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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;

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

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs/Counter-defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

PUBLIC RESOURCE’S
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

Pursuant to Local Civil Rule 7(h), Public.Resource.Org, Inc. (“Public Resource”) submits
in support of its second motion for summary judgment and opposition to Plaintiffs’ second motion
for summary judgment and permanent injunction a statement of disputed facts to be tried:
Plaintiffs’ 3rd Supplemental Statement of
Material Facts

Defendant Public Resource’s Response

1. PRO stated that Exhibits 89 to 91 to the
Supplemental Declaration of Matthew
Becker “show[] the citation and text of at least
one federal incorporation into the C.F.R. of
each complete standard.” Opp. 8; see also
Supplemental Declaration of Matthew Becker,
previously filed at Dkt. 204-5 (“Supp. Becker
Decl.”). As explained below, this is not
accurate:

Not material. For some standards state law
incorporations are identified instead of federal
incorporations, but under either state or federal
law individuals are required to comply with the
incorporated documents.

2. Exhibit 89 to the Supplemental Becker
Declaration is titled “ASHRAE Editions
Incorporated by Reference” and includes a chart
listing each of the ASHRAE standards at issue,
with a column for, inter alia, “C.F.R.
Reference. Supp. Becker Decl. ¶ 57, Ex. 89.
Though PRO posted ASHRAE’s standards in
2012, for three of the four identified works on
Exhibit 89, PRO lists a C.F.R. reference from
2013 or later. See id.

Not material. The examples on Public
Resource’s Exhibit 89 are some, but not all, of
the incorporations of the relevant standards
into federal or state law. Where appropriate,
Public Resource listed a more recent
incorporation instead of an earlier, outdated
incorporation, and the citation to a particular
edition of the C.F.R. does not mean that the
same incorporation is not found in earlier or
later editions. These citations are sufficient to
show that each of the ASHRAE standards at
issue were incorporated by reference into law
in their entirety.

3. Additionally, PRO’s chart does not actually
demonstrate that the cited C.F.R. reference has
any relation to large parts of the referenced
works. Plaintiffs have prepared a chart that
demonstrates this. See Wise Decl. II ¶ 14, Ex.
186. In short, the C.F.R. references that PRO
provides in its chart relate to use of government
funds to build new structures within the United
States, yet the ASHRAE standards contain
numerous non-prescriptive elements, including
entire appendices of information related to how
best to comply with the standards in foreign

Disputed. This is a legal argument, not a
factual argument, concerning the scope of
incorporation by reference. Public Resource
has provided several sources that each state
that the incorporating language serves as a
precise identification of what has been
incorporated into law. These sources include:
 5 U.S.C. § 552(a);
 1 C.F.R. § 51 et seq.;
 Appalachian Power Co. v. Train, 566

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Plaintiffs’ 3rd Supplemental Statement of
Material Facts

Defendant Public Resource’s Response

territories. Id. Plainly, those appendices (and
other non-prescriptive elements in the
ASHRAE standards) do not relate to the C.F.R.
sections cited by PRO. Additionally, one of the
ASHRAE works in question is a handbook that
contains guidance related to compliance with
ASHRAE standards, which was IBR’d to aid in
compliance with other ASHRAE standards
referenced in the same portions of the C.F.R.
That handbook contains text pertaining to
multiple ASHRAE standards, including those
not IBR’d in that portion of the C.F.R., thus
large portions of the handbook do not relate to
the cited C.F.R. cite PRO provides. Id.

F.2d 451, 457 (4th Cir. 1977);
 The Office of the Federal Register’s
IBR Handbook (Dkt. 204-64);
 The Office of the Federal Register’s
Document Drafting Handbook (Ex. 98
to Becker Supplemental Reply Decl.);
 Statement of Amy Bunk, former
Director of the Office of the Federal
Register, and current Director of Legal
Affairs and Policy at the Office of the
Federal Register (Dkt. 204-40);
 Testimony and statements of Mary
Saunders, former Director of the
Standards Coordination Office at the
National Institute of Standards and
Technology, and current Vice President
of Government Relations and Public
Policy at the American National
Standards Institute (Dkt. 204-43 at
191:03-203:12 and 303:03-304:07;
Dkt. 204-66; and Dkt. 203-21 at 4
(sealed Ex. 71)).
Additionally, the chart that Plaintiffs provide at
Wise Ex. 186 (Dkt. 213-18) misidentifies the
CFR citation for ASHRAE 90.1 (2010).

4. Exhibit 90 to the Supplemental Becker
Declaration is titled “ASTM Editions
Incorporated by Reference” and includes a chart
listing each of the ASTM standards at issue,
with columns for, inter alia, “C.F.R.
Reference.” Supp. Becker Decl. ¶ 57, Ex. 90.
For more than 20% of the ASTM Works (41
standards), Exhibit 90 identifies a citation to a
provision of the C.F.R. that was not
promulgated until after PRO posted the
standards in 2012. Wise Decl. II ¶ 4, Ex. 176.

Disputed but not material. The examples on
Public Resource’s Exhibit 90 are some, but not
all, of the incorporations of the relevant
standards into federal or state law. Where
appropriate, Public Resource listed a more
recent incorporation instead of an earlier,
outdated incorporation, and the citation to a
particular edition of the C.F.R. does not mean
that the same incorporation is not found in
earlier or later editions.
The chart that Plaintiffs provide at Wise Ex.
176 (Dkt. 213-6) inexplicably omits
approximately 40 ASTM standards at issue,
stating erroneously in footnote 1: “ASTM has

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Plaintiffs’ 3rd Supplemental Statement of
Material Facts

Defendant Public Resource’s Response
only included Works listed in Appendix A that
are the subject of the Parties’ motions. ECF
No. 198-2, ECF No. 202.” Public Resource
moved on every standard. Although Plaintiffs
moved on only 192 of the 232 ASTM
standards at issue, Plaintiffs have not explained
to the Court or to Public Resource why they
did not express confidence in moving on the
remaining 40 ASTM standards.

5. For approximately 30% of the ASTM Works
(56 standards), Exhibit 90 identifies
a citation to a provision of the C.F.R. that had
been amended to eliminate reference to the
ASTM Work at issue or to incorporate a
different ASTM standard prior to the time PRO
posted ASTM’s Works in 2012. Id.

Not material. Documents that have been
incorporated into law are still relevant to the
individuals or entities who were governed by
that law, even if that law has subsequently
changed.

6. Exhibit 91 to the Supplemental Becker
Declaration is titled “NFPA Editions
Incorporated by Reference” and includes a chart
listing each of the NFPA standards at issue,
with columns for, inter alia, “C.F.R.
Reference.” Supp. Becker Decl. ¶ 58, Ex. 91.
Plaintiffs have provided a chart that responds to
each of the C.F.R. references that PRO
identifies. See Wise Decl. II ¶ 3, Ex. 175.
7. As shown in Plaintiffs’ chart, Exhibit 91 does
not contain any citation to a federal regulation
that incorporates by reference four of the NFPA
standards at issue. See id. (NFPA 1 (2003),
NFPA 1 (2006), NFPA 54 (2006), NFPA 70
(2008)).

Not material. The examples on Public
Resource’s Exhibit 91 are some, but not all, of
the incorporations of the relevant standards
into federal or state law. Where appropriate,
Public Resource listed a more recent
incorporation instead of an earlier, outdated
incorporation, and the citation to a particular
edition of the C.F.R. does not mean that the
same incorporation is not found in earlier or
later editions.

8. For the remaining 19 NFPA standards at
issue, the federal regulations PRO

Disputed. This is a legal argument, not a
factual argument, concerning the scope of
incorporation by reference. Public Resource

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Plaintiffs’ 3rd Supplemental Statement of
Material Facts

Defendant Public Resource’s Response

identifies have no relevance to many portions of
the standards. See id. For example, PRO’s
Exhibit 91 identifies a regulation providing that
“fixed extinguishing systems” must comply
with NFPA 11 (2005), but that standard
includes provisions related to fixed, semifixed,
and portable systems—the standard’s
provisions related to semifixed and portable
systems are not necessary to complying with the
regulation PRO identifies. Id. at 2; see also
generally Supplemental Declaration of James
Pauley, previously filed at Dkt. 198-50, (“Supp.
Pauley Decl.”) Ex. D (Dkt. 199, sealed).
Similarly, Exhibit 91 identifies a regulation that
requires veterans’ cemeteries to meet the
architectural and structural requirements of
NFPA 101 (2003); that regulation does not
require compliance with the standard’s
provisions related to one- and two-family
dwellings, not to mention day-care occupancies,
educational occupancies, industrial occupancies
(or numerous others). Wise Decl. II ¶ 3, Ex. 175
at 19; see also generally Supp. Pauley Decl. Ex.
T (Dkt. 199, sealed).

has provided several sources that each state
that the incorporating language serves as a
precise identification of what has been
incorporated into law. These sources include:
 5 U.S.C. § 552(a);
 1 C.F.R. § 51 et seq.;
 Appalachian Power Co. v. Train, 566
F.2d 451, 457 (4th Cir. 1977);
 The Office of the Federal Register’s
IBR Handbook (Dkt. 204-64);
 The Office of the Federal Register’s
Document Drafting Handbook (Ex. 98
to Becker Supplemental Reply Decl.);
 Statement of Amy Bunk, former
Director of the Office of the Federal
Register, and current Director of Legal
Affairs and Policy at the Office of the
Federal Register (Dkt. 204-40);
 Testimony and statements of Mary
Saunders, former Director of the
Standards Coordination Office at the
National Institute of Standards and
Technology, and current Vice President
of Government Relations and Public
Policy at the American National
Standards Institute (Dkt. 204-43 at
191:03-203:12 and 303:03-304:07;
Dkt. 204-66; and Dkt. 203-21 at 4
(sealed Ex. 71)).

9. 164 of the 191 ASTM standards at issue are
available for free read-only access on ASTM’s
website; with respect to the remaining 27
ASTM standards at issue, ASTM is not aware
of any regulation that has incorporated those
standards by reference and PRO has not
identified any. Declaration of Thomas O’Brien,
previously filed at Dkt. 118-7, ¶ 60; Declaration
of Jane Wise, previously filed at Dkt. 198-5, ¶
157, Ex. 156. Each of the 23 NFPA standards at
issue in this litigation is available for free read-

Disputed. There are 232 ASTM standards at
issue. The chart that Plaintiffs provide at Wise
Ex. 176 (Dkt. 213-6) inexplicably omits
approximately 40 ASTM standards at issue,
stating erroneously in footnote 1: “ASTM has
only included Works listed in Appendix A that
are the subject of the Parties’ motions. ECF
No. 198-2, ECF No. 202.” Public Resource
moved on every standard. Although Plaintiffs
moved on only 192 of the 232 ASTM

5

Plaintiffs’ 3rd Supplemental Statement of
Material Facts

Defendant Public Resource’s Response

only access on NFPA’s website. Supp. Pauley
Decl. ¶¶ 40-41. Each of the 3 ASHRAE
standards at issue in this litigation is available
for free read-only access on ASHRAE’s
website. Declaration of Stephanie Reiniche,
previously filed at Dkt. 118-10, ¶ 19.

standards at issue, Plaintiffs have not explained
to the Court or to Public Resource why they
did not express confidence in moving on the
remaining 40 ASTM standards.
Plaintiffs have not provided documentary
evidence of the availability of each of the
standards at issue on their respective read-only
websites, and by imposing a license agreement
in order to access the ASTM and NFPPA readonly portals, requiring a user to agree that the
Plaintiffs respectively own copyrights over the
standards at issue, Plaintiffs have created a
barrier to prevent Public Resource or other
individuals from confirming what standards
are listed on the ASTM and NFPA read-only
portals.
Additionally, ASHRAE does not make the
1993 ASHRAE Handbook available in readonly format, even though it is one of the
standards at issue in this litigation and has not
been available for sale for many years. This
means Public Resource is likely the only
means for most people to access this
incorporated standard. See Becker Reply
Decl. Ex. 101
(https://www.ashrae.org/technicalresources/standards-and-guidelines/read-onlyversions-of-ashrae-standards).

10. In at least eleven instances, PRO’s Internet
Archive postings continue to display the ASTM
Logo. Wise Decl. II ¶ 5, Ex. 177.

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Dated:

January 16, 2020

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]
Facsimile: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
CSRL 2nd Floor
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

B9620/00403/FW/11235507.2

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