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

Filing 218

RESPONSE TO PLAINTIFFS OBJECTIONS TO CERTAIN EVIDENCE IN PUBLIC RESOURCES REPLY TO ITS SECOND MOTION FOR SUMMARY JUDGMENT 217 filed by PUBLIC.RESOURCE.ORG, INC.. (Becker, Matthew) Modified on 2/10/2020 (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 RESPONSE TO PLAINTIFFS’ OBJECTIONS TO CERTAIN
EVIDENCE IN PUBLIC RESOURCE’S REPLY TO ITS SECOND MOTION FOR
SUMMARY JUDGMENT

Public Resource submits the following response to Plaintiffs’ objections to evidence in
Public Resource’s Reply in support of its Second Motion for Summary Judgment (ECF No. 217).
SUPPLEMENTAL REPLY
DECLARATION OF
MATTHEW BECKER
2. Attached as Exhibit 98 is a true
and correct copy of the Office of
the Federal Register, Document
Drafting Handbook, Aug. 2018 ed.
(Rev. 1.1, dated Aug. 9, 2019),
obtained from
https://www.archives.gov
/files/federal- register/write/
handbook/ddh.pdf. Further
information on the Document
Drafting Handbook and the IBR
Handbook is available from the
Office of the Federal Register at
OFR Handbooks Frequently Asked
Questions,
https://www.archives.gov/federalregister/write/handbook /faqs.html.

PLAINTIFFS’ RESPONSE

Objection. Exhibit 98 is
inadmissible hearsay to the
extent it is offered to prove the
truth of the matter asserted.
Additionally, the 2018
Document Drafting Handbook
is irrelevant, especially with
respect to any regulation for
which IBR approval was sought
prior to August 9, 2019 (the
revision date of the Document
Drafting Handbook), or that
was promulgated before that
date.

PUBLIC RESOURCE’S
RESPONSE
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).

This also qualifies for the residual
exception under Fed. R. Evid.
807, because the statements in the
documents are supported by
sufficient guarantees of
trustworthiness (these are official
OFR documents that are stating
OFR policy), and because these
Plaintiffs object to PRO’s
reliance on the OFR Handbooks are official OFR documents
setting out OFR’s policy, they are
Frequently Asked Questions
more probative of OFR policy
document that was referenced
than any other evidence that could
but not included as part of the
be obtained through reasonable
exhibit. That evidence is
means.
irrelevant hearsay. Plaintiffs
also object to the link on the
Additionally, the quotations are
basis that it has not been
authenticated. Plaintiffs reserve offered for the fact that the OFR
represents to the public and to
their right to object to this
document if/when PRO seeks to federal agencies that if material is
necessary to understand or
rely upon it.
comply with the regulation, the
agency must incorporate that
material by reference and seek
IBR approval from the Director of
the Federal Register. This
document shows a consistent
continuation of this policy from
the inception of the formal
incorporation by reference
procedure to today.

1

SUPPLEMENTAL REPLY
DECLARATION OF
MATTHEW BECKER

PLAINTIFFS’ RESPONSE

PUBLIC RESOURCE’S
RESPONSE
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.

3. Attached as Exhibit 99 is a true
and correct copy of the 1972
announcement in the Federal
Register by the Office of the
Federal Register of the
incorporation by reference
regulations, along with the text of
that regulation: Incorporation by
Reference, 37 Fed. Reg. 23602
(Nov. 4, 1972) (to be codified at 1
C.F.R. 51).
4. Attached as Exhibit 100 is a true
and correct copy of the Office of
the Federal Register’s
announcement, “OFR Director
Charley Barth Stepping Down for
New Opportunity,” accessed Jan.
16, 2020, at https://www.federal
register.gov/reader-aids/office-ofthe-federal-register- blog/2014/10
/ofr-director-charley-barthstepping-down.

Objection. Exhibit 100 is
inadmissible hearsay to the
extent it is offered to prove the
truth of the matter asserted. It is
also irrelevant.
Additionally, Plaintiffs
object to PRO’s reliance on
Exhibit 100 to the extent it is
intended to show: (1) that
Ms. Amy Bunk was the
acting Director of the OFR
at the time of PRO’s Exhibit
34 (ECF No. 204-40, an
undated email from Ms.
Bunk in response to an email
dated February 29, 2016), or
(2) that her job
responsibilities included
interpreting or applying IBR
policies. See ECF No. 215 at
5 n.2. PRO does not support
either proposition, and the
2

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).
This also qualifies for the residual
exception under Fed. R. Evid.
807, because the statement in the
document is supported by
sufficient guarantees of
trustworthiness (this is an OFR
statement that identifies who the
acting Director of the OFR is),
and because this is an OFR
statement identifying OFR’s own
acting Director, it is more
probative of the identity of OFR’s
acting Director as of publication
than any other evidence that could
be obtained through reasonable

SUPPLEMENTAL REPLY
DECLARATION OF
MATTHEW BECKER

PLAINTIFFS’ RESPONSE

former appears
demonstrably false. In
PRO’s Exhibit 34, Ms.
Bunk’s email signature
identifies that she is
“Director of Legal Affairs
and Policy” for the Office of
the Federal Register—not
the acting director. And,
while Exhibit 100 identifies
October 31, 2014 as OFR
Director Charley Barth’s last
day, the same website on
which PRO relies in Exhibit
100 indicates that Oliver
Potts was selected as the 9th
Director of the OFR,
effective August 9, 2015.
See Addendum A, available
at
https://www.federalregister.
gov/reader- aids/office-ofthe-federal-registerblog/2015/08/oliver-pottsselected-as-9th- director-ofthe-federal-register. Ms.
Bunk was not the acting
Director of the OFR at time
the emails in Exhibit 34
were written.
PRO relies on Exhibit 100 as
evidence that Ms. Bunk’s
statement in Exhibit 34
“qualifies as an exception to the
hearsay rules under F.R.E.
803(8), and also qualifies for
the residual exception under
F.R.E. 807.” ECF No. 215 at 5,
n.2. However, neither PRO’s
Exhibit 100 nor Exhibit 34
identify the OFR’s activities,
any legal duty to report, or
3

PUBLIC RESOURCE’S
RESPONSE
means.
Plaintiffs’ additional objections
are misplaced. Public Resource
did not state that Ms. Amy Bunk
was the acting Director of the
OFR at the time that she wrote
Exhibit 34. Instead, Ms. Bunk
had recently concluded her role as
acting Director of the OFR at the
time she wrote that document, and
was drawing from her experience
and authority as someone who
had served in that capacity.
Likewise, Public Resource did not
assert that Exhibit 100 stated that
Ms. Bunk’s job responsibilities
included interpreting or applying
IBR policies. Instead, it stated
that Ms. Bunk was the acting
Director of the OFR. The fact that
Ms. Bunk, as acting Director of
the OFR, was in charge of
interpreting and applying IBR
policies is evident from the plain
text of both 1 C.F.R. §51.1 and 5
U.S.C. 552(a), which state that the
Director of the OFR is responsible
for the administration of the
incorporation by reference
procedure and must “interpret and
apply” its language.
Plaintiffs’ objection that Public
Resource has not “identif[ied] the
OFR’s activities, any legal duty to
report, or factual findings from a
legally authorized investigation”
is simply incorrect. This is a
statement from the OFR about its
appointment of Ms. Bunk as
acting Director, and such

SUPPLEMENTAL REPLY
DECLARATION OF
MATTHEW BECKER

PLAINTIFFS’ RESPONSE

factual findings from a legally
authorized investigation as
required to qualify as an
exception to the hearsay rule
under F.R.E. 803(8). Nor has
PRO offered the required
foundation to demonstrate that
the email qualifies under the
residual exception to the rule
against hearsay.
5. Attached as Exhibit 101 is a true
and correct copy of ASHRAE’s
“Read-Only Versions of ASHRAE
Standards” webpage (accessed Jan.
16, 2020), at
https://www.ashrae.org/ technicalresources/standards-andguidelines/read-only- versionsofashrae-standards. This page
shows that the 1993 ASHRAE
Handbook is not among the
standards that it makes available for
read- only access, even though that
standard is incorporated by
reference into law at 10 C.F.R. §
434.701 (2011).

Objection. Exhibit 101 is
irrelevant as 1993 ASHRAE
Handbook is not a work 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. 1982)”).

6. Attached for the Court’s
convenience as Exhibit 102 is a true
and correct copy of an email from
NFPA, previously submitted at Dkt.
124-5, in which NFPA advertises:

Objection. PRO
mischaracterizes the
document. Plaintiffs object to
Exhibit 102 to the extent PRO
relies on the document to

PUBLIC RESOURCE’S
RESPONSE
appointment is an activity of the
OFR.

Plaintiffs’ relevance objection
is bizarre, considering that the
1993 ASHRAE Handbook is
one of the standards that
Plaintiffs have sued Public
Resource over in this litigation,
and Public Resource’s Second
Motion for Summary Judgment
asserts a fair use defense to
every standard Plaintiffs have
asserted in their amended
complaint.
Although Plaintiffs may have
chosen not to move on this and
numerous other standards in
order to avoid the
embarrassment that this
standard is not available on
Plaintiffs’ reading room and
also has not been available for
purchase from Plaintiffs for
many years, the standard is still
relevant because Public
Resource has moved on it as
part of its fair use defense.

4

Plaintiffs’ assert a distinction
without a difference. The NFPA
email advertises its products
based on California’s adoption of
the NEC, and encourages people

SUPPLEMENTAL REPLY
DECLARATION OF
MATTHEW BECKER

PLAINTIFFS’ RESPONSE

PUBLIC RESOURCE’S
RESPONSE

“Be confident your electrical work
complies with California law. . . .
California has adopted the 2011
NEC. Order the NEC Handbook
today and receive FREE tabs!”

imply that Plaintiffs “profit”
from incorporation by
reference. ECF No. 215 at 2223. This information does not
show that NFPA “profits”
from incorporation by
reference. The email was sent
on June 16, 2015, at a time
when the 2014 NEC and 2014
NEC Handbook had already
been published. The email
served the purpose of
informing individuals who
work in California of the
standard that had been
incorporated at the time. In
any event, NFPA is a nonprofit whose mission is driven
by enhancing fire safety. PRO
does not cite any evidence
related to ASTM or ASHRAE
to support this statement.

to purchase the NEC Handbook
in order to be confident their
electrical work complies with
California law.

7. Attached for the Court’s
convenience as Exhibit 103 is a true
and correct compilation of the
statements and contributions from
the Consumer Product Safety
Commission that were located at
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/r
egulations.gov.docket.15/cpsc.gov.
20151116. html#t6 (cataloguing
nineteen textual contributions to the
National Electrical Code from
Consumer Product Safety
Commission staff), but which are
presently unavailable due to
maintenance on the Consumer

Objection. Exhibit 103 is
irrelevant. PRO has failed to
offer any evidence that any
proposed text was prepared by a
government employee in the
scope of that official’s duties
and became part of a standard
at issue. Even if it could, such
evidence would still not be
relevant because PRO has
offered no support for its
theories that such text would
somehow render the entire
standard a “government work,”
that the omission of the
employee from the copyright
registration would affect
ownership, or that the
remainder of the standard
would somehow become

Exhibit 103 is relevant because
it shows over a dozen
contributions by federal
government employees, acting
in their official capacities,
providing revisions to the
National Electrical Code,
NFPA 70.

5

For example, U.S. Consumer
Product Safety Commission
employee Doug Lee submitted
a proposal on October 26,
2005 to amend Section
210.12(a) of NFPA 70, the
National Electrical Code. See
Dkt. 215-9 (Ex. 103) pp. 3031. In that proposal, he
crossed out the NFPA’s
language asking for a grant of

SUPPLEMENTAL REPLY
DECLARATION OF
MATTHEW BECKER
Product Safety Commission
website. Automatically archived
versions of these documents are
available on the Internet Archive at
the following locations:

PLAINTIFFS’ RESPONSE

uncopyrightable.

https://web.archive.org/web/201702
07161319/
https://www.cpsc.gov/PageFiles/11
7366/comm ent422f.pdf
https://web.archive.org/web/201702
23204422/
https://www.cpsc.gov/PageFiles/11
7373/comm ent210-12.pdf
https://web.archive.org/web/201702
22233233/
https://www.cpsc.gov/PageFiles/11
7338/210- 8a3.pdf
https://web.archive.org/web/201701
25025404/
https://www.cpsc.gov/PageFiles/11
7351/210- 12c.pdf
https://web.archive.org/web/201702
07071338/
https://www.cpsc.gov/PageFiles/11
7355/230- xx.pdf
https://web.archive.org/web/201702
12055701/
https://www.cpsc.gov/PageFiles/10
8276/210.1 2n.pdf
https://web.archive.org/web/201702
07065403/
https://www.cpsc.gov/PageFiles/10
9754/210.8 A.pdf
https://web.archive.org/web/201702
11071503/
https://www.cpsc.gov/PageFiles/10
8291/100.p df
https://web.archive.org/web/201702
24211212/
https://www.cpsc.gov/PageFiles/10
8285/230.x x.pdf
https://web.archive.org/web/201702

PUBLIC RESOURCE’S
RESPONSE
copyright, and instead
explicitly stated that “Pursuant
to 17 U.S.C. Sec. 105, I cannot
transfer copyright rights to
work of the U.S.
Government.” Mr. Lee’s
proposed addition of text was
included in the next edition of
the National Electrical Code,
2008 NFPA 70, at Section
210.12(a).
Similarly, on October 29, 2008
Mr. Lee provided a proposal to
amend Section 550.13(B) of
the National Electrical Code to
add the language “Exceptions
listed in 210.8 shall be
permitted.” See Dkt. 215-9
(Ex. 103) p. 62. He likewise
crossed out NFPA’s copyright
agreement language and stated
that he is CPSC staff and
cannot transfer copyright
rights to NFPA. This language
was adopted nearly verbatim in
the following edition of the
National Electrical Code,
2011, in Section 550.13(B),
reading: “The exceptions in
210.8(A) shall be permitted.”
Likewise, also on October 29,
2008 Mr. Lee provided a
proposal to amend Section
550.25(B) of the National
Electrical Code to read:
“Bedrooms of Mobile Homes
and Manufactured Homes. All
120-volt branch circuits that
supply 15- and 20- ampere
outlets installed in family
rooms, dining rooms, living

6

SUPPLEMENTAL REPLY
DECLARATION OF
MATTHEW BECKER

PLAINTIFFS’ RESPONSE

PUBLIC RESOURCE’S
RESPONSE
rooms, parlors, libraries, dens,
bedrooms, sunrooms,
recreation rooms, closets,
hallways, or similar rooms or
areas of mobile homes and
manufactured homes shall
comply with 210.12(B).” See
Dkt. 215-9 (Ex. 103) p. 63. He
likewise crossed out NFPA’s
copyright agreement language
and stated that he is CPSC
staff and cannot transfer
copyright rights to NFPA.
This language was adopted
nearly verbatim in the
following edition of the
National Electrical Code,
2011, in Section 550.25(B),
with the only difference being
that the last word is “210.12”
rather than “210.12(B).”

09202716/
https://www.cpsc.gov/PageFiles/10
9760/210.8 B.pdf
https://web.archive.org/web/201702
10000456/
https://www.cpsc.gov/PageFiles/10
8298/210.1 2r.pdf
https://web.archive.org/web/201701
31113344/
https://www.cpsc.gov/PageFiles/11
7282/afci.pdf
https://web.archive.org/web/201702
12083913/
https://www.cpsc.gov/PageFiles/11
7286/bedro oms.pdf
https://web.archive.org/web/201702
23052803/
https://www.cpsc.gov/PageFiles/11
7292/editor ial.pdf
https://web.archive.org/web/201702
01050551/
https://www.cpsc.gov/PageFiles/11
7296/smok ealarm.pdf
https://web.archive.org/web/201702
12112237/
https://www.cpsc.gov/PageFiles/11
7301/boath oists.pdf
https://web.archive.org/web/201702
01050551/
https://www.cpsc.gov/PageFiles/11
7296/smok ealarm.pdf
https://web.archive.org/web/201701
31074532/
https://www.cpsc.gov/PageFiles/11
7275/NFP A70_550_13b.pdf
https://web.archive.org/web/201702
12163343/
https://www.cpsc.gov/PageFiles/10
7512/NFP A70_550_25.pdf
https://web.archive.org/web/201701
31074532/
https://www.cpsc.gov/PageFiles/11

The remainder of Plaintiffs’
objection appears to be legal
argument disputing the notion
that a work jointly authored
with a federal government
employee could become a
federal government work, but
Plaintiffs offer no legal
citations to support their
disagreement.

7

SUPPLEMENTAL REPLY
DECLARATION OF
MATTHEW BECKER

PLAINTIFFS’ RESPONSE

PUBLIC RESOURCE’S
RESPONSE

7275/NFP A70_550_13b.pdf

Dated: February 7, 2020

Respectfully submitted,
/s/ Matthew B. Becker
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.

8