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

Filing 26

Counter Defendant The American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc.'s ANSWER to #21 Answer to Complaint, COUNTERCLAIM,, of Public.Resource.Org, Inc. for Declaratory Judgment by AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC.. Related document: #21 Answer to Complaint, COUNTERCLAIM,, filed by PUBLIC.RESOURCE.ORG, INC..(Steinthal, Kenneth)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
AMERICAN SOCIETY FOR TESTING AND
)
MATERIALS d/b/a ASTM
)
INTERNATIONAL, et al.
)
)
Plaintiffs,
) Civil Action No. 1:13-cv-01215-EGS
)
v.
)
)
PUBLIC.RESOURCE.ORG, INC.,
)
)
Defendant.
)
__________________________________________)
)
PUBLIC.RESOURCE.ORG, INC.,
)
)
Counter Claimant,
)
)
v.
)
)
AMERICAN SOCIETY FOR TESTING AND
)
MATERIALS d/b/a ASTM
)
INTERNATIONAL, et al.
)
)
Counter Defendants.
)
__________________________________________)
COUNTER DEFENDANT THE AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC.’S
ANSWER TO PUBLIC.RESOURCE.ORG, INC.’S
COUNTERCLAIM FOR DECLARATORY JUDGMENT
Plaintiff and Counterclaim Defendant The American Society of Heating, Refrigerating,
and Air-Conditioning Engineers, Inc. (“ASHRAE”), by and through counsel, responds to

Public.Resource.Org, Inc.’s (“Public Resource”) Counterclaim for Declaratory Judgment
(“Counterclaim”) as follows:
INTRODUCTION
1.

ASHRAE admits that Public Resource has undertaken to post numerous

copyrighted standards and codes on its websites. Except as specifically admitted, ASHRAE 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.

ASHRAE admits that government entities, including legislatures and

administrative agencies, rely on private-sector standards, and frequently choose to incorporate
such standards by reference in statutes and regulations when they determine that such standards
best serve the needs of their citizens. Except as specifically admitted, ASHRAE denies the
allegations of Paragraph 2 of the counterclaim.
3.

ASHRAE admits that private-sector standards confer tremendous benefits on

society, and cover a range of important topics. ASHRAE further admits that government
entities, including legislatures and administrative agencies, rely on private-sector standards and
frequently incorporate such standards by reference in statutes and regulations. To the extent the
allegations of Paragraph 3 of the counterclaim are legal conclusions, no response is required.
Except as specifically admitted, ASHRAE denies the allegations of Paragraph 3 of the
counterclaim.
4.

ASHRAE admits that it develops voluntary consensus standards in the areas of

heating, ventilating, air-conditioning and refrigerating. ASHRAE further admits that it promotes
the wide use of its standards by both the private and public sector and that, as part of this effort,
it encourages government entities to incorporate its standards by reference into statutes and
regulations. ASHRAE denies that any of its standards are safety codes, denies that it develops
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safety codes, and denies that it promotes or advocates the incorporation of safety codes into law.
Insofar as the allegations of Paragraph 4 of the counterclaim pertain to ASHRAE, except as
specifically admitted, ASHRAE denies the allegations. Insofar as the allegations of Paragraph 4
of the counterclaim pertain to other Plaintiffs, ASHRAE is without knowledge or information
sufficient to form a belief as to the truth of the allegations and on that basis denies them.
5.

ASHRAE admits that some of its standards are or will be incorporated by

reference into the statutes or regulations of at least one government entity somewhere in the
United States or internationally. Insofar as the allegations of Paragraph 5 of the counterclaim
pertain to ASHRAE, except as specifically admitted, ASHRAE denies the allegations. Insofar as
the allegations of Paragraph 5 of the counterclaim pertain to other Plaintiffs, ASHRAE is without
knowledge or information sufficient to form a belief as to the truth of the allegations and on that
basis denies them.
6.

ASHRAE admits that it owns copyrights in 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. Insofar as the
allegations of Paragraph 6 of the counterclaim pertain to ASHRAE, except as specifically
admitted, ASHRAE denies the allegations. Insofar as the allegations of Paragraph 6 of the
counterclaim pertain to other Plaintiffs, ASHRAE is without knowledge or information sufficient
to form a belief as to the truth of the allegations and on that basis denies them.
7.

ASHRAE admits that it owns copyrights in 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. Insofar as the
allegations of Paragraph 7 of the counterclaim pertain to ASHRAE, except as specifically

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admitted, ASHRAE denies the allegations. Insofar as the allegations of Paragraph 7 of the
counterclaim pertain to other Plaintiffs, ASHRAE is without knowledge or information sufficient
to form a belief as to the truth of the allegations and on that basis denies them.
8.

ASHRAE admits that it owns copyrights in standards that have been incorporated

by reference by government entities in statutes and regulations, and admits that the Copyright
Act gives it the power to prohibit unauthorized reproductions of its copyrighted standards.
Insofar as the allegations of Paragraph 8 of the counterclaim pertain to ASHRAE, except as
specifically admitted, ASHRAE denies the allegations. Insofar as the allegations of Paragraph 8
of the counterclaim pertain to other Plaintiffs, ASHRAE is without knowledge or information
sufficient to form a belief as to the truth of the allegations and on that basis denies them.
9.

ASHRAE admits that it owns copyrights in many standards that have been

incorporated by reference by government entities in statutes and regulations, and admits that the
Copyright Act gives all copyright owners, including ASHRAE, the power to prohibit the creation
of unauthorized derivative works. Insofar as the allegations of Paragraph 9 of the counterclaim
pertain to ASHRAE, except as specifically admitted, ASHRAE denies the allegations. Insofar as
the allegations of Paragraph 9 of the counterclaim pertain to other Plaintiffs, ASHRAE is without
knowledge or information sufficient to form a belief as to the truth of the allegations and on that
basis denies them.
10.

ASHRAE admits that it owns registered copyrights in standards that have been

incorporated by reference by government entities in statutes and regulations, and admits that the
Copyright Act gives all copyright owners, including ASHRAE, the power to prohibit the
unauthorized distribution of their copyrighted works. Insofar as the allegations of Paragraph 10
of the counterclaim pertain to ASHRAE, except as specifically admitted, ASHRAE denies the

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allegations. Insofar as the allegations of Paragraph 10 of the counterclaim pertain to other
Plaintiffs, ASHRAE is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
11.

ASHRAE denies the allegations of Paragraph 11 of the counterclaim.

12.

ASHRAE admits that it owns copyrights in standards that have been incorporated

by reference by government entities in statutes and regulations, and admits that copyright law
gives all copyright owners, including ASHRAE, the power to determine conditions under which
their copyrighted materials may be copied and distributed. Insofar as the allegations of
Paragraph 12 of the counterclaim pertain to ASHRAE, except as specifically admitted, ASHRAE
denies the allegations. Insofar as the allegations of Paragraph 12 of the counterclaim pertain to
other Plaintiffs, ASHRAE is without knowledge or information sufficient to form a belief as to
the truth of the allegations and on that basis denies them.
13.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
14.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
15.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
16.

ASHRAE admits the allegations of Paragraph 16 of the counterclaim.

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17.

The allegations of Paragraph 17 of the counterclaim are legal conclusions to

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
18.

The allegations of Paragraph 18 of the counterclaim are legal conclusions to

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
PARTIES
19.

ASHRAE 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.

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

Pennsylvania not-for-profit corporation with its principal place of business at 100 Barr Harbor
Drive, West Conshohocken, Pennsylvania 19428.
21.

ASHRAE 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.

ASHRAE admits the allegations of Paragraph 22 of the counterclaim.
JURISDICTION AND VENUE

23.

ASHRAE 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,
ASHRAE denies the allegations of Paragraph 23 of the counterclaim.
24.

ASHRAE admits that it maintains an office and a staff in Washington, DC, and

that the primary responsibilities of ASHRAE’s Washington staff include outreach to all levels of
6

government in the United States concerning development of legislation and regulations related to
heating, ventilating, air-conditioning and refrigerating. ASHRAE is informed and believes, and
on that basis admits, that NFPA and ASTM maintain offices and staffs in Washington, DC and
are subject to personal jurisdiction in this District with respect to this case. Except as
specifically admitted, ASHRAE 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.

ASHRAE admits the allegations of Paragraph 25 of the counterclaim.

26.

ASHRAE admits the allegations of Paragraph 26 of the counterclaim.
FACTS

27.

ASHRAE 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.

ASHRAE admits that Public Resource acquired copies of standards created and

owned by standards development organizations (“SDOs”), including standards created and
owned by ASHRAE, 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. Except as specifically admitted, ASHRAE 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.

ASHRAE 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.

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

operates the websites public.resource.org, law.resource.org, house.resource.org, and
bulk.resource.org.
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31.

ASHRAE 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.

ASHRAE admits that Public Resource has, without authorization, posted copies

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

ASHRAE admits that Public Resource reformats, alters, and re-affixes trademarks

to, some of the copyrighted standards that it posts on its websites. Except as specifically
admitted, ASHRAE denies the allegations of Paragraph 33 of the counterclaim.
34.

ASHRAE is informed and believes, and on that basis admits, that the reformatting

of private-sector standards by Public Resource includes putting private-sector standards into
standard Hypertext Markup Language (HTML), converting graphics into the standard Scalable
Vector Graphics format, and converting mathematical formulas into the standard Math Markup
Language.
35.

ASHRAE 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.

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

truth of the allegations of Paragraph 36 of the counterclaim and on that basis denies them.
37.

ASHRAE 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.

ASHRAE admits that it makes ASHRAE standards reasonably available and

readily accessible, such as through free read-only access on the ASHRAE website. Except as
specifically admitted, ASHRAE denies the allegations of Paragraph 38 of the counterclaim.

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39.

ASHRAE admits that it makes ASHRAE standards reasonably available and

readily accessible, such as through free read-only access on the ASHRAE website. Except as
specifically admitted, ASHRAE denies the allegations of Paragraph 39 of the counterclaim.
40.

ASHRAE admits that the Internet provides improved opportunities for the

exchange of information and for education, including improved, convenient, and immediate
access to both free and paid content. ASHRAE further admits that copies of all of its standards,
including virtually all older editions of ASHRAE standards, are available for purchase and
immediate download on the ASHRAE website. ASHRAE further admits that, as part of its
mission, ASHRAE makes the full text of ASHRAE standards incorporated by reference into
federal statutes and regulations available to the public for free viewing on its website, in readonly form. Except as specifically admitted, ASHRAE denies the allegations of Paragraph 40 of
the counterclaim.
41.

ASHRAE 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. Except as specifically admitted, ASHRAE denies
the allegations of Paragraph 41 of the counterclaim.
42.

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

truth of the allegations of Paragraph 42 of the counterclaim and on that basis denies them.
43.

ASHRAE 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.

ASHRAE admits that the website page accessed by the URL

https://public.resource.org/copyright_policy.html speaks for itself. Except as specifically

9

admitted, ASHRAE 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.
45.

ASHRAE 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.

ASHRAE admits that Public Resource offers various items for sale on the

Internet. Except as specifically admitted, ASHRAE 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.

ASHRAE 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. ASHRAE admits that text or links soliciting donations appear on Public
Resource’s websites, including on pages that discuss Public Resource’s activities related to
ASHRAE’s and other SDO’s standards. The presence of ASHRAE’s and other SDO’s standards
on Public Resource’s websites also drives traffic to the websites. Except as specifically
admitted, ASHRAE 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.

ASHRAE 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 ASHRAE, except as specifically admitted, ASHRAE
denies the allegations. Insofar as the allegations of Paragraph 48 of the counterclaim pertain to
other Plaintiffs, ASHRAE is without knowledge or information sufficient to form a belief as to
the truth of the allegations and on that basis denies them.

10

49.

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

ASHRAE 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. Insofar as the allegations of Paragraph 50 of the
counterclaim pertain to ASHRAE, except as specifically admitted, ASHRAE denies the
allegations. Insofar as the allegations of Paragraph 50 of the counterclaim pertain to other
Plaintiffs, ASHRAE is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
51.

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

representatives of industry, 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 ASHRAE, except as specifically admitted, ASHRAE denies the
allegations. Insofar as the allegations of Paragraph 51 of the counterclaim pertain to other
Plaintiffs, ASHRAE is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
52.

ASHRAE admits that private-sector standards confer tremendous benefits on

consumers, business, industry, and the public at large, including by promoting, without

11

limitation, efficiency, interoperability, lower costs, and increased safety. Except as specifically
admitted, ASHRAE denies the allegations of Paragraph 52.
53.

ASHRAE admits that the document entitled “The Key to Energy Efficiency in

Buildings” speaks for itself, including without limitation the quotations contained in the
allegations of Paragraph 53 of the counterclaim. Except as specifically admitted, ASHRAE
denies the allegations of Paragraph 53.
54.

ASHRAE admits that private-sector standards confer tremendous benefits on

society, including by promoting safety, quality, and efficiency within industries. Except as
specifically admitted, ASHRAE denies the allegations of Paragraph 54.
55.

ASHRAE 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, ASHRAE
denies the allegations of Paragraph 55.
56.

ASHRAE admits that private-sector standards confer tremendous benefits on

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

ASHRAE admits that ASHRAE serves the public interest, not only the interests

of ASHRAE members, and that both members and non-members of SDOs realize substantial
benefits from private-sector standards. ASHRAE further avers that many members of SDOs, as
well as participants in and beneficiaries of the voluntary consensus standards development
activities of SDOs, lack resources sufficient to “fund” the activities of SDOs. Except as
specifically admitted, ASHRAE is without knowledge or information sufficient to form a belief

12

as to the truth of the allegations of Paragraph 57 of the counterclaim and on that basis denies
them.
58.

ASHRAE admits that members of SDOs and participants in voluntary consensus

standards development, including those who represent industry, believe in the value of voluntary
consensus standards development and the substantial benefits it confers on both the public and
the private sector. Except as specifically admitted, ASHRAE denies the allegations of Paragraph
58.
59.

ASHRAE admits that, in accordance with American National Standards Institute

(“ANSI”) principles and ASHRAE’s ANSI-accredited procedures, anyone may propose new or
revised content for inclusion in an ASHRAE standard, anyone may object to any proposed
content for an ASHRAE standard, and anyone may challenge standards development activities
that he or she believes violate ASHRAE’s procedures. ASHRAE further admits that those same
principles and procedures include rules to promote consensus among a balance of relevant
interests and to prevent any single interest group or industry from dominating the standards
development process. Insofar as the allegations of Paragraph 59 of the counterclaim pertain to
ASHRAE, except as specifically admitted, ASHRAE denies the allegations. Insofar as the
allegations of Paragraph 59 of the counterclaim pertain to other organizations, ASHRAE is
without knowledge or information sufficient to form a belief as to the truth of the allegations and
on that basis denies them.
60.

ASHRAE 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.

ASHRAE 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.

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62.

ASHRAE admits that, in accordance with ANSI principles and ASHRAE

procedures, all ASHRAE standards are reviewed and revised or reaffirmed on a regular basis,
generally in intervals of three to five years. ASHRAE further admits that certain ASHRAE
standards are designated for revision on an ongoing basis and are revised not less than every four
years, and are frequently updated every 18 to 36 months. Insofar as the allegations of Paragraph
62 of the counterclaim pertain to ASHRAE, except as specifically admitted, ASHRAE denies the
allegations. Insofar as the allegations of Paragraph 62 of the counterclaim pertain to other
organizations, ASHRAE is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
63.

ASHRAE 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.

ASHRAE 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.
65.

ASHRAE 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.

ASHRAE 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.

ASHRAE 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.

ASHRAE admits that approximately 20-25% of ASHRAE’s annual revenue is

derived from the sale of its copyrighted publications, with the remaining revenue derived from
membership fees, advertising income, and other sources. ASHRAE further admits that it uses its
revenues, including revenues from the sale of copyrighted standards, to fund the development

14

and dissemination of standards, among other activities. Insofar as the allegations of Paragraph
68 of the counterclaim pertain to ASHRAE, except as specifically admitted, ASHRAE denies the
allegations. Insofar as the allegations of Paragraph 68 of the counterclaim pertain to other
Plaintiffs, ASHRAE is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
69.

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

truth of the allegations of Paragraph 69 of the counterclaim and on that basis denies them.
70.

ASHRAE 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.

ASHRAE admits that it is a membership organization that receives dues from its

members in exchange for the benefits of membership, including opportunities for membership on
ASHRAE committees, receipt of the ASHRAE Handbook, discounts to ASHRAE publications,
and access to other resources to promote professional development, including the ASHRAE
Learning Institute. ASHRAE further admits that it does not charge any fees for participating on
its standards development committees, and that committee members are not required to be, and
often are not, ASHRAE members. Except as specifically admitted, ASHRAE denies the
allegations of Paragraph 71 of the counterclaim.
72.

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

truth of the allegations of Paragraph 72 of the counterclaim and on that basis denies them.
73.

ASHRAE 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.

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74.

ASHRAE admits that it receives revenue from training and conferences it

provides. Except as specifically admitted, ASHRAE denies the allegations of Paragraph 74 of
the counterclaim.
75.

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

truth of the allegations of Paragraph 75 of the counterclaim and on that basis denies them.
76.

ASHRAE 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.

ASHRAE admits that it receives a minority portion of its revenue from corporate

sources as a result of sponsorships. Except as specifically admitted, ASHRAE denies the
allegations of Paragraph 77 of the counterclaim.
78.

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

truth of the allegations of Paragraph 78 of the counterclaim and on that basis denies them.
79.

ASHRAE 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.

ASHRAE admits that it receives a minority portion of its revenue from

advertising. Except as specifically admitted, ASHRAE denies the allegations of Paragraph 80 of
the counterclaim.
81.

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

truth of the allegations of Paragraph 81 of the counterclaim and on that basis denies them.
82.

ASHRAE 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.
83.

ASHRAE admits that it receives a portion of its revenue from publication sales

from the sale of copies of certain materials other than standards, and further admits that it makes

16

additional materials other than standards available to the public at no cost. Except as specifically
admitted, ASHRAE denies the allegations of Paragraph 83 of the counterclaim.
84.

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

truth of the allegations of Paragraph 84 of the counterclaim and on that basis denies them.
85.

ASHRAE 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.

ASHRAE admits that it receives revenue from the sale of its copyrighted

standards. Except as specifically admitted, ASHRAE denies the allegations of Paragraph 86 of
the counterclaim.
87.

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

truth of the allegations of Paragraph 87 of the counterclaim and on that basis denies them.
88.

ASHRAE 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.

ASHRAE admits that it receives revenue from the sale of all of its copyrighted

standards. Except as specifically admitted, ASHRAE denies the allegations of Paragraph 89 of
the counterclaim.
90.

ASHRAE 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.

ASHRAE 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.

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

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

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93.

ASHRAE 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.

ASHRAE admits that its 2011 Form 990 speaks for itself, including without

limitation the description of ASHRAE’s revenues corresponding to that year. Except as
specifically admitted, ASHRAE denies the allegations in Paragraph 94 of the counterclaim.
95.

ASHRAE admits that the document entitled “Minutes, Advocacy Committee

Meeting, June 24, 2012” speaks for itself, including without limitation the quotations contained
in the allegations of Paragraph 95 of the counterclaim. Except as specifically admitted,
ASHRAE denies the allegations in Paragraph 95 of the counterclaim.
96.

ASHRAE admits that the document entitled “Minutes, Advocacy Committee

Meeting, April 10, 2013” speaks for itself, including without limitation the quotations contained
in the allegations of Paragraph 96 of the counterclaim. Except as specifically admitted,
ASHRAE denies the allegations in Paragraph 96 of the counterclaim.
97.

ASHRAE 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.

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

truth of the allegations of Paragraph 98 of the counterclaim and on that basis denies them.
99.

ASHRAE 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.

ASHRAE admits that its revenues are directed towards activities that serve its

mission of advancing heating, ventilating, air-conditioning and refrigerating to serve humanity
and promote a sustainable world through research, standards writing, publishing and continuing
education, and that some of those activities are not directly related to developing standards.

18

Except as specifically admitted, ASHRAE denies the allegations of Paragraph 100 of the
counterclaim.
101.

ASHRAE 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.

ASHRAE 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.

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

truth of the allegations of Paragraph 103 of the counterclaim and on that basis denies them.
104.

ASHRAE 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.

ASHRAE admits that developing, disseminating, and encouraging the use of

ASHRAE standards by both the private and public sectors is the primary means by which
ASHRAE serves its safety mission, and ASHRAE encourages the incorporation of its standards
into model codes as well as into the regulations or statutes of government entities. Except as
specifically admitted, ASHRAE denies the allegations of Paragraph 105 of the counterclaim.
106.

ASHRAE admits that Lynn G. Bellenger, then-President of ASHRAE, sent a

letter dated February 28, 2011 to members of the Ohio General Assembly. ASHRAE further
admits that the letter speaks for itself, including without limitation the quotations contained in
the allegations of Paragraph 106 of the counterclaim. Except as specifically admitted, ASHRAE
denies the allegations in Paragraph 106 of the counterclaim.
107.

ASHRAE 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.

19

108.

ASHRAE admits that it has informed the public about facts concerning decisions

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

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

truth of the allegations of Paragraph 109 of the counterclaim and on that basis denies them.
110.

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

truth of the allegations of Paragraph 110 of the counterclaim and on that basis denies them.
111.

ASHRAE 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.
112.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
113.

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

truth of the allegations of Paragraph 113 of the counterclaim and on that basis denies them.
114.

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

truth of the allegations of Paragraph 114 of the counterclaim and on that basis denies them.
115.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
116.

ASHRAE admits that statutes or regulations that incorporate private-sector

standards by reference may apply to governments. Except as specifically admitted, ASHRAE is

20

without knowledge or information sufficient to form a belief as to the truth of the allegations of
Paragraph 116 of the counterclaim and on that basis denies them.
117.

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

truth of the allegations of Paragraph 117 of the counterclaim and on that basis denies them.
118.

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

truth of the allegations of Paragraph 118 of the counterclaim and on that basis denies them.
119.

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

drafting and adopting statutes and regulations. Except as specifically admitted, ASHRAE is
without knowledge or information sufficient to form a belief as to the truth of the allegations of
Paragraph 119 of the counterclaim and on that basis denies them.
120.

ASHRAE admits that the public and the government primarily benefit from the

incorporation of private-sector standards by reference into a statute or regulation, because,
among other things, such standards provide high-quality, effective safety and other technical
standards without substantial costs to taxpayers or the government. ASHRAE further admits that
the incorporation of its standards by reference into a statute or regulation serves ASHRAE’s nonprofit public interest safety mission. Except as specifically admitted, ASHRAE denies the
allegations of Paragraph 120 of the counterclaim.
121.

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

truth of the allegations of Paragraph 121 of the counterclaim and on that basis denies them.
122.

ASHRAE admits that of the over 230 ANSI-accredited SDOs, certain SDOs may

develop standards that conflict with or duplicate the standards developed by other SDOs.
ASHRAE further admits that the ANSI Essential Requirements require SDOs to make good faith

21

efforts to resolve potential conflicts and to coordinate standardization activities. Except as
specifically admitted, ASHRAE denies the allegations of Paragraph 122 of the counterclaim.
123.

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

truth of the allegations of Paragraph 123 of the counterclaim and on that basis denies them.
124.

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

truth of the allegations of Paragraph 124 of the counterclaim and on that basis denies them.
125.

ASHRAE admits that it develops standards, some of which are incorporated by

reference in statutes and regulations, and further admits that those standards speak for
themselves. Insofar as the allegations of Paragraph 125 of the counterclaim pertain to other
Plaintiffs, ASHRAE is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
126.

ASHRAE admits that laws enacted by legislatures and regulations promulgated

by administrative agencies speak for themselves. Except as specifically admitted, ASHRAE
denies the allegations of Paragraph 126 of the counterclaim.
127.

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

admitted, ASHRAE denies the allegations in Paragraph 127 of the counterclaim.
128.

ASHRAE admits that laws and regulations speak for themselves. Except as

specifically admitted, ASHRAE denies the allegations of Paragraph 128 of the counterclaim.
129.

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

truth of the allegations of Paragraph 129 of the counterclaim and on that basis denies them.
130.

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

truth of the allegations of Paragraph 130 of the counterclaim and on that basis denies them.

22

131.

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

counterclaim. ASHRAE provides reasonable access to all of its standards, including free, readonly access to ASHRAE standards incorporated by reference in federal statutes and regulations
on the ASHRAE website. ASHRAE admits that federal regulations require that a copy of all
materials incorporated by reference in federal regulations must be deposited with the Office of
the Federal Register. ASHRAE is without knowledge or information sufficient to form a belief
as to the truth of the remaining allegations of Paragraph 131 of the counterclaim and on that
basis denies them.
132.

The allegations of Paragraph 132 of the counterclaim are legal conclusions to

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
133.

ASHRAE admits that the National Technology Transfer and Advancement Act of

1995 speaks for itself. Except as specifically admitted, ASHRAE denies the allegations of
Paragraph 133 of the counterclaim.
134.

ASHRAE 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.

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

truth of the allegations of Paragraph 135 of the counterclaim and on that basis denies them.
136.

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

truth of the allegations of Paragraph 136 of the counterclaim and on that basis denies them.
137.

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

truth of the allegations of Paragraph 137 of the counterclaim and on that basis denies them.

23

138.

ASHRAE denies the allegations of Paragraph 138 of the counterclaim, and further

states that the cost to governments of developing standards by themselves would far exceed any
costs associated with incorporating private-sector standards into statutes or regulations by
reference.
139.

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

truth of the allegations of Paragraph 139 of the counterclaim and on that basis denies them.
140.

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

truth of the allegations of Paragraph 140 of the counterclaim and on that basis denies them.
141.

ASHRAE admits that some government employees participate in and attend

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

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

truth of the allegations of Paragraph 142 of the counterclaim and on that basis denies them.
143.

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

truth of the allegations of Paragraph 143 of the counterclaim and on that basis denies them.
144.

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

truth of the allegations of Paragraph 144 of the counterclaim and on that basis denies them.
145.

ASHRAE denies the allegations in Paragraph 145 insofar as they pertain to

ASHRAE, and states that it provides reasonable access to all of its standards, including free,
read-only copies of ASHRAE standards incorporated by reference into federal statutes and

24

regulations available on the ASHRAE website. Insofar as the allegations of Paragraph 145 of the
counterclaim pertain to other Plaintiffs, ASHRAE is without knowledge or information sufficient
to form a belief as to the truth of the allegations and on that basis denies them.
146.

ASHRAE admits that it sells print and electronic copies of Standard 90.1-2010,

Energy Standard for Buildings Except for Low-Rise Residential Buildings (I-P Edition) for a list
price of $125. Except as specifically admitted, ASHRAE denies the allegations of Paragraph
146 of the counterclaim.
147.

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

truth of the allegations of Paragraph 147 of the counterclaim and on that basis denies them.
148.

ASHRAE denies the allegations of Paragraph 148 of the counterclaim.

149.

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

truth of the allegations of Paragraph 149 of the counterclaim and on that basis denies them.
150.

ASHRAE admits that it exercises its right, which the Copyright Act gives to all

copyright owners, to place technical and contractual restrictions on the access to and use of its
copyrighted standards that it makes available to the public in electronic form. Insofar as the
allegations of Paragraph 150 of the counterclaim pertain to ASHRAE, except as specifically
admitted, ASHRAE denies the allegations. Insofar as the allegations of Paragraph 150 of the
counterclaims pertain to other Plaintiffs, ASHRAE is without knowledge or information
sufficient to form a belief as to the truth of the allegations and on that basis denies them.
151.

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

truth of the allegations of Paragraph 151 of the counterclaim and on that basis denies them.
152.

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

truth of the allegations of Paragraph 152 of the counterclaim and on that basis denies them.

25

153.

ASHRAE admits that it exercises its right, which the Copyright Act gives to all

copyright owners, to place technical and contractual restrictions on the access to and use of its
copyrighted standards that it makes available online. Insofar as the allegations of Paragraph 153
of the counterclaim pertain to ASHRAE, except as specifically admitted, ASHRAE denies the
allegations. Insofar as the allegations of Paragraph 153 of the counterclaim pertain to other
Plaintiffs, ASHRAE is without knowledge or information sufficient to form a belief as to the
truth of the allegations and on that basis denies them.
154.

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

truth of the allegations of Paragraph 154 of the counterclaim and on that basis denies them.
155.

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

truth of the allegations of Paragraph 155 of the counterclaim and on that basis denies them.
156.

ASHRAE admits that it exercises its right, which the Copyright Act gives to all

copyright owners, to restrict unauthorized copying or printing of copyrighted works posted on its
website. Except as specifically admitted, ASHRAE denies the allegations of Paragraph 156 of
the counterclaim.
157.

In response to the first sentence of Paragraph 157 of the counterclaim, ASHRAE

is informed and believes, and on that basis admits, that RealRead requires the installation of Java
software, which is available to the public for free download on the Java website and which is
used to run many widely available applications in addition to RealRead. ASHRAE is without
knowledge or information sufficient to form a belief as to the truth of the allegations of the
second sentence of Paragraph 157 of the counterclaim and on that basis denies them.
158.

ASHRAE admits that it places copyright notices on its copyrighted standards.

Insofar as the allegations of Paragraph 158 of the counterclaim pertain to ASHRAE, except as

26

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

ASHRAE admits that it places copyright notices on its copyrighted codes and

standards to discourage conduct that is unlawful under the Copyright Act. Insofar as the
allegations of Paragraph 159 of the counterclaim pertain to ASHRAE, except as specifically
admitted, ASHRAE denies the allegations. Insofar as the allegations of Paragraph 159 of the
counterclaim pertain to other Plaintiffs, ASHRAE is without knowledge or information sufficient
to form a belief as to the truth of the allegations and on that basis denies them.
160.

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

truth of the allegations of Paragraph 160 of the counterclaim and on that basis denies them.
161.

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

truth of the allegations of Paragraph 161 of the counterclaim and on that basis denies them.
162.

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

truth of the allegations of Paragraph 162 of the counterclaim and on that basis denies them.
163.

ASHRAE admits that the “Terms of Use” page on the ASHRAE website speaks

for itself including without limitation the quotations contained in the allegations of Paragraph
163 of the counterclaim. Except as specifically admitted, ASHRAE denies the allegations in
Paragraph 163 of the counterclaim.
164.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.

27

165.

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

truth of the allegations of Paragraph 165 of the counterclaim and on that basis denies them.
166.

ASHRAE denies that there is any uncertainty about whether copyright law applies

to standards that are incorporated by reference by statutes or regulations. ASHRAE is without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations
of Paragraph 166 of the counterclaim and on that basis denies them.
167.

ASHRAE denies that the public is unable to familiarize itself with, understand, or

engage constructively with ASHRAE’s standards that are incorporated by reference by statutes
or regulations. ASHRAE 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.
168.

ASHRAE denies that the public is unable to familiarize itself with, understand, or

engage constructively with ASHRAE’s standards that are incorporated by reference by statutes
or regulations. ASHRAE is without knowledge or information sufficient to form a belief as to
the truth of the remaining allegations of Paragraph 168 of the counterclaim and on that basis
denies them.
169.

ASHRAE denies that the public is unable to familiarize itself with, understand, or

engage constructively with ASHRAE’s standards that are incorporated by reference by statutes
or regulations. ASHRAE is without knowledge or information sufficient to form a belief as to
the truth of the remaining allegations of Paragraph 169 of the counterclaim and on that basis
denies them.
170.

ASHRAE denies that Public Resource’s publication of ASHRAE’s standards does

not impair ASHRAE’s ability to develop standards. Insofar as the allegations of Paragraph 170

28

of the counterclaim pertain to other Plaintiffs, ASHRAE is without knowledge or information
sufficient to form a belief as to the truth of the allegations and on that basis denies them.
171.

ASHRAE admits that Public Resource’s unlawful publication of copyrighted

works has enabled and encouraged the unauthorized copying of those works and unauthorized
creation of derivative works, in violation of the Copyright Act. Except as specifically admitted,
ASHRAE denies the allegations of Paragraph 171 of the counterclaim.
172.

ASHRAE admits that Public Resource’s unlawful publication of copyrighted

works has enabled and encouraged the unauthorized copying of those works and unauthorized
creation of derivative works, in violation of the Copyright Act. Except as specifically admitted,
ASHRAE denies the allegations of Paragraph 172 of the counterclaim.
173.

ASHRAE admits that Public Resource’s unlawful publication of copyrighted

works has enabled the unauthorized copying of those works and unauthorized creation of
derivative works, in violation of the Copyright Act. Except as specifically admitted, ASHRAE
denies the allegations of Paragraph 173 of the counterclaim.
COUNT I
174.

ASHRAE 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. To the extent a response is required, ASHRAE denies the
allegations.
176.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.

29

177.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
178.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
179.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
180.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
181.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
182.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
183.

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

which no response is required. To the extent a response is required, ASHRAE denies the
allegations.
184.

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

truth of the allegations of Paragraph 184 of the counterclaim and on that basis denies them.

30

185.

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

legal conclusions to which no response is required. ASHRAE is informed and believes, and on
that basis admits, that Public Resource has published ASHRAE’s copyrighted standards in their
entireties. ASHRAE denies the allegations in the third and fourth sentence of Paragraph 185 of
the counterclaim. ASHRAE provides the public with reasonable access to all of its standards,
including free, read-only access to ASHRAE standards incorporated by reference into federal
statutes and 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. Except as specifically
admitted, ASHRAE denies the allegations of Paragraph 185 of the counterclaim.
186.

ASHRAE denies the allegations of Paragraph 186 of the counterclaim.

187.

ASHRAE denies the allegations of Paragraph 187 of the counterclaim.

188.

ASHRAE admits that there is a real and actual controversy between Public

Resource and ASHRAE regarding whether Public Resource’s copying, publication, alteration,
and reformatting of certain ASHRAE standards constitutes infringement of ASHRAE’s
copyrights. Insofar as the allegations of Paragraph 188 of the counterclaim pertain to other
Plaintiffs, ASHRAE is informed and believes, and on that basis admits, that there is a real and
actual controversy between Public Resource and the other Plaintiffs regarding whether Public
Resource’s copying, publication, alteration, and reformatting of certain standards constitutes
infringement of the other Plaintiffs’ copyrights.
189.

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

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

31

190.

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

truth of the allegations of Paragraph 190 of the counterclaim and on that basis denies them.
191.

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

truth of the allegations of Paragraph 191 of the counterclaim and on that basis denies them.
192.

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

truth of the allegations of Paragraph 192 of the counterclaim and on that basis denies them.
193.

ASHRAE denies the allegations of Paragraph 193 of the counterclaim. ASHRAE

provides the public with reasonable access to all of its standards, including free, read-only access
to ASHRAE standards that are incorporated by reference into federal statutes and regulations,
such that no action by Public Resource is necessary to provide the public with access to
ASHRAE’s standards.
194.

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

Resource and ASHRAE. Insofar as the allegations of Paragraph 194 of the counterclaim pertain
to other Plaintiffs, ASHRAE is informed and believes, and on that basis admits, that there is a
real and substantial controversy between Public Resource and the other Plaintiffs. Except as
specifically admitted, ASHRAE denies the allegations of Paragraph 194 of the counterclaim.
195.

ASHRAE denies the allegations of Paragraph 195 of the counterclaim.
COUNT II

196.

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

197.

ASHRAE denies the allegations of Paragraph 197 of the counterclaim.

198.

ASHRAE denies the allegations of Paragraph 198 of the counterclaim.

199.

ASHRAE denies the allegations of Paragraph 199 of the counterclaim.

200.

ASHRAE denies the allegations of Paragraph 200 of the counterclaim.

above.

32

201.

ASHRAE denies the allegations of Paragraph 201 of the counterclaim.

202.

ASHRAE denies the allegations of Paragraph 202 of the counterclaim.

203.

ASHRAE denies the allegations of Paragraph 203 of the counterclaim.

204.

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

Resource and ASHRAE. Insofar as the allegations of Paragraph 204 of the counterclaim pertain
to other Plaintiffs, ASHRAE is informed and believes, and on that basis admits, that there is a
real and substantial controversy between Public Resource and the other Plaintiffs. Except as
specifically admitted, ASHRAE denies the allegations of Paragraph 204 of the counterclaim.
205.

ASHRAE denies the allegations of Paragraph 205 of the counterclaim.
AFFIRMATIVE AND OTHER DEFENSES

ASHRAE asserts the following defenses, whether affirmative or otherwise. ASHRAE
reserves all further defenses that may now or in the future exist based on discovery and further
factual investigation in the case:
1.

The doctrine of unclean hands bars Public Resource’s counterclaims.

2.

The doctrine of equitable estoppel bars Public Resource’s counterclaims.

3.

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

denial of liability for ASHRAE’s claims.
4.

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

defenses to ASHRAE’s claims.
5.

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

a claim upon which relief can be granted.
PRAYER FOR RELIEF
Wherefore, ASHRAE prays for judgment:
1.

Dismissing with prejudice Public Resource’s Counterclaim in its entirety;
33

2.

Awarding ASHRAE its costs, disbursements, and reasonable attorney’s fees

incurred in defending against the Counterclaim plus interest on any sums awarded thereunder;
and
3.

Awarding ASHRAE 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/ Kenneth L. Steinthal
Kenneth L. Steinthal (admitted pro hac vice)
Joseph R. Wetzel (admitted pro hac vice)
KING & SPALDING, LLP
101 2nd Street, Suite 2300
San Francisco, CA 94105
[phone]
[e-mail]
[e-mail]
Jeffrey S. Bucholtz (D.C. Bar: 452385)
KING & SPALDING LLP
1700 Pennsylvania Avenue, NW, Suite 200
Washington, DC 20006
[phone]
[e-mail]

34