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

Filing 136

Second MOTION for Summary Judgment by PUBLIC.RESOURCE.ORG, INC. (Attachments: # 1 [REDACTED] Public Resources Memorandum of Law, # 2 Declaration Carl Malamud, # 3 Declaration Matthew Becker, # 4 [REDACTED] Public Resources Statement of Material Facts, # 5 [REDACTED] Public Resources Statement of Disputed Facts, # 6 [REDACTED] Public Resources Objections to Plaintiffs Evidence, # 7 Public Resources Request for Judicial Notice in Opposition, # 8 Text of Proposed Order, # 9 Certificate of Service)(Bridges, Andrew)

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.,

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

Plaintiff-Counterdefendants,
v.
PUBLIC.RESOURCE.ORG., INC.,
Defendant-Counterclaimant.

PUBLIC RESOURCE’S SECOND MOTION FOR SUMMARY JUDGMENT
Defendant-Counterclaimant Public.Resource.Org, Inc. (“Public Resource”) respectfully
moves for summary judgment against Plaintiffs American Educational Research Association, Inc.,
American Psychological Association, Inc., and National Council on Measurement In Education, Inc.
because Public Resource’s reproduction, display, and distribution of the Plaintiffs’ 1999 Standards
does not constitute copyright infringement and because the Plaintiffs have not provided any facts
or argument in support of their motion for a permanent injunction.
As Public Resource describes in the accompanying memorandum of law in support of its
motion for summary judgment and opposition to Plaintiffs’ motion for summary judgment and
permanent injunction, there are no genuine issues of material fact that would preclude summary
judgment in favor of Public Resource. Public Resource’s use of the incorporated standards is a noninfringing fair use. Moreover, Plaintiffs have not articulated any facts or made any argument to carry
their burden of establishing all requirements for a permanent injunction under eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388 (2006), and thus conclusively fail to show any right to the relief
they seek in the case.
Public Resource further asserts that the Plaintiffs cannot assert copyright in the laws by
incorporation at issue because the complete works they claim are binding laws of the United States
and at least one state; because they are not copyrightable subject matter, excluded by 17 U.S.C.
§ 102(b); because the merger doctrine precludes enforcement of copyright in the 1999 Standards,
which have become government edicts and political facts as laws by incorporation; and because
enforcement of the copyrights through the prior restraint that the Plaintiffs seek in this case would
violate the First, Fifth, and Fourteenth Amendments of the United States Constitution. Because the
United States Court of Appeals for the District of Columbia Circuit reserved a ruling on these issues
in the recent appeal and remanded the case to this Court for re-evaluation of the fair use doctrine,
and because Public Resource wishes to preserve these issues for a further appeal if necessary, Public
Resource formally reasserts its earlier arguments on these points and incorporates here by reference
the filings in support of its first motion for summary judgment at Docket Nos. 66-71, 76-83, 84, 8588, 96-99, 102, 103, 105, 112, and 113.
Public Resource requests an oral hearing on its motion and its opposition to Plaintiffs’
second motion for summary judgment.
This motion relies on the attached memorandum of points and authorities; the declarations
of Carl Malamud and Matthew Becker; Public Resource’s request for judicial notice; the index of
consolidated exhibits and the exhibits accompanying this motion; Public Resource’s proposed
order, the pleadings and papers on file, specifically including Public Resource’s filings on its
earlier summary judgment motion; and any further material and argument that the parties may
present to the Court at the hearing.

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Dated: November 8, 2019

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (USDC-DC AR0002)
[e-mail]
Matthew B. Becker (admitted pro hac vice)
[e-mail]
Armen N. Nercessian (pending pro hac vice)
[e-mail]
Shannon E. Turner (pending pro hac vice)
[e-mail]
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
Telephone: [phone]
Facsimile: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[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
CSRL 2nd Floor
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

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