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

Filing 124

NOTICE RE PRELIMINARY AND NON-BINDING STATEMENT OF ISSUES BY APPELLANT/DEFENDANT-COUNTERCLAIMANT PUBLIC.RESOURCE.ORG, INC. by PUBLIC.RESOURCE.ORG, INC. (Bridges, Andrew)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.;

Case No. 1:14-CV-00857-TSC-DAR

AMERICAN PSYCHOLOGICAL ASSOCIATION,
INC.; and

PRELIMINARY AND NON-BINDING
STATEMENT OF ISSUES BY
APPELLANT/DEFENDANTCOUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.

NATIONAL COUNCIL ON MEASUREMENT IN
EDUCATION, INC.,
Plaintiffs/Counter-Defendants,
v.

Action Filed: May 23, 2014

PUBLIC.RESOURCE.ORG, INC.
Defendant/Counterclaimant.

Pursuant to Federal Rule of Appellate Procedure 10(b), Defendant and Counterclaimant
Public.Resource.Org, Inc. hereby provides the following preliminary and non-binding statement
of issues on appeal:
I.

Statement of Issues to be Raised

1. Did the district court err by enjoining Public.Resource.Org?
2. Did the district court err in holding that Plaintiff-Appellees can assert copyright in, and thus
limit the ability of people to read and communicate, the text of standards that are legally binding
due to incorporation into state and federal laws and regulations?
3. Did the district court err in holding that Public.Resource.Org’s posting of standards that are
legally binding due to incorporation into state and federal laws and regulations, in the course of
building a publicly accessible archive of government edicts, was not a fair use?

4. Did the district court err in holding that Plaintiff-Appellees own copyrights in standards that
are legally binding due to incorporation into state and federal laws and regulations, despite
undisputed evidence showing that Plaintiff-Appellees were not the authors of those standards?
5. Did the district court err by declining to strike a purported expert report of Dr. Kurt Geisinger
that applied no specialized knowledge, experience, or expertise, but merely repeated the
subjective opinions of Plaintiff-Appellees’ employees and officers, and who failed to disclose his
opinions in his expert report, and submitted unreliable conclusions?
6. Did the district court err by making evidentiary rulings against Public.Resource.Org, and
failing to sustain Public.Resource.Org’s evidentiary objections regarding Plaintiffs’ motion for
summary judgment?
II.

Underlying Decision from Which Appeal Arises

The rulings under review (attached hereto) are the district court’s Order of February 2,
2017 granting Plaintiff-Appellees’ Motion for Summary Judgment, granting Plaintiff-Appellees’
Motion for Permanent Injunction, and denying Defendant-Appellant Public.Resource.Org’s
Motion for Summary Judgment (ECF No. 118) and Memorandum Opinion (ECF No. 117), and
the district court’s Order of September 21, 2016 denying Defendant-Appellant
Public.Resource.Org’s Motion to Strike the expert report of Dr. Kurt Geisinger (ECF No. 115).

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Dated: March 3, 2017
Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Sebastian E. Kaplan (admitted pro hac vice)
[e-mail]
Matthew B. Becker (admitted pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
Corynne McSherry (admitted pro hac vice)
[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.

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing was electronically filed with the Clerk of the Court for
the District of Columbia and served on all counsel of record via the CM/ECF system on
March 3, 2017.
/s/ Andrew P. Bridges
Andrew P. Bridges

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