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

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)

Case 1:14-cv-00857-TSC Document 60-3 Filed 12/21/15 Page 1 of 8

IN THE 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/Counterclaimant.

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Civil Action No. 1:14-cv-00857-TSC-DAR
DECLARATION OF JONATHAN
HUDIS IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND ENTRY
OF A PERMANENT INJUNCTION

I, JONATHAN HUDIS, declare:
1.

I am a partner with Quarles & Brady LLP, lead counsel to Plaintiffs, AMERICAN

EDUCATIONAL

RESEARCH

ASSOCIATION,

INC.

(“AERA”),

AMERICAN

PSYCHOLOGICAL ASSOCIATION, INC. (“APA”) and NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC. (“NCME”) (collectively, “Plaintiffs”) in the
captioned action.

I submit this Declaration in support of Plaintiffs’ motion for summary

judgment and entry of a permanent injunction against Defendant, Public.Resource.Org, Inc.
("Defendant" or "Public Resource").
2.

Accompanying this Declaration as Exhibit A is a true copy of the transcript from

the deposition of Carl Malamud ("Malamud"), taken in his personal capacity and as the
Fed.R.Civ.P. 30(b)(6) representative of Defendant (see transcript, pp. 14-22), on May 12, 2015
(the "Malamud/Public Resource Deposition").

Case 1:14-cv-00857-TSC Document 60-3 Filed 12/21/15 Page 2 of 8

3.

Accompanying this Declaration as Exhibit B is a true copy of the Articles of

Incorporation of Public Resource, filed with the California Secretary of State on April 13, 2007,
marked as Exhibit 16 during the Malamud/Public Resource Deposition.
4.

Accompanying this Declaration as Exhibit C is a true copy of the Bylaws of

Public Resource, having a "last revised" date of April 18, 2007 (see p. 23), marked as Exhibit 17
during the Malamud/Public Resource Deposition.
5.

Accompanying this Declaration as Exhibit D are true copies of the home page and

"About" page from Public Resource's website, https://public.resource.org, marked as Exhibits 19
and 20 during the Malamud/Public Resource Deposition.
6.

Accompanying this Declaration as Exhibit E is a true copy of a representative list

of projects Malamud/Public Resource has been involved in and publications he has written as
author or co-author, marked as Exhibit 15 during the Malamud/Public Resource Deposition.
7.

Accompanying this Declaration as Exhibit F is a true copy of a documented

Kickstarter crowd-funding campaign launched by Public Resource in 2013, to obtain outside
financial support for copying and posting third party standards and codes to the
https://public.resource.org website.

These captured Kickstarter web pages were marked as

Exhibit 27 during the Malamud/Public Resource Deposition.
8.

Accompanying this Declaration as Exhibit G is a true copy of the "Geneva"

chapter from Malamud's book entitled Exploring the Internet: A Technical Travelogue,
published in 1993, marked as Exhibit 22 during the Malamud/Public Resource Deposition.
9.

Accompanying this Declaration as Exhibit H is a true copy of Malamud, C.,

Liberating America’s Secret, For-Pay Laws, boingboing, March 19, 2012, marked as Exhibit 25
during the Malamud/Public Resource Deposition.

2

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10.

Accompanying this Declaration as Exhibit I is a true copy of Garfield, B., Making

Laws More Public Transcript - On The Media, interview of Carl Malamud, The Media, April 13,
2012, marked as Exhibit 24 during the Malamud/Public Resource Deposition.
11.

Accompanying this Declaration as Exhibit J to this Declaration is a true and

accurate copy of “Public Safety Codes Incorporated by Law,” appearing on Defendant’s website
at http://law.resource.org/pub/us/code/safety.html (last visited December 17, 2015).
12.

Accompanying this Declaration as Exhibit K to this Declaration is a true and

accurate copy of “Public Safety Standards United States (Federal Government),” appearing on
Defendant’s website at http://law.resource.org/pub/us/cfr/manifest.us.html (last visited December
17, 2015).
13.

Accompanying this Declaration as Exhibit L to this Declaration is a true and

accurate copy of the Register of Copyrights’ online abstract for U.S. Copyright Registration No.
TX 5-920-538, for the work “Safety standard for belt manlifts : ASME A90.1-2003.”
14.

Accompanying this Declaration as Exhibit M to this Declaration is a true and

accurate copy of the Register of Copyrights’ online abstract for U.S. Copyright Registration No.
TX 5-181-138, for the work “Guidelines for the definition of onshore gas gathering lines.”
15.

Accompanying this Declaration as Exhibit N to this Declaration is a true and

accurate copy of the Register of Copyrights’ online abstract for U.S. Copyright Registration No.
TX 427-109, for the work “Official methods of analysis of the Association of Official Analytical
Chemists.”
16.

Accompanying this Declaration as Exhibit O to this Declaration is a true and

accurate copy of the Register of Copyrights’ online abstract for U.S. Copyright Registration No.
TX 1-142-464, for the work “Classification in mental retardation.”

3

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17.

Accompanying this Declaration as Exhibit P to this Declaration is a true and

accurate copy of the Register of Copyrights’ online abstract for U.S. Copyright Registration No.
TX 2-953-680, for the work “Glazing manual.”
18.

Accompanying this Declaration as Exhibit Q to this Declaration is a true and

accurate copy of the Register of Copyrights’ online abstract for U.S. Copyright Registration No.
TX 6-062-476, for the work “Mobile and locomotive cranes : ASME B30.5-2004.”
19.

Accompanying this Declaration as Exhibit R to this Declaration is a true and

accurate copy of the Register of Copyrights’ online abstract for U.S. Copyright Registration No.
TX 5-434-639, for the work “Drinking water system components: health effects: American
national standard/NSF international standard for drinking water additives : ANSI/INSF 612001.”
20.

Accompanying this Declaration as Exhibit S to this Declaration is a true and

accurate copy of the Register of Copyrights’ online abstract for U.S. Copyright Registration No.
TX 5-902-199, for the work “Minimum design loads for buildings and other structures.”
21.

Accompanying this Declaration as Exhibit T is a true copy of DEFENDANT-

COUNTERCLAIMANT PUBLIC.RESOURCE.ORG, INC.’S AMENDED RESPONSES TO
PLAINTIFFSCOUNTERDEFENDANTS’ FIRST SET OF INTERROGATORIES (NOS 1-8),
marked as Exhibit 29 during the Malamud/Public Resource Deposition.
22.

Accompanying this Declaration as Exhibit U is a true copy of Public Resource's

receipt, dated May 17, 2015, for its purchase of Plaintiff's Standards for Educational and
Psychological Testing (1999 ed.), marked as Exhibit 30 during the Malamud/Public Resource
Deposition.

4

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23.

Accompanying this Declaration as Exhibit V is a true copy of Plaintiffs' Standards

for Educational and Psychological Testing (1999 ed.), marked as Exhibit 31 during the
Malamud/Public Resource Deposition.
24.

Accompanying this Declaration as Exhibit W is a true copy of a letter and

Freedom of Information Action ("FOIA") request dated July 14, 2009 from Public Resource to
the General Counsel of the National Archives, requesting a copy of, inter alia, Plaintiffs' 1999
Standards for free or at reduced cost pursuant to a "fee waiver," marked as Exhibit 32 during the
Malamud/Public Resource Deposition.
25.

Accompanying this Declaration as Exhibit X is a true copy of letter dated August

3, 2009 from the National Archives to Public Resource, marked as Exhibit 33 during the
Malamud/Public Resource Deposition, in which the National Archives denies Public Resource's
FOIA request of Exhibit W above.
26.
self-made

Accompanying this Declaration as Exhibit Y is a true copy of the cover sheet, or
"Certificate,"

that

Malamud

appended

to

the

front

of

the

PDF

file

"aera.standards.1999.pdf," Defendant's unauthorized digital copy of Plaintiffs' Standards for
Educational and Psychological Testing (1999 ed.), marked as part of Exhibit 34 during the
Malamud/Public Resource Deposition.
27.

Accompanying this Declaration as Exhibit Z is a true copy of the transcript from

the deposition of James R. Fruchterman ("Fruchterman"), Defendant's Expert, taken on
September 8, 2015 (the "Fruchterman Deposition").
28.

Accompanying this Declaration as Exhibit AA is a true copy of the Fruchterman

Expert Report, marked as part of Exhibit 64 during the Fruchterman Deposition.

5

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29.

Accompanying this Declaration as Exhibit BB is a true copy of portions of the

transcript from the deposition of Christopher Butler ("Butler"), Office Manager of the Internet
Archive (see transcript at pp. 5, 7-8 and 28-30), taken on December 2, 2014 (the "Butler/Internet
Archive Deposition").
30.

Accompanying this Declaration as Exhibit CC is a true copy of a Declaration of

Internet Archive (C. Butler) and Stipulation of the Parties (the "Butler/Internet Archive
Declaration") signed by Butler on January 20, 2015, subsequent to and as a supplementation of
the Butler/Internet Archive Deposition.
31.

Accompanying this Declaration as Exhibit DD is a true copy of Internet Archive's

Terms of Use dated March 10, 2001, marked as Exhibit 5 during the Butler/Internet Archive
Deposition.
32.

Accompanying this Declaration as Exhibit EE is a true copy of Internet Archive's

Item History for gov.law.aera.standards.1999, marked as Exhibit 7 during the Butler/Internet
Archive Deposition.
33.

Accompanying this Declaration as Exhibit FF is a true copy of Internet Archive's

Logs pertaining to the Item History for gov.law.aera.standards.1999, marked as Exhibit 8 during
the Butler/Internet Archive Deposition.
34.

Accompanying this Declaration collectively as Exhibit GG are a true copies of

screen captures of Plaintiffs' 1999 Standards in the form that they were uploaded by Public
Resource to the Internet Archive website, marked as Exhibit 6 during the Butler/Internet Archive
Deposition.

6

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35.

Accompanying this Declaration as Exhibit HH is a true copy of DEFENDANT

PUBLIC.RESOURCE.ORG, INC.’S RESPONSES TO PLAINTIFFS’ FIRST REQUESTS FOR
ADMISSIONS, SET ONE (NOS. 1-8).
36.

On December 15, 2014, Plaintiffs filed a motion to compel discovery of, inter

alia, documentation verifying when Public Resource published or posted Plaintiffs' 1999
Standards to one of Public Resource's websites, as well documentation verifying the number of
times Plaintiffs' 1999 Standards were viewed on, accessed from or downloaded from one of
Public Resource's websites (i.e., Public Resource's Internet server logs). The parties' motion
papers pertaining to Plaintiffs' discovery motion may found on the Court's docket at Dkt. Nos.
27, 29 and 30. Five months later, and without explanation, the Court (Robinson, M-J) denied
these parts of Plaintiffs' discovery motion (Court Order, May 20, 2015, Dkt. No. 49).
37.

Accompanying this Declaration as Exhibit II is a true copy of Internet Archive's

screen capture of its query results to determine from its records the download count for the item
with the identifier gov.law.aera.standards.1999, marked as Exhibit 11 during the Butler/Internet
Archive Deposition.
38.

Accompanying this Declaration as Exhibit JJ is a true copy of an e-mail dated

December 16, 2013 from Mr. John Neikirk, Director of Publications of Plaintiff AERA, to Carl
Malamud, requesting removal of Plaintiffs' 1999 Standards from Public Resource's
https://law.resource.org website, marked as Exhibit 39 during the Malamud/Public Resource
Deposition.
39.

Accompanying this Declaration as Exhibit KK is a true copy of a letter dated

December 19, 2013 from Carl Malamud (on Public Resource stationery) refusing to remove

7

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Plaintiffs' 1999 Standards from Public Resource's https://law.resource.org website, marked as
Exhibit 40 during the Malamud/Public Resource Deposition.
40.

Accompanying this Declaration as Exhibit LL is a true copy of an e-mail dated

June 10, 2014 from the undersigned to Carl Malamud regarding the initiation of this lawsuit,
marked as Exhibit 42 during the Malamud/Public Resource Deposition.
41.

Accompanying this Declaration as Exhibit MM is a true copy of a memorandum

on Public Resource letterhead, signed by Carl Malamud on June 12, 2014, undertaking to
remove Plaintiffs' 1999 Standards from Public Resource's https://law.resource.org website and
from the Internet Archive https://archive.org website pending the outcome of this litigation,
marked as Exhibit 43 during the Malamud/Public Resource Deposition.
I DECLARE, under the penalty of perjury, that the foregoing is true and correct.

Dated: December 21, 2015

/s/ Jonathan Hudis
Jonathan Hudis

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