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

Filing 91

Memorandum in opposition to re #86 Emergency MOTION for Order and Request for Expedited Briefing Schedule filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 [Public] Declaration of Andrew P. Bridges In Support of Public.Resource.Org, Inc.'s Opposition to Plaintiffs' Emergency Motion for Protective Order and Request for Expedited Briefing Schedule, #2 Exhibit 1 to Bridges Declaration, #3 Exhibit 2 to Bridges Declaration, #4 Exhibit 3 to Bridges Declaration, #5 Exhibit 4 to Bridges Declaration, #6 Exhibit 5 to Bridges Declaration, #7 Exhibit 6 to Bridges Declaration, #8 Exhibit 7 to Bridges Declaration, #9 Exhibit 8 to Bridges Declaration, #10 Exhibit 9 to Bridges Declaration, #11 Exhibit 10 to Bridges Declaration, #12 Exhibit 11 to Bridges Declaration, #13 Exhibit 12 to Bridges Declaration, #14 Exhibit 13 to Bridges Declaration, #15 Exhibit 14 to Bridges Declaration, #16 Exhibit 15 to Bridges Declaration, #17 Exhibit 16 to Bridges Declaration, #18 Text of Proposed Order Denying Plaintiffs' Emergency Motion for Protective Order and Request for Expedited Briefing Schedule)(Bridges, Andrew)

EXHIBIT 8

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a/ ASTM INTERNATIONAL;

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

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

DEFENDANT
PUBLIC.RESOURCE.ORG, INC.’S
NOTICE OF RULE 30(b)(6)
DEPOSITION OF AMERICAN
SOCIETY OF HEATING,
REFRIGERATING, AND AIRCONDITIONING ENGINEERS, INC.

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Plaintiffs,
v.

Complaint Filed:

PUBLIC.RESOURCE.ORG, INC.,
Defendant.
PUBLIC.RESOURCE.ORG, INC.,
Counterclaimant,
v.
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, INC.
Counterdefendants.

August 6, 2013

TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
Defendant Public.Resource.Org (“Public Resource”) gives notice that, pursuant to Rule 30
of the Federal Rules of Civil Procedure, it will take the deposition of AMERICAN SOCIETY OF
HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC. (“ASHRAE”)
upon oral examination before a court reporter authorized to administer oaths, beginning at 10:00
a.m. on December 3, 2014, or as counsel for the parties may otherwise agree, at the offices of
Veritext, 1250 I Street NW, Suite 1201, Washington DC 20005. Pursuant to Rule 30(b)(6) of the
Federal Rules of Civil Procedure, ASHRAE must designate one or more officers, directors, or
managing agents or other person to testify on its behalf regarding the topics in Exhibit A to this
notice. The deposition will be recorded by both stenographic and by audiovisual means with time
monitoring available on request.

1

Dated: November 14, 2014
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
abridges @fenwick.com
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
Corynne McSherry (admitted)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

2

EXHIBIT A
DEFINITIONS
1.

The following definitions shall apply to each of the topics. Terms without specific

definitions below shall have their ordinary and usual meanings.
2.

“Person” includes any individual, trust, estate, entity (including but not limited to

sole proprietorship, partnership, joint venture, company, or corporation), organization, association,
group, government, or governmental body (including but not limited to any governmental agent,
representative, agency, bureau, department, committee, or commission).
3.

“You,” “Your,” or “ASHRAE” means American Society of Heating, Refrigerating,

and Air-Conditioning Engineers, Inc., its predecessors, affiliates, officers, employees, agents,
attorneys, and any Person ASHRAE believes to be an agent of ASHRAE or was otherwise acting
on its behalf.
4.

“Public Resource” means Public.Resource.Org, Inc.

5.

The terms “Work-At-Issue” and “Works-At-Issue” mean any and all works in

which You assert copyright, which copyright You claim that Public Resource has infringed,
directly or indirectly.
6.

The term “Complete Chain of Title” includes, at a minimum: initial creation and

authorship of any component of a work, documents sufficient to identify the original creator(s)
and author(s) of the work and all assignments documenting transfer from the author(s) to
American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc., including all
intermediate transfers, as well as a copyright registration.
7.

The term “Standard” refers to any standard, code, safety code, model code, model

law, or set of rules, whether or not any jurisdiction has incorporated it into law.
8.

The term “Incorporated Standard” refers to any Standard that any jurisdiction has

incorporated into law, including incorporation by reference.

3

9.

“Concerning” or “regarding” means “pertaining to, referring to, relating to,

mentioning, or reflecting.”
10.

“Promoted” means advocated, encouraged, suggested, acquiesced in, accepted,

celebrated, praised, or publicized.
11.

“Access” means to view, read, study, analyze, evaluate, or compare.

12.

“Legal Authority” means any governmental edict, rule, regulation, law, or other

binding authority or expression.
13.

“Standards Process” means development, creation, drafting, revision, editing,

transmission, publication, distribution, display, or dissemination of a Standard.
14.

The terms “or” and “and” mean both the conjunctive and the disjunctive.

15.

The terms “any” or “each” include and encompass “all.”

16.

The use of a verb in any tense includes the use of the verb in all other tenses.

17.

The singular form of any word includes the plural. The plural form of any word

includes the singular.
18.

The term “all” means any and all.
TOPICS OF EXAMINATION

1.

The process and activities of developing the Works-At-Issue, including the

participation of government and private sector personnel in standards development.
2.

All elements of the Chain of Title of copyright ownership, including copyright

authorship and ownership of component parts of the Works-At-Issue in this case.
3.

The authority of persons executing copyright assignment forms in favor of You to

convey the copyright rights in their works or expression, including but not limited to evidence of
authority of employees to assign copyrights they do not own individually.
4.

The availability of Standards that You claim to own for reading, study,

commentary, evaluation, criticism, annotation, and comparison to other Standards and documents
by the public.

4

5.

The terms (including but not limited to financial terms, other requirements,

conditions, restrictions, limitations, exclusions, and exceptions) of access to the Standards that
You claim to own for reading, study, research, commentary, evaluation, criticism, bookmarking,
other annotation, reproduction, personal use, place shifting, space shifting, data mining, and
comparison to other versions, Standards, and documents, by the public.
6.

Communications between any one or more Plaintiffs, or of American National

Standards Institute, on the one hand, and governments, government agencies, government officials
(including elected officials), and government employees, on the other hand, regarding the benefits,
creation, revision, editing, approval (whether by vote or consensus), dissemination or distribution,
public availability, use, or incorporation into laws or regulations of the Works-At-Issue in this
case.
7.

All revenue You received from governments and government agencies in

connection with the Standards, including but not limited to the sale or licensing of Standards.
8.

Your sources of revenue, the proportion of revenue received from each source, and

changes in revenue sources over the relevant time period.
9.

Your sources and types of revenue other than the sale of copies of or access to the

Works-At-Issue.
10.

Your receipt of grants, funding, other financial Contribution, or in-kind

Contribution for work pertaining to Standards from any government agency, other entity, or
person, whether directly or indirectly through another organization.
11.

Your efforts to influence the procedures and requirements imposed by federal and

state governments or their officers, agencies, or subdivisions, including but not limited to the
Office of Management and Budget, the Office of the Federal Register, and state code commissions
for the incorporation of standards by reference into law or regulation.
12.

Your awareness of any consumer confusion, mistake, or deception caused by

Public Resource’s posting of the Works-At-Issue or by the appearance of the Works-At-Issue that
Public Resource has posted.

5

13.

Sales of each Work-At-Issue and of each predecessor to each Work-At-Issue, by

unit volume and by dollar volume, for each month or quarter since 2010.
14.

All harms (financial and otherwise) to You arising from the facts that You have

alleged in the complaint and from any other acts, omissions, or operations of Public Resource.
15.

All changes to the standards development processes or activities that You have

made because of the activities of Public Resource at issue in this case.
16.

The original creative expression in each of the Works-At-Issue.

17.

The creativity pertaining to the expressions in the Works-At-Issue in this case.

18.

All communications with any person or entity regarding lost sales or lost licenses,

or regarding an intention not to buy or license, with respect to the Works-At-Issue attributable to
the activities of Public Resource at issue in this case.
19.

Your nonprivileged communications about any litigation or potential litigation

against Public Resource, or Plaintiffs’ policies and practices for responding to copyright
infringement, including but not limited to communications by those persons concerning positions
taken by some or all Plaintiffs in this case.
20.

Your communications with federal, state, or local government agencies and

legislatures, including but not limited to the Department of Energy, the Consumer Product Safety
Commission, the Department of Housing and Urban Development, the Department of
Transportation (including the Pipeline and Hazardous Materials Safety Administration), state code
commissions, and state energy boards, regarding the incorporation of Your standards into law or
regulation.
21.

Your communications with state government officials regarding state energy

standards.

22.

Your competition with the International Code Council regarding the adoption of

energy standards by government agencies.

6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a/ ASTM INTERNATIONAL;

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

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

DEFENDANT
PUBLIC.RESOURCE.ORG, INC.’S
NOTICE OF RULE 30(B)(6)
DEPOSITION OF AMERICAN
SOCIETY FOR TESTING AND
MATERIALS

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Plaintiffs,

Complaint Filed:

v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant.
PUBLIC.RESOURCE.ORG, INC.,
Counterclaimant,
v.
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, INC.
Counterdefendants.

August 6, 2013

TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
Defendant Public.Resource.Org (“Public Resource”) gives notice that, pursuant to Rule 30
of the Federal Rules of Civil Procedure, it will take the deposition of AMERICAN SOCIETY
FOR TESTING AND MATERIALS d/b/a ASTM INTERNATIONAL (“ASTM”) upon oral
examination before a court reporter authorized to administer oaths, beginning at 10:00 a.m. on
December 5, 2014, or as counsel for the parties may otherwise agree, at the offices of Veritext,
1250 I Street NW, Suite 1201, Washington DC 20005. Pursuant to Rule 30(b)(6) of the Federal
Rules of Civil Procedure, ASTM must designate one or more officers, directors, or managing
agents or other person to testify on its behalf regarding the topics in Exhibit A to this notice. The
deposition will be recorded by both stenographic and by audiovisual means with real time
monitoring available on request.

1
B9620/00403/SF/5497309.4

Dated: November 14, 2014
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
abridges @fenwick.com
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
Corynne McSherry (admitted)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

2

EXHIBIT A
DEFINITIONS
1.

The following definitions shall apply to each of the topics. Terms without specific

definitions below shall have their ordinary and usual meanings.
2.

“Person” includes any individual, trust, estate, entity (including but not limited to

sole proprietorship, partnership, joint venture, company, or corporation), organization, association,
group, government, or governmental body (including but not limited to any governmental agent,
representative, agency, bureau, department, committee, or commission).
3.

“You,” “Your,” or “ASTM” means American Society for Testing and Materials,

its predecessors, affiliates, officers, employees, agents, attorneys, and any Person ASTM believes
to be an agent of ASTM or was otherwise acting on its behalf.
4.

“Public Resource” means Public.Resource.org, Inc.

5.

The terms “Work-At-Issue” and “Works-At-Issue” mean any and all works in

which You assert copyright, which copyright You claim that Public Resource has infringed,
directly or indirectly.
6.

The term “Complete Chain of Title” includes, at a minimum: initial creation and

authorship of any component of a work, documents sufficient to identify the original creator(s)
and author(s) of the work and all assignments documenting transfer from the author(s) to
American Society for Testing and Materials, including all intermediate transfers, as well as a
copyright registration.
7.

The term “Standard” refers to any standard, code, safety code, model code, model

law, or set of rules, whether or not any jurisdiction has incorporated it into law.
8.

The term “Incorporated Standard” refers to any Standard that any jurisdiction has

incorporated into law, including incorporation by reference.
9.

“Concerning” or “regarding” means “pertaining to, referring to, relating to,

mentioning, or reflecting.”

3

10.

“Promoted” means advocated, encouraged, suggested, acquiesced in, accepted,

celebrated, praised, or publicized.
11.

“Access” means to view, read, study, analyze, evaluate, or compare.

12.

“Legal Authority” means any governmental edict, rule, regulation, law, or other

binding authority or expression.
13.

“Standards Process” means development, creation, drafting, revision, editing,

transmission, publication, distribution, display, or dissemination of a Standard.
14.

“Contribution” means assistance, advice, financial support, labor, effort, or

expenditure of time.
15.

The terms “or” and “and” mean both the conjunctive and the disjunctive.

16.

The terms “any” or “each” include and encompass “all.”

17.

The use of a verb in any tense includes the use of the verb in all other tenses.

18.

The singular form of any word includes the plural. The plural form of any word

includes the singular.
19.

The term “all” means any and all.
TOPICS OF EXAMINATION

1.

The process and activities of developing the Works-At-Issue, including the

participation of government and private sector personnel in standards development.
2.

All elements of the Chain of Title of copyright ownership, including copyright

authorship and ownership of component parts of the Works-At-Issue in this case.
3.

The authority of persons executing copyright assignment forms in favor of You to

convey the copyright rights in their works or expression, including but not limited to evidence of
authority of employees to assign copyrights they do not own individually.
4.

The availability of Standards that You claim to own for reading, study,

commentary, evaluation, criticism, annotation, and comparison to other Standards and documents
by the public.
4

5.

The terms (including but not limited to financial terms, other requirements,

conditions, restrictions, limitations, exclusions, and exceptions) of access to the Standards that
You claim to own for reading, study, research, commentary, evaluation, criticism, bookmarking,
other annotation, reproduction, personal use, place shifting, space shifting, data mining, and
comparison to other versions, Standards, and documents, by the public.
6.

Communications between any one or more Plaintiffs, or of American National

Standards Institute, on the one hand, and governments, government agencies, government officials
(including elected officials), and government employees, on the other hand, regarding the benefits,
creation, revision, editing, approval (whether by vote or consensus), dissemination or distribution,
public availability, use, or incorporation into laws or regulations of the Works-At-Issue in this
case.
7.

All revenue You received from governments and government agencies in

connection with the Standards, including but not limited to the sale or licensing of Standards.
8.

Your sources of revenue, the proportion of revenue received from each source, and

changes in revenue sources over the relevant time period.
9.

Your sources and types of revenue other than the sale of copies of or access to the

Works-At-Issue.
10.

Your receipt of grants, funding, other financial Contribution, or in-kind

Contribution for work pertaining to Standards from any government agency, other entity, or
person, whether directly or indirectly through another organization.
11.

Your efforts to influence the procedures and requirements imposed by federal and

state governments or their officers, agencies, or subdivisions, including but not limited to the
Office of Management and Budget, the Office of the Federal Register, and state code commissions
for the incorporation of standards by reference into law or regulation.
12.

Your awareness of any consumer confusion, mistake, or deception caused by

Public Resource’s posting of the Works-At-Issue or by the appearance of the Works-At-Issue that
Public Resource has posted.
5

13.

Sales of each Work-At-Issue and of each predecessor to each Work-At-Issue, by

unit volume and by dollar volume, for each month or quarter since 2010.
14.

All harms (financial and otherwise) to You arising from the facts that You have

alleged in the complaint and from any other acts, omissions, or operations of Public Resource.
15.

All changes to the standards development processes or activities that You have

made because of the activities of Public Resource at issue in this case.
16.

The original creative expression in each of the Works-At-Issue.

17.

The creativity pertaining to the expressions in the Works-At-Issue in this case.

18.

All communications with any person or entity regarding lost sales or lost licenses,

or regarding an intention not to buy or license, with respect to the Works-At-Issue attributable to
the activities of Public Resource at issue in this case.
19.

Your nonprivileged communications about any litigation or potential litigation

against Public Resource, or Plaintiffs’ policies and practices for responding to copyright
infringement, including but not limited to communications by those persons concerning positions
taken by some or all Plaintiffs in this case.

20.

Your communications with federal, state, or local government agencies and

legislatures, including but not limited to the Department of Agriculture (including the Rural Utility
Service), Department of Energy, Department of Health and Human Services (including the Food
and Drug Administration), Department of Housing and Urban Development, Department of
Homeland Security (including the U.S. Coast Guard), Department of Labor (including the
Occupational Safety and Health Administration, the Mine Safety and Health Administration), the
Environmental Protection Administration, Department of Transportation (including the National
Highway Transportation Safety Administration, the Federal Railroad Administration, the Pipeline
and Hazardous Materials Safety Administration), the Consumer Product Safety Commission, the
National Institute of Standards and Technology, state code commissions, state occupational safety
agencies, municipal code commissions, and permit agencies regarding the incorporation of
Standards into law or regulation.
6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a/ ASTM INTERNATIONAL;

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

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

DEFENDANT
PUBLIC.RESOURCE.ORG, INC.’S
NOTICE OF RULE 30(b)(6)
DEPOSITION OF NATIONAL FIRE
PROTECTION ASSOCIATION, INC.

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant.
PUBLIC.RESOURCE.ORG, INC.,
Counterclaimant,
v.
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, INC.
Counterdefendants.

Complaint Filed:

August 6, 2013

TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
Defendant Public.Resource.Org (“Public Resource”) gives notice that, pursuant to Rule 30
of the Federal Rules of Civil Procedure, it will take the deposition of NATIONAL FIRE
PROTECTION ASSOCIATION, INC. (“NFPA”) upon oral examination before a court reporter
authorized to administer oaths, beginning at 10:00 a.m. on December 4, 2014, or as counsel for the
parties may otherwise agree, at the offices of Veritext, 1250 I Street NW, Suite 1201, Washington
DC 20005. Pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, NFPA must
designate one or more officers, directors, or managing agents or other person to testify on its
behalf regarding the topics in Exhibit A to this notice. The deposition will be recorded by both
stenographic and by audiovisual means with real time monitoring available on request.

1

Dated: November 14, 2014
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
abridges @fenwick.com
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
Corynne McSherry (admitted)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

2

EXHIBIT A
DEFINITIONS
1.

The following definitions shall apply to each of the topics. Terms without specific

definitions shall have their ordinary and usual meanings.
2.

“Person” includes any individual, trust, estate, entity (including but not limited to

sole proprietorship, partnership, joint venture, company, or corporation), organization, association,
group, government, or governmental body (including but not limited to any governmental agent,
representative, agency, bureau, department, committee, or commission).
3.

“You,” “Your,” or “NFPA” means National Fire Protection, Association, Inc., its

predecessors, affiliates, officers, employees, agents, attorneys, and any Person NFPA believes to
be an agent of NFPA or was otherwise acting on its behalf.
4.

“Public Resource” means Public.Resource.org, Inc.

5.

The terms “Work-At-Issue” and “Works-At-Issue” mean any and all works in

which You assert copyright, which copyright You claim that Public Resource has infringed,
directly or indirectly.
6.

The term “Complete Chain of Title” includes, at a minimum: initial creation and

authorship of any component of a work, documents sufficient to identify the original creator(s)
and author(s) of the work and all assignments documenting transfer from the author(s) to National
Fire Protection Association, Inc., including all intermediate transfers, as well as a copyright
registration.
7.

The term “Standard” refers to any standard, code, safety code, model code, model

law, or set of rules, whether or not any jurisdiction has incorporated it into law.
8.

The term “Incorporated Standard” refers to any Standard that any jurisdiction has

incorporated into law, including incorporation by reference.
9.

“Concerning” or “regarding” means “pertaining to, referring to, relating to,

mentioning, or reflecting.”
10.

“Promoted” means advocated, encouraged, suggested, acquiesced in, accepted,

3

celebrated, praised, or publicized.
11.

“Access” means to view, read, study, analyze, evaluate, or compare.

12.

“Legal Authority” means any governmental edict, rule, regulation, law, or other

binding authority or expression.
13.

“Standards Process” means development, creation, drafting, revision, editing,

transmission, publication, distribution, display, or dissemination of a Standard.
14.

“Contribution” means assistance, advice, financial support, labor, effort, or

expenditure of time.
15.

The terms “or” and “and” mean both the conjunctive and the disjunctive.

16.

The terms “any” or “each” include and encompass “all.”

17.

The use of a verb in any tense includes the use of the verb in all other tenses.

18.

The singular form of any word includes the plural. The plural form of any word

includes the singular.
19.

The term “all” means any and all.
TOPICS OF EXAMINATION

1.

The process and activities of developing the Works-At-Issue, including the

participation of government and private sector personnel in standards development.
2.

All elements of the Chain of Title of copyright ownership, including copyright

authorship and ownership of component parts, of the Works-At-Issue in this case.
3.

The authority of persons executing copyright assignment forms in favor of You to

convey the copyright rights in their works or expression, including but not limited to evidence of
authority of employees to assign copyrights they do not own individually.
4.

The availability of Standards that You claim to own for reading, study,

commentary, evaluation, criticism, annotation, and comparison to other Standards and documents
by the public.
5.

The terms (including but not limited to financial terms, other requirements,

conditions, restrictions, limitations, exclusions, and exceptions) of access to the Standards that

4

You claim to own for reading, study, research, commentary, evaluation, criticism, bookmarking,
other annotation, reproduction, personal use, place shifting, space shifting, data mining, and
comparison to other versions, Standards, and documents, by the public.
6.

Communications between any one or more Plaintiffs, or of American National

Standards Institute, on the one hand, and governments, government agencies, government officials
(including elected officials), and government employees, on the other hand, regarding the benefits,
creation, revision, editing, approval (whether by vote or consensus), dissemination or distribution,
public availability, use, or incorporation into laws or regulations of the Works-At-Issue in this
case.
7.

All revenue You received from governments and government agencies in

connection with the Standards, including but not limited to the sale or licensing of Standards.
8.

Your sources of revenue, the proportion of revenue received from each source, and

changes in revenue sources over the relevant time period.
9.

Your sources and types of revenue other than the sale of copies of or access to the

Works-At-Issue.
10.

Your receipt of grants, funding, other financial Contribution, or in-kind

Contribution for work pertaining to Standards from any government agency, other entity, or
person, whether directly or indirectly through another organization.
11.

Your efforts to influence the procedures and requirements imposed by federal and

state governments or their officers, agencies, or subdivisions, including but not limited to the
Office of Management and Budget, the Office of the Federal Register, and state code commissions
for the incorporation of standards by reference into law or regulation.
12.

Your awareness of any consumer confusion, mistake, or deception caused by

Public Resource’s posting of the Works-At-Issue or by the appearance of the Works-At-Issue that
Public Resource has posted.
13.

Sales of each Work-At-Issue and of each predecessor to each Work-At-Issue, by

unit volume and by dollar volume, for each month or quarter since 2010.

5

14.

All harms (financial and otherwise) to You arising from the facts that You have

alleged in the complaint and from any other acts, omissions, or operations of Public Resource.
15.

All changes to the standards development processes or activities that You have

made because of the activities of Public Resource at issue in this case.
16.

The original creative expression in each of the Works-At-Issue.

17.

The creativity pertaining to the expressions in the Works-At-Issue in this case.

18.

All communications with any person or entity regarding lost sales or lost licenses,

or regarding an intention not to buy or license, with respect to the Works-At-Issue attributable to
the activities of Public Resource at issue in this case.
19.

Your nonprivileged communications about any litigation or potential litigation

against Public Resource, or Plaintiffs’ policies and practices for responding to copyright
infringement, including but not limited to communications by those persons concerning positions
taken by some or all Plaintiffs in this case.
20.

Your communications with federal, state, or local government agencies and

legislatures, including but not limited to the National Institute of Standards and Technology,
Department of Agriculture (including the Rural Utility Service), Department of Homeland
Security (including US Coast Guard), Department of Energy, Nuclear Regulatory Commission,
Consumer Product Safety Commission, Department of Housing and Urban Development,
Department of Labor (including the Occupational Safety and Health Administration, the Mine
Safety and Health Administration), National Archives and Records Administration, Veterans
Administration, Environmental Protection Administration, Department of Health and Human
Services, Department of Transportation (including the Pipeline and Hazardous Materials Safety
Administration), state code commissions, state fire marshals, municipal and county fire
departments, state building commissions, state fire commissions, and state departments of labor,
regarding the incorporation of Standards into law or regulation.
21.

Your competition with the International Code Council regarding the adoption of

energy standards by government agencies.

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