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 3

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,

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

Defendant.
[REDACTED VERSION]
Pursuant to the Local Civil Rule 7(h), Defendant-Counterclaimant Public.Resource.Org
(“Public Resource”) submits in support of its Motion for Summary Judgment and in Opposition
to Plaintiffs’ Motion for Summary Judgment and Permanent Injunction, a Statement of Disputed
Facts to be tried, as follows:
Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

1. Plaintiffs, AERA, APA, and NCME, are
District of Columbia not-for-profit corporations
(Levine Decl., ¶ 4; Ernesto Decl., ¶ 3; Wise
Decl., ¶ 3).

Undisputed.

2. AERA is the major national scientific society
for research on education and learning. AERA’s
mission is to advance knowledge about
education, to encourage scholarly inquiry
related to education, and to promote the use of
research to improve education and serve the
public good (Levine Decl., ¶ 5).

Undisputed.

1

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

3. APA is the largest scientific and professional
organization representing psychology in the
United States. APA is the world’s largest
association of psychologists and counts a vast
number of researchers, educators, clinicians,
consultants and students among its members.
APA’s mission is to advance the creation,
communication, and application of
psychological knowledge to benefit society and
improve people’s lives (Ernesto Decl., ¶ 4).

Undisputed.

4. NCME is a professional organization for
individuals involved in assessment, evaluation,
testing, and other aspects of educational
measurement. NCME’s members are involved
in the construction and use of standardized
tests; new forms of assessment, including
performance-based assessment; program
design; and program evaluation (Wise Decl.,
¶ 4).

Undisputed.

5. Plaintiffs have been preparing and publishing
versions of the Standards for Educational and
Psychological Testing for over fifty years. In
1954, Plaintiff APA prepared and published the
“Technical Recommendations for Psychological
Tests and Diagnostic Techniques” (Camara
Decl., ¶ 7; Ernesto Decl., ¶ 5).

Plaintiffs have failed to adduce admissible
evidence in support of this fact.
Disputed to the extent that Plaintiffs imply that
they developed any portion of the 1999
Standards. The evidence shows that volunteers
and members of the public developed the 1999
Standards, not the Plaintiffs. (SMF ¶ 8-9, 1718.)
Plaintiffs refused to provide evidence or
testimony concerning any edition of the
Standards other than the 1999 Edition, and
they redacted documents that included
information concerning other editions of the
Standards. Plaintiffs should be precluded from
using claimed evidence that they refused to
provide during discovery.
See ICE Ex. 62 (Plaintiffs/counterclaimdefendants’ Objections and Answers to
Defendant/counterclaim-plaintiff’s First Set of
Interrogatories (Nos. 1–10) (objecting to
production of documents concerning any
publications other than the 1999 Standards and

2

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
stating that such documents are irrelevant));
ICE Ex. Ex. 63 (correspondence PRO counsel
identifying earlier versions and redactions as
issues in discovery).

6. In 1955, Plaintiffs AERA and NCME
prepared and published a companion document
entitled, “Technical Recommendations for
Achievement Tests” (Levine Decl., ¶ 6; Camara
Decl., ¶ 7; Wise Decl., ¶ 5).

Plaintiffs have failed to adduce admissible
evidence in support of this fact.
Disputed to the extent that Plaintiffs imply that
they developed any portion of the 1999
Standards. Volunteers and members of the
public developed the 1999 Standards, not the
Plaintiffs. (SMF ¶ 8-9, 17-18.)
Disputed to the extent that Plaintiffs refused to
provide evidence or testimony concerning any
edition of the Standards other than the 1999
Edition, and redacted documents that included
information concerning other editions of the
Standards. Plaintiffs should not be allowed to
now testify on matters they refused to allow
discovery into. See ICE Ex. 62
(Plaintiffs/counterclaim-defendants’
Objections and Answers to
Defendant/counterclaim-plaintiff’s First Set of
Interrogatories (Nos. 1–10) (objecting to
production of documents concerning any
publications other than the 1999 Standards and
stating that such documents are irrelevant));
ICE Ex. Ex. 63 (correspondence PRO counsel
identifying earlier versions and redactions as
issues in discovery).

7. Subsequently, a joint committee of the three
organizations modified, revised, and
consolidated the two documents into the first
Joint Standards. Beginning with the 1966
revision, the three organizations (AERA, APA
and NCME – collectively, the “Sponsoring
Organizations”) collaborated in developing the
“Joint Standards” (or simply, the “Standards”).
Each subsequent revision of the Standards has
been careful to note that it is a revision and
update of the prior version (Levine Decl., ¶ 6;
Camara Decl., ¶ 7; Ernesto Decl., ¶ 6; Wise

Plaintiffs have failed to adduce admissible
evidence in support of these facts.
Disputed to the extent that Plaintiffs imply that
they developed any portion of the 1999
Standards. Volunteers and members of the
public developed the 1999 Standards, not the
Plaintiffs. (SMF ¶ 8-9, 17-18.)
Disputed to the extent that Plaintiffs refused to
provide evidence or testimony concerning any
edition of the Standards other than the 1999
Edition, and redacted documents that included

3

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

Decl., ¶ 6).

information concerning other editions of the
Standards. Plaintiffs should not be allowed to
now testify on matters they refused to allow
discovery into. See ICE Ex. 62
(Plaintiffs/counterclaim-defendants’
Objections and Answers to
Defendant/counterclaim-plaintiff’s First Set of
Interrogatories (Nos. 1–10) (objecting to
production of documents concerning any
publications other than the 1999 Standards and
stating that such documents are irrelevant));
ICE Ex. 63 (correspondence PRO counsel
identifying earlier versions and redactions as
issues in discovery).

8. Beginning in the mid-1950s, the Sponsoring
Organizations formed and periodically
reconstituted a committee of highly trained and
experienced experts in psychological and
educational assessment, charged with the initial
development of the Technical
Recommendations and then each subsequent
revision of the (renamed) Standards. These
committees were formed by the Sponsoring
Organizations’ Presidents (or their designees),
who would meet and jointly agree on the
membership. Often a chair or co-chairs of these
committees were selected by joint agreement.
Beginning with the 1966 version of the
Standards, this committee became referred to as
the “Joint Committee” (Levine Decl., ¶ 7;
Camara Decl., ¶ 8; Ernesto Decl., ¶ 7; Wise
Decl., ¶ 7).

Plaintiffs have failed to adduce admissible
evidence in support of these facts.

9. Financial and operational oversight for the
Standards’ revisions, promotion, distribution,

Undisputed but immaterial.

Disputed to the extent that Plaintiffs imply that
they developed any portion of the 1999
Standards. Volunteers and members of the
public developed the 1999 Standards, not the
Plaintiffs. (SMF ¶ 8-9, 17-18.)
Disputed to the extent that Plaintiffs refused to
provide evidence or testimony concerning any
edition of the Standards other than the 1999
Edition, and redacted documents that included
information concerning other editions of the
Standards. Plaintiffs should not be allowed to
now testify on matters they refused to allow
discovery into. See ICE Ex. 62
(Plaintiffs/counterclaim-defendants’
Objections and Answers to
Defendant/counterclaim-plaintiff’s First Set of
Interrogatories (Nos. 1–10) (objecting to
production of documents concerning any
publications other than the 1999 Standards and
stating that such documents are irrelevant));
ICE Ex. 63 (correspondence PRO counsel
identifying earlier versions and redactions as
issues in discovery).

4

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

and for the sale of the 1999 and 2014 Standards
has been undertaken by a periodically
reconstituted Management Committee,
comprised of the designees of the three
Sponsoring Organizations (Levine Decl., ¶ 8;
Camara Decl., ¶ 9; Schneider Decl., ¶ 4;
Ernesto Decl., ¶ 8; Wise Decl., ¶ 8).
10. All members of the Joint Committee(s) and
the Management Committee(s) are unpaid
volunteers. The expenses associated with the
ongoing development and publication of the
Standards include travel and lodging expenses
(for the Joint Committee and Management
Committee members), support staff time,
printing and shipment of bound volumes, and
advertising costs (Levine Decl., ¶ 9; Camara
Decl., ¶ 10; Schneider Decl., ¶ 5; Ernesto Decl.,
¶ 9; Wise Decl., ¶ 9).

Undisputed. Second sentence immaterial.

11. Many different fields of endeavor rely on
assessments. The Sponsoring Organizations
have ensured that the range of these fields of
endeavor is represented in the Joint
Committees’ membership – e.g., admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation. Similarly, the Joint
Committee’s members, who are unpaid
volunteers, represent expertise across major
functional assessment areas – e.g., validity,
equating, reliability, test development, scoring,
reporting, interpretation, and large scale
interpolation (Levine Decl., ¶ 10; Ernesto Decl.,
¶ 10; Wise Decl., ¶ 10).

Undisputed.

12. From the time of their initial creation to the
present, the preparation of and periodic
revisions to the Standards entail intensive labor
and considerable cross-disciplinary expertise.
Each time the Standards are revised, the
Sponsoring Organizations select and arrange for
meetings of the leading authorities in
psychological and educational assessments

Undisputed but immaterial.

5

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

(known as the Joint Committee). During these
meetings, certain Standards are combined,
pared down, and/or augmented, others are
deleted altogether, and some are created as
whole new individual Standards. The 1999
version of the Standards is nearly 200 pages,
took more than five years to complete (Levine
Decl., ¶ 11; Ernesto Decl., ¶ 11; Camara Decl.,
¶ 11).
13. The 1999 Standards is the result of work put
in by the Joint Committee to generate a set of
best practices on educational and psychological
testing that are respected and relied upon by
leaders in their fields (Camara Decl., ¶ 11; Wise
Decl., ¶ 11).

Undisputed.

14. Draft revisions of the 1985 Standards, for
Undisputed.
what became the 1999 Standards, were widely
distributed for public review and comment three
times during this revision effort to gauge
whether the testing community believed the
revised drafts to be current and inclusive of the
topics at issue (Schneider Decl., ¶ 6).
15. The Joint Committee received thousands of
pages of comments and proposed text revisions
from: the membership of the Sponsoring
Organizations, scientific, professional, trade and
advocacy groups, credentialing boards, state
and federal government agencies, test
publishers and developers, and academic
institutions. While the Joint Committee
reviewed and took under advisement these
helpful comments, the final language of the
1999 Standards was a product of the Joint
Committee members (Camara Decl., ¶ 12;
Schneider Decl., ¶ 7).

6

Disputed. Many of the thousands of pages of
comments and proposed text revisions from
members of the public and government were in
fact incorporated into the 1999 Standards. See
SMF ¶ 9;

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

16. When the 1985 Standards were revised,
more than half the content of the 1999
Standards resulted from newly written prose of
the Joint Committee (Camara Decl., ¶ 12).

Disputed to the extent that Plaintiffs imply that
all of this text was original to the Joint
Committee, when much of it was in fact taken
from proposed text submitted by members of
the public and government. See SMF ¶ 9;

17. The Standards originally were created as
principles and guidelines – a set of best
practices to improve professional practice in
testing and assessment across multiple settings,
including education and various areas of
psychology. The Standards can and should be
used as a recommended course of action in the
sound and ethical development and use of tests,
and also to evaluate the quality of tests and
testing practices. Additionally, an essential
component of responsible professional practice
is maintaining technical competence. Many
professional associations also have developed
standards and principles of technical practice in
assessment. The Sponsoring Organizations’
Standards have been and still are used for this
purpose (Geisinger Decl., ¶ 18; Camara Decl.,
¶ 13; Wise Decl., ¶ 12).

Undisputed.

18. The Standards, however, are not simply
Disputed to the extent that Plaintiffs imply that
intended for members of the Sponsoring
the 1999 Standards are not enforceable as law.
Organizations, AERA, APA, and NCME. The
intended audience of the Standards is broad and
cuts across audiences with varying backgrounds
and different training. For example, the
Standards also are intended to guide test
developers, sponsors, publishers, and users by
providing criteria for the evaluation of tests,
testing practices, and the effects of test use. Test
user standards refer to those standards that help
test users decide how to choose certain tests,
interpret scores, or make decisions based on

7

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

tests results. Test users include clinical or
industrial psychologists, research directors,
school psychologists, counselors, employment
supervisors, teachers, and various
administrators who select or interpret tests for
their organizations. There is no mechanism,
however, to enforce compliance with the
Standards on the part of the test developer or
test user. The Standards, moreover, do not
attempt to provide psychometric answers to
policy or legal questions (Camara Decl., ¶ 14;
Wise Decl., ¶ 13; Geisinger Decl., ¶ 19; Ernesto
Decl., ¶ 12).
19. The Standards promote the development of
high quality tests and the sound use of results
from such tests. Without such high quality
standards, tests might produce scores that are
not defensible or accurate, not an adequate
reflection of the characteristic they were
intended to measure, and not fair to the person
tested. Consequently, decisions about
individuals made with such test scores would be
no better, or even worse, than those made with
no test score information at all. Thus, the
Standards help to ensure that measures of
student achievement are relevant, that
admissions decisions are fair, that employment
hiring and professional credentialing result in
qualified individuals being selected, and
patients with psychological needs are diagnosed
properly and treated accordingly. Quality tests
protect the public from harmful decision
making and provide opportunities for education
and employment that are fair to all who seek
them (Camara Decl., ¶ 15; Wise Decl., ¶ 14).

8

Disputed to the extent Plaintiffs seek to
establish copyrightability of the Standards.
Plaintiffs have failed to adduce admissible
evidence in support of these facts. These are
not facts but opinions. Plaintiffs provide no
source other than Mr. Camara and Mr. Wise’s
conjectures to support these statements.
Neither of them are qualified as experts.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

20. The Standards apply broadly to a wide
range of standardized instruments and
procedures that sample an individual’s
behavior, including tests, assessments,
inventories, scales, and other testing vehicles.
The Standards apply equally to standardized
multiple-choice tests, performance assessments
(including tests comprised of only open-ended
essays), and hands-on assessments or
simulations. The main exceptions are that the
Standards do not apply to unstandardized
questionnaires (e.g., unstructured behavioral
checklists or observational forms), teachermade tests, and subjective decision processes
(e.g., a teacher’s evaluation of students’
classroom participation over the course of a
semester) (Camara Decl., ¶ 16; Wise Decl.,
¶ 15; Geisinger Decl., ¶ 20; Ernesto Decl.,
¶ 13).

Undisputed.

Undisputed.
21. The Standards have been used to develop
testing guidelines for such activities as college
admissions, personnel selection, test
translations, test user qualifications, and
computer-based testing. The Standards also
have been widely cited to address technical,
professional, and operational norms for all
forms of assessments that are professionally
developed and used in a variety of settings. The
Standards additionally provide a valuable public
service to state and federal governments as they
voluntarily choose to use them. For instance,
each testing company, when submitting
proposals for testing administration, instead of
relying on a patchwork of local, or even
individual and proprietary, testing design and
implementation criteria, may rely instead on the
Sponsoring Organizations’ Standards to afford
the best guidance for testing and assessment
practices (Camara Decl., ¶ 17; Wise Decl., ¶ 16;
Geisinger Decl., ¶ 21; Ernesto Decl., ¶ 14).

9

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

22. The Standards were not created or updated
to serve as a legally binding document, in
response to an expressed governmental or
regulatory need, nor in response to any
legislative action or judicial decision. However,
the Standards have been cited in judicial
decisions related to the proper use and evidence
for assessment, as well as by state and federal
legislators. These citations in judicial decisions
and during legislative deliberations occurred
without any lobbying by the Plaintiffs (Levine
Decl., ¶ 12; Camara Decl., ¶ 18; Ernesto Decl.,
¶ 15; Wise Decl., ¶ 17).

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of these facts.
Plaintiffs cite no evidence concerning the
purposes for the creation or revision of the
1999 Standards, and they could not establish
the purposes behind every contribution from
the thousands of people and entities who
contributed to the development and revision of
the Standards. This is particularly the case for
contributions by governmental entities. The
APA lobbied for the 1999 Standards to be
mandated in legislation that was deliberated by
Congress. (SMF ¶ 52-56; ICE Exs. 31,

23. During the discovery phase of this litigation, Undisputed.
however, Plaintiff APA located in its archives
correspondence relating to APA’s support for
proposed legislation sought to be introduced in
2001 by Senator Paul Wellstone (D-MN) on
Fairness and Accuracy in High Stakes
Educational Decisions for Students – a
suggested amendment to the Elementary and
Secondary Education Act (“No Child Left
Behind Act”) 147 Cong. Rec. S. 4,644 (daily
ed. May 9, 2001) (Ernesto Decl., ¶¶ 16-22,
Exhs. NN-SS).
24. Some of APA’s letters are unsigned and are
not printed on APA letterhead. Therefore, in
accordance with APA practices and protocols, it
is likely that the unsigned letters (not printed on
letterhead) were internal discussion drafts that
were never sent (Ernesto Decl., ¶ 23).

10

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of these alleged
“facts,” which are actually opinions. Plaintiffs
provide no source other than Ms. Ernesto’s
conjectures to support these statements, have
not provided any proof of “APA practices and
protocols” as they concern letters sent by
APA’s lobbyists, and Ms. Ernesto’s statements
in her declaration are contradicted by her

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
statements at deposition. At deposition,

However, a document produced by APA
proves that at least one such lobbying letter
was sent: Exhibit SS to Ms. Ernesto’s
declaration is a 2002 memorandum APA
produced titled “Highlights of APA’s
Involvement in Educational Testing Provisions
of the ‘No Child Left Behind Act,’” that
describes APA’s lobbying work at the time.
This memorandum includes the full text of a
letter that APA sent on May 7, 2001 to U.S.
Senators lobbying for the mandating of the
1999 Standards through an amendment by
Senator Wellstone. At deposition,

25. Regarding the signed letters that were
printed on APA letterhead, they relate to
Senator Wellstone’s proposed legislation that
tests and assessments administered by the states
are of high quality and used appropriately for
the benefit of test administrators and test takers.
These are goals that are consistent with APA
policy as then reflected in the 1999 Standards.
Even though Senator Wellstone’s amendments
sought, in part, to mandate states’ compliance
with the Standards, none of the Sponsoring
Organizations actively advocated for this – and
in any event Senator Wellstone’s proposed
amendment including this language was never
enacted into law (Ernesto Decl., ¶ 24, Exh. TT).

11

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of these facts.
Plaintiffs have no evidence to support their
statement that “none of the Sponsoring
Organizations actively advocated for
[legislation mandating the 1999 Standards],”
other than Ms. Ernesto’s conjecture in her
declaration ¶ 24, which is contradicted by her
deposition testimony and by the documents she
attaches as Exhibits QQ and SS to her
declaration. At deposition,

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

owever, a document produced by
APA proves that at least one such lobbying
letter was sent: Exhibit SS to Ms. Ernesto’s
declaration is a 2002 memorandum APA
produced titled “Highlights of APA’s
Involvement in Educational Testing Provisions
of the ‘No Child Left Behind Act,’” that
describes APA’s lobbying work at the time.
This memorandum includes the full text of a
letter that APA sent on May 7, 2001 to U.S.
Senators lobbying for the mandating of the
1999 Standards through an amendment by
Senator Wellstone. At deposition,

26. APA’s search of its records did not disclose
any further communications with Congress
relating to the Standards and, to the best of
APA’s knowledge, it has not engaged in
communications with Congress regarding
citation of the Standards in legislation since
2001 (Ernesto Decl., ¶ 25).

Disputed. The documents produced by
Plaintiffs

. More recently, all three plaintiff
organizations put on an event at the Russell
Senate Office Building on Capitol Hill about
the 2014 Standards. ICE Exs. 47-49, and
27. Moreover, neither AERA nor NCME has
ever communicated with Congress for the
purpose of encouraging the enactment of the
Standards into law (Levine Decl., ¶¶ 12-13;
Wise Decl., ¶ 18).

Disputed. Plaintiffs have no evidence to
support this statement other than the conjecture
of Dr. Levine and Dr. Wise. Moreover, all
three plaintiff organizations organized and
participated in an event at the Russell Senate
Office Building on Capitol Hill about the 2014
Standards. ICE Exs. 47-49, and

12

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

28. None of the Sponsoring Organizations has
solicited any government agency to incorporate
the Standards into the Code of Federal
Regulations or other rules of Federal or State
agencies (Levine Decl., ¶ 13; Ernesto Decl.,
¶ 26; Wise Decl., ¶ 19).

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of these facts.
Plaintiffs have no evidence to support this
statement other than the conjecture of
Dr. Levine, Ms. Ernesto, and Dr. Wise. At
deposition,

29. Rather, in the policymaking arena, the
Sponsoring Organizations believe the Standards
should be treated as guidelines informing the
enactment of legislation and regulations
consistent with best practices in the
development and use of tests – to insure that
they are valid, reliable and fair (Wise Decl.,
¶ 20; Ernesto Decl., ¶ 27).

Plaintiffs’ self-serving profession of “belief” is
not a material fact. Moreover, disputed to the
extent that Plaintiffs do not specify a time
frame for this belief. They may believe this
now, but in the past

Plaintiffs also organized
an event on Capitol Hill about the 2014
Standards as recently as September 2014. ICE
Exs. 47-49,
30. Plaintiffs promote and sell copies of the
Standards via referrals to the AERA website, at
annual meetings, in public offerings to students,
and to educational institution faculty.
Advertisements promoting the Standards have
appeared in meeting brochures, in scholarly
journals, and in the hallways at professional
meetings (Levine Decl., ¶ 14, Exh. NNN;
Ernesto Decl., ¶ 28, Exh. UU; Wise Decl., ¶ 21,
Exh. KKK).

13

Disputed to the extent that Plaintiffs did not
sell copies of the 1999 Standards for
approximately one year during this litigation,
they do not promote the 1999 Standards or
earlier editions, and they do not sell earlier
editions of the Standards. Plfs Mem. at 11;
SMF ¶¶ 40, 43.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

31. All copies of the Standards bear a copyright
notice (Levine Decl., ¶ 15, 28, Exh. TTT).

Disputed to the extent that Plaintiffs refer to
any edition of the Standards other than the
1999 edition, which is the only edition that
Plaintiffs have provided evidence as to the
placement of a copyright notice. Moreover,
the 1999 edition is the only edition at issue in
this litigation, and Plaintiffs have refused to
allow discovery into other editions of the
Standards. See ICE Ex. 62
(Plaintiffs/counterclaim-defendants’
Objections and Answers to
Defendant/counterclaim-plaintiff’s First Set of
Interrogatories (Nos. 1–10) (objecting to
production of documents concerning any
publications other than the 1999 Standards and
stating that such documents are irrelevant));
ICE Ex. 63 (correspondence PRO counsel
identifying earlier versions and redactions as
issues in discovery).

32. Distribution of the Standards is closely
Disputed. Distribution of the Standards is not
monitored by the Sponsoring Organizations.
closely monitored by the Sponsoring
AERA, the designated publisher of the
Organizations. At deposition,
Standards, sometimes does provide promotional
complementary print copies to students or
professors. Except for these few complementary
print copies, however, the Standards are not
given away for free; and certainly they are not
made available to the public by any of the three
.
organizations for anyone to copy free of charge
(Levine Decl., ¶ 16; Ernesto Decl., ¶ 29; Wise
Decl., ¶ 22).
33. To date, Plaintiffs have never posted, or
authorized the posting of, a digitized copy of
the 1999 Standards on any publicly accessible
website (Levine Decl., ¶ 16; Ernesto Decl.,
¶ 30; Wise Decl., ¶ 23).

Undisputed.

34. The 1999 Standards have been sold at
modest retail prices ranging from $25.95 to
$49.95 per copy. From 2000 to 2014, except for
the near two-year period during which Public
Resource posted unauthorized copies online and

Disputed to the extent that sales of the 1999
Standards peaked in 2002 and have been
declining since then, and declined more rapidly
in the year prior to when Public Resource
posted the 1999 Standards than they did

14

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

sales diminished significantly, income
generated from sales of the 1999 Standards, on
average, had been approximately in excess of
$127,000 per year (Levine Decl., ¶¶ 17-18
Exh. OOO).

subsequent to Public Resource’s actions.
Additionally, sales of the 1999 Standards
increased in the year after Public Resource
posted the 1999 Standards. (SMF ¶ 44, 47.)
The characterization of the retail prices of the
1999 Standards as “modest” is an opinion, not
a fact, and Dr. Levine is not qualified as an
expert on the subject of the reasonableness of
pricing for access to the law.

35. After the 2014 Standards were published in
the late summer of 2014, AERA for a time
discontinued sales of the 1999 Standards. This
was to encourage sales of the newly-revised
edition – the 2014 Standards (Levine Decl.,
¶ 19, Exh. PPP). However, so long as
purchasers are made aware that it is no longer
the current edition, the 1999 Standards do have
an enduring value for those in the testing and
assessment profession who (i) need to know the
state of best testing practices as they existed
between 1999 and 2014, (ii) believe they still
may be held accountable to the guidance of the
1999 Standards even now, and/or (iii) study the
changes in best testing and assessment practices
over time. For these reasons, in the summer of
2015 AERA resumed sales of the 1999
Standards (Levine Decl., ¶ 20, Exh. QQQ).

Disputed that Plaintiffs resumed sale of the
1999 Standards in 2015 because of the reasons
asserted. Plaintiffs appear to have resumed
selling the 1999 Standards to support their
position in this litigation. This is evident first
because Plaintiffs have not resumed the sale of
any other edition of the Standards, even though
every edition would qualify under the factors
that Plaintiffs cite for their decision to resume
selling the 1999 edition. Note also that the
1985 Standards were incorporated by reference
into 34 CFR § 668.148 from 1995 until 2010,

15

Moreover, although AERA states
that it has made the 1999 Standards available
for purchase once more, unlike the 2014
Standards and AERA’s other publications, the
1999 Standards are not available for purchase
through AERA’s online store; instead,
prospective purchasers are required to fill out a
special book order form and deliver the form
to AERA for processing. (SMF ¶ 59.)

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

36. The Sponsoring Organizations do not keep
any of the proceeds generated from the sales of
the Standards. Rather, the income from these
sales is used by the Sponsoring Organizations
to offset their development and production costs
and to generate funds for subsequent revisions.
This allows the Sponsoring Organizations to
develop up-to-date, high quality Standards that
otherwise would not be developed due to the
time and effort that goes into producing them
(Levine Decl., ¶ 21; Geisinger Decl., ¶ 22;
Camara Decl., ¶ 19; Ernesto Decl., ¶ 31).

Disputed to the extent that Plaintiffs assert that
the development of the Standards would not
have occurred but for the particular revenue
model that Plaintiffs employ. This is an
opinion, not a fact. Plaintiffs have no evidence
to support this assertion other than the
conjecture of their witnesses. Dr. Levine,
Mr. Camara, and Ms. Ernesto are not qualified
as experts to opine on this subject.
Dr. Geisinger is not an expert on revenue
models or standards development, and is not
qualified to opine on this subject. See Public
Resource’s Motion to Strike the Declaration of
Dr. Geisinger, Dkt 67.

37. Without receiving at least some moderate
income from the sales of the Standards to offset
their production costs and to allow for further
revisions, it is very likely that the Sponsoring
Organizations would no longer undertake to
periodically update them, and it is unknown
who else would (Levine Decl., ¶ 22; Ernesto
Decl., ¶ 32; Wise Decl., ¶ 24; Geisinger Decl.,
¶ 22).

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of these alleged
“facts.” These are opinions, not facts.
Dr. Levine, Mr. Camara, and Ms. Ernesto are
not qualified as experts to opine on this
subject. Dr. Geisinger is not an expert on
revenue models or standards development, and
is not qualified to opine on this subject. See
Public Resource’s Motion to Strike the
Declaration of Dr. Geisinger, Dkt. 67.
Moreover, the 2014 Standards are not
implicated by this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. Plaintiffs have
provided no evidence as to how Public
Resource’s posting of the 1999 Standards
could harm Plaintiffs’ income from the 2014
Standards, far from reducing revenue from the
2014 Standards to less that “some moderate
income.”

16

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

38. At one time, funding for the Standards
revision process from third party sources (e.g.,
governmental agencies, foundations, other
associations interested in testing and assessment
issues, etc.) was considered. However, this
option was not seriously considered as the
difficulty and/or potential conflicts of interest in
doing so left the Sponsoring Organizations to
conclude that financial support for the
Standards revisions should be self-funding –
that is, from the sale of prior editions of the
Standards (Levine Decl., ¶ 23; Camara Decl.,
¶ 20).

Undisputed but immaterial.

39. Due to the small membership size of
Plaintiff NCME, and the relative minor portion
of the membership of Plaintiffs AERA and
APA who devote their careers to testing and
assessment, it is highly unlikely that the
members of the Sponsoring Organizations will
vote for a dues increase to fund future
Standards revision efforts if Public Resource
successfully defends this case and is allowed to
post the Standards online for the public to
download or print for free. As a result, the
Sponsoring Organizations would likely abandon
their practice of periodically updating the
Standards (Levine Decl., ¶ 24; Camara Decl.,
¶ 24; Geisinger Decl., ¶ 23; Ernesto Decl.,
¶ 33).

Disputed but immaterial. Plaintiffs have failed
to adduce admissible evidence in support of
these alleged “facts.” These are opinions, not
facts. Dr. Levine, Mr. Camara, and Ms.
Ernesto are not qualified as experts to opine on
this subject. Dr. Geisinger is not an expert on
revenue models or standards development, and
is not qualified to opine on this subject. See
Public Resource’s Motion to Strike the
Declaration of Dr. Geisinger, Dkt. 67.
Moreover, the 2014 Standards are not
implicated by this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. (SMF ¶ 40; Plfs Mem.
at 11.) Plaintiffs have provided no evidence as
to how Public Resource’s posting of the 1999
Standards could harm Plaintiffs’ income from
the 2014 Standards.

17

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

40. The Plaintiffs are joint owners of the
copyright in and to the Standards. The
Standards were registered with the U.S.
Register of Copyrights under Registration
Number TX 5-100-196, having an effective date
of December 8, 1999 (Levine Decl., ¶ 25,
Exh. RRR).

Disputed to the extent that Plaintiffs claim to
be joint owners of the copyright to the 1999
Standards. The copyright registration is false,
as Plaintiffs have admitted, because it does not
list the names of the claimed other joint
authors of the 1999 Standards: both the first
registration, obtained in December 1999, and
the supplementary registration, obtained in
February 2014, list either AERA or all three
Plaintiffs as the sole authors and owners of the
1999 Standards, but only months later did
Plaintiffs obtain their first alleged copyright
assignment (in April 2014). ICE Ex. 3 (Ernesto
Dep. 122:23–127:12). Plaintiffs have
additional faults in their ownership claims.
The Joint Committee for the 1999 Standards
comprised 17 members, not 16 as Plaintiffs
suggest below, and Plaintiffs only allege to
have assignments from 15 of those individuals.
Compare Plfs SMF ¶ 42 with ICE Exs. 12 and
3 (Ernesto Dep. 103:22–105:07). Additionally,
Plaintiffs do not have assignments from any of
the hundreds of other individuals,
organizations, and other entities that
participated in the development of the 1999
Standards in collaboration with the Joint
Committee members. ICE Ex. 2 (Schneider
Dep. 177:18–178:02). Moreover, the effect of
the alleged assignments and “posthumous
assignments” (for which there was no
consideration) is a legal issue in dispute.

ven if the
assignments were in proper form, Plaintiffs
have not established that the individuals who
signed them had ownership of, and the right to
transfer, the copyrights that they purport to

18

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
transfer; many of the members of the Joint
Committee were employed by entities that
have not executed assignments.

41. A supplementary copyright registration for
the Standards was issued by the U.S. Register
of Copyrights under Supplementary
Registration Number TX 6-434-609, having an
effective date of February 25, 2014 (Levine
Decl., ¶ 26, Exh. SSS).

Undisputed.

42. The Joint Committee that authored the 1999
Standards comprised 16 members (Levine
Decl., ¶¶ 27-28, Exh. TTT). Except for Manfred
Meier (who could not be located, nor could his
heirs), work made-for-hire letters were signed
by 13 Joint Committee Members, and
posthumous assignments were signed by the
heirs of 2 deceased Joint Committee Members,
vesting ownership of the copyright to the 1999
Standards in the Sponsoring Organizations
(Ernesto Decl., ¶ 34, Exhs. VV-HHH).

Disputed. The Joint Committee for the 1999
Standards comprised 17 members, not 16. ICE
Exs. 12 and 3 (Ernesto Dep. 103:22–105:07)
Additionally, Plaintiffs fail to mention that
hundreds of individuals, organizations, and
other entities participated in the authorship of
the 1999 Standards along with the Joint
Committee members. ICE Ex. 2 (Schneider
Dep. 177:18–178:02); see SMF ¶ 9. Moreover,
the effect of the alleged “work made-for-hire
letters” and “posthumous assignments” is a
legal issue in dispute, on which Ms. Ernesto’s
opinion is not determinative, and it is
inconsistent with Plaintiffs’ claimed “joint
authorship.”

19

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

43. Government agencies also use standards,
including by incorporating them by reference in
statutes and regulations. The National
Technology Transfer and Advancement Act of
1995 (“NTTAA”), for example, requires federal
agencies to use privately developed standards
whenever possible. Pub. L. No. 104-113 § 12,
110 Stat. 775, 782-83 (1996), codified at
15 U.S.C. § 272.

Undisputed.

44. In alignment with the NTTAA, the
Department of Education used privately
developed standards in Section 668.146 of
Title 34 of the Code of Federal Regulations,
Subtitle B: Regulations of the Offices of the
Department of Education, Chapter VI: Office of
Postsecondary Education, Department of
Education Part 668: Student Assistance General
Provisions, Subpart J: Approval of
Independently Administered Tests;
Specification of Passing Score; Approval of
State Process (the “Department of Education
Regulations”), in relevant part, provides:

Undisputed.

(a) Except as provided in § 668.148, the
Secretary approves a test under this subpart
if –
(1) The test meets the criteria set forth in
paragraph (b) of this section ...
(b) To be approved under this subpart, a test
must –
...
(6) Meet all standards for test construction
provided in the 1999 edition of the
Standards for Educational and
Psychological Testing, prepared by a joint
committee of the American Educational
Research Association, the American
Psychological Association, and the National
Council on Measurement in Education
incorporated by reference in this section.
Incorporation by reference of this document
has been approved by the Director of the

20

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

Office of the Federal Register pursuant to
the Director’s authority under 5 U.S.C.
552(a) and 1 CFR part 51. The incorporated
document is on file at the Department of
Education, Federal Student Aid, room
113E2, 830 First Street, NE., Washington,
DC 20002, phone [phone], and at
the National Archives and Records
Administration (NARA). For information
on the availability of this material at NARA,
call 1-866-272-6272, or go to:
http://www.archives.gov/federalregister/code-of-federal-regulations/ibrlocations.html. The document also may be
obtained from the American Educational
Research Association at:
http://www.aera.net ....
45. It is notable that Plaintiff’s’ 1999 Standards
are referred to by way of citation in the U.S.
Department of Education Regulations.
However, the text of Plaintiffs’ Standards is not
integrated word-for-word, in whole or in part,
into those regulations. Therefore, no one could,
or should, interpret the Standards as “the law.”

Disputed to the extent it states facts; legal
argument is not factual. The 1999 Standards
are formally incorporated by reference into the
U.S Department of Education Regulations in
full, and compliance with all of the 1999
Standards is thereby mandated by law – it is
not simply “referred to by way of citation,” as
Plaintiffs claim. The Office of the Federal
Register states: “The legal effect of
incorporation by reference is that the material
is treated as if it were published in the Federal
Register and CFR. This material, like any other
properly issued rule, has the force and effect of
law. Congress authorized incorporation by
reference in the Freedom of Information Act to
reduce the volume of material published in the
Federal Register and CFR.” (SMF ¶ 31.)
Plaintiffs’ statement that “no one could, or
should, interpret the Standards as ‘the law’” is
not a fact, it is an opinion (and in part a legal
conclusion), and Plaintiffs do not cite any
evidence to support this claim.

46. On the other hand, the Department of
Education Regulations are in compliance with
Federal law – which requires that materials

Nonfactual legal argument; disputed. The
1999 Standards are not reasonably available to
the class of persons affected. The regulations

21

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

incorporated by reference in the Federal
Register must be “reasonably available to the
class of persons affected.” 5 U.S.C. § 552(a)(1);
1 C.F.R. § 51.7(a)(3).

specify that the 1999 Standards are available to
read by written appointment at the National
Archives in Washington D.C., or alternatively
can be purchased from the Plaintiffs. (SMF
¶ 27.) But after Plaintiffs succeeded in
convincing Public Resource to take down the
version of the 1999 Standards it had posted on
the Internet (pending the outcome of this
litigation), Plaintiffs proceeded to take the
1999 Standards off sale – leaving citizens who
needed access to the law to either track down a
second-hand copy, or make a written
appointment with the National Archives and
travel to Washington D.C. (See SMF ¶ 27, 3943.) Although Plaintiffs put the 1999
Standards on sale once more after the issue
was raised at deposition, Plaintiffs assert that
they expect to eventually take the 1999
Standards off sale at some undefined point in
the future. ICE Ex. 5 (Levine Dep. 55:09–
56:10). Moreover, the 1999 Standards are not
reasonably available to individuals who are
blind or visually disabled, and who cannot
perceive paper copies of this document. ICE
Ex. 51 (Fruchterman Report) pp.5-6. Because
sections of the 1999 Standards apply
particularly to fair testing of individuals with
disabilities, it is especially important that these
citizens have access to the 1999 Standards to
ensure that the testing they encounter is in
compliance with the law. ICE Ex. 51
(Fruchterman Report) p. 6.

47. Thus, it is required that (i) a copy of the
incorporated material must be on file with the
Office of the Federal Register and (ii) the
regulations incorporating such material must
state the ways those incorporated materials are
reasonably available to interested parties.
1 C.F.R. §§ 51.3, 51.5. There is no requirement
that such materials be available to the public at
no cost.

Nonfactual legal argument; disputed. The
contours of the requirement that materials
incorporated by reference be “reasonably
available to the class of persons affected” is a
legal question in dispute and has not been
defined by any court. Plaintiffs’ assertion that
“[t]here is no requirement that [materials
incorporated by reference into the law] be
available to the public at no cost” is an
erroneous legal conclusion – United States law
must be free and available to citizens to read

22

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
and speak. See Public Resource’s
Memorandum of Points and Authorities.

48. Defendant Public Resource is a California
non-profit corporation founded in 2007 by
Mr. Carl Malamud (“Malamud”), with the aim
of making government information more
accessible with particular emphasis on the law
(Hudis Decl., ¶ 2, Exh. A, pp. 77, 93-94, 163164).

Undisputed.

49. The identified purpose and objective of
Public Resource is to create and maintain socalled informational “public works projects for
the Internet” (Hudis Decl., ¶ 2, Exh. A, pp. 9495, 105-109, ¶ 3, Exh. B, Section II.B., ¶ 4,
Exh. C. Section 2.1).

Undisputed.

50. In actuality, Public Resource maintains an
assortment of seemingly random websites,
which contain materials ranging from technical
projects in which Malamud has been involved,
to his commentary on government databases
and entities (e.g., PACER, EDGAR, the
Government Printing Office and the
Smithsonian), to myriad collections of
legislative, regulatory, and case law materials
(Hudis Decl., ¶ 2, Exh. A, pp. 78-84, 96-102,
111-113, ¶ 5, Exh. D).

Disputed. Plaintiffs’ derogatory
characterization of Public Resource is a nonfactual opinion, and Plaintiffs’ counsel
Mr. Hudis is not qualified as an expert to opine
on this matter. Public Resource’s website is
structured for navigation by search engines and
for bulk access. Data are organized by country
(e.g., /pub/us/) then by type of data, such as
standards incorporated by reference
(/pub/us/cfr/ibr/). Malamud Decl. ¶ 29. The
Court is invited to view Public Resource’s
website at https://law.resource.org.

51. Of particular interest for this litigation is
Public Resource’s website titled
https://law.resource.org, on which Public
Resource posted the infringing digital copy of
the Sponsoring Organizations’ 1999 Standards
(Hudis Decl., ¶¶ 2, Exh. A, pp. 83-88, 234).

Nonfactual legal argument and opinion;
disputed to the extent that Plaintiffs assert
Public Resource posted an “infringing digital
copy of the Sponsoring Organizations’ 1999
Standards.” Public Resource posted a version
of the 1999 Standards on its website, but there
is a legal dispute as to whether the version the
Public Resource posted was infringing, as well
as whether Plaintiffs own rights to the 1999
Standards. Moreover, what Public Resource
posted was not a “copy” in the legal sense. As
defined by the 1976 Copyright Act, “‘copies’
are material objects, other than phonorecords,

23

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
in which a work is fixed by any method now
known or later developed, and from which the
work can be perceived, reproduced, or
otherwise communicated, either directly or
with the aid of a machine or device.” 17 U.S.C.
§ 101. The Copyright Act provides for
exclusive rights that apply to “copies” (17
U.S.C. § 106 (1) and (3)), as well as exclusive
rights that do not implicate “copies” (17
U.S.C. § 106 (2) and (4)–(6)). The electronic
version of the 1999 Standards that Public
Resource posted was not a material object, and
therefore not a “copy” under the Copyright
Act.

52. Public Resource does not provide any other
services, and does not sell any products (Hudis
Decl., ¶ 2, Exh. A, pp. 102-103, 127).

Undisputed.

53. Malamud has worked in the computer
science, computer networks, and information
technology fields since 1980. Although he has
no formal education on these subjects,
Malamud has written many books and articles
on, and taught classes in, these areas (Hudis
Decl., ¶ 2, Exh. A, pp. 22-77, ¶ 6, Exh. E).

Undisputed.

54. On behalf of Public Resource, Malamud
spends his time operating its varied websites,
giving speeches, sending letters and FOIA
requests to government officials, and attending
to the company’s finances (Hudis Decl., ¶ 2,
Exh. A, pp. 78-79, 88-90).

Undisputed.

55. While Public Resource does have a Board
of Directors to whom Malamud reports, the
company has no other officers, employees or
members (Hudis Decl., ¶ 2, Exh. A, pp. 90,
120-123, Exh. E).

Undisputed.

24

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

56. In short, except for the retention of
independent contractors here and there (Hudis
Decl., ¶ 2, Exh. A, pp. 135-136), Malamud is
Public Resource.

Denied. Public Resource is a not-for-profit
organization founded by Mr. Malamud, and
operated under the direction of a board of
trustees that includes Tim Stanley, CEO of
Justia and affiliate with the Stanford
University Copyright and Fair Use Center, as
well as Ed Walters, CEO of Fastcase and
Adjunct Professor at the Georgetown
University Law Center. See
https://public.resource.org/about/index.html

57. Public Resource obtains its funding and/or
outside legal assistance from a cadre of law
firms, foundations and Internet companies (e.g.,
Google and Creative Commons) (Hudis Decl.,
¶ 2, Exh. A, pp. 135-136, ¶ 5, Exh. D).

Disputed to the extent that Plaintiffs
characterize Public Resource’s funding and
legal assistance as coming from a “cadre” of
law firms, foundations and Internet companies.
A listing of donors who permit their names to
be publicly listed appears on Public Resource’s
“About” page.
https://public.resource.org/about/index.html

58. In 2013, Malamud used a Kickstarter
crowd-funding campaign to raise between
$100,000 and $1.2 million in order to finance
Public Resource’s infringing operation of retyping (or “double-keying”) third-party
standards, and publishing them to the
https://law.resource.org website. However, this
Kickstarter effort was unsuccessful (Hudis
Decl., ¶ 2, Exh. A, pp. 82-83, 206-212, ¶ 7,
Exh. F).

Immaterial. Disputed to the extent that
Plaintiffs assert that Public Resource’s
activities are infringing, which is the subject of
this litigation. Disputed also to the extent that
Plaintiffs characterize Public Resource’s
activities as “publishing,” as the term is not
used according to the meaning in the 1976
Copyright Act, which defines “publication” as
“the distribution of copies or phonorecords of a
work to the public by sale or other transfer of
ownership, or by rental, lease, or lending. . . A
public performance or display of a work does
not itself constitute publication.” 17 U.S.C.
§ 101 (emphasis added). As defined by the
1976 Copyright Act, “‘copies’ are material
objects, other than phonorecords, in which a
work is fixed by any method now known or
later developed, and from which the work can
be perceived, reproduced, or otherwise
communicated, either directly or with the aid
of a machine or device.” 17 U.S.C. § 101. The
Copyright Act provides for exclusive rights
that apply to “copies” (17 U.S.C. § 106 (1) and

25

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
(3)), as well as exclusive rights that do not
implicate “copies” (17 U.S.C. § 106 (2) and
(4)–(6)). The electronic version of the 1999
Standards that Public Resource posted was not
a material object, and therefore not a “copy”
under the Copyright Act.

59. In Malamud’s view, “standards” are a set of
best practices that the organization publishing
them believes should be widely adopted. An
example given by Malamud are the best
practice standards for computer networking
promulgated by the Internet Engineering Task
Force (Hudis Decl., ¶ 2, Exh. A, pp. 59-60).
Public.Resource.Org spent [funds] ...
buying privately-produced ... standards ....
These ... standards govern and protect a
wide range of activity .... We have started
copying those ... standards despite the fact
they are festooned with copyright warnings,
shrinkwrap agreements and other dire
warnings. (Deleted material referring to
“technical public safety standards”).
***
We know from all the copyright warnings,
terms of use, scary shrink wrap agreements,
and other red-hot rhetoric that accompanies
these documents that the producers continue
to believe that copies may not be made
under any circumstances.
(Hudis Decl., ¶ 2, Exh. A, pp. 181-184, ¶ 9,
Exh. H (Malamud, C., Liberating America’s
Secret, For-Pay Laws, boingboing,
March 19, 2012), production
pp. AERA_APA_NCME_31764-31765).

26

Disputed. Plaintiffs provide no evidence for
their claim as to what Mr. Malamud considers
a “standard” to be and it is not clear how they
arrive at such a characterization. The cited
deposition testimony simply describes
Mr. Malamud’s participation in the
development of Internet Engineering Task
Force standards, and does not describe how
Mr. Malamud defines a “standard” generally.
Disputed. Plaintiffs lack evidence for their
assertions and mischaracterize Mr. Malamud’s
statements in his 1993 book “Exploring the
Internet: a Technical Travelogue.” This
chapter, which is taken out of context,
describes Mr. Malamud’s work with the
International Telecommunication Union
(“ITU”) to convert ITU specifications to a
digital format and post them online, with the
support of the ITU (including the blessing of
the secretary general of the ITU, as described
in the book). This project was called “Bruno,”
and in the chapter “Geneva” Mr. Malamud
uses the phrase “baby killer” as a joking way
to refer to the organization’s decisions as to
how it should prioritize resources (not a “codename” for the project, as Plaintiffs assert).
This chapter does not support Plaintiffs’
accusation that Mr. Malamud “knew that
copying and widely disseminating standards,
for free and without permission . . . would
adversely impact the revenues of the
organizations that published authorized copies
of those standards,” not least of which because
Mr. Malamud had the permission of ITU for its
activities, and also because the chapter
describes how Mr. Malamud endeavored to

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
convey to officials within the ITU that the
digitization project would result in a net
revenue benefit to the ITU. ICE Ex. 7
(Malamud Dep. 159:14–21); Hudis Decl. Exh.
G. The project was very successful and today
the ITU makes all of its standards freely
available on the Internet. Malamud Decl. ¶ 5.
Although Plaintiffs appear to have mistakenly
cited paragraph nine of Mr. Hudis’s
declaration, rather than paragraph eight,
Plaintiffs lack evidentiary support for their
erroneous claims regardless of which
paragraph is cited.
Disputed. Plaintiffs lack evidence for their
claims, as the cited text does not support the
statement that Mr. Malamud “clearly knew that
the copying of others’ copyrighted standards to
its website constituted copyright
infringement.” In fact, the cited article says
just the opposite, and Plaintiffs have quoted
selectively. In the second sentence after the
quoted passage, Mr. Malamud states “. . . we
strongly believe that the documents are not
entitled to copyright protection . . . .” Indeed,
in the portion that Plaintiffs quote,
Mr. Malamud simply states that some
standards include copyright notices;
Mr. Malamud does not state that these
copyright claims are valid. Dkt. 60-11, Hudis
Decl. Exh. H. Moreover, Plaintiffs’ statement
includes a legal conclusion regarding a matter
that is in dispute in this litigation: whether the
posting of standards incorporated by reference
into the law constitutes copyright
infringement.

62. It is nonetheless Malamud’s unwavering
belief that, once a governmental entity
incorporates a standard by reference into a
statute or a regulation, the standard becomes
“the law” and as such loses its copyright
protection (Hudis Decl., ¶ 2, Exh. A, pp. 17273, 218-219, 257, 358-61).

Undisputed.

27

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

63. According to Malamud’s line of thinking,
once standards lose their copyright protection in
this manner, anyone can copy them, convert
them to digital form, post them on the Internet
and allow others to download or print them at
will and for free (Hudis Decl., ¶ 2, Exh. A, pp.
187-88).

Undisputed.

64. Malamud further believes that it is perfectly
acceptable for standards development
organizations, such as Plaintiffs, to lose their
copyright in standards incorporated by
reference – and with it the economic value that
copyright brings. According to Malamud,
though knowing very little about the
Sponsoring Organizations’ operations, finances,
policies or practices for updating their
Standards (Hudis Dec., ¶ 2, Exh. A, pp. 192-93,
199-201, 223-232), in such circumstances
Plaintiffs (and similarly situated standards
development organizations) should simply
change their business model(s) by finding other
ways to finance updates to their Standards, or
making the government pay for the updates:

Disputed. Plaintiffs’ characterization is not
supported by the quoted text, and is
controverted by Mr. Malamud’s deposition
testimony that Plaintiffs cite, in which
Mr. Malamud states that he disagrees with
Plaintiffs’ counsel’s characterization and
points out that even if the law is made freely
available to the public, it does not preclude
standards organizations from selling copies of
those standards (particularly authenticated
copies, redlines, or versions with commentary
or annotations). ICE Ex. 7 (Malamud Dep.
177:20–178:14). Plaintiff’s selective quotation
of the On the Media transcript omits a sentence
(where Plaintiffs have inserted an ellipses) in
which Mr. Malamud explains that the vast
majority of standards that standard
organizations publish are not law (meaning
that the vast majority of revenues would be
unaffected for these organizations). Plaintiffs
also omit further explanation by Mr. Malamud
that there are many ancillary benefits to
standards organizations and their members that
come from having standards incorporated by
reference into the law, which offset any
hypothetical loss to income. Dkt 60-12, Hudis
Decl. Exh. I.

BOB GARFIELD (Interviewer): There is
an expense attached to developing and
codifying these standards. If we take the
revenue away from those who do this work,
then what happens?
CARL MALAMUD: Well, there’s two
answers to that. One is that the non-profits
that develop these standards have a lot of
different revenue streams. They do
conferences, they do certification. They
develop standards that aren’t law. ... And so,
maybe they need to adjust their business
model, particularly given the fact they are a
non-profit public charity. Answer number
two is that government has shirked its
responsibilities. It said, gee, we can just
incorporate these privately developed
standards in the law, and we won’t have to
pay anything. And the only people that get

28

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

screwed up by this are the citizens that need
to read the law.
(Hudis Decl., ¶ 2, Exh. A, pp. 173-180, ¶ 10,
Exh. I (Garfield, B., Making Laws More Public
Transcript - On The Media, interview of Carl
Malamud, The Media, April 13, 2012),
production p. AERA_APA_NCME_32076)
(emphasis added).
65. In March 2012, Public Resource began
copying standards incorporated by reference
into the Code of Federal Regulations, and
providing the copies of these standards to
others. In May 2012, Public Resource began the
process of posting copies [sic] these standards
to its website. By May 2015, Public Resource
had posted PDF copies of over 1,000 standards
to its website (Hudis Decl., ¶ 2, Exh. A,
pp. 216-218).

Disputed to the extent that Plaintiffs
mischaracterize Public Resource’s activities.
In March 2012, Public Resource made 25
photocopies of 73 public safety standards that
had been incorporated by reference into U.S.
federal law and were sent to seven U.S.
government offices (including the White
House, Senate, House of Representatives,
National Archives, Administrative Conference
of the United States, Federal Trade
Commission, and the Copyright Office), ten
standards organizations, and to attorneys,
journalists, and Harvard Law School. The
1999 Standards were not among this group of
standards, nor were Plaintiffs recipients of
these photocopies. See Plaintiffs’ Exh. H. In
May 2012 Public Resource began the process
of posting electronic versions of standards
incorporated by reference on the Public
Resource website – not “copies,” which are
defined as material objects under the 1976
Copyright Act. See SMF ¶ 38, 17 U.S.C. §
101.

66. To demonstrate the depth and breadth of
Public Resource’s activities, Defendant has
published to its website https://law.resource.org,
inter alia, numerous state and municipal codes,
public safety codes, and technical standards –
see, e.g.,
https://law.resource.org/pub/us/code/safety.html
and
https://law.resource.org/pub/us/cfr/manifest.us.
html (Hudis Decl., ¶¶ 11-12, Exhs. J-K).

Disputed to the extent that Plaintiffs assert
Public Resource has “published” documents to
its website, as the term is not used according to
the meaning in the 1976 Copyright Act, which
defines “publication” as “the distribution of
copies or phonorecords of a work to the public
by sale or other transfer of ownership, or by
rental, lease, or lending. . . A public
performance or display of a work does not
itself constitute publication.” 17 U.S.C. § 101

29

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
(emphasis added). As defined by the 1976
Copyright Act, “‘copies’ are material objects,
other than phonorecords, in which a work is
fixed by any method now known or later
developed, and from which the work can be
perceived, reproduced, or otherwise
communicated, either directly or with the aid
of a machine or device.” 17 U.S.C. § 101. The
Copyright Act provides for exclusive rights
that apply to “copies” (17 U.S.C. § 106 (1) and
(3)), as well as exclusive rights that do not
implicate “copies” (17 U.S.C. § 106 (2) and
(4)–(6)). The electronic version of the 1999
Standards that Public Resource posted was not
a material object, and therefore not a “copy”
under the Copyright Act. Undisputed to the
extent that Public Resource has posted
identified materials to its website.

67. Several of the codes and standards that
Public Resource publishes on the
https://law.resource.org website are subject to
U.S. copyright protection (Hudis Decl., ¶¶ 1320, Exhs. L-S), and it is believed that Public
Resource publishes these codes and standards to
the https://law.resource.org website without
obtaining the permission of the copyright
owners of these works – for example: the Safety
Standard for Belt Manlifts: ASME A90.1-2003;
the Guidelines for the definition of onshore gas
gathering lines, the Classification in Mental
Retardation (1983 revision), the Official
methods of analysis of the Association of
Official Analytical Chemists, the Glazing
Manual (1990 edition), Mobile and Locomotive
Cranes: ASME B30.5-2004, Drinking water
system components: health effects: American
national standard/NSF international standard for
drinking water additives : ANSI/INSF 61-2001,
and the Minimum design loads for buildings
and other structures (Special ed. 2003).

30

Nonfactual legal argument; disputed. The
question of whether standards incorporated by
reference into law are “subject to U.S.
copyright protection” is a legal issue in dispute
in this litigation. Additionally, Plaintiffs have
not provided admissible evidence to support
their assertion that copyrights for these
standards are owned by the third party
organizations as Plaintiffs claim, as online
abstracts of copyright registrations are not
official registrations, nor are they proof of
copyright ownership, and Plaintiffs have not
obtained any statements from these third party
organizations to that effect.

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

68. In early 2012, Malamud was perusing
through the Code of Federal Regulations,
looking for various standards purportedly
incorporated by reference therein, when he
came upon a reference to the Sponsoring
Organizations’ 1999 Standards (Hudis Decl.,
¶ 2, Exh. A, pp. 232- 233).

Immaterial; disputed. In the cited deposition
testimony, Mr. Malamud states that the 1999
Standards came to his attention because they
were specified as having been incorporated by
reference under the Code of Federal
Regulations. Mr. Malamud does not say that
he was “perusing through the Code of Federal
Regulations, looking for various standards
purportedly incorporated by reference therein,
when he came upon a reference to the . . . 1999
Standards.” ICE Ex. 7 (Malamud Dep. 232:09–
25).

69. On May 17, 2012, Public Resource
purchased a used copy of the 1999 Standards
from an Amazon re-seller, “The Book Grove”
(Hudis Decl., ¶ 2, Exh. A, pp. 232-240, ¶ 21,
Exh. T, Int. Ans. 1, ¶¶ 22-23, Exhs. U and V).

Undisputed.

70. Public Resource only paid for the 1999
Standards, however, after a failed attempt in
2009 of procuring them for free (or at least at a
reduced cost) from the National Archives
pursuant to a Freedom of Information Act
request and accompanying “fee waiver” (Hudis
Decl., ¶ 2, Exh. A, pp. 240-51, ¶ 24, Exh. W
(production pp. AERA_APA_NCME_1015357 and 10167) and ¶ 25, Exh. X).

Immaterial; disputed to the extent that
Plaintiffs characterize Public Resource’s 2009
Freedom of Information Act (“FOIA”) request
as an attempt to procure the 1999 Standards for
free. Mr. Malamud stated at deposition that he
was not certain if there would have been a
charge to Public Resource by the National
Archives and Records Administration for
making the information it requested available.
This FOIA request was for approximately
2,000 standards that have been incorporated by
reference into law, of which the 1999
Standards were one of the listed standards.
Public Resource requested a fee waiver, and in
the alternative, requested that if no fees were
waived, the National Archives should provide
a partial response up to $5,000 of charges
(which may or may not have included the 1999
Standards). Dkt. 60-27, Hudis Decl. Exh. W.

31

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

71. Upon receipt of the purchased paper copy of
the 1999 Standards, Malamud disassembled the
book, removed the spine, trimmed the pages to
give them an even border, scanned the pages to
create a PDF (Acrobat Reader) file using a
Xerox scanner, and named the PDF file “aera.
standards.1999.pdf.” Malamud then appended a
cover sheet, or self-made “Certificate,” to the
front of the PDF file giving a false semblance of
governmental approval or permission to the
unauthorized copying and online posting of the
1999 Standards (Hudis Decl., ¶ 2, Exh. A,
pp. 257-259, 261-264, ¶ 21, Exh. T, Int. Anss.
3-4, ¶ 26, Exh. Y):

Disputed to the extent that Plaintiffs assert that
Public Resource’s cover sheets “giv[e] a false
semblance of governmental approval or
permission to the unauthorized copying and
online posting of the 1999 Standards.”
Plaintiffs have failed to adduce admissible
evidence in support of this alleged “fact,” and
this is opinion, not fact. Plaintiffs’ counsel
Mr. Hudis is not qualified as an expert to opine
on this matter.

72. Next, Malamud claims he post-processed
Public Resource’s PDF file of the scanned 1999
Standards to generate Optical Character
Recognition (“OCR”) on the text (Hudis Decl.,
¶ 2, Exh. A, p. 260, ¶ 21, Exh. T, Int.
Anss. 3-4).

Undisputed.

32

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

73. However, according to Public Resource’s
expert, James Fruchterman, Malamud never
OCR-processed the PDF file, so all Malamud
and Public Resource posted to the Internet was
an image-only document (Hudis Decl., ¶ 27,
Exh. Z, pp. 309-310, ¶ 28, Exh. AA, p. 9 (and
sub-Exh. B thereto)).

Disputed. Public Resource posted two versions
of the 1999 Standards online: one version on
the Public Resource website, and the other on
the Internet Archive website. The version
posted on the Internet Archive website did
undergo OCR and was available in various text
formats that were immediately accessible to
people who are blind or visually impaired
through use of screen reading programs. ICE
Ex. 51 (Fruchterman Report) p. 11–12.

74. OCR is the process of having a machine
recognize letters and words, generally from
documents, and translate those into letter or
word equivalents (Hudis Decl., ¶ 27, Exh. Z,
pp. 29-30).

Undisputed.

75. Without OCR-processing, Public
Resource’s unauthorized copying and posting of
the 1999 Standards provided no additional
technical value, such as for word-searching,
online identification, or text-to-speech
utilization for the blind and visually impaired
(Hudis Decl., ¶ 27, Exh. Z, pp. 30, 122, 200-01,
206, 271-72, 315-16).

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of this alleged
“fact,” and this is opinion, not fact. Plaintiffs’
counsel Mr. Hudis is not qualified as an expert
to opine on this matter.

33

Public Resource posted two versions of the
1999 Standards online: one version on the
Public Resource website, and the other on the
Internet Archive website. The version posted
on the Internet Archive website did undergo
OCR and was available in various text formats
that were immediately accessible to people
who are blind or visually impaired through use
of screen reading programs. ICE Ex. 51
(Fruchterman Report) p. 11–12. The electronic
version of the 1999 Standards that Public
Resource posted on the Public Resource
website that did not undergo OCR is still
valuable to people who are blind or visually
disabled because it is relatively trivial for such
a person to perform OCR on the document.
What is not trivial for a person who is blind or
visually disabled is to obtain a paper copy of
the 1999 Standards, scan each page, and
produce an electronic version that can then
have OCR performed on it, as this requires

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
equipment that most people who are blind do
not own, and takes hours of work. The nonOCR version that Public Resource posted on
the Public Resource website is therefore a
valuable contribution to making the 1999
Standards available to people who are blind or
visually disabled. ICE Ex. 51 (Fruchterman
Report) p. 8–9.

76. In the final step of the process, Malamud
claims he stamped metadata into the headers of
the PDF file, posted the file (the entirety of
Plaintiffs’ 1999 Standards) to Public Resource’s
https://law.resource.org website as well as the
website of the Internet Archive
(https://archive.org) (Answer & Counterclaim,
Court Dkt. 12, ¶¶ 7, 55; Hudis Decl., ¶ 2,
Exh. A, pp. 233-34, 271-72; ¶ 2 1, Exh. T, Int.
Ans. No. 2).

Undisputed.

77. In Defendant’s interrogatory answers
(verified by Malamud), Public Resource
describes a detailed quality control process
attendant to the unlawful digital copying of the
Sponsoring Organizations’ 1999 Standards.
During deposition questioning, however,
Malamud was unsure whether he followed
those quality control procedures at all (Hudis
Decl., ¶ 2, Exh. A, pp. 260-61, 267-68, 274275, ¶ 21, Exh. T, Int. Anss. 3-4, ¶ 35,
Exh. HH, Admission No. 2).

Disputed. Plaintiffs have not provided
evidence to support this assertion. At
deposition, Plaintiffs’ counsel asked if
Mr. Malamud had checked the quality of the
OCR process for accuracy for the 1999
Standards, and Mr. Malamud responded that
he did not, because that was not a part of
Public Resource’s normal workflow. ICE Ex. 7
(Malamud Dep. 267:06–268:02).

78. The Internet Archive is a nonprofit
Undisputed.
organization whose mission is to build and
maintain a digital library of the Internet. The
Internet Archive builds this Internet library –
which it makes available for public use – by
scanning, digitally capturing, and saving the
electronically scanned and captured third-party
websites, and by receiving content submissions
from third parties who have access to do so by
the establishment of user accounts (Hudis Decl.,
¶ 29, Exh. BB, pp. 31-41).

34

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

79. Malamud has such user account access
(Hudis Decl., ¶ 29, Exh. BB, pp. 51-56),
through which he uploaded the entirety of the
1999 Standards to the Internet Archive’s
website on May 26-27, 2012 (Hudis Decl., ¶ 29,
Exh. BB, pp. 59-112, ¶ 30, Exh. CC (¶¶ 3-18
therein), ¶ 32, Exh. EE, ¶ 33, Exh. FF).

Undisputed.

80. Public Resource posted Plaintiffs’ 1999
Standards to its website and the Internet
Archive website without the permission or
authorization of any of the Sponsoring
Organizations (Hudis Decl., ¶ 35, Exh. HH,
Admission Nos. 4-5; Levine Decl., ¶ 29;
Ernesto Decl., ¶ 35; Wise Decl., ¶ 26).

Undisputed.

81. By uploading the 1999 Standards to the
Internet Archive, Public Resource violated the
Internet Archive’s Terms of Use in effect at the
time of Public Resource’s infringement, which
in relevant part states:

Denied. This is a legal opinion, not a fact.
The legal question of whether posting
standards that have been incorporated by
reference into the law is noninfringing or fair
use is at issue in this litigation.

This terms of use agreement (the
“Agreement”) governs your use of the
collection of Web pages and other digital
content (the “Collections”) available
through the Internet Archive (the
“Archive”). When accessing an archived
page, you will be presented with the terms
of use agreement. If you do not agree to
these terms, please do not use the Archive’s
Collections or its Web site (the “Site”).
***
Some of the content available through the
Archive may be governed by local, national,
and/or international laws and regulations ...
You agree to abide by all applicable laws
and regulations, including intellectual
property laws, in connection with your use
of the Archive. In particular, you certify that
your use of any part of the Archive’s
Collections will be ... limited to
noninfringing or fair use under copyright
law. In using the Archive’s site, Collections,

35

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

and/or services, you further agree ... (b) not
to act in any way that might give rise to civil
or criminal liability, [and] ... (e) not to
infringe any copyright, trademark, patent,
or other proprietary rights of any person, ...
(Hudis Decl., ¶ 29, Exh. BB, pp. 41-45, ¶ 31,
Exh. DD) (emphasis added).
82. The unauthorized copy of the Sponsoring
Organizations’ 1999 Standards that Malamud
published to the Internet Archive at
https://archive.org/details/gov.law.aera.standard
s.1999 was in the exact same format, using the
same cover sheet or “Certificate” employed by
Public Resource in the posting of the
Sponsoring Organizations’ 1999 Standards to
Defendant’s own website. All of the
surrounding text associated with the posting to
the Internet Archive website was inserted by
Malamud – including the insertion of “Creative
Commons License: CC0 1.0 Universal,”
indicating that no rights are being asserted over
the item (Hudis Decl., ¶ 2, Exh. A, pp. 275-284,
¶ 29, Exh. BB, pp. 57-63, ¶ 30, Exh. CC (¶ 2
therein), ¶ 34, Exh. GG):

36

Nonfactual legal argument in part. Disputed to
the extent that the version of the 1999
Standards that Public Resource posted to the
Internet Archive underwent additional
processing by the Internet Archive systems,
performing OCR and creating a variety of
different electronic formats that are thereby
more accessible to people who are blind or
visually disabled, and therefore not “the exact
same format” as the version on the Public
Resource website, as Plaintiffs suggest. ICE
Ex. 51 (Fruchterman Report) p. 11–12.
Disputed also to the extent that Plaintiffs assert
that Public Resource has “published” the 1999
Standards to the Internet Archive website, as
the term is not used according to the meaning
in the 1976 Copyright Act, which defines
“publication” as “the distribution of copies or
phonorecords of a work to the public by sale or
other transfer of ownership, or by rental, lease,
or lending. . . A public performance or display
of a work does not itself constitute
publication.” 17 U.S.C. § 101 (emphasis
added). As defined by the 1976 Copyright
Act, “‘copies’ are material objects, other than
phonorecords, in which a work is fixed by any
method now known or later developed, and
from which the work can be perceived,
reproduced, or otherwise communicated, either
directly or with the aid of a machine or
device.” 17 U.S.C. § 101. The Copyright Act
provides for exclusive rights that apply to
“copies” (17 U.S.C. § 106 (1) and (3)), as well
as exclusive rights that do not implicate
“copies” (17 U.S.C. § 106 (2) and (4)–(6)).

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
The electronic version of the 1999 Standards
that Public Resource posted was not a material
object, and therefore not a “copy” under the
Copyright Act.

83. Public Resource claims the Sponsoring
Organizations’ 1999 Standards were posted to
Public Resource’s https://law.resource.org
website and to the Internet Archive
https://archive.org website from July 11, 2012
to June 10, 2014 (Hudis Decl., ¶ 21, Ex. T, Int.
Ans. 2).

Undisputed.

84. As previously noted, Public Resource
actually uploaded the 1999 Standards to
Internet Archive’s website on May 26-27, 2012.
The Sponsoring Organizations have no ability
to verify when Public Resource uploaded the
1999 Standards to its own website, because
neither the “file creation date” nor user access
logs were produced during discovery,
notwithstanding production requests for this
documentation and an accompanying discovery
motion demanding production that in relevant
part was denied (Hudis Decl., ¶ 36).

Disputed. Plaintiffs have not adduced
admissible evidence to support this fact.
Public Resource produced the version of the
1999 Standards that it had posted on the Public
Resource website, complete with the file
creation date in its metadata. As Mr. Malamud
stated at deposition, Public Resource does not
have logs documenting the date on which the
1999 Standards were posted to the Public
Resource website. ICE Ex. 7 (Malamud Dep.
273:20–274:03).

85. Although based on incomplete reporting
because Public Resource destroyed some of its
records (Hudis Decl., ¶ 2, Exh. A, pp. 272-74,
328-336), during the near two year period that
the Sponsoring Organizations’ 1999 Standards
were posted on Public Resource’s
https://law.resource.org website, they were
accessed at least 4,164 times (Hudis Decl.,
¶ 21, Exh. T, Int. Ans. 2 and Amended Ans. 5
(labeled 6)).

Disputed. Plaintiffs’ accusation that Public
Resource destroyed some of its records is
unfounded, and Plaintiffs fail to adduce
evidence to support their claim. In the cited
deposition testimony, Mr. Malamud stated that
when Public Resource agreed to take the 1999
Standards offline pending the outcome of this
litigation, the act of taking the standards
offline changed metadata on one of the files
that might otherwise have been used to
determine the original posting date. Plaintiffs
also cite Public Resource’s statement at
deposition that Public Resource previously had
a 2-week retention policy for server logs until
litigation commenced in the ASTM v.
Public.Resource.Org case in August 2013, at
which time the server logs have been retained
permanently (nine months prior to when the

37

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
AERA Plaintiffs filed suit). Plaintiffs’ claims
as to the number of accesses of the 1999
Standards on the Public Resource website is
also incorrect, as their calculation appears to
include access figures for a stub page that
replaced the 1999 Standards on the Public
Resource website in June 2014, when Public
Resource had taken down the 1999 Standards
pending the resolution of this litigation. See
Dkt. 60-23, Hudis Decl. Exh. T. Plaintiffs also
fail to explain that the number of “accesses”
means the number of access requests from a
computer to the Public Resource server, and
does not necessarily mean accesses by human
beings, but could instead be accesses by
webcrawlers, bots, or other automated
programs. Dkt. 60-23, Hudis Decl. Exh. T, at
7–8.

86. During that same period, the Sponsoring
Organizations’ 1999 Standards were accessed
on the Internet Archive https://archive.org
website 1,290 times (Hudis Decl., ¶ 29,
Exh. BB, pp. 124-132, ¶ 37, Exh. II).

Disputed to the extent that the time period
pertinent to the access figures that Plaintiffs
cite as Exh. II is not established in the
documents Plaintiffs cite. Plaintiffs also fail to
explain that the number of “accesses” means
the number of access requests from a computer
to the Public Resource server, and does not
necessarily mean accesses by human beings,
but could instead be accesses by webcrawlers,
bots, or other automated programs. Dkt. 6023, Hudis Decl. Exh. T, at 7–8.

87. The Internet Archive’s website is open to
the public and does not restrict an Internet
user’s ability to download or print the
Sponsoring Organizations’ 1999 Standards.
Public Resource also placed no such restrictions
on its website (Hudis Decl., ¶ 2, Exh. A, pp.
347-48), as Defendant’s expert,
Mr. Fruchterman, confirmed (Hudis Decl., ¶ 27,
Exh. Z, pp. 327-28).

Undisputed.

88. Mr. Fruchterman also confirmed that there
were no sign-up procedures to enter Public
Resource’s https://law.resource.org website, nor

Disputed to the extent that Plaintiffs imply that
DRM technology should be used to restrict
access to the law.

38

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

was there any Digital Rights Management (or
“DRM”) plan to protect against wide-spread
copying of the files accessed from Public
Resource’s site (Hudis Decl., ¶ 27, Exh. Z, pp.
324-27, 167-173).
89. The parties and the Court can only speculate
on the number of further electronic copies of
the 1999 Standards that were made and
distributed to others by the original Internet
users who accessed the unauthorized copies that
Public Resource posted to its site and the
Internet Archive site.

Undisputed that the Plaintiffs’ statement
indicates a lack of any evidence about the
making or distribution of copies by any
persons. Nonfactual statement. Otherwise
disputed. Plaintiffs have not adduced
admissible evidence to support this contention.
This is opinion, not a fact, and Plaintiffs do not
cite any evidence or individual who holds this
opinion. Plaintiffs have the burden of proof
for establishing harm, and should not invite the
Court to “speculate” as to downstream copying
or distribution of which Plaintiffs have failed
to find any evidence. Notably, after Public
Resource took down the 1999 Standards
pending the outcome of this litigation,
Mr. Fruchterman looked for an electronic
version of the 1999 Standards online and could
not find one. ICE Ex. 51 (Fruchterman Expert
Report), p. 5–6.

90. There simply is no way for Plaintiffs to
calculate with any degree of certainty the
number of university/college professors,
students, testing companies and others who
would have purchased Plaintiffs’ Standards but
for their wholesale posting on Defendant’s
https://law.resource.org website and the Internet
Archive http://archive.org website. (Levine
Decl., ¶ 30; Geisinger Decl., ¶ 24).

Undisputed that there is no evidence of any
lost sales of the 1999 Standards as a
consequence of Defendant’s postings of the
1999 Standards. Otherwise disputed.
Plaintiffs have not adduced admissible
evidence to support this contention. This is
opinion, not a fact. Dr. Levine is not qualified
as an expert, and Dr. Geisinger is not qualified
as an expert on the subject of economic
substitution. See Public Resource’s Motion to
Strike the Declaration of Dr. Geisinger, Dkt.
67. Plaintiffs have the burden of proof for
establishing harm, cannot shrug off this burden
after failing to find evidence of any individual
who would have purchased the 1999 Standards
but for Public Resource’s posting, and
similarly failing to retain an expert witness
with expertise in economic substitution.

39

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

91. In late 2013 and early 2014, the Sponsoring
Organizations became aware that the 1999
Standards had been posted on the Internet
without their authorization, and that students
were obtaining free copies from the posting
source. Upon further investigation, the
Sponsoring Organizations discovered that
Public Resource was the source of the online
posting (Camara Decl., ¶ 21, Exh. MMM; Wise
Decl., ¶¶ 27-28, Exh. LLL).

Disputed. Plaintiffs have not adduced
admissible evidence to support their contention
that students obtained free copies of the 1999
Standards from Public Resource.

92. In December 2013, Plaintiff AERA
requested in writing that Public Resource
remove the 1999 Standards from its online
postings (Levine Decl., ¶ 31, Exh. UUU).
Defendant flatly refused (Hudis Decl., ¶ 2,
Exh. A, pp. 310-19, ¶ 38, Exh. JJ, ¶ 39,
Exh. KK). Once this lawsuit was filed and the
Sponsoring Organizations threatened to file a
motion for a preliminary injunction, Public
Resource agreed in June 2014 to remove its
postings of the 1999 Standards from its
https://law.resource.org website and from
Internet Archive’s https://archive.org website –
pending a resolution of this litigation on the
merits. Public Resource’s undertaking included
the promise not to post any revision of the 1999
Standards (i.e., the 2014 Standards) pending the
outcome of this litigation (Hudis Decl., ¶ 2,
Exh. A, pp. 322-28, ¶ 40, Exh. LL, ¶ 41,
Exh. MM).

Undisputed.

93. Had Public Resource not made, and
followed through with, these promises, the
Sponsoring Organizations would have filed a
preliminary injunction motion and were
seriously contemplating delaying publication of
the 2014 Standards (Levine Decl., ¶ 32).

Undisputed.

94. By June 2014, when Public Resource finally
removed its online postings of the 1999
Standards, the damage already had been done.
In Fiscal Year (“FY”) 2011 to FY 2012, as
compared to FY 2011, the Sponsoring

Disputed. There was not a 34% drop in sales
in in FY 2012 compared to the prior year.
What Plaintiffs present as “sales” data is
actually gross revenue data, not the number of
copies sold.

40

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

Organizations experienced a 34% drop in sales
of the 1999 Standards. In FY 2013, sales of the
1999 Standards remained at their low level from
the prior fiscal year (Levine Decl., ¶¶ 18, 33,
Exh. OOO).

Disputed also regarding Plaintiffs’
characterization that “when Public Resource
finally removed its online postings of the 1999
Standards, the damage already had been done.”
Plaintiffs fail to explain

Plaintiffs have not demonstrated any
relationship between Public Resource’s
posting and the sale of the 1999 Standards.
ICE Exs. 39, 41. Moreover,
is consistent with Plaintiffs’ expert
Dr. Geisinger’s prediction that if sales of the
1999 Standards were affected by widespread
knowledge that the new edition of the
Standards were forthcoming, he expected that
the decline would start in 2010 or 2011. Dkt.
60-88 (Geisinger Decl.) ¶ 25; ICE Ex. 8
(Geisinger Dep. 93:20-97:04).
95. The timing of the drop in sales is notable,
given that Public Resource posted the Standards
to the Internet in 2012-2013, and that the

41

Disputed. Dr. Levine stated

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

Sponsoring Organizations’ updated Standards
were not published until the summer of 2014
(Levine Decl., ¶ 34).

is consistent
with Plaintiffs’ expert Dr. Geisinger’s
prediction that if sales of the 1999 Standards
were affected by widespread knowledge that
the new edition of the Standards were
forthcoming, he expected that the decline
would start in 2010 or 2011. Dkt. 60-88
(Geisinger Decl.) ¶ 25; ICE Ex. 8 (Geisinger
Dep. 93:20-97:04).
96. For a publication with the longevity of the
1999 Standards, one otherwise would expect to
see a gradual decline in sales year-over-year;
not the precipitous drop in sales experienced by
the 1999 Standards in 2012 and 2013 (Geisinger
Decl., ¶ 25).

42

Disputed. This is not a fact, it is an opinion,
and Dr. Geisinger is not qualified as an expert
in the subject of economic substitution. See
Public Resource’s Motion to Strike the
Declaration of Dr. Geisinger, Dkt. 67. There
was not a “precipitous drop in sales
experienced by the 1999 Standards in 2012 and

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

consistent with Plaintiffs’ expert
Dr. Geisinger’s prediction that if sales of the
1999 Standards were affected by widespread
knowledge that the new edition of the
Standards were forthcoming, he expected that
the decline would start in 2010 or 2011. Dkt.
60-88 (Geisinger Decl.) ¶ 25; ICE Ex. 8
(Geisinger Dep. 93:20-97:04).

97. Past harm from Public Resource’s
infringing activities includes misuse of
Plaintiffs’ intellectual property without
permission (Ernesto Decl., ¶ 36; Geisinger
Decl., ¶ 26), lost sales that cannot be totally
accounted for – due to potentially infinite
Internet distribution, for example by
psychometrics students (Wise Decl., ¶¶ 27-28,
Exh. LLL; Levine Decl., ¶ 35; Geisinger Decl.,
¶ 26).

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of these alleged
“facts.” Plaintiffs have not articulated how the
use of standards incorporated into the law that
Plaintiffs voluntarily took off sale could
constitute “harm” to Plaintiffs, short of
conclusory statements by Ms. Ernesto and
Dr. Geisinger, neither of which are qualified as
experts on the subject of harm. See Public
Resource’s Motion to Strike the Declaration of
Dr. Geisinger, Dkt. 67. The question of
whether such use is “misuse” is legal issue in
dispute in this litigation. Plaintiffs have failed
to adduce admissible evidence to support their

43

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response
claim that there are any lost sales attributable
to Public Resource’s posting, nor that any such
lost sales cannot be totally accounted for, nor
their speculation on “potentially infinite
Internet distribution.” Neither Dr. Wise nor
Dr. Geisinger are qualified as experts on the
subject of economic substitution or Internet
distribution. See Public Resource’s Motion to
Strike the Declaration of Dr. Geisinger, Dkt.
67.

98. The harm also includes lack of funding that
otherwise would have been available for the
update of the Sponsoring Organizations’
Standards from the 1999 to the 2014 versions
(Levine Decl., ¶ 35; Camara Decl., ¶ 22;
Geisinger Decl., ¶ 26).

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of this alleged
“fact.”

Therefore,
Plaintiffs had many times the amount of
funding necessary for the development of the
2014 Standards, and the Test Standards
Development Fund is over twelve times as
large as it was shortly after the publishing of
the 1999 Standards.
99. Should Public Resource’s infringement be
allowed to continue, the harm to the Sponsoring
Organizations, and public at large who rely on

44

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of these alleged
“facts.” These are opinions, not facts, and

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

the preparation and administration of valid, fair
and reliable tests, includes: (i) uncontrolled
publication of the 1999 Standards without any
notice that those guidelines have been replaced
by the 2014 Standards; (ii) future unquantifiable
loss of revenue from sales of authorized copies
of the 1999 Standards (with proper notice that
they are no longer the current version) and the
2014 Standards; and (iii) lack of funding for
future revisions of the 2014 Standards and
beyond (Levine Decl., ¶ 36; Camara Decl.,
¶ 23; Ernesto Decl., ¶ 37; Geisinger Decl.,
¶ 27).

Dr. Levine, Mr. Camara, Ms. Ernesto, and
Dr. Geisinger are not qualified as experts on
the subjects of economic substitution or harm.
See Public Resource’s Motion to Strike the
Declaration of Dr. Geisinger, Dkt. 67.

100. Without the sales revenue from prior
Standards versions (because – if Public
Resource succeeds in this litigation – this
publication will be made freely available
online), it is very unlikely that future updates to
the Standards will be undertaken. This is
because NCME is too small an organization to
financially support periodic updates of the
Standards, AERA does not have the budget for
it, and an insufficient number of
psychometricians are members of APA for it to
justify the ongoing expenditures. Charging
extra membership fees to fund ongoing updates
to the Standards would never happen, because
the governing bodies of AERA, APA and
NCME would not vote for it. If these
Sponsoring Organizations ceased updating the
Standards, it is unlikely that other organizations
would step in and continue the effort (Geisinger
Decl., ¶ 23).

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of this alleged
“fact.” These are opinions, not facts, and
Dr. Geisinger is not qualified as experts on the
subjects of economic substitution or harm. See
Public Resource’s Motion to Strike the
Declaration of Dr. Geisinger, Dkt. 67.
Plaintiffs assume, contrary to evidence, that
availability of the 1999 Standards on the
Internet will mean that no copies of the 1999
Standards will be sold, when sales continued
even when Public Resource had posted the
1999 Standards online. See, e.g., ICE Ex. 41.
Moreover, Plaintiffs have no basis for claiming
that the organizations cannot fund the
per-member annual cost of financing the
development of the Standards, as described in
¶ 39, above.

101. The harm caused to the public by out-ofdate Standards will be significant, because the
testing and assessment fields are constantly
changing, given updates in testing technology
and ever-evolving collective thought on the
validity, reliability and fairness of tests.
Members of the public who would be harmed
by discontinued update of the Standards include
psychometrics professors, students and

Disputed. Plaintiffs have failed to adduce
admissible evidence in support of this alleged
“fact.” This statement is conclusory as to harm,
which has not been proven, and Plaintiffs have
no evidence that people will be confused in
relying on outdated standard as if it were the
most recent edition. Moreover, Plaintiffs’
expert Dr. Geisinger stated at deposition

45

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s Response

professionals, as well as test developers,
administrators and test takers (Geisinger Decl.,
¶ 28).
102. Notwithstanding the harm it has caused,
and could potentially continue to cause, Public
Resource’s intentions are crystal clear.
Although not now publicly available pending
the outcome of this litigation, Public Resource
still has an unauthorized copy of the Sponsoring
Organizations’ 1999 Standards on its server
(Hudis Decl., ¶ 2, Exh. A, pp. 273, 309); as
does the Internet Archive (Hudis Decl., ¶ 29,
Exh. BB, pp. 116-17).

Disputed that Public Resource has caused any
harm. Public Resource does not dispute that it
has a version of the 1999 Standards on its
server. Disputed as to whether Public
Resource’s copy is “unauthorized” because
that is a legal conclusion and Public Resource
does not accept that Plaintiffs have any right to
authorize or deauthorize copies of the law.
Undisputed that Public Resource’s intentions
of making the law available to and accessible
by the public is crystal clear.

103. It would be very simple for Public
Resource to re-post the 1999 Standards to
Public Resource’s website with little effort
(Hudis Decl., ¶ 2, Exh. A, pp. 306-07).

Undisputed.

104. Moreover, should Public Resource
successfully defend this lawsuit, it has every
intention of similarly posting the Sponsoring
Organizations’ 2014 Standards to the Internet in
the same manner it posted Plaintiffs’ 1999
Standards (Hudis Decl., ¶ 2, Exh. A,
pp. 308-09).

Disputed. Public Resource has never posted
the 2014 edition of the Standards anywhere,
and Public Resource has never stated an
intention to post the 2014 Standards. To Public
Resource’s knowledge, the 2014 Standards
have not been incorporated by reference into
law. Malamud Decl. ¶ 33. It is undisputed that
Public Resource posts only those standards that
have become law. See SMF ¶ 40; Malamud
Decl. ¶ 33. 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.” ICE Ex. 7
(Malamud Dep. 307:17–309:03).

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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/5546470.7

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