Filing 134

MOTION for Summary Judgment , MOTION for Permanent Injunction by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Hutter Decl., # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Declaration Hudis Decl., # 9 Exhibit A, # 10 Exhibit B, # 11 Exhibit C, # 12 Exhibit T, # 13 Exhibit U, # 14 Exhibit Z, # 15 Exhibit BB, # 16 Exhibit CC, # 17 Exhibit EE, # 18 Exhibit GG, # 19 Exhibit HH, # 20 Exhibit II, # 21 Exhibit JJ, # 22 Exhibit KK, # 23 Exhibit LL, # 24 Exhibit MM, # 25 Declaration Ernesto Decl., # 26 Exhibit NN, # 27 Exhibit OO, # 28 Exhibit PP, # 29 Exhibit QQ, # 30 Exhibit RR, # 31 Exhibit SS, # 32 Exhibit TT, # 33 Exhibit UU, # 34 Declaration Wise Decl., # 35 Exhibit KKK, # 36 Exhibit LLL, # 37 Declaration Camara Decl., # 38 Exhibit MMM, # 39 Declaration Levine Decl., # 40 Exhibit NNN, # 41 Exhibit PPP, # 42 Exhibit QQQ, # 43 Exhibit UUU, # 44 Declaration Geisinger Decl., # 45 Declaration Schneider Decl., # 46 Exhibit Levine Depo Tr., # 47 Exhibit No. 1207 to Levine Depo Tr., # 48 Exhibit No. 1308 to Levine Depo Tr., # 49 No. 1308 to Levine Depo Tr., # 50 Text of Proposed Order)(Elgarten, Clifton)

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Case 1:14-cv-00857-TSC Document 60-46 Filed 12/21/15 Page 1 of 3 EXHIBIT KK Case No. 1:14-cv-00857-TSC-DAR Case 1:14-cv-00857-TSC Document 60-46 Filed 12/21/15 Page 2 of 3 PUBIIC.RESOURCE.ORG - A Nonprofit Corporation Open Source .A,merica's Operating System "It's Not Just.A, Good ldea-It's The Law!" g ExHlElT Et\¡ó cr-[e-**ç--d Ê ¿Irl 4c ô at ú È s[., "-[ ,. s- December 19, 2013 John Neikirk Director of Publications American Educational Research Association 1430 K Street, NW, Suite 1200 Washington, DC 2005 Dear Mr. Neikerk: lam receipt of your communication of December 16 regarding the publication of the for Educational and Psychological Testing" (1999) at https://law.resource.orglpub/us lcfrlibrl00llaera.standards.1999.pdf. We are responsible for uploading this document. ln addition, you will find this document at AERA publication, "standard http s : / / archi ve. o rg / d etai I s / gov. ra. standard s. 1 999. The 1999 Edition of "standard for Educational and Psychological Testing" was lncorporated by Reference by the Department of Education, Oflice of Postsecondary Education, at 34 CFR 668.148(aXl)(iv). lncorporation by reference is not a casual allair and requires a carefully followed procedure by the governmental agenry and the explicit approval of the Director of the Ofiice of the Federal Register. As this standard has been incorporated into law, the standard contalned in this document is the law of the United States, and people in the United States are compelled to obey it. Long-standing precedent of the United States Supreme Court holds that copyright claims cannot prevent citizens from reading and speaking the law. See Wheaton v. Peters, 33 U.S. 591 (1834); Banks v. Manchester, 128 U.5.244 (1888). While the standards drafted by the American Educational Research Association, were entitled to copyright protection when issued, once they were incorporated into regulations these standards became the law, and thus have entered the public domain. Chief Judge Edith H.Jones of the 5th Circuit expressed this principle clearly in her opinion in Veeck v. Southern Building Code Congress, which concerned a model building code incorporated in the law of two Texas towns: "The issue in this en banc case is the extent to which a private organization may assert copyright protection for its model codes, after the models have been adopted by a legislative body and become "the law." Specifically, may a code- I005 GR.¡IVENSTEIN HIcHW.ã'Y NORTH, SEB.trSTOPOIr' CÃI¡IFOnNIil 95472 , PHr (I07) 827-7290 ' rX: (?0?) 829-0104 AERA APA NCME OOO5127 Case 1:14-cv-00857-TSC Document 60-46 Filed 12/21/15 Page 3 of 3 Letter to AERA, Page 2 writing organization prevent awebsite operator from posting the text of a model code where the code is identified simply as the building code of a city that enacted the model code as law? Our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works retain their protected status." 293 F.3d 791 (5th Cir. 2002) (en banc). As you can see by looking at the document in question, a cover sheet has been prepended clearly spelling out the section of the Code of Federal Regulations that has incorporated by reference this document into law. Please note thatwe were careful to only publish the specific document incorporated by law. As the 1999 Edition is the one required by law and as it has been duly incorporated into law, we respectfully decline to remove this document and respectfully decline to request permission. Sincerely yours, Digitally signed by Carl Malamud DN:cndarl Malamud, o=PublicResource.Org ;qu, em3, ll;carlQrnedi Ê=U5 .. a.or g, ' Date: 201 3.1 2.1 9 10:34.$4 48f0' Carl Malamud AERA APA NCME OOO5'128

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