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

Filing 103

Unopposed MOTION for Leave to File Corrected Documents by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Text of Proposed Order Granting Defendant's Unopposed Motion for Leave to File Corrected Documents, #2 Exhibit 1 [Redacted Version] of Memorandum of Points and Authorities In Support of Defendant Public Resource's Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction, #3 Exhibit 2 [Redacted Version] of Statement of Material Facts In Support of Defendant Public Resource's Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction, #4 Exhibit 3 [Redacted Version] of Statement of Disputed Facts In Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction, #5 Exhibit 4 Table of Corrections)(Becker, Matthew)

EXHIBIT 1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC., and
NATIONAL COUNCIL ON MEASUREMENT IN
EDUCATION, INC.,
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG,
Defendant.

Case No. 1:14-CV-00857-TSC-DAR
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG’S MOTION
FOR SUMMARY JUDGMENT AND
OPPOSITION TO PLAINTIFFS’
MOTION FOR SUMMARY
JUDGMENT AND PERMANENT
INJUNCTION
Action Filed: May 23, 2014

[REDACTED VERSION]

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
FACTUAL BACKGROUND ..........................................................................................................3
A.

Public Resource Is A Non-Profit Committed to Educating the Public
About the Law..........................................................................................................3

B.

Volunteers from Many Sectors Authored the Plaintiffs’ 1999
Standards, But Plaintiffs Claim Copyright Ownership Because of
Their Facilitating Role. ............................................................................................3

C.

The Federal Government Has Incorporated by Reference the 1999
Standards Into Law. .................................................................................................5

D.

Public Resource Began Making Standards Incorporated by Reference
Freely Available Online In Accessible Formats. .....................................................8

E.

Plaintiffs Removed the 1999 Standards From Sale and Are Unaffected
By the Availability of the Incorporated Standards Appearing Freely
On Public Resource’s Website.................................................................................9

ARGUMENT .................................................................................................................................10
I.

SUMMARY JUDGMENT STANDARD..........................................................................10

II.

PLAINTIFFS CANNOT HOLD A STATUTORY MONOPOLY OVER THE
LAW. .................................................................................................................................11
A.

The Law Is Not Subject to Copyright. ...................................................................11
1.

2.

The Plain Text of the Copyright Act Reinforces this
Understanding. ...........................................................................................12

3.
B.

An unbroken line of case law holds that the law is excluded
from copyright, and the Copyright Office recognizes that
exclusion. ...................................................................................................11

A Statutory Monopoly In the Law Would Conflict with
Fundamental Constitutional Protections. ...................................................13

Incorporated Standards Are Laws and Cannot be Subject to a Statutory
Monopoly. ..............................................................................................................15
1.

The leading cases recognize that standards development
organizations cannot restrict access to the law. .........................................15
i

TABLE OF CONTENTS
(Continued)
Page
2.

Incorporated Standards, As Law, Are Also Uncopyrightable
Facts, Ideas, Principles, Systems, Processes, and Procedures. ..................18

3.

No court has ever found that government edicts are
copyrightable..............................................................................................19

C.

Plaintiffs Have Actively Encouraged Transformation of Their
Standards Into Law and Cannot Now Complain of a “Taking.” ...........................22

D.

Public Policy Favors Promoting Public Access to the Law. ..................................24
1.
2.

E.
III.

Plaintiffs do not make the law reasonably accessible. ...............................24
The Plaintiffs do not need a copyright statutory monopoly and
copyright incentives in order to develop standards....................................26

Plaintiffs Misinterpret the Copyright Act. .............................................................30

EVEN BEFORE INCORPORATION, THE STANDARDS ARE PRIMARILY
UNCOPYRIGHTABLE SYSTEMS, DISCOVERIES, PROCESSES,
PROCEDURES, AND SCÈNES À FAIRE. .......................................................................31
A.
B.

IV.

The 1999 Standards Are Procedures, Systems, and Principles..............................32
The Incorporated Standards Are Scènes à Faire. ..................................................34

PUBLIC RESOURCE’S POSTING IS A LAWFUL FAIR USE. ....................................35
A.

Public Resource’s Posting of the Legally Binding 1999 Standards Is
Transformative, Is Noncommercial, and Is for Beneficial Public
Purposes. ................................................................................................................35
1.

Expanding access to the law is a transformative purpose. .........................36

2.

Providing new information about the law by enabling softwarebased analysis is a transformative and publicly beneficial
purpose. ......................................................................................................38

3.

Providing access for people with print disabilities is a legally
favored fair use purpose. ............................................................................40

4.

Public Resource’s use of the 1999 Standards is noncommercial. ................................................................................................42

ii

TABLE OF CONTENTS
(Continued)
Page
B.

The 1999 Standards Are a Factual Document. ......................................................42

C.

Public Resource Uses No More of the Standards than Necessary. ........................43

D.

Public Resource’s Use of the 1999 Standards Has Not Caused, and
Will Not Cause, Harm in Any Relevant Market. ...................................................44
1.
2.

Only the 1999 Standards are relevant to the fair use inquiry;
Public Resource has not posted the 2014 edition and will not
do so unless it becomes law. ......................................................................46

3.
V.

Plaintiffs themselves have shut down the market for the
1999 Standards. ..........................................................................................45

There is no proper market for the exclusive right to control
access to, and dissemination of, the law. ...................................................47

PUBLIC RESOURCE IS NOT SECONDARILY LIABLE FOR COPYRIGHT
INFRINGEMENT..............................................................................................................49
A.
B.

VI.

Plaintiffs Cannot Prove Direct Infringement by Third Parties. .............................50
Plaintiffs Cannot Establish Intent to Infringe or Even Knowledge of
Any Infringement. ..................................................................................................52

DEFENDANTS HAVE NOT JUSTIFIED, AND CANNOT JUSTIFY, A
PERMANENT INJUNCTION. .........................................................................................55
A.

Plaintiffs Have Experienced No Irreparable Injury to Any Valid Legal
Interest....................................................................................................................55
1.

Plaintiffs have no competent evidence of future harm. .............................56

2.

“Loss of control” without actual business injury does not
authorize an injunction. ..............................................................................57

A.

An Injunction Would Harm Public Resource’s Ability to Serve the
Public Interest. .......................................................................................................57

C.

The Public Interest Favors Access to Laws, Edicts, and Records of
Government............................................................................................................57

CONCLUSION ..............................................................................................................................59

iii

TABLE OF AUTHORITIES
Page(s)
CASES 
*A.V. ex rel. Vanderhye v. iParadigms, LLC,
562 F.3d 630 (4th Cir. 2009) .......................................................................................36, 38, 40
Am. Inst. of Physics v. Schwegman, Lundberg & Woessner, P.A.,
No. 12-528, 2013 WL 4666330 (D. Minn. Aug. 30, 2013) .....................................................37
Am. Inst. of Physics v. Winstead PC,
No. 3:12-CV-1230-M, 2013 WL 6242843 (N.D. Tex. Dec. 3, 2013) .....................................37
Amoco Prod. Co. v. Vill. of Gambell, AK,
480 U.S. 531 (1987) .................................................................................................................55
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) .................................................................................................................10
Apple, Inc. v. Samsung Electronics Co.,
678 F.3d 1314 (Fed. Cir. 2012)................................................................................................55
ATC Distrib. Grp., Inc. v. Whatever It Takes Transmission & Parts, Inc.,
402 F.3d 700 (6th Cir. 2005) ...................................................................................................34
*Authors Guild, Inc. v. HathiTrust,
755 F.3d 87 (2d Cir. 2014)...........................................................................................38, 40, 41
*Authors Guild v. Google, Inc.,
804 F.3d 202 (2d Cir. 2015)...................................................................................36, 38, 43, 44
Banks v. Manchester,
128 U.S. 244 (1888) ...........................................................................................................11, 12
Bateman v. Mnemonics, Inc.,
79 F.3d 1532 (11th Cir. 1996) .................................................................................................35
BellSouth Advert. & Publ’g Corp. v. Donnelley Info. Publ’g, Inc,
999 F.2d 1436 (11th Cir. 1993) ...............................................................................................34
*Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC,
803 F.3d 1032 (9th Cir. 2015) .................................................................................................33
*Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006).....................................................................................................38

iv

TABLE OF AUTHORITIES
(Continued)
Page(s)
Blanch v. Koons,
467 F.3d 244 (2d Cir. 2006)...............................................................................................45, 46
Bond v. Blum,
317 F.3d 385 (4th Cir. 2003) ...................................................................................................37
*Building Officials & Code Administrators v. Code Technology, Inc.,
628 F.2d 730 (1st Cir. 1980) ....................................................................................................16
*Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ......................................................................................................... passim
Cartoon Network LP v. CSC Holdings, Inc.,
536 F.3d 121 (2d Cir. 2008)...............................................................................................51, 52
CCC Information Services Inc. v. McLean Hunter Market Reports, Inc.,
44 F.3d 61 (2d Cir. 1994) ..................................................................................................19, 20
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .................................................................................................................10
Computer Assocs. Int’l, Inc. v. Altai, Inc.,
982 F.2d 693 (2d Cir. 1992).....................................................................................................34
Concrete Mach. Co. v. Classic Lawn Ornaments, Inc.,
843 F.2d 600 (1st Cir. 1988) ....................................................................................................18
Connecticut v. Massachusetts,
282 U.S. 660 (1931) .................................................................................................................57
*Consumers Union of U.S., Inc. v. Gen. Signal Corp.,
724 F.2d 1044 (2d Cir. 1983).......................................................................................42, 43, 46
Costar Grp. Inc. v. Loopnet, Inc.,
164 F. Supp. 2d 688 (D. Md. 2001) aff’d, 373 F.3d 544 (4th Cir. 2004) ................................53
*eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388 (2006) .....................................................................................................55, 57, 58
*Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991) .................................................................................................................32
Field v. Google Inc.,
412 F. Supp. 2d 1106 (D. Nev. 2006) ......................................................................................46
v

TABLE OF AUTHORITIES
(Continued)
Page(s)
Fox News Network, LLC v. TVEyes, Inc.,
43 F. Supp. 3d 379, 395 (S.D.N.Y. 2014)................................................................................44
Fox v. Washington,
236 U.S. 273 (1915) .................................................................................................................15
Garcia v. Google, Inc.,
786 F.3d 733 (9th Cir. 2015) (en banc) ...................................................................................49
Globe Newspaper Co. v. Superior Court for Norfolk Cty.,
457 U.S. 596 (1982) .................................................................................................................14
Golan v. Holder,
132 S. Ct. 873 (2012) ...............................................................................................................13
Grayned v. City of Rockford,
408 U.S. 104 (1972) .................................................................................................................15
Greene v. Dalton,
164 F.3d 671 (D.C. Cir. 1999) .....................................................................................10, 26, 28
Harding v. Gray,
9 F.3d 150 (D.C. Cir. 1993) .....................................................................................................10
Harper & Row Publ’rs., Inc. v. Nation Enters.,
471 U.S. 539 (1985) .................................................................................................................42
Healthcare Advocates Inc. v. Harding, Earley, Follmer & Frailey,
497 F. Supp. 2d 627 (E.D. Pa. 2007) .......................................................................................37
*Howell v. Miller,
91 F. 129 (6th Cir. 1898) (Harlan, J.) ......................................................................................12
Katz v. Google Inc.,
802 F.3d 1178 (11th Cir. 2015) .........................................................................................45, 49
*Kern River Gas Transmission Co. v. Coastal Corp.,
899 F.2d 1458 (5th Cir. 1990), cert. denied, 498 U.S. 952 (1990) ....................................18, 19
Lenz v. Universal Music Corp,
801 F.3d 1126 (9th Cir. 2015) .................................................................................................35
*Lexmark Int’l, Inc. v. Static Control Components, Inc.,
387 F.3d 522 (6th Cir. 2004) .................................................................................34, 37, 38, 43
vi

TABLE OF AUTHORITIES
(Continued)
Page(s)
Mattel, Inc. v. Walking Mountain Prods.,
353 F.3d 792 (9th Cir. 2003) ...................................................................................................46
*Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913 (2005) ...............................................................................................49, 50, 52, 53
Mills v. Alabama,
384 U.S. 214 (1966) .................................................................................................................14
Musser v. Utah,
333 U.S. 95 (1948) ...................................................................................................................14
Newborn v. Yahoo!, Inc.,
391 F. Supp. 2d 181 (D.D.C. 2005) ...................................................................................49, 54
Newport-Mesa Unified Sch. Dist. v. California Dep’t of Educ.,
371 F. Supp. 2d 1170 (C.D. Cal. 2005) ...................................................................................41
Nieman v. VersusLaw, Inc.,
512 Fed. App’x. 635, 2013 WL 1150277 (7th Cir. Mar. 19, 2013).........................................14
Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc.,
166 F.3d 65 (2d Cir. 1999).......................................................................................................32
Nuñez v. Caribbean Int’l News Corp.,
235 F.3d 18 (1st Cir. 2000) ................................................................................................44, 47
Nuzzo v. FBI,
No. 95–cv–1708, 1996 WL 741587 (D.D.C. Oct. 8, 1996) .....................................................11
O’Shea v. Littleton,
414 U.S. 488 (1974) .................................................................................................................55
*Online Policy Grp. v. Diebold, Inc.,
337 F. Supp. 2d 1195 (N.D. Cal. 2004) .................................................................38, 45, 47, 48
*Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) ......................................................................................... passim
Practice Management Information Corp. v. American Medical Ass’n,
121 F.3d 516 (9th Cir. 1997) .......................................................................................19, 20, 21
Pub. Warehousing Co. K.S.C. v. Def. Supply Ctr. Phila.,
489 F. Supp. 2d 30 (D.D.C. 2007) ...........................................................................................55
vii

TABLE OF AUTHORITIES
(Continued)
Page(s)
R.W. Beck v. E3 Consulting,
577 F.3d 1133 (10th Cir. 2009) ...............................................................................................13
Rains v. Cascade Indus., Inc.,
402 F.2d 241 (3d Cir. 1968).....................................................................................................11
Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc.,
907 F. Supp. 1361 (N.D. Cal. 1995) ........................................................................................53
Righthaven, LCC v. Jama,
No. 2:10-CV-1322, 2011 WL 1541613 (D. Nev. Apr. 22, 2011) ................................46, 48, 49
Silvers v. Sony Pictures Entm’t, Inc.,
402 F.3d 881 (9th Cir. 2005) .............................................................................................13, 43
*Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ......................................................................................................... passim
Sturdza v. United Arab Emirates,
281 F.3d 1287 (D.C. Cir. 2002) ...............................................................................................32
Subafilms, Ltd. v. MGM-Pathe Commc’ns Co.,
24 F.3d 1088 (9th Cir. 1994) ...................................................................................................50
Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P.,
756 F.3d 73 (2d Cir. 2014).................................................................................................41, 43
U.S. v Jefferson County,
380 F. 2d 385 (5th Cir. 1967) ..................................................................................................26
United States v. Aina–Marshall,
336 F.3d 167 (2d Cir. 2003).....................................................................................................54
*United States v. Myers,
553 F.3d 328 (4th Cir. 2009) ...................................................................................................17
*Veeck v. S. Bldg. Code Cong. Int’l, Inc.,
293 F.3d 791 (5th Cir. 2002) (en banc) ........................................................................... passim
Viacom Int’l Inc. v. YouTube, Inc.,
940 F. Supp. 2d 110 (S.D.N.Y. 2013)......................................................................................54
*Wheaton v. Peters,
33 U.S. (8 Pet.) 591 (1834) ......................................................................................................11
viii

TABLE OF AUTHORITIES
(Continued)
Page(s)
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .....................................................................................................................58
REGULATIONS
1 C.F.R. part 51 ..............................................................................................................................17
*1 C.F.R. § 51.1, et seq. ...........................................................................................................17, 48
34 C.F.R. Part 668, Subpart F ..........................................................................................................8
34 C.F.R. § 668.141 .......................................................................................................................58
*34 C.F.R. § 668.146 .............................................................................................5, 6, 7, 11, 16, 58
34 C.F.R. § 668.148 .........................................................................................................................7
50 Fed. Reg. 40895 ........................................................................................................................20
50 Fed. Reg. 40897 ........................................................................................................................20
75 Fed. Reg. 66923 ..........................................................................................................................7
78 Fed. Reg. 17598 ........................................................................................................................16
FEDERAL STATUTES AND MATERIALS
*5 U.S.C. § 552 ....................................................................................................................5, 17, 19
*17 U.S.C. § 101 (Copyright Act of 1976) ............................................................................ passim
*17 U.S.C. § 102(b) (Copyright Act, Section 102(b)) ........................................................... passim
17 U.S.C. § 105 (Copyright Act, Section 105) ..............................................................................13
*17 U.S.C. § 106 (Copyright Act, Section 106) ................................................................35, 51, 52
*17 U.S.C. § 107 ..........................................................................................................35, 38, 39, 46
17 U.S.C. § 201(a) .........................................................................................................................31
H.R. Rep. No. 94–1476 (1976), 1976 U.S.C.C.A.N. 5659 ............................................................40
*U.S. Const. art. I § 8, cl. 8 ..................................................................................................2, 18, 49

ix

TABLE OF AUTHORITIES
(Continued)
Page(s)
RULES
Fed. R. Civ. P. 30(b)(6)........................................................................................................4, 29, 30
Fed. R. Civ. P. 56(c) ......................................................................................................................10
STATE LAW
Md. Admin. Rule 09.12.26.04 .......................................................................................................17
Md. Admin. Rule 09.12.26.06 .................................................................................................11, 17
Minn. Admin. Rule 4761.2460, Subp. 2(C).............................................................................11, 17
N.Y. Comp. Codes R. & Regs. tit. 11, § 216.7 ..............................................................................20
OTHER AUTHORITIES
1 Goldstein on Copyright § 2.49 n.45.2 ...................................................................................16, 19
1 Goldstein on Copyright § 2.5.2, at 2:51 ......................................................................................27
4 Nimmer on Copyright § 13.03[B][3] ....................................................................................19, 34
4 Nimmer on Copyright § 14.06[C][1][a]......................................................................................32
Ashley, Kevin D. & Stefanie Brüninghaus, Computer Models for
Legal Prediction.......................................................................................................................39
Code of the District of Columbia, http://dccode.org/simple/ .........................................................39
D.C. Municipal Regulations and D.C. Register, http://www.dcregs.dc.gov/ ................................39
Kasunic, Robert, Is that All There Is? Reflections on the Nature of the
Second Fair Use Factor, 31 Colum. J.L. & Arts 529 (2008) ..................................................43
Lastres, Steven A., Rebooting Legal Research in a Digital Age, LLRX
(Aug. 10, 2013), https://www.llrx.com/files/rebootinglegalresearch.pdf ................................40
*Leval, Pierre N., Toward A Fair Use Standard,
103 Harv. L. Rev. 1105 (1990) ..........................................................................................38, 39
Li, William, et al., Law Is Code: A Software Engineering Approach to Analyzing
the United States Code, 10 J. Bus. & Tech. L. 297 (2015) ......................................................39

x

TABLE OF AUTHORITIES
(Continued)
Page(s)
*Samuelson, Pamela, Questioning Copyrights in Standards,
48 B.C. L. Rev 193 (2007) .......................................................................................................27
Smith, Thomas A., The Web of Law, 44 San Diego L. Rev. 309 (2007) .......................................39
*Strauss, Peter L., Private Standards Organizations and Public Law 16
(Columbia Pub. Law Research, Paper No. 13-334, 2013),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2194210 ................................................22
U.S. Copyright Office, Compendium of Copyright Office Practices
§ 313.6(c)(2) (3d ed. 2014) ......................................................................................................12

xi

INTRODUCTION
Public Resource deserves summary judgment in its favor on multiple independent but
related grounds. The core issue here is simple: the 1999 Standards for Educational and
Psychological Testing have been incorporated into law. They have become enforceable as law,
and the public has a fundamental due process right to access, disseminate, and comment on them
(including by annotations) at will. For more than 200 years, our courts and legislatures have
recognized that it would be profoundly unjust to allow any person to claim a monopoly property
right in the law, whether that law takes the form of legal opinions, statutes, or regulations. No
matter who holds the pen, as a matter of law and policy in our democratic system, the citizens are
the true authors and owners of the law.
In the closely analogous case of Veeck v. Southern Building Code Congress
International, the Fifth Circuit Court of Appeals confirmed that this fundamental principle does
not change just because our government has chosen to outsource the crafting of some regulations
to private organizations and then incorporate those regulations by reference into law. Once
incorporated, those rules are binding law. For example, under the Higher Education Act, states
must comply with Department of Education rules that include the 1999 Standards or risk losing
federal funds for education. As a result, millions of parents and students are affected by the
legally binding standards, and they may wish to review, share, and comment on them. Journalists
and education advocates share the same interest.
To be clear, this case does not concern Public Resource’s right to speak or share
standards as private standards. It concerns the public’s right to speak, share, and comment upon
the law. Public Resource does not post standards that have not been incorporated into law, such
as the 2014 edition of the Standards for Educational and Psychological Testing. The sole
document at issue in this case, the 1999 Standards, is current law but obsolete as a standard.
1

Indeed, Plaintiffs stopped distributing the 1999 Standards altogether for almost a year, resuming
sales only for purposes of this case, and subject to a variety of practical barriers.
Plaintiffs’ copyright claim—which they claim includes the right to shut down most public
access altogether—is fundamentally incompatible with the purposes of copyright and with the
public’s practical and constitutional interest in knowing the law that governs important aspects of
their daily lives. Moreover, the law, as a public fact, system, process, and procedure, is excluded
from the statutory monopoly under traditional copyright law doctrines. No one may claim a
“right to exclude” others from using the law, and the Court should grant summary judgment to
Public Resource on this ground alone.
But that issue is only the first flaw in Plaintiffs’ case. The Plaintiffs’ claims also fail, in
whole or in part, for several other reasons: (1) even apart from their status as law, the 1999
Standards are largely systems, processes, and procedures, which the Copyright Act specifically
excludes from copyright protection; (2) Public Resource’s posting of the 1999 Standards is a
lawful fair use; and (3) Plaintiffs have not established, and cannot establish conclusively, direct
infringement by any third parties, which is a precondition for summary judgment on their
contributory infringement claim.1
As the Court may surmise, the flaws in Plaintiffs’ case share a common theme. Plaintiffs
wish to stretch copyright law beyond its statutory borders and distort the very purposes of
copyright law. Copyright is intended “to promote the Progress of Science and useful Arts,” by
encouraging creative expression, to the benefit of the public. See U.S. Const. art. I § 8, cl. 8.
Copyright incentives are neither needed nor appropriate to encourage lawmaking or
standardization of industry practices. Those who write the laws—whether elected or unelected
1

Public Resource also disputes Plaintiffs’ claim of ownership of the 1999 Standards but does not
seek summary judgment on that issue at this time.
2

(like lobbyists)—do not need and should not have control over others’ access to the law, whether
to exercise raw political power or extract lucre.
Public Resource respectfully urges the Court to recognize the limits of copyright, and to
protect due process, by granting summary judgment to Public Resource.
FACTUAL BACKGROUND
Public Resource posts many forms of law on its website. This includes statutes,
regulations, and standards that have been incorporated by reference into law.
A.

Public Resource Is A Non-Profit Committed to Educating the Public About
the Law.

Public.Resource.org is a non-profit corporation whose mission is to maintain public
works projects on the Internet, including the dissemination of statutes, regulations, and other
material that constitutes the law. (Public Resource’s Statement of Material Facts (“SMF”)
¶¶ 1-2.) Public Resource maintains an archive of laws and other government authored materials
on several domains under the public.resource.org website. (Id. ¶ 3.) Public Resource has made
judicial opinions, Internal Revenue Service records, patent filings, and safety regulations
accessible on the Internet. (Id. ¶ 4). It does not charge for access to this archive or accept
donations or gifts that are tied to the posting of specific standards or groups of standards.
(Id. ¶ 5–6.) Its operating income is not based on the amount of traffic its websites receive.
(Id. ¶ 7.)
B.

Volunteers from Many Sectors Authored the Plaintiffs’ 1999 Standards, But
Plaintiffs Claim Copyright Ownership Because of Their Facilitating Role.

The 1999 Standards that Plaintiffs published were developed by unpaid volunteers.
(SMF ¶ 8.) Plaintiffs highlight the work of the 17 volunteer Joint Committee members who
helped develop the 1999 Standards, but these are just a subset of all contributors to the 1999
Standards. Hundreds of individuals, organizations, and government entities provided proposed

3

text and comments for 1999 Standards. (Id. ¶ 9.) The volunteers draft the standards to achieve a
consensus of best practices in the areas covered by the 1999 Standards. (Id. ¶ 10.)
In December 1999, one of the Plaintiffs, AERA, sought and obtained a copyright
registration claiming to be the sole author of the 1999 Standards. (Id. ¶ 11.) Fourteen years later,
in February 2014, Plaintiffs obtained a supplemental copyright registration that listed all the
Plaintiff organizations as authors and copyright owners of the 1999 Standards, ostensibly “to
correct an error in the listing of copyright ownership in the prior registration.” (Id. ¶ 12.) Yet in
February 2014, at the time of that corrective filing, Plaintiffs did not have any copyright
assignments from the persons who actually authored the 1999 Standards. (Id. ¶ 13.) It was not
until April 2014 and throughout the rest of that year that Plaintiffs began to obtain certain forms2
from some of these individuals. (Id.) Plaintiffs now claim to be “joint owners” of the standards.
(Plaintiffs’ Memorandum of Points and Authorities, ECF 60-1 (“Pls. Mem.”) at 12.) Plaintiffs’
staffs provide facilitative and administrative functions, but they do not author the standards or
control the final content. (SMF ¶ 17.) Plaintiffs have not sought or obtained assignments from
the many hundreds of individuals and organizations that participated in the development of the
1999 Standards. (Id. ¶ 18.). Nor have Plaintiffs done anything to ensure that the alleged assignors
had authority to assign copyrights to the Plaintiffs. (Id. ¶ 19.)

2

In their motion, Plaintiffs refer to these as “work made-for-hire letters,” as well as “posthumous
assignments” from alleged heirs. The description of them “work made-for-hire letters” is
inconsistent with AERA’s Rule 30(b)(6) representative’s characterization of them as
“assignments” at deposition. The documents were signed a decade and a half after the fact, and
Plaintiffs did not compensate the people who developed the 1999 Standards for their work. (SMF
¶ 14.) The “posthumous assignments” were also made without any consideration having been
delivered to the alleged heirs who signed them. (Id. ¶ 15.) There is a genuine dispute regarding
whether these are valid copyright assignments.
4

C.

The Federal Government Has Incorporated by Reference the 1999 Standards
Into Law.

The federal government has incorporated by reference the 1999 Standards into law at
34 C.F.R. § 668.146. (Id. ¶ 20; Pls. Mem. 13.) Plaintiffs have actively encouraged—and indeed
lobbied—the government to adopt the 1999 Standards as law. (SMF ¶ 52–56.)
The federal government incorporates standards into law following a rigorous notice and
comment period. Generally, an agency responsible for regulating an industry will publish a
notice in the Federal Register concerning the agency’s intent to incorporate a standard into law
and will ask the public to submit comments. (Id. ¶ 22–24.)
At the end of the notice and comment process, the agency will determine whether to
incorporate the standard by reference. (Id. ¶ 24.) If the agency incorporates the standard by
reference, the Director of the Federal Register then approves the incorporation by reference.
5 U.S.C. § 552(a). The federal government expressly encourages agencies to incorporate
standards by reference, as opposed to reprinting the entire text of the standards, to limit the
length of the Code of Federal Regulations. (Id. ¶ 26.) The standard then becomes the law of the
United States. Standards are also incorporated by reference into state and local laws (Id. ¶ 21.)
Plaintiffs benefit from the incorporation of their standards into law. (Id. ¶ 30.) When a
standard is incorporated by reference into the Code of Federal Regulations, the code itself
informs readers that they may obtain a copy of the standards from the Office of the Federal
Register (“OFR”) or from the SDO that published the standard. E.g., 34 C.F.R. § 668.146. The
OFR directs people who want to read incorporated standards to “contact the standards
organization that developed the material.” (Id. ¶ 27.) Alternatively, one may submit a written
request to the OFR to inspect (and make limited photocopies of) an incorporated standard at an
office in Washington, D.C. (Id.)

5

The Higher Education Act requires states to comply with the 1999 Standards in
developing and administering a variety of tests in order to receive federal aid. (Id. ¶ 33.) Federal
aid to students under the Department of Education’s Title IV program totals some $150 billion
annually3, and for-profit colleges in 2009 were taking in as much as $32 billion of that amount.4
(Id.)
One specific example of the effect of the 1999 Standards’ incorporation into law is their
role in the so-called “ability to benefit” (ATB) program. This program allows access to federal
aid for students who lack a high school diploma or a GED certificate if they either (1) complete
at least 6 credit hours in a post-secondary school; or (2) pass an independently administered
Department of Education approved ability to benefit test.5 (Id. ¶ 34.) In a 2009 report, the U.S.
Government Accountability Office raised concerns that some for-profit colleges were helping
students cheat on the ability to benefit test or falsifying test results.6 (Id.)
The Department of Educations responded by issuing new regulations for ATB tests,
codified at 34 C.F.R. 668.146, with specific requirements to enhance the quality and integrity of
the tests. (Id. ¶ 35.) To be approved by the Secretary of Education, an ATB test must “Meet all
standards for test construction provided in the 1999 edition of the Standards for Educational and
3

Title IV programs include Federal Perkins Loans, Direct Loans (including Stafford and PLUS
loans), Pell Grants, and Federal Work Study, representing the majority of federal student aid.
http://federalstudentaid.ed.gov/site/front2back/programs/programs/fb_03_01_0030.htm.
4

See Senate Health Education Labor & Pensions Committee report, For Profit Higher Education:
The Failure to Safeguard the Federal Investment and Ensure Student Success
http://www.help.senate.gov/imo/media/for_profit_report/Contents.pdf.
5

Congress abolished the ability to benefit program in 2012 but restored it in 2014. See
Department of Education letter, DCL ID: GEN-15-09, “Title IV Eligibility for Students Without
a Valid High School Diploma Who Are Enrolled in Eligible Career Pathway Programs,”
https://ifap.ed.gov/dpcletters/GEN1509.html.
6

GAO, PROPRIETARY SCHOOLS: Stronger Department of Education Oversight Needed to
Help Ensure Only Eligible Students Receive Federal Student Aid, August 2009.
http://www.gao.gov/new.items/d09600.pdf.
6

Psychological Testing,” i.e. the 1999 Standards.7 (Id.) The Department made one specific change
to its final version of the 2010 Rule, codified at § 668.146(b)(6), in response to a comment
pointing out that the Department’s proposed rule used outdated language present in the 1985
AERA Standards, but revised in the 1999 Standards.8 (Id. ¶ 36.) Thus, Department officials
deliberately shaped the regulation to harmonize its printed provisions with those provisions that
were incorporated by reference, i.e. the 1999 Standards. (Id.)
A wide range of parties might want access to the 1999 Standards in order to determine
whether a given ATB test was in compliance with those regulation. These parties include:


Test publishers in the business of devising ATB tests, and states devising ATB tests
for students in their state—both wanting to ensure their products are compliant with
the law;



Federal and state law enforcement and education oversight agencies, seeking to
ensure the integrity of higher education programs;



Students, and potentially lawyers for students, assessing whether a test was compliant
in order to contest denial of ATB benefits or, alternatively, to seek loan forgiveness
on the grounds that the school acted improperly;



Journalists and advocacy organizations evaluating the quality and integrity of higher
education programs in which federal money—and student futures—are invested; and



Schools, whether large and small; for-profit, non-profit, or state; seeking to ensure
that the tests they use comply with federal ATB rules in order to receive aid and to

7

34 C.F.R. § 668.146(b)(6). The 1999 Standards are referenced again with respect to tests
conducted in foreign languages for non-native speakers of English, 34 C.F.R.
§ 668.148(a)(1)(iv), for test modifications to accommodate students with disabilities, 34 C.F.R.
§ 668.148(a)(2)(i), and for specific requirements for computer-based tests.
34 C.F.R. § 668.148(a)(3)(i)

8

75 F.R. 66923
7

avoid potential liability. The Department of Education also can cut off Title IV
money and impose civil fines if it concludes that a college has made “a substantial
misrepresentation about the nature of its educational program, its financial charges, or
the employability of its graduates.” 34 C.F.R. Part 668, Subpart F. Thus, if a school
represented the test it used as compliant with the 1999 Standards, but in fact it was
not, it could face serious penalties.
Public Resource’s work makes this incorporated law accessible to all of these affected citizens.
D.

Public Resource Began Making Standards Incorporated by Reference Freely
Available Online In Accessible Formats.

Beginning in 2008, Public Resource began posting state safety regulations and statutes
online, including portions of the incorporated standards in this case. (Id. ¶ 37.) Public Resource
purchased paper copies of the codes and scanned them into PDF files. (Id.) Public Resource then
applied metadata and optical character recognition (“OCR”) to the PDF files. (Id.) Public
Resource also placed a cover sheet on each document to make it clear that Public Resource was
posting the document because it had been incorporated by reference into law. (Id.) Public
Resource improved this process over time and began posting some of the standards in HTML
format, which included converting formulas and graphics into appropriate formats. (Id.)
In 2012, Public Resource began to post on its website copies of standards incorporated by
reference into law. Public Resource began by purchasing paper copies of 73 standards, copying
them and placing a cover sheet and notice of incorporation on each one, and sending the copies
and additional material to government officials and ten standards organizations. (Id. ¶ 38.) Then
Public Resource president Carl Malamud began searching for copies of additional incorporated
standards, many of which were not available from the standards organizations, often because the

8

version incorporated into law had been superseded by a later version of the standard. (Id. ¶ 38.)
Public Resource makes the standards it posts freely available on its website. (Id. ¶ 5.)
E.

Plaintiffs Removed the 1999 Standards From Sale and Are Unaffected By the
Availability of the Incorporated Standards Appearing Freely On Public
Resource’s Website.

In May 2014, Plaintiffs sued Public Resource for posting on its website and the Internet
Archive website the 1999 Standards. (Compl. ECF No. 1.) Subsequently, so as to ensure a full
record, in June 2014 Public Resource agreed to take down the versions of the 1999 Standards
that it had posted on its website and on the Internet Archive website, pending the resolution of
this case. (SMF ¶ 39.) Shortly thereafter, in August 2014, Plaintiffs published the new 2014
edition of the Standards for Educational and Psychological Testing (“the 2014 Standards”), and
then subsequently removed the 1999 Standards from sale. (SMF ¶ 40.) This is in keeping with
Plaintiffs’ past practice of taking prior editions of the Standards off sale once the new edition is
published. (SMF ¶ 41–42.) Plaintiffs only put the 1999 Standards on sale once more in July 2015
after the issue was brought to their attention at deposition in April and May of that year. (SMF
¶ 43.)

9

Plaintiffs included an unsealed complete version of the 1999 Standards in their Motion
for Summary Judgment filing (ECF No. 60-25–26; SMF ¶ 48), which is now available for
download to the public for a $6 fee, and may also be available on RECAP (a service that
provides PACER documents for free) now or in the future. (SMF ¶ 49.) Other than this, Plaintiffs
have never made an electronic version of the 1999 Standards available to the public, nor do they
plan to, and they have not published any other versions of the 1999 Standards that would be
accessible to people who are blind or visually disabled. (SMF ¶ 50.)
ARGUMENT
I.

SUMMARY JUDGMENT STANDARD
A court must grant summary judgment if it determines that “there is no genuine issue as

to any material fact and that the moving party is entitled to judgment on the undisputed facts as a
matter of law.” Fed. R. Civ. P. 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A movant has the burden to make an initial showing of the absence of any genuine issues
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden is met, the
movant is entitled to a judgment as a matter of law if the non-moving party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. That showing
may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675
(D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Instead, the nonmoving
party must present specific facts that would enable a reasonable jury to find in its favor. Greene,
164 F.3d at 675. If the evidence “is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249–50 (internal citations omitted).

10

Where, as here, parties file cross-motions for summary judgment, each must carry its own
burden under the applicable legal standard. See Rains v. Cascade Indus., Inc., 402 F.2d 241, 245
(3d Cir. 1968); Nuzzo v. FBI, No. 95–cv–1708, 1996 WL 741587, at *1 (D.D.C. Oct. 8, 1996).
II.

PLAINTIFFS CANNOT HOLD A STATUTORY MONOPOLY OVER THE LAW.
No copyright exists in the law itself. This is true for the United States Code and the Code

of Federal Regulations. It is true for every state’s codes and for local ordinances. It is equally
true where the law was drafted by volunteers and then made into law by a legislature or agency.
In this case, the 1999 Standards have become law through incorporation by reference into
various federal and state regulations. See, e.g., 34 C.F.R. § 668.146(b)(6); Md. Admin. Rule
09.12.26.06(E)(1)(c)(i); Minn. Admin. Rule 4761.2460, Subp. 2(C). As a result, they are outside
the copyright statutory monopoly.
A.

The Law Is Not Subject to Copyright.
1.

An unbroken line of case law holds that the law is excluded from
copyright, and the Copyright Office recognizes that exclusion.

For nearly two centuries it has been a fundamental principle of American jurisprudence
that the texts that make up the law are in the public domain and cannot be under private control.
Indeed, the Supreme Court’s first copyright decision, Wheaton v. Peters, 33 U.S. (8 Pet.) 591
(1834) established this principle. In that case, one of the Court’s own official reporters claimed
copyright in his annotated collections of the Court’s opinions. The Court declared that it was
“unanimously of opinion that no reporter has or can have any copyright in the written opinions
delivered by this Court.” Id. at 668. Similarly, in Banks v. Manchester, 128 U.S. 244 (1888), the
Court rejected a copyright claim by a court reporter for a collection of the opinions of the Ohio
Supreme Court. “The whole work done by the judges constitutes the authentic exposition and
interpretation of the law, which, binding every citizen, is free for publication to all, whether it is

11

a declaration of unwritten law, or an interpretation of a constitution or a statute.” Id. at 253. In
1898, the Sixth Circuit observed that “any person desiring to publish the statutes of a state may
use any copy of such statutes to be found in any printed book, whether such book be the property
of the state or the property of an individual.” Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898)
(Harlan, J.).
Decisions such as Banks “represent[] a continuous understanding that ‘the law,’ whether
articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus
not amenable to copyright.” Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791, 796 (5th Cir.
2002) (en banc). The U.S. Copyright Office has expanded on this fundamental principle with
respect to all forms of law from all sources, not merely U.S. Government works:
As a matter of longstanding public policy, the U.S. Copyright Office will not
register a government edict that has been issued by any state, local, or territorial
government, including legislative enactments, judicial decisions, administrative
rulings, public ordinances, or similar types of official legal materials. Likewise,
the Office will not register a government edict issued by any foreign government.
U.S. Copyright Office, Compendium of Copyright Office Practices § 313.6(c)(2) (3d ed. 2014)
(emphasis added).
2.

The Plain Text of the Copyright Act Reinforces this Understanding.

The exclusion of the law from the copyright statutory monopoly long predates the 1976
Copyright Act, but the Act reinforces the principle in two ways. Section 102(b) of the Copyright
Act, 17 U.S.C. § 102(b), precludes copyright for “any idea, procedure, process, system, method
of operation, concept, principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work.” Law is a “system of rules that a particular
country or community recognizes as regulating the actions of its members and may enforce by

12

the imposition of penalties.”9 As a system, the law itself and particular laws are excluded from
copyright pursuant to the terms of the Copyright Act itself.
Section 102(b) helps ensure that “courts do not unwittingly grant protection to an idea by
granting exclusive rights in the only, or one of only a few, means of expressing that idea.”
R.W. Beck v. E3 Consulting, 577 F.3d 1133, 1145 (10th Cir. 2009) (citation omitted). The only
way to express codified laws, or law that is incorporated by reference from other sources, is to
use the language of the law itself. Once incorporated in to law, standards become “the unique,
unalterable expression of the ‘idea’ that constitutes local law.” Veeck, 293 F.3d at 801. Under
Section 102(b), they cannot be subject to copyright restrictions.
Moreover, section 105 of the Copyright Act, 17 U.S.C. § 105, denies copyright for any
work of the U.S. Government. When Congress enacts a bill that was drafted by a private
lobbyist, the resulting law is still a U.S. government work. So too for a regulation enacted by an
agency by incorporating by reference a pre-existing standard.
3.

A Statutory Monopoly In the Law Would Conflict with Fundamental
Constitutional Protections.

In Golan v. Holder, 132 S. Ct. 873, 890 (2012), the Supreme Court recognized the
potential tension between the First Amendment and copyright, and it identified the exclusion of
ideas, which Section 102(b) codifies, as essential to balancing copyright and free speech
protections. Id. at 889–91. Copyright, while authorized by the Constitution, is a statutory right.
Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 883–84 (9th Cir. 2005). It cannot trump
fundamental constitutional rights.

9

See “Law,” Oxford English Dictionary, https://www.oxforddictionaries.com/us/definition
/american_english/law.
13

Section 102(b) plays that vital balancing role with respect to the law. Communication
about the law is a core speech interest. See, e.g., Nieman v. VersusLaw, Inc., 512 Fed. App’x.
635, 2013 WL 1150277, at *2 (7th Cir. Mar. 19, 2013). As the Supreme Court noted in striking
down a statute that would close criminal trials, “‘a major purpose of [the First] Amendment was
to protect the free discussion of governmental affairs.’ [This] serves to ensure that the individual
citizen can effectively participate in and contribute to our republican system of selfgovernment.” Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 604
(1982) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).
Accordingly, copyright restrictions on communicating the law could put the Copyright
Act in conflict with the First Amendment. Section 102(b)’s exclusion of laws from
copyrightability helps resolve that conflict, ensuring that copyright does not interfere with the
public’s ability to access, share, and discuss the law.
Equal protection of the laws and due process are also jeopardized if some citizens can
afford convenient access to the laws that all are bound to obey (with potential penalties for noncompliance), but others cannot. As Thomas Paine observed, “Every man is a proprietor in
government, and considers it a necessary part of his business to understand . . . . The
government of a free country, properly speaking, is not in the persons, but in the laws.” Thomas
Paine, Rights of Man 39 (1791). A law that is vague “may run afoul of the Due Process Clause
because it fails to give adequate guidance to those who would be law-abiding, to advise
defendants of the nature of the offense with which they are charged, or to guide courts in trying
those who are accused.” Musser v. Utah, 333 U.S. 95, 97 (1948). Similarly, the Supreme Court
has stated:

14

Vague laws offend several important values. First, because we assume that man is
free to steer between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the innocent by
not providing fair warning.
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
A law that a citizen cannot access is the vaguest of vague laws. Allowing any entity to
restrict access to the law would thwart the essential democratic requirement of notice. See Fox v.
Washington, 236 U.S. 273, 277 (1915) (courts should avoid construing statutes in ways that raise
constitutional concerns). The public must be able to review and understand the rules we live by,
so that they do not become traps for the unwary.
B.

Incorporated Standards Are Laws and Cannot be Subject to a Statutory
Monopoly.

The fundamental right to access and share the law does not disappear when the law in
question is a technical standard that has become law through incorporation by reference.
1.

The leading cases recognize that standards development organizations
cannot restrict access to the law.

As the Fifth Circuit concluded in Veeck, once a standard is incorporated into the law, the
people become the owner of that law. In that case, Peter Veeck, a Texas resident who hosted a
noncommercial website collecting information about north Texas, purchased and then posted
online model building codes that had been incorporated into the law of two Texas towns. 293
F.3d at 793. The private organization that initially developed the codes accused Veeck of
copyright infringement. Sitting en banc, the Fifth Circuit rejected the claim:
Lawmaking bodies in this country enact rules and regulations only with the
consent of the governed. The very process of lawmaking demands and
incorporates contributions by “the people,” in an infinite variety of individual and
organizational capacities. Even when a governmental body consciously decides to
enact proposed model building codes, it does so based on various legislative
considerations, the sum of which produce its version of “the law.” In performing

15

their function, the lawmakers represent the public will, and the public are the final
“authors” of the law.
...
. . . [P]ublic ownership of the law means precisely that “the law” is in the “public
domain” for whatever use the citizens choose to make of it. Citizens may
reproduce copies of the law for many purposes, not only to guide their actions but
to influence future legislation, educate their neighborhood association, or simply
to amuse.
293 F.3d at 799.
The Fifth Circuit’s reasoning in Veeck echoes that of the First Circuit in Building
Officials & Code Administrators v. Code Technology, Inc., 628 F.2d 730 (1st Cir. 1980). In that
case, the First Circuit vacated a preliminary injunction obtained by the creator and copyright
holder of a model building code that Massachusetts had adopted into law. Id. at 731. The Court
remanded for further proceedings, observing:
The citizens are the authors of the law, and therefore its owners, regardless of who
actually drafts the provisions, because the law derives its authority from the
consent of the public, expressed through the democratic process.
. . . [C]itizens must have free access to the laws which govern them.
....
[I]t is hard to see how the public’s essential due process right of free access to the
law (including a necessary right freely to copy and circulate all or part of a given
law for various purposes), can be reconciled with the exclusivity afforded a
private copyright holder . . . .
Id. at 734, 736.
To be clear, “copyrighted works do not ‘become law’ merely because a statute refers to
them.” See Veeck, 293 F.3d at 805 (citing 1 Goldstein on Copyright § 2.49 n.45.2). In this case,
however, the material in question has not merely been cited by a government agency. Instead, it
has been expressly adopted as the law of the land through the incorporation by reference process,
as part of a set of regulations “for improving integrity” in education. 78 Fed. Reg. 17598; 34
C.F.R. § 668.146. The regulations state that “[i]ncorporation by reference of this document [the
1999 Standards] has been approved by the Director of the Office of the Federal Register pursuant

16

to the Director’s authority under 5 U.S.C. 552(a) and 1 C.F.R. part 51.” Id. Because they are
incorporated by reference, the 1999 Standards are “deemed published in the Federal Register”
and have the same legal import as if they had been reproduced word for word there. 5 U.S.C.
§ 552(a).10
As the Office of the Federal Register has explained, material incorporated by reference,
“like any other properly issued rule, has the force and effect of law.” (SMF ¶ 31.); see also
United States v. Myers, 553 F.3d 328, 331 (4th Cir. 2009) (material incorporated by reference
has the same force of law as the incorporating regulation itself). The only reason the federal
government instead incorporates some regulations by reference instead of reproducing them
word for word is to limit the (already considerable) length of the Code of Federal Regulations.
(Id.) That goal, however laudable, cannot be read as a reason to grant a private entity ownership
and control over regulations that bind the public. As much as landmark health care acts or
Supreme Court civil rights decisions, the 1999 Standards are a legal mandate.

Like the plaintiffs in the ASTM v. Public.Resource.Org case, Plaintiffs here try to
distinguish Veeck by characterizing the incorporated standards at issue here as “extrinsic
standards,” rather than texts that have been adopted into law. (Pls. Mem. 38.) That distinction
does not hold because the standard at issue here has been adopted into law through the
incorporation process of 5 U.S.C. § 552 and 1 C.F.R. § 51.1 et seq. As with the building codes at

10

Likewise, several states have explicitly incorporated the 1999 Standards by reference into their
laws. In Maryland, the 1999 Standards are part of the state regulations that govern tests to license
crane operators. Md. Admin. Rule 09.12.26.04(A)–(B), 09.12.26.06(E)(1)(c)(i). In Minnesota,
they are part of the regulations for Health Department licensing of lead supervisors, lead
inspectors, and lead risk assessors. Minn. Admin. Rule 4761.2460.
17

issue in Veeck, the 1999 Standards were subject to “wholesale adoption,” not mere “reference[s]”
Veeck, 293 F.3d at 804.
2.

Incorporated Standards, As Law, Are Also Uncopyrightable Facts,
Ideas, Principles, Systems, Processes, and Procedures.

As the Fifth Circuit noted in Veeck, once adopted into law, “codes are ‘facts’ under
copyright law. They are the unique, unalterable expression of the ‘idea’ that constitutes local
law.” 293 F.3d at 801. In other words, by virtue of government action the idea and the expression
have merged. And “[w]hen there is essentially only one way to express an idea, the idea and
expression are inseparable, and copyright is no bar to copying that expression.” Concrete Mach.
Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir. 1988). The Fifth Circuit also
expressly rejected the notion that some laws might be “less factual” than others: “It should be
obvious that for copyright purposes, laws are ‘facts’: the U.S. Constitution is a fact; the Federal
Tax Code and its regulations are facts; the Texas Uniform Commercial Code is a fact. Surely, in
principle, the building codes of rural Texas hamlets are no less ‘facts’ than the products of more
august legislative or regulatory bodies.” Id.
The process of incorporation by reference is analogous to the process discussed in Kern
River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458 (5th Cir. 1990), cert. denied, 498
U.S. 952 (1990). There the plaintiff took a United States Geographical Survey topographical map
and added lines and mile markings where it proposed to locate a natural gas pipeline. The
Federal Energy Regulatory Commission expressly approved that route. The defendant then
copied that map to prepare a competing bid. The court concluded that “the idea of the location of
the pipeline and its expression embodied in [the map] are inseparable and not subject to
protection.” Id. at 1463–64. “To extend protection to the lines would be to grant Kern River a

18

monopoly of the idea for locating a proposed pipeline in the chosen corridor, a foreclosure of
competition that Congress could not have intended to sanction through copyright law.” Id.
The merger doctrine exists “precisely to avoid such absurd results as conferring on the
first planner of a pipeline a ‘copyright’ over its proposed location in a given corridor . . . .”
4 Nimmer on Copyright § 13.03[B][3]. Merger helped avoid similarly absurd results in Veeck
(conferring the drafters of a code copyright over that law), and it does the same work here. As in
Kern, in this case, after the initial creation, government officials gave legal effect to the
Plaintiffs’ document. At the point of incorporation into law, the idea (the law) and the expression
(the 1999 Standards) became inseparable and therefore not subject to copyright.
3.

No court has ever found that government edicts are copyrightable.

Attempting to avoid the plain meaning of the Copyright Act, settled law, and the
Constitution, Plaintiffs invoke CCC Information Services Inc. v. McLean Hunter Market
Reports, Inc., 44 F.3d 61, 74 (2d Cir. 1994), and Practice Management Information Corp. v.
American Medical Ass’n, 121 F.3d 516 (9th Cir. 1997). (Pls. Mem. 39–40.) But those cases,
unlike Veeck, did not address whether government edicts could be copyrighted. Instead, as the
Veeck court and a leading treatise note, they ‘involved compilations of data that had received
governmental approval, not content that had been enacted into positive law’.” Veeck, 293 F.3d at
805, citing 1 Goldstein on Copyright § 2.49 n.45.2.
In CCC, for example, the defendant argued that the Red Book, a compilation of
automobile valuations, was not copyrightable because state regulations included it as one
possible metric for valuing cars. 44 F.3d at 73. The Red Book was neither a government edict
nor a set of rules; it was simply an approved reference. As noted, while mere reference to a
document in a regulation might not transform the document into a law, applying the procedure of
5 U.S.C. § 552 and its implementing regulations explicitly does. For example, while the
19

Minnesota Health Department regulations state that “The [1999] APA standards are incorporated
by reference,” one of the regulations at issue in CCC merely said “[m]anuals approved for use
are . . . The Redbook. . . .,” without any mention of incorporation. N.Y. Comp. Codes R. & Regs.
tit. 11, § 216.7.
Practice Management also presented different circumstances. See Veeck, 293 F.3d at 804.
In that case, the American Medical Association (“AMA”) had created and copyrighted a list of
code numbers, the Physician’s Current Procedural Terminology (“CPT”), for physicians to report
their services. Practice Mgmt., 121 F.3d at 517. The AMA granted the federal Health Care
Financing Administration (“HCFA”) a non-exclusive, royalty-free license to use the CPT in
exchange for HFCA’s promise that it would not use any other set of code numbers. Id. at 517–
18. HCFA later created its own coding system for Medicare and Medicaid claims, the HCFA
common procedure coding system (“HCPCS”), that included the AMA code numbers but added
new information that HFCA developed. See Veeck, 293 F.3d at 805 (citing 50 Fed. Reg. 40895,
40897). Practice Management (“PMI”), a publisher of medical books, sought from the AMA a
discount to use the AMA’s code numbers (not the government’s HCPCS system). When the
AMA refused to provide the discount, PMI sought a declaratory judgment that the AMA’s
copyright was unenforceable. Practice Mgmt., 121 F.3d at 518. Under those facts, the Ninth
Circuit concluded that the AMA’s copyright in the CPT coding lists was, in theory, enforceable
against PMI. Id. at 520–21. (Nevertheless, the court ultimately refused to enforce the AMA’s
copyright, concluding that the AMA had abused its copyright by extracting HCFA’s agreement
not to adopt any coding system besides the CPT. Id. at 521.)
The factual, legal and policy issues here are distinct First, the plaintiff in Practice
Management was seeking to invalidate the copyright on the AMA coding lists only (the CPT),

20

not the government’s own document (the HCPCS) and the two documents were not identical. As
the Fifth Circuit noted in Veeck:
[U]nlike Veeck, Practice Management Information Corporation, a commercial
publisher of medical textbooks, was not trying to publish its own version of the
HCPCS. Practice Management desired to sell a cheaper edition of the AMA’s
code, which was also used by insurance companies and had other nongovernmental uses. It is not clear how the Ninth Circuit would have decided the
case if Practice Management had published a copy of the HCPCS.
293 F.3d at 805 (emphasis added). In other words, what had become the law was quite different
from the original coding lists, and it appeared that the plaintiff was not interested in publishing
the law. In this case, by contrast, as in Veeck, Public Resource wishes to post online only what
has been expressly adopted as law.
Second, in contrast to the coding lists (tables with descriptions of medical procedures
matched to numbers) at issue in Practice Management, the 1999 Standards read and function as
rules. In Practice Management the medical codes were never themselves law, even if regulations
required persons to refer to the codes. Here, as with the text of the model building code in Veeck,
the incorporated standards are part of the law itself, imposing numerous specific requirements
and technical specifications.
Third, the concern expressed by the court in Practice Management, that depriving
privately created materials of copyright might undermine the economic incentive to create them,
121 F.3d at 518–19, cannot apply to the incorporated standards in this case. The 1999 Standards
have been superseded by the 2014 Standards and are therefore obsolete as an industry standard.
(SMF ¶ 40, 51.) Thus, its continuing value now is as law. Any economic incentive for creating

21

them has run its course.11 As for future standards, as discussed below at pages 45–46, Plaintiffs
have ample incentives to continue their work.
C.

Plaintiffs Have Actively Encouraged Transformation of Their Standards Into
Law and Cannot Now Complain of a “Taking.”

Plaintiffs suggest that depriving them of a statutory monopoly in the law might qualify as
a taking and that the doctrine of constitutional avoidance counsels against it. (Pls. Mem. 28).
That argument fundamentally misconstrues that doctrine, which simply means that a statute
should be interpreted so as to avoid placing its constitutionality in doubt. Plaintiffs’ farfetched
public policy argument that they could be entitled to file “takings” claims against governments
that incorporated their standards into law, even if true, does not create a constitutional conflict. If
a taking occurred, Plaintiffs might be entitled to compensation from the government, but that
would not make the Copyright Act unconstitutional.
Even on its own terms, Plaintiffs’ takings argument fails. Plaintiffs admit that they have
never asked any government official to refrain from incorporating the 1999 Standard into
regulations and never protested after the fact—even after the Veeck decision put them on notice
that their copyrights were invalid as to standards incorporated into law. (Pls. Answer ¶¶ 72–74,
78–80 (ECF No. 14)). And they actively sought to have the 1999 Standards incorporated into
law. For example, Plaintiff AERA specifically urged federal regulators to hold off on a new set
of regulations until the 1999 Standards were completed. (SMF ¶ 52.).

11

Even if the documents were available for purchase, to charge for access to them would be
inappropriate “monopoly pricing of law, not copyright pricing to the market for voluntary
consensus standards.” Peter L. Strauss, Private Standards Organizations and Public Law 16
(Columbia Pub. Law Research, Paper No. 13-334, 2013),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2194210.
22

There is a good reason the Plaintiffs strive to have the standards they help develop
become law. Adoption gives the 1999 Standards “authoritative value.” (SMF ¶ 54.) Moreover if,
as Plaintiffs claim, their standards ensure the most “defensible” and “accurate” testing results,
regulations requiring compliance with a common standard support Plaintiffs’ respective missions
of advancing research, knowledge and effective “high-stakes” testing. (Pls. Mem. 3, 7.)

12

Plaintiffs now try to claim this letter was never sent—but their internal memo says otherwise.
(SMF ¶ 56.) Indeed, Ms. Ernesto’s statement in her declaration suggesting that it is “likely” the
letter was never sent is contradicted by this memo, written in 2002 and reflecting on activity by
APA’s lobbyists in 2001, as well as by her own statements.

(Id.)
23

The government did not “take” the 1999 Standards. Plaintiffs gave them to the public
freely and deliberately, and with an eye to their own advantage.
D.

Public Policy Favors Promoting Public Access to the Law.

The principle that the law must be public and available to citizens to read and speak has
its roots in the concept of the rule of law itself. “The law must be accessible . . . the successful
conduct of trade, investment and business generally is promoted by a body of accessible legal
rules governing commercial rights and obligations.” See Thomas Henry Bingham, The Rule of
Law 37–38 (Penguin Press 2011). Citizens are expected to obey the law, but they cannot do so
effectively if they do not know it. “Citizens are subject only to the law, not to the arbitrary will
or judgment of another who wields coercive government power. This entails that the laws be
declared publicly in clear terms in advance.” Brian Z. Tamanaha, On the Rule of Law: History,
Politics, Theory 34 (Cambridge Univ. Press 2004).
1.

Plaintiffs do not make the law reasonably accessible.

Today, one can access and share judicial opinions, statutes, and most codified regulations
online, almost instantly, for free, through a variety of databases. Absent Public Resource’s
efforts, however, the situation is strikingly different for just one important category of law:
incorporated standards. For example, the law permits parents to review testing protocols. In order
to exercise that right, however, they must make their way to the Washington, D.C. reading room
of the Department of Education, or the National Archives (https://www.law.cornell.edu/cfr/
text/34/668.146) (SMF ¶ 27.) If they cannot afford travel to D.C., the alternative is to go to
Plaintiff AERA directly and pay a fee for access. As Plaintiffs admit, that fee can run as high as
$50. (Pls. Mem. 10).
But even that that assumes that Plaintiffs are willing to sell access of a copy of the
Standards. Plaintiffs have repeatedly emphasized their firm belief that they should be able to
24

control access to the 1999 Standards—including the right not to make the 1999 Standards
available at all. (SMF ¶ 58.) Indeed, Plaintiffs discontinued sales of the 1999 Standards in order
to stimulate sales of the 2014 edition. (Pls. Mem. 11.) But the 2014 edition is not the edition
incorporated into law. As an apparent strategic move in light of this litigation, Plaintiffs resumed
sales of the 1999 edition in July 2015. (SMF ¶ 59–60.) But Plaintiffs claim the power to suppress
access to the standards at their whim. Indeed, they are likely to do so as soon as this litigation
ends, given that Plaintiffs believe the availability of a superseded standard to be harmful. (SMF
¶ 97.) Indeed, AERA’s representative explicitly stated that they would one day discontinue sales
of the 1999 Standards again. (SMF ¶ 58.) Access to the law should never be subject to the
marketing whims of a publisher or the political whims of a lobbying group.
Even after they made the 1999 Standards available for purchase again, Plaintiffs imposed
significant barriers to access. In July 2015, shortly after Public Resource raised the issue of
future sales of the 1999 Standards in depositions, AERA placed a single link to the 1999
Standards from the page from which it sells the 2014 edition of the Standards.13 The linked page
advises users that Plaintiffs “recommend use of the 2014 Standards as the authoritative source of
testing standards.”14 The 1999 edition does not appear in the “Complete List of AERA Books”
on AERA’s website.15 And the 1999 Edition is not available for purchase through AERA’s
online bookstore. (SMF ¶ 59.) Instead, a purchaser must fill out a separate “Mail or Fax Order
Form” for the 1999 edition. (SMF ¶ 59.)

13

See http://www.aera.net/Publications/Books/StandardsforEducationalPsychological
Testing%28NewEdition%29/tabid/15578/Default.aspx.
14

See http://www.aera.net/Publications/Books/Standards%281999Ed%29/tabid/16144/
Default.aspx.

15

See http://www.aera.net/Publications/tabid/10067/Default.aspx; http://www.aera.net
/Publications/Books/AERABooksList/tabid/13233/Default.aspx.
25

As for Plaintiffs APA and NCME, they maintain pages on their websites to advertise the
Testing Standards and direct visitors to the AERA store to purchase the 2014 edition.16 Neither
of these pages links to the 1999 edition. (SMF ¶ 60.)
Finally, like the Plaintiffs in ASTM, the Plaintiffs here make no effort to provide access
for print-disabled people. Plaintiffs admit that neither the 1999 nor the 2014 Standards have ever
been available in a format that is accessible to individuals who are blind. (SMF ¶ 50.)
All evidence suggests that, other than as a strategic ploy in this litigation, Plaintiffs
actively oppose public access to the 1999 Standards, which they consider not “authoritative”
despite their authoritative status as law. As ten states noted in an amicus brief filed in support of
Peter Veeck, the Roman emperor Caligula famously published his tax laws only in narrow
places, in excessively small letters, to prevent practical access to them. Declaration of Matthew
Becker, Ex. 74 (Amici Brief filed in Veeck litigation) (citing U.S. v Jefferson County, 380 F. 2d
385, 410–11 (5th Cir. 1967). A statutory monopoly in the law confers similar power on a
standards organization. That burden on the people’s ability to access and know the law is no
more tolerable as a revenue strategy of standards development organizations than as the whim of
a cruel and dissolute Roman emperor.
2.

The Plaintiffs do not need a copyright statutory monopoly and
copyright incentives in order to develop standards.

Plaintiffs’ self-serving threat to stop developing testing standards if they cannot retain
their statutory monopoly when their standards are incorporated into law is not plausible.
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (allegations or conclusory statements
insufficient to raise fact issue on summary judgment). Standards development organizations, and

16

See http://www.apa.org/science/programs/testing/standards.aspx;
http://www.ncme.org/ncme/NCME/Publication/NCME/Publication/Testing_Standards.aspx.
26

the thousands of volunteers upon whom they rely, have ample non-copyright rewards and
incentives to continue that work.
As the court in Veeck observed: “[I]t is difficult to imagine an area of creative endeavor
in which the copyright incentive is needed less. Trade organizations have powerful reasons
stemming from industry standardization, quality control, and self-regulation to produce these
model codes; it is unlikely that, without copyright, they will cease producing them.” 293 F.3d at
806 (quoting 1 Goldstein on Copyright § 2.5.2, at 2:51).
The same is true here. The 1999 Standards reflected the contributions of “scientific,
professional, trade and advocacy groups, credentialing boards, state and federal government
agencies, test publishers and developers, and academic institutions.” (Pls. Mem. 6.) All of these
volunteers rely on the standards (or realize they will be required to comply with them) and,
therefore, have every incentive to help shape them, as do the committee members who controlled
the final production. Indeed, Plaintiffs’ own expert testified that participants contribute to the
standard for three reasons: to “[c]ontribute back to the field, to contribute to the standards, and to
serve the associations.” (SMF ¶ 61.) None of those reasons would change if the Plaintiffs lost a
statutory monopoly on those contributions when they become law.
For these reasons the argument that these Plaintiffs require copyright incentives in order
to carry out their mission strains credulity. As one prominent scholar has observed, copyrighting
standards actually creates perverse incentives that conflict with those overarching goals:
The long-term credibility of [standards development organizations] depends on
their ability not only to produce sound standards but also to produce standards in
which the [standards development organizations] do not have such a strong
financial interest that they succumb to the temptation to abuse the standards
process by making their standards into a cash cow that must be purchased by
anyone affected by the standard.
Pamela Samuelson, Questioning Copyrights in Standards, 48 B.C. L. Rev 193, 223–24 (2007).

27

The only basis for the Plaintiffs’ claim that they would cease developing standards absent
the promise of copyright royalties is a set of self-serving assertions. (Pls. Mem. 12.) Those
assertions fail the sniff test. According to the Plaintiffs themselves, their own members benefit
from the testing standards they develop, because they create a common set of rules for the
development, use and evaluation of tests. (Pl. Mem. 6.) Plaintiffs, for example, admit that they
benefits from the standards. (SMF ¶ 62.) Indeed, Plaintiffs’ own expert stated that NCME
naturally “cares a lot” about the standards. (SMF ¶ 63.) AERA’s representative admitted that the
1999 Standards are “integral” to AERA’s mission of “serving the public good through sound
research, which includes sound methods and practices.” (SMF ¶ 64.)
Further, while Plaintiffs may shoulder some expenses associated with producing the
standards (though volunteers and their employers likely bear the majority of them (SMF ¶ 65.)),
Plaintiffs have many other means of earning revenue, including selling other standards that are
not incorporated into law, charging membership dues and conference fees, and obtaining
government research grants, all of which are current sources of income for Plaintiffs. (SMF
¶ 66.) Indeed, Plaintiff APA’s annual revenues in 2012 alone were approximately $119 million.
(SMF ¶ 67.) Given that the standards development process depends on the effort of countless
unpaid volunteers (who (or whose employers) require no copyright rewards for their volunteer
work), Plaintiffs’ statement that they will no longer manage standards development if they
cannot count on a statutory monopoly if the output becomes law is simply an unsupported selfserving threat. See Greene, 164 F.3d at 675.
Finally, the Plaintiffs have no evidence that lack of a statutory monopoly would affect
sales of the 1999 Standards. The best evidence they can muster is a misleading reference to a
drop in sales within the 2-year period that Public Resource posted the 1999 Standards. But

28

Plaintiffs’ annual revenue charts for the 1999 Standards show that sales were declining faster in
the year before Public Resource posted the 1999 Standards than in the year after the Standards
were posted. (SMF ¶ 44.)
Year
FY 2000
FY 2001
FY 2002
FY 2003
FY 2004
FY 2005
FY 2006
FY 2007[1]
FY 2008
FY 2009
FY 2010
FY 2011
FY 2012
FY 2013
FY 2014

Revenue

% Change Units Sold % Change
3,797
3,755
-1.11%
5,592
48.92%
3,310
-40.81%
3,218
-2.78%
3,803
18.18%
3,888
2.24%
3,077
-20.86%
3,358
9.13%
2,590
-22.87%
3,043
17.49%
2,132
-29.94%
1,649
-22.65%
1,732
5.03%
855
-50.64%

(SMF ¶ 44.) Indeed, sales actually increased in 2013 over 2012. (SMF ¶ 44, 47.) According to

(SMF ¶ 45).

(SMF ¶ 45).

[1]

Public Resource was unable to determine a
continuous annual sales trend because Plaintiff did not produce monthly sales
information. (SMF ¶ 44.) The data, however, does not suggest
would affect the analysis.
29

(SMF ¶ 46).
(Id.) In fact, they did. (SMF ¶
47.)

(SMF ¶ 47.)17

Moreover, even if it were relevant, Plaintiffs have not shown that copyright is necessary
to their revenue stream. Many publishers sell compilations of statutes and codes without the
benefit of copyright; people will still pay for the convenience of having a physical book of codes
on their shelf. (SMF ¶ 68–72.) And numerous other standards development organizations
function effectively without claiming copyright in standards incorporated into law.
E.

Plaintiffs Misinterpret the Copyright Act.

Plaintiffs’ remaining arguments against the public’s right to access and share the law
deserve swift rejection.

17

Plaintiffs also imply that only Public Resource’s posting of the standard could have caused a
“precipitous drop” instead of a “gradual decline in sales year-over-year.” (Pls. Mem. 25.)
However, their only source for this speculation was Dr. Geisinger, who invoked his experience
publishing several books, none of which was a standard or had later versions that could affect
demand, as with the 1999 Standards. (Defendant’s Mot. to Strike Geisinger at 4–5).
Dr. Geisinger is not competent to opine as to the causation of any change in Plaintiffs’ sales. In
contrast, AERA’s Dr. Levine testified that “there would be demand for a new version of the
standards because of the large number of persons knowing that the new standards are under
revision and waiting to buy the new standard.” (SMF ¶ 45) (emphasis added).
30

First, Plaintiffs wrongly claim that 17 U.S.C. § 201(a) and the absence of a specific
statutory provision addressing incorporation by reference support their view of the law. (Pls.
Mem. 20.) The principle that the law cannot be copyrighted long predates the 1976 Copyright
Act, and nothing in the Act suggests any intent to contravene it. Section 201(a) merely vests
copyright initially in the author; that section is consistent with Public Resource’s interpretation.
(There is a substantial question whether Plaintiffs—as opposed to the countless volunteers who
actually drafted the 1999 Standards—were the authors, but Public Resource does not press that
issue here.) How a copyright vests does not affect its scope or whether Plaintiffs may enforce a
statutory monopoly to control access to the law.
Second, Plaintiffs argue that Public Resource’s interpretation would permit involuntary
transfers of their alleged copyrights (Pls. Mem. 40), but there is no question of a transfer of
copyright here. Whatever copyright the 1999 Standards may enjoy as private standards, as law
they are not under copyright, and therefore there is nothing to transfer.
Third, the various studies and statutes Plaintiffs cite, recommending that federal agencies
take advantage of voluntary consensus standards, say nothing about what happens when such
standards became laws. The opinions of various executive branch agencies, including the Office
of Management and Budget, are not the conclusions of copyright or constitutional experts, much
less legal precedents.
III.

EVEN BEFORE INCORPORATION, THE STANDARDS ARE PRIMARILY
UNCOPYRIGHTABLE SYSTEMS, DISCOVERIES, PROCESSES,
PROCEDURES, AND SCÈNES À FAIRE.
Plaintiffs have challenged, and seek an injunction against, Public Resource’s posting of

the 1999 Standards. But a claim of infringement, and any relief, must be confined to the use of
copyrightable expression. “To prevail on a copyright claim, a plaintiff must prove both
ownership of a valid copyright and that the defendant copied original or ‘protectible’ aspects of
31

the copyrighted work.” Sturdza v. United Arab Emirates, 281 F.3d 1287, 1295 (D.C. Cir. 2002)
(citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 361 (1991)). “The scope of
[an] injunction . . . should generally be no broader than the infringement; courts should modify
injunctions that impinge on non-copyrightable expression.” 4 Nimmer on Copyright
§ 14.06[C][1][a] ( (citations omitted). See also Nihon Keizai Shimbun, Inc. v. Comline Bus. Data,
Inc., 166 F.3d 65, 75 (2d Cir. 1999).
Much of the 1999 Standards are non-copyrightable. Plaintiffs repeatedly stress, and
Public Resource does not dispute, that the 1999 Standards were the product of substantial time
and effort by the volunteers who developed them. (Pls. Mem. 5.) But investment and effort are
not a basis for copyright. Original creative expression is necessary. Feist, 499 U.S. at 346, 353
(rejecting the argument that “sweat of the brow” is sufficient to confer benefits of copyright).
As the Supreme Court explained: “the first person to find and report a particular fact has
not created the fact; he or she has merely discovered its existence.” Id. at 347. The standards at
issue here summarize of the “discoveries” of thousands of volunteers and government employees
who, through experience and research, have determined the optimal principles, practices, and
procedures for testing. Those discoveries are no doubt valuable. But they are not copyrightable.
A.

The 1999 Standards Are Procedures, Systems, and Principles.

As noted, Section 102(b) excludes ideas, procedures, systems, and principles (among
other things) from copyright. The 1999 Standards are procedures, systems and principles for
production of fair and valid tests.
As Plaintiffs’ own representative stated, the standards

(SMF ¶ 77.) Plaintiffs define the 1999 Standards as
“Technical Recommendations” or “principles and guidelines to improve professional practice.”
32

(Pls. Mem. 4, 6.) They are the product of “intensive labor” and “expertise,” (Pls. Mem. 5), that
summarize and reinforce “technical, professional and operational norms.” (Pls. Mem. 8.)
The design of the 1999 Standards resulted from a technical committee’s review of the
relevant research, public input, and committee expertise, all of which aimed to create the best
rule based on available evidence. The developers’
(SMF ¶ 78.) The goal is to
(SMF ¶ 79.), in order to ensure accurate and defensible testing protocols. Indeed,
Plaintiffs do not believe that the standards can be expressed another way. For example,
Plaintiffs’ own witness stated
(SMF ¶ 81.)
Id. ¶ 82.)
Nor do the incorporated standards qualify as creative compilations, because their utility
dictates their organization. Guidance on this point is in the recent Ninth Circuit decision in
Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015). In
that case, the plaintiff claimed that the order and sequence of certain yoga poses (the
“Sequence”) was copyrightable. The court rejected that argument because “the medical and
functional considerations at the heart of the Sequence compel the very selection and arrangement
of poses and breathing exercises for which [plaintiff] claims copyright protection.” Id. at 1042.
The court concluded: “The Sequence’s composition renders it more effective as a process or
system, but not any more suitable for copyright protection as an original work of authorship.” Id.
The same is true here. Plaintiffs optimize for enforceable clarity, not creativity. While
they may have made choices about how to organize the 1999 Standards, the relevant inquiry is
not whether one could imagine some other, less useful, method of arrangement. See Bikram’s

33

Yoga, 803 F.3d at 1042; BellSouth Advert. & Publ’g Corp. v. Donnelley Info. Publ’g, Inc., 999
F.2d 1436, 1443 (11th Cir. 1993); see also ATC Distrib. Grp., Inc. v. Whatever It Takes
Transmission & Parts, Inc., 402 F.3d 700, 712 (6th Cir. 2005) (fact that publisher “could have
arranged the parts information in other ways that were potentially less clear or useful . . . is
insufficient to demonstrate the creativity necessary for copyright protection”). Instead, it is
whether, as here, the Plaintiffs made the optimal choice to render their system more effective as
such. See also 4 Nimmer on Copyright § 13.03[B][3].
B.

The Incorporated Standards Are Scènes à Faire.

The compilations are also uncopyrightable scènes à faire. The scènes à faire doctrine
excludes from protection those elements of a work that necessarily result from factors “external
to the author’s creativity.” 4 Nimmer on Copyright § 13.03[F][3]; see also Computer Assocs.
Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 709–10 (2d Cir. 1992).
Here, Plaintiffs admit that their standards are dictated by external factors: specifically, the
current state of technical information on test development and use. (SMF ¶ 83.) For example, the
1999 Standards were intended to remedy technical deficiencies in the prior 1985 standards, as
there were definitions and statements that “more recent research had suggested were incorrect or
outdated.” (SMF ¶ 84.) The choices in development of the Standards were also dictated by
practical requirements and industry demands, as the industry participants voiced them in the
development process. (Pl. Memo. at 6; SMF ¶ 85.) Thus, they are like the elements of a software
program that are dictated by practical realities rather than creative design and therefore excluded
from copyright. See, e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522,
535 (6th Cir. 2004) (content primarily shaped by extrinsic factors such as hardware standards
and mechanical specifications may not obtain copyright).

34

IV.

PUBLIC RESOURCE’S POSTING IS A LAWFUL FAIR USE.
Even if the Court were to find that Plaintiffs can exercise a statutory monopoly over a

portion of the law, the statutory monopoly does not prohibit fair uses. The rights of a copyright
owner, in section 106 of the Copyright Act, are expressly “[s]ubject to . . . section[] 107.” See 17
U.S.C. § 106 (initial wording). The fair use of a work is not, as Plaintiffs contend, an
“infringement [that] can be excused.” (Pls. Mem. 28.) The statute is clearly to the contrary:
“Notwithstanding the provisions of section[] 106 . . . , the fair use of a copyrighted work . . . is
not an infringement of copyright.” Fair use is “a right granted by the Copyright Act of
1976 . . . [and] not an infringement.” Lenz v. Universal Music Corp, 801 F.3d 1126, 1133 (9th
Cir. 2015) (quoting Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996)).
The fair use doctrine has four non-exclusive statutory factors: “(1) the purpose and
character of the use, including whether such use is of a commercial nature or is for non-profit
educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of
the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon
the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. The Court must
evaluate these factors “in light of the purposes of copyright,” which are “[t]o promote the
Progress of Science and useful Arts, and to serve the welfare of the public.” Perfect 10, Inc. v.
Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007) (citations and internal quotations
omitted). All four statutory factors support fair use here, as does the Constitutional purpose of
copyright.
A.

Public Resource’s Posting of the Legally Binding 1999 Standards Is
Transformative, Is Noncommercial, and Is for Beneficial Public Purposes.

Public Resource posted the 1999 Standards for several purposes, all of which support a
finding of fair use. Public Resource’s interest in the 1999 Standards is solely in publicizing the

35

law and making it available to all. Public Resource has enabled access to the law for all those
affected by it, and in particular for those who are blind or have other disabilities with respect to
printed books. And by posting the 1999 Standards in a form that can be read by computer
software, Public Resource has enabled new ways of learning about and interacting with the law.
Moreover, Public Resource’s purpose is noncommercial, a fact that Plaintiffs do not dispute. (See
Plaintiffs’ Statement of Undisputed Material Facts ¶¶ 48, 52.)
1.

Expanding access to the law is a transformative purpose.

The first fair use factor favors transformative purposes and uses. Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569, 578–79 (1994). A transformative use is one “that communicates
something new and different from the original or expands its utility, thus serving copyright’s
overall objective of contributing to public knowledge.” Authors Guild v. Google, Inc., 804 F.3d
202, 214 (2d Cir. 2015) (citing Campbell, 510 U.S. at 579); see also A.V. ex rel. Vanderhye v.
iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009) (a fair use “can be transformative in
function or purpose”).
Incorporation by reference into law transformed the 1999 Standards even before Public
Resource obtained it, by turning it from a statement of best practices into the law of the land.
Incorporation into law gave the 1999 Standards “a further purpose or different character.”
Campbell, 510 U.S. at 579. Public Resource’s posting of the 1999 Standards built on that initial
transformation and is itself transformative.
Plaintiffs sold print copies of the 1999 Standards as a guide to test designers and
administrators, and a statement of best practices for assessment professionals. (SMF ¶ 86.) The
Plaintiffs seek to provide answers to questions like “How do I design a test that can accurately
diagnose psychological dysfunctions,” or “How do I administer a test fairly to non-native
English speakers?”
36

Public Resource has had a very different purpose for posting the 1999 Standards. Public
Resource provides access to standards incorporated into law as part of an online archive of laws
and other government documents, so that citizens are able to read, speak, and engage critically
with the laws that govern them. (SMF ¶ 2.) Posting the 1999 Standards was part of that mission.
The Public Resource websites answer different questions, such as “What is the law governing
tests that determine eligibility for government benefits,” and “Does the test my child took comply
with the law?”
Public Resource’s use of the 1999 Standards is “indifferent” to any copyrightable
expression it allegedly contains. See Am. Inst. of Physics v. Schwegman, Lundberg & Woessner,
P.A., No. 12-528, 2013 WL 4666330, at *12 (D. Minn. Aug. 30, 2013). For Public Resource’s
purpose, it matters only that the standards it posts are legal requirements that the public must
obey. Thus, Public Resource transformed the 1999 Standards “from an item of expressive
content to evidence of the facts within it.” Am. Inst. of Physics v. Winstead PC, No. 3:12-CV1230-M, 2013 WL 6242843, at *5 (N.D. Tex. Dec. 3, 2013). Public Resource’s use of standards
incorporated by reference into law is akin to copying and displaying documents in the process of
fulfilling a legal requirement, or in the course of judicial and administrative proceedings. Bond v.
Blum, 317 F.3d 385, 394–97 (4th Cir. 2003) (copying and submission of copyrighted manuscript
in child custody proceeding as evidence of the admissions it contained was fair use); Healthcare
Advocates Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 639 (E.D. Pa. 2007)
(copying images from website to gather facts for the defense of an earlier copyright infringement
suit was fair use). Like such uses, posting an incorporated standard to communicate the legal
facts it embodies does not “seek[] to exploit or unjustly benefit from any creative energy that
[Plaintiffs] devoted to writing” the Standards. See Lexmark, 387 F.3d at 544.

37

Even for source material other than legal texts, copying for a new and different purpose
indifferent to any creative expression is transformative. See Bill Graham Archives v. Dorling
Kindersley Ltd., 448 F.3d 605, 608–09 (2d Cir. 2006) (use of concert poster images as “historical
artifacts” on a timeline in a book rather than for “artistic expression and promotion” was
transformative); Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal.
2004) (posting corporation’s emails on the Internet to inform the public of defects in electronic
voting machines was transformative); see also Lexmark, 387 F.3d at 544 (using a copyrighted
computer program in a competing product as a password that unlocked the functionality of a
printer rather than for the program’s intrinsic use was transformative). Public Resource’s purpose
of informing the public about the rules it must follow falls into that rubric. The purpose is a form
of news reporting, a paradigmatic example of fair use in 17 U.S.C. § 107.
2.

Providing new information about the law by enabling software-based
analysis is a transformative and publicly beneficial purpose.

Public Resource’s use is also transformative because it enables citizens to engage with
this portion of the law in new ways that “provide otherwise unavailable information.” Authors
Guild, 804 F.3d at 215; see also Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 97–98 (2d Cir.
2014); Vanderhye, 562 F.3d at 638–640 (digital reproduction of student manuscripts in their
entirety to detect plagiarism is transformative); Perfect 10, 508 F.3d at 1165 (search engine
reproducing small images of copyrighted photos to aid in finding them is transformative); see
also Pierre N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990) (fair
use protects a use that creates “new information . . . new insights and understandings.”).
Public Resource posted the 1999 Standards to its website in Portable Document Format
(PDF), which is readable by numerous devices and software programs. Widely available optical
character recognition (OCR) software can transform PDF files into text that can be read by an

38

even greater variety of software. The version that Public Resource posted to the Internet Archive
underwent OCR and was converted into a variety of file formats. (SMF ¶ 37). Public Resource’s
regular practice is to further convert the standards it posts into standard Hypertext Markup
Language (HTML) to make them still more accessible. It intended to do so for the 1999
Standards but the filing of this lawsuit interrupted that work. (SMF ¶ 38.) Public Resource also
works to ensure that standards incorporated by reference into law, along with the other legal
materials it posts, are indexed and represented accurately by search engines. (Id.)
Plaintiffs try to dismiss Public Resource’s work as “merely converting printed text to
digital format.” (Pls. Mem. 45.) Plaintiffs miss the point. Once a legal text like the 1999
Standards is available in new formats, software-based searching and analysis can reveal new
information about the source material. See Thomas A. Smith, The Web of Law, 44 San Diego L.
Rev. 309, 312–14 (2007) (describing computer analysis of citations in judicial opinions); Kevin
D. Ashley & Stefanie Brüninghaus, Computer Models for Legal Prediction, 46 Jurimetrics 309,
312 (2006) (“To apply such prediction tools, the case data must be amenable to computer
processing.”); William Li et al., Law Is Code: A Software Engineering Approach to Analyzing
the United States Code, 10 J. Bus. & Tech. L. 297, 309 (2015) (describing how comprehensive
software analysis of the U.S. Code is made possible by the Code’s availability in Extensible
Markup Language format). This enabling of criticism, comment, scholarship, and research are
additional paradigmatic examples of fair use in 17 U.S.C. § 107.
In the United States, nearly all statutes, regulations, and reported judicial opinions are
available on the Internet, in standard formats readable by software, for free. See, e.g., Legal
Information Institute, https://www.law.cornell.edu/; Google Scholar, https://scholar.google.com/;
Code of the District of Columbia, http://dccode.org/simple/; D.C. Municipal Regulations and

39

D.C. Register, http://www.dcregs.dc.gov/. This new availability has transformed legal practice
and scholarship and vastly increased public access. See Steven A. Lastres, Rebooting Legal
Research in a Digital Age, LLRX (Aug. 10, 2013), https://www.llrx.com/files/rebootinglegal
research.pdf.
In contrast, although Plaintiff AERA conceded that

the Plaintiffs in this case provide the legally binding 1999 Standards
only in print while suppressing attempts to access and use the Standards in electronic formats.
(SMF¶ 87–88.) Public Resource’s posting of the 1999 Standards enabled the same powerful
search and analysis tools that can be used for most other state and federal laws. As several courts
have found, enabling search and analysis is highly transformative and favors a finding of fair
use. See HathiTrust, 755 F.3d at 97; Vanderhye, 562 F.3d at 638–40; Perfect 10, 508 F.3d at
1165.
3.

Providing access for people with print disabilities is a legally favored
fair use purpose.

Additionally, Public Resource enables blind and other print-disabled individuals to access
the law. Accessibility for the disabled is a well-established fair use purpose. “Making a copy of a
copyrighted work for the convenience of a blind person is expressly identified by the House
Committee Report as an example of fair use, with no suggestion that anything more than a
purpose to entertain or to inform need motivate the copying.” Sony Corp. of Am. v. Universal
City Studios, Inc., 464 U.S. 417, 455 n.40 (1984); see also HathiTrust, 755 F.3d at 103 (purpose
of promoting accessibility by the disabled favored finding of fair use). The drafters of the
Copyright Act of 1976 identified accessibility as a “special instance illustrating the application of
the fair use doctrine.” H.R. Rep. No. 94–1476, at 73 (1976), 1976 U.S.C.C.A.N. 5659, 5686.

40

Access to the 1999 Standards is particularly important for people with print disabilities
because the Standards contain the legal requirements for tests used to determine students’
eligibility for federal grants, including whether those tests are fair to students with disabilities.
(SMF ¶ 89.)18 Federal and state statutes concerning access to testing protocols have been held to
support a finding of fair use. “[A] school giving parents of special education students copies of
their children’s test protocols when requested under [state law] is a fair use.” Newport-Mesa
Unified Sch. Dist. v. California Dep’t of Educ., 371 F. Supp. 2d 1170, 1179 (C.D. Cal. 2005).
Public Resource made the 1999 Standards accessible to print-disabled readers by
scanning a print copy to create a digital version and making that version available online in a
standard format. (SMF ¶ 37–38). James Fruchterman, Public Resource’s expert on accessibility,
concluded that “a person who is blind or print disabled would have been able to locate a version
of the 1999 Standards on the Public.Resource.Org website when it was still hosted there” and
would be able to “perform[] optical character recognition on the Public.Resource.Org image file”
containing the 1999 Standards. (SMF ¶ 90.) The reader would then “be able to perform all of the
functional tasks: reading the entire standard, navigating to a specific place in the standard, or
searching on key terms.” (SMF ¶ 90.) The version that Public Resource posted to the Internet
Archive website had optical character recognition performed on it, so it was immediately
readable by people who are blind or have visual disabilities. (SMF ¶ 90.)
Plaintiffs, in contrast, provide the 1999 Standards only in print. (SMF ¶ 88.)
Mr. Fruchterman could not locate the 1999 Standards on the Internet from any source, Public
18

Plaintiffs make much of the Second Circuit’s statement in HathiTrust that “providing
expanded access to the print disabled is not ‘transformative.’” 755 F.3d at 101. (See also Pls.
Mem. 45.) They neglect to mention that the Second Circuit nonetheless found that providing
such access supported a finding of fair use under Supreme Court precedent. Id. at 102. The
“transformative use” designation does not end the first factor inquiry. Swatch Grp. Mgmt. Servs.
Ltd. v. Bloomberg L.P., 756 F.3d 73, 84 (2d Cir. 2014) (quoting Campbell, 510 U.S. at 579)).
41

Resource having disabled access to the Standards through its website and the Internet Archive
during this litigation. (SMF ¶ 91.) Nor is the document available through any of the main
libraries that serve people with print disabilities, and Plaintiffs state that they have not given
permission for any braille versions to be created. (SMF ¶¶ 92–93.) Mr. Fruchterman noted that,
while print copies of the 1999 Standards may be available, “most blind people themselves do not
have the ability to convert books” and would require that “their employer, educational
institution, or a specialized library for the blind create [an accessible copy].” (SMF ¶ 94.) Thus,
only Public Resource has enabled print-disabled citizens to access this portion of the law
independently.
4.

Public Resource’s use of the 1999 Standards is non-commercial.

Public Resource’s use of the 1999 standards is non-commercial, which supports fair use.
See Campbell, 510 U.S. at 584. Public Resource is a non-profit organization funded entirely by
donations, contributions and grants. (SMF ¶ 1.) It does not charge for access to the 1999
Standards or any other information on its website. (SMF ¶ 5.) The Plaintiffs have not asserted
that Public Resource’s use of the 1999 Standards is commercial.
B.

The 1999 Standards Are a Factual Document.

“The law [of fair use] recognizes a greater need to disseminate factual works than works
of fiction or fantasy.” Harper & Row Publ’rs., Inc. v. Nation Enters., 471 U.S. 539, 563 (1985).
“Since the risk of restraining the free flow of information is more significant with informational
work, the scope of permissible fair use is greater.” Consumers Union of U.S., Inc. v. Gen. Signal
Corp., 724 F.2d 1044, 1049 (2d Cir. 1983).
The 1999 Standards fall squarely on the factual end of the spectrum. As a part of the law,
the text of the Standards is a legal fact. In addition, Plaintiffs concede that the 1999 Standards are
procedures. As such, if they are not entirely excluded from copyright by 17 U.S.C. § 102(b),
42

their nature supports a determination of fair use.19 Consumers Union, 724 F.2d at 1049; see
pages 32–34, above.
Plaintiffs dismiss this factor as unimportant. (Pls. Mem. 46.) Copyright experts would
beg to differ. See Robert Kasunic, Is that All There Is? Reflections on the Nature of the Second
Fair Use Factor, 31 Colum. J.L. & Arts 529, 554–55 (2008). Important or not, the factor favors a
conclusion of fair use.
C.

Public Resource Uses No More of the Standards than Necessary.

The third statutory factor favors fair use where the amount of the original work used is
“reasonable in relation to the purpose of the copying.” Authors Guild, 804 F.3d at 221; see also
Campbell, 510 U.S. at 586–87. The copying of entire works is fair use when it reasonably fulfills
the user’s purpose. See, e.g., Sony, 464 U.S. at 449–50 (copying of entire television programs for
time-shifting is fair use); Lexmark, 387 F.3d at 544 (copying of entire computer program as
required for compatibility with printer is fair use); Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg
L.P., 756 F.3d 73, 90 (2d Cir. 2014) (copying and dissemination of entire recordings of press
conferences was “reasonable in light of its purpose of disseminating important financial
information to investors and analysts.”).
There can be no serious dispute that the purpose for which Public Resource posted the
1999 Standards requires posting the complete document that the law has incorporated. There is
no portion or excerpt short of the entirety that would fully inform the public of its rights and
obligations under the law. Partial access could even create the false impression that a test that
complied with only part of the Standards would fulfill Department of Education or state law

19

The Second Circuit’s recent Authors Guild decision does not alter this conclusion. That court
did not impose a different meaning on the second statutory factor but simply downplayed its
importance. 804 F.3d at 220.
43

requirements. Plaintiffs themselves forbid reprinting of individual sections of the Standards
because “the standards are regarded as a unitary document.” (SMF ¶ 95.)
Because Public Resource’s use of the 1999 Standards is transformative, copying that is
“literally necessary” or “reasonably appropriate” to that use tilts the third factor in favor of fair
use. Authors Guild, 804 F.3d at 221. Plaintiffs’ recitation of cases in which the party accused of
infringement used technological measures to limit copying of the work at issue is not relevant
here, where “to copy any less than” the entire work “would have made the [work] useless” for
the fair use purpose. Nuñez v. Caribbean Int’l News Corp., 235 F.3d 18, 24 (1st Cir. 2000); (see
Pls. Mem. 49–51.)
D.

Public Resource’s Use of the 1999 Standards Has Not Caused, and Will Not
Cause, Harm in Any Relevant Market.

The fourth fair use factor concerns “meaningful or significant effect ‘upon the potential
market for or value of the copyrighted work.’” Authors Guild, 804 F.3d at 224 (citation omitted).
Where a use is highly transformative, only a strong showing of harm will weigh against fair use.
“Market harm is a matter of degree, and the importance of this factor will vary, not only with the
amount of harm, but also with the relative strength of the showing on other factors.” Fox News
Network, LLC v. TVEyes, Inc., 43 F. Supp. 3d 379, 395 (S.D.N.Y. 2014) (quoting Campbell, 510
U.S. at 590 n. 21). And market effects that “occur in relation to interests that are not protected by
the copyright” are not relevant to the fourth factor inquiry. Authors Guild, 804 F.3d at 224.
As discussed above, at pages 28–30, Plaintiffs provided no competent evidence that
Public Resource’s activities harmed sales of the 1999 Standards.
Looking ahead, the undisputed facts show that Plaintiffs themselves shut down the
market for the 1999 edition of the standards, the only work at issue in this case. And copyright

44

law does not protect a market for the right to control “the conditions under which the public may
use” public law. (Pls. Answer ¶14 (ECF No. 14)). The fourth factor favors fair use.
1.

Plaintiffs themselves have shut down the market for the
1999 Standards.

Where there is no actual or potential market for the work at issue, the fourth factor
inclines towards fair use. Katz v. Google Inc., 802 F.3d 1178, 1184 (11th Cir. 2015); see also
Blanch v. Koons, 467 F.3d 244, 258 (2d Cir. 2006); Online Policy Grp. v. Diebold, Inc., 337 F.
Supp. 2d 1195, 1203 (N.D. Cal. 2004). The only document at issue in this lawsuit is the legally
binding 1999 edition of the Standards. Plaintiffs, by their own admissions and actions, have little
interest in revenue from sales of the 1999 edition. On the contrary, they seek to restrict access to
it and deter sales. Thus, there is no actual or potential market for copies of the 1999 Standards
that Public Resource could affect.
Plaintiffs halted all sales of the 1999 edition after publishing the 2014 Standards in
August 2014, mere months after filing this lawsuit. (SMF ¶ 40).

(SMF ¶ 96.)
,
(SMF ¶ 97.), even though the 1999 edition remains the law of the land. Plaintiffs resumed sales
in 2015 but, as noted in above, they have made it difficult to find, much less purchase, the 1999
Standards through Plaintiffs’ normal channels.
Plaintiffs now sell the 2014 edition of the Standards, and they promote and market only
the 2014 edition.
(SMF ¶ 41–42.)

45

as only Plaintiff AERA published and sold new copies of the 1999
Standards. (SMF ¶ 42.) Nor are Plaintiffs seeking any royalty or other revenue from Public
Resource for its use of the 1999 Standards. (Complaint 13–14 (ECF No. 1)).
The inescapable conclusion from these facts is that Plaintiffs have no interest in any
market for the legally binding 1999 edition. The single link to a mail order form on a single page
buried within AERA’s website cannot overcome that conclusion. Plaintiffs have “failed to allege
that a ‘market’ exists for [their] copyright at all,” and the Court should “decline[] to simply
presume the existence of a market.” Righthaven, LCC v. Jama, No. 2:10-CV-1322, 2011 WL
1541613, at *5 (D. Nev. Apr. 22, 2011).
Because “there is no likely market for the challenged use of the plaintiff’s work[], the
fourth fair use factor favors the defendant.” Field v. Google Inc., 412 F. Supp. 2d 1106, 1121 n.9
(D. Nev. 2006) (citing Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 805–06 (9th Cir.
2003)); see also Blanch v. Koons, 467 F.3d 244, 258 (2d Cir. 2006) (fourth factor favored fair
use where plaintiff had ceased to publish or license her photograph).
2.

Only the 1999 Standards are relevant to the fair use inquiry; Public
Resource has not posted the 2014 edition and will not do so unless it
becomes law.

Plaintiffs’ argument that Public Resource will harm the market for the 2014 edition of the
Standards and “future Standards” if it succeeds in this litigation is both legally and factually
incorrect. As a matter of law, only harms to the potential market for “the copyrighted work” at
issue are relevant to the fair use inquiry. 17 U.S.C. § 107 (emphasis added); see Consumers
Union of United States, Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1051 (2d Cir. 1983) (refusing
to consider impact of actual copying on plaintiff’s future works); Campbell, 510 U.S. at 574
(fourth factor is concerned with the “potential market for the original.”) (emphasis added).

46

Plaintiffs have not claimed infringement of the 2014 edition, let alone “future Standards”
they have not yet written. Allegations concerning the “overall impact to [Plaintiffs’] business”—
apart from “the market for the reproduced [work]”—are “irrelevant to a finding of fair use.”
Nuñez v. Caribbean Int’l News Corp., 235 F.3d 18, 24 (1st Cir. 2000).
Public Resource has not posted the 2014 edition of the Standards anywhere. (SMF ¶ 40.)
It is undisputed that Public Resource posts only those standards that have become law.
Consistent with this policy, Mr. Malamud testified that he would consider posting the 2014
edition only “[i]f the federal government did a deliberate and explicit incorporation by
reference,” and only after determining “if that was an area that I wanted to continue to invest
resources in.” (Id.)20 Public Resource does not (and need not) contest Plaintiffs’ claim of
copyright in the 2014 edition or their ability to control its distribution. Thus, even if the market
for the 2014 edition were legally relevant to the fair use analysis, Plaintiffs cannot show any
imminent effect on that market.
3.

There is no proper market for the exclusive right to control access to,
and dissemination of, the law.

Plaintiffs claim “the power to determine the conditions under which Public Resource and
others may access, reproduce, publish, translate, reformat or annotate the [1999] Standards,”
despite the Standards’ status as binding law. (Pls. Answer to Counterclaims ¶ 14, ECF No. 14.)
But when a work is informational and public access to the information is vital, facilitating access
to the work does not, as a matter of law, harm its “market” or “value.” See Diebold, 337 F. Supp.

20

Plaintiffs mischaracterize this testimony as stating that Mr. Malamud “intends” to post the
2014 edition “if successful in this litigation.” (Pls. Mem. 48.) In fact, the very testimony they cite
makes clear that Mr. Malamud would consider doing so only if the 2014 edition is deliberately
incorporated by reference. (SMF ¶ 40.)
47

2d at 1203; Righthaven, 2011 WL 1541613, at *4–*5 (“using the work for informational
purposes” does not create market harm).
Although Plaintiffs assert that no one apart from historians should use the 1999
Standards, they acknowledge that many people “believe they still may be held accountable to the
guidance of the 1999 Standards.” (Pls. Mem. 11.) That belief is accurate. The 1999 Standards,
not the 2014 Standards, form part of the Department of Education’s regulations for the design of
tests. “Incorporation by reference of a publication is limited to the edition of the publication that
is approved.” 1 C.F.R. § 51.1(f). The public has a compelling need to access, discuss, and
communicate the 1999 Standards as law. Plaintiffs have never had a legitimate right to prevent
people from using and distributing the 1999 Standards as law, and therefore cannot claim they
will suffer harm from losing that purported right.
Given that copyright does not protect the ability to suppress distribution of information of
public importance, especially where the claimant seeks no financial benefit from its distribution,
the opinion in Worldwide Church of God v. Philadelphia Church of God, Inc. does not apply
here. 227 F.3d 1110 (9th Cir. 2001). In that case, one church copied and used another church’s
“core” liturgy for “the very purposes for which [plaintiff] created [it]” and as a “marketing
device.” Id. at 1118–20. The court held marketing value to be a form of “compensation” that the
defendant acquired from its copying of the document. Id. at 1119. There was no indication that
the broader public had any interest in the document, and the court emphasized that “[t]his is not a
case of abuse of the copyright owner’s monopoly as an instrument to suppress facts.” Id. at 1116
(citation omitted).
Here, in contrast, the public importance of the 1999 Standards as law is undisputed, and it
overcomes Plaintiffs’ desire to suppress access to them. See Diebold, 337 F. Supp. 2d at 1203;

48

Righthaven, 2011 WL 1541613, at *4 (distinguishing Worldwide Church of God). Public
Resource has never sought benefit or compensation from its posting of the 1999 Standards and
has never used it as a marketing device. (SMF ¶ 5.) In addition, Public Resource’s use is highly
transformative. The Ninth Circuit has distinguished Worldwide Church of God from instances
where the challenged use was highly transformative and market harm “may not be so readily
inferred.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165, 1168 (9th Cir. 2007).
Finally, the Ninth Circuit and other courts have since rejected the rationale in Worldwide Church
of God that copyright protects against harms to “reputation.” Garcia v. Google, Inc., 786 F.3d
733, 745 (9th Cir. 2015) (en banc); see also Katz v. Google Inc., 802 F.3d 1178, 1184 (11th Cir.
2015) (per curiam).
Public Resource’s use of the 1999 Standards furthers the purpose of copyright law by
improving access to vital knowledge, promoting the “Progress of Science.” U.S. Const. art. I § 8
cl. 8. All four factors of the fair use analysis favor Public Resource, and the Court should grant
summary judgment to Public Resource on this additional ground.
V.

PUBLIC RESOURCE IS NOT SECONDARILY LIABLE FOR COPYRIGHT
INFRINGEMENT.
Contributory liability requires introducing facts proving that a party “intentionally

induc[ed] or encourage[ed] direct infringement.” Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 930 (2005). This Court has identified three elements: “(1) direct
infringement by a third party, (2) knowledge by the defendant that the third parties were directly
infringing, and (3) substantial participation by the defendant in the infringing activities.”
Newborn v. Yahoo!, Inc., 391 F. Supp. 2d 181, 186 (D.D.C. 2005) (citation omitted). The first
element demands that plaintiff show “what materials are being infringed and that the plaintiff
owns the copyright for those materials.” Newborn v. Yahoo!, Inc., 391 F. Supp. 2d 181, 187

49

(D.D.C. 2005). If plaintiff sufficiently supports these allegations, a defendant may defeat
summary judgment by introducing evidence raising a genuine issue of fact as to whether the
alleged infringement was actually fair use. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,
1158 (9th Cir. 2007) (citing Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 590 (1994)).
Plaintiffs’ claim fails as a matter of law at the first and second elements.
A.

Plaintiffs Cannot Prove Direct Infringement by Third Parties.

In order to show that Public Resource is liable for contributing to infringement by third
parties, Plaintiffs must first prove that third parties actually infringed. There can be no liability
for contributory infringement “unless the authorized or otherwise encouraged activity itself could
amount to infringement.” Subafilms, Ltd. v. MGM-Pathe Commc’ns Co., 24 F.3d 1088, 1092
(9th Cir. 1994); see also Grokster, 545 U.S. at 940 (“[T]he inducement theory of course requires
evidence of actual infringement . . . .”).
Moreover, where a colorable claim of fair use exists, the plaintiff must prove that the
third parties’ use was not fair. In Sony Corp. of Am. v. Universal City Studios, Inc., for example,
rightsholders sought to hold a manufacturer of videocassette recorders liable for alleged
infringements by its customers. 464 U.S. 417 (1984). After the manufacturer asserted that
customers’ use of the recorders for “time-shifting” was fair use, the Supreme Court adopted “an
interpretation of the concept of ‘fair use’ that requires the copyright holder to demonstrate some
likelihood of harm.” Id. at 454. “What is necessary,” the Court wrote, “is a showing by a
preponderance of the evidence that some meaningful likelihood of future harm exists.” Id. at 451.
Here, even if the 1999 Standards could be subject to copyright, using them as law is a fair
use, as described above. The purpose of Public Resource’s websites is to enable access to legally
incorporated standards as laws so that the public can know and share the law. Because sharing

50

the law is a “substantial noninfringing use” of the material posted on the websites, it defeats a
claim of contributory infringement. Sony, 464 U.S. at 442.
Plaintiffs’ contributory infringement claim has a second fatal flaw: Plaintiffs have not
produced evidence that anyone other than Public Resource and Mr. Malamud has reproduced the
1999 Standards. Plaintiffs merely state that the 1999 Standards “were accessed” from Public
Resource’s website and the Internet Archive. (Pls. Mem. 23, 34.)
“Access” to a document does not imply a reproduction, or any other potentially infringing
act under 17 U.S.C. § 106. The evidence Plaintiffs proffered with respect to third party conduct
is Public Resource’s Amended Interrogatory Responses and Mr. Malamud’s deposition
testimony. (Pls. Mem. 34.) Plaintiffs’ Interrogatory No. 5 requested “the number of visitors who
viewed and/or accessed the 1999 Standards” on the Public Resource website. (ECF No. 60-23
[Hudis Decl. Exh. T, at 7].) After conferring on the issue, the parties agreed that “accessed”
means “to digitally retrieve or open an electronic file or data,” and “viewed” means “the act of
seeing or examining.” (Id. at 8.) Mr. Malamud gave a similar definition at deposition.
“[A]ccess,” he testified, “implies that a computer, not necessarily a human being, but a computer
has requested some data from another computer, and that request was successful and the data
was transferred.” (SMF ¶ 98.) Plaintiffs have proposed no other meaning for the words
“accessed” and “viewed.”
By any definition, “accessing” a document from a website does not imply that a
reproduction was made for purposes of copyright law. Reproduction requires the making of a
copy “for a period of more than transitory duration.” Cartoon Network LP v. CSC Holdings, Inc.,
536 F.3d 121, 127 (2d Cir. 2008). A copy is a “material object,” such as a computer hard drive
containing a digital file. 17 U.S.C. § 101. “Accessing” or “viewing” alone does not result in a

51

reproduction, even if data passes through a buffer during its journey across the Internet. Cartoon
Network, 536 F.3d at 129–30. The Copyright Act does not grant a right to control “access” or
“viewing.” See 17 U.S.C. § 106. And Plaintiffs have made no attempt to show that any access to
the Standards on Public Resource’s website or the Internet Archive actually resulted in a
reproduction or any distribution by any person.
Access does not even imply an act of human volition, as required for a claim of direct
copyright infringement. The “accesses” Plaintiffs’ rely on were simply transmissions of data
from one computer to another, which can be initiated by software acting autonomously. Plaintiffs
made no effort to show (through expert testimony or otherwise) that any accesses to the 1999
Standards were a result of human volition rather than a mere byproduct of the activities of
automated systems. See Cartoon Network, 536 F.3d at 131–32 (technology that “automatically
obeys commands” does not give rise to direct copyright infringement).
In short, Plaintiffs have shown only that some number of human beings or automated
systems arrived at the 1999 Standards on Public Resource’s website and the Internet Archive, not
that any reproductions were made or copies were distributed. Because Plaintiffs have proved no
act of infringement by others, they cannot show contributory infringement by Public Resource.
B.

Plaintiffs Cannot Establish Intent to Infringe or Even Knowledge of Any
Infringement.

Just as Plaintiffs have not shown that any third party infringed upon the 1999 Standards
after accessing it from Public Resource’s website, they have not shown that Public Resource
intended or even knew of any such infringement. Contributory liability requires “an affirmative
intent that the product be used to infringe.” Grokster, 545 U.S. at 936. “Grokster tells us that
“contribution to infringement must be intentional for liability to arise.” Amazon, 508 F.3d at

52

1170, citing Grokster, 545 U.S. at 930. “‘[M]ere knowledge of infringing potential or of actual
infringing uses would not be enough[.]” Grokster, 545 U.S. at 937, citing Sony, 464 U.S. at 439.
As to specific instances of alleged infringement, which Plaintiffs have presented no
evidence of, when a website operator “cannot reasonably verify a claim of infringement . . .
because of a possible fair use defense,” the operator’s “lack of knowledge will be found
reasonable,” defeating any claim that the operator intended to induce infringement. Religious
Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1374 (N.D. Cal. 1995);
see also Costar Grp. Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 698 (D. Md. 2001) aff’d, 373
F.3d 544 (4th Cir. 2004) (the theory of “knowledge giving rise to liability only exists when there
is no colorable claim of users’ noninfringment.”).
Here, there is clearly at least a colorable claim that users who share the 1999 standards, if
such user existed, were not infringing copyright, for the same reasons that Public Resource’s
own use of the Standards was noninfringing. This reasonable belief means that Public Resource
did not intend for website visitors to infringe copyright in the Standards.
In addition, Plaintiffs have not even established that Public Resource knew or could know
of any infringing reproductions, as opposed to mere viewing of the 1999 Standards. The operator
of a website can observe and log instances where a device on the Internet accesses data on the
website. (SMF ¶ 99.) Public Resource kept such logs during this litigation with respect to the
1999 Standards. (ECF No. 60-23 [Hudis Decl. Exh. T, at 7].) However, a website operator has no
way of knowing whether any access to data resulted in a reproduction being made (or why), just
as a library has no way of knowing whether a patron made photocopies of a book while
borrowing it (and if they did, whether it was a fair or otherwise permitted use). (SMF ¶ 100.)

53

Plaintiffs cite no evidence to the contrary. Instead, they apparently assume that
knowledge about third-party access to the 1999 Standards implies knowledge that reproductions
occurred. (See Pls. Mem. 35.) It does not. Nor did AERA Vice President John Nelkirk’s email to
Mr. Malamud put Public Resource on notice of any third-party reproductions, as Plaintiffs
represent. The email said only that the 1999 Standards were posted to the Public Resource
website and that AERA believed that posting to be “unlawful.” (ECF No. 60-45 [Hudis Decl. Ex.
JJ].) It did not mention any reproduction or other infringement by third parties. See Newborn v.
Yahoo!, Inc., 391 F. Supp. 2d 181, 189 (D.D.C. 2005) (dismissing claim of contributory
infringement where plaintiff “provided the defendants with only scant information to which they
can evaluate the claims against them”).
Finally, Plaintiffs have not shown that Public Resource engaged in “willful blindness” as
to any third-party reproduction of the 1999 Standards. Willful blindness applies only when a
person “was aware of a high probability of the fact in dispute and consciously avoided
confirming that fact.” Viacom Int’l Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 115 (S.D.N.Y.
2013) (quoting United States v. Aina–Marshall, 336 F.3d 167, 170 (2d Cir. 2003)). As it is
simply not possible for Public Resource, as a website operator, to know whether any visitor to
the website made a copy of the 1999 Standards as opposed to simply viewing them online,
Public Resource could not have “consciously avoided” that knowledge. And none of the
measures Plaintiffs suggest Public Resource could have taken, such as placing “restrictions on an
Internet user’s ability to download” the 1999 Standards, or applying “Digital Rights
Management,” could have given Public Resource any knowledge of infringement by third
parties. (Pls. Mem. 35.) Even if such measures were effective at preventing copying—and

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Plaintiffs have not shown this—the measures could not have informed Public Resource that
copies were made.
In summary, Plaintiffs have not shown either direct infringement by others or Public
Resource’s knowledge of any direct infringement. The claim of contributory infringement fails.
VI.

DEFENDANTS HAVE NOT JUSTIFIED, AND CANNOT JUSTIFY, A
PERMANENT INJUNCTION.
Plaintiffs cannot satisfy the first requirement for a permanent injunction: actual success

on the merits of their infringement claims. Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S.
531, 546 n.12 (1987); see also Pub. Warehousing Co. K.S.C. v. Def. Supply Ctr. Phila., 489 F.
Supp. 2d 30, 35 (D.D.C. 2007) (“If a plaintiff has no likelihood of success on the merits, inquiry
into the remaining factors is unnecessary.”).
Moreover, as an equitable remedy, an injunction does not follow automatically from
success on the merits. Plaintiffs must prove all four elements: “(1) that [they have] suffered an
irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate
to compensate for that injury; (3) that, considering the balance of hardships between the
plaintiff[s] and defendant, a remedy in equity is warranted; and (4) that the public interest would
not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,
391 (2006). These factors provide separate and independent grounds for denying an injunction.
A.

Plaintiffs Have Experienced No Irreparable Injury to Any Valid Legal
Interest.

Irreparable injury cannot be presumed. Plaintiffs must prove a “likelihood of substantial
and immediate irreparable injury.” Apple, Inc. v. Samsung Electronics Co., 678 F.3d 1314, 1325
(Fed. Cir. 2012) (quoting O’Shea v. Littleton, 414 U.S. 488, 502 (1974)). They cannot prove
irreparable injury here.

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1.

Plaintiffs have no competent evidence of future harm.

As described above with respect to fair use, Plaintiffs have not shown that Public
Resource’s posting of the 1999 Standards caused them financial harm. Plaintiffs use revenues
from sales of the current edition of the Testing Standards to fund development of the next
edition. (SMF ¶ 101.) Once they publish a new edition, Plaintiffs do not market old, superseded
editions. (SMF ¶ 102.) They recall unfilled orders for old editions, destroy unsold copies, and
post warnings that prior editions should not be used. (SMF ¶ 103.) Thus, Plaintiffs are not
seeking any “business opportunities” with respect to the 1999 Standards.
Moreover, the development of the 2014 edition was fully funded more than three times
over at the time of its publication. Plaintiffs spent approximately $400,000 to develop the 2014
Standards (SMF ¶ 104.)

SMF ¶ 105.)

(Id.)
The 2014 edition has not become law to Public Resource’s knowledge. Unless that event
occurs, Public Resource will not consider posting the 2014 edition online. (SMF ¶ 40.) Plaintiffs’
claim of copyright in the 2014 edition remains unchallenged for the indefinite future.
In light of these facts, Plaintiffs’ claim that Public Resource’s posting “jeopardizes”
continued development of the Standards, (Pls. Mem. 56), depends on a chain of false or
unsupported suppositions: that Plaintiffs are depending on future revenues from the sale of the
1999 Standards to fund future development (which they are not); that the 2014 edition will soon
be incorporated into law (which is speculative and could be discouraged by Plaintiffs); that
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Public Resource will post it soon after that (which depends on its future priorities, see SMF ¶
40); that the posting will have a significant effect on sales (which is contradicted by Plaintiffs’
sales data to date); and that all of this will happen before Plaintiffs have funded the development
of the next edition (which has likely occurred already). Alleged harm that is “merely feared as
liable to occur at some indefinite time in the future” does not justify an injunction. Connecticut v.
Massachusetts, 282 U.S. 660, 674 (1931).
2.

“Loss of control” without actual business injury does not authorize an
injunction.

Plaintiffs claim a “right to determine how [the 1999 Standard] is distributed to the
public.” (SMF¶ 58, 96.) As a matter of law, claiming a “statutory right to exclude” alone does
not entitle a party to permanent injunctive relief, because “the creation of a right is distinct from
the provision of remedies for violations of that right,” and the equitable remedy of injunction
requires a full equitable analysis rather than “broad classifications.” eBay Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 392–93 (2006). Having shown no real and non-speculative prospect of
future business harm, Plaintiffs cannot rest their claim for an injunction on an alleged “loss of
control,” as this would amount to a forbidden presumption in favor of an injunction. See id.
A.

An Injunction Would Harm Public Resource’s Ability to Serve the Public
Interest.

While Plaintiffs have shown no likelihood of experiencing irreparable harm, by contrast a
permanent injunction will harm Public Resource’s mission of providing the public with access to
the full universe of government edicts.
C.

The Public Interest Favors Access to Laws, Edicts, and Records of
Government.

Plaintiffs have expressed an intention to restrict access to and distribution of the 1999
Standards despite their status as binding law, and they claim a right to do so. (SMF ¶ 58.) Given

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that intention, enjoining Public Resource from facilitating access to the 1999 Standards would be
particularly detrimental to the public interest. For example, by law, the 1999 Standards (not the
2014 edition) govern the design of widely used tests that determine eligibility for most federal
student financial aid for those without high school diplomas. 34 C.F.R. §§ 668.141(a)(1),
668.146(b)(6). Students, parents, teachers, researchers, and new entrants in the market for
government-approved tests all have an interest in knowing the full scope of the government’s
requirements for such tests and in communicating those requirements to others. If Plaintiffs are
able to enjoin Public Resource and others from reproducing and communicating the 1999
Standards, those with an interest in the law of testing will need to search for the few remaining
publicly available paper copies or to ferret out the obscure single link on AERA’s website
(assuming that AERA maintains it) that leads to an order form, pay $45.95, and wait for a
physical delivery. (SMF ¶ 59.)
In contrast to the gauntlet that Plaintiffs impose on those who need or want access to the
law of testing, nearly all other binding laws and regulations in the nation are no farther away than
a smartphone, tablet, or the Internet terminal in a public library, and they can be accessed,
printed, transmitted, excerpted, and annotated for free. Giving Plaintiffs the ability to limit or
withhold access to an important piece of state and federal law does not serve the public interest.
Plaintiffs ignore the importance of public access to the law, arguing that only “upholding
copyright protection” can satisfy the public interest test for an injunction. (Pls. Mem. 58.) The
Supreme Court has long since rejected any approach that would collapse the public interest
inquiry into the merits. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 26–27, 32 (2008)
(“[t]he balance of equities and consideration of the public interest . . . are pertinent in assessing
the propriety of any injunctive relief.”); eBay, 547 U.S. at 393 (forbidding “broad classifications”

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in place of equitable analysis). And, as described above, Plaintiffs’ self-serving threat that they
will “cease” to develop testing standards without the power to withhold access to older versions
is contradicted by their own sales data.
Copyright exists primarily to advance the public good, not private financial reward:
The monopoly privileges that Congress may authorize are neither unlimited nor
primarily designed to provide a special private benefit. Rather, the limited grant is
a means by which an important public purpose may be achieved. It is intended to
motivate the creative activity of authors and inventors by the provision of a
special reward, and to allow the public access to the products of their genius after
the limited period of exclusive control has expired.
Sony, 464 U.S. at 429. The development of “recommended best practices for testing design and
administration,” (Pls. Mem. 57), is not at stake here. Public access is at stake. The public interest
strongly favors denying an injunction.
CONCLUSION
The various legal authorities and arguments of Public Resource above provide
independent pathways to the same inescapable result: the 1999 Standards are law, and the AERA
Plaintiffs cannot stop Public Resource from sharing the law. On each of these bases, the Court
should grant summary judgment to Public Resource and deny Plaintiffs’ motion for injunction.

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Dated:

January 21, 2016

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Sebastian E. Kaplan (pro hac vice pending)
[e-mail]
Matthew Becker (admitted)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

SF/5546626.14

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