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

Filing 130

MOTION to Reopen Case , MOTION for Scheduling Order by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: # 1 Text of Proposed Order)(Elgarten, Clifton)

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.,

Case No. 1:14-cv-00857-TSC

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
MOTION TO RETURN CASE TO THE COURT’S ACTIVE DOCKET AND TO ADOPT
PROPOSED BRIEFING SCHEDULE TO ADDRESS THE REMANDED ISSUE
Plaintiffs move this Court to return this case to the Court’s active docket, see Minute
Order, July 6, 2017, and to enter a scheduling order on the copyright fair use issue remanded by
the Court of Appeals.
This case is back before this Court on remand from the Court of Appeals, after this
Court’s decision in Plaintiffs’ favor. See American Society for Testing and Materials, et al. v.
Public.Resource.Org, Inc., 896 F.3d 437, 448 (D.C. Cir. 2018) (mandate entered Sept. 7, 2018,
Dkt. 185). Although Defendant raised several issues on appeal, the Court of Appeals reserved
judgment on most of them or held them forfeit. See, e.g., 896 F.3d 437, 441 (D.C. Cir. 2018)
(“leaving for another day … whether standards retrain their copyright after they are incorporated
by reference into law”); id. at 446 (Defendant forfeited argument that the standards were not
validly copyrighted). Instead, noting the number of instances of copying, the number of
1
DCACTIVE-48673344.1

standards, and multiplicity of circumstances at issue in American Society for Testing and
Materials v. PublicResource.Org, Inc., No. 1-13-cv-01215 (“ASTM”), the Court of Appeals
remanded that case and this one for a single purpose: “for the district court to further develop the
factual record and weigh the [fair use] factors as applied to [Defendant’s] use of each standard in
the first instance.” Id. at 448–49.
Significantly, the fair use issues presented in this case do not involve many of the
complicating questions — stemming from multiple differing standards, methods and
circumstances of incorporation in regulation, and instances of copying — that the Court of
Appeals identified with respect to the fair use issues in the companion ASTM case. See, e.g., id.
at 449 (cautioning against “treating the standards interchangeably” in fair use analysis); id. at
452 (noting that Defendant’s “copying must be considered standard by standard”). Indeed, the
Court of Appeals never specifically addressed the fair use issue presented by this case, which
involves one instance of defendant’s wholesale copying of the entirety of a single work, rather
than the myriad of separate standards at issue in ASTM, which the Court of Appeals felt would be
better addressed by grouping the standards in some way.1
In any event, the Court of Appeals’ remand order now requires the parties and this Court
to address the fair use issue. In accordance with Local Rule 7(m), Plaintiffs have conferred with
Defendant. Plaintiffs and Defendant agree that the next phase of this case should be decided on
cross-filings in the nature of summary judgment briefing. There may, however, be disagreement

1

As a practical matter, the Court of Appeals appears not to have separately considered the fair
use issues in this case because this case and the ASTM case had been consolidated for argument
in that court, and there was no separate briefing of the fair use factors as applied to this particular
case.

2
DCACTIVE-48673344.1

about the scope of the next phase of proceedings in this Court, including whether discovery
ought to be reopened.
Plaintiffs therefore propose a simultaneous briefing schedule, with opening cross-motions
for summary judgment due 60 days after the Court’s order setting the briefing schedule, amicus
briefs due 30 days after the date opening cross-motions are filed, and opposition briefs due 45
days after opening cross-motions are filed, with argument to be set at this Court’s convenience.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court return this case to
the Court’s active docket to address the issue on which the Court of Appeals remanded, and enter
a scheduling order that adopts the deadlines set out above.

Dated: February 7, 2019

Respectfully submitted,
/s/ Clifton S. Elgarten
Clifton S. Elgarten (D.C. Bar # 366898)
Crowell & Moring LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]
Email: [e-mail]
Counsel for Plaintiffs

3
DCACTIVE-48673344.1