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

Filing 14

Plaintiffs' ANSWER to #12 Answer to Complaint, COUNTERCLAIM filed by Defendant for Declaratory Relief by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC.. Related document: #12 Answer to Complaint, COUNTERCLAIM filed by PUBLIC.RESOURCE.ORG, INC..(Hudis, Jonathan)

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/Counterclaim-Plaintiff.

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Civil Action No. 1:14-cv-00857-CRC
PLAINTIFFS’ REPLY AND
AFFIRMATIVE DEFENSES TO
DEFENDANT’S COUNTERCLAIM
FOR DECLARATORY RELIEF

Plaintiffs/Counterclaim-Defendants, American Educational Research Association, Inc.
(“AERA”), American Psychological Association, Inc. (“APA”), and National Council on
Education Measurement in Education, Inc. (“NCME”) (collectively, “Plaintiffs”), as and for their
Reply

and

Affirmative

Defenses

Defendant/Counterclaim-Plaintiff,

to

the

Counterclaim

Public.Resource.Org,

Inc.

for

Declaratory

(“Public

Relief

Resource”

of
or

“Defendant”), responds as follows:
Definitions
A.

As used herein, the term “1999 Standards” shall mean the 1999 edition of the

Standards for Educational and Psychological Testing.
B.

As used herein, the term “1985 Standards” shall mean the 1985 edition of the

Standards for Educational and Psychological Testing.
Responses to Counterclaim
Introduction
1.

Plaintiffs admit that Public Resource has posted numerous copyrighted standards

and codes on websites under its dominion and control. Plaintiffs otherwise lack information
sufficient to form a belief as to the remaining allegations contained in paragraph 1 of Public
Resource’s Counterclaim, and therefore deny same leaving Defendant to its proofs.
2.

Plaintiffs generally admit that federal, state and local governments within the

United States promulgate regulations.

Plaintiffs otherwise do not understand what Public

Resource means by the term “fundamental component,” and therefore deny the remaining
allegations contained in paragraph 2 of Public Resource’s Counterclaim, leaving Defendant to its
proofs.
3.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 3 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
4.

Plaintiffs deny the allegations contained in paragraph 4 of Public Resource’s

Counterclaim.
5.

Plaintiffs admit that the Code of Federal Regulations cited by Public Resource in

paragraph 5 of Public Resource’s Counterclaim state that the 1999 Standards are incorporated by
reference within those Code provisions. Plaintiffs otherwise deny the allegations contained in
paragraph 5 of Public Resource’s Counterclaim.
6.

Plaintiffs admit that the state code or rule provisions cited by Public Resource in

paragraph 6 of Public Resource’s Counterclaim state that the 1999 Standards are incorporated by
reference within those code provisions. Plaintiffs otherwise deny the allegations contained in
paragraph 5 of Public Resource’s Counterclaim.
7.

Plaintiffs admit the allegations contained in paragraph 7 of Public Resource’s

Counterclaim.

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8.

Plaintiffs admit that they own the copyright in the 1999 Standards. Plaintiffs

otherwise do not understand what Public Resource means by the term “privileged relationship,”
and therefore deny the remaining allegations contained in paragraph 8 of Public Resource’s
Counterclaim, leaving Defendant to its proofs.
9.

Plaintiffs admit that they own the copyright in the 1999 Standards. Plaintiffs

otherwise do not understand what Public Resource means by the term “privileged relationship,”
and therefore deny the remaining allegations contained in paragraph 9 of Public Resource’s
Counterclaim, leaving Defendant to its proofs.
10.

Plaintiffs admit that, as owner of the copyright in the 1999 Standards, they are

endowed with the benefits and privileges of copyright protection to that work under the U.S.
Copyright Act, 17 U.S.C. §§ 101 et seq. Plaintiffs otherwise do not understand what Public
Resource means by the term “lawful opportunity,” and therefore deny the remaining allegations
contained in paragraph 10 of Public Resource’s Counterclaim, leaving Defendant to its proofs.
11.

Plaintiffs admit that, as owner of the copyright in the 1999 Standards, they are

endowed with the benefits and privileges of copyright protection to that work under the U.S.
Copyright Act, 17 U.S.C. §§ 101 et seq. Plaintiffs otherwise do not understand what Public
Resource means by the term “lawful opportunity,” and therefore deny the remaining allegations
contained in paragraph 11 of Public Resource’s Counterclaim, leaving Defendant to its proofs.
12.

Plaintiffs admit that, as owner of the copyright in the 1999 Standards, they are

endowed with the benefits and privileges of copyright protection to that work under the U.S.
Copyright Act, 17 U.S.C. §§ 101 et seq. Plaintiffs otherwise do not understand what Public
Resource means by the term “lawful opportunity,” and therefore deny the remaining allegations
contained in paragraph 12 of Public Resource’s Counterclaim, leaving Defendant to its proofs.

‐3 

13.

Plaintiffs admit that, as owner of the copyright in the 1999 Standards, they are

endowed with the benefits and privileges of copyright protection to that work under the U.S.
Copyright Act, 17 U.S.C. §§ 101 et seq. Plaintiffs otherwise do not understand what Public
Resource means by the terms “lawful opportunity,” “certain activities,” and “gatekeepers,” and
therefore deny the remaining allegations contained in paragraph 13 of Public Resource’s
Counterclaim, leaving Defendant to its proofs.
14.

Plaintiffs admit that, as owner of the copyright in the 1999 Standards, they are

endowed with the benefits and privileges of copyright protection to that work under the U.S.
Copyright Act, 17 U.S.C. §§ 101 et seq. – including the right to set the conditions under which
the public may use the 1999 Standards consistent with the rights afforded by the U.S. Copyright
Act. Plaintiffs otherwise do not understand what Public Resource means by the terms “have
access” and “gain certain rights,” and therefore deny the remaining allegations contained in
paragraph 14 of Public Resource’s Counterclaim, leaving Defendant to its proofs.
15.

The allegations contained in paragraph 15 of Public Resource’s Counterclaim are

legal conclusions to which no response is required. Plaintiffs otherwise do not understand what
Public Resource means by the term “content of law” and therefore deny the remaining
allegations contained in paragraph 15 of Public Resource’s Counterclaim, leaving Defendant to
its proofs. By way of further answer, Plaintiffs provide the public with access to the 1999
Standards, such that no action by Public Resource is required to provide the public with access to
the 1999 Standards.
16.

The allegations contained in paragraph 16 of Public Resource’s Counterclaim are

legal conclusions to which no response is required. Plaintiffs otherwise do not understand what
Public Resource means by the term “content of law” and therefore deny the remaining

‐4 

allegations contained in paragraph 16 of Public Resource’s Counterclaim, leaving Defendant to
its proofs. By way of further answer, Plaintiffs provide the public with access to the 1999
Standards, such that no action by Public Resource is required to provide the public with access to
the 1999 Standards.
17.

The allegations contained in paragraph 17 of Public Resource’s Counterclaim are

legal conclusions to which no response is required. By way of further answer, Plaintiffs admit
that, as owner of the copyright in the 1999 Standards, they are endowed with the benefits and
privileges of copyright protection to that work under the U.S. Copyright Act, 17 U.S.C. §§ 101 et
seq.
18.

Plaintiffs admit the allegations contained in paragraph 18 of Public Resource’s

Counterclaim.
19.

Plaintiffs admit that U.S. copyright law gives Plaintiffs the power to determine the

conditions under which Public Resource and others may access, reproduce, publish, translate,
reformat or annotate the Standards, or enable others to do so. Except as specifically admitted,
Plaintiffs deny the allegations contained in paragraph 19 of Public Resource’s Counterclaim.
Parties
20.

Upon information and belief, Plaintiffs admit the allegations contained in

paragraph 20 of Public Resource’s Counterclaim.
21.

Plaintiffs admit the allegations contained in paragraph 21 of Public Resource’s

Counterclaim.
22.

Plaintiffs admit the allegations contained in paragraph 22 of Public Resource’s

Counterclaim.
23.

Plaintiffs admit the allegations contained in paragraph 23 of Public Resource’s

‐5 

Counterclaim.
Jurisdiction and Venue
24.

Plaintiffs admit that Public Resource’s Counterclaim purports to seek declaratory

relief pursuant to 28 U.S.C. § 2201 and 17 U.S.C. §§ 101 et seq., and admits that the Court has
subject matter jurisdiction over the Counterclaim. Except as specifically admitted, Plaintiffs
deny the allegations contained in paragraph 24 of Public Resource’s Counterclaim.
25.

Plaintiffs admit that AERA and APA maintain offices in Washington, D.C., that

all of the Plaintiffs transact business in this District, and that the Court has personal jurisdiction
over each of the Plaintiffs. Except as specifically admitted, Plaintiffs deny the allegations
contained in paragraph 25 of Public Resource’s Counterclaim.
26.

Plaintiffs admit that they have submitted to the Court’s jurisdiction over each of

them for purposes of this case by filing their Complaint against Public Resource in this Court.
Except as specifically admitted, Plaintiffs deny the allegations contained in paragraph 26 of
Public Resource’s Counterclaim.
27.

Plaintiffs admit that venue is proper in this Court, that AERA and APA maintain

offices in Washington, D.C., and that Plaintiffs filed their Complaint against Public Resource in
this Court.

Except as specifically admitted, Plaintiffs deny the allegations contained in

paragraph 27 of Public Resource’s Counterclaim.
Facts
I.

Public Resource’s Operations
28.

Plaintiffs admit that Public Resource is a California not-for-profit corporation.

Plaintiffs otherwise lack information sufficient to form a belief as to the allegations contained in
paragraph 28 of Public Resource’s Counterclaim, and therefore deny same leaving Defendant to

‐6 

its proofs.
29.

Plaintiffs lack information sufficient to form a belief as to the allegations

concerning Public Resource contained in paragraph 29 of Public Resource’s Counterclaim, and
therefore deny same leaving Defendant to its proofs. Plaintiffs otherwise admit the allegations
contained in paragraph 29 of Public Resource’s Counterclaim.
30.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 30 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
31.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 31 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
32.

Plaintiffs admit the allegations contained in paragraph 32 of Public Resource’s

Counterclaim.
33.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 33 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
34.

Plaintiffs do not understand what Public Resource means by the term “hosts

standards” and therefore deny the allegations contained in paragraph 34 of Public Resource’s
Counterclaim, leaving Defendant to its proofs.
35.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 35 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
36.

Plaintiffs lack information sufficient to form a belief as to the allegations

‐7 

contained in paragraph 36 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
37.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 37 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
38.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 38 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
39.

Plaintiffs deny the allegations contained in paragraph 39 of Public Resource’s

Counterclaim.
40.

Plaintiffs deny the allegations contained in paragraph 40 of Public Resource’s

Counterclaim.
41.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 41 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
42.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 42 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
43.

Plaintiffs admit the allegations contained in paragraph 43 of Public Resource’s

Counterclaim.
44.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 44 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.

‐8 

II.

Plaintiffs’ Operations
45.

Plaintiffs admit the allegations contained in paragraph 45 of Public Resource’s

Counterclaim.
46.

Plaintiffs admit the allegations contained in paragraph 46 of Public Resource’s

Counterclaim.
47.

Plaintiffs admit the allegations contained in paragraph 47 of Public Resource’s

Counterclaim.
48.

Plaintiffs admit that their development of the 1999 Standards reduces duplication

of effort for test writers.

Except as specifically admitted, Plaintiffs deny the allegations

contained in paragraph 48 of Public Resource’s Counterclaim.
49.

Plaintiffs admit the allegations contained in paragraph 49 of Public Resource’s

Counterclaim.
50.

Plaintiffs admit the allegations contained in paragraph 50 of Public Resource’s

Counterclaim.
51.

Plaintiffs admit the allegations contained in paragraph 51 of Public Resource’s

Counterclaim.
52.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 52 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
53.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 52 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
54.

Plaintiffs admit that they update the Standards for Educational and Psychological

‐9 

Testing periodically. Except as specifically admitted, Plaintiffs deny the allegations contained in
paragraph 54 of Public Resource’s Counterclaim.
55.

Plaintiffs admit that Public Resource published the entirety of the 1999 Standards

to Public Resource’s https://law.resource.org website. Except as specifically admitted, Plaintiffs
deny the allegations contained in paragraph 55 of Public Resource’s Counterclaim.
56.

Plaintiffs admit that the U.S. Department of Education has referenced the 1999

Standards in Title 34 of the U.S. Code of Federal Regulations. Except as specifically admitted,
Plaintiffs deny the allegations contained in paragraph 56 of Public Resource’s Counterclaim.
57.

Plaintiffs admit the allegations contained in paragraph 57 of Public Resource’s

Counterclaim.
58.

Plaintiffs do not understand what Public Resource means by the phrase “is not

incorporated into federal regulations,” and therefore deny the allegations contained in paragraph
58 of Public Resource’s Counterclaim, leaving Defendant to its proofs.
59.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 59 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
60.

Plaintiffs deny the allegations contained in paragraph 60 of Public Resource’s

Counterclaim.
61.

Plaintiffs admit the allegations contained in paragraph 61 of Public Resource’s

Counterclaim.
62.

Plaintiffs admit the allegations contained in paragraph 62 of Public Resource’s

Counterclaim.
63.

Plaintiffs admit the allegations contained in paragraph 63 of Public Resource’s

‐10 

Counterclaim.
64.

Plaintiff AERA admits the allegations contained in paragraph 64 of Public

Resource’s Counterclaim.
65.

Plaintiff APA admits the allegations contained in paragraph 65 of Public

Resource’s Counterclaim.
66.

Plaintiff NCME admits the allegations contained in paragraph 66 of Public

Resource’s Counterclaim.
67.

Plaintiffs admit that the Federal Register Notice cited by Public Resource in

paragraph 67 of Public Resource’s Counterclaim state that the 1985 Standards, as amended June
2, 1989, were incorporated by reference into certain Sections of the Code of Federal Regulations.
Plaintiffs otherwise deny the allegations contained in paragraph 67 of Public Resource’s
Counterclaim.
68.

Plaintiffs deny the allegations contained in paragraph 68 of Public Resource’s

Counterclaim.
69.

Plaintiff AERA admits that it was aware, prior to the filing of this action, that the

1999 Standards were referenced by the U.S. Department of Education in Title 34 of the U.S.
Code of Federal Regulations.

Except as specifically admitted, Plaintiff AERA denies the

allegations contained in paragraph 69 of Public Resource’s Counterclaim.
70.

Plaintiff APA admits that it was aware, prior to the filing of this action, that the

1999 Standards were referenced by the U.S. Department of Education in Title 34 of the U.S.
Code of Federal Regulations.

Except as specifically admitted, Plaintiff APA denies the

allegations contained in paragraph 70 of Public Resource’s Counterclaim.
71.

Plaintiff NCME admits that it was aware, prior to the filing of this action, that the

‐11 

1999 Standards were referenced by the U.S. Department of Education in Title 34 of the U.S.
Code of Federal Regulations.

Except as specifically admitted, Plaintiff NCME denies the

allegations contained in paragraph 69 of Public Resource’s Counterclaim.
72.

Plaintiff AERA admits the allegations contained in paragraph 72 of Public

Resource’s Counterclaim, but denies that making such a request of any U.S. Government entity
is an obligation of AERA in maintaining the enforceability of the copyright in the 1999
Standards.
73.

Plaintiff APA admits the allegations contained in paragraph 73 of Public

Resource’s Counterclaim, but denies that making such a request of any U.S. Government entity
is an obligation of APA in maintaining the enforceability of the copyright in the 1999 Standards.
74.

Plaintiff NCME admits the allegations contained in paragraph 74 of Public

Resource’s Counterclaim, but denies that making such a request of any U.S. Government entity
is an obligation of NCME in maintaining the enforceability of the copyright in the 1999
Standards.
75.

Plaintiff AERA admits that it never requested any U.S. Government entity for

compensation if and when the Standards were referenced or mentioned in governmental
regulations, but denies that making such a request of any U.S. Government entity is an obligation
of AERA in maintaining the enforceability of the copyright in the 1999 Standards. Plaintiff
AERA otherwise the allegations contained in paragraph 75 of Public Resource’s Counterclaim.
76.

Plaintiff APA admits that it never requested any U.S. Government entity for

compensation if and when the Standards were referenced or mentioned in governmental
regulations, but denies that making such a request of any U.S. Government entity is an obligation
of APA in maintaining the enforceability of the copyright in the 1999 Standards. Plaintiff APA

‐12 

otherwise the allegations contained in paragraph 76 of Public Resource’s Counterclaim.
77.

Plaintiff NCME admits that it never requested any U.S. Government entity for

compensation if and when the Standards were referenced or mentioned in governmental
regulations, but denies that making such a request of any U.S. Government entity is an obligation
of NCME in maintaining the enforceability of the copyright in the 1999 Standards. Plaintiff
NCME otherwise the allegations contained in paragraph 77 of Public Resource’s Counterclaim.
78.

Plaintiff AERA admits that it never protested to any U.S. Government entity if

and when the Standards were referenced or mentioned in governmental regulations. Plaintiff
AERA does not understand what Public Resource means by the phrase “incorporation of any
edition … into regulations,” and therefore denies the allegations contained in paragraph 78 of
Public Resource’s Counterclaim as stated, leaving Defendant to its proofs. Plaintiff AERA
generally denies that making a protest to any U.S. Government entity is an obligation of AERA
in maintaining the enforceability of the copyright in the 1999 Standards.
79.

Plaintiff APA admits that it never protested to any U.S. Government entity if and

when the Standards were referenced or mentioned in governmental regulations. Plaintiff APA
does not understand what Public Resource means by the phrase “incorporation of any edition …
into regulations,” and therefore denies the allegations contained in paragraph 79 of Public
Resource’s Counterclaim as stated, leaving Defendant to its proofs. Plaintiff APA generally
denies that making a protest to any U.S. Government entity is an obligation of APA in
maintaining the enforceability of the copyright in the 1999 Standards.
80.

Plaintiff NCME admits that it never protested to any U.S. Government entity if

and when the Standards were referenced or mentioned in governmental regulations. Plaintiff
NCME does not understand what Public Resource means by the phrase “incorporation of any

‐13 

edition … into regulations,” and therefore denies the allegations contained in paragraph 80 of
Public Resource’s Counterclaim as stated, leaving Defendant to its proofs. Plaintiff NCME
generally denies that making a protest to any U.S. Government entity is an obligation of NCME
in maintaining the enforceability of the copyright in the 1999 Standards.
81.

Plaintiffs

admit

that,

at

one

time,

the

website

located

at

http://www.teststandards.org contained an article authored by Wayne Camara which stated that
the Standards for Educational and Psychological Testing have been “referenced in law and cited
in Supreme Court and other judicial decisions lending additional authority to the document.”
However, the teststandards.org website was recently updated and no longer contains the Camara
article containing the quoted text in question.
III.

Standards that the Law (Allegedly) Incorporates
82.

The allegations contained in paragraph 82 of Public Resource’s Counterclaim are

legal conclusions to which no response is required.
83.

Plaintiffs admit that, at 69 Fed. Reg. 39913 at 39914, col. 1 (July 1, 2004), it

states: “[t]o the greatest possible degree, the principles and guidelines developed under this goal
must be compatible extensions of the Standards for Educational and Psychological Testing.”
Except as specifically admitted, Plaintiffs deny the allegations contained in paragraph 83 of
Public Resource’s Counterclaim.
84.

Plaintiffs deny the allegations contained in paragraph 84 of Public Resource’s

Counterclaim. By way of further answer, the section of the Minn. Admin Rules cited by Public
Resource was repealed.
85.

Plaintiffs do not understand what Public Resource means by the phrase “[o]ther

regulations, funding opportunities, and Requests for Proposals” and therefore deny the

‐14 

allegations contained in paragraph 85 of Public Resource’s Counterclaim, leaving Defendant to
its proofs.
86.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 86 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
87.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 87 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
88.

Plaintiffs admit that public comments often are solicited during the process of

drafting and adopting statutes and regulations. Plaintiffs otherwise lack information sufficient to
form a belief as to the allegations contained in paragraph 88 of Public Resource’s Counterclaim,
and therefore deny same leaving Defendant to its proofs.
89.

Plaintiffs do not understand what Public Resource means by “incorporation of a

standard into law,” and therefore deny the allegations contained in paragraph 89 of Public
Resource’s Counterclaim, leaving Defendant to its proofs.
90.

Plaintiffs do not understand what Public Resource means by “the incorporation of

a standard,” and therefore deny the allegations contained in paragraph 90 of Public Resource’s
Counterclaim, leaving Defendant to its proofs.
91.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 91 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
92.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 92 of Public Resource’s Counterclaim, and therefore deny same leaving

‐15 

Defendant to its proofs.
93.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 93 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs. Plaintiffs cannot purport to answer Public Resource’s allegations on
behalf of the general public or which relate to some amorphous reference to unknown “laws and
regulations.”
94.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 94 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs. Plaintiffs cannot purport to answer Public Resource’s allegations on
behalf of the general public regarding their interest in bias (or lack thereof) in standardized
testing.
95.

Plaintiffs deny the allegations contained in paragraph 95 of Public Resource’s

Counterclaim. By way of further answer, Plaintiffs provide the public with access to the 1999
Standards in other ways not mentioned by Public Resource in paragraph 95.
96.

Plaintiffs admit the allegations contained in paragraph 96 of Public Resource’s

Counterclaim.
97.

Plaintiffs do not understand what Public Resource means by the phrase “provides

access to the contents,” and therefore deny the allegations contained in paragraph 97 of Public
Resource’s Counterclaim leaving Defendant to its proofs. By way of further answer, the
unauthorized version of the 1999 Standards published to Public Resource’s website was not in
electronically searchable format.
98.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 98 of Public Resource’s Counterclaim, and therefore deny same leaving

‐16 

Defendant to its proofs.
99.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 99 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
100.

Plaintiffs admit that, in 47 Fed. Reg. 34108 (Aug. 6, 1982), Sec. 51.1(c)(2), it

states: incorporation by reference “[i]s not intended to detract from the legal or practical
attributes of the system established by the Federal Register Act, the Administrative Procedure
Act, the regulations of the Administrative Committee of the Federal Register, and the acts which
require publication in the Federal Register.” Except as specifically admitted, Plaintiffs deny the
allegations contained in paragraph 100 of Public Resource’s Counterclaim.
101.

Plaintiffs do not understand what Public Resource means by the phrase “charges

fees for access,” and therefore deny the allegations contained in paragraph 101 of Public
Resource’s Counterclaim, leaving Defendant to its proofs.

By way of further answer, as

publisher of record, Plaintiff AERA sells printed copies of the 1999 Standards at retail prices
ranging from $35.95 to $49.95 per copy, and distributes the net income from these sales to the
three copyright owner organizations (i.e., AERA, APA and NCME).
102.

Plaintiff AERA does not understand what Public Resource means by the phrase

“charges fees for access,” and therefore deny the allegations contained in paragraph 102 of
Public Resource’s Counterclaim, leaving Defendant to its proofs. By way of further answer, as
publisher of record, Plaintiff AERA sells printed copies of the 1999 Standards at retail prices
ranging from $35.95 to $49.95 per copy, and distributes the net income from these sales to the
three copyright owner organizations (i.e., AERA, APA and NCME).
103.

Plaintiffs admit that, Amazon.com is a re-seller and renter of printed copies of the

‐17 

1999 Standards, for which Amazon.com sets its own prices.

Plaintiffs otherwise lack

information sufficient to form a belief as to the allegations contained in paragraph 103 of Public
Resource’s Counterclaim, leaving Defendant to its proofs.
104.

Plaintiffs deny the allegations contained in paragraph 104 of Public Resource’s

Counterclaim.
105.

Plaintiffs deny the allegations contained in paragraph 105 of Public Resource’s

Counterclaim.
106.

Plaintiffs deny the allegations contained in paragraph 106 of Public Resource’s

Counterclaim.
107.

Plaintiffs deny the allegations contained in paragraph 107 of Public Resource’s

Counterclaim.
108.

Plaintiffs deny the allegations contained in paragraph 108 of Public Resource’s

Counterclaim.
109.

Plaintiffs deny the allegations contained in paragraph 109 of Public Resource’s

Counterclaim.
110.

Plaintiffs deny the allegations contained in paragraph 110 of Public Resource’s

Counterclaim.
111.

Plaintiffs deny the allegations contained in paragraph 111 of Public Resource’s

Counterclaim.
112.

Plaintiffs deny the allegations contained in paragraph 112 of Public Resource’s

Counterclaim.
113.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 113 of Public Resource’s Counterclaim, and therefore deny same leaving

‐18 

Defendant to its proofs.
114.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 114 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
115.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 115 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
COUNT I
[Declaratory Relief Pursuant to 28 U.S.C. § 2201, et seq. (Declaratory Judgment Act) and
Title 17 U.S.C. (Copyright Act of 1976)]
116.

Plaintiffs repeat and reallege paragraphs 1 through 115 above.

117.

The allegations contained in paragraph 117 of Public Resource’s Counterclaim

are legal conclusions to which no response is required.
118.

The allegations contained in paragraph 118 of Public Resource’s Counterclaim

are legal conclusions to which no response is required. By way of a further answer, no action by
Public Resource is necessary to provide the public with the ability to read the 1999 Standards.
119.

The allegations contained in paragraph 119 of Public Resource’s Counterclaim

are legal conclusions to which no response is required.
120.

The allegations contained in paragraph 120 of Public Resource’s Counterclaim

are legal conclusions to which no response is required.
121.

The allegations contained in paragraph 121 of Public Resource’s Counterclaim

are legal conclusions to which no response is required.
122.

The allegations contained in paragraph 122 of Public Resource’s Counterclaim

are legal conclusions to which no response is required. By way of a further answer, Plaintiffs
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state that OMB Circular A-119 and the October 2, 2013 report of the Office of the Federal
Register, National Archives and Records make clear that copyrighted documents do not lose
their status and protectable intellectual property through the government action of incorporation
by reference.
123.

The allegations contained in paragraph 123 of Public Resource’s Counterclaim

are legal conclusions to which no response is required. By way of a further answer, Plaintiffs
state that they own the copyright in the 1999 Standards. Plaintiffs do not lose their copyright
protection in the 1999 Standards as a result of incorporation by reference by the government.
124.

The allegations contained in paragraph 124 of Public Resource’s Counterclaim

are legal conclusions to which no response is required.
125.

The allegations contained in paragraph 125 of Public Resource’s Counterclaim

are legal conclusions to which no response is required.
126.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 126 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
127.

The allegations contained in the first sentence of paragraph 127 of Public

Resource’s Counterclaim are legal conclusions to which no response is required. Plaintiffs admit
the allegations contained in the second sentence of paragraph 127 of Public Resource’s
Counterclaim.

The allegations contained in the third sentence of paragraph 127 of Public

Resource’s Counterclaim are legal conclusions to which no response is required. Plaintiffs deny
the allegations contained in the fourth sentence of paragraph 127 of Public Resource’s
Counterclaim.
128.

Plaintiffs deny the allegations contained in paragraph 128 of Public Resource’s

‐20 

Counterclaim.
129.

Plaintiffs deny the allegations contained in paragraph 129 of Public Resource’s

Counterclaim.
130.

Plaintiffs admit the allegations contained in paragraph 130 of Public Resource’s

Counterclaim, except deny that Public Resource posted Plaintiffs’ 1999 Standard to Defendant’s
website in a searchable format.
131.

Plaintiffs deny the allegations contained in paragraph 131 of Public Resource’s

Counterclaim.
132.

Plaintiffs lack information sufficient to form a belief as to the allegations

contained in paragraph 132 of Public Resource’s Counterclaim, and therefore deny same leaving
Defendant to its proofs.
133.

Plaintiffs do not understand what Public Resource means by the term “incorporate

into,” and therefore deny the allegations contained in paragraph 133 of Public Resource’s
Counterclaim, leaving Defendant to its proofs. By way of a further answer, Plaintiffs cannot
purport to answer Public Resource’s allegations on behalf of what some government(s) or
government entity(ies) may or may not do in the future with other versions of the Standards for
Educational and Psychological Testing.
134.

The allegations contained in the paragraph 134 of Public Resource’s

Counterclaim are legal conclusions to which no response is required. By way of a further
answer, Plaintiffs do not understand what Public Resource means by the term “incorporated
standards,” and therefore deny the allegations contained in paragraph 134 of Public Resource’s
Counterclaim, leaving Defendant to its proofs.
135.

The allegations contained in the paragraph 135 of Public Resource’s

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Counterclaim are legal conclusions to which no response is required.
136.

Plaintiffs admit the allegations contained in paragraph 136 of Public Resource’s

Counterclaim.
137.

Plaintiffs deny the allegations contained in paragraph 137 of Public Resource’s

Counterclaim.
Affirmative Defenses to Counterclaim
First Affirmative Defense
138.

Public Resource’s counterclaim is barred in whole or in part for failure to state a

claim for which relief may be granted.
Second Affirmative Defense
139.

Public Resource’s counterclaim is unnecessary in light of Defendant’s denial of

liability for Plaintiffs’ claim.
Third Affirmative Defense
140.

Public Resource’s counterclaim is redundant of Defendant’s affirmative defenses

to Plaintiffs’ claim.
Fourth Affirmative Defense
141.

The “unclean hands doctrine” derives from the equitable maxim that “he who

comes into equity must come with clean hands.”
142.

The unclean hands doctrine “closes the doors of a court of equity to one tainted

with inequitableness or bad faith relative to the matter in which he seeks relief.”
143.

The unclean hands doctrine requires that “one seeking relief must have acted

fairly and without fraud or deceit as to the controversy at issue.”
144.

“Any willful act concerning the cause of action which rightfully can be said to

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transgress equitable standards of conduct is sufficient cause for invocation of the [unclean hands]
maxim …”
145.

Public Resource willfully published the 1999 Standards to Public Resource’s

https://law.resource.org website, without legal justification or permission from Plaintiffs to do
so.
146.

Public Resource’s willful, bad faith infringement and contributory infringement of

Plaintiffs’ work, the 1999 Standards, transgressed equitable standards of conduct.

Public

Resource further acted unfairly and with fraud and deceit as to the controversy presently before
the Court.
147.

Public Resource’s counterclaim for declaratory relief is therefore barred by the

doctrine of unclean hands.
Fifth Affirmative Defense
148.

Public Resource’s counterclaim is inapplicable, in view of Defendant’s admission

of infringement (see ¶ 127 of Defendant’s counterclaim).
Sixth Affirmative Defense
149.

The relief requested in Public Resource’s counterclaim is contrary to the public

policy of affording adequate and appropriate protection to works that are subject to copyright.
//
//
//
//
//
//

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Seventh Affirmative Defense
150.

Public Resource’s counterclaim is not the proper subject of a trial before a jury.
Respectfully submitted,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT,LLP

Dated: August 21, 2014

By:

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Kathleen Cooney-Porter (DC Bar # 434526)
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
Attorneys for Plaintiffs
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC.
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.

{431384US; 10743116_1.DOCX}

‐24 

CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2014, the foregoing PLAINTIFFS’ REPLY AND
AFFIRMATIVE

DEFENSES

TO

DEFENDANT’S

COUNTERCLAIM

FOR

DECLARATORY RELIEF was filed using the CM/ECF system that sent notice of the filing of
these documents to all counsel of record, and was also served via e-mail to:
Andrew P. Bridges
FENWICK & WEST LLP
555 California Street, 112th Floor
San Francisco, CA 94104
[e-mail]
David Halperin
1530 P Street NW
Washington, DC 20005
[e-mail]
Mitchell L. Stoltz
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
[e-mail]
Counsel for Defendant
PUBLIC.RESOURCE.ORG, INC.
/s/ Jonathan Hudis
Jonathan Hudis