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

Filing 25

ANSWER to #21 Answer to Complaint, COUNTERCLAIM,, by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC.. Related document: #21 Answer to Complaint, COUNTERCLAIM,, filed by PUBLIC.RESOURCE.ORG, INC..(Clayton, Michael)

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-EGS

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
ANSWER TO COUNTERCLAIM FOR DECLARATORY RELIEF AND
ADDITIONAL DEFENSES OF PLAINTIFF/ COUNTER-DEFENDANT
AMERICAN SOCIETY FOR TESTING AND MATERIALS
Plaintiff/Counter-Defendant American Society for Testing and Materials d/b/a/ ASTM
International (“ASTM”), by and through its undersigned counsel, hereby answers the
counterclaim filed by Defendant/Counter-Plaintiff Public.Resource.Org, Inc. (“Public
Resource”) in accordance with the numbered paragraphs thereof as follows. ASTM denies all
allegations in Public Resource’s counterclaim that are not expressly admitted.
INTRODUCTION
1.

ASTM admits that Public Resource has undertaken to post numerous copyrighted

standards and codes on its websites. Except as specifically admitted, ASTM is without
knowledge or information sufficient to form a belief as to the truth of the allegations of
Paragraph 1 of the counterclaim and on that basis denies them.

2.

ASTM admits that government entities, including legislatures and administrative

agencies, rely on private-sector safety codes and incorporate such codes by reference in statutes
and regulations as needed. Except as specifically admitted ASTM denies the allegations of
Paragraph 2 of the counterclaim.
3.

ASTM admits that private-sector safety codes confer tremendous benefits on

society, and cover a range of important topics. ASTM admits that government entities, including
legislatures and administrative agencies, rely on private-sector safety codes and frequently
incorporate such codes by reference in statutes and regulations. ASTM denies that it develops
public safety codes and that its standards set civil or criminal penalties. To the extent the
allegations of Paragraph 3 of the counterclaim are legal conclusions, no response is required.
Except as specifically admitted, ASTM denies the allegations of Paragraph 3 of the
counterclaim.
4.

ASTM admits that it develops standards but denies that any of its standards are

safety codes. ASTM denies that it promotes or advocates the incorporation of safety codes into
law. ASTM often encourages federal agencies to follow the dictates of OMB Circular A-119
and the National Technology Transfer and Advancement Act, and not to duplicate the efforts of
volunteer consensus standards organizations. Insofar as the allegations of Paragraph 4 of the
counterclaim pertain to ASTM, except as specifically admitted, ASTM denies the allegations.
Insofar as the allegations of Paragraph 4 of the counterclaim pertain to other Plaintiffs, ASTM is
without knowledge or information sufficient to form a belief as to the truth of the allegations and
on that basis denies them.
5.

ASTM denies that it has persuaded governments to incorporate safety codes into

law. Insofar as the allegations of Paragraph 4 of the counterclaim pertain to other Plaintiffs,

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ASTM is without knowledge or information sufficient to form a belief as to the truth of the
allegations and on that basis denies them.
6.

ASTM admits that it owns copyrights in certain standards that have been

incorporated by reference by government entities in statutes and regulations, and admits that it is
entitled to the protections afforded by law with respect to those copyrighted works. ASTM
admits that it develops standards but denies that any of its standards are safety codes. Insofar as
the allegations of Paragraph 6 of the counterclaim pertain to ASTM, except as specifically
admitted, ASTM denies the allegations. Insofar as the allegations of Paragraph 6 of the
counterclaim pertain to other Plaintiffs, ASTM is without knowledge or information sufficient to
form a belief as to the truth of the allegations and on that basis denies them.
7.

ASTM admits that it owns copyrights in the ASTM standards that have been

incorporated by reference by government entities in statutes and regulations, and admits that it is
entitled to the protections afforded by law with respect to those copyrighted works. ASTM
admits that it develops standards but denies that any of its standards are safety codes. Insofar as
the allegations of Paragraph 7 of the counterclaim pertain to ASTM, except as specifically
admitted, ASTM denies the allegations. Insofar as the allegations of Paragraph 7 of the
counterclaim pertain to other Plaintiffs, ASTM is without knowledge or information sufficient to
form a belief as to the truth of the allegations and on that basis denies them.
8.

ASTM admits that copyright law gives it the right to prohibit unauthorized

reproductions of its copyrighted standards. Insofar as the allegations of Paragraph 8 of the
counterclaim pertain to ASTM, except as specifically admitted, ASTM denies the allegations.
Insofar as the allegations of Paragraph 8 of the counterclaim pertain to other Plaintiffs, ASTM is

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without knowledge or information sufficient to form a belief as to the truth of the allegations and
on that basis denies them.
9.

ASTM admits that copyright law gives all copyright owners, including ASTM,

the right to prohibit the creation of unauthorized derivative works. Insofar as the allegations of
Paragraph 9 of the counterclaim pertain to ASTM, except as specifically admitted, ASTM denies
the allegations. Insofar as the allegations of Paragraph 9 of the counterclaim pertain to other
Plaintiffs, ASTM is without knowledge or information sufficient to form a belief as to the truth
of the allegations and on that basis denies them.
10.

ASTM admits that copyright law gives all copyright owners, including ASTM,

the right to prohibit unauthorized distribution of its copyrighted works. Insofar as the allegations
of Paragraph 10 of the counterclaim pertain to ASTM, except as specifically admitted, ASTM
denies the allegations. Insofar as the allegations of Paragraph 10 of the counterclaim pertain to
other Plaintiffs, ASTM is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
11.

Denied.

12.

ASTM admits that copyright law gives all copyright owners, including ASTM,

the right to determine the conditions under which the public can access their copyrighted
materials. Insofar as the allegations of Paragraph 12 of the counterclaim pertain to ASTM,
except as specifically admitted, ASTM denies the allegations. Insofar as the allegations of
Paragraph 12 of the counterclaim pertain to other Plaintiffs, ASTM is without knowledge or
information sufficient to form a belief as to the truth of the allegations and on that basis denies
them.

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13.

The allegations of Paragraph 13 of the counterclaim are legal conclusions to

which no response is required. By way of further answer, ASTM provides the public with access
to all ASTM standards, such that no action by Public Resource is required to provide the public
with access to ASTM’s standards.
14.

The allegations of Paragraph 14 of the counterclaim are legal conclusions to

which no response is required. By way of further answer, ASTM provides the public with access
to all ASTM standards, such that Public Resource’s actions were not necessary to provide the
public with access to ASTM’s standards.
15.

The allegations of Paragraph 15 of the counterclaim are legal conclusions to

which no response is required.
16.

Admitted.

17.

ASTM admits that copyright law gives ASTM the right to determine the

conditions under which Public Resource and others can access its standards and trademark law
gives it the right to control use of its trademarks. Except as specifically admitted, ASTM denies
the allegations in Paragraph 17 of the counterclaim.
18.

ASTM admits that copyright law gives ASTM the power to determine the

conditions under which Public Resource and others can access its standards and trademark law
gives it the power to control use of its trademarks. ASTM admits that it develops standards but
denies that any of its standards are safety codes. Except as specifically admitted, ASTM denies
the allegations in Paragraph 18 of the counterclaim.

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PARTIES
19.

ASTM is informed and believes, and on that basis admits, that Public Resource is

a California nonprofit corporation with its principal place of business at 1005 Gravenstein
Highway North, Sebastopol, California 95472.
20.

Admitted.

21.

ASTM is informed and believes, and on that basis admits, that NFPA is a

Massachusetts not-for-profit corporation with its principal place of business located at One
Batterymarch Park, Quincy, Massachusetts 02169.
22.

ASTM is informed and believes, and on that basis admits, that ASHRAE is a New

York not-for-profit corporation with its principal place of business located at 1791 Tullie Circle
N.E., Atlanta, Georgia 30329.
JURISDICTION AND VENUE
23.

ASTM admits that this counterclaim purports to seek declaratory relief pursuant

to 22 U.S.C. § 2201, 17 U.S.C. § 101 et seq., and 15 U.S.C. § 1121, and admits that the Court
has subject-matter jurisdiction over the counterclaim. Except as specifically admitted, ASTM
denies the allegations of Paragraph 23 of the counterclaim.
24.

ASTM admits that it maintains an office and transacts business in Washington,

DC and that this Court has personal jurisdiction over it. Except as specifically admitted, ASTM
is without knowledge or information sufficient to form a belief as to the truth of the allegations
of Paragraph 24 of the counterclaim and on that basis denies them.
25.

Admitted.

26.

Admitted.

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FACTS
I.
27.

Public Resource’s Operations
ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 27 of the counterclaim and on that basis denies them.
28.

ASTM admits that Public Resource acquired copies of standards and codes

developed and owned by standards development organizations (“SDOs”), including standards
developed and owned by ASTM, and that Public Resource engaged in a variety of unauthorized
conduct involving those copyrighted standards, including, but not limited to, copying and posting
the standards on its website, and creating derivative works from such standards. Except as
specifically admitted, ASTM is without knowledge or information sufficient to form a belief as
to the truth of the allegations of Paragraph 28 of the counterclaim and on that basis denies them.
29.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 29 of the counterclaim and on that basis denies them.
30.

Admitted.

31.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 31 of the counterclaim and on that basis denies them.
32.

ASTM admits that Public Resource hosts copies of safety codes and standards

that various government entities have incorporated by reference on law.resource.org. Except as
specifically admitted, ASTM denies the allegations of Paragraph 32 of the counterclaim.
33.

ASTM admits that Public Resource reformats, and re-affixes trademarks to, some

of the copyrighted codes and standards that it posts on its websites. ASTM denies that Public
Resource publishes laws. Except as specifically admitted, ASTM denies the allegations of
Paragraph 33 of the counterclaim.

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34.

Admitted.

35.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 35 of the counterclaim and on that basis denies them.
36.

ASTM admits that it develops standards but denies that any of its standards are

safety codes and that it has any safety codes at issue in this case. ASTM is without knowledge or
information sufficient to form a belief as to the truth of the remaining allegations of Paragraph 36
of the counterclaim and on that basis denies them.
37.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 37 of the counterclaim and on that basis denies them.
38.

ASTM admits that it makes all ASTM standards reasonably available and readily

accessible. ASTM also admits that it provides free, read-only access on the internet to all ASTM
standards that have been incorporated by reference into federal law and with which compliance
is mandatory under the relevant statutes or regulations, such that no action by Public Resource
was necessary to provide the public with access to ASTM’s standards. Except as specifically
admitted, ASTM denies the allegations of Paragraph 38 of the counterclaim.
39.

ASTM admits that it makes all ASTM standards reasonably available and readily

accessible. ASTM also admits that it provides free, read-only access on the internet to all ASTM
standards that have been incorporated by reference into federal law and with which compliance
is mandatory under the relevant statutes or regulations, such that no action by Public Resource
was necessary to provide the public with access to ASTM’s standards. Except as specifically
admitted, ASTM denies the allegations of Paragraph 39 of the counterclaim.
40.

ASTM admits that the internet provides opportunities for the exchange of

information and for education. ASTM admits that it provides free, read-only access on the

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internet to all ASTM standards that have been incorporated by reference into federal law and
with which compliance is mandatory under the relevant statutes or regulations. ASTM denies
that the development of the internet requires copyright owners to make their copyrighted works
available for unrestricted copying at no cost. Except as specifically admitted, ASTM denies the
allegations of Paragraph 40 of the counterclaim.
41.

ASTM admits that private-sector standards confer tremendous benefits on

society, including by promoting safety, quality, and efficiency with respect to industrial
accidents, natural disasters, and construction. ASTM admits that it develops standards but denies
that any of its standards are safety codes. Except as specifically admitted, ASTM denies the
allegations of Paragraph 41 of the counterclaim.
42.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations that Public Resource does not publish privately drafted safety codes that
have not been incorporated into law by national, federal, state, or local governments and on that
basis denies them. ASTM admits that it develops standards but denies that any of its standards
are safety codes and that Public Resource does not publish privately drafted safety codes that
have not been incorporated into law by national, federal, state, or local governments.
43.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 43 of the counterclaim and on that basis denies them.
44.

ASTM admits that the website page accessed by the URL

https://public.resource.org/copyright_policy.html speaks for itself. Except as specifically
admitted, ASTM is without knowledge or information sufficient to form a belief as to the truth of
the allegations of Paragraph 44 of the counterclaim and on that basis denies them.

9

45.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 45 of the counterclaim and on that basis denies them.
46.

ASTM admits that Public Resource offers various items for sale on the internet.

Except as specifically admitted, ASTM is without knowledge or information sufficient to form a
belief as to the truth of the allegations of Paragraph 46 of the counterclaim and on that basis
denies them.
47.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations in the first sentence of Paragraph 47 of the counterclaim and on that basis
denies them. ASTM admits that text or links soliciting donations appear on Public Resource’s
websites and other websites, including on pages that discuss Public Resource’s activities related
to ASTM’s and other SDO’s standards. The presence of the ASTM’s and other SDO’s standards
on Public Resource’s websites also drives traffic to the websites. Except as specifically
admitted, ASTM is without knowledge or information sufficient to form a belief as to the truth of
the allegations in the second sentence of Paragraph 47 of the counterclaim and on that basis
denies them.
48.

ASTM admits that it is without knowledge or information sufficient to form a

belief as to whether Public Resource sells copies of any standard. Insofar as the allegations of
Paragraph 48 of the counterclaim pertain to ASTM, except as specifically admitted, ASTM
denies the allegations. Insofar as the allegations of Paragraph 48 of the counterclaim pertain to
other Plaintiffs, ASTM is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
49.

ASTM admits that it is without knowledge or information sufficient to form a

belief as to whether Public Resource sells any item bearing the name or logo of any SDO.

10

Insofar as the allegations of Paragraph 49 of the counterclaim pertain to other Plaintiffs, ASTM
is without knowledge or information sufficient to form a belief as to the truth of the allegations
and on that basis denies them.
II.
50.

Plaintiffs/Counterdefendants’ Operations
ASTM admits that it has multiple motivations for developing and disseminating

standards, which include promoting safety and improving the quality of life, and earning a fair
return on its copyrighted standards sufficient to advance its mission of developing newer and
better standards, among others. ASTM admits that it develops standards but denies that any of
its standards are safety codes. Insofar as the allegations of Paragraph 50 of the counterclaim
pertain to ASTM, except as specifically admitted, ASTM denies the allegations. Insofar as the
allegations of Paragraph 50 of the counterclaim pertain to other Plaintiffs, ASTM is without
knowledge or information sufficient to form a belief as to the truth of the allegations and on that
basis denies them.
51.

ASTM admits that both members and non-members of SDOs, including

representatives of industry, consumers, users, academicians and others, all have an incentive to
promote the development of private-sector standards, which confer tremendous benefits on
society. Insofar as the allegations of Paragraph 51 of the counterclaim pertain to ASTM, except
as specifically admitted, ASTM denies the allegations. Insofar as the allegations of Paragraph 51
of the counterclaim pertain to other Plaintiffs, ASTM is without knowledge or information
sufficient to form a belief as to the truth of the allegations and on that basis denies them.
52.

ASTM admits that private-sector standards confer tremendous benefits on society,

including by promoting efficiency within industries. Except as specifically admitted, ASTM
denies the allegations of Paragraph 52.

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53.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 53 of the counterclaim and on that basis denies them.
54.

Denied. The existence of standards alone does not enhance the reputation of an

industry. An industry-wide commitment to follow a set of standards may enhance the reputation
of that industry.
55.

ASTM admits that private-sector standards confer tremendous benefits on society,

including by allowing members of industry who comply with the standards to realize greater
safety, quality, efficiency, and other benefits. Except as specifically admitted, ASTM denies the
allegations of Paragraph 55.
56.

ASTM admits that private-sector standards confer tremendous benefits on society,

including by promoting efficiency within industries. Except as specifically admitted, ASTM
denies the allegations of Paragraph 56.
57.

ASTM admits that the $75 membership fees ASTM charges fund only a small

fraction of the significant costs of developing the ASTM standards. ASTM is not aware of any
evidence that its members would be willing or able to cover the total costs of developing all
ASTM standards, the vast majority of which is currently funded by the sale of ASTM’s
copyrighted standards. Except as specifically admitted, ASTM denies the allegations in
Paragraph 57 of the counterclaim. Insofar as the allegations of Paragraph 57 of the counterclaim
pertain to other SDOs, ASTM is without knowledge or information sufficient to form a belief as
to the truth of the allegations and on that basis denies them.
58.

ASTM admits that members of SDOs who represent industry, like other members

of SDOs and non-members of SDOs, realize substantial benefits from private-sector standards

12

and thus have incentives to encourage the development of private-sector standards. Except as
specifically admitted, ASTM denies the allegations of Paragraph 58.
59.

ASTM denies that it adopts standards. ASTM admits that its members, including

those who represent industry, participate in the process of developing standards and vote on
proposed standards through various levels of balloting, in which all interested parties participate.
Insofar as the allegations of Paragraph 59 of the counterclaim pertain to ASTM, except as
specifically admitted, ASTM denies the allegations. Insofar as the allegations of Paragraph 59 of
the counterclaim pertain to other organizations, ASTM is without knowledge or information
sufficient to form a belief as to the truth of the allegations and on that basis denies them.
60.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 60 of the counterclaim and on that basis denies them.
61.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 61 of the counterclaim and on that basis denies them.
62.

ASTM admits that its members review and, if found necessary, revise ASTM’s

standards on a regular basis and that the revision of ASTM’s standards is not affected by whether
the standard is incorporated by reference in statutes or regulations. Insofar as the allegations of
Paragraph 62 of the counterclaim pertain to other organizations, ASTM is without knowledge or
information sufficient to form a belief as to the truth of the allegations and on that basis denies
them.
63.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 63 of the counterclaim and on that basis denies them.
64.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 64 of the counterclaim and on that basis denies them.

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65.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 65 of the counterclaim and on that basis denies them.
66.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 66 of the counterclaim and on that basis denies them.
67.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 67 of the counterclaim and on that basis denies them.
68.

ASTM admits that there are multiple ways to fund the development and

dissemination of standards. For example, government agencies could develop their own
standards or could fund the development of private-sector standards. Current government policy,
as discussed in the National Technology Transfer and Advancement Act and OMB Circular A119 and as required due to a lack of agency budgeting, is to encourage the government to
incorporate private-sector standards wherever possible, while observing and protecting the rights
of the private organizations that develop and own the copyrights in the standards. ASTM admits
that it develops standards but denies that any of its standards are safety codes. Except as
specifically admitted, ASTM denies the allegations of Paragraph 68.
69.

ASTM admits that its members pay $75 per year in membership fees. These

membership fees account for less than 4 percent of ASTM’s annual revenue.
70.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 70 of the counterclaim and on that basis denies them.
71.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 71 of the counterclaim and on that basis denies them.

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72.

ASTM admits that it receives revenues from training programs designed to

facilitate understanding and utilization of its standards, which makes up less than 2.5% of its
operating revenues, but denies that it receives revenue from conferences.
73.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 73 of the counterclaim and on that basis denies them.
74.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 74 of the counterclaim and on that basis denies them.
75.

Denied.

76.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 76 of the counterclaim and on that basis denies them.
77.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 77 of the counterclaim and on that basis denies them.
78.

Admitted. ASTM’s gross revenue from advertising in 2012 made up much less

than 1 percent of its total operating revenues.
79.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 79 of the counterclaim and on that basis denies them.
80.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 80 of the counterclaim and on that basis denies them.
81.

Admitted. ASTM’s sales from the copies of materials other than standards in

2012 made up approximately 15 percent of its total operating revenues.
82.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 82 of the counterclaim and on that basis denies them.

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83.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 83 of the counterclaim and on that basis denies them.
84.

ASTM admits that it receives revenue from the sale of its copyrighted standards.

Except as specifically admitted, ASTM denies the allegations of Paragraph 84 of the
counterclaim.
85.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 85 of the counterclaim and on that basis denies them.
86.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 86 of the counterclaim and on that basis denies them.
87.

ASTM admits that it develops standards but denies that any of its standards are

safety codes or that it receives revenue from the sale of printed copies of safety codes. Except as
specifically admitted, ASTM denies the allegations of Paragraph 87 of the counterclaim.
88.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 88 of the counterclaim and on that basis denies them.
89.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 89 of the counterclaim and on that basis denies them.
90.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 90 of the counterclaim and on that basis denies them.
91.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 91 of the counterclaim and on that basis denies them.
92.

ASTM admits that its 2011 Form 990 speaks for itself. Except as specifically

admitted, ASTM denies the allegations in Paragraph 92 of the counterclaim.

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93.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 93 of the counterclaim and on that basis denies them.
94.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 94 of the counterclaim and on that basis denies them.
95.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 95 of the counterclaim and on that basis denies them.
96.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 96 of the counterclaim and on that basis denies them.
97.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 97 of the counterclaim and on that basis denies them.
98.

Denied. All revenues that ASTM receives directly or indirectly support standards

development.
99.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 99 of the counterclaim and on that basis denies them.
100.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 100 of the counterclaim and on that basis denies them.
101.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 101 of the counterclaim and on that basis denies them.
102.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 102 of the counterclaim and on that basis denies them.
103.

ASTM admits that it encourages the federal government to comply with the

dictates of the National Technology Transfer and Advancement Act and OMB Circular A-119 by
utilizing the existing work of ASTM technical committees rather than creating its own standards.

17

Except as specifically admitted, ASTM denies the allegations of Paragraph 103 of the
counterclaim.
104.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 104 of the counterclaim and on that basis denies them.
105.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 105 of the counterclaim and on that basis denies them.
106.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 106 of the counterclaim and on that basis denies them.
107.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 107 of the counterclaim and on that basis denies them.
108.

ASTM admits that it has informed the public about facts concerning decisions by

government entities to incorporate ASTM standards by reference in statutes and regulations.
Except as specifically admitted, ASTM denies the allegations of Paragraph 108 of the
counterclaim.
109.

ASTM states that ASTM’s 2009 annual report speaks for itself. Except as

specifically admitted, ASTM denies the allegations in Paragraph 109 of the counterclaim.
110.

ASTM states that the January 2007 edition of ASTM’s “Standardization News”

speaks for itself. Except as specifically admitted, ASTM denies the allegations in Paragraph 110
of the counterclaim.
111.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 111 of the counterclaim and on that basis denies them.

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III.

Safety Codes That The Law Incorporates

112.

The allegations of Paragraph 112 of the counterclaim are legal conclusions to

which no response is required.
113.

ASTM denies that the quoted statement was written by ASTM. The allegations in

Paragraph 113 also fail to mention that the paragraph preceding the quoted statement clarifies
that “[t]he standards development process itself does not create legislation, but it can provide a
forum for discussing ideas and exchanging information needed to define and manage a vast
range of technical topics that ultimately impact the public.”
114.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

114 of the counterclaim and therefore denies them.
115.

The allegations of Paragraph 115 of the counterclaim are legal conclusions to

which no response is required. No ASTM standards contain civil or criminal penalties.
116.

ASTM admits that statutes or regulations that incorporate standards may apply to

governments. ASTM lacks information sufficient to admit or deny the remaining allegations in
Paragraph 116 of the counterclaim and therefore denies them.
117.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

117 of the counterclaim and therefore denies them.
118.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

118 of the counterclaim and therefore denies them.
119.

ASTM admits that public comments are often solicited during the process of

drafting and adopting statutes and regulations. ASTM lacks information sufficient to admit or
deny the remaining allegations in Paragraph 119 of the counterclaim and therefore denies them.

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120.

ASTM admits that the primary beneficiary of the incorporation of a standard into

law is the public because it does not have to incur the cost of developing the standard (whether
through higher taxes or fees paid to a developer). The secondary beneficiary is the government,
which does not have to incur the time or personnel costs of developing the standard. Under
certain circumstances, the incorporation of a standard into law may be seen as benefitting the
SDO that developed the standard. Except as specifically admitted, ASTM denies the allegations
of Paragraph 120 of the counterclaim.
121.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

121 of the counterclaim and therefore denies them.
122.

Denied.

123.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

123 of the counterclaim and therefore denies them.
124.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

124 of the counterclaim and therefore denies them.
125.

ASTM admits that it develops standards but denies that any of its standards are

safety codes. Insofar as the allegations of Paragraph 125 of the counterclaim pertain to other
Plaintiffs, ASTM is without knowledge or information sufficient to form a belief as to the truth
of the allegations and on that basis denies them.
126.

ASTM admits that some laws and regulations are highly technical. ASTM lacks

information sufficient to admit or deny the remaining allegations in Paragraph 126 of the
counterclaim and therefore denies them.
127.

ASTM admits that 47 C.F.R. § 73.319 speaks for itself. Except as specifically

admitted, ASTM denies the allegations in Paragraph 127 of the counterclaim.

20

128.

ASTM admits that some laws and regulations are targeted at particular subsets of

society. ASTM lacks information sufficient to admit or deny the remaining allegations in
Paragraph 128 of the counterclaim and therefore denies them.
129.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

129 of the counterclaim and therefore denies them. ASTM cannot purport to answer
Defendant’s allegations on behalf of the general public or which relate to some amorphous
reference to unknown “laws and regulations.”
130.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

130 of the counterclaim and therefore denies them. ASTM cannot purport to answer
Defendant’s allegations on behalf of the general public. Many of the codes and standards
incorporated by federal agencies are highly technical and, thus, require a scientific or technical
background to understand and/or utilize.
131.

ASTM denies the allegations in the first sentence of Paragraph 131 of the

counterclaim. ASTM provides free access in its Reading Room to all ASTM standards the
federal government has incorporated by reference and with which compliance is mandatory
under the relevant statutes or regulations. ASTM admits that federal regulations require that a
copy of all materials incorporated by reference be deposited with the Office of the Federal
Register. ASTM lacks information sufficient to admit or deny the remaining allegations in
Paragraph 131 of the counterclaim and therefore denies them.
132.

The allegations in the first sentence of Paragraph 132 of the counterclaim are

legal conclusions to which no response is required. ASTM admits that 47 Fed. Reg. 34108 (Aug.
6, 1982), Sec. 51.1(c)(2) speaks for itself. Except as specifically admitted, ASTM denies the
allegations in the second sentence of Paragraph 132 of the counterclaim. By way of further

21

answer, an October 2, 2013 report published by the Office of the Federal Register, National
Archives and Records Administration concluded that nothing in the Administrative Procedure
Act or any other statute required that all materials incorporated by reference be available for free
and that any such requirement would compromise the ability of agencies to rely on private-sector
standards, contrary to the National Technology Transfer and Advancement Act and OMB
Circular A-119.
133.

ASTM admits that the National Technology Transfer and Advancement Act of

1995 speaks for itself. Except as specifically admitted, ASTM denies the allegations in the
second sentence of Paragraph 133 of the counterclaim.
134.

ASTM is without knowledge or information sufficient to form a belief as to the

truth of the allegations of Paragraph 134 of the counterclaim and on that basis denies them.
135.

ASTM states that the language on the homepage of its Reading Room speaks for

itself. Except as specifically admitted, ASTM denies the allegations in Paragraph 135 of the
counterclaim.
136.

ASTM states that the language in its Intellectual Property Policy, originally

adopted in 1999 and amended in 2003 and 2010, speaks for itself. Except as specifically
admitted, ASTM denies the allegations in Paragraph 136 of the counterclaim.
137.

ASTM admits that it develops standards but denies that any of its standards are

safety codes. ASTM states that its online Reading Room contains only ASTM standards and
therefore has no safety codes. Except as specifically admitted, ASTM denies the allegations in
Paragraph 137 of the counterclaim.

22

138.

ASTM denies that the development and use of private-sector standards is costly

for governments. The development of standards by government itself would be costly, timeconsuming and inefficient.
139.

ASTM admits that it develops standards but denies that any of its standards are

safety codes. ASTM lacks information sufficient to admit or deny the remaining allegations in
Paragraph 139 of the counterclaim and therefore denies them.
140.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

140 of the counterclaim and therefore denies them.
141.

ASTM admits that some government employees participate in and attend

meetings at which some of ASTM’s standards are developed. Insofar as the allegations of
Paragraph 141 of the counterclaim pertain to ASTM, except as specifically admitted, ASTM
denies the allegations. Insofar as the allegations of Paragraph 141 of the counterclaim pertain to
other Plaintiffs, ASTM is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
142.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

142 of the counterclaim and therefore denies them. The cost of membership in ASTM is $75 per
year, which is the only required expense associated with participating in the development of
ASTM standards.
143.

ASTM states that the July 2003 edition of “Standardization News” speaks for

itself. Except as specifically admitted, ASTM denies the allegations in Paragraph 143 of the
counterclaim.
144.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

144 of the counterclaim and therefore denies them.

23

145.

ASTM denies that it requires fees for access to copies of standards incorporated

into federal law and with which compliance is mandatory under the relevant statutes or
regulations, but admits that it sometimes charges fees for copies of other standards. Insofar as
the allegations of Paragraph 145 of the counterclaim pertain to other Plaintiffs, ASTM is without
knowledge or information sufficient to form a belief as to the truth of the allegations and on that
basis denies them.
146.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

146 of the counterclaim and therefore denies them.
147.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

147 of the counterclaim and therefore denies them.
148.

Denied.

149.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

149 of the counterclaim and therefore denies them. By way of further answer, any amount of
money Public Resource spent to purchase ASTM standards was spent to obtain ownership of
paper copies of the standards. No funds are required to access, review, study or comment on the
ASTM standards that have been incorporated into federal law and with which compliance is
mandatory under the relevant statutes or regulations because they are available at no cost in
ASTM’s Reading Room.
150.

ASTM admits that it exercises the right that copyright law gives to all copyright

owners to place restrictions on the access to and use of its standards, consistent with its
ownership of the copyrights in the standards. Insofar as the allegations of Paragraph 150 of the
counterclaim pertain to ASTM, except as specifically admitted, ASTM denies the allegations.
Insofar as the allegations of Paragraph 150 of the counterclaim pertain to other Plaintiffs, ASTM

24

is without knowledge or information sufficient to form a belief as to the truth of the allegations
and on that basis denies them.
151.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

151 of the counterclaim and therefore denies them. There is no question, however, that the
standards can be viewed and accessed.
152.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

152 of the counterclaim and therefore denies them. There is no question, however, that the
diagrams and equations can be viewed and accessed.
153.

ASTM denies the allegations to the extent they suggest that ASTM develops

safety codes. ASTM admits that it exercises the right that copyright law gives to all copyright
owners to restrict unauthorized copying or printing of its copyrighted works. Insofar as the
allegations of Paragraph 153 of the counterclaim pertain to ASTM, except as specifically
admitted, ASTM denies the allegations. Insofar as the allegations of Paragraph 153 of the
counterclaim pertain to other Plaintiffs, ASTM is without knowledge or information sufficient to
form a belief as to the truth of the allegations and on that basis denies them.
154.

ASTM admits that it develops standards but denies that any of its standards are

safety codes and that ASTM’s Reading Room contains safety codes. ASTM admits that it
exercises the right that copyright law gives to all copyright owners to restrict unauthorized
copying or printing of copyrighted works posted in its Reading Room. Except as specifically
admitted, ASTM denies the allegations of Paragraph 154 of the counterclaim.
155.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

155 of the counterclaim and therefore denies them.

25

156.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

155 of the counterclaim and therefore denies them.
157.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

157 of the counterclaim and therefore denies them.
158.

ASTM admits that it places copyright notices on all of its standards, consistent

with copyright law. Insofar as the allegations of Paragraph 158 of the counterclaim pertain to
ASTM, except as specifically admitted, ASTM denies the allegations. Insofar as the allegations
of Paragraph 158 of the counterclaim pertain to other Plaintiffs, ASTM is without knowledge or
information sufficient to form a belief as to the truth of the allegations and on that basis denies
them.
159.

ASTM admits that it places copyright notices on all of its standards, consistent

with copyright law. Insofar as the allegations of Paragraph 159 of the counterclaim pertain to
ASTM, except as specifically admitted, ASTM denies the allegations. Insofar as the allegations
of Paragraph 159 of the counterclaim pertain to other Plaintiffs, ASTM is without knowledge or
information sufficient to form a belief as to the truth of the allegations and on that basis denies
them.
160.

ASTM denies that it places warnings on its standards. ASTM lacks information

sufficient to admit or deny the remaining allegations in Paragraph 160 of the counterclaim and
therefore denies them.
161.

ASTM states that the content of its Reading Room website speaks for itself.

Except as specifically admitted, ASTM denies the allegations in Paragraph 161 of the
counterclaim.

26

162.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

162 of the counterclaim and therefore denies them.
163.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

163 of the counterclaim and therefore denies them.
164.

The allegations of Paragraph 164 of the counterclaim are legal conclusions to

which no response is required. By way of further answer, the October 2, 2013 report of the
Office of the Federal Register, National Archives and Records concluded that federal law does
not require that all standards incorporated by reference be available for free online. See
https://www.federalregister.gov/articles/2013/10/02/2013-24217/incorporation-by-reference.
165.

ASTM denies the allegations in Paragraph 165 of the counterclaim to the extent

they suggest that ASTM develops safety codes. ASTM lacks information sufficient to admit or
deny the remaining allegations in Paragraph 165 of the counterclaim.
166.

ASTM denies the allegations in Paragraph 166 of the counterclaim to the extent

they suggest that ASTM develops safety codes. ASTM denies there is any uncertainty about
whether copyright law applies to standards that the law incorporates. ASTM lacks information
sufficient to admit or deny the remaining allegations in Paragraph 166 of the counterclaim and
therefore denies them. ASTM cannot purport to respond to Defendant’s allegations on behalf of
the public.
167.

ASTM denies that the public is unable to familiarize themselves with, understand,

or engage constructively with ASTM’s standards that are incorporated by reference by statutes or
regulations. ASTM is without knowledge or information sufficient to form a belief as to the
truth of the remaining allegations of Paragraph 167 of the counterclaim and on that basis denies
them.

27

168.

ASTM denies that the public is unable to use the ASTM standards that are

incorporated into statutes and regulations. ASTM admits that it develops standards but denies
that any of its standards are safety codes. ASTM lacks information sufficient to admit or deny
the remaining allegations in Paragraph 168 of the counterclaim and therefore denies them.
ASTM cannot purport to respond to Defendant’s allegations on behalf of the public.
169.

ASTM denies that the public is unable to use the ASTM standards that are

incorporated into statutes and regulations. ASTM lacks information sufficient to admit or deny
the remaining allegations in Paragraph 169 of the counterclaim and therefore denies them.
ASTM cannot purport to respond to Defendant’s allegations on behalf of the public.
170.

ASTM denies that Public Resource’s publication of ASTM’s standards does not

impair ASTM’s ability to develop standards. ASTM admits that it develops standards but denies
that any of its standards are safety codes. Insofar as the allegations of Paragraph 170 of the
counterclaim pertain to other Plaintiffs, ASTM is without knowledge or information sufficient to
form a belief as to the truth of the allegations and on that basis denies them.
171.

ASTM admits that it provides the public with access to all ASTM standards,

including free access to all ASTM standards that are incorporated by reference into federal law
and with which compliance is mandatory under the relevant statutes or regulations, such that no
action by Public Resource was necessary to provide the public with access to ASTM’s standards.
ASTM admits that it develops standards but denies that any of its standards are safety codes.
Insofar as the allegations of Paragraph 171 of the counterclaim pertain to other Plaintiffs, ASTM
is without knowledge or information sufficient to form a belief as to the truth of the allegations
and on that basis denies them.

28

172.

ASTM admits that it provides the public with access to all ASTM standards,

including free access to all ASTM standards that are incorporated by reference into federal law
and with which compliance is mandatory under the relevant statutes or regulations, such that no
action by Public Resource was necessary to allow the public to analyze or understand ASTM’s
standards. ASTM admits that it develops standards but denies that any of its standards are safety
codes. Insofar as the allegations of Paragraph 172 of the counterclaim pertain to other Plaintiffs,
ASTM is without knowledge or information sufficient to form a belief as to the truth of the
allegations and on that basis denies them.
173.

ASTM admits that it provides the public with access to all ASTM standards,

including free access to all ASTM standards that are incorporated by reference into federal law
and with which compliance is mandatory under the relevant statutes or regulations, such that no
action by Public Resource was necessary to provide the public with access to ASTM’s standards.
ASTM admits that it develops standards but denies that any of its standards are safety codes.
Insofar as the allegations of Paragraph 173 of the counterclaim pertain to other Plaintiffs, ASTM
is without knowledge or information sufficient to form a belief as to the truth of the allegations
and on that basis denies them.
COUNT 1
[Declaratory Relief Pursuant to 28 U.S.C. § 2201, et seq. (Declaratory Judgment
Act) and the Copyright Act (U.S.C. Title 71)]
174.

ASTM repeats and incorporates here its responses to Paragraphs 1 through 173

175.

The allegations of Paragraph 175 of the counterclaim are legal conclusions to

above.

which no response is required.

29

176.

The allegations of Paragraph 176 of the counterclaim are legal conclusions to

which no response is required. By way of further answer, ASTM provides the public with access
to all ASTM standards, including free access to all ASTM standards that are incorporated by
reference into federal law and with which compliance is mandatory under the relevant statutes or
regulations, such that no action by Public Resource was necessary to provide the public with the
ability to read the standards.
177.

The allegations of Paragraph 177 of the counterclaim are legal conclusions to

which no response is required.
178.

The allegations of Paragraph 178 of the counterclaim are legal conclusions to

which no response is required.
179.

The allegations of Paragraph 179 of the counterclaim are legal conclusions to

which no response is required.
180.

The allegations of Paragraph 180 of the counterclaim are legal conclusions to

which no response is required. ASTM further states that OMB Circular A-119 and the October
2, 2013 report of the Office of the Federal Register, National Archives and Records make clear
that copyrighted documents do not lose their status as protectable intellectual property through
the government action of incorporation by reference.
181.

The allegations of Paragraph 181 of the counterclaim are legal conclusions to

which no response is required. ASTM further states that ASTM owns the copyrights in the
standards at issue. ASTM does not lose its copyrights as a result of incorporation by reference
by the government.
182.

The allegations of Paragraph 182 of the counterclaim are legal conclusions to

which no response is required.

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183.

The allegations of Paragraph 183 of the counterclaim are legal conclusions to

which no response is required.
184.

ASTM admits that it provides the public with access to all ASTM standards,

including free access to all ASTM standards that are incorporated by reference into federal law
and with which compliance is mandatory under the relevant statutes or regulations, such that no
action by Public Resource is necessary to provide the public with the ability to study, criticize,
analyze, or engage with the law. ASTM admits that it develops standards but denies that any of
its standards are safety codes. Except as specifically admitted, ASTM denies the allegations of
Paragraph 184.
185.

The allegations of in the first sentence of Paragraph 185 of the counterclaim are

legal conclusions to which no response is required. ASTM admits that Public Resource has
published ASTM’s standards in their entireties. ASTM denies the allegations in the third and
fourth sentence of Paragraph 185 of the counterclaim. ASTM provides the public with access to
all ASTM standards, including free access to all ASTM standards that are incorporated by
reference into federal law and with which compliance is mandatory under the relevant statutes or
regulations, such that no action by Public Resource is necessary to provide the public with the
ability to study, criticize, analyze, or engage with the law.
186.

Denied. Not only is Public Resource’s unauthorized copying of the codes and

standards at issue unnecessary to provide the public with the ability to study, criticize, analyze,
or engage with the law, Public Resource’s actions will have an adverse effect on standards
ASTM develops that are not incorporated by reference into statutes and regulations.
187.

Denied.

31

188.

ASTM admits that there is a real and actual controversy between Public Resource

and ASTM regarding whether Public Resource’s copying, publication, and reformatting of
certain ASTM standards constitutes infringement of ASTM’s copyrights. ASTM admits that it
develops standards but denies that any of its standards are safety codes.
189.

ASTM admits that it seeks to enjoin Public Resource’s unauthorized copying,

rekeying and posting online of ASTM’s standards and unauthorized use of ASTM’s trademarks.
Except as specifically admitted, ASTM denies the allegations of Paragraph 189 of the
counterclaim.
190.

ASTM lacks information sufficient to admit or deny the allegations in Paragraph

190 of the counterclaim and therefore denies them. ASTM provides the public with access to all
ASTM standards, including free access to all ASTM standards that are incorporated by reference
into federal law and with which compliance is mandatory under the relevant statutes or
regulations, such that no action by Public Resource is necessary to provide the public with access
to ASTM’s standards.
191.

ASTM denies this allegation to the extent it suggests that ASTM develops codes.

ASTM lacks information sufficient to admit or deny the remaining allegations in Paragraph 191
of the counterclaim and therefore denies them.
192.

ASTM denies this allegation to the extent it suggests that ASTM develops codes.

ASTM lacks information sufficient to admit or deny the remaining allegations in Paragraph 192
of the counterclaim and therefore denies them.
193.

Denied. ASTM provides the public with access to all ASTM standards, including

free access to all ASTM standards that are incorporated by reference into federal law and with

32

which compliance is mandatory under the relevant statutes or regulations, such that no action by
Public Resource is necessary to provide the public with access to ASTM’s standards.
194.

ASTM admits that there is a real and substantial controversy between Public

Resource and ASTM. Except as specifically admitted, ASTM denies the allegations of
Paragraph 194 of the counterclaim. Defendant’s counterclaim is duplicative of the case-in-chief,
which cannot be resolved without a judgment or Defendant’s consent. Therefore, Defendant’s
counterclaim is extraneous, unnecessary and a waste of judicial resources.
195.

Denied.
COUNT II

[Declaratory Relief Pursuant to 28 U.S.C. § 2201, et seq. (Declaratory Judgment
Act) and the Lanham Act (15 U.S.C. §§ 105, et seq.)]
196.

ASTM repeats and incorporates here its responses to Paragraphs 1 through 195

197.

Denied.

198.

Denied.

199.

Denied.

200.

Denied.

201.

Denied.

202.

Denied.

203.

Denied.

204.

ASTM admits that there is a real and substantial controversy between Public

above.

Resource and ASTM. Except as specifically admitted, ASTM denies the allegations of
Paragraph 204 of the counterclaim. Defendant’s counterclaim is duplicative of the case-in-chief,

33

which cannot be resolved without a judgment or Defendant’s consent. Therefore, Defendant’s
counterclaim is extraneous, unnecessary and a waste of judicial resources.
205.

Denied.
ADDITIONAL DEFENSES

In further response to the Counterclaims, ASTM pleads the following additional
defenses. ASTM reserves all further defenses that may now or in the future exist based on
discovery and further factual investigation in the case:
1.

Public Resource’s counterclaims are barred in whole or in part for failure to state

a claim upon which relief can be granted.
2.

Public Resource’s counterclaims are unnecessary in light of Public Resource’s

denial of liability for ASTM’s claims.
3.

Public Resource’s counterclaims are redundant of Public Resource’s affirmative

defenses to ASTM’s claims.
4.

Public Resource’s counterclaims are barred, in whole or in part, by the doctrine of

unclean hands.
5.

Public Resource’s counterclaims are barred, in whole or in part, by the doctrine of

equitable estoppel.
PRAYER FOR RELIEF
Wherefore, ASTM prays for judgment:
(1)

Dismissing with prejudice Public Resource’s counterclaim in its entirety,

(2)

Awarding ASTM its costs, disbursements, and reasonable attorneys’ fees incurred

in defending against the counterclaim plus interest on any sums awarded thereunder; and

34

(3)

Awarding ASTM such other and further relief as this Court deems just and

proper, including, but not limited to, the relief sought in the Complaint filed in this Court on
August 6, 2013.

Dated: November 20, 2013

Respectfully submitted,
/s/ Michael F. Clayton
Michael F. Clayton (D.C. Bar: 335307)
J. Kevin Fee (D.C. Bar: 494016)
Jordana S. Rubel (D.C. Bar: 988423)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel For American Society For Testing And Materials
d/b/a/ ASTM International

35