AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 1

COMPLAINT filed against PUBLIC.RESOURCE.ORG, INC. ( Filing fee $ 400 receipt number 0090-3725541) filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Corporate Disclosure Stmt, #4 Civil Cover Sheet, #5 Summons, #6 Report to Register of Copyrights)(Hudis, Jonathan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.
1430 K Street, NW
Suite 1200
Washington, DC 20005,
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC.
750 First Street NE
Washington, DC 20002-4242, and
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.
2424 American Lane
Madison, WI 53704,
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG, INC.
1005 Gravenstein Highway North
Sebastopol, CA 95472

Defendant.

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Civil Action No.
COMPLAINT FOR COPYRIGHT
INFRINGEMENT AND
CONTRIBUTORY COPYRIGHT
INFRINGEMENT

COMPLAINT
Plaintiffs, as and for their Complaint against Defendant, allege as follows:
1.

This is an action by three non-profit organizations: the American Educational

Research Association, Inc., the American Psychological Association, Inc., and the National
Council on Measurement in Education, Inc. (collectively, “Plaintiffs”), creators of the work
entitled “Standards for Educational and Psychological Testing” (the “Standards”). This action
seeks injunctive relief against Public.Resource.Org, Inc. for infringement and contributory
infringement of Plaintiffs’ copyright in the Standards.

THE PARTIES
2.

Plaintiff, American Educational Research Association, Inc. (“AERA”), is a

District of Columbia not-for-profit corporation whose main offices are located at 1430 K Street,
NW, Suite 1200, Washington, DC 20005.
3.

AERA is the major national scientific society for research on education and

learning. AERA’s mission is to advance knowledge about education, to encourage scholarly
inquiry related to education, and to promote the use of research to improve education and serve
the public good.
4.

Plaintiff, American Psychological Association, Inc. (“APA”), is a District of

Columbia not-for-profit corporation whose main offices are located at 750 First Street, NE,
Washington, DC 20002.
5.

APA is the largest scientific and professional organization representing

psychology in the United States. APA is the world's largest association of psychologists and
counts a vast number of researchers, educators, clinicians, consultants and students among its
members.

APA’s mission is to advance the creation, communication and application of

psychological knowledge to benefit society and improve people’s lives.
6.

Plaintiff, National Council on Measurement in Education, Inc. (“NCME”), is a

District of Columbia not-for-profit corporation whose main offices are located at 2424 American
Lane, Madison, WI 53704.
7.

NCME is a professional organization for individuals involved in assessment,

evaluation, testing, and other aspects of educational measurement. NCME’s members are
involved in the construction and use of standardized tests; new forms of assessment, including
performance-based assessment; program design; and program evaluation. NCME’s members

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include university faculty; test developers; state and federal testing and research directors;
professional evaluators; testing specialists in business, industry, education, community programs,
and other professions; licensure, certification, and credentialing professionals; graduate students
from educational, psychological, and other measurement programs; and others involved in
testing issues and practices.
8.

Upon information and belief, Defendant, Public.Resource.Org, Inc. (“Public

Resource”), is a California not-for-profit corporation having offices located at 1005 Gravenstein
Highway, North Sebastopol, CA 95472.
9.

According to its Articles of Incorporation, which can be found at

https://public.resource.org/public.resource.articles.html, the purpose of Public Resource is to
create, architect, design, implement, operate and maintain public works projects
on the Internet for EDUCATIONAL, CHARITABLE, AND SCIENTIFIC PURPOSES to the
benefit of the general public and the public interest; to increase and diffuse
knowledge about the Internet in its broadest sense; to promote and facilitate the
expansion, development, and growth of the public infrastructure of the Internet by
any means consistent with the public interest through other activities, including,
but not limited to, publications, meetings, conferences, training, educational
seminars, and the issuance of grants and other financial support to educational
institutions, foundations and other organizations exclusively for EDUCATIONAL,
CHARITABLE, AND SCIENTIFIC PURPOSES.
10.

Upon information and belief, Public Resource publishes on the Internet, and in

particular on the website https://law.resource.org, inter alia, state and municipal codes, public
safety codes, and technical standards.
11.

Upon information and belief, at least some of the codes and standards that Public

Resource publishes on the Internet, and in particular on the website https://law.resource.org, are
subject to U.S. copyright protection.
12.

Upon information and belief, Public Resource publishes these codes and

standards on the Internet, and in particular on the website https://law.resource.org, without
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obtaining the permission of the copyright owners of these works.
13.

AERA and APA, two of the three joint copyright owners of the Standards, are

located in Washington, DC.
14.

Public

Resource

has

designed

the

website

https://law.resource.org/pub/us/cfr/manifest.us.html to attract visitors from the District of
Columbia to copy, distribute to others, or incorporate into other works, Plaintiff’s Standards.
15.

Public Resource has designed the website https://law.resource.org/pub/us/code/dc/

to attract visitors from the District of Columbia by providing online copies of the District of
Columbia Code.
16.

On the website https://public.resource.org/about/index.html, Public Resource

solicits donations from the public to support Public Resource’s activities, via credit card or
through Public Resource’s PayPal account. Upon information and belief, Public Resource has
received donations to support its activities from Google, Yahoo!, the Electronic Frontier
Foundation, Creative Commons Corporation, Justia Inc., Fenwick & West LLP, Durie Tangri,
Davis Wright Tremaine LLP, iRights Law, Alston & Bird, the Elbaz Family Foundation, the
Cutts Foundation, the O'Reilly Foundation, the Beal Fund, the Sunlight Foundation, the Omidyar
Network, and others.
17.

Public Resource, through the website https://public.resource.org, solicits visitors

from the District of Columbia to submit financial donations to Public Resource.
18.

Public Resource, through the website https://public.resource.org/about.index.html,

allows visitors from the District of Columbia to e-mail Public Resource directly at the e-mail
address [e-mail].
19.

Upon information and belief, Public Resource has collaborated with organizations

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in Washington, DC to copy videos and upload them to YouTube.

National Technical

Information Service Library of Commerce, https://public.resource.org/ntis.gov/ (last visited Apr.
25, 2014); see also Kate Murphy, Catching Up With Carl Malamud, N.Y. TIMES, Jan. 26, 2013,
www.nytimes.com/2013/01/27/opinion/sunday/catching-up-with-carl-malamud.html.
20.

Upon information and belief, Public Resource, through its President and founder

Carl Malamud, has testified in Washington, DC before the Subcommittee on Courts, Intellectual
Property, and the Internet of the House Judiciary Committee regarding the scope of protection to
be afforded copyrighted works. An Edict of Government Amendment: Hearing on the Scope of
Copyright Protection Before the Subcomm. On Courts, Intellectual Property, and the Internet of
the H. Comm. on the Judiciary, 113th Cong. (2014) (statement of Carl Malamud, President,
Public.Resource.Org.).
21.

Upon information and belief, Public Resource, through its President and founder

Carl Malamud, has participated in conferences and given speeches in Washington, DC since at
least 2009. Peter Glaskowsky, Carl Malamud’s digital manifesto, CNET News, Sept. 16, 2009,
http://news.cnet.com/8301-13512_3-10354324-23.html;

Carl

Malamud,

gov

2.0

Expo,

www.gov2expo.com/gov2expo2010/public/schedule/speaker/1824 (last visited Apr. 25, 2014);
An Evening with Carl Malamud, Next Tuesday at ALA’s Washington DC HQ, Resource Shelf,
http://web.resourceshelf.com/go/resourceblog/58874 (last visited Apr. 25, 2014).
22.

Defendant has designed its website(s) to encourage visitors from the District of

Columbia to copy, to distribute to others in this District and/or to create derivative works based
on Plaintiffs’ Standards.
23.
mouse

Defendant also sells various items on the Internet, including Public.Resource.Org
pads,

stamps,

and

stickers,

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among

other

items.

See

http://www.zazzle.com/carlmalamud/gifts. This website is available to residents of the District
of Columbia, who may purchase Defendants’ merchandise when visiting the site.
JURISDICTION AND VENUE
24.

This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and

1338(a). This is a civil action arising under an Act of Congress relating to copyrights.
25.

Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391 and 1400(a). The

Claims plaintiffs allege in this Complaint arose, in substantial part, in the District of Columbia.
Defendant may be found in Washington, DC, and this Court has personal jurisdiction over
Defendant.

Defendant has directed its infringing activities to Washington, DC and, on

information and belief, materially contributed to the infringing activities of third parties in this
District.
26.

This Court has jurisdiction over Defendant, because, whether directly or through

an authorized agent, Defendant has been present in Washington, DC; transacted business in
Washington, DC; caused tortious injury by an act or omission in Washington, DC; and/or caused
tortious injury in Washington, DC by an act or omission outside Washington, DC. Defendant
also regularly does and/or solicits business; engages in other persistent courses of conduct;
and/or derives substantial revenue from goods used or consumed, or services rendered, in
Washington, DC.
FACTS
Creation of the Standards for Educational and Psychological Testing
27.

In 1954, Plaintiff APA prepared and published the “Technical Recommendations

for Psychological Tests and Diagnostic Techniques.” In 1955, Plaintiffs AERA and NCME
prepared and published a companion document entitled, “Technical Recommendations for

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Achievement Tests.” Subsequently, a joint committee of the three organizations modified,
revised and consolidated the two documents into the first Joint Standards. Beginning with the
1966 revision, the three organizations (AERA, APA and NCME – collectively, the “Plaintiffs”)
collaborated in developing the “Joint Standards” (or simply, the “Standards”). Each subsequent
revision of the Standards has been careful to cite the previous Standards and note that it is a
revision and update of that document.
28.

Beginning in the mid-1950s, Plaintiffs formed and periodically reconstituted a

committee of experts in psychological and educational assessment, charged with the initial
development of the Technical Recommendations and then each subsequent revision of the
(renamed) Standards. These committees were formed by the Plaintiffs’ Presidents (or their
designees), who would meet and jointly agree on the membership. Often a chair or co-chairs of
these committees were selected by joint agreement. Beginning with the 1966 version of the
Standards, this committee became referred to as the “Joint Committee.”
29.

Many different fields of endeavor rely on assessments. Plaintiffs have ensured

that the range of these fields of endeavor is represented in the Joint Committee’s membership –
e.g., admissions, achievement, clinical counseling, educational, licensing-credentialing,
employment, policy, and program evaluation.

Similarly, the Joint Committee’s members

represent expertise across major functional assessment areas – e.g., validity, equating, reliability,
test development, scoring, reporting, interpretation, large scale interpolation and cognitive
behavioral therapy.
30.

From the time of their initial creation to the present, the preparation and periodic

revisions to the Standards entail intensive labor and considerable cross-disciplinary expertise.
Each time the Standards are revised, Plaintiffs select and arrange for meetings of the leading

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authorities in psychological and educational assessments.

During these meetings, certain

Standards are combined, pared down and/or augmented, others are deleted altogether, and some
are created as whole new individual Standards. The most recent version of the Standards is
nearly 200 pages, and took several years to complete.
Why the Standards Were Created
31.

The Standards originally were created to improve professional practice in testing

and assessment. The Standards can be used to guide the sound and ethical use of tests, and also
to evaluate the quality of tests and testing practices.
32.

The Standards are intended to guide test developers and test users. Test user

Standards refer to those that help decide how to choose certain tests, interpret scores, or make
decisions based on tests results. Test users include clinical or industrial psychologists, research
directors, school psychologists, counselors, employment supervisors, teachers, and various
administrators who select or interpret tests for their organizations. The intended audience of the
Standards is broad and cuts across audiences with varying backgrounds and different training.
The Standards are not simply intended for members of the Plaintiffs that are the sponsoring
organizations of the Standards.
33.

An essential component of responsible professional practice is maintaining

technical competence.

Many professional associations also have developed standards and

principles of technical practice in assessment. The Standards have been widely cited to address
technical, professional, and operational norms for all forms of assessments that are professionally
developed and used in a variety of settings.
34.

The Standards are designed to apply to professional test developers, sponsors,

publishers, and users by providing criteria for the evaluation of tests, testing practices, and the

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effects of test use. The Standards have been used to develop testing guidelines for such activities
as college admissions, personnel selection, test translations, test user qualifications, and
computer-based testing.
35.

The Standards were not created in response to an expressed governmental or

regulatory need, nor were they prepared in response to any legislative action or judicial decision.
However, the Standards have been cited in judicial decisions related to the proper use and
evidence for assessment, as well as by state and federal legislators.
The Benefits that the Standards Bring to the Relevant Public and Constituencies
36.

The Standards’ primary purposes are to provide criteria for evaluating tests and

testing practices, and to encourage test developers, sponsors, publishers, and users to adopt the
Standards. There is no requirement for members of the professional associations or testing
organizations and users to do so. There is no mechanism to enforce compliance with the
Standards on the part of the test developer or test user. The Standards, moreover, do not attempt
to provide psychometric answers to policy or legal questions.
37.

On the other hand, the Standards apply broadly to a wide range of standardized

instruments and procedures that sample an individual’s behavior, including tests, assessments,
inventories, scales, and other testing vehicles. The Standards apply equally to standardized
multiple-choice tests, performance assessments (including tests comprised of only open-ended
essays), and hands-on assessments or simulations. The main exceptions are that the Standards do
not apply to unstandardized questionnaires (e.g., unstructured behavioral checklists or
observational forms), teacher-made tests, and subjective decision processes (e.g., a teacher’s
evaluation of students’ classroom participation over the course of a semester).

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Promotion and Distribution of the Standards,
and Income Earned by Plaintiffs from Sales of the Standards
38.

Plaintiffs promote and sell copies of the Standards via their websites, at annual

meetings, in public listings to students, and to educational institution faculty. Advertisements
promoting the Standards have appeared in meeting brochures, in scholarly journals, and in the
hallways at professional meetings.

None of the Plaintiff organizations has solicited any

government agency to incorporate the Standards into the Code of Federal Regulations or other
rules of Federal or State agencies.
39.

As the designated publisher of the Standards, AERA sometimes provides

promotional complementary print copies to students or professors. To date, the Standards have
never been posted by any of the three Plaintiffs, or with the permission of the three Plaintiffs, on
any publicly accessible website. All print copies of the Standards bear a copyright notice.
Except for a few complementary print copies, the Standards are not digitized or given away for
free; and certainly they are not made available to the public by any of the three organizations for
anyone to copy free of charge.
40.

The Standards are sold at retail prices ranging from $35.00 to $40.00 per copy.

Income generated from sales of the 1999 Standards, on average, has been approximately in
excess of $127,000 per year.
Plaintiffs’ Ownership of the Copyright in the Standards
41.

The Standards comprise an original work of authorship, entitled to protection

under the U.S. Copyright Act, 17 U.S.C. §§ 101, et seq.
42.

The Plaintiffs are joint owners of the copyright in and to the Standards.

43.

The Standards have been registered with the U.S. Register of Copyrights under

Registration Number TX 5-100-196, having an effective date of December 8, 1999. See Exhibit
10

A attached.
44.

A Supplementary copyright registration for the Standards has been issued by the

U.S. Register of Copyrights under Supplementary Registration Number TX 6-434-609, having
an effective date of February 25, 2014. See Exhibit B attached.
Defendant’s Copying, and Enabling Others to
Copy, the Standards without Plaintiffs’ Permission
45.

On

its

website,

https://law.resource.org/pub/us/cfr/ibr/001/aera.standards.1999.pdf, Defendant has published in
its entirety Plaintiffs’ 1999 Standards.
46.

Defendant

published

Plaintiffs’

1999

Standards

to

its

website,

https://law.resource.org/pub/us/cfr/ibr/001/aera.standards.1999.pdf, without the permission or
authorization of any of the Plaintiff organizations.
47.

In front of the unauthorized copy of the 1999 Standards that Defendant published

to its https://law.resource.org/pub/us/cfr/ibr/001/aera.standards.1999.pdf website, Defendant
placed a cover sheet or “Certificate,” falsely implying that the publication of Plaintiffs’
Standards to Defendants’ website was somehow authorized or sanctioned by U.S. law.
48.

Defendant’s activities have encouraged others to publish the Standards without

Plaintiffs’ permission or authorization. See, e.g., the posting of Plaintiffs’ 1999 Standards to the
Internet Archive at https://archive.org/details/gov.law.aera.standards.1999.

The posting of

Plaintiffs’ 1999 Standards to the Internet Archive is in the exact same format, and uses the same
cover sheet or “Certificate” employed by Defendant in its publication of the Plaintiffs’ Standards
to Defendant’s website.
49.

Plaintiff AERA requested in writing that Defendant remove the Standards from its

online postings. Defendant refused.
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FIRST CAUSE OF ACTION
(Copyright Infringement)
50.

Plaintiffs repeat and re-allege paragraphs 1 through 49 of the Complaint.

51.

Defendant’s activities – publishing Plaintiffs’ Standards to the Internet without

Plaintiffs’ permission or authorization – violate Plaintiffs’ exclusive rights under the U.S.
Copyright Act, 17 U.S.C. § 106.
52.

Defendant’s activities – publishing Plaintiffs’ Standards to the Internet without

Plaintiffs’ permission or authorization – constitute infringement of Plaintiffs’ copyright in the
Standards.
53.

Defendant has knowingly, willfully and deliberately infringed Plaintiffs’

copyright in the Standards, and continues to do so.
54.

Plaintiffs have suffered and continue to suffer damages as a result of Defendant’s

actions, in an amount to be proven at trial.
55.

During the period in which Defendant is infringing, Plaintiffs have no adequate

remedy at law for the injuries that continue to be inflicted by Defendant.
SECOND CAUSE OF ACTION
(Contributory Copyright Infringement)
56.

Plaintiffs repeat and re-allege paragraphs 1 through 55 of the Complaint.

57.

Upon information and belief, in addition to Defendant’s direct infringement of

Plaintiffs’ copyright in the Standards, other persons and/or entities have directly infringed
Plaintiffs’ copyright in the Standards.
58.

Upon information and belief, Defendant has known, and/or with the exercise of

reasonable diligence should have known, that other persons and/or entities have directly
infringed Plaintiffs’ copyright in the Standards.
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59.

Upon information and belief, Defendant has substantially participated in other

persons’ and/or entities’ direct infringement of Plaintiffs’ copyright in the Standards.
60.

Defendant has contributorily infringed Plaintiffs’ copyright in the Standards by

intentionally inducing and/or encouraging others to directly infringe upon same.
61.

Defendant has knowingly, willfully and deliberately contributorily infringed

Plaintiffs’ copyright in the Standards, and continues to do so.
62.

Plaintiffs have suffered and continue to suffer damages as a result of Defendant’s

actions, in an amount to be proven at trial.
63.

During the period in which Defendant’s activities continue, Plaintiffs have no

adequate remedy at law for the injuries continued to be inflicted by Defendant.
RELIEF REQUESTED
WHEREFORE, Plaintiffs, AERA, APA and NCME, request the following relief:
A.

Judgment in Plaintiffs’ favor and against Defendant;

B.

An injunction preliminarily and permanently enjoining and restraining Defendant,

including its officers, directors, agents, employees, representatives, and all persons acting in
concert with Defendant to (i) remove all infringing copies of Plaintiffs’ Standards from websites
and any other locations under Defendant’s dominion and control; (ii) cease providing any
members of the public with access to Plaintiffs’ Standards unless it is with Plaintiffs’ express
written authorization and permission; and (iii) cease engaging in further acts constituting
copyright infringement and/or contributory copyright infringement of Plaintiffs’ Standards,
pursuant to 17 U.S.C. § 502.
C.

The impoundment and (where applicable) destruction of (i) all infringing copies

of Plaintiffs’ Standards made or used by Defendant in violation of Plaintiffs’ copyright in the
13

Standards, (ii) all articles by means of which such infringing copies may be or have been
reproduced, and (iii) all records documenting the manufacture, sale, or receipt of things involved
in any such violation, provided that any records seized shall be taken into the custody of the
court, pursuant to 17 U.S.C. §§ 503(a) and (b).
D.

An award of Plaintiffs’ costs and attorneys’ fees, pursuant to 17 U.S.C. § 505.

E.

Such other and further relief as the Court may deem just and proper.
Respectfully submitted,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT,LLP
By:

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Kathleen Cooney-Porter (DC Bar # 434526)
1940 Duke Street
Alexandria, VA 22314
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
Attorneys for Plaintiffs
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC.
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.

JH:KCP:jh {10259179_1.DOCX}

Dated: May 23, 2014

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