area Transit
Comm’n, 485 F.2d 858, 880
n.176 (D.C. Cir. 1973); see
also ECF No. 204-3 (Request
for Judicial Notice).
Plaintiffs do not cite any case
law for the argument that the
scope of Public Resource’s

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

NESC indicates that it was
“Uploaded
by
Public.Resource.Org,”
see
https://archive.org/details/gov.
law.
ieee.c2.2002
and
https://ia600704.us.archive.org
/16/items/gov.law.ieee.c2.200
2/ieee.c2.2002.
pdf_meta.txt. Id.

VI.

DEFENDANT’S REPLY

request for judicial notice is
prohibited as hearsay.
This evidence is relevant to
show access issues for a
standard that has been
incorporated by reference
into law and thus shows the
compelling public need for
access to such materials.
This bears on the nature and
character of Public
Resource’s use of standards
incorporated by reference
into law, which in turn
relates to fair use and related
questions.

PUBLIC RESOURCE’S POSTING OF STANDARDS AT ISSUE

81.
Public Resource has
posted
the
incorporated
standards at issue online. Dkt.
121-5 ¶ 15–19.

Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84. Disputed to
the extent it suggests that
PRO’s postings accurately
and completely reproduce
Plaintiffs’ standards without
any errors.
Plaintiffs do not dispute that
PRO reproduced and
displayed versions of the
Works, although those
versions introduced errors
not present in the authentic
Works.

69

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

82.
A “reapproval” of an
ASTM standard means that an
older standard is re-evaluated
and republished without any
changes to its content. Becker
Decl., ¶ 7, Ex. 40 (Smith
Depo.) at 151:01–152:02.

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

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

Disputed. Mr. Bliss testified
that, during his time as a
public officer, he had
encountered other
professionals who had
confusion over which version
of a code was in force. He
neither testified that he
experienced any such
confusion himself, nor that
any confusion was over
which version of a standard
developed by NFPA—or
ASTM or ASHRAE—had
been incorporated.
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves “in
force” or are law, which is a
legal conclusion.
70

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

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

DEFENDANT’S REPLY

Objection. The statement
is unsupported by the cited
evidence.

Plaintiffs’ appear to have
confused a premise of their
own motion for summary
judgment with the basis for
Public Resource’s motion for
Plaintiffs also object to
summary judgment.
PRO’s misleading reliance
Plaintiffs inexplicably move
on Pls.’ Mem. at 9 as
for summary judgment on
evidence, to the extent it
only 192 of the 232 ASTM
relies on Plaintiffs’ quoting
standards at issue (and only 3
of PRO’s own self-serving
and unsupported response to of the 4 ASHRAE standards
at issue), whereas Public
PRO’s response to
Resource has moved on all
interrogatories. Plaintiffs
likewise object to Dkt. 121-5 standards that Plaintiffs have
¶ 23 (Malamud Decl.), which asserted in this
litigation. Plaintiffs are
does not support the
therefore incorrect to object
statement that each of the
217 standards at issue in this to Public Resource’s Exhibits
lawsuit has been incorporated 89-91 as “irrelevant to the
extent that they address
by reference, and merely
ASTM Standards that are not
states that “73 of the
the subject of this motion,”
documents on the Public
as all of the standards are the
Resource web site” that
subject of Public Resource’s
Malamud posted in 2012
motion.
appeared in the Standards
Incorporated by Reference
(“SIBR”) database. That is
Plaintiffs’ objection that the
not sufficient to establish an
cited evidence is misleading
IBR. To the extent PRO
is incorrect, and appears to
relies on Malamud’s
be based on both a legal
testimony for the proposition argument that (1) disregards
that standards incorporated
the language of 1 C.F.R. § 51
by reference constitutes the
et seq., instructions by the
law, Plaintiffs object that this Office of the Federal
is improper expert testimony Register, and regulatory text;
by a lay witness; Malamud’s and (2) attempts to distance
opinions on this issue are
themselves from statements
irrelevant.
Plaintiffs made in their
Disputed to the extent it
implies that incorporation by
reference of a standard

71

interrogatory responses and
in their prior briefing before
this Court (which was not a
quotation of Public Resource,

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

makes the standard itself law. but instead an affirmative
statement by
Plaintiffs). Plaintiffs are
Disputed to the extent that
incorrect on both points, as
PRO asserts that “Each
standard that Public Resource the cited documents make
posts is incorporated into law plain.
in its entirety” or in many
cases at all. This is a legal
conclusion and is
unsupported by the
undisputed record evidence.
PRO admits that “when
attempting to post the
relevant law, Public
Resource accidentally posted
an edition of an ASTM
standard that was not the
precise edition listed in the
C.F.R. incorporating
language.” ECF No. 203-1,
Opp. 6 n.3. PRO ignores
numerous examples where it
has incorporated the wrong
version of an ASTM standard
or where the relevant
regulation only incorporates
a portion of ASTM’s
standards. See ECF No. 1553, Pls.’ Response to PRO
Disputed Facts ¶¶ 36-43.
Disputed to the extent PRO
implies that such errors are
immaterial.
Plaintiffs objects to
Defendant’s Exhibits 89-91
as irrelevant to the extent
that they address ASTM
Standards that are not the
subject of this motion and
legal analyses (not facts).

72

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

PRO relies on its chart of
citations to the
incorporation, and excerpts
of the incorporating
language, for the
proposition that some
version of the C.F.R.
previously incorporated at
least a similar version of
the Works that PRO
reproduced and displayed
on its website. However,
PRO’s Exhibits 89-91 fail
to support PRO’s statement
of fact. See Wise Decl. II,
Exs. 175, 176, 186
(Responsive Charts).
With respect to more than
20% of ASTM Works,
PRO identified a citation to
the C.F.R. that was not
promulgated until years
after PRO posted the
standards. This means that
(1) PRO did not rely on
those incorporations when
it posted the standards; and
(2) at a minimum, PRO has
no defense for its
infringement from the time
it posted the standards
until the IBR it identifies
(and even then, for the
reasons Plaintiffs’ explain,
PRO’s wholesale copying is
not fair use). Wise Decl. II
¶ 4, Ex. 176.
•

PRO Ex. 90 at 40, PRO
reproduced and

73

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

displayed D1298-99,
PRO asserts that
D1298-99 (2005) was
incorporated by 40
C.F.R. § 600.011 (2013);
•

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

•

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

•

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

•

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

•

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

•

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

•

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

74

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

PRO Ex. 90 at 76, PRO
reproduced and
displayed D611-82
(1998), PRO asserts
D611-82 was
75

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

incorporated by 21
C.F.R. § 176.170 (2014);
•

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

•

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

•

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

•

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

•

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

•

PRO Ex. 90 at 88, PRO
reproduced and
displayed E408-71,
PRO asserts that E40871 (2002) was
incorporated by
reference in 16 C.F.R. §
460.5 (2014);

•

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

76

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

•

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

•

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

•

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

•

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

•

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

•

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

•

PRO Ex. 90 at 98, PRO
reproduced and
displayed F1121-87

77

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

(1998), PRO asserts
F1121-87 (1992) was
incorporated by
reference in 33 C.F.R. §
154.106 (2014);
•

PRO Ex. 90 at 100,
PRO asserts F1155-98
was incorporated by
reference in 33 C.F.R. §
154.106 (2014);

•

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

•

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

•

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

•

PRO Ex. 90 at 108,
PRO asserts F1951-99
was incorporated by
reference in 36 C.F.R. §
1191 App. B (2014);

78

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

•

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

•

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

•

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

•

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

•

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

•

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

Additionally, for 56 ASTM
Works, PRO identified a
citation to a version of the
C.F.R. that had been
79

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

amended to eliminate
reference to the ASTM
Work at issue or to
incorporate a different
standard before PRO
posted the Works (and was
therefore not an effective
regulation at the time PRO
posted the Works). Wise
Decl. II ¶ 4, Ex. 176.
•

PRO Ex. 90 at 1-12, 1519, 33-34, 36, 89-90, 109,
PRO asserts that A18479, A185-79, A242-79,
A307-78e, A325-79,
A36-77ae, A441-79,
A449-78a, A490-79,
A496-78, A497-79,
A500-78, A501-76,
A502-76, A514-77,
A570-79, A572-79,
A588-79a, A611-72
(1979), A615-79, A61679, A617-79, A82-79,
C5-79 (1997), C516-80
(1996)e1, C564-70
(1982), E424-71, E60680, E695-79 (1997)e1,
and F462-79 (1999)
were incorporated by
reference in 24 C.F.R.
Parts 200 to 499 (2005).
That regulation was
amended in 2009 to
eliminate reference to
these ASTM Works
and/or incorporate
different ASTM
standards.

•

PRO Ex. 90 at 1, PRO
asserts that A106 / A106

80

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

M-04b was
incorporated by
reference in 49 C.F.R. §
192.7 (2010). That
regulation was amended
in 2011 to eliminate
reference to this ASTM
Work and/or to
incorporate a different
ASTM standard(s).
•

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

•

PRO Ex. 90 at 24, PRO
asserts that B21-83b
was incorporated by
reference in 46 C.F.R. §
56.01-2 (1996-2008).
That regulation was
amended in 2000 to
eliminate reference to
this ASTM Work
and/or to incorporate a
different ASTM
standard(s).

•

PRO Ex. 90 at 29, PRO
asserts that B85-84 was
incorporated by
reference in 46 C.F.R. §
56.01-2 (1997). That
regulation was amended
in 2000 to eliminate
reference to this ASTM
81

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Work and/or to
incorporate a different
ASTM standard(s).
•

PRO Ex. 90 at 31, 33,
PRO asserts that C15099a and C330-99 were
incorporated by
reference in 30 C.F.R. §
250.198 (2007). That
regulation was amended
in 2010 to eliminate
reference to these
ASTM Works and/or to
incorporate a different
ASTM standards.

•

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

•

PRO Ex. 90 at 51, PRO
asserts that D2163-91
(1996) was incorporated
by reference in 40
C.F.R. § 1065.1010(a)
and Table 1 (20032008). Those
regulations were
amended in 2008 to
eliminate reference to
this ASTM Work
and/or to incorporate a
different ASTM
standard(s).

82

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

•

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

•

PRO Ex. 90 at 74, PRO
asserts that D5373-93
(1997) was incorporated
by reference in 40
C.F.R. § 75.6 (2004).
That regulation was
amended in 2008 to
eliminate reference to
this ASTM Work
and/or to incorporate a
different ASTM
standard(s).

•

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

•

PRO Ex. 90 at 86, 95,
97, 99-100, 103-104, 111,
PRO asserts that E2382, F1006-86 (1997),
F1120-87 (1998), F112387 (1998), F1139-88
83

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

(1998), F1172-88 (1998),
F1199-88 (1998), F120088 (1998), F1201-88
(1998), and F682-82a
(1988) were
incorporated by
reference in 46 C.F.R. §
56.01-2 (1997). That
regulation was amended
in 2000 to eliminate
reference to these
ASTM Work and/or to
incorporate different
ASTM standards.
•

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

•

PRO Ex. 90 at 106,
PRO asserts that F132398 was incorporated by
reference in 46 C.F.R. §
63.05-1 (2005). That
regulation was amended
in 2008 to eliminate
reference to this ASTM
Work and/or to
incorporate a different
ASTM standard(s).

•

PRO Ex. 90 at 111, 114,
PRO asserts that F63180 (1985) and F808-83
(1988)e1 were
incorporated by
84

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

reference in 33 C.F.R. §
154.106 (1999). That
regulation was amended
in 2009 to eliminate
reference to these
ASTM Works and/or to
incorporate different
ASTM standards.
•

PRO Ex. 90 at 112,
PRO asserts F715-81
(1986) was incorporated
by reference in 33
C.F.R. § 154.106 (19972008). That regulation
was amended in 2009 to
eliminate reference to
these ASTM Works
and/or to incorporate
different ASTM
standards.

Accordingly, even at the
time PRO reproduced and
displayed numerous
ASTM’s Works, no
regulation identified by
PRO incorporated the
standard PRO posted.
Disputed to the extent PRO
intends to use this paragraph
or Exhibits 89-91 to the
Declaration of Matthew
Becker to support its claim
that “federal law has
incorporated by reference
every one of the documents
at issue here at least once,”
Opp. 6, or that “[t]he federal
government has incorporated
into law every entire standard
at issue.” Opp. 8. For the
85

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

reasons explained in
Plaintiffs’ briefing, that claim
fails both legally and
factually. Reply Br. Part.
I.A.1.a. Moreover, the
exhibits that PRO has
produced do not support the
claim; Exhibit 91 does not
identify any federal
regulation that incorporates
any part of NFPA 1 (2003),
NFPA 1 (2006), or NFPA 54
(2006). Ex. 91 at 1, 5.
Exhibit 91 identifies 24
C.F.R. § 3285.4 (2013) as
incorporating NFPA 70
(2008), but, as the “text of
incorporation” column
shows, that regulation refers
to the 2005 edition of NFPA
70, not the 2008 edition, Ex.
91 at 8; Exhibit 91 does not
identify any other federal
regulation that purportedly
incorporates NFPA 70
(2008). See Wise Decl. II,
Ex. 175.
85.
Nearly all of the
standards at issue were
promulgated
as
private
industry standards several
years
before
being
incorporated into law by
government agencies. See, e.g.,
ASTM D396-1998 “Standard
Specification for Fuel Oils”,
incorporated into reference
into law at 41 C.F.R. § 60.17
(2011); Dkt. 120, Ex. 153

This is a legal conclusion,
not a fact.

This statement is not a legal
conclusion, but rather a
statement regarding the
Disputed to the extent it
relative timing of the
implies that incorporation by promulgation of the
reference of a standard
standards at issue in the case
makes the standard itself law. and their incorporation by
Disputed to the extent it
reference into law.
characterizes Plaintiffs’
standards as private industry
standards. They are
voluntary consensus
standards. ECF No. 118-2
(Pls.’ SMF) ¶¶ 8-9, 95, 130.
Disputed that “nearly all” of
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the standards at issue that
were developed by NFPA
and ASHRAE had existed for
many years before they were
incorporated by reference.
Defendant offers no evidence
supporting this proposition
and it is not true. E.g., N.D.
Admin. Code 24.1-06-03-01
(IBR of 2017 NEC, effective
April 1, 2017)
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.
Objection as to foundation
and relevance with respect to
reliance on an admittedly
“unscientific scan” of ASTM
standards, many of which are
not standards at issue in this
case.
86.
Public Resource posted
some of the incorporated
standards at issue in standard
Web formats. Dkt. 121-5 ¶ 24–
27; ECF No. 117-1 (Jarosz
Rep.) ¶ 35.

Vague as to what
constitutes as “standard
Web format.”
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in

87

This language is not vague
and in any case is clarified by
the cited materials.

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its entirety or at all for the
reasons stated in response to
Paragraph 84.
Disputed to the extent it
suggests that PRO’s postings
accurately and completely
reproduce Plaintiffs’
standards without any errors.
PRO posted versions of the
standards at issue, although
those versions introduced
errors not present in the
authentic Works.
87.
Public Resource posted
the incorporated standards at
issue using Hypertext Markup
Language
(HTML),
Mathematics
Markup
Language (MathML), and
Scalable Vector Graphics
(SVG). Over time, Public
Resource used contractors to
assist in transforming the
standards into HTML format.
Two people independently
type out most of the standards
on Public Resource’s websites
and compare any discrepancies
between their versions to
confirm the accuracy of the
transcription in a process called
“double-keying.”
Public
Resource’s contractor also
worked to convert the diagrams
into Scalable Vector Graphics
(“SVG”) and the mathematical
formulae into Mathematics
Markup
Language
(“MathML”). Dkt. 121-5 ¶ 25.

Disputed that the conversion
of standards into HTML or
other formats was
transformative. The cited
evidence is irrelevant. The
D.C. Circuit considered and
rejected this argument. Am.
Soc’y for Testing &
Materials v.
Public.Resource.Org, Inc.,
896 F.3d 437, 450 (D.C. Cir.
2018) (citing Am.
Geophysical Union v. Texaco
Inc., 60 F.3d 913, 923–24 (2d
Cir. 1994) (holding that
photocopying articles “into a
form more easily used in a
laboratory” does not
constitute transformative use
but acknowledging “the
benefit of a more usable
format”)).
Disputed as to the process
Defendant’s contractor used
to convert the standards into
HTML format. The
contractor testified that it
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used optical character
recognition to extract text
unless the image quality of
the document was poor. ECF
No. 118-2 (Pls.’ SMF) ¶ 192.
Disputed to the extent that it
suggests that PRO used
professional “contractors” to
do the conversion of
diagrams and formulas.
“Public Resource’s
contractor” (i.e., Mr.
Malamud’s wife’s
unincorporated business)
used children in an afterschool program to convert
diagrams into SVG format
and formulas into MathML,
which was advertised as
targeting children aged 7 to
14. ECF No. 118-2 (Pls.’
SMF) ¶ 199.
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.
Disputed to the extent PRO
suggests that it posted all of
the Works in HTML format.
Wise Decl. II ¶ 2, Ex. 174, at
Interrog. 2.

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Disputed to the extent it
suggests that PRO’s postings
accurately and completely
reproduce Plaintiffs’
standards without any errors.
PRO posted versions of the
standards at issue, although
those versions introduced
errors not present in the
authentic Works.
88.
Hypertext
Markup Undisputed.
Language
(HTML),
Mathematics
Markup
Language (MathML), and
Scalable Vector Graphics
(SVG) permit users to perform
software-based searching and
analysis. Dkt. 121-5 ¶ 25.
89.
Public Resource does
not restrict the public from
viewing
any
of
the
incorporated standards at issue
on its websites. Dkt. 121-5
¶ 23.

Disputed to the extent it
suggests that PRO’s postings
of the Works are available on
PRO’s website, rather than
on the Internet Archive.
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.
Disputed to the extent it
suggests that PRO’s postings
accurately and completely
reproduce Plaintiffs’
standards without any errors.
PRO posted versions of the
standards at issue, although

90

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those versions introduced
errors not present in the
authentic Works.
90.
Public Resource does
not require people to log in to
its website before viewing any
of the incorporated standards at
issue on its websites. Dkt. 1215 ¶ 23.

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

91.
Public Resource does
not require people to pay
Public
Resource
before
viewing
any
of
the
incorporated standards at issue
on its websites. Dkt. 121-5
¶ 23.

Disputed to the extent it
suggests that PRO’s postings
of the Works are available on
PRO’s website, rather than
on the Internet Archive.
Disputed to the extent it
suggests Plaintiffs require
payment from individuals
who access the read-only
versions on their websites.

91

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Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.
Disputed to the extent it
suggests that PRO’s postings
accurately and completely
reproduce Plaintiffs’
standards without any errors.
PRO posted versions of the
standards at issue, although
those versions introduced
errors not present in the
authentic Works.
92.
The Public Resource
websites are directed at
researchers
and
engaged
citizens. Dkt. 121-5 ¶ 4, 26.

Objection as to relevance of
Mr. Malamud’s or Public
Resource’s supposed
subjective intent.
Objection as to the
relevance, as PRO does not
currently post its versions
of Plaintiffs’ standards on
its website.
Disputed. Defendant’s
websites are accessible by
the general public and
Defendant has both
disavowed any desire to
know who uses the versions
of standards it posts and has
no ability to identify who has
downloaded, made additional
copies of, or printed the
versions of Plaintiffs’

92

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.

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standards from its website.
ECF No. 118-2 (Pls.’ SMF) ¶
248.
93.
Public
Resource’s
stated purpose for providing an
archive or laws and other
government documents on its
websites is to bolster the
public’s ability “to know and
speak the law.” Dkt. 121-5
¶ 28
(https://law.resource.org/pub/1
2tables.html).

Objection. Defendant’s
stated purpose is irrelevant.
As explained in Plaintiffs’
briefing, fair use turns on
how a work appears to a
reasonable observer, not on
the infringer’s subjective
intent. Reply at Part
I.A.1.b.

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.

Additionally, any quotations
are not offered for the truth
Hearsay to the extent that
of the statement, but rather
the out of court statements for the fact that Public
are relied upon to prove the Resource makes such
truth of the matters
representation to the public.
asserted.
Disputed to the extent it
suggests that PRO’s postings
of the Works are available on
PRO’s website, rather than
on the Internet Archive.

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

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

95.
Public
Resource’s Objection. The statement’s
versions of the incorporated discussion of access for

93

This evidence is relevant to
show the nature and

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

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

character of Public
Resource’s use, which bears
directly on fair use and
related questions. The
assertions in the statement
concern matters other than
measures Public Resource
takes with respect to
accessibility by visually
impaired persons.

Disputed. Mr. Fruchterman
admitted he could not opine
that a visually disabled
person would actually be
able to use the HTML
versions of Plaintiffs’
standards posted on
Defendant’s website. ECF
No. 155-1 (Pls.’ Supp.
SUMF) ¶ 4 (Fruchterman
Depo. 175:5-176:9, 218:323). Mr. Fruchterman also
acknowledged that he had
asked a visually disabled
person to evaluate the PDF
versions of Plaintiffs’
standards that were posted on
Defendant’s website, and that
person informed him that
those documents could not be
considered to be accessible.
ECF No. 155-1 (Pls.’ Supp.

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SUMF) ¶ 5 (Fruchterman
Depo. 256:12-259:6). In
addition, the documents
posted on Defendant’s
website are not the standards
at issue. They are
Defendant’s mistake-laded
creations. ECF No. 118-2
(Pls.’ SMF) ¶¶ 182-185, 188201.
96.
Plaintiffs’ versions of
the incorporated standards at
issue online are not as
accessible to the print-disabled
as Public Resource’s versions
of those standards. None of the
Plaintiffs
provide
free
electronic access to standards
incorporated into law for
people with disabilities. For
example, NFPA’s website
requires visitors to register
before viewing the standards,
and its registration process
cannot be completed by blind
users. None of the Plaintiffs
provides machine-readable text
of the incorporated standards
through their free reading
portals. They provide only “a
picture of the text,” which
causes screen-reading software
to “stop working.” Nor do the
Plaintiffs’ websites provide
any means for disabled visitors
to search or navigate the
documents.
Thus,
“Public.Resource.Org
currently provides the only
accessible
option
for
people/citizens with print
disabilities to access these

Objection. The cited
evidence is irrelevant and
its probative value is
substantially outweighed by
the unfair prejudice to
Plaintiffs. The D.C. Circuit
previously held that “the
district court properly
rejected some of PRO’s
arguments as to its
transformative use—for
instance, that PRO was
converting the works into a
format more accessible for
the visually impaired or
that it was producing a
centralized database of all
incorporated standards.”
Am. Soc’y for Testing &
Materials v.
Public.Resource.Org, Inc.,
896 F.3d 437, 450 (D.C. Cir.
2018).
Disputed to the extent the
statements relates to people
with non-print disabilities.
To protect their copyrighted
standards from exposure to
mass copying, Plaintiffs have
provided versions of their
standards on their reading

95

This evidence is relevant to
show the nature and
character of Public
Resource’s use, which bears
directly on fair use and
related questions. The
assertions in the statement
concern matters other than
measures Public Resource
takes with respect to
accessibility by visually
impaired persons.
Nothing in this statement is
prejudicial.

DEFENDANT’S SECOND
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standards.” Becker Decl., ¶ 6,
Ex. 39 (Fruchterman Depo.) at
43:21–23; 112:1–8; 133:5;
143:10–14;
165:17–166:7;
167:8; 205:2–13; Becker Decl.
¶ 62, Ex. 96 (Fruchterman Rep.
5–13); Becker Decl., ¶ 13, Ex.
46 (Bliss Depo.) at 220:1–
221:25; ¶ 2, Ex. 4 (Bliss Ex.
1003); Becker Decl., ¶ 11, Ex.
44 (Comstock Depo.) at 20:22;
44:1–46:25.

rooms that provide read-only
access. See, e.g., ECF No.
204-51, Ex. 45 (Grove
Depo.) at 110:8-23; ECF No.
204-47, Ex. 41 (Dubay
Depo.) 77:21-78:4; ECF No.
204-50, Ex. 44 (Comstock
Depo.) at 10:23-11:3. There
is no evidence that Plaintiffs
placed any purposeful
restriction on the use of
screen readers by people with
print disabilities on their
reading rooms. To the extent
a screen reader requires the
ability to do more than read
from an image of the
standard on the screen, it is
undisputed that the screen
reader will not be able to
read the versions of
Plaintiffs’ standards on their
reading rooms. Mr.
Fruchterman admitted he
could not opine that a
visually disabled person
would actually be able to use
the HTML versions of
Plaintiffs’ standards posted
on Defendant’s website.
ECF No. 155-1 (Pls. Suppl.
SUMF) ¶ 4 (Fruchterman
Depo. 175:5-176:9, 218:323). Mr. Fruchterman also
acknowledged that he had
asked a visually disabled
person to evaluate the PDF
versions of Plaintiffs’
standards that were posted on
Defendant’s website, and that
person informed him that
those documents could not be

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considered to be accessible.
ECF No. 155-1 (Pls. Suppl.
SUMF) ¶ 5 (Fruchterman
Depo. 256:12-259:6).
ASTM is not aware of any
visually impaired person who
has informed ASTM that
he/she was having difficulty
accessing an ASTM standard
due to a print disability. If a
visually impaired person
requested access to an ASTM
standard due to a print
disability, ASTM would
provide a copy of the
relevant standard in a format
that accommodated the
person’s disability at no
additional cost to the
requester. ECF No. 155-1
(Pls. Suppl. SUMF) ¶ 8
(citing O’Brien Suppl. Decl.
¶ 17.)
Mr. Fruchterman testified
that the 2014 edition of the
NEC is available on Mr.
Fruchterman’s company’s
online library for the visually
impaired website. ECF No.
155-1 (Pls. Suppl. SUMF) ¶
3 (Fruchterman Depo.
209:18-213:23). There is no
evidence that the other
standards at issue are
unavailable on that or similar
websites for the visually
impaired.
NFPA has a commitment to
make accommodations for

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persons with disabilities to
access NFPA materials. For
each request by a visually
impaired individual for
access to an NFPA standard,
NFPA has responded by
providing that individual
with a copy they can use at
no charge. ECF No. 155-1
(Pls.’ Supp. SUMF) ¶ 9.
NFPA is not aware of any
other individuals who have
requested and not received an
accommodation. ECF No.
155-1 (Pls.’ Supp. SUMF) ¶
10.
97.
Downloading
an
incorporated standard allows
more flexibility for using and
sharing that standard. Becker
Decl., ¶ 11, Ex. 44 (Jarosz
Depo.) at 215:9–15; 215:21–
216:1.

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

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

Objection as to relevance of
PRO’s supposed subjective
intent. As explained in
Plaintiffs’ briefing, fair use
turns on how a work
appears to a reasonable
observer, not on the
infringer’s subjective
intent. Reply at Part
I.A.1.b.

98

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.
Plaintiffs fail to specify any
portion of this assertion that

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Vague and ambiguous in its they contend is vague and
entirety.
ambiguous, nor do they
explain how the statement is
Disputed to the extent it
vague and ambiguous in its
suggests that Defendant has
entirety.
not made copies of standards
that ASTM sells available on
its website.
99.
Public Resource posted
the incorporated standards at
issue to inform citizens about
the content of the law. Dkt.
121-5 ¶ 4.

Objection as to relevance of
Public Resource’s supposed
subjective intent. As
explained in Plaintiffs’
briefing, fair use turns on
how a work appears to a
reasonable observer, not on
the infringer’s subjective
intent. Reply at Part
I.A.1.b.
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.
Disputed to the extent it
implies PRO places any
restrictions on access to the
copies of Plaintiffs’ Works
that it posts online to only
citizens interested in the
contents of the law or for any
educational purpose. PRO
does not prevent individuals
from downloading, printing,
and making derivative works.

99

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.

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ECF No. 118-2 (Pls.’ SMF) ¶
221-22.
100. Public Resource posted
the incorporated standards at
issue on its website in formats
meant to increase citizen
access to the law. Dkt. 121-5
¶ 26.

Objection as to relevance of
Public Resource’s supposed
subjective intent. As
explained in Plaintiffs’
briefing, fair use turns on
how a work appears to a
reasonable observer, not on
the infringer’s subjective
intent. Reply at Part
I.A.1.b.
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.
Disputed to the extent it
suggests that citizens did not
have access to Plaintiffs’
standards prior to
Defendant’s posting their
infringing copies. Standards
are only eligible to be
incorporated by reference if
they are reasonably available.
1 C.F.R. § 51.7. Plaintiffs
provide read-only access to
the Works—excluding
certain of the Works that are
not incorporated by reference
as claimed by PRO—on their
websites, and sometimes
linked through other
websites, such as local and
100

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.

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state government websites.
See ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶ 85.
101. Public Resource posted
the incorporated standards at
issue for the purpose of
transforming the information
in the standards by making that
information accessible to
people who did not necessarily
have access to that information
before. Dkt. 121-5 ¶ 35.

Objection as to relevance of
Public Resource’s supposed
subjective intent. As
explained in Plaintiffs’
briefing, fair use turns on
how a work appears to a
reasonable observer, not on
the infringer’s subjective
intent. Reply at Part
I.A.1.b. Further, the D.C.
Circuit previously held that
“the district court properly
rejected some of PRO’s
arguments as to its
transformative use—for
instance, that PRO was
converting the works into a
format more accessible for
the visually impaired or
that it was producing a
centralized database of all
incorporated standards.”
Am. Soc’y for Testing &
Materials v.
Public.Resource.Org, Inc.,
896 F.3d 437, 450 (D.C. Cir.
2018).
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.

101

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which
bears directly on fair use and
related questions.
The assertions in the
statement concern matters
other than measures Public
Resource takes with respect
to accessibility by visually
impaired persons.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Disputed to the extent it
suggests that citizens did not
have access to Plaintiffs’
standards prior to
Defendant’s posting their
infringing copies. Standards
are only eligible to be
incorporated by reference if
they are reasonably available.
1 C.F.R. § 51.7. Plaintiffs
provide read-only access to
the Works—excluding
certain of the Works that are
not incorporated by reference
as claimed by PRO—on their
websites, and sometimes
linked through other
websites, such as local and
state government websites.
See ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶ 85.
Disputed. Defendant has not
transformed the information
in the standards. Plaintiffs
make their standards
accessible to the general
public. ECF No. 118-2 (Pls.’
SMF) ¶¶ 57-69, 99-103, 15762.
Disputed to the extent it
suggests that Defendant
posted the standards to
provide access for the
visually impaired. There is
no evidence to support that
suggestion.
102. Public Resource does Disputed to the extent it
search engine optimization so suggests this is Defendant’s
that
the
standards
are only purpose in using search
engine optimization. ECF
102

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

accurately described in search No. 118-2 (Pls’ SUMF) ¶¶
engine results. Dkt. 121-5 ¶ 29. 225-26.
VII.

PLAINTIFFS LIMIT USE OF THE STANDARDS

103. ASTM
gives
government bodies like the
U.S. Geological Survey and the
State of Georgia, fellow
standards
development
organizations like NFPA,
IAPMO, and ICC, and favored
corporations liberal permission
to copy standards in both paper
and electronic format, and to
use excerpts from standards in
other documents. Dkt. 122-7,
Exs. 107, 108, 109; 110, 111,
and 112.

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

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

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

Disputed. ASTM routinely
grants permission to
researchers, academics and
others to reproduce its
standards at no cost for noncommercial purposes. ECF
No. 118-2 (Pls.’ SMF) ¶ 68.

Disputed. ASTM routinely
grants permission to
researchers, academics and
others to reproduce its
standards at no cost for noncommercial purposes. ECF
No. 118-2 (Pls.’ SMF) ¶ 68.
ASTM denies permission to
use its standards when the
requester seeks to post the
103

These documents show
ASTM’s frequent and routine
practice of granting liberal
permission to selected
organizations to reproduce
and excerpt ASTM
standards. Plaintiffs have
stated that they do not treat
standards incorporated by
reference differently from
other standards.
Nothing in the documents is
prejudicial.
These documents show
ASTM’s frequent and routine
practice. Plaintiffs have
stated that they do not treat
standards incorporated by
reference differently from
other standards.
Nothing in the documents is
prejudicial.
The similarity of the requests
to those cited in Paragraph
103 is self-evident.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

standard on a public website
with no reasonable time limit
and/or with no limitation on
the number of people who
can access it. See Def. Exs.
113, 115, 117, 120, 130; see
also O’Brien Suppl. Decl. ¶
16. ASTM may also, as it
entitled to do under copyright
law, deny permission to a
party requesting to make a
copy of a complete standard
or to make a derivative work
based on an ASTM standard.
See Def. Ex. 116.
105. ASTM
gave
the
structural engineering firm
SGH, “a big supporter of
ASTM,” permission to excerpt
a number of figures and tables
from a standard. Dkt. 122-7,
Ex. 112.

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

These documents show
ASTM’s frequent and routine
practice. Plaintiffs have
stated that they do not treat
standards incorporated by
reference differently from
other standards.

106. ASTM refused to allow
an engineering student at the
University of Pennsylvania to
use “photographs and figures”
from another standard in a case
study. Dkt. 122-7, Ex. 117.

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

These documents show
ASTM’s frequent and routine
practice. Plaintiffs have
stated that they do not treat
standards incorporated by
reference differently from
other standards.

Disputed. ASTM denies
permission to use its
standards when the requester
seeks to post the standard on
a public website. Unlike the
requested license in ¶ 105,
this student was requesting
permission to include the
standard in an article that
would be “posted online
through wikispaces.” See

104

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

ECF No. 122-7, Def. Ex.
117.
107. When
an
ASTM
employee wrote that “we
typically do not provide figures
[from
standards]
for
reproduction purposes,” John
Pace, ASTM’s Vice President
of Publications and Marketing,
responded that ASTM has a
“‘triple standard’ here on
considerations
for
such
requests,” and that the owner of
a chemical company, Sheldon
Dean, who was “platinum
level”
because
of
his
“connection
status”
with
ASTM committees, should be
given permission to use
excerpts from an ASTM
standard in a forthcoming
book. Dkt. 122-7, Ex. 119.

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

105

These documents show
ASTM’s frequent and routine
practice of granting liberal
permission to selected
organizations to reproduce
and excerpt ASTM
standards. Plaintiffs have
stated that they do not treat
standards incorporated by
reference differently from
other standards.
Nothing in the documents is
prejudicial.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

state government websites.
See ECF No. 198-3 (Pls.’ 2d.
Supp. SMF) ¶ 85.
108. ASTM refused to allow
Columbia
Analytical
to
reproduce several abstracts
from an ASTM standard. Dkt.
122-7, Ex. 120.

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

These documents show
ASTM’s frequent and routine
practice. Plaintiffs have
stated that they do not treat
standards incorporated by
reference differently from
other standards.

Disputed. ASTM denies
Nothing in the documents is
permission to use its
prejudicial.
standards when the requester
seeks to post the standard on
a public website. ASTM
denied a request to post
abstracts on a publicly
available website. See ECF
No. 122-7, Def. Ex. 120; see
also ECF No. 118-7, O’Brien
Suppl. Decl. ¶ 16.
109. ASTM has a policy
against permitting the posting
of ASTM standards on the
public internet. Dkt. 122-9, Ex.
144.

Disputed. ASTM posts
many of its own standards on
the public internet. ECF No.
118-2 (Pls.’ SMF) ¶¶ 63-64,
66. ASTM does not allow
third parties to post ASTM
standards on the public
internet. See, e.g., ECF No.
122-7, Def. Ex. 113.

110. ASTM did not permit a Objection. Relevance.
person in the UK to post the This standard is not at
information in the ASTM issue in this litigation.
D2000-12 standard. Dkt. 1229, Ex. 145.

106

These documents show
ASTM’s frequent and routine
practice. Plaintiffs have
stated that they do not treat
standards incorporated by
reference differently from
other standards.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

111. Plaintiffs’ assertion of
copyright in incorporated
standards makes it more
difficult for others to produce
materials such as training and
user manuals. Becker Decl., ¶
11, Ex. 44 (Jarosz Depo.) at
217–224.

DEFENDANT’S REPLY

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

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

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

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

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

114. ASTM’s
Mission Undisputed.
Statement reads: “To be
recognized globally as the
premier
developer
and
provider
of
voluntary
consensus standards, related
technical information, and
services that promote public
health and safety, support the
protection and sustainability of
the environment, and the

107

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

overall quality of life;
contribute to the reliability of
materials, products, systems
and services; and facilitate
international, regional, and
national commerce.” Dkt. 1226, Ex. 100.
115. NFPA’s
“About
NFPA”
webpage
states:
“Founded in 1896, NFPA is a
global, nonprofit organization
devoted to eliminating death,
injury, property and economic
loss due to fire, electrical and
related
hazards.
The
association
delivers
information and knowledge
through more than 300
consensus codes and standards,
research, training, education,
outreach and advocacy; and by
partnering with others who
share an interest in furthering
the NFPA mission.” Dkt. 1226, Ex. 101.

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

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

EVEN BEFORE BECOMING LAW, THE STANDARDS WERE FACTUAL
WORKS

117. ASTM defines the
standards they produce as
documents
comprising
“specifications, test methods,

Objection. Relevance.
PRO appears to intend to
use this statement to
support a claim that the
108

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

practices, guides, classification
and terminology.” Becker
Decl., ¶ 12, Ex. 45 (Grove
Depo.) at 14:22–15:6.

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

factor and bears directly on
fair use and related questions.

Disputed. The cited
deposition testimony does
not support this proposition.
118. ASTM has a form and
style guide that sets forth the
rules that persons generally
must follow in participating in
the drafting and revision
process of ASTM standards.
Dkt. 122-1, Ex. 8; Becker
Decl., ¶ 12, Ex. 45 (Grove
Depo.) at 268:14–269:4.

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

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.
The form and style guide is
relevant because it exists, and
as to how ASTM uses it in
the standards development
process, not for its contents.
The best evidence rule does
not apply.

Disputed. ASTM’s form and
style guide sets forth
guidelines for drafting
different types of ASTM
standards, not for
participating in the drafting
and revision process. ECF
No. 118-2 (Pls.’ SMF) ¶¶ 3334.
119. According to NFPA’s
corporate designee, Donald
Bliss, codes and standards are
procedures and practices.

Objection. Relevance.
PRO appears to intend to
use this statement to
support a claim that the
standards are “factual” or
otherwise not subject to
109

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Becker Decl., ¶ 13, Ex. 46 copyright, but it has made
(Bliss Depo.) at 21:18–22:11. no argument in the present
summary judgment
briefing on this basis and,
in any event, that is a legal
determination.
Disputed. Defendant takes
Mr. Bliss’s testimony wholly
out of context. Nothing
about Mr. Bliss’s statement
supports the proposition.
In response to the question
“What, in your view, makes
codes and standards essential
to reducing fire loss, fire
deaths and property losses?”
Mr. Bliss answered, “Codes
and standards are the result
of a number of things. One is
actual lessons learned from
events that have happened in
the past, fire incidents,
electrical problems,
electrocutions, explosions.
And based on the analysis of
those events, we can learn
from them and then establish
the procedures and practices
that should be followed to
prevent that from happening.
The second way is from
actual research, looking at
potential problems, looking
proactively to determine
whether or not a risk or a
hazard exists, and then based
on that research, generating
guidelines and standards that
would prevent those events
from happening.” ECF No.

110

DEFENDANT’S REPLY

factor and bears directly on
fair use and related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

122-1, Def. Ex. 4 (Bliss
Depo.) 21:18-22:11.
120. ASHRAE
described
one of the standards at issue,
the 1993 ASHRAE Handbook:
Fundamentals, as “a tool for
engineers to use when they’re
working with the topics
covered in that book.” Becker
Decl., ¶ 10, Ex. 43 (Reiniche
Depo.) at 158:20–24.

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

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

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

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

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

122. NFPA is committed to
reducing “the worldwide
burden of fire and other
hazards” by developing and
disseminating codes that will

Objection. Relevance.
PRO appears to intend to
use this statement to
support a claim that the
standards are “factual” or
otherwise not subject to

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

111

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

minimize fire risk. Dkt. 117-1 copyright, but it has made
factor and bears directly on
(Jarosz Rep. 29).
no argument in the present fair use and related questions.
summary judgment
briefing on this basis and,
in any event, that is a legal
determination.
Disputed. Defendant
misstates the statement in the
report “NFPA’s mission is
‘to reduce the worldwide
burden of fire and other
hazards on the quality of life
by providing and advocating
consensus codes and
standards, research, training,
and education.’” See ECF
No. 118-12 (Rubel Decl.) Ex.
1 (Jarosz Rep.) ¶ 68.
123. Bliss testified that,
when he was a committee
member, his motivation was to
develop the “best” standard,
and
“best”
meant
“understanding the problem
based on past experience and
events, having as much
scientifically based research to
contribute to the development
of the standard and then a very,
very open and transparent
consensus process.” After that:
There’s a tremendous
amount of public input
and vetting of the
concepts and the actual
language which in
reality mirrors a
government adoption
of legislative process.

Objection. Relevance.
PRO appears to intend to
use this statement to
support a claim that the
standards are “factual” or
otherwise not subject to
copyright, but it has made
no argument in the present
summary judgment
briefing on this basis and,
in any event, that is a legal
determination.
Disputed to the extent PRO
relies on this
mischaracterization to
support a claim that the
standards are systems and
method. Mr. Bliss’s
testimony does not support
that point:
Q. And what makes a fire
safety standard the best

112

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
Becker Decl., ¶ 13, Ex. 46
(Bliss Depo.) at 139:07–
140:10.

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

available?
A. In my view, it’s a
combination of factors. One
is understanding the problem
based on past experience
with fires and events, having
as much scientifically based
research to contribute to the
development of the standard
and then a very, very open
and transparent consensus
process.
Q. And what about the
standards make them, makes
them the best for adoption
into law?
A. I think for the reasons that
I indicated, is that there’s
lessons learned from past
events. There’s research that
goes into the process. There’s
a tremendous amount of
public input and vetting of
the ideas and of the concepts
and of the actual language
which in reality mirrors a
governmental adoption or
legislative process. It takes
advantage of a wide range of
expertise and perspectives.

124. ASHRAE says its
standards define “the minimum
acceptable performance for the
relevant products.” Dkt. 117-1
(Jarosz Rep.) at 33.

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

113

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

in any event, that is a legal
determination.
Undisputed.
125. The main benefit of the
consensus process, according
to ASHRAE, is that it relies on
experts who understand “how
to make that product or how to
construct that building or how
to make something more
energy efficient.” Becker
Decl., ¶ 10, Ex. 43 (Reiniche
Depo.) at 102:23–25.

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

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

Disputed. The cited
testimony does not say that
this is the “main benefit” of
the consensus process or
even that it is a benefit of the
consensus process at all. The
testimony discusses why
committee members should
have some level of expertise
in the field.
126. As NFPA puts it, there
are two types of changes:
technical changes, which are
“scientific”
and
wording
changes,
which
involve
making potentially confusing
language more clear “to make
it easier to interpret of
understand what that actual
technical requirement is.”
Becker Decl., ¶ 8, Ex. 41
(Dubay Depo.) at 28:22–30:4.

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

114

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Defendant characterizes
changes as merely for clarity.
Mr. Dubay’s full testimony
makes clear that the
standards involve creative
judgment and numerous
choices to settle on final
wording:
Q: Who determines what
wording changes are
appropriate in the technical
committees?
A. It’s a combination of
extensive public review and
comment, the committee’s
review of that and their
expertise and with the help of
our technical staff to land on
the final wording, which is
ultimately decided by the
technical committee.
Q. What criteria do the
members of the technical
committee use in choosing
the wording of a code or
standard?
A. Ultimately those decisions
are based upon the technical
committee members’
expertise and knowledge
within the field. ECF No.
204-47, Ex. 41 (Dubay
Depo.) at 29:12-30:4.
127. The volunteers who
draft the standards do not view
them as creative expression.
Volunteers debate wording in
the standards so as to have the
most precise and accurate

Objection. Relevance.
PRO appears to intend to
use this statement to
support a claim that the
standards are “factual” or
otherwise not subject to

115

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

description of the process,
system, or methods that
comprise the standards. The
exact wording matters, and it is
not sufficient to try to rephrase
this language as rephrasing
could introduce errors. Becker
Decl., ¶ 13, Ex. 46 (Bliss
Depo.) at 140:1–140:10.

copyright, but it has made
no argument in the present
summary judgment
briefing on this basis and,
in any event, that is a legal
determination.

These documents show
Plaintiffs’ frequent and
routine practice. Plaintiffs
have stated that they do not
treat standards incorporated
by reference differently from
other standards.

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

The witness was testifying as
a corporate representative of
NFPA about understandings
concerning the process by
which standards such as the
ones at issue here are
developed. The witness has
personal knowledge of those
processes, and he was
testifying about
understandings that he
developed while working
within the scope of his duties
as an officer.

This statement and the
cited evidence also lacks
foundation. The witness
lacks personal knowledge
as to the state of mind of
volunteers who participate
in the creation of
standards. The assertion
that “it is not sufficient to
try to rephrase this
language” is inadmissible
opinion testimony.
Disputed. There is no
support for the contention
that volunteers do not view
their work as creative
expression or the implication
that they would have to view
their expression as creative
under copyright law. There
is also no support for the
proposition that exact
wording matters and
rephrasing the language
could introduce errors. Am.
Soc’y for Testing &
Materials v.

116

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Public.Resource.Org, Inc.,
896 F.3d 437, 451 (D.C. Cir.
2018) (“PRO’s claim that a
paraphrase or summary
would always be inadequate
to serve its purposes seems
less persuasive.”)
The cited transcript does not
support Defendant’s
purported fact: “I think for
the reasons that I indicated, is
that there’s lessons learned
from past events. There’s
research that goes into the
process. There’s a
tremendous amount of public
input and vetting of the ideas
and of the concepts and of
the actual language which in
reality mirrors a
governmental adoption or
legislative process. It takes
advantage of a wide range of
expertise and perspectives.”
ECF No. 203-5, Def. Ex. 46
(Bliss Depo.) 140:1-10.
There is also no support for
this fact with respect to
ASTM or ASHRAE.
128. Plaintiffs believe that
technical excellence is why
their standards are ultimately
incorporated by reference. M
Becker Decl., ¶ 12, Ex. 45
(Grove Depo.) at 235:2–23.

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

117

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

in any event, that is a legal
determination.
Undisputed that Plaintiffs
believe technical expertise is
one reason why their
standards are ultimately
incorporated by reference.
129. NFPA asserted that
“standard developers converge
around terminology and format
that
works
for
their
constituents that utilize their
standards.” Becker Decl., ¶ 8,
Ex. 41 (Dubay Depo.) at
139:03–06.

Objection. Relevance.
PRO appears to intend to
use this statement to
support a claim that the
standards are “factual” or
otherwise not subject to
copyright, but it has made
no argument in the present
summary judgment
briefing on this basis and,
in any event, that is a legal
determination.
Undisputed that NFPA seeks
to use terminology and
format that works for
constituents that utilize their
standards, but disputed to the
extent that Defendant
misleadingly isolates this one
snippet of Mr. Dubay’s
testimony to suggest that this
effort does not require
creative expression. See ECF
No. 121-1, Opp. 33
(describing the Works as
turning on only practical
concerns without “a whit of
expressive creativity”). As
Mr. Dubay testified at length,
NFPA’s staff, committee
members, and members of
the public engage in a
lengthy standards
118

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

development process that
involves many creative
decisions that result in the
creation of the final standard.
ECF No. 204-47, Ex. 41
(Dubay Depo.) at 24-28, 3133, 50-56, 59-62, 66-69.
As is clear from the Works
filed with the Court, they are
each unique and reflect the
Plaintiffs’ distinct expressive
choices. For example, NFPA
and ASHRAE both define
“automatic,” but author
different expressions of that
definition. Compare ECF
No. 155-5 (Comstock Decl.)
Ex. 1 at 5 (ASHRAE 90.12004) with ECF No. 155-6
(Dubay Decl.) Ex. A at 70-26
(NFPA NEC 2011).
Likewise, the standards each
use drawings in different
ways and the style of those
drawings is distinct.
Compare ECF No. 155-5
(Comstock Decl.) Ex. 1 at 18
(straightforward figure style
in ASHRAE 90.1-2004) with
ECF No. 118-7 (O’Brien
Decl.) Ex. 6 at 3, 17
(complex drawing style in
ASTM in ASTM D86-07).
130. ASHRAE standards
take the form of specific
requirements that “provide
methods of testing equipment
so that equipment can be
measured [and] compared with
similar levels of
performance.” Becker Decl., ¶

Objection. Relevance.
PRO appears to intend to
use this statement to
support a claim that the
standards are “factual” or
otherwise not subject to
copyright, but it has made
no argument in the present
119

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

11, Ex. 44 (Comstock Depo.)
at 96:01–22.

DEFENDANT’S REPLY

summary judgment
briefing on this basis and,
in any event, that is a legal
determination.
Disputed. In the cited
testimony, the witness does
not refer to ASHRAE
standards as “specific
requirements” (that is how
PRO’s attorney references
them). Also, the quoted text
was in response to a specific
question about possible uses
of ASHRAE standards; it
was not a general description
of ASHRAE standards
provided by the witness.
Becker Decl. ¶ 11, Ex. 44
(Comstock Depo.) at 96:01–
22.

131. ASTM standards are
“[s]pecifications, test methods,
practices, guides,
classifications and
terminology.” Becker Decl., ¶
7, Ex. 40 (Smith Depo.) at
14:22–15:18.

Objection. Relevance.
PRO appears to intend to
use this statement to
support a claim that the
standards are “factual” or
otherwise not subject to
copyright, but it has made
no argument in the present
summary judgment
briefing on this basis and,
in any event, that is a legal
determination.
Disputed.
The cited deposition
testimony does not support
this proposition.
Disputed to the extent it
implies that ASTM standards
120

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

include only specifications,
test methods, practices,
guides, classifications, and
technology. ASTM
standards also include
diagrams, explanatory
materials, aids and
supplements to the standard.
ECF No. 198-3 ¶¶ 50-51.
132. An NFPA standard
provides a consistent process
for fire investigation. Becker
Decl., ¶ 13, Ex. 46 (Bliss
Depo.) at 106:09–24.

Objection. Relevance.
PRO appears to intend to
use this statement to
support a claim that the
standards are “factual” or
otherwise not subject to
copyright, but it has made
no argument in the present
summary judgment
briefing on this basis and,
in any event, that is a legal
determination.
The statement is also not
relevant as it relates to
NFPA 971, which is not one
of the standards at issue in
this litigation.
Disputed to the extent it
suggests that all NFPA
standards or the particular
NFPA standard being
discussed provide a
consistent process for all fire
investigators rather than
simply a way in which some
fire investigators conducted
an investigation.

121

This evidence is relevant to
show the general nature of
NFPA standards, of which
NFPA works at issue in this
are an example. This is
relevant to the second
statutory fair use factor and
bears directly on fair use and
related questions.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
X.

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

PLAINTIFFS HAVE NO EVIDENCE OF HARM

133. Public Resource first
posted the 2008 National
Electric Code on its website in
2008. Dkt. 164-8 (Supp. Decl.
of Carl Malamud) ¶¶ 5–7.

Objection. Hearsay.
Disputed. Mr. Malamud’s
declaration states that he
posted copies of various state
codes—not the National
Electrical Code.
Disputed to the extent it
suggests that PRO’s postings
accurately and completely
reproduce Plaintiffs’
standards without any errors.
PRO posted versions of the
standards at issue, although
those versions introduced
errors not present in the
authentic Works.

134. Plaintiffs
have
discussed Public Resource’s
activities at the highest levels
of their organizations since at
least 2010, but waited until
August 2013 to file this
lawsuit.

Disputed entirely as to
ASHRAE’s involvement in
discussions since 2010.
Disputed as vague and
misleading with respect to
the references to

In fact, Public
Resource did not post
Plaintiffs’ standards in bulk
until December 2012. See
ECF No. 118-2 (Pls.’ SMF) ¶
Dkt. 120, Ex. 250.

122

The assertion is not hearsay;
Mr. Malamud is testifying
directly about a matter within
his personal knowledge, and
he does not rely on any
statement offered for the
truth of the matter asserted.

DEFENDANT’S SECOND
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STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

135. All of the standards at
issue have been superseded or
withdrawn. Becker Decl.
¶¶ 56-58, Exs. 89-91 (IBR
Reference Tables); Dkt. 122,
Exs. 97–99.

Undisputed that Plaintiffs
have published more recent
editions of the other works at
issue in this case. Otherwise
disputed as argumentative.

Exhibits 97-99 are a
compilation of data from
Plaintiffs’ own publications
and websites and are capable
of verification by Plaintiffs’
employees and records at
trial.

Objection to Exhibits 97-99
as hearsay and lacking
foundation/personal
knowledge.
136. Public
Resource’s
posting of the incorporated
standards at issue has not
caused
Plaintiffs
any
measurable harm. Becker
Decl., ¶ 11, Ex. 44 (Jarosz
Depo.) at 63:3–10; 123:14–18;
136:5–137:24;
155–158;
160:3–6;
177:17–178:5;
212:11–213:3; 214:13–215:3;
245:2–250:11; Becker Decl., ¶
11, Ex. 44 (Comstock Depo.) at
12:2-11; 63:10-16; 64:20–25;
see generally Becker Decl.
¶¶ 22-23, Exs. 55-56; Becker
Decl. ¶¶ 39-47, Exs. 72-80.

Disputed. While Plaintiffs
have not calculated a precise
number of damages, the
evidence demonstrates that
Plaintiffs have been harmed
by Defendant’s conduct. Mr.
Jarosz stated that Plaintiffs
had suffered financial losses
but they were exceedingly
difficult to quantify. ECF
No. 118-2 (Pls.’ SMF) ¶¶
238-39, 246.
ASHRAE also objects to
the incredibly misleading
use of Mr. Comstock’s
testimony, which involved
the observed impact of
ASHRAE’s own postings of
standards in its reading
room on a read-only basis,
not Public Resource’s
posting. (See Declaration
of Jordana Rubel,
previously filed at Dkt. 11812, ¶ 11, Ex. 8 (Comstock
Depo.) at 11-12). Because
this testimony does not
relate to the posting by
Defendant, ASHRAE also
objects to the use of the
testimony on the basis of
123

The cited material supports
the assertions in this
statement. Mr. Comstock
was asked directly about
monetary losses from Public
Resource’s use, and he
answered those questions
without any objection on the
record. Because the cited
testimony relates to losses
from Public Resource’s use,
there is no basis for
Plaintiffs’ relevance
objection.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

relevance (Fed. R. Evid.
402).
ASTM and NFPA object to
the use of evidence
regarding ASHRAE
against them as irrelevant.
137.

Disputed. While ASTM has
not calculated a precise
number of damages, the
evidence demonstrates that
Dkt. 120, Ex. 146; ASTM has been harmed by
ecl., ¶ 12, Ex. 45 Defendant’s conduct. Mr.
(Grove Depo.) at 144:22– Jarosz stated that Plaintiffs
145:2.
had suffered financial losses
but they were exceedingly
difficult to quantify. ECF
No. 118-2 (Pls.’ SMF) ¶¶
238-39, 246.
138. ASTM has no evidence
that it has lost sales of any of
the incorporated standards at
issue because Public Resource
made
the
incorporated
standards at issue publicly
available. Becker Decl., ¶ 12,
Ex. 45 (Grove Depo.) at
152:19–24.

Disputed. ASTM presented
evidence that many people
accessed versions of ASTM
standards that Defendant
placed online, some of whom
may have otherwise
purchased the standards from
ASTM. ECF No. 118-2
(Pls.’ SMF) ¶¶ 241, 243-44
(showing over 88,000
accesses of ASTM’s
standards from Defendant’s
website in a 10-month period
and thousands of downloads
of ASTM’s standards from
the Internet Archive); Def.
Ex. 9 (Jarosz Depo.) 212:16213:3; ECF No. 198-3 (Pls.’
2d. Supp. SMF) ¶¶ 98-99
(showing the download and
access data from PRO’s
website and in the Internet
Archive showing seven times
124

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

more views than ASTM’s
total views across all six
years).
139. ASTM has no evidence
that Public Resource caused
ASTM to lose money. Becker
Decl., ¶ 12, Ex. 45 (Grove
Depo.) at 154:25–155:5.

Disputed. While ASTM has
not calculated a precise
number of damages, the
evidence demonstrates that
ASTM has suffered damage
as a result of Defendant’s
conduct. ASTM presented
evidence that many people
accessed versions of ASTM
standards that Defendant
placed online, some of whom
may have otherwise
purchased the standards from
ASTM. ECF No. 118-2
(Pls.’ SMF) ¶¶ 241, 243-44
(showing over 88,000
accesses of ASTM’s
standards from Defendant’s
website in a 10-month period
and thousands of downloads
of ASTM’s standards from
the Internet Archive); Def.
Ex. 9 (Jarosz Depo.) 212:16213:3; ECF No. 198-3 (Pls.’
2d. Supp. SMF) ¶¶ 98-99
(showing the download and
access data from PRO’s
website and in the Internet
Archive showing seven times
more views than ASTM’s
total views across all six
years).

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

Undisputed that ASTM has
no knowledge of evidence
that Defendant caused ASTM
property damage. Disputed
as to the existence of
evidence that Defendant
caused ASTM injury. ECF
125

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

No. 118-2 (Pls.’ SMF) ¶¶
214-15, 241, 243-45.
141. ASTM has no evidence
that Public Resource caused
ASTM any damage to ASTM’s
reputation. Becker Decl., ¶ 12,
Ex. 45 (Grove Depo.) at
165:12–15.

Disputed. Plaintiffs
presented evidence of
Defendant’s posting versions
of ASTM standards that
contain errors online. ECF
No. 118-2 (Pls.’ SMF) ¶¶
214-15, 245.

142. Plaintiffs’ expert Jarosz
was unable to quantify any
financial losses to Plaintiffs as
a consequence of Public
Resource’s activities. Becker
Decl., ¶ 11, Ex. 44 (Jarosz
Depo.) at 63:3–10.

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

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

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

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

Disputed. In addition to
relying on persons with
knowledge of relevant
information, Mr. Jarosz
relied on documentary
evidence, including, but not
limited to, documents
showing the number of
downloads of copies of
Defendant’s copies of
Plaintiffs’ standards and
documents showing that
Defendant did not correctly
copy Plaintiff’s standards.
Mr. Jarosz also relied on the
testimony of Public Resource
126

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DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

and Carl Malamud. See
Jarosz Report, Tab 2.
145. Plaintiffs’ expert Jarosz
was not aware of any direct
evidence of the impact of
Public Resource’s activities on
Plaintiffs’ financials. Becker
Decl., ¶ 11, Ex. 44 (Jarosz
Depo.) at 160:3–6.

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

146. Plaintiffs’ expert Jarosz Undisputed.
did not correlate Public
Resource’s posting of the
standards at issue with
Plaintiffs’ revenues from the
sale of the standards at issue.
Becker Decl., ¶ 11, Ex. 44
(Jarosz Depo.) at 177:17–
178:5.
147. Plaintiffs’ expert Jarosz Undisputed.
did no analysis to distinguish
the profitability of the
standards at issue from the
profitability of standards that
have not been incorporated by
reference into law. Becker
Decl., ¶ 11, Ex. 44 (Jarosz
Depo.) at 183:4–15.
148. Plaintiffs’ expert Jarosz
lacks certainty that Public
Resource’s posting of the
standards at issue caused any
economic loss to Plaintiffs.
Becker Decl., ¶ 11, Ex. 44
(Jarosz Depo.) at 212:11–
213:3.

Disputed. Mr. Jarosz stated
that Plaintiffs had suffered
financial losses but they were
exceedingly difficult to
quantify. ECF No. 118-2
(Pls.’ SMF) ¶¶ 238-39, 246.
Additionally, Mr. Jarosz
stated that he could say with
reasonable certainty that if
people had not accessed or
downloaded versions of
ASTM’s standards that

127

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Defendant posted online, in
some instances they would
have obtained the ASTM
standards from ASTM
through legal means. Def.
Ex. 9 (Jarosz Depo.) 212:16213:3.
149. Plaintiffs’ expert Jarosz
did not evaluate the extent of
distribution of the standards at
issue via Public Resource’s
website. Becker Decl., ¶ 11,
Ex. 44 (Jarosz Depo.) at
214:13–215:3; 216:2–5; 245–
49.

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

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

Disputed. The citation to
Mr. Comstock’s testimony,
which involved the
observed impact of
ASHRAE’s own postings of
standards in its reading
room on a read-only basis,
not Public Resource’s
posting of standards, is
incredibly misleading and
does not support the
asserted proposition. (See
ECF No. 204-50 (Def’s Ex.
44) (Comstock Depo.) at 1112). Also, because this
testimony does not relate to
the posting by Defendant,
128

The cited material supports
the assertions in this
statement. Mr. Comstock
was asked directly about
monetary losses from Public
Resource’s use, and he
answered those questions
without any objection on the
record. Because the cited
testimony relates to losses
from Public Resource’s use,
there is no basis for
Plaintiffs’ relevance
objection.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

ASHRAE also objects to
the use of the testimony on
the basis of relevance (Fed.
R. Evid. 402).
ASHRAE further objects to
the extent that the
testimony elicited supports
the fact that there has been
no formal tracking of lost
revenue, but that is not to
say that no loss occurred –
only that it was not
tracked. And ASHRAE’s
witnesses did point to
anecdotal evidence of lost
revenue due to free
availability of the standards
online, even if the impact
was not quantified. See ECF
No. 204-50 (Def’s Ex. 44)
(Comstock Depo.) 63:17-25.
151.

Disputed.

Dkt. 163, Ex. 10.
ECF No. 117-2
(Jarosz Rep.) ¶ 95.

See Dkt. 163, Ex.
10.
152.

Disputed.

129

DEFENDANT’S REPLY

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STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Dkt. 163, Ex. 11.

¶ 95.

153. ASTM’s sales from Undisputed.
publications have increased
2% during the three years
Public Resource was first
posting ASTM Standards. This
was in accord with Grove’s
expectations. Becker Decl., ¶
12, Ex. 45 (Grove Depo.) at
19:21–20:13.
154. ASHRAE has not Undisputed.
attempted to track losses due to
Public Resource’s conduct.
Becker Decl., ¶ 11, Ex. 44
(Comstock Depo.) at 63:10–
16.
155. NFPA
has
not Undisputed.
identified
“any
direct
correlation” between adoption
of an edition and an increase in
sales. “The only general
correlation is that once a new
version of the code is out, we
will sell more of the new
edition and less of the old
edition, but nothing – no
general correlation to adoption
or specific spikes.” Becker
Decl., ¶ 9, Ex. 42 (Mullen
Depo.) at 95:3–25.
156. NFPA does not have a Undisputed.
number on any balance sheet
130

DEFENDANT’S REPLY

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STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

that corresponds to the value of
the copyrights it holds because
NFPA does not “attempt to
place any value on any
intangible asset.” Becker Decl.,
¶ 9, Ex. 42 (Mullen Depo.) at
140:11–18.
157. According to NFPA’s
Bruce Mullen, “If I had to
guess, the non-business or
government
purchases
is
probably less than 1 percent of
the total sales.” Becker Decl., ¶
9, Ex. 42 (Mullen Depo.) at
187:14–23.

Disputed. Defendant’s
This is an admission of a
purported fact is a quote from party opponent and is not
an email that was shown to
hearsay. Fed. R. Evid. 801.
Mr. Mullen at his deposition
which he did not author,
receive, or recognize. Mr.
Mullen simply did not state
what Defendant alleges he
did.
Objection. Inadmissible
hearsay.

158. Allowing
“unauthorized persons” to use
standards without training is
not a cognizable harm. Becker
Decl., ¶ 11, Ex. 44 (Jarosz
Depo.) at 227:14–228:14.

This is a legal conclusion and
not a factual statement.

159. “Confusion” between
incorporated standards and
newer versions of Plaintiffs’
standards does not harm
Plaintiffs. Becker Decl., ¶ 11,

This is a legal conclusion and
not a factual statement.

Disputed. The cited source
addresses the provision of
training or guidance by
unauthorized persons. It
does not contain any
conclusion or opinion that
such training is not a
cognizable harm or that such
training does not cause
Plaintiffs other forms of
cognizable injuries (e.g.,
financial harm).

Disputed. This statement is
not supported by the cited
source and Defendant
provides no other basis for it.
131

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DEFENDANT’S REPLY

160. In 2002, Plaintiffs
NFPA and ASHRAE argued
that a lack of private monopoly
to control the reproduction of
mandatory building codes
would “destroy” the “ability of
private standards developers to
underwrite the development
and
updating
of
their
standards.” Dkt. 122-8, Ex. 121
(Brief of American Medical
Assoc. et al. as Amici Curiae at
12, Veeck v. Southern Building
Code Congress International,
Inc., 293 F.3d 791 (5th Cir.
2002) (No. 99-40632)).

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

The brief is admissible as the
admissions of a party. As the
quoted statements are
statements of NFPA’s and
ASHRAE’s opinion, they
require no further foundation.

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

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

162. Plaintiffs have no
evidence that they suffered any
loss of revenues in Texas,
Louisiana, or Mississippi since
2002, when the Fifth Circuit
Court of Appeals decided
Veeck v. S. Bldg. Code Cong.

Disputed. The Veeck
decision explicitly stated it
did not apply to standards
incorporated by reference,
like Plaintiffs’ standards.
Thus there would be no basis
for expecting Plaintiffs to

Ex. 44 (Jarosz Depo.) at
254:14–257:9.

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

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

132

Public Resource does not cite
the brief for the truth of its
assertions but to show NFPA
and ASHRAE’s stated
opinions.

This objection does not
undermine the accuracy of
Public Resource’s assertion,
and Plaintiffs do not dispute
that it submitted a brief in
support of Supreme Court
review after the Veeck
decision.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Int’l, Inc., 293 F.3d 791, 796
(5th Cir. 2002) (en banc).
Becker Decl., ¶ 11, Ex. 44
(Jarosz Depo.) at 130:6–19.

DEFENDANT’S REPLY

have suffered loss of revenue
as a result of the Veeck
decision. See ECF No. 118-1
(Pls.’ Mem.) at 26-27.
Moreover, following the
Veeck decision, the OFR
considered and rejected the
argument that the Veeck
decision resulted in the loss
of copyright protection in
incorporated standards. 1
C.F.R. § 51 at 66268 (“In our
discussion of the copyright
issues raised by the
petitioners and commenters,
we noted that recent
developments in Federal law,
including the Veeck decision
and the amendments to
FOIA, and the NTTAA have
not eliminated the
availability of copyright
protection for privately
developed codes and
standards referenced in or
incorporated into federal
regulations. Therefore, we
agreed with commenters who
said that when the Federal
government references
copyrighted works, those
works should not lose their
copyright.”)

163. Eleven states and
United States territories jointly
filed an amicus brief in
support of Peter Veeck in the
case Veeck v. S. Bldg. Code
Cong. Int’l, Inc., 293 F.3d
791, 801 (5th Cir. 2002), in
which they asserted that

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

Public Resource does not cite
the brief for the truth of its
assertions but to show the
stated opinions of the eleven
states and territories that filed
the amicus brief.
This is relevant to show the
public interest in accessing

133

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

“[c]opyright, while permitted
by the Constitution, is at base
only a statutory right . . . . On
the other hand, due process is
a constitutional right of the
first order.” Dkt. 164-13 at 4.

DEFENDANT’S REPLY

standards that are
incorporated by reference
into law, which bears on fair
use and related questions.

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

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

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

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

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

Objection by ASTM and
NFPA. The testimony
relates only to ASHRAE
standards and is irrelevant
to ASTM and NFPA.

This is an admission of a
party opponent designated as
a corporate representative of
ASTM concerning the
demand for ASTM standards,
and the testimony is well
within his personal
knowledge and competence.

This is an admission of a
party opponent designated as
a corporate representative of
ASHRAE concerning the
demand for ASHRAE
standards, and the testimony
is well within his personal
knowledge and competence.

Disputed because this is
unsupported speculation, not
a statement of fact.
XI.

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

166. Public
Resource
voluntarily applies notices to
the incorporated standards at
issue on its website describing

Objection. Disputed to the
extent that PRO failed to
attach as evidence the page
that appears at the URL
134

The cited material includes
testimony from Mr.
Malamud based on his
personal knowledge of Public

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

the process it uses to copy
standards and disclaiming
affiliation with any SDOs. See,
e.g., an example of one of the
standards posted on the
Internet
Archive,
at
https://archive.org/details/gov.
law.nfpa.13.2002; see also
Dkt. 121-5 ¶ 30, Ex. 3.

https://archive.org/details/go
v.law.nfpa.13.2002.
Plaintiffs are unable to tell
what information appeared
when PRO posted this page,
and PRO’s disclaimers have
changed over time. ECF No.
198-3 (Pls.’ 2d. Supp. SMF)
¶¶ 26-29. Plaintiffs object
to this citation as violating
the best evidence rule.

Resource’s practices. The
notices that Public Resource
has applied to incorporated
standards at issue are
relevant because they exist,
not for their contents. The
best evidence rule does not
apply.

Disputed. The cited exhibit
shows application of a notice
on the HTML version of a
standard that PRO posted
online in 2015 and is not a
Work at issue. Defendant
presented no evidence that it
applied this notice on any
PDF or HTML version of a
standard at issue when it
posted it in 2012. The
HTML versions of at least
some of the standards at issue
in this litigation do not
include this disclaimer. See
Wise Decl. ¶ 166, Ex. 165
(showing HTML version of
ASTM standard D86-07).
167. Each
of
the
incorporated laws at issue has a
title that contains one of the
Plaintiffs’ names. Compl. Exs.
A–C, ECF No. 1.

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

135

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
168. Public
Resource
displays links to standards
incorporated by reference into
the
Code
of
Federal
Regulations in a table that
identifies the standards by their
alphanumeric
code,
e.g.,
ASTM D396-98, its year, the
developing organization, the
title of the standard, and the
C.F.R.
section
that
incorporated the standard by
reference. Dkt. 121-5 ¶ 28, Ex.
2.

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Public Resource’s webpage
is not offered for the truth of
the statements on it, but
rather to show the
information about standards
incorporated by reference
into the Code of Federal
Disputed to the extent PRO
suggests that the information Regulations that Public
Resource makes available to
contained in the exhibit
accurately reflects the current the public.
contents of its website. The
page in question does not
currently include any
standards published by
Plaintiffs. Wise Decl. II
¶ 10, Ex. 182
(https://law.resource.org/pub/
us/cfr/manifest.us.html).
Objection. Defendant’s
webpage is hearsay if it is
offered to prove the truth
of any of the matters
asserted therein.

Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.
Disputed to the extent it
suggests that PRO provides
accurate information
regarding incorporation by
reference. As explained in
Plaintiffs’ briefing, PRO
often provides inaccurate
information. E.g., Mot. 15 &
n.10.
169. Planintiffs’ [sic] names Objection. PRO’s reliance
must be used in order to refer to on ASTM’s citation format
the standards at issue. For to give proper attribution
136

This evidence is relevant to
show how Public Resource
uses Plaintiffs’ names with

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

example, ASTM states that the
citation format for this standard
is: “ASTM D396-98, Standard
Specification for Fuel Oils,
ASTM International, West
Conshohocken, PA, 2001,
www.astm.org.” Dkt. 122-9,
Ex. 147.

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

170. Public
Resource
purchased a physical copy of
each of the incorporated laws
at issue. Dkt. 121-5 ¶ 24.

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

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

Disputed. Defendant added a
cover page to the PDF
versions of Plaintiffs’
standards so PRO’s postings
do not accurately appear as a
scan of a physical version of
Plaintiffs’ standards. ECF
No. 118-2 (Pls.’ SMF) ¶¶
183-84. Defendant also
admits that it made errors in
137

DEFENDANT’S REPLY

respect to standards
incorporated by reference
into law.
This statement is not a legal
conclusion, but merely an
assertion concerning how
Public Resource provides
attribution to Plaintiffs with
respect to standards
incorporated by reference
into law.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

creating the PDF versions of
Plaintiffs’ standards,
including skipping pages and
scanning pages upside down.
ECF No. 118-2 (Pls.’ SMF)
¶¶ 214, 216.
Disputed to the extent it
states that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.
172. For some of the
incorporated laws at issue,
Public
Resource
posted
versions in HTML and SVG
formats. Dkt. 121-5 ¶ 25–26.

Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
reasons stated in response to
Paragraph 84.
Disputed to the extent it
implies that posting versions
of Plaintiffs’ Works is
transformative as addressed
in Plaintiffs’ brief. Reply at
Part I.A.1.b.

173. For some of the PDF
versions of the incorporated
laws, Public Resource attached
its own cover page, which
indicated where the law was
incorporated by reference. Dkt.

Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
its entirety or at all for the
138

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

121-5 ¶ 20–22; Compl. Ex. G, reasons stated in response to
ECF No. 1-7.
Paragraph 84.
Defendant presented no
evidence that it added a cover
page to only some, rather
than all, of the PDF versions
of Plaintiffs’ standards. See
ECF No. 118-2 (Pls.’ SMF)
¶¶ 183-84.
Disputed to the extent it
suggests that PRO provides
accurate information
regarding incorporation by
reference. As explained in
Plaintiffs’ briefing, PRO
often provides inaccurate
information. E.g., Mot. 15 &
n.10.
174. Public
Resource’s
addition of embedded text and
metadata in the PDF versions
of incorporated laws on its
website did not change the
appearance of the PDF
versions. Dkt. 121-5 ¶ 25.

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

175. The embedded text in
the
PDF
versions
of
incorporated laws on Public
Resource’s website enabled
software based searching and
text to speech functionality.
Dkt. 121-5 ¶ 25.

Objection. This is
statement is supported
solely by inadmissible
opinion testimony.
Disputed to the extent it
suggests that Plaintiffs’
standards are themselves law.
Disputed to the extent it
implies that each of the
standards at issue has been
incorporated by reference in
139

Mr. Malamud has direct
personal knowledge of the
PDF versions of incorporated
laws on Public Resource’s
website.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

its entirety or at all for the
reasons stated in response to
Paragraph 84.
Disputed to the extent it
states that Plaintiffs’
standards are themselves
laws. Disputed to the extent
it implies any individual who
accessed the PDF versions
actually performed software
based searching and/or used
text-to-speech functions.
Disputed to the extent it
implies that an individual
who used text-to-speech
functions would consider the
versions of Plaintiffs’
standards on Defendant’s
website to be accessible. See
Pls.’ Supp. SMF ¶ 5
(Fruchterman Depo. 256:12259:6).
Disputed. There is no record
evidence supporting that the
embedded text in the PRO’s
PDF versions of the Works
actually this enabled speech
functionality. Additionally,
Mr. Fruchterman
acknowledged that he had
asked a visually disabled
person to evaluate the PDF
versions of Plaintiffs’
standards that were posted on
Defendant’s website, and that
person informed him that
those documents could not be
considered to be accessible.
ECF No. 155-1 (Pls.’ Supp.

140

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

SMF) ¶ 5 (Fruchterman
Depo. 256:12-259:6).
A.

The Standards that Plaintiffs Publish Already Have Errors

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

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

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

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

141

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
XII.

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

PUBLIC INTEREST CONSIDERATIONS

179. It is in the public
interest for people to be
educated about the NFPA
standards. Becker Decl., ¶ 13,
Ex. 46 (Bliss Depo.) at 121:22–
122:4 (“NFPA’s standards
establish ways to make
buildings safer and processes
to be safer and for people to act
or react in a more safe manner
when it comes to fire, electrical
safety and other hazards. It’s
in the public interest that
people be educated about those
requirements
or
those
standards.”).

Disputed to the extent
Defendant characterizes Mr.
Bliss’s testimony as a legal
conclusion regarding the
public interest or that Mr.
Bliss’s statement would
apply to PRO’s purported
“educational” purpose. The
NFPA and its standard
development work more
broadly serves the public
interest. ECF No. 118-2
(Pls.’ SMF) ¶ 95.

180. It is in the public Undisputed.
interest for people to use the
ASTM standards. M. Becker
Decl. ¶ 20, Ex. 22

181. Public.Resource.org
seeks to inform the public
about the content of the law.
Dkt. 122-2, Ex. 17 (C.
Malamud Ex. 33) (Public
Resource “tries to put more
government
information

Objection as to relevance of
Mr. Malamud’s or PRO’s
supposed subjective intent.
As explained in Plaintiffs’
briefing, fair use turns on
how a work appears to a
reasonable observer, not on

142

This evidence is relevant to
show – by both objective and
subjective criteria – the
public and non-commercial
nature and character of
Public Resource’s use, which

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

online. We’ve had a big impact
on putting more judicial
information on the Internet, but
also do fiche and a variety of
other documents such as IRS
nonprofit tax returns.”).

the infringer’s subjective
intent. Reply at Part
I.A.1.b.

182. The Internet is fast
becoming the primary means
of obtaining information about
government operations and
policies. See U.S. Department
of Justice, Civil Rights
Division, “Accessibility of
State and Local Government
Websites to People with
Disabilities,”
http://www.ada.gov/websites2.
htm. Accessibility best
practices follow the principle
of universal design, which
states that the best
accommodations for people
with disabilities are those that
benefit everyone:

Objection. The statement
by the Department of
Justice, Civil Rights
Division is inadmissible
hearsay to the extent it is
offered to prove the truth
of the matter asserted.

When
accessible
features are built into
web pages, websites
are more convenient
and more available to
everyone—including
users with disabilities.
Web designers can
follow
techniques

DEFENDANT’S REPLY

bears directly on fair use and
related questions.

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

The statement is also
irrelevant. The D.C.
Circuit has already rejected
Defendant’s argument that
converting works into a
format more accessible for
the visually impaired is
transformative use. Am.
Soc’y for Testing &
Materials, 896 F.3d at 450.
This statement also is
improper opinion
testimony.
Disputed. This statement is
not supported by any
admissible evidence.

143

This evidence is admissible
as a record of the Department
of Justice made in the
ordinary course of business.
It is also a record or
statement of a public office
that sets out the office’s
activities. Fed. R. Evid.
803(8).
Additionally, any quotations
are not offered for the truth
of the statement, but rather
for the fact that the
Department of Justice makes
such representation to the
public.
This evidence is relevant to
show the importance of
accessibility for materials on
the Internet and thus it bears
on the nature and character of
Public Resource’s posting of
standards incorporated by
reference into law, which in
turn relates to fair use and
related questions. The
assertions in the statement

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

developed by private
and
government
organizations to make
even complex web
pages usable by
everyone including
people
with
disabilities.

concern matters other than
measures Public Resource
takes with respect to
accessibility by visually
impaired persons.
The statement is not opinion
testimony but rather reflects
a statement by the federal
government regarding the
importance of accessibility.

Id.

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

DEFENDANT’S REPLY

Objection. The statement
by the Advisory
Commission on Accessible
Instructional Materials is
inadmissible hearsay to the
extent it is offered to prove
the truth of the matter
asserted.

This evidence is admissible
as a record of the Department
of Education made in the
ordinary course of business.
It is also a record or
statement of a public office
that sets out the office’s
activities. Fed. R. Evid.
803(8).

The statement is also
irrelevant. The D.C.
Circuit has already rejected
Defendant’s argument that
converting works into a
format more accessible for
the visually impaired is
transformative use. Am.
Soc’y for Testing &
Materials, 896 F.3d at 450.

Additionally, any quotations
are not offered for the truth
of the statement, but rather
for the fact that the
Department of Education
makes such representation to
the public.

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

144

This evidence is relevant to
show the importance of
accessibility for materials on
the Internet and thus it bears
on the nature and character of
Public Resource’s posting of
standards incorporated by
reference into law, which in
turn relates to fair use and
related questions. The
assertions in the statement
concern matters other than
measures Public Resource

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

accessibility, and federal
officials now consider it
outdated and in need of
reform. See id. at 43-44.

DEFENDANT’S REPLY

takes with respect to
accessibility by visually
impaired persons.
The statement is not opinion
testimony but rather reflects
a statement by the federal
government regarding the
importance of accessibility.

XIII. DRAFTING OF THE STANDARDS AT ISSUE
184. Each standard at issue
was developed by a large
number of unpaid volunteers,
including federal government
employees, state and municipal
government
employees,
employees
of
private
companies and organizations,
and ordinary citizens. Becker
Decl., ¶ 7, Ex. 40 (Smith
Depo.) at 56:03–57:06; ¶ 79,
Ex. 81; Becker Decl., ¶ 12, Ex.
45 (Grove Depo.) at 97:25–
98:07; ¶ 20, Ex.22; ¶ 22, Ex.
24; Becker Decl., ¶ 8, Ex. 41
(Dubay Depo.) at 15:16–16:10,
51:20–52:15,
75:17–76:11,
240:22–242:04; Becker Decl.,
¶ 9, Ex. 42 (Mullen Depo.) at
114:22–115:23; Becker Decl.,
¶ 10, Ex. 43 (Reiniche Depo.)
at
21:01–23:21,
105:08–
106:18 194:04–194:07; ¶ 42,
Ex. 44; ¶ 46, Ex. 48.

Objection. Vague as to the
use of the term
“developed.”

185. Volunteers or members
of the public proposed the
creation or revision of the
standards at issue. Becker
Decl., ¶ 7, Ex. 40 (Smith

Disputed. Plaintiffs’ rules
dictate the process and
procedures for developing,
revising and updating the
standards on a regular

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

145

The term “developed,” as
used here, is not vague. Its
usage is also clarified by
context and the cited
materials.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Depo.)
at
18:05–18:19,
280:10–280:20; ¶ 93, Ex. 95;
¶ 123, Ex. 125, p. 4; Becker
Decl., ¶ 10, Ex. 43 (Reiniche
Depo.) at 94:20–98:24; ¶ 124,
Ex. 126, p. 5 (discussing
ASHRAE
membership
categories).

schedule. ECF No. 118-2
(Pls.’ SMF) ¶¶ 42, 93, 140.

186. Volunteers drafted the
language for the standards at
issue, with public input, and
determine the arrangement and
inclusion of proposed text.
Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 18:05–18:23,
20:04–20:11; ¶ 93, Ex. 95;
Becker Decl., ¶ 13, Ex. 46
(Bliss Depo.) at 45:12–46:02
(“We use a system of
volunteers to serve on
committees to develop the
standard. It’s volunteers that
serve on the standards council.
It’s volunteers that serve as our
membership to make the final
voting.”); Becker Decl., ¶ 13,
Ex. 46 (Bliss Depo.) at 46:03–
46:13; Becker Decl., ¶ 8, Ex.
41 (Dubay Depo.) at 29:12–
29:21; Becker Decl., ¶ 10, Ex.
43 (Reiniche Depo.) at 49:0850:11; Becker Decl., ¶ 10, Ex.
43 (Reiniche Depo.) at 60:05–

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

Plaintiffs also have a role in
deciding whether or not to
develop a standard. See, e.g.,
ECF No. 118-2 (Pls.’ SMF) ¶
92. Plaintiffs control the
development of the standards
they publish. ECF No. 118-2
(Pls.’ SMF) ¶¶ 30-36, 11718, 138-41. Plaintiffs have
procedures in place to ensure
that standards meet their
required form and style
guidelines. ECF No. 118-2
(Pls.’ SMF) ¶¶ 34, 118, 139.

146

DEFENDANT’S REPLY

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60:12 (“[ASHRAE] Standard
90.1
is
on
continuous
maintenance, so anyone at any
time can propose a change to
the standard. It could be a
project committee member or
the public.”).
187. Volunteers voted on the Undisputed.
final content of the standards at
issue at the end of the
development
or
revision
process. Becker Decl., ¶ 7, Ex.
40 (Smith Depo.) at 15:25–
16:10, 17:14–17:24, 98:07–
98:25,
186:21–186:25,
274:23–276:12; Becker Decl.,
¶ 13, Ex. 46 (Bliss Depo.) at
45:12–46:13; Becker Decl., ¶
8, Ex. 41 (Dubay Depo.) at
55:22–57:17; Becker Decl., ¶
10, Ex. 43 (Reiniche Depo.) at
94:20–96:02 (describing the
volunteer committee resolution
process that votes on drafts and
revisions
of
ASHRAE
standards).
188. The volunteers who
developed the standards at
issue did so out of service to
their country as federal, state,
or municipal employees, in
furtherance of the business
interests of the private
companies or organizations
they worked for, or because of
personal interest.
Becker
Decl., ¶ 7, Ex. 40 (Smith
Depo.) at 45:16–46:04 (stating
that volunteers develop ASTM
standards because “a company
or an individual would be

Objection. Vague as to the
use of the term
“developed.” The
motivations of volunteers
who participated in
Plaintiffs’ standards
development process is also
irrelevant.
Disputed. This statement is
not supported by the cited
sources. Defendant has no
basis for drawing any
conclusions about the
motivations of any, much
147

The term “developed,” as
used here, is not vague. Its
usage is also clarified by
context and the cited
materials.
This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.
The motivations of the
participants in the standard
development process is also

DEFENDANT’S SECOND
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DEFENDANT’S REPLY

interested in having an ASTM
standard that they could say
their product or service is in
compliance with”); Becker
Decl., ¶ 13, Ex. 46 (Bliss
Depo.) at 138:22139:12 (as a
public official, Mr. Bliss
participated in NFPA standard
development because his
“motivation was to try and
establish the best possible fire
safety standards that could be
developed”); Becker Decl., ¶
10, Ex. 43 (Reiniche Depo.) at
50:12-51:06 (volunteers or
members of the public
participate because it affects
their business interests and
they want to write the language
that is adopted into code, or
because of personal interest).

less all, of the hundreds of
thousands of volunteers who
participated in Plaintiffs’
standards development
process.

relevant to show that no
substantial incentive under
copyright law is necessary to
encourage the development
of new standards.

189. Plaintiffs’ employees
set up meetings to discuss
drafts of the standards at issue
at public locations, advised the
volunteers who drafted the
standards, and assisted with
formatting. Becker Decl., ¶ 7,
Ex. 40 (Smith Depo.) at
268:13–272:25 (listing the
ways in which ASTM staff
assist the people who actually
draft the standards); Becker
Decl., ¶ 8, Ex. 41 (Dubay
Depo.) at 52:16–53:04 (“NFPA
employees are not -- cannot be
members of our technical
committees. However, as I
stated
previously,
it’s
important -- there’s an
important role that NFPA staff
plays in guiding, advising the

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

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

148

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DEFENDANT’S REPLY

committee, coordinating the
activities and providing their
technical expertise, especially
technical staff liaison into this
committee process. But they
do not have -- they’re not
members of the committee, and
they do not carry a vote in the
decisions of the committees.”);
Becker Decl., ¶ 10, Ex. 43
(Reiniche Depo.) at 97:13–
98:19
(involvement
of
ASHRAE staff in development
and updating of standard 90.1
is limited to reviewing and
making suggestions to the
volunteers who draft and vote
on the text of the standard).
190. Plaintiffs did not have
control over the content of the
standards at issue during the
development and revision of
those standards. The decision
to develop or revise the
standards at issue was made by
volunteers,
not
by
the
Plaintiffs. Becker Decl., ¶ 7,
Ex. 40 (Smith Depo.) at 15:25–
16:10, 17:14–17:24, 98:07–
98:25,
186:21–186:25,
274:23–276:12; Becker Decl.,
¶ 13, Ex. 46 (Bliss Depo.) at
45:12–46:02,
46:03–46:13
(NFPA employees assist the
volunteers, but the volunteers
have the “ultimate decision . . .
as to what the language will
actually say”); Becker Decl., ¶
8, Ex. 41 (Dubay Depo.) at
55:22–57:17; Becker Decl., ¶

Objection. Vague and
ambiguous as to the term
“control.”
Disputed. Plaintiffs
presented evidence that their
employees drafted language
that appears in the standards.
ECF No. 118-2 (Pls.’ SMF)
¶¶ 34-35, 117, 137-39, 141.
Disputed to the extent it
omits reference to the
Plaintiffs, to whom the
volunteers proposed the
creation or revision of the
standards.
Plaintiffs have a role in
deciding whether or not to
develop a standard. See, e.g.,
ECF No. 118-2 (Pls.’ SMF) ¶
92. Plaintiffs’ rules dictate
the process and procedures
for developing, revising and
149

The term “control,” as used
here, is not vague. Its usage
is also clarified by context
and the cited materials.

DEFENDANT’S SECOND
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PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

10, Ex. 43 (Reiniche Depo.) at updating the standards on a
94:20–96:02.
regular schedule. ECF No.
118-2 (Pls.’ SMF) ¶¶ 42, 93,
140. Plaintiffs control the
development of the standards
they publish. ECF No. 118-2
(Pls.’ SMF) ¶¶ 30-36, 11718, 138-41. Plaintiffs also
have procedures in place to
ensure that standards meet
their required form and style
guidelines. ECF No. 118-2
(Pls.’ SMF) ¶¶ 34, 118, 139.
191. Federal
government
employees authored parts of
the standards at issue. M.
Becker Decl. ¶ 20, Ex. 20 at 1;
¶ 21, Ex. 23 at 9. See also
Table 6 of “Comment on
Safety Standard for Automatic
Residential Garage Door
Operators”,
Public.Resource.Org, Nov. 16,
2015,
at
https://law.resource.org/pub/us
/cfr
/regulations.gov.docket.15/cps
c.gov.20151116.html#t6 (cataloguing
nineteen
textual
contributions to the National
Electrical
Code
from
Consumer Product Safety
Commission staff).

Objection to PRO’s
reliance on Exhibit 20. It is
hearsay. As it appears to
be a statement Mr.
Malamud made to the
Ninth Circuit—not any
evidence that federal
government employees
authored standards—it is
irrelevant. Plaintiffs
further object to PRO’s
reliance on Table 6 of
“Comment on Safety
Standard for Automatic
Residential Garage Door
Operators” as irrelevant
hearsay and for lack of
authenticity. The
document was not attached
as an exhibit to PRO’s
motion and the link directs
to a letter from Carl
Malamud titled: “Status
Code 451: Your Request
Has Been Denied.”
Plaintiffs further object as,
to the extent the cited
evidence does not relate to

150

The contributions of
Consumer Product Safety
Commission staff to the
National Electrical Code text
are public records setting out
the public office’s activities,
and records of regularly
conducted business activities
(participating in the
development of the National
Electrical Code), and
moreover are provided by the
federal government and not
subject to reasonable dispute
as to authenticity or factual
veracity. They are therefore
exceptions to hearsay under
F.R.E. 803 (6) and (8) and
F.R.E. 807.
The Consumer Product
Safety Commission’s website
appears to be undergoing
maintenance, but
automatically archived
versions of each of these
documents can be obtained
by looking them up on the

DEFENDANT’S SECOND
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PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

one of the Works, it is
irrelevant.

Internet Archive at the
following links:

To the extent PRO intends
to rely on the document at
the website
https://law.resource.org/pu
b/us/cfr/regulations.gov.doc
ket.15/cpsc.gov.20151116.ht
ml, that document’s Table
6 offers no support for its
self-serving assertion that
federal government
employees drafted any
portion of any standard.
Specifically, all of the links
in that Table take a visitor
to a Consumer Product
Safety Commission website
that reads “Be Right
Back…”

https://web.archive.org/web/
20170207161319/https://ww
w.cpsc.gov/PageFiles/11736
6/comment422f.pdf

Disputed. This statement is
entirely unsupported by the
cited documents. Defendant
has presented no evidence
that federal government
employees drafted any
language that appears in any
of the standards at issue.
Moreover, federal
government employees may
participate in the
development of private
standards without altering the
copyrightability of that
standard. Revised OMB
Circular No. A-119, 81 FR
4673, (2016).

151

https://web.archive.org/web/
20170223204422/https://ww
w.cpsc.gov/PageFiles/11737
3/comment210-12.pdf
https://web.archive.org/web/
20170222233233/https://ww
w.cpsc.gov/PageFiles/11733
8/210-8a3.pdf
https://web.archive.org/web/
20170125025404/https://ww
w.cpsc.gov/PageFiles/11735
1/210-12c.pdf
https://web.archive.org/web/
20170207071338/https://ww
w.cpsc.gov/PageFiles/11735
5/230-xx.pdf
https://web.archive.org/web/
20170212055701/https://ww
w.cpsc.gov/PageFiles/10827
6/210.12n.pdf
https://web.archive.org/web/
20170207065403/https://ww
w.cpsc.gov/PageFiles/10975
4/210.8A.pdf
https://web.archive.org/web/
20170211071503/https://ww
w.cpsc.gov/PageFiles/10829
1/100.pdf

DEFENDANT’S SECOND
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STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

https://web.archive.org/web/
20170224211212/https://ww
w.cpsc.gov/PageFiles/10828
5/230.xx.pdf
https://web.archive.org/web/
20170209202716/https://ww
w.cpsc.gov/PageFiles/10976
0/210.8B.pdf
https://web.archive.org/web/
20170210000456/https://ww
w.cpsc.gov/PageFiles/10829
8/210.12r.pdf
https://web.archive.org/web/
20170131113344/https://ww
w.cpsc.gov/PageFiles/11728
2/afci.pdf
https://web.archive.org/web/
20170212083913/https://ww
w.cpsc.gov/PageFiles/11728
6/bedrooms.pdf
https://web.archive.org/web/
20170223052803/https://ww
w.cpsc.gov/PageFiles/11729
2/editorial.pdf
https://web.archive.org/web/
20170201050551/https://ww
w.cpsc.gov/PageFiles/11729
6/smokealarm.pdf
https://web.archive.org/web/
20170212112237/https://ww
w.cpsc.gov/PageFiles/11730
1/boathoists.pdf

152

DEFENDANT’S SECOND
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DEFENDANT’S REPLY

https://web.archive.org/web/
20170201050551/https://ww
w.cpsc.gov/PageFiles/11729
6/smokealarm.pdf
https://web.archive.org/web/
20170131074532/https://ww
w.cpsc.gov/PageFiles/11727
5/NFPA70_550_13b.pdf
https://web.archive.org/web/
20170212163343/https://ww
w.cpsc.gov/PageFiles/10751
2/NFPA70_550_25.pdf
https://web.archive.org/web/
20170131074532/https://ww
w.cpsc.gov/PageFiles/11727
5/NFPA70_550_13b.pdf
These documents have been
compiled at Becker
Supplemental Reply
Declaration Ex. 103.
192. Employees of third
party
companies,
organizations, or government
entities authored parts of the
standards at issue in their
capacity as employees of those
third
party
companies,
organizations, or government
entities. Becker Decl., ¶ 13, Ex.
46 (Bliss Depo.) at 163:04–
164:19.

Disputed. Plaintiffs are the
organizational authors who
oversee the development of
the Works. See Veeck v.
Southern Bldg. Code Cong.
Int’l, Inc., 293 F.3d 791, 794
(5th Cir. 2003) (en banc).
Moreover, Plaintiffs own
copyright registrations for
each of the Works. ECF No.
198-3 (Pls.’ SSUMF) ¶¶ 1, 7,
9-10. Defendants also do not
dispute that ASTM has
copyright registrations that
cover each of the standards at
issue in this litigation. ECF
No. 155-3 ¶ 70.

153

DEFENDANT’S SECOND
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DEFENDANT’S REPLY

Disputed to the extent it
implies that any or all
employees of any company,
organization or government
entity participate in
Plaintiffs’ standard
development processes in
their capacity as employees
of those entities. Disputed to
the extent it implies that any
employees of government
entities authored any parts of
the standards at issue.
Defendant has presented no
evidence to support these
assertions. Defendant does
not even cite any evidence
related to ASTM or
ASHRAE to support this
statement.
193. Plaintiffs have no
procedures to ensure that
employees of third party
companies, organizations, or
government
entities
are
capable of transferring any
copyright in the standards at
issue to Plaintiffs, and that such
copyright is not instead held by
the employer. Plaintiffs do not
have any procedures in place to
ensure that governmental and
private company employees
who participate in the
development of standards have
the authority or ability to
transfer copyright to the
Plaintiff organizations, and
Plaintiffs did not request
copyright assignments from
the
employers
of
the
individuals who authored

Objection. Relevance.
Defendant has not
identified any language in
any of the standards at
issue that were authored in
whole or in part by an
employee of a third-party
company, organization, or
government entity.
Disputed. NFPA’s and
ASHRAE’s assignment
forms require the person
signing to warrant that he/she
has the authority to enter into
the assignment. ECF No.
118-8, (Pauley Decl.) ¶ 31,
Ex. B (NFPA assignment
forms state: I hereby warrant
that . . . I have full power and
authority to enter into this
assignment.”); ECF No. 121-

154

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.
The evidence also relates to
Plaintiffs’ authorship of the
standards at issue in this
case.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
components of the standards at
issue. Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 46:12–49:25,
166:17-170:19; Dkt. 120, Ex.
74; Becker Decl., ¶ 8, Ex. 41
(Dubay Depo.) at 220:15–
220:25
(“NFPA
verifies
through our policy the
submission
from
the
individual. We do not go to
their companies to verify
authority of their signature.”);
Becker Decl., ¶ 10, Ex. 43
(Reiniche Depo.) at 92:13–
93:07.

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

2 (Def. SUMF) ¶ 144
(ASHRAE forms state: “I
hereby attest that I have the
authority and I am
empowered to grant this
copyright release.”).
Disputed to the extent it
implies that Plaintiffs have
an affirmative obligation to
ensure that individuals who
sign assignment forms are
authorized to sign such
forms.
Plaintiffs also have
intellectual property policies
and registration forms that
are widely available and
distributed. See, e.g., ECF
No. 122-5, Def. Ex. 79. To
the extent employers direct
any employees to participate
in the SDO process, they are
or should be aware of the
conditions under which all
individuals participate,
including the requirement
that they assign any
copyright interest that they
may have to the SDO.

A.

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

194. Persons who volunteer
to create and develop voluntary
consensus standards have
incentives to do so that are
independent of owning the
copyright to the standards or
earning revenue from the sale
of the standards. Becker Decl.,
¶ 11, Ex. 44 (Jarosz Depo.) at

Objection. Lack of
foundation and/or personal
knowledge. The fact
witnesses cited by
Defendant lack person
knowledge of the incentives
of volunteers who create
and develop standards.
Relevance. The incentives

155

This is an admission of a
party opponent designated as
a corporate representative for
Plaintiffs concerning the
development of their
respective standards, and the
testimony is well within their
respective personal
knowledge and competence.

DEFENDANT’S SECOND
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STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

82:9–17; Becker Decl., ¶ 7, Ex.
40 (Smith Depo.) at 45:16–
46:10; Becker Decl., ¶ 13, Ex.
46 (Bliss Depo.) at 21:1–3; 15–
17; Becker Decl., ¶ 10, Ex. 43
(Reiniche Depo.) at 50:12–
51:6; Becker Decl., ¶ 13, Ex.
46 (Bliss Depo.) at 118:09–
119:01.

of persons who are not
authors of standards at
issue are irrelevant.

195. Plaintiffs have earned
revenue from sources other
than selling copies of the
standards.
These
sources
include revenue from selling
interpretative material related
to incorporated standards;
standards that have not been
incorporated
into
law;
membership dues; conference

Objection. Relevance. The
methods of operation of
non-party standards
development organizations
with different business
models are irrelevant.

Undisputed that volunteers
who assist in the
development of voluntary
consensus standards
participate in the standards
development process for a
variety of reasons, but those
volunteers neither bear the
significant costs of creating
and publishing of the
standards, nor do they do all
of the work that is necessary
for the creation and
publication of the standards.
Only SDOs such as Plaintiffs
do that work. ECF No. 1182 (Pls.’ SMF) ¶¶ 43, 104,
105, 152. Disputed to the
extent this implies that
Plaintiffs would have the
incentive to create and
develop their standards if
they did not own the
copyrights in the standards.
See ECF No. 118-2 (Pls.’
SMF) ¶¶ 45-47, 105-08, 15253. None of the cited
evidence suggests as much.

Undisputed as to the first two
sentences. Plaintiffs
acknowledge that certain

156

DEFENDANT’S REPLY

This evidence is relevant to
show the nature of the
copyrighted works, which is
the second statutory fair use
factor and bears directly on
fair use and related questions.
The motivations of the
participants in the standard
development process is also
relevant to show that no
substantial incentive under
copyright law is necessary to
encourage the development
of new standards.

This evidence is relevant to
show the relative markets for
Plaintiffs and other standards
development organizations.
This relates to the fourth
statutory fair use factor and
bears directly on fair use and
related questions.

DEFENDANT’S SECOND
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STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

fees; training services; and
public grants and contracts.
Becker Decl., ¶ 9, Ex. 42
(Mullen Depo.) at 130:21–
133:03;
228:11–229:23;
Becker Decl., ¶ 11, Ex. 44
(Jarosz Depo.) at 192:22–
193:6; Becker Decl., ¶ 13, Ex.
46 (Bliss Depo.) at 199:23–
201:12;
158:06–159:15;
Becker Decl., ¶ 12, Ex. 45
(Grove Depo.) at 264:22–
266:19; Becker Decl., ¶ 11, Ex.
44 (Comstock Depo.) at 48:23–
56:21; 59:03–60:02; 72:5–
74:15. Plaintiffs acknowledge
that
other
standards
development
organizations
operate without asserting a
right to exclude. ECF No. 1171 (Jarosz Rep.) ¶ 81.

European standards
development organizations
do not depend on the sales of
their standards to support the
development of their
standards. These standards
development organizations
are funded in a front-loaded
fashion, in which they charge
members to participate and
contribute to the standards
development process. ECF
No. 118-12, Ex. 1 (Jarosz
Rep.) ¶ 81. Unlike Plaintiffs,
these SDOs do not create
voluntary consensus
standards that comply with
ANSI requirements. ECF
No. 118-2 (Pls.’ SMF) ¶¶ 78, 12, 88, 139. The funding
model these European SDOs
use, which Plaintiffs do not
use, creates barriers to broad
participation in the standard
development process. ECF
No. 118-2 (Pls.’ SMF) ¶¶
259-60.
Disputed to the extent
Defendant suggests that these
other sources of revenue
mean Plaintiffs would not
suffer market harm or
irreparable harm from the
loss of revenue from
standards incorporated by
reference. ECF No. 155,
Pls.’ Reply Br. at Parts
I.A.4.b and III.B.1.

157

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT
B.

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Copyright Registration and Assignment

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

Objection. The deposition
testimony cited at ECF No.
122-2, Exhibit 13 is
irrelevant.
Disputed to the extent that
Defendant implies that
Plaintiffs’ ownership of the
Works is exclusively
pursuant to evidence of work
for hire authorship because,
even if not necessary,
Plaintiffs have submitted
additional evidence of
ownership via assignments of
copyright. E.g., ECF No.
118-2 (Pls.’ SMF) ¶¶ 18, 2024, 112-113, 115; ECF No.
155-1 (Pls.’ Supp. SUMF) ¶¶
14-15, 20-22; see also Am.
Soc’y for Testing &
Materials v.
Public.Resource.org, Inc.,
No. 13-CV-1215 (TSC),
2017 WL 473822, at *7
(D.D.C. Feb. 2, 2017), rev’d
in part, vacated in part, 896
F.3d 437 (D.C. Cir. 2018)
(finding that Defendant’s
effort to “point[] to
weaknesses in the additional
evidence that Plaintiffs
proffered to establish their
ownership, including
questioning whether every
one of the hundreds of
Plaintiffs’ members who
contributed to the standards
at issue signed an agreement
with appropriate language

158

The reference ECF No. 1222, Exhibit 13, contained a
typo. The correct reference
is ECF No. 122-2, Exhibit
14.

DEFENDANT’S SECOND
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STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

transferring or assigning
copyright ownership to
Plaintiffs” “did not adduce
any additional evidence
disproving Plaintiffs’
authorship”).
197. Plaintiffs have not
provided evidence that one
standard at issue, ASTM D323
1958 (1968), was ever
registered with the copyright
office. Complaint, Ex. A at 4,
ECF No. 1-1.

Objection. Irrelevant.
ASTM D323 1958 (1968) is
not at issue in this motion.
See ECF 198-2, Pls’
Appendix A; ECF No. 202,
Def.’s Mot. (moving for
summary judgment on the
“works listed in Appendix
A to Plaintiffs’ motion
(Dkt. 198-2)”).

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

Undisputed that NFPA
alleges that a work made for
hire agreement was signed.
Disputed that those
individuals are the
“developers” of the standards
at issue, which also includes
NFPA staff.
Disputed that the “work
made for hire” language was
only added in 2007. The
undisputed testimony is that
the NFPA committee
application form is signed by
all members of NFPA
technical committees who
participate in the
development of the
standards, and that it has
contained unchanged “work
made for hire” language “for
many years.” Pauley Decl. ¶
34. Defendant’s citation to
pre-2007 forms is limited
159

The evidence relates to a
standard that ASTM
identified in Exhibit A of its
Complaint in this action.

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only to certain forms for
proposals from members of
the public, not the committee
application.
Disputed to the extent that
PRO implies that ASTM did
not offer evidence to support
that the ASTM Works are
works made for hire of
ASTM. Declaration of
Thomas O’Brien, previously
filed at Dkt. 118-7,
(“O’Brien Decl.”) ¶¶ 17-39
(ASTM employees are
involved in drafting certain
components of “every ASTM
standard,”); see Veeck v.
Southern Bldg. Code Cong.
Int’l, Inc., 293 F.3d 791, 794
(5th Cir. 2003) (en banc)
(“As the organizational
author of original works,
SBCCI indisputably holds a
copyright in its model
building codes”).
199. Plaintiffs claim to be
assignees of any copyright that
the volunteers or members of
the public who authored the
standards at issue might have
had in the standards at issue.
Dkt. 118-1 at 16.

Disputed to the extent that
Defendant implies that the
assignments from volunteers
and members are the only
basis for Plaintiffs’ copyright
ownership of the Standards at
Issue or that the record
evidence is insufficient to
establish Plaintiffs’
ownership of the copyrights
in the Works. E.g., ECF No.
155-3 (Pls’ Response to
PRO’s Statement of Disputed
Facts) ¶¶ 18, 20-24, 35, 7176, 112-15, 120-21, 137-146;
ECF No. 155-1 (Pls.’ Supp.

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SMF) ¶¶ 14-15, 20-22; ECF
No. 204-1 (PRO’s Second
Supp. Statement of Disputed
Facts) ¶ 7 (PRO does not
dispute that the copyright
registrations for the ASTM
standards appearing in bold
in Annex A were effective
within five years of the date
of first publication and thus,
under 17 U.S.C. § 410(c),
constitute prima facie
evidence of the valid
copyright in ASTM’s
standards and its work for
hire authorship and
ownership of the ASTM
Works).
Disputed as incomplete. The
footnote states: “Another
example of our aggressive
steps to protect copyrights
the action we took to make
the assignments from the
submitters of proposals less
vulnerable to attack. In the
past, most standards
developers, in accepting
proposals, received
assignments of intellectual
Dkt. property rights in those
120, Ex. 53 at p. 6, fn. 4.
proposals that were less than
airtight. NFPA tightened its
assignment language in
1997.” Def. Ex. 53 at p. 6,
fn. 4 (emphasis added).
200.

Objection. Lack of
foundation as to any
Plaintiff other than NFPA.
Hearsay as to any Plaintiff
other than NFPA.

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201. ASHRAE
claims
ownership of its Standards at
Issue by virtue of copyright
release forms that the people
who drafted the standards
allegedly signed. Becker Decl.,
¶ 10, Ex. 43 (Reiniche Depo.)
at 192:17–194:03 (stating that
ASHRAE claims authorship of
the standards at issue “[a]s a
basis of the signed copyright
assignments that all the
members sign when they apply
for membership, that the
commenters sign when they
submit a comment and that the
members that submit change –
or the public that submits
change proposals sign when
they
submit
a
change
proposal”); Becker Decl., ¶ 10,
Ex. 43 (Reiniche Depo.) at
193:08–17 (stating that the
people who authored the
standards are not employees of
ASHRAE).

Disputed insofar as an
additional basis for claiming
ownership of its standards,
separate and apart from any
assignments from
participants in the
development process, is
based on its role as the
organizational author of the
standards and its employees’
contribution of language in
the standards. ECF No. 1181 (Pls.’ Mem.) at 16.

202. ASHRAE
requires
volunteers who contribute to
standard development to sign a
copyright release explicitly
granting ASHRAE “nonexclusive” rights in those
contributions. Becker Decl., ¶
10, Ex. 43 (Reiniche Depo.) at
70:02-70:11.

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

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

PLAINTIFFS’ RESPONSE

which my proposals in this or
other analogous form is
used.”).
Undisputed.

If elected as a member
of
any
ASHRAE
Standard or Guideline
Project Committee or
appointed
as
a
consultant to such
committee I hereby
grant the American
Society of Heating,
Refrigerating and AirConditioning
Engineers (ASHRAE)
the
non-exclusive,
royalty-free
rights,
including nonexclusive,
royalty
rights
in
copyright,
to
any
contributions I make to
documents prepared by
or for such committee
for
ASHRAE
publication
and
I
understand
that
I
acquire no rights in
publication of such
documents in which my
contributions or other
similar analogous form
are used. I hereby attest
that I have the authority
and I am empowered to
grant this copyright
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release.
M. Becker Decl. ¶ 46, Ex. 48
(Reiniche Ex. 1155) (emphasis
added); Becker Decl., ¶ 10,
Ex. 43 (Reiniche Depo.) at
94:12–94:14.

204. Every document that
ASHRAE has produced to
support its claim that the
people who drafted the
ASHRAE standards at issue
assigned their copyrights to
ASHRAE states explicitly that
the grant of rights is nonexclusive. Becker Decl., ¶ 10,
Ex. 43 (Reiniche Depo.) at
69:19–94:19; Dkt. 122-3, Exs.
27–48.

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

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which my proposals in this or
other analogous form is
used.”). Further disputed in
that this statement addresses
forms signed by ASHRAE
volunteers but says nothing
of documents produced that
relate to ASHRAE’s
argument that ASHRAE is an
institutional author and that
employees of ASHRAE
contribute to authorship of
the standards.
205. All but four of the 229
ASTM standards at issue in
this case were developed and
published prior to 2003. ECF
No. 1-1 (Complaint) Ex. A.

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

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

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

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

Disputed. For the four
standards for which ASTM
previously moved for
summary judgment (ASTM
D86-07, ASTM D975-07,
ASTM D1217-93, and
ASTM D396-98), ASTM
presented evidence that it
obtained assignments of
copyrights from individual
contributors to the standards
to ASTM. SUMF ¶¶ 18, 20-

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24. With respect to the
remaining ASTM standards
at issue in this case, ASTM
has produced evidence that
over 25,000 members
completed membership
renewal forms every year
since 2007. ECF No. 155-1
(Pls. Suppl. SUMF) ¶ 14.
The vast majority of these
members completed their
membership renewals using
the online membership form.
ECF No. 155-1 (Pls. Suppl.
SUMF) ¶ 15. Although
ASTM did not request signed
writings evidencing
copyright assignments from
its members until
approximately 2003, the
language in the assignments
it obtained since then
retroactively assigned any
copyrights that individual
possessed in any ASTM
standard to ASTM. See ECF
No. 118-2 (Pls.’ SMF) ¶ 18.
208. Prior to 2003, ASTM
did not believe that it needed
formal assignment agreements.
Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 42:15–42:16
(“[ASTM] didn’t feel like we
needed any formal, any formal
assignment paper.”).

Disputed. Prior to and after
2003, ASTM believed it had
a basis for claiming
ownership of its standards
separate and apart from any
assignments from
participants in the
development process based
on its role as the
organizational author of the
standards and its employees’
contribution of language in
the standards. ECF No. 1181 (Pls.’ Mem.) at 16; ECF
No. 200 (Pls.’ Mem.) at 10-

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11; Am. Soc’y for Testing &
Materials v.
Public.Resource.org, Inc.,
No. 13-CV-1215 (TSC),
2017 WL 473822, at *7
(D.D.C. Feb. 2, 2017), rev’d
in part, vacated in part, 896
F.3d 437 (D.C. Cir. 2018)
(“Defendant has not
identified any evidence that .
. . the ASTM Plaintiffs . . . do
not own the copyrights of the
standards, in whole or in part.
The court therefore
concludes that the ASTM
Plaintiffs . . . are the owners
of the copyrights at issue and
have standing to bring their
claims”). ASTM consulted
with the Copyright Office
about how to complete its
copyright applications. ECF
No. 155-1 (Pls.’ Supp.
SUMF) ¶ 13. The Copyright
Office instructed ASTM to
fill out its copyright
applications noting itself as
the sole author of the
standards as works made for
hire. ECF No. 155-1 (Pls.’
Supp. SUMF) ¶ 13.
209. ASTM now admits that
it only started asking for
copyright assignments in
2005, Opp. at 32, which is
years after 226 of the 229
ASTM standards at issue had
been developed. See ECF No.
1-1 (Complaint Exhibit A,
listing ASTM standards at
issue and their date of
publication).

Disputed to the extent it
implies ASTM does not own
copyrights in the ASTM
Works. Although ASTM
does not have written and
executed documents
evidencing copyright
assignments prior to 2003,
ASTM has produced
evidence that over 25,000
members completed

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membership renewal forms
every year since 2007. ECF
No. 155-1 (Pls. Suppl.
SUMF) ¶ 14. The vast
majority of these members
completed their membership
renewals using the online
membership form. ECF No.
155-1 (Pls. Suppl. SUMF) ¶
15; Am. Soc’y for Testing &
Materials v.
Public.Resource.org, Inc.,
No. 13-CV-1215 (TSC),
2017 WL 473822, at *7
(D.D.C. Feb. 2, 2017), rev’d
in part, vacated in part, 896
F.3d 437 (D.C. Cir. 2018)
(“Defendant has not
identified any evidence that .
. . the ASTM Plaintiffs . . . do
not own the copyrights of the
standards, in whole or in part.
The court therefore
concludes that the ASTM
Plaintiffs . . . are the owners
of the copyrights at issue and
have standing to bring their
claims”); ECF No. 204-1
(PRO’s Second Supp.
Statement of Disputed Facts)
¶ 7 (PRO does not dispute
that the copyright
registrations for the ASTM
standards appearing in bold
in Annex A were effective
within five years of the date
of first publication and thus,
under 17 U.S.C. § 410(c),
constitute prima facie
evidence of the valid
copyright in ASTM’s
standards and its work for

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hire authorship and
ownership of the ASTM
Works).
210. ASTM alleges that it
relied on an unspoken “basic
understanding”
that
the
volunteers who drafted the
standards at issue intended to
create standards that ASTM
would eventually distribute.
Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 42:18–44:01;
94:01–94:20.

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

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

Disputed. ASTM has
presented evidence that
participants in the standard
development process intend
ASTM to own the copyrights
in standards. See ECF No.
118-2 (Pls.’ SMF) ¶ 40; ECF
No. 118-11 (Thomas Decl.) ¶
23; ECF No. 118-4 (Cramer
Decl.) ¶¶ 6, 10, 11, 15; ECF
No. 118-6 (Jennings Decl.)
¶¶ 7-9, 12.
ASTM has always openly
claimed ownership of these
works without objection.
ECF No. 118-2 (Pls.’ SMF) ¶
26; ECF No. 122-5, Def. Ex.
77 at 6 (ASTM’s Intellectual
Property Policy adopted in
1999); ECF No. 122-5, Def.
Ex. 78 at (VI)(A)(1)
(ASTM’s Intellectual
Property Policy 2003); ECF
No. 122-5, Def. Ex. 79 at
(VI)(A)(1) (ASTM’s
Intellectual Property Policy
2010). Moreover, many of

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the participants pay for
copies of the ASTM
standards from ASTM and
bearing ASTM’s copyright
notice. ECF No. 118-2 (Pls.’
SMF) ¶¶ 16-18, 40. ASTM
is not aware of any individual
or other person who claims to
own any copyright interest in
any ASTM standard.
O’Brien Decl. III ¶ 6. Since
ASTM filed the lawsuit in
2013, no participant or
volunteer has contacted
ASTM to assert copyright
ownership or otherwise
challenge ASTM’s copyright
interest in any of the ASTM
Works. O’Brien Decl. III ¶
7.
212. ASTM claimed that the Undisputed.
ASTM “IP Policy” somehow
confirms the existence of this
alleged “basic understanding.”
Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 57:23–59:25.
213. The earliest IP Policy
document
that
ASTM
produced in this litigation was
approved by ASTM on April
28, 1999 and put into effect
thereafter. ASTM had no IP
Policy prior to April 28, 1999.
Dkt. 122-5, Ex. 77, ¶ 77; Dkt.
122-5 Ex. 79; Dkt. 122-9, Ex.
152 (Internet Archive capture
of the ASTM home page the
day before the ASTM IP Policy
was approved, and a capture
after the ASTM Policy was
approved, showing that the link

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

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to the IP Policy in the lowerright corner of the page was not
present on April 27, 1999).
214. In 2010, approximately
three years after the publishing
of the most recent ASTM
standard at issue, the ASTM IP
Policy was amended to include
the following language: “Each
member agrees, by such
participation and enjoyment of
his/her annual membership
benefits, to have transferred
any and all ownership interest,
including copyright, they
possess or may possess in the
ASTM IP to ASTM.” Dkt.
122-5, Ex. 77 and Ex. 79
(Compare Section V.D. in both
documents).

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

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

Disputed. Certain ASTM
membership forms stated:
“By applying for or renewing
your ASTM membership,
you acknowledge you have
read and agree to abide by
ASTM’s Intellectual
Property Policy.” See, e.g.,
ECF No. 120-20, Def. Ex.
87.

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

ASTM has always openly
claimed ownership of these
works without objection.
ECF No. 118-2 (Pls.’ SMF) ¶

171

Plaintiffs do not assert that
any other amendments or
statement in the ASTM IP
Policy Guide, or any other
evidence, contradict the
quoted statement or Public
Resource’s assertion here.
Public Resource does not
seek to prove the contents of
a writing without furnishing
the writing itself.

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26; ECF No. 122-5, Def. Ex.
77 at 6 (ASTM’s Intellectual
Property Policy adopted in
1999); ECF No. 122-5, Def.
Ex. 78 at (VI)(A)(1)
(ASTM’s Intellectual
Property Policy 2003); ECF
No. 122-5, Def. Ex. 79 at
(VI)(A)(1) (ASTM’s
Intellectual Property Policy
2010). Moreover, many of
the participants pay for
copies of the ASTM
standards from ASTM and
bearing ASTM’s copyright
notice. ECF No. 118-2 (Pls.’
SMF) ¶¶ 16-18, 40. ASTM
is not aware of any individual
or other person who claims to
own any copyright interest in
any ASTM standard.
O’Brien Decl. III ¶ 6. Since
ASTM filed the lawsuit in
2013, no participant or
volunteer has contacted
ASTM to assert copyright
ownership or otherwise
challenge ASTM’s copyright
interest in any of the ASTM
Works. O’Brien Decl. III ¶
7.
216. ASTM has not retained
or produced in this litigation
completed membership forms
pertaining to any of the
standards at issue. The
membership forms that ASTM
has produced date from 2008
and later, with only one
membership form from 2007.
M. Becker Decl. ¶ 90, Ex. 92;
Becker Decl., ¶ 7, Ex. 40

Disputed. For the four
standards for which ASTM
moved for summary
judgment, ASTM presented
evidence that the leader of
the group that developed the
standard and/or a member of
the committee that drafted
the standard assigned any
copyrights in their individual
contributions to the standards

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(Smith Depo.) at 258:11– to ASTM. ECF No. 118-2
258:23.
(Pls.’ SMF) ¶¶ 18, 20-24.
With respect to the remaining
ASTM standards at issue in
this case, ASTM has
produced evidence that over
25,000 members completed
membership renewal forms
every year since 2007, which
is as far back as ASTM
maintains membership
records. ECF No 155-1
(Pls.’ Supp. SUMF) ¶ 14.
The vast majority of these
members completed their
membership renewals using
the online membership form.
ECF No 155-1 (Pls.’ Supp.
SUMF) ¶ 15. Although
ASTM did not request
executed written copyright
assignments from its
members until approximately
2003, the language in the
assignments it obtained since
then retroactively assigned
any copyrights that
individual possessed in any
ASTM standard to ASTM.
See ECF No. 118-2 (Pls.’
SMF) ¶ 18.
217. ASTM has failed to
exercise control over the
creation and enforcement of its
membership and participation
forms (that it terms copyright
“assignments”), resulting in a
multiplicity of forms that either
have no assignment language
at all, or have various iterations
of language that ASTM claims
grants
it
copyright

Objection. Vague and
ambiguous as to the terms
“exercise control” and
“enforcement.” In
addition, it is irrelevant
whether ASTM exercised
control of the creation and
enforcement of
membership and
participation forms,
especially with respect to

173

The terms “exercise control”
and “enforcement,” as used
here, are not vague. Their
usage is also clarified by
context and the cited
materials.
These documents show
ASTM’s frequent and routine
practice. Plaintiffs have
stated that they do not treat
standards incorporated by

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assignments. Becker Decl., ¶
7, Ex. 40 (Smith Depo.) at
216:01–217:12,
225:05–
225:19 (membership forms
were prepared ad hoc by any
number of people, and he does
not know if anyone knows how
many different variations of
ASTM membership form were
used from 2007 to 2014,
because his “experience as
being a staff manager is I don’t
think people think about the
version of an application that’s
being used. I think it’s viewed
as a tool that enables an
individual to join a technical
committee.”),

individuals who were not
involved with the
development of the Works.

218. Many
individuals
renew
their
ASTM
memberships through alternate
channels other than using
ASTM membership renewal
forms or renewing through
ASTM’s online portal, and
thereby do not encounter or
formally assent to any
copyright
assignment
language. Becker Decl., ¶ 7,
Ex. 40 (Smith Depo.) at
278:04–278:18
(ASTM
members can renew their
membership by phone or by
email, without using the online
portal or using ASTM’s mailin forms); Dkt. 120, Ex. 94
(example of an ASTM member
renewing by email). ASTM’s
online membership agreement
process does not require a
member to click “yes,” or “I
agree,”
or
any
other

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

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

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

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reference differently from
other standards.

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PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

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

These documents show
ASTM’s frequent and routine
practice. Plaintiffs have
stated that they do not treat
standards incorporated by
reference differently from
other standards.

affirmation to the language
discussing
copyright
assignment that appears on the
web page. Instead, members
click
a
button
labeled
“continue” that appears below
the
message:
“[c]lick
‘continue’ to place your ASTM
membership renewal in the
shopping cart.” Dkt. 122-9, Ex.
149.
219. The membership forms
that ASTM has produced
usually do not include
language asking for an
assignment of copyright rights.
Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 211:24212:12 (acknowledging ASTM
forms that did not have
assignment language.
Dkt.
120, Exs. 91 and 93 (examples
of ASTM forms without any
assignment language).

Disputed. The membership
form in Defendant’s Exhibit
91 includes copyright
assignment language.
Defendant produced tens of
thousands of pages of hardcopy membership forms.
ECF No. 155-1 (Pls. Suppl.
SUMF) ¶ 16. Defendant
identified a very small
percentage of those forms
that do not include language
regarding assignment of
copyright. See ECF No. 1226, Def. Ex. 93.
Defendant did not produce
any evidence that any of the
persons who signed those
forms were involved in the
development of the Works,
and therefore, these forms are
irrelevant.

175

DEFENDANT’S SECOND
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DEFENDANT’S REPLY

220. Of the ASTM forms
that do include what ASTM
alleges to be assignment
language, there is no means for
a person filling out the form to
sign her name or show that she
agrees to assign her copyright
rights to ASTM. Dkt. 120, Exs.
87-91, 80 (ASTM forms with
alleged assignment language);
Becker Decl., ¶ 7, Ex. 40
(Smith Depo.) at 173:10–
181:12 (admitting that there is
nowhere on the alleged
copyright assignment for a
member to check a box, sign
her name, or otherwise indicate
that she understands and
assents to transfer her
copyright to ASTM, and
admitting that ASTM does not
know if a member who
completes the form has read
the assignment clause or
assents to transfer her
copyright to ASTM).

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

These documents show
ASTM’s frequent and routine
practice. Plaintiffs have
stated that they do not treat
standards incorporated by
reference differently from
other standards.

221. Through at least 2008,
NFPA used copyright release
language for the creators of the
NFPA standards at issue that
referred to a grant of nonexclusive rights. MDkt. 122-4
Exs. 54–76; Dkt. 120 Ex. 129.

Disputed as incomplete and
not relevant to the 2011 NEC
and 2014 NEC at issue here.
The copyright release
language stated: “I hereby
grant the NFPA the
nonexclusive, royalty-free
rights, including
nonexclusive, royalty-free
rights in copyright, in this
proposal, and I understand
that I acquire no rights in any
publication of NFPA in
which this proposal in this or
another similar or analogous

Disputed. ASTM’s online
membership forms require
the member to assent to the
assignment of any
copyrights. See Def. Ex.
149. ASTM’s hard-copy
membership forms contain
numerous spaces where a
member can sign her name.
See, e.g., Def. Ex. 87
(showing examples of
members filling in their
names and/or signing their
names). Defendant has not
produced any evidence that
any person who participated
in the development of any
ASTM Work at issue failed
to execute an assignment.

176

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

form is used.” See, e.g.,
Becker Decl. Ex. 54.
222. For example, an NFPA Undisputed.
document soliciting proposed
text for the 2011 edition of the
National Electrical Code,
includes the following text:

M. Becker Decl. ¶ 127, Ex.
129 (emphasis added).
223. NFPA did not exercise
control over the process by
which
people
submitted
proposals.
NFPA’s
Rule
30(b)(6)
corporate
representative
Christian
Dubay, stated that “in past
history over the years . . .
there’s many different versions
of our forms and ways of
submission.” Becker Decl., ¶ 8,
Ex. 41 (Dubay Depo.) at
134:21–134:24. NFPA would
accept retyped versions of the
forms that people used when
contributing text to a standard
draft. M. Becker Decl. ¶ 61,
Ex. 63; Becker Decl., ¶ 8, Ex.

Disputed to the extent it
characterizes the existence of
different versions of the
forms as lacking control.
Defendant does not cite to
evidence showing material
differences between these
forms.

177

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

41 (Dubay Depo.) at 146:06–
146:14.
NFPA
allowed
volunteers to use any existing
standard draft contribution
form in place of the form that
NFPA designated for use for
the particular standard. Becker
Decl., ¶ 8, Ex. 41 (Dubay
Depo.) at 146:06–146:14.
224. NFPA’s online public
comment portal includes the
following language under the
“Copyright Assignment and
Signature” page: “I understand
and intend that I acquire no
rights, including rights as a
joint author, in any publication
of the NFPA in which this
Public Comment in this or
another similar or derivative
form is used.” Dkt. 122-9, Ex.
154 at 10. In earlier copyright
releases, NFPA used similar
language that would also
effectively bar joint ownership:
“I understand that I acquire no
rights in any publication of
NFPA in which this comment
in this or another similar or
analogous form is used.” Dkt.
122-5, Ex. 73. ASHRAE uses
almost identical language in its
copyright
releases:
“I
understand that I acquire no
rights in publication of such
documents in which my
contributions or other similar
analogous form are used.” Dkt.
122-4, Ex. 48.

Disputed to the extent it
implies that this is an
accurate description of
NFPA’s current website.

178

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

XIV. INCORPORATION OF THE NATIONAL ELECTRICAL CODE INTO
CALIFORNIA TITLE 24
225. The
California
Building
Standards
Commission
(“CBSC”)
generally issues a new
California Building Standards
Code Title 24 every three
years. The current effective
California Building Standards
Code is a 2016 edition. The
rulemaking processes for the
next edition (the 2019 edition)
is complete; the new code was
published on or around July 1,
2019, and it will become
effective January 1, 2020.
Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 22:2123:6, 35:6-25.

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

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

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

Objection. Hearsay.

179

Plaintiffs do not dispute this
statement; instead, they raise
only objections.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.
The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Plaintiffs do not dispute this
statement; instead, they raise
only objections.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Objection. Hearsay.
Objection to the
statement’s use of “adopted
without change” as vague
and ambiguous, as there is
no indication of what
material these reference
standards are adopting.
Objection to the use of the
undefined terms “national
model codes” and
“reference standards” as
vague and ambiguous.

DEFENDANT’S REPLY

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
This evidence is also
admissible as a record of the
California Building
Standards Commission made
in the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
The terms “adopted without
change,” “national model
codes” and “reference
standards,” as used here, are
not vague and ambiguous.
Their usage is also clarified
by context and the cited
materials.

227. The
CBSC
incorporates by reference
certain reference standards by
making them “part of the
model code.” In some cases,
the incorporation involves
referring to the reference
standard, such that a reader
might have to refer to a
separate reference standard. In
other instances, the reference
code may itself be reprinted in
the model code. Becker Decl.
¶ 3, Ex. 36 (Marvelli Depo.) at
30:23-31:25, 32:7-15.

Objection to the relevance
of the development of
California’s Building
Standards Code. As
explained in Plaintiffs’
briefing, PRO has staked
its entire fair use argument
on the incorporation by
reference process the
federal government—not
any state—uses. Reply at
Part I.A.1.a. Objection to
the relevance of this
statement to the extent it
does not relate to any of the
Works.
180

Plaintiffs do not dispute this
statement; instead, they raise
only objections.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Objection. Hearsay.
Objection to the use of the
undefined terms “model
code,” “reference
standards,” and “reference
code” as vague and
ambiguous.

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

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

181

DEFENDANT’S REPLY

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
The terms “adopted without
change,” “national model
codes” and “reference
standards,” as used here, are
not vague and ambiguous.
Their usage is also clarified
by context and the cited
materials.
Plaintiffs do not dispute this
statement; instead, they raise
only objections.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.
The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Objection. Improper
opinion/lack of foundation.
This is a legal conclusion,
not a fact.

DEFENDANT’S REPLY

of the California Building
Standards Commission.
The terms “adopted without
change,” “national model
codes” and “reference
standards,” as used here, are
not vague and ambiguous.
Their usage is also clarified
by context and the cited
materials.
This statement is not a legal
conclusion, but rather a
statement of California state
practices and procedures
regarding the incorporation
of reference of a standard
into law. Cf. Nisus Corp. v.
Perma-Chink Sys., Inc., No.
3:03-CV-120, 2005 WL
6112992, at *4 (E.D. Tenn.
May 27, 2005) (holding that
testimony as to general
procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).

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

Objection to the relevance
of the development of
California’s Building
Standards Code. As
explained in Plaintiffs’
briefing, PRO has staked
its entire fair use argument
on the incorporation by
reference process the

182

Plaintiffs do not dispute this
statement; instead, they raise
only objections.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

government buildings, etc.
Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 36:1-8,
41:17-43:2, Ex. 3.

federal government—not
any state—uses. Reply at
Part I.A.1.a. Objection to
the relevance of this
statement to the extent it
does not relate to any of the
Works.

use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

Objection. Hearsay.
Objection. Improper
opinion/lack of foundation.
This is a legal conclusion,
not a fact.
Objection as incomplete.
As the deponent later
explained, Becker Decl. ¶ 3,
Ex. 36 (Marvelli Depo.) at
182:13-19, Exhibit 3 to the
Marvelli deposition reads:
“All occupancies in
California are subject to
national and model codes
adopted into Title 24, and
occupancies are further
subject to amendments
adopted by state agencies
and ordinances
implemented by local
jurisdictions’ governing
bodies.” Wise Decl. II ¶ 11,
Ex. 183. Accordingly, all
occupancies in the state
must look to state agency
amendments and local
jurisdictions’ rules to
determine their conduct.
Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 182:13184:19.

183

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.
This evidence is also
admissible as a record of the
California Building
Standards Commission made
in the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
The terms “adopted without
change,” “national model
codes” and “reference
standards,” as used here, are
not vague and ambiguous.
Their usage is also clarified
by context and the cited
materials.
This statement is not a legal
conclusion, but rather a
statement of California state
practices and procedures
regarding the incorporation
of reference of a standard

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

into law. Cf. Nisus Corp. v.
Perma-Chink Sys., Inc., No.
3:03-CV-120, 2005 WL
6112992, at *4 (E.D. Tenn.
May 27, 2005) (holding that
testimony as to general
procedures does not
constitute an inadmissible
legal conclusion) (“Expert
testimony regarding general
procedures of the patent
application process may be
helpful to a jury and is
therefore admissible.”).
Plaintiffs do not assert that
the additional testimony they
cite, or any other evidence,
contradict the quoted
statement. The additional
testimony does not conflict
with or otherwise undermine
the assertions that Public
Resource makes here.
230. In a previous role as an
architectural associate for the
California Department of
General Services, Ms. Marvelli
developed
construction
drawings for state building so
they complied with the
California Building Standards
Code. Multiple state and local
agencies enforce compliance
with the California Building
Codes. Becker Decl. ¶ 3, Ex.
36 (Marvelli Depo.) at 23:724:5, 118:6-119:15, 124:3125:8, 127:15-130:3.

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

184

Plaintiffs do not dispute this
statement; instead, they raise
only objections.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.
The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Objection. Improper
opinion/lack of foundation
as to how state and local
agencies act.

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

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

DEFENDANT’S REPLY

her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.

Plaintiffs do not dispute this
statement; instead, they raise
only objections.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.
The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.
The term “based on,” as used
here, is not vague and
ambiguous. Its usage is also

185

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

clarified by context and the
cited materials.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

232. Adoption of the code is
a deliberative process. Mia
Marvelli is Executive Director
of the California Building
Standards
Commission
(CBSC), a state commission
that administers the California
Building Standards process.
The
California
Building
Standards law is found in the
California Health and Safety
Code, and the CBSC uses the
processes
under
the
Administrative Procedure Act
to administer the rulemaking
process for Title 24 (also
known as the California
Building Standards Code) of
the California Code of
Regulations.
The CBSC
receives
rulemaking
documents
from
State
agencies, and then conducts
public hearings and public
comment periods on the
documents.
The CBSC
ultimately takes one of four
actions on those rulemaking
document: (1) approve; (2)
approve as amended; (3)
disapprove; or (4) further
action. Becker Decl. ¶ 3, Ex.
36 (Marvelli Depo.) at 9:2510:1, 13:14-15:10, 44:1447:11.

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

Disputed that California uses
“a deliberative process” as
the cited reference does not
support this proposition.

The term “deliberative
process,” as used here, is not
vague and ambiguous. Its
usage is also clarified by
context and the cited
materials.

233. There
are
ten
commissioners that conduct
the rulemakings.
The
Governor
of
California

Objection to the relevance
of the development of
California’s Building
Standards Code. As

Plaintiffs do not dispute this
statement; instead, they raise
only objections.

Objection. Hearsay.
Objection to the undefined
and subjective term
“deliberative process” as
vague and ambiguous.

186

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

appoints the commissioners
under the authority of the
California Building Standards
law.
Each commissioner
represents a different type of
interest (e.g., building officials,
construction industry), and all
the commissioners participate
together in a public hearing on
the rulemaking.
If the
commission approves the
regulations, they are assembled
for the publisher to the develop
the next edition of the
California Building Standards
Code. Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 15:13-19,
16:13-19, 16:24-20:3, 22:1720.

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

This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

234. The
“Acknowledgements” section
of the California Electrical
Code states that “the California
Electrical Code was developed
through
the
outstanding
collaborative efforts of” a
number of State agencies, such
as the Department of Housing
and Community Development.
Ms. Marvelli was not aware of
any State agencies that have
sought a copyright in their
contributions to any version of
the California Electrical Code.
Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 74:1279:25, Ex. 4.

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

Objection. Hearsay.

Objection. Hearsay.

187

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.
The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

Objection. Improper
opinion/lack of foundation
and incomplete. The
witness testified that she
would “have to research”
whether any organizations
sought a copyright in the
California Electrical Code.
Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 77:1617.
Disputed to the extent PRO
attempts to draw any
inference from the fact that
Ms. Marvelli was unaware of
the information in question.
Disputed to the extent it
suggests that any state
agencies made contributions
to any version of the
California Electrical Code.
The cited reference does not
support that proposition.
235. State agencies apply
the nine-point criteria in
Section 18930 of the Health
and Safety Code in deciding
whether to adopt a reference
standard into the California
Building Code. If all the
criteria
are
met,
the
commission
generally
approves the package. If one of
the criteria is not met, the
commission may still approve
adoption of the reference
standards, as amended. The
nine criteria that state agencies
consider are (1) whether the

Objection to the relevance
of the development of
California’s Building
Standards Code. As
explained in Plaintiffs’
briefing, PRO has staked
its entire fair use argument
on the incorporation by
reference process the
federal government—not
any state—uses. Reply at
Part I.A.1.a. Objection to
the relevance of this
statement to the extent it
does not relate to any of the
Works.
188

DEFENDANT’S REPLY

Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.
This evidence is also
admissible as a record of the
California Building
Standards Commission made
in the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Plaintiffs do not assert that
the additional testimony they
cite, or any other evidence,
contradicts the quoted
statement. The additional
testimony does not conflict
with or otherwise undermine
the assertions that Public
Resource makes here.
Plaintiffs do not dispute this
statement; instead, they raise
only objections.
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

proposed building standards do
not conflict with, overlap or Objection. Hearsay.
duplicate
other
building
standards; (2) whether the Objection. Improper
proposed building standards opinion/lack of foundation.
are within the parameters
established
by
enabling
legislation and are not
expressly within the exclusive
jurisdiction of another agency;
(3) whether the public interest
requires the adoption of the
building standards; (4) whether
the
proposed
building
standards are not unreasonable,
arbitrary, unfair or capricious
in whole or in part; (5) whether
the cost to the public is
reasonable, based on the
overall benefit to be derived
from the building standards;
(6) whether the proposed
building standard is not
unnecessarily ambiguous or
vague, in whole or in part; (7)
whether the applicable national
specifications,
published
standards, and model codes
have been incorporated; (8)
whether the format of the
proposed building standards is
consistent with that adopted by
the commission; and (9)
whether the proposed building
standards, if they promote fire
and panic safety as determined
by the State Fire Marshal, have
the written approval of the
State Fire Marshall. Becker
Decl. ¶ 3, Ex. 36 (Marvelli
Depo.) at 29:6-30:14, 103:22106:22.

189

DEFENDANT’S REPLY

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

236. Portions of California
Electrical Code are reproduced
with permission from the
National Electrical Code, and
the California Electrical Code
states that “no portions of NEC
material may be reproduced
except with permission of the
National
Fire
Protection
Association.” The California
Electrical Code includes a
legend that tells the reader how
to distinguish between model
code portions and California
amendments.
Aside from
appearing in the California
Electrical
Code
itself,
California amendments “may
or may not” appear in a
document called the Final
Statement of Reasons that state
agencies issue during the
rulemaking process; if a
California amendment does not
appear in the Final Statement
of Reasons, Ms. Marvelli did
not know how a person would
access the amendment without
going to the California
Electrical Code itself. Becker
Decl. ¶ 3, Ex. 36 (Marvelli
Depo.) at 61:20-64:12, 65:1867:25, 68:16-69:8, Ex. 4.

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

This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

237. The NFPA and CBSC
has a “zero dollar” contract
under which NFPA grants
CBSC a nonexclusive license
to use and copy the National
Electrical Code solely to create
and publish the California

Objection to the relevance
of the development of
California’s Building
Standards Code. As
explained in Plaintiffs’
briefing, PRO has staked
its entire fair use argument

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

190

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.
This evidence is also
admissible as a record of the
California Building
Standards Commission made
in the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Electrical Code. In exchange,
CBSC grants NFPA “an
exclusive, worldwide license to
copy, print, publish, distribute
and sell the Code and all Code
Supplements . . . .” When
asked at her deposition, Ms.
Marvelli did not recall whether
the NFPA established any
method for distribution of the
2016 California Electrical
Code in consultation with
NFPA. Becker Decl. ¶ 3, Ex.
36 (Marvelli Depo.) at 107:1123, 108:18-109:12, 134:19135:17, Ex. 7 (agreement for
2016 triennial edition of
California Electrical Code) at
§ 4.

on the incorporation by
reference process the
federal government—not
any state—uses. Reply at
Part I.A.1.a. Objection to
the relevance of this
statement to the extent it
does not relate to any of the
Works.

incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

Objection. Hearsay.
Objection. Improper
opinion/lack of foundation.
Objection as incomplete.
The cited provision reads,
in full, “CBSC hereby
grants NFPA an exclusive,
worldwide license to copy,
print, publish, distribute
and sell the Code and all
Code Supplements in
accordance with the terms
of this Agreement.” Wise
Decl. II ¶ 12, Ex. 184 (Ex. 7
to Marvelli deposition).
Disputed to the extent PRO
attempts to draw any
inference from the fact that
Ms. Marvelli was unaware of
the information in question.
Disputed to the extent the
statement suggests that the
cited language is
representative or has
appeared in all contracts
between NFPA and CBSC
related to the California
Electrical Code.

191

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.
This evidence is also
admissible as a record of the
California Building
Standards Commission made
in the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
Plaintiffs do not assert that
the additional language they
cite, or any other evidence,
contradicts or otherwise
undermines the assertions
that Public Resource makes
here.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

238. The contract with
NFPA is subject to a
noncompetitive
bid
coordination process. Becker
Decl. ¶ 3, Ex. 36 (Marvelli
Depo.) at 141:21-142:11, Ex. 9
(forms for 2016 triennial
edition).

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

This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

Objection. Hearsay.
Disputed to the extent the
statement suggests that this
statement is representative of
all contract negotiations
between NFPA and CBSC
related to the California
Electrical Code.

239. The CBSC administers
a web page with information
about the part of Title 24 at the
following
URL:
https://www.dgs.ca.gov/BSC/
Codes. But CBSC does not
store an accessible version of

Objection to the relevance
of the development of
California’s Building
Standards Code. As
explained in Plaintiffs’
briefing, PRO has staked
its entire fair use argument

192

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.
This evidence is also
admissible as a record of the
California Building
Standards Commission made
in the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

the 2013, 2016, or 2019
triennial edition of the
California Building Standards
Code on the webpage. The
CBSC webpage instead points
to model code publisher in a
section titles “Purchase the
Codes”, listing the parts that
are available through each
publisher. The publisher of the
2016 edition of the California
Electrical Code is BNi; for the
2019, it is NFPA. Becker Decl.
¶ 3, Ex. 36 (Marvelli Depo.) at
34:18-35:22, 37:1-23, 38:2-19,
51:16-52:2, 53:3-6, 54:9-12,
70:23-74:1, Ex. 84.

on the incorporation by
reference process the
federal government—not
any state—uses. Reply at
Part I.A.1.a. Objection to
the relevance of this
statement to the extent it
does not relate to any of the
Works.

incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.

240. CBSC has the practical
ability to post a searchable
PDF version of the 2016
California Electrical Code on
its website, and it has done so
in the past by “mistake.”
Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 99:22102:4.

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

Objection. Hearsay.
Disputed to the extent the
statement suggests that the
CBSC website’s only link to
the codes is under a heading
that reads “Purchase the
Codes.” The website links to
the codes higher up on the
page under headings that list
the edition (e.g., 2019
Triennial Edition of Title 24)
and the Part (e.g., California
Electrical Code). Wise Decl.
II ¶ 11, Ex. 183 (Ex. 3 to
Marvelli deposition).

193

The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.
This evidence is also
admissible as a record of the
California Building
Standards Commission made
in the ordinary course of
business. It is also a record
or statement of a public
office that sets out the
office’s activities. Fed. R.
Evid. 803(8).
This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.
The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

does not relate to any of the
Works.

her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.

Objection. Hearsay.
Disputed to the extent it
suggests that CBSC could
post a searchable PDF
version of the 2016
California Electrical Code on
its website without violating
its contractual obligations or
without infringing NFPA’s
copyright.
241. The CBSC does not
know whether the publisher
provides full access to the text
of the California Electrical
Code without payment, or
whether the publisher is a
commercial actor or not. In
addition, Ms. Marvelli did not
know whether the online
NFPA viewer could print,
copy, or search the text of the
2019 version of the California
Electrical Code. Nor did she
know how many screenshots
would be necessary to
reproduce the entire California
Electrical Code from the NFPA
viewer.
The CBSC has
received calls where people
have been unable to access the
California Electrical Code, but
it has no ability to fix the access
issues and notifies the
publisher of the issue. Ms.
Marvelli had no knowledge of
whether the NFPA had made
any efforts to make the
California Electrical Code

Objection to the relevance
of the development of
California’s Building
Standards Code. As
explained in Plaintiffs’
briefing, PRO has staked
its entire fair use argument
on the incorporation by
reference process the
federal government—not
any state—uses. Reply at
Part I.A.1.a. Objection to
the relevance of this
statement to the extent it
does not relate to any of the
Works.
Objection. Hearsay.
Disputed. The cited
reference does not support
PRO’s claim that “CBSC
does not know” any
information. When asked
whether “anybody in [Ms.
Marvelli’s] office know[s]
what BNi offers,” Ms.
Marvelli responded “I don’t
194

This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.
The assertion is not hearsay;
Ms. Marvelli is testifying
directly about a matter within
her personal knowledge, and
she does not rely on any
statement offered for the
truth of the matter asserted.
Ms. Marvelli has the proper
foundation for this testimony,
as a corporate representative
of the California Building
Standards Commission.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

available to print-disabled
individuals, mobility-impaired
individuals, or individuals who
lack eyesight, and the CBSC
has not taken steps to make the
California Electrical Code
available to these persons.
Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 56:857:20, 57:22-58:7, 58:2461:19, 70:23-74:1, 82:10-17,
91:10-23, 136:23-138:2, Ex. 4;
see also id. at 93:17-94:2,
95:14-98:1 (similarly, no
knowledge of whether a person
can print, copy, or search the
text
of
the
California
Residential Code, Part 2.5 of
Title 24, from the website of
the publisher, International
Code Council (ICC)).

know that. I wouldn’t know
that.” Becker Decl. ¶ 3, Ex.
36 (Marvelli Depo.) at 57:16.
Disputed to the extent it
suggests that any individual
has been unable to access the
California Electrical Code.
Ms. Marvelli testified that
she was not aware of anyone
who wanted to access the
California Electrical Code
who was unable to do so.
Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 179:1014.
Disputed to the extent it
suggests that any printdisabled individuals,
mobility-impaired
individuals, or individuals
who lack eyesight have been
unable to access the
California Electrical Code or
have requested that the
CBSC make the California
Electrical Code more
accessible. Ms. Marvelli
testified that she was not
aware of any such
individuals having difficulty
accessing the California
Electrical Code, nor was she
aware of any requests for
access from such individuals.
Becker Decl. ¶ 3, Ex. 36
(Marvelli Depo.) at 137:1921, 137:25-138:2, 179:21180:17.

195

DEFENDANT’S REPLY

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

DEFENDANT’S REPLY

Disputed to the extent PRO
attempts to draw any
inference from the fact that
Ms. Marvelli was unaware of
the information in question.
242. CBSC operates under a
legal mandate requiring the
publication of codes 180 days
prior to the effective. For
instance,
for
the
2016
California Electrical Code, the
publication date was required
to be July 1, 2016. But, as of
August 2, 2016, the California
Electrical Code published by
NFPA was not available for
online access. Becker Decl.
¶ 3, Ex. 36 (Marvelli Depo.) at
131:3-134:8, Ex. 87.

Objection to the relevance
of the development of
California’s Building
Standards Code. As
explained in Plaintiffs’
briefing, PRO has staked
its entire fair use argument
on the incorporation by
reference process the
federal government—not
any state—uses. Reply at
Part I.A.1.a. Objection to
the relevance of this
statement to the extent it
does not relate to any of the
Works.
Objection. Hearsay. The
statement’s assertion that
the California Electrical
Code was not available for
online access is based on an
email that the deponent did
not send and was not even
sure if she received. Becker
Decl. ¶ 3, Ex. 36 (Marvelli
Depo.) at 132:18-22. Both
the deponent’s testimony
and the underlying email
are hearsay to the extent
they are used for the truth
of the matter asserted.
Disputed. The deponent
testified that she did not
know whether the California
Electrical Code was available
196

This evidence is relevant
because the California’s
Building Standards Code
incorporates a standard
asserted by NFPA in this
case. Public Resource’s fair
use defense is not limited to
incorporation by reference by
the federal government, but
covers incorporations by
state governments as well.
The email should fall under
the residual exception of Fed.
R. Evid. 807; Plaintiffs do
not cast any doubt on its
trustworthiness.

DEFENDANT’S SECOND
SUPPLEMENTAL
STATEMENT OF FACT

PLAINTIFFS’ RESPONSE

for online access prior to
August 1, 2016. Becker
Decl. ¶ 3, Ex. 36 (Marvelli
Depo.) at 132:6-8. When
questioned about an email,
she said that she read the
email as indicating that
CBSC did not yet have a link
to the California Electrical
Code on its website, not that
the California Electrical
Code was not available for
online access on NFPA’s or
some other website. Id. at
133:20-134:8. The deponent
never stated nor implied that
the California Electrical
Code was not available for
online access as of August 2,
2016. Further disputed that
the 2016 California Electrical
Code was “published by
NFPA,” as acknowledged in
239, BNi published the 2016
California Electrical Code.

197

DEFENDANT’S REPLY

Dated: January 16, 2019

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (USDC-DC AR0002)
[e-mail]
Matthew B. Becker (admitted pro hac vice)
[e-mail]
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
Telephone: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW 2nd Floor
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

198