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)

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

PUBLIC RESOURCE’S SUPPLEMENTAL STATEMENT OF MATERIAL FACTS IN
OPPOSITION TO [134] PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
PERMANENT INJUNCTION, AND IN SUPPORT OF PUBLIC RESOURCE’S SECOND
MOTION FOR SUMMARY JUDGMENT
[PUBLIC REDACTED VERSION]

TABLE OF CONTENTS
Page
SUPPLEMENTAL STATEMENT OF MATERIAL FACTS ........................................................1
I.

Incorporatation by reference ....................................................................................1

A.

The Nature of Incorporation by Reference ..............................................................1

B.

The Process of Incorporation by Reference .............................................................2

C.

Objects of Incorporation ..........................................................................................6

D.

Incorporation by Reference Versus Extrinsic Unincorporated Standards ...............8

II.

Standards That Have Become Law Are Not Generally and Freely
Accessible ................................................................................................................8

III.

The 1999 Standards................................................................................................10

A.

The 1999 Standards as Laws by Incorporation ......................................................10
1.
2.

B.

Two Sections of the Code of Federal Regulations
Incorporate the Complete 1999 Standards into Law......................13
New York Incorporated the Complete 1999 Standards
into State Law, with Plaintiffs’ Permission ...................................15

Drafting and Publication ........................................................................................16
1.

The Drafters were Volunteers Without a Copyright
Incentive .........................................................................................16
a.

No Copyright Revenue to Volunteers who
Wrote the Standards ...........................................................16

C.

The 1999 Standards Are Obsolete as Standards but Still Current as Binding
Law ........................................................................................................................17

IV.

Public Resource and Carl Malamud ......................................................................24

A.

Carl Malamud’s Record of Public Service ............................................................24

B.

Public Resource’s Mission .....................................................................................26

C.

Public Resource’s Litigation and Other Disputes ..................................................28

i

SUPPLEMENTAL STATEMENT OF MATERIAL FACTS1
I.

INCORPORATATION BY REFERENCE
A.

The Nature of Incorporation by Reference

1.

Incorporation by reference is an alternative to direct inclusion of language into a

government’s published laws or regulations. See 5 U.S.C. §552(a)(1); 1 C.F.R. §§ 51.1-51.11.
2.

The Office of the Federal Register has explained that material incorporated by

reference is “like any other properly issued rule, has the force and effect of law.” Dkt. 70-64 at 3.
3.

The federal government initiated the practice of incorporating some materials by

reference instead of reproducing them to limit the bulk of the Code of Federal Regulations
(“CFR”). Dkt. 70-64 at 3.
4.

States and municipalities also turn standards into law, through incorporation by

reference and in other instances by reproducing an entire standard verbatim in the text of the law.
See, e.g., Minn. Admin. Rule 4761.2460, Subp. 2(C); California Code of Regulations, Title 24,
Part 3.
5.

Governments may prosecute and punish persons for failing to obey standards that

have become law. To take just two examples: The Supreme Court of Virginia treated violation of
the National Electrical Code as equivalent to a violation of the Virginia Building Code, which
incorporated the NEC by reference, and subject to criminal sanctions. Virginia Elec. & Power Co.
v. Savoy Const. Co., 294 S.E.2d 811, 816-17 (Va. 1982).
1

Public Resource filed an earlier Statement of Material Facts (original Dkt. 68-3 and corrected at
Dkt. 102-3) (“SMF”). Public Resource hereby incorporates by reference those two documents and
the evidence of record that they cited. This Supplemental Statement of Material Facts (“SSMF”)
complements those two earlier filings and their associated exhibits and supplements the earlier
record. Public Resource files with this document only the most frequently-cited and informational
exhibits from its earlier summary judgment motion for the Court’s handy reference without unduly
burdening the case file with duplicate filings. At the Court’s request, Public Resource will refile
any document it previously filed but has not included in the new filing.
1

6.

After the deadly “Ghost Ship” fire in Oakland, California, prosecutors charged

principal tenant and alleged manager of the building with manslaughter for violation of fire safety
codes that are incorporated by reference. Declaration of Matthew Becker in support of Public
Resource’s Motion for Summary Judgment and Opposition to Plaintiffs’ Motion for Summary
Judgment (“Becker Decl.”) ¶ 33, Ex. 65 (Declaration in Support of Probable Cause, California v.
Harris,

No.

17-CR-017349A

(Cal.

Super.

Ct.

June

5,

2017),

available

at

https://www.scribd.com/document/350446988/Ghost-Ship-fire-criminal-charges; Becker Decl. ¶
34, Ex. 66 (Criminal Complaint, California v. Harris, No. 17-CR-017349A (Cal. Super. Ct. June
5,

2017)),

available

at

https://web.archive.org/web/20170729051241/https://cbssanfran.files.wordpress.com/2017/06/al
mena-and-harris-complaint.pdf.).
B.

The Process of Incorporation by Reference

7.

The process of incorporation by reference is careful and deliberate. At the federal

level, it starts when an agency responsible for regulating an industry publishes a notice in the
Federal Register concerning the agency’s intent to incorporate a standard into law and asks the
public to submit comments. 5 U.S.C. §553.
8.

A federal agency must publish proposed rule changes in the Federal Register,

including changes to a standard incorporated by reference into the Code of Federal Regulations.
5 U.S.C. §553(b); 1 C.F.R. § 51.11(a) (2015).
9.

A standard incorporated by reference into the Code of Federal Regulations must be

a “proposed rule” or “final rule” of a federal agency. 1 C.F.R. §51.5(a)-(b) (2019).
Before the federal government incorporates a standard by reference into law as a final rule, the
Director of the Federal Register must approve the incorporation. 1 C.F.R. § 51.3 (2019).

2

10.

Standards are incorporated by reference—as opposed to reprinting the entire text

of the standards—to limit the length of the Code of Federal Regulations. Dkt. 70-63
(“Incorporation

by

Reference”

webpage

of

the

Office

of

the

Federal

Register,

http://www.archives.gov/federal-register/cfr/ibr-locations.html).
11.

Standards are also incorporated by reference into state and local laws. See, e.g.,

Md. Admin. Rule 09.12.26.06(E)(1)(c)(i); Minn. Admin. Rule 4761.2460, Subp. 2(C).
12.

State adoptions are equally rigorous. For example, the State of California

incorporates model codes into Title 24 of the California Code of Regulations on a triennial cycle,
with a 45-day public-comment period, a six-month publication requirement, and a three-month
delay to allow local governments to implement them. The California Building Standards Law
precisely defines this process. See Cal. Dep’t of Gen. Servs., 2015 Triennial Code Adoption Cycle
(Dec.

2014),

https://web.archive.org/web/20170207201000/https://www.documents.dgs.ca.gov/BSC/2015Tri
Cycle/2015TricycleTimeline.pdf; 18-Month Code Adoption Cycle, Cal. Bldg. Standards Comm’n,
https://www.dgs.ca.gov/BSC/Rulemaking (last visited Nov. 8, 2019).
13.

SDOs, including Plaintiffs, benefit from the incorporation of their standards into

law. For example, Plaintiffs acknowledge that people will want to read the 1999 Standards because
they “believe they still may be held accountable” to comply with them. Dkt. 60-1 at 1, 11.
Adoption of a standard into law promotes the efforts of SDOs to make the standard influential in
relevant industries. The Office of the Federal Register (OFR) states: “The legal effect of
incorporation by reference is that the material is treated as if it were published in the Federal
Register and CFR. This material, like any other properly issued rule, has the force and effect of

3

law. Congress authorized incorporation by reference in the Freedom of Information Act to reduce
the volume of material published in the Federal Register and CFR.” Dkt. 70-64.
14.

The OFR directs people who want to read incorporated standards to “contact the

standards organization that developed the material.” Becker Decl. ¶ 31, Ex. 63 (printout of
National Archives website on incorporation by reference).
15.

In addition, when the Code of Federal Regulations incorporates a standard, the code

itself informs readers that they may obtain a copy of the standards from the Office of the Federal
Register (“OFR”) or from the SDO that published the standard, effectively promoting sales of the
standard. E.g., 34 C.F.R. § 668.146.
16.

Standards development organization (SDOs) often lobby governments to

incorporate their standards by reference or otherwise make their standards law.

Dkt. 70-31 (Ernesto Ex.
1116).

Becker Decl., ¶ 17, Ex. 50 (Ernesto Depo.) at 189:06–190:11.

Becker Decl., ¶ 17, Ex. 50 (Ernesto Depo.) at 174:11-175:14, 179:24–194:24); Dkt. 70-51;

4

Dkt. 68-30; Dkt. 68-31; Dkt. 68-32; Becker Decl. ¶ 19, Ex. 52 (Levine Depo. I) at 176:22-181:13;
Dkt. 70-43; Dkt. 70-44; Dkt. 70-45.
17.

Adoption into law gives the Standards “authoritative value.” Becker Decl., ¶ 17,

Ex. 50 (Ernesto Depo.) at 176:14–23.

Dkt. 70-32 (Ernesto Ex.
1121); Becker Decl., ¶ 17, Ex. 50 (Ernesto Depo.) at 209:15–22.
18.

According to Wayne Camara, Plaintiffs’ Rule 30(b)(6) witness on the subject of

Plaintiffs’ efforts to influence the requirements imposed by federal and state governments
regarding incorporation by reference,
. Becker Decl. ¶ 18, Ex 51 (Camara
Depo.) 43:16–18; Becker Decl. ¶ 36, Ex. 68 (Wayne Camara, “OCR Issues Draft Guide on
Disparate Impact in Educational Testing,” Society for Industrial and Organizational Psychology,
October 1999).
19.
Dkt. 70-43 (Levine Ex. 1217); Dkt. 70-44 (Levine Ex. 1218); Dkt. 70-45 (Levine Ex.
1219); Becker Decl. ¶ 19, Ex. 52 (Levine Depo. I) at 176:22–177:01; 178:14–179:15; 179:19–
180:04.

5

C.

Objects of Incorporation

20.

According to the Office of the Federal Register’s Incorporation by Reference

(“IBR”) Handbook, any time a federal agency refers to material when it is developing regulations,
it must consider two questions: First, “does it have a legal citation?” If yes, the agency must use the
legal citation. If not, the agency then must consider the second question: “Is it required to understand

or comply with the regulations? Do your regulations require that a party “resort to” material that
is not published in the Federal Register?” If the material is necessary to understand or comply
with the regulation, the agency must seek IBR approval from the Director of the Federal Register.
Becker Decl., ¶ 11, Ex. 45 (IBR Handbook) at p. 2 (citing 5 U.S.C. § 552(a)).
21.

Only the Director of the Federal Register can approve IBR requests, and

“[p]ublication in the Federal Register of a document containing reference(s) to incorporated
material does not in itself constitute an approval of the IBR by the Director.” Becker Decl., ¶ 11,
Ex. 45 (IBR Handbook) at 6.
22.

Similarly, the Federal Register may contain references to incorporated material, but

the referenced material is not actually incorporated by reference when it has not received the
Director’s formal approval. Becker Decl., ¶ 11, Ex. 45 (IBR Handbook) at 11.
23.

To be eligible for incorporation by reference, the material must be published and

“impossible or impractical” to print in the C.F.R. Becker Decl., ¶ 11, Ex. 45 (IBR Handbook) at
6. This means it is typically documents, or portions of documents, that are incorporated by
reference—not mere text, which could otherwise be printed in the C.F.R. See Becker Decl., ¶ 11,
Ex. 45 (IBR Handbook) at 11-12.
24.

According to the Director of Legal Affairs and Policy at the Office of the Federal

Register, if an agency identifies a document in its IBR language and does not specify a specific

6

section of that document, the entire document is incorporated by reference. Malamud Decl. ¶ 40,
Ex. 34.
25.

Where a federal agency seeks to incorporate only parts of a standards document, it

is explicit. For example, 24 CFR § 3280.4(aa)(4) (2019) states that only specific parts of the 2005
edition of the National Electrical Code, NFPA 70, are incorporated into law:
(a) The specifications, standards, and codes of the following
organizations are incorporated by reference in 24 CFR part 3280
(this Standard) pursuant to 5 U.S.C. 552(a) and 1 CFR part 51 as
though set forth in full.
…
(aa) National Fire Protection Association (NFPA), 1 Batterymarch
Park, Quincy, MA 02269, phone number 617-770-3000, fax number
617-770-0700, Web site: http://www.nfpa.org.
…
(4) NFPA No. 70-2005, National Electrical Code, IBR approved as
follows:
(i) Article 110.22, IBR approved for §§ 3280.803(k) and
3280.804(k).
(ii) Article 210.12(A) and (B), IBR approved for § 3280.801(b).
(iii) Article 220.61, IBR approved for § 3280.811(b).
(iv) Article 230, IBR approved for §§ 3280.803(k) and 3280.804(k).
…
24 CFR § 3280.4(aa)(4)(i)-(iv).
26.

In contrast, the full 2005 edition of the National Electrical Code, NFPA 70, is

incorporated by reference at 49 C.F.R. § 192.7 (2009):
§ 192.7 What documents are incorporated by reference partly or
wholly in this part?
(a) Any documents or portions thereof incorporated by reference in
this part are included in this part as though set out in full. When only
7

a portion of a document is referenced, the remainder is not
incorporated in this part.
(b) . . . These materials have been approved for incorporation by
reference by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. . . .
F. National Fire Protection Association (NFPA): . . .
(4) NFPA 70 (2005) ‘‘National Electrical Code.’’
D.

Incorporation by Reference Versus Extrinsic Unincorporated Standards

27.

Sometimes external documents are referred to in the C.F.R. or in other government

edicts but not formally incorporated into law. When a document is referenced but not formally
incorporated, it serves as only an “extrinsic standard”. See, e.g., Practice Mgmt. Info. Corp. v. Am.
Med. Ass’n, 121 F.3d 516 (9th Cir. 1997) (regulations required Medicare and Medicaid claimants
to use a private medical coding system but did not incorporate the medical coding system into
law).

Likewise, CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc.,

concerned a document that was one of several automobile valuation references that regulations
approved for use in insurance adjusting. 44 F.3d 61 (2d Cir. 1994). The regulation stated
“[m]anuals approved for use are…The Redbook….,” without any mention of incorporating those
manuals into enforceable laws. See N.Y. Comp. Codes, R. & Regs. tit. 11, § 216.7(c)(1)(i) (West
1999), cited in CCC, 44 F.3d at 73 n.29.
II.

STANDARDS THAT HAVE BECOME LAW ARE NOT GENERALLY AND
FREELY ACCESSIBLE
28.

Without the database that Public Resource provides, citizens have few options for

accessing laws and regulations by incorporation. First, one may make an appointment to visit the
National Archives in Washington, D.C., to read a paper version of a federally incorporated
standard. See, e.g., 34 C.F.R. § 668.146. This option does not provide meaningful access for

8

persons without the means to travel to Washington, or persons with visual disabilities, and it does
not allow computer-aided analysis.
29.

Second, one can sometimes purchase copies. This can be not only expensive but

also difficult, because where, as here, the standards are currently effective as law, but are obsolete
as standards, at least some publishers apparently see little reason to make them widely available.
Some standards, including the 1999 Standards, are available only on paper because the sponsoring
standards development organization (SDO) has not authorized electronic versions, and thus they
are unavailable to persons with visual disabilities or for computer-aided analysis. Becker Decl. ¶
30, Ex. 60 (Fruchterman expert report) at 8-16; Becker Decl. ¶ 2, Ex. 36 (Levine Depo. II) at
61:10-17 and 63:15-64:21. Even when available, the 1999 Standards can cost $49.95, plus shipping
and handling. Becker Decl. ¶ 7, Ex. 41 (AERA website printout). And many older standards are
not available for purchase. Plaintiffs took the 1999 Standards off the market for a year and a half
during this litigation. Dkt. 60-1 at 18 (Plaintiffs assert they took the 1999 Standards off sale “to
encourage sales of the newly-revised edition—the 2014 Standards”)
30.

Third, one can search libraries for standards. Contrary to the SDOs’ suggestion,

library availability is poor; libraries typically carry current standards but not earlier standards that
still function as law, and library copies are typically only on paper. See, e.g., Getty Petroleum
Mktg., Inc., 391 F.3d at 320-21, 330 (1st Cir. 2004).
31.

Finally, one can access some standards through online “reading rooms”—all but

one of which standards publishers established only after Public Resource embarrassed them by
highlighting the lack of public access. Here, the 1999 Standards are among the many standards
that are part of the law but not available in any online reading room. Plf. SMF ¶ 11 (“To date,

9

Plaintiffs have never posted, or authorized the posting of, a digitized copy of the 1999 Standards
on any publicly accessible website.”).
32.

Persons who are print-disabled cannot depend solely on the Chafee Amendment,

17 U.S.C. § 121. Educational institutions have always relied in part on fair use to serve persons
with disabilities. Dkt. 99-13 at 22; Becker Decl. ¶ 30, Ex. 60 (Fruchterman expert report) at 8-16.
III.

THE 1999 STANDARDS
A.

The 1999 Standards as Laws by Incorporation

33.

The 1999 Standards are law that regulates certain federal aid programs. The U.S.

Department of Education incorporated the complete 1999 Standards in its 2010 “Program
Integrity” regulations (“the 2010 Regulations”). 34 C.F.R. § 600 et seq.; 75 FR 209 (Oct. 29, 2010)
at 66831-66975. The 2010 Regulations govern the use of federal aid money under the “ability to
benefit” (“ATB”) program, which allows students without a high school diploma to enroll in postsecondary education programs under certain circumstances, including if they pass a standardized
test that meets government requirements.
34.

Most students in the ATB population rely on federal aid to afford higher education.

The ATB program allows access to federal aid for students in career training programs who lack
a high school diploma or a GED certificate, but only if they either (1) complete at least 6 credit
hours in a post-secondary school; or (2) pass an independently administered Department of
Education approved ATB test. Access to federal aid through the ATB program is also critical to
states that want to provide educational opportunities for their residents, and to the career education
schools that depend on tuition paid through federal aid. But unscrupulous schools seeking federal
money threaten the integrity of the ATB program and the welfare of students. For example, in a
2009 report, the U.S. Government Accountability Office raised concerns that some for-profit
colleges were helping students cheat on ATB tests or falsifying test results. Becker Decl. ¶ 13, Ex.
10

47, “GAO, PROPRIETARY SCHOOLS: Stronger Department of Education Oversight Needed to
Help Ensure Only Eligible Students Receive Federal Student Aid,” August 2009, available at
http://www.gao.gov/new.items/d09600.pdf.
35.

The Secretary of Education must apply 34 C.F.R. 668.146 to approve an ATB test

from either a state or a private test publisher. That regulation incorporates by reference the entire
1999 Standards document, and it further requires that an ATB test “[m]eet all standards for test
construction provided in the 1999 edition of the Standards for Educational and Psychological
Testing,” i.e. the 1999 Standards. 34 C.F.R. § 668.146(b)(6). Federal regulations also identify the
1999 Standards as containing the legal requirements for tests conducted in foreign languages for
non-native speakers of English, 34 C.F.R. § 668.148(a)(1)(iv), for test modifications to
accommodate students with disabilities, 34 C.F.R. § 668.148(a)(2)(i), and for specific
requirements for computer-based tests. 34 C.F.R. § 668.148(a)(3)(i).
36.

Department officials deliberately adapted the regulation to the 1999 Standards. For

example, the Department made one specific change to its final version of the 2010 Rule, codified
at § 668.146(b)(6), in response to a comment pointing out that the Department’s proposed rule
used language inconsistent with the 1999 Standards (but consistent with the previous 1985
Standards) while incorporating the 1999 Standards by reference. See 75 FR 209 (Oct. 29, 2010)
at 66923.
37.

Because the 1999 Standards are a substantive and integral component of the 2010

Regulation, a wide range of parties needs access to them. These parties include students (and their
lawyers) wanting to contest a denial of ATB benefits, students seeking loan forgiveness on the
grounds that the school acted improperly under the regulation, ATB test publishers, and state
governments designing ATB tests for students in their state. Federal and state law enforcement

11

and education oversight agencies apply the law by incorporation in their oversight and enforcement
activities to ensure the integrity of higher education aid programs. Journalists and advocacy
organizations need to study the law to evaluate the compliance of higher education programs that
federal money supports and in which students invest their hopes for their futures. Schools—large
and small, and for-profit, non-profit, or state-run—need to know the law by incorporation to ensure
their tests comply with the 2010 Regulation to avoid potential liability and the loss of funding.
38.

A school and its administrators could face serious penalties if it misrepresents that

the test it used complies with the 1999 Standards. See 34 C.F.R. § 668.146. The colleges and
trade schools that want to enroll students financed by ATB/Title IV money get some immunity
from responsibility for a non-compliant test by the terms of 34 CFR 668.154, but could violate
other applicable Department regulations if they certified compliance with ATB requirements based
on a test that was not compliant with the 1999 Standards. In a comparable matter, the CEO of forprofit Fast Train College in Florida was convicted in late 2015 of conspiracy to steal government
money because he falsely certified that many of his students were high school graduates. Becker
Decl., ¶ 13, Ex. 47 (Press release, FastTrain Owner and Admissions Representative Convicted of
Federal Student Aid Scheme, https://www.fbi.gov/miami/press-releases/2015/fasttrain-ownerand-admissions-representative-convicted-of-federal-student-aid-scheme). The Justice Department
has also sued FastTrain under the False Claims Act for this conduct. Becker Decl., ¶ 14, Ex. 48
(U.S. vs. FastTrain II Corp., complaint, http://www.justice.gov/sites/default/files/usaosdfl/legacy/2014/12/03/141203-01.FasttrainIICorpCaseComplaint.pdf).

The Department of

Education also can cut off Title IV money and impose civil fines if it concludes that a college has
made “a substantial misrepresentation about the nature of its educational program, its financial
charges, or the employability of its graduates.” 34 CFR Part 668, Subpart F.

12

1.
39.

Two Sections of the Code of Federal Regulations Incorporate the
Complete 1999 Standards into Law.

The Department of Education incorporated by reference the entire 1999 Standards

document, referring to complete document in its incorporating text. That incorporation states, in
full:
(6) Meet all standards for test construction provided in the 1999
edition of the Standards for Educational and Psychological Testing,
prepared by a joint committee of the American Educational
Research Association, the American Psychological Association, and
the National Council on Measurement in Education incorporated by
reference in this section. Incorporation by reference of this
document has been approved by the Director of the Office of the
Federal Register pursuant to the Director’s authority under 5 U.S.C.
552(a) and 1 CFR part 51. The incorporated document is on file at
the Department of Education, Federal Student Aid, room 113E2,
830 First Street, NE., Washington, DC 20002, phone (202) 377–
4026, and at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA,
call
1–866–272–6272,
or
go
to:
http://www.archives.gov/federal_register/code_of_federal_regulati
ons/ibr_locations.html. The document also may be obtained from
the
American
Educational
Research
Association
at:
http://www.aera.net;
34 C.F.R. § 668.146(b)(6) (emphasis added); see also 34 C.F.R. § 668.148(a)(1)(iv) (incorporating
entire document with identical incorporation language).
40.

Additionally, a third portion of the C.F.R. incorporates the 1999 Standards in a

manner that does not explicitly refer to the document as a whole, and is instead ambiguous in
scope.
(c)(1) The test must meet all applicable and feasible standards for
test construction and validity provided in the 1999 edition of the
Standards for Educational and Psychological Testing, prepared by
the Joint Committee on Standards for Educational and
Psychological Testing of the American Educational Research
Association, the American Psychological Association, and the
National Council on Measurement in Education incorporated by
reference in this section. The Director of the Federal Register
approves this incorporation by reference in accordance with 5
13

U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from the
American Psychological Association, Inc., 750 First Street, NE.,
Washington, DC 20002. You may inspect a copy at the Department
of Education, room 11159, 550 12th Street, SW., Washington, DC
20202 or at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA,
call
(202)
741–6030,
or
go
to:
http://www.archives.gov/federal_register/code_of_federal_regulati
ons/ibr_locations.html.
(2) If requested by the Secretary, a test publisher must explain why
it believes that certain standards in the 1999 edition of the Standards
for Educational and Psychological Testing were not applicable or
were not feasible to meet.
…
(f) For a test that has been modified for individuals with disabilities,
the test publisher must—
(1) Provide documentation that it followed the guidelines provided
in the Testing Individuals With Disabilities section of the 1999
edition of the Standards for Educational and Psychological
Testing;…
34 C.F.R. § 462.13(c)(1)-(2) and (f)(1).
41.

34 C.F.R. § 462.13(c)(1)-(2) broadly refers to “all applicable and feasible standards

for test construction and validity provided in the 1999 edition of the Standards for Educational
and Psychological Testing,” and then states that “[t]he Director of the Federal Register approves
this incorporation by reference.” It does not refer to the whole document, as in the examples above,
nor does it specify which portions of the 1999 Standards constitute “all applicable and feasible
standards for test construction and validity.” Yet the following subsection, (c)(2), implies that it
is incumbent on the test publisher to be familiar with the 1999 Standards as a whole and be
prepared to justify why it has not followed a particular standard: “If requested by the Secretary, a
test publisher must explain why it believes that certain standards in the 1999 edition of the

14

Standards for Educational and Psychological Testing were not applicable or were not feasible to
meet.”
42.

To the extent that this incorporation might be construed as referring only to Part I

of the 1999 Standards (titled “Test Construction, Evaluation, and Documentation”), the ambiguity
is further complicated by the following subsection, which specifically references a chapter from
Part II of the 1999 Standards, stating: “(f) For a test that has been modified for individuals with
disabilities, the test publisher must—(1) Provide documentation that it followed the guidelines
provided in the Testing Individuals With Disabilities section of the 1999 edition of the Standards
for Educational and Psychological Testing;…” 34 C.F.R. § 462.13(f)-(f)(1).
2.
43.

New York Incorporated the Complete 1999 Standards into State Law,
with Plaintiffs’ Permission

State and local law may also incorporate standards. For example, New York state

law incorporates the 1999 Standards at 8 CRR-NY 30-2.2 (defining “Testing Standards” as the
1999 Standards), 8 CRR-NY 30-2.4 (requiring evaluations of teachers and principals to comply
with the 1999 Standards), 8 CRR-NY 30-2.5 (requiring evaluations of teachers and principals to
comply with the 1999 Standards), and 8 CRR-NY 30-2.8 (same).
44.

On May 11, 2011, Gerald Sroufe, AERA’s Director of Government Relations for

Plaintiff AERA, gave Plaintiffs’ consent to New York’s incorporation by reference of the complete
1999 Standards, further agreeing that when New York provides “a photocopy of all or any part of
the Standards upon request of any person,” that such copying is “a fair use of the Standards and
that such use will not violate the copyright interest [that Plaintiffs claim to hold in the 1999
Standards].” Becker Decl., ¶ 9, Ex. 43 (AERA_APA_NCME_0032528) (emphases added).

15

45.

In an internal memorandum, Plaintiff APA has also acknowledged that the

complete 1999 Standards document was incorporated by reference into law. Becker Decl. ¶ 10,
Ex. 44 (Plaintiff APA’s memorandum titled “Litigation Report,” dated August 8, 2014).
B.

Drafting and Publication
1.

46.

The Drafters were Volunteers Without a Copyright Incentive

The Plaintiffs provide a framework by which a committee of volunteers—industry

representatives, academics, and other technical experts—weigh proposals for appropriate methods,
processes, procedures, specifications, and other standards on the subject of testing. Becker Decl.
¶ 16, Ex. 49 (Schneider Depo.) 90:5–10; Dkt. 68-29 at 5-8; Dkt. 60-2 ¶ 10, Plfs. original Stmt. of
Facts (“All members of the Joint Committee(s) and the Management Committee(s) are unpaid
volunteers”) (emphasis in original). Volunteer committee members suggest and evaluate both new
language and revise language, weighing and implementing language proposals from federal, state,
and local government employees, academics, and others. Becker Decl. ¶ 16, Ex. 49 (Schneider
Depo.) at 34:2-22, 35:18-36:2; Dkt. 68-29 at 5-8. They debate the scope, structure, and wording
of standards, working to consensus on the final form to reflect either minimally acceptable or best
industry practices using the most precise, scientific terms possible. Becker Decl. ¶ 16, Ex. 49
(Schneider Depo.) at 176:23-177:6. Plaintiffs’ employees facilitate that process, but they do not
author the standards or control the final content. Becker Decl. ¶ 17, Ex. 50 (Ernesto Depo.) at
34:2-22.
47.
Becker Decl., ¶ 21, Ex. 54 (Geisinger Depo.) 159:1–161:17.
a.
48.

No Copyright Revenue to Volunteers who Wrote the Standards

The drafters of the 1999 Standards received no pay for their work. Becker Decl., ¶

17, Ex. 50 (Ernesto Depo.) at 234:2-235:21. Instead, their motivation rested upon professional
16

and public interests, including advancing the field of testing and education, and obtaining
professional recognition. Becker Decl. ¶ 16, Ex. 49 (Schneider Depo.) at 176:23-177:6; Becker
Decl., ¶ 21, Ex. 54 (Geisinger Depo.) 219:1–5. Despite jointly drafting the 1999 Standards, they
have never received any proceeds from the sale of that document. Becker Decl. ¶ 17, Ex. 50
(Ernesto Depo.) at 234:24-235:11. When Plaintiffs began preparing this lawsuit and realized that
they had not obtained copyright assignments, and they belatedly sought assignments from the
remaining living drafters and their heirs, they provided no compensation for the assignments.
Becker Decl. ¶ 17, Ex. 50 (Ernesto Depo.) 42:11–22; 81:03–82:14; 85:19–87:03; 124:12–127:12;
141:25–13.
C.

The 1999 Standards Are Obsolete as Standards but Still Current as Binding
Law

49.

In 2014, Plaintiffs adopted a new set of Standards as state of the art for the industry.

Since then, Plaintiffs “expressly discourage the use of the 1999 Standards,” state that they “would
not want the 1999 Standards to be used” now that the 2014 Standards are available, and further
state that the 1999 Standards “should not be purchased except for scholarly study.” Mot. at 29.
50.

But the 1999 Standards—not the 2014 Standards—are current and binding law.

And Plaintiffs admit that “the 1999 Standards continue to have value for those [who] . . . believe
they still may be held accountable to the guidance of the 1999 Standards. Plf. SMF ¶ 14. After
counsel for Public Resource asked Plaintiffs why the 1999 Standards were no longer available for
sale, Plaintiffs resumed sale of the 1999 Standards—but only in a more cumbersome, mail-order
channel. Becker Decl. ¶ 17, Ex. 50 (Ernesto Depo.) at 203:15–207:10, 208:20–209:11; Becker
Decl. ¶ 19, Ex. 52 (Levine Depo. I) at 42:12–23; compare “Standards for Educational &
Psychological

Testing

(2014

Edition),”

AERA,

at

http://www.aera.net/Publications/Books/StandardsforEducationalPsychologicalTesting%28New

17

Edition%29/tabid/15578/Default.aspx

with

“1999

Standards,”

AERA,

at

http://www.aera.net/Publications/Books/Standards%281999Ed%29/tabid/16144/Default.aspx.
51.

Plaintiffs report that, after restoring the 1999 Standards to the marketplace, “sales

of the 1999 Standards have been near nil.” Plfs. Mot. at 29, n.8. In fact, Plaintiffs sold only
copies in 2015, and they

in 2016 or 2017, even though Public

Resource was subject to an injunction and did not have the 1999 Standards online at that time.
Becker Decl., ¶ 2, Ex. 36 (Levine Depo. II) at 43:21-44:6; Becker Decl. ¶ 5, Ex. 39 (1999 and 2014
Standard sales figures) at 0000007 (listing 1999 Standards revenues are under “Publication
Income,” while listing 2014 Standards revenues are under “Book Royalty Revenues”). But in 2018
once Public Resource restored the 1999 Standards to the Internet Archive website after the D.C.
Circuit vacated the injunction, sales of the 1999 Standards showed a modest uptick and were the
highest they had been since Plaintiffs first removed the 1999 Standards from sale. Id.
52.

Apart from filings in this lawsuit, Plaintiffs have never made an electronic version

of the 1999 Standards available to the public, nor do they plan to, and they have not published any
other versions of the 1999 Standards that would be accessible to people who are blind or visually
disabled. Plfs SMF ¶ 11. But, Plaintiffs included an unsealed complete version of the 1999
Standards in their summary judgment filing (ECF No. 134-4) and in their previous summary
judgment filing (ECF No. 60-25–26), which are now available for download to the public for a $3
or $6 fee to PACER, respectively. (PACER charges $0.10 per page, but caps charges at $3.00 per
document, so it would cost $6.00 to download a complete version of the 1999 Standards from
PACER. See “Electronic Public Access Fee Schedule,” Pacer.gov, Dec. 1, 2013, at
https://www.pacer.gov/documents/epa_feesched.pdf.)

18

53.

The earlier public filing of the 1999 Standards is also available for free on RECAP

and can be downloaded here: https://www.courtlistener.com/docket/4212743/60/25/americaneducational-research-association-inc-v-publicresourceorg/;
https://www.courtlistener.com/docket/4212743/60/26/american-educational-researchassociation-inc-v-publicresourceorg/. The more recent filing may similarly become available for
free in the future. RECAP is a service by the Center for Information Technology Policy at
Princeton University and the Free Law Project, through which member of the public can access
PACER documents for free. Once an individual who has RECAP on her computer accesses a
document on PACER, RECAP uploads the document to its system and makes it available to the
public for free, through the RECAP website or browser plugin. See “About,” RECAP the Law, at
https://www.recapthelaw.org/about/.
54.

In the past, Plaintiffs stopped selling the earlier edition of the Standards for

Educational and Psychological Testing when they published a new edition. Becker Decl., ¶ 21,
Ex. 54 (Geisinger Depo.) at 101:15–19. After publishing the 1999 Standards, Plaintiffs stopped
selling the 1985 edition. Becker Decl., ¶ 17, Ex. 50 (Ernesto Depo.) at 212:16–21. In 2000,
Plaintiffs recalled copies of the 1985 Standards, and stated that the old stock of Standards was
supposed to be destroyed. This is Plaintiffs’ practice after publishing a new edition of the
Standards. Becker Decl., ¶ 19, Ex. 52-5 (Levine Depo. I) at 79:23–84:11; 84:15–88:22; 90:21–
92:07; 97:17–99:24; Dkt. 70-34 (Levine Ex. 1197); Dkt. 70-35 (Levine Ex. 1198); Dkt. 70-36
(Levine Ex. 1200). This is even though the 1985 Standards were incorporated by reference into
law under 34 C.F.R. 668.146 from July 1, 1996 until they were replaced by the 1999 Standards
that were incorporated into law in 2011. See 60 Federal Register 61830–61844, Vol. 60, No. 231,
Dec. 1, 1995, available at https://www.gpo.gov/fdsys/pkg/FR-1995-12-01/pdf/95-29125.pdf.

19

Becker Decl., ¶ 17, Ex. 50 (Ernesto Depo.) at 206:14–208:4.
55.

Plaintiffs put the 1999 Standards on sale once more in July 2015 only after Public

Resource’s counsel raised the issue at deposition in April and May of that year. Plfs. Mem. at 11;
Becker Decl., ¶ 17, Ex. 50 (Ernesto Depo.) at 203:15–207:10, 208:20–209:11; Becker Decl., ¶ 19,
Ex. 52 (Levine Depo. I) at 42:12–23.
56.
Dkt. 70-37
(Levine Ex. 1205); Dkt. 70-38 (Levine Ex. 1207); Dkt. 70-39 (Levine Ex. 1208); Dkt. 70-40
(Levine Ex. 1211); Dkt. 70-5 (Levine Depo.) at 120:06–121:18; 148:02–149:05. Plaintiffs’
financial data provides the following image of sales oscillation for the 1999 Standards:
Year
FY 2000
FY 2001
FY 2002
FY 2003
FY 2004
FY 2005
FY 2006
FY 2007[1]
FY 2008
FY 2009
FY 2010
FY 2011
FY 2012
FY 2013

Revenue

% Change Units Sold % Change
3,797
3,755
-1.11%
5,592
48.92%
3,310
-40.81%
3,218
-2.78%
3,803
18.18%
3,888
2.24%
3,077
-20.86%
3,358
9.13%
2,590
-22.87%
3,043
17.49%
2,132
-29.94%
1,649
-22.65%
1,732
5.03%

[1]

Public Resource was unable to determine a continuous
annual sales trend because Plaintiff did not produce monthly sales information.
20

57.

Year
Revenue % Change Units Sold % Change
FY 2014
855
-50.64%
Dr. Felice J. Levine, AERA’s executive director and a deposition witness

representing all Plaintiffs, attributed the

Becker Decl., ¶ 19, Ex. 52 (Levine Depo. I) at
141:19–142:08.

Becker Decl., ¶ 19, Ex. 52 (Levine Depo. I) at
114:9–17. See also Mot. at 25, n. 14 (conceding that the decline of Plaintiffs’ sales of the 1999
Standards was “coincident with the market arguably becoming saturated, and publication of the
revised and updated version of the Standards, the 2014 Standards, becoming imminent”).
58.

Plaintiffs’ expert,

. Dkt. 60-88
(Geisinger Decl.) at ¶ 25; Becker Decl., ¶ 21, Ex. 54 (Geisinger Depo.) at 93:20–97:04.

. Becker Decl., ¶ 21, Ex. 54 (Geisinger Depo.) at 93:20–
94:7; 95:6–21.
” Becker Decl., ¶ 21, Ex. 54 (Geisinger Depo.) at 94:2–7.
59.

21

ar. Dkt. 70-37 (Levine Ex. 1205); Dkt. 70-38 (Levine Ex. 1207); Dkt. 70-39 (Levine Ex. 1208);
Dkt. 70-40 (Levine Ex. 1211); Becker Decl., ¶ 19, Ex. 52 (Levine Depo. I) at 120:06–121:18;
135:11–137:03; 138:08–140:18; 148:02–149:05.
60.

Sales of the 2014 Standards have been as robust as sales of the 1999 Standards were

upon launch, years before Public Resource’s activities. The first five years of sales of the 2014
Standards are almost identical to the first five years sale of the 1999 Standards. Compare Becker
Decl., ¶ 5, Ex. 39 (AERA_APA_NCME_RFP2_0000025
) with Becker Decl., ¶ 4, Ex. 38 (AERA_APA_NCME_RFP2_0000027
)). That amounts to
And sales of the 2014 Standards have increased since
Public Resource put the 1999 Standards back online in mid-2018. Becker Decl., ¶ 5, Ex. 39
(AERA_APA_NCME_RFP2_0000025) (sales in 2018 and first four months of 2019 higher than
prior comparable periods).
61.

The record, including Plaintiffs’ own sales figures, shows no lost sales attributable

to Public Resource. Becker Decl. ¶ 26, Ex. 58 (sales figures); Becker Decl. ¶ 28, Ex. 60 (sales
figures); Becker Decl. ¶ 29, Ex. 61 (sales figures); Becker Decl. ¶ 27, Ex. 59 (sales figures); Becker
Decl. ¶ 19, Ex. 52 (Levine Depo. I) at 14-15, 17-20; Becker Decl. ¶ 21, Ex. 54 (Geisinger Depo.)
at 4-5.

22

62.

Plaintiffs claim the right to take the 1999 Standards back off sale at will. Dkt. 60-1

at 18 (AERA asserting it took the 1999 Standards off sale “to encourage sales of the newly-revised
edition—the 2014 Standards”); Dkt. 14 ¶¶ 14, 19; Becker Decl. ¶ 17, Ex. 50 (Ernesto Depo.) at
222:02-223:05.
63.

Plaintiffs argue that the version of the 1999 Standards posted to Public Resource’s

website was “accessed” 4,164 times, while the version posted to the Internet Archive was
“accessed” 1,290 times before 2016, and as of September 11, 2019 was “viewed” 1,445 times. Plf.
SMF ¶¶ 64, 69. As an initial matter, an “access” or a “view” of a document on a website does not
mean that a person sitting at a computer visited that webpage and read the contents. Any number
of those “accesses” or “views” may be automated web crawling programs, such as what Google
and other companies use to ensure accurate and immediate web searches based on key words, or
cache web pages, or perform other technical functions. Likewise, these are not “unique” page
views; each time a person refreshed or reloaded the page, it would increment the view count,
further complicating any ability to equate page views with lost sales. Mr. Malamud defined
“access” to imply that a computer, not necessarily a human being, but a computer has requested
some data from another computer, and that request was successful and the data was transferred.
Becker Decl. ¶ 23, Ex. 56 (Malamud Depo.) 146:19–147:4. The operator of a website can observe
and log instances where a device on the Internet accesses data on the website. Id at 328:17–329:16.
A website operator has no way of knowing whether any access to data resulted in a reproduction
being made, just as a library has no way of knowing whether a patron made photocopies of a book
while borrowing it. Dkt. 70-72 at § 4.3 (“Internet Engineering Task Force Request for Comments
7231, "Hypertext Transfer Protocol (HTTP/1.1): Semantics and Content" (June 2014).”).

23

Therefore, Public Resource did not have any way of knowing whether visitors to its sites were
making copies.
IV.

PUBLIC RESOURCE AND CARL MALAMUD
A.

Carl Malamud’s Record of Public Service

64.

Carl Malamud is the President and Founder of Public Resource. Since the 1980’s,

Mr. Malamud has dedicated his career to matters of public interest with a focus on Internet
connectivity and public access. Mr. Malamud’s career began as a Senior Systems Analyst at
Indiana University. After completing his doctoral coursework with a focus on antitrust and
regulation at the Indiana University School of Business, Mr. Malamud left the program to work
on early relational database programs and computer networking. Declaration of Carl Malamud in
Support of Public Resource’s Motion for Summary Judgment and Opposition to Plaintiffs’ Motion
for Summary Judgment (“Malamud Decl”) ¶ 3. In 1984, Mr. Malamud assisted the Board of
Governors of the Federal Reserve System in using computer and network technology to improve
key indicators such as forecasts of the money supply. Malamud Decl. ¶ 4. Throughout the rest of
the 1980’s Mr. Malamud continued his public service as a computer consultant to the Argonne and
Lawrence Livermore National Laboratories and the Department of Defense as well as teaching
advanced seminars in relational databases and computer networks. Malamud Decl. ¶ 5. In 1993,
Mr. Malamud founded the first radio station on the Internet, which he ran as a 501(c)(3) nonprofit
public station. Malamud Decl. ¶ 6.
65.

In January 1994, Mr. Malamud began to make government and legal materials more

widely available to the public. Using a National Science Foundation grant, he purchased all
electronic filings corporations submitted to the Securities and Exchange Commission (SEC) and
created the Electronic Data Gathering and Retrieval (EDGAR) service, which he made available
for free on the Internet. Malamud Decl. ¶ 7. In August 1995, he donated computers and software
24

to the SEC so the Commission could take over this service. Id. The SEC continues to operate this
popular service, and reports that the system processes about 3,000 filings per day and 3,000
terabytes of data annually. See “About EDGAR,” https://www.sec.gov/edgar/aboutedgar.htm.
66.

Also in 1994, Mr. Malamud obtained the first “new media” credentials from the

Radio-TV Gallery of the U.S. House of Representatives and started live-streaming all proceedings
from the floors of the House and Senate. Malamud Decl. ¶ 9. He later assisted the Joint Economic
Committee in hosting the first congressional hearing on the Internet. Malamud Decl. ¶ 10. That
year, Mr. Malamud also purchased feeds of all U.S. patents and made them available for free on
the Internet, and later convinced the U.S. Patent and Trademark Office to provide this service to
the public itself. Malamud Decl. ¶ 12.
67.

Throughout the 2000s, Mr. Malamud continued his mission of making government

information more accessible to the public. In 2005 and 2006, Mr. Malamud was the Chief
Technology Officer for the non-profit education organization Center for American Progress.
While there, he focused on developing a plan to make all congressional hearing available to the
public as high-resolution video. Malamud Decl. ¶ 13. And, in 2007, Mr. Malamud founded Public
Resource. Through Public Resource, Mr. Malamud has spearheaded successful efforts to make
government records and information publicly accessible. Malamud Decl. ¶ 14.
68.

In January 2009, President Barack Obama’s transition effort recruited Mr.

Malamud to develop plans and assist with transforming the Federal Register. The resulting
program won the first-ever Walter Gellhorn Award for innovation in government services by the
Administrative Conference of the United States. The Archivist of the United States, Hon. David
Ferriero, recognized Mr. Malamud’s efforts in a letter dated April 2, 2019, stating: “Our Founding

25

Fathers believed that an informed and involved citizenry was key to our democracy and Public
Resource helps us make[] this true.” Malamud Decl. ¶ 22.
69.

Mr. Malamud has been recognized by numerous government officials for his efforts

to make government information freely accessible on the Internet. For example, Hon. Nancy
Pelosi, Speaker of the House of Representatives, wrote to Mr. Malamud on April 17, 2008, stating:
“I thank you for your work to increase public discourse on technology, public domain, and
transparency issues and look forward to continuing to work with you.” Malamud Decl. ¶ 13. Hon.
John Boehner, then Speaker of the House of Representatives, together with Representative Darrell
Issa, Chair of the House Committee on Oversight and Government Reform, wrote to Mr. Malamud
on January 5, 2011, stating: “We’re writing today to thank you for your nearly two decades of
work to increase the availability of public data, and more recently your efforts to publish
proceedings of the House Oversight and Government Reform Committee in their entirety,” and
later recognized Public Resource from the floor of the House. Malamud Decl. ¶ 15. Mr. Malamud
has also received commendations from Hon. Lee H. Rosenthal, Chair of the Committee on Rules
of Practice and Procedure of the Judicial Conference of the United States, and many others.
Malamud Decl. ¶ 18.
70.

In addition to recognition from government officials, organizations have routinely

recognized Mr. Malamud’s efforts to make government information more accessible, including
awards from Harvard University, the Society of Professional Journalists, the First Amendment
Coalition, and the American Association of Law Libraries. Malamud Decl. ¶ 23.
B.

Public Resource’s Mission

71.

Public Resource is a non-profit charitable organization that provides online access

to many kinds of government materials, from judicial opinions to video recordings of
congressional hearings. Becker Decl. ¶ 32, Ex. 64 (2016 Malamud Decl.) ¶¶ 8-14; Malamud Decl.,
26

¶ 1. As part of this mission, Public Resource operates a website providing public access to the
law, including statutes, judicial opinions, and public safety and other standards that federal and
state governments have incorporated into law by reference. Becker Decl. ¶ 32, Ex. 64 (2016
Malamud Decl.) ¶¶ 8-25. Public Resource also contributes its materials to the Internet Archive.
Id.
72.

Public Resource aims to create a public collection of government edicts. Malamud

Decl. ¶ 38; see generally http://www.public.resource.org/.
73.

Public Resource does not limit, or charge for, access to its platform. Becker Decl.

¶ 32, Ex. 64 (2016 Malamud Decl.) ¶ 24. It does not display, or derive any revenue from,
advertising. It relies entirely on contributions and grants. Becker Decl. ¶ 32, Ex. 64 (2016
Malamud Decl.) ¶ 30.
74.

Public Resource promotes public discourse by making laws and regulations,

including those incorporated by reference, more accessible.

For example, by reformatting

documents, Public Resource allows persons with visual disabilities to enlarge the text or use
electronic text-to-speech readers to hear the text. Becker Decl. ¶ 30, Ex. 60 (Fruchterman expert
report) at 8-16. Similarly, Public Resource often translates images into scalable vector graphics
for better enlargement. Id. It uses optical character recognition and often painstakingly retypes
documents into Hypertext Markup Language (“HTML”) and converts formulas to Mathematics
Markup Language (“MML”). Id. This makes documents newly word-searchable and allows
researchers to analyze them at large scale with techniques such as machine learning. Becker Decl.
¶ 32, Ex. 64 (2016 Malamud Decl.) ¶¶ 16-17, 25-28.

27

75.

Public Resource endeavors to post on its website only standards that have become

a federal or state law or regulation through incorporation by reference. Becker Decl. ¶ 36, Ex. 64
(2016 Malamud Decl.) ¶¶ 4, 20, 24.
C.

Public Resource’s Litigation and Other Disputes

76.

In January 2013, the Sheet Metal and Air Conditioning Contractors National

Association (SMACNA) threatened Public Resource with litigation for posting the “HVAC Air
Duct Leakage Test Manual,” which was incorporated by reference into 10 CFR § 434.403 as well
as incorporated into state regulations. Malamud Decl., ¶ 33.
77.

Public Resource sued for declaratory relief in the U.S. District Court for the

Northern District of California, Case 3:13-cv-00815. Malamud Decl., ¶ 34. On July 9, 2013
SMACNA agreed to a stipulated judgment in which it agreed no longer to threaten Public Resource
or other parties for the posting of the four standards explicitly incorporated into the CFR, not to
assert copyright in those documents, and to pay Public Resource a token one dollar. See Malamud
Decl., ¶ 34, Ex. 27.
78.

When the State of Oregon objected to Public Resource’s posting of the Oregon

Revised Statutes, Carl Malamud spoke to the Legislative Counsel Committee, a joint committee
of the Oregon Legislature chaired by the Speaker of the House and the Senate President. After
hearing him and other witnesses, including the Legislative Counsel, the committee voted to
abandon assertions of copyright over the Oregon Revised Statutes. See Malamud Decl., ¶ 24, Ex.
23.
79.

Similarly, in 2012, after Public Resource posted the official Code of the District of

Columbia, the General Counsel of the District of Columbia studied the situation and decided to
produce a better web site for public access to the laws of the District of Columbia. The software is

28

maintained by the non-profit Open Law Library and available at https://code.dccouncil.us/. See
Malamud Decl., ¶ 25.
80.

The State of Georgia sued Public Resource for posting online the Official Code of

Georgia Annotated. Malamud Decl., ¶ 26. That case concerns Georgia’s only official law, which
the state publishes as the “Official Code of Georgia Annotated” with annotations that the state has
designated as “official.” The Eleventh Circuit held that Public Resource’s actions were lawful: it
ruled the entire Code, with annotations, is a government edict not subject to copyright. See Code
Revision Commission v. Public.Resource.Org, 906 F.3d 1229, 1233, 1244 (11th Cir. 2018). That
case is now before the U.S. Supreme Court. See State of Georgia v. Public.Resource.Org, Inc.,
U.S. Supreme Court Docket 18-1150. Id., ¶ 26.
81.

Mr. Malamud and Public Resource posted to the Internet Archive the version of the

2002 version of the National Electrical Safety Code (NESC) that the Indiana Supreme Court
reviewed in Bellwether Properties, LLC, v. Duke Energy Indiana, Inc., 87 N.E.3d 462, 468–69
(Ind.

2017),

which

is

located

https://ia600704.us.archive.org/16/items/gov.law.ieee.c2.2002/ieee.c2.2002.pdf.

at

Malamud Decl. ¶

42. The metadata page for the 2002 version of the NESC indicates that it was “Uploaded by
Public.Resource.Org,”

see

https://archive.org/details/gov.law.ieee.c2.2002

https://ia600704.us.archive.org/16/items/gov.law.ieee.c2.2002/ieee.c2.2002.pdf_meta.txt. Id.

29

and

Dated: November 8, 2019

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[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, Inc.

30