AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.
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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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.,
Civil Action No. I: I 4-cv-00857-TSC-DAR
DECLARATION OF FELICE
J. LEVINE IN SUPPORT OF
PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT AND ENTRY
OF A PERMANENT INJUNCTION
I, FELICE J. LEVINE, declare:
I am the Executive Director of the American Educational Research Association,
Inc. ("AERA") I have been employed by the AERA since May 2002. I submit this Declaration
in support of the motion of the AERA, the American Psychological Association, Inc. ("APA"),
and the National Council on Measurement in Education, Inc. ("NCME") (collectively,
"Plaintiffs" or "Sponsoring Organizations") for summary judgment and the entry of a permanent
As set forth in the AERA Bylaws, the Executive Director is the chief executive
officer of the Association. In that capacity, I am responsible for all programmatic, financial,
administrative, staffing, and managerial responsibilities of the AERA.
I also advise on and
implement the policies that guide our organization.
As publisher, the AERA has provided general oversight since November 1999 for
the production, printing, sales, and marketing of the "Standards for Educational and
Psychological Testing" (the "Standards"), and for the fiscal management of the revenue and
expenditure of funds and resources of that publication. AERA was selected to serve as publisher
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by the Management Committee of the three Sponsoring Organizations. As the Executive
Director of the AERA, I have administrative oversight over all of AERA's implementation of its
responsibilities regarding the Standards.
AERA is a District of Columbia not-for-profit corporation.
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.
In 1955, Plaintiffs AERA and NCME prepared and published a companion
document to APA's "Technical Recommendations for Psychological Tests and Diagnostic
Techniques" (published in 1954), entitled, "Technical Recommendations for Achievement
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 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.
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 ofthe Technical
Recommendations and then each subsequent revision of the (renamed) Standards.
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
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committee became referred to as the "Joint Committee."
Financial and operational oversight for the Standards' revisions, promotion,
distribution, 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
As Publisher of the 1999 and 2014 Standards, AERA works m
consultation with the Management Committee to implement its managerial guidance.
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, production, printing and shipment of bound volumes,
and advertising costs. For the 2014 Standards, the production, printing and shipment of bound
volumes, and advertising costs, are paid for by the publisher, AERA.
Many different fields of endeavor rely on assessments.
Organizations have ensured that the range of these fields of endeavor is represented in the Joint
Committee's 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.
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 extensive meetings of and work by the leading authorities in psychological and educational
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assessments (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.
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.
AERA has not solicited any government agency to incorporate the Standards into
the Code of Federal Regulations or other rules of Federal or State agencies.
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.
Accompanying this Declaration as
Exhibit NNN is a true copy of advertisements promoting the 1999 Standards, marked as Exhibit
1218 during my deposition.
All copies of the Standards bear a copyright notice.
Distribution of the Standards is closely monitored by the Sponsoring
AERA, the designated publisher of the Standards, sometimes provides
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
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they are not made available to the public by any of the three organizations for anyone to copy
free of charge. To date, AERA has never posted, or authorized the posting of, a digitized copy of
the 1999 Standards on any publicly accessible website.
The 1999 Standards have been sold at 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 sales diminished significantly, income generated from
sales of the 1999 Standards, on average, had been approximately in excess of$127,000 per year.
Accompanying this Declaration as Exhibit 000 is a true copy of AERA's
Statement of Revenue and Expenses for the Standards from FY2000 to December 31, 2013,
marked as Exhibit 1211 during my deposition.
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. Accompanying this Declaration as Exhibit PPP is a true copy of
the publication page for the 1999 Standards on the AERA website as of May 4, 2015 showing
that the 1999 Standards were not available for sale at that time, marked as Exhibit 1196 during
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
this reason, in the summer of2015 AERA resumed sales of the 1999 Standards. Accompanying
this Declaration as Exhibit QQQ is a true copy of the publication page for the 1999 Standards on
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the AERA website as updated during the summer of 2015, showing that the 1999 Standards are
available for sale.
All revenue from the sale of the 1999 Standards above expenses is used to cover
the publishing costs of the Standards and for the preparation of subsequent editions of the
Standards. The Sponsoring Organizations do not distribute any proceeds from the sales of the
Standards to the Sponsoring Organizations. 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
Without rece1vmg revenue from the sales of the Standards to offset their
preparation 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
The Sponsoring Organizations decided on a model of self-funding of revisions of
the Standards; that is, from the sale of prior editions of the Standards. 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 rejected because of the
appearance or potential of conflicts of interest and the importance of users of the Standards being
able to trust in their scientific integrity.
Due to the relative minor portion of the membership of AERA who devote their
careers to testing and assessment, it is highly unlikely that the members of AERA will vote for a
dues increase to fund future Standards revision efforts if Public Resource successfully defends
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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.
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.
Accompanying this Declaration as Exhibit RRR is a true copy of the December 8, 1999
Copyright Certificate of Registration for the 1999 Standards.
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. This Supplementary Registration was obtained to correct an
error in the listing of copyright ownership in Registration Number TX 5-l 00-196.
Accompanying this Declaration as Exhibit SSS is a true copy of the February 25, 2014
Supplementary Copyright Certificate of Registration for the 1999 Standards.
The Joint Committee that authored the 1999 Standards comprised 16 members.
Accompanying this Declaration as Exhibit TTT is a true copy of the 1999
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.
The Sponsoring Organizations can only speculate on the number of 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. There simply is no way for the Sponsoring Organizations to calculate with
any degree of certainty the number of university/college professors, students, testing companies
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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.
In December 20 13, Plaintiff AERA requested in writing that Public Resource
remove the I 999 Standards from its online postings. Accompanying this Declaration as Exhibit
UUU is a true copy of a letter sent from John S. Neikirk, Director of Publications at AERA, to
Carl Malamud of Public Resource regarding the posting of the I 999 Standards at
https://law .resource.org/pub/us/cfr/ibr/00 1/aera.standards. I 999 .pdf, marked as Exhibit 1228
during my deposition.
Had Public Resource not promised to remove the 1999 Standards from its
law.resource.org website and the Internet Archive website while this lawsuit is pending, and
followed through with, these promises, the Sponsoring Organizations seriously contemplated
moving forward with a motion to preliminary enjoin Public Resource from maintaining the
unauthorized postings of electronic copies of the 1999 Standards on the Internet, and delaying
pubIication of the 20 I 4 Standards.
By June 20I4, when Public Resource finally removed its online postings of the
1999 Standards, the damage already had been done. In Fiscal Year (" FY") 20 I I to FY 20 12, as
compared to FY 20 I I, the Sponsoring Organizations experienced a 34% drop in sales of the
1999 Standards. In FY 20 I 3, sales of the I 999 Standards remained at their low level from the
prior fiscal year.
This is notable, given that Publ ic Resource posted the Standards to the Internet in
20 12-2013, and that the Sponsoring Organizations' updated Standards were not published until
the summer of20 I4.
Past harm from Public Resource's infringing activities includes lost sales that
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cannot be totally accounted for- due to potentially infinite Internet distribution; for example, by
psychometrics students - and a lack of funding that otherwise would have been available for the
update of the Sponsoring Organizations' Standards from the 1999 to the 2014 versions.
Should Public Resource's infringement be allowed to continue, the harm to the
Sponsoring Organizations, and public at large who rely on 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.
Originally signed in identical form on December 15,2015.
I declare under the penalty ofperjur~egoing is true and correct. Executed on
February/!_, 2016, in
lr1/Pdli ~ , /