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

Filing 122

Joint STATUS REPORT in compliance with Court's Minute order of Feb. 13, 2017, filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC.. (Attachments: #1 Certificate of Service)(Hudis, Jonathan)

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/Counterclaim-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaim-Plaintiff.

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Civil Action No. 1:14-cv-00857-TSC-DAR
JOINT STATUS REPORT

Plaintiffs, American Educational Research Association, Inc. (“AERA”), American
Psychological Association, Inc. (“APA”) and National Council on Measurement in Education,
Inc. (“NCME”) (collectively, “Plaintiffs”) and Defendant, Public.Resource.Org, Inc.
(“Defendant”), by and through undersigned counsel, and pursuant to the Court’s February 13,
2017 Minute Order (the “Minute Order”), submit the following Joint Status Report, addressing
the two questions identified by the Court in the Minute Order.
Defendant’s Compliance with the Court’s February 2, 2017 Order
On February 2, 2017, this Court entered an Order granting in part and denying in part
Plaintiffs’ Motion for Summary Judgment. [Dkt. 118 (the “Order”)]. Specifically, the Court
directed that:
It is hereby ORDERED that Defendant is permanently enjoined from
all unauthorized use, including through reproduction, display,
distribution, or creation of derivative works, of the Standards for
Educational and Psychological Testing, 1999 edition.
Defendant is FURTHER ORDERED to remove all versions of this
standard from its website and any other website within its possession,
custody, or control within five days.

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[Dkt. 118; see also Dkt. 117 at 40 (holding Plaintiffs’ copyright valid and directly infringed)].
Defendant certifies that it has complied with the Court’s Order and has removed all versions of
the 1999 Standard from its website and any other website within its possession, custody, or
control.
Proposed Schedule For This Action
As the Court is aware, the Court’s Order only granted in part Plaintiffs’ Motion for
Summary Judgment and did not dispose of all claims in this action, leaving open Count 2
(contributory infringement) and Defendant’s Counterclaim for a declaration of no liability.
However, on February 17, 2017, Defendant filed a Notice of Appeal, appealing those holdings
the Court did make in the Order. [Dkt. 120]. Since the filing of the appeal, the Parties have met
and conferred and have agreed that a stay of this action, pending the resolution of Defendant’s
appeal, is the best way to ensure orderly and efficient litigation of this action. Indeed, absent a
stay in this case, the parties will engage in protracted litigation in this Court that may be
substantially affected by the D.C. Circuit’s review of the Court’s Order. Plaintiffs’ second claim
of contributory infringement and Defendant’s counterclaim for declaratory relief necessarily
involve factual and legal findings that are the same as those Defendant is expected to challenge
on appeal, namely the Court’s finding that Plaintiffs’ copyright is valid and Defendant’s posting
of Plaintiffs’ work to the internet was not fair use. Thus, in the interests of efficiency and
avoiding unnecessary expenditure of resources by the Parties and the Court, the Parties
respectfully request that the Court enter an order staying the proceedings pending resolution of
Defendant’s appeal. An appropriate Stipulated Motion is being submitted herewith.
(Signatures on next page)

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Respectfully submitted,

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Nikia L. Gray (DC Bar #1029008)
Jonathan P. Labukas (DC Bar # 998662)
Quarles & Brady LLP
1700 K Street NW, Suite 825
Washington, DC 20006-3825
Tel. [phone]
E-Mail [e-mail]
E-Mail [e-mail]
E-Mail [e-mail]

/s/ Matthew B. Becker
Andrew P. Bridges
Sebastian E. Kaplan
Matthew B. Becker
Fenwick & West LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Tel. [phone]
E-Mail: [e-mail]
E-Mail: [e-mail]
E-Mail: [e-mail]

Counsel for Plaintiffs American Educational
Research Association, Inc., American
Psychological Association, Inc., and National
Council on Measurement in Education, Inc.

David Halperin
1530 P Street, NW
Washington DC 20005
Tel: [phone]
Email: [e-mail]
Corynne McSherry
Mitchell Stoltz
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel for Defendant
Public.Resource.Org, Inc.

Dated: March 3, 2017

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