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

Filing 60

MOTION for Summary Judgment Filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: #1 Statement of Facts Points of Authority, #2 Statement of Facts Statement of Undisputed Facts, #3 Declaration Declaration of Jonathan Hudis, #4 Exhibit Ex. A, #5 Exhibit Ex. B, #6 Exhibit Ex. C, #7 Exhibit Ex. D, #8 Exhibit Ex. E, #9 Exhibit Ex. F, #10 Exhibit Ex. G, #11 Exhibit Ex. H, #12 Exhibit Ex. I, #13 Exhibit Ex. J, #14 Exhibit Ex. K, #15 Exhibit Ex. L, #16 Exhibit Ex. M, #17 Exhibit Ex. N, #18 Exhibit Ex. O, #19 Exhibit Ex. P, #20 Exhibit Ex. Q, #21 Exhibit Ex. R, #22 Exhibit Ex. S, #23 Exhibit Ex. T, #24 Exhibit Ex. U, #25 Exhibit Ex. V-1, #26 Exhibit Ex. V-2, #27 Exhibit Ex. W, #28 Exhibit Ex. X, #29 Exhibit Ex. Y, #30 Exhibit Ex. Z, #31 Exhibit Ex. AA, #32 Exhibit Ex. BB, #33 Exhibit Ex. CC, #34 Exhibit Ex. DD, #35 Exhibit Ex. EE, #36 Exhibit Ex. FF-1, #37 Exhibit Ex. FF-2, #38 Exhibit Ex. FF-3, #39 Exhibit Ex. FF-4, #40 Exhibit Ex. FF-5, #41 Exhibit Ex. FF-6, #42 Exhibit Ex. GG, #43 Exhibit Ex. HH, #44 Exhibit Ex. II, #45 Exhibit Ex. JJ, #46 Exhibit Ex. KK, #47 Exhibit Ex. LL, #48 Exhibit Ex. MM, #49 Declaration Declaration of Marianne Ernesto, #50 Exhibit Ex. NN, #51 Exhibit Ex. OO, #52 Exhibit Ex. PP, #53 Exhibit Ex. QQ, #54 Exhibit Ex. RR, #55 Exhibit Ex. SS, #56 Exhibit Ex. TT, #57 Exhibit Ex. UU, #58 Exhibit Ex. VV, #59 Exhibit Ex. WW, #60 Exhibit Ex. XX, #61 Exhibit Ex. YY, #62 Exhibit Ex. ZZ, #63 Exhibit Ex. AAA, #64 Exhibit Ex. BBB, #65 Exhibit Ex. CCC, #66 Exhibit Ex. DDD, #67 Exhibit Ex. EEE, #68 Exhibit Ex. FFF, #69 Exhibit Ex. GGG, #70 Exhibit Ex. HHH, #71 Exhibit Ex. III, #72 Exhibit Ex. JJJ, #73 Declaration Declaration of Lauress Wise, #74 Exhibit Ex. KKK, #75 Exhibit Ex. LLL, #76 Declaration Declaration of Wayne Camara, #77 Exhibit Ex. MMM, #78 Declaration Declaration of Felice Levine, #79 Exhibit Ex. NNN, #80 Exhibit Ex. OOO (Public Version), #81 Exhibit Ex. PPP, #82 Exhibit Ex. QQQ, #83 Exhibit Ex. RRR, #84 Exhibit Ex. SSS, #85 Exhibit Ex. TTT-1, #86 Exhibit Ex. TTT-2, #87 Exhibit Ex. UUU, #88 Declaration Declaration of Kurt Geisinger, #89 Declaration Declaration of Dianne Schneider, #90 Text of Proposed Order Proposed Order, #91 Certificate of Service Certificate of Service)(Hudis, Jonathan). Added MOTION for Permanent Injunction on 12/22/2015 (td).

EXHIBIT H
Case No. 1:14-cv-00857-TSC-DAR

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at ro:29 pm Mon, Mar t9, zorz
IEdi tor,s note: Thís morning,

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I found a an enorrnous, goLb box w aíting f or me at my post-off íce box-

Aff ixed

to ít was q stícker wsrníng me that by accepting this box ínto my possessÍon, I was makíng myself líable
paper were US laws -- laws
for nearly $u mÍllÍon ín damages. The box was f ult of paper, and printed on the
that no one is ollowed to publÍsh or distribute wíthout permÍssion. cgyl Malauud,Boing Boíng's
glorious box of weírd (here are the unboxing pÍcs for
føvorite rogue archivist, ís the guy who sent me this
your pleaasre). I was expecting ít,because he asked me in qdvance íf I mínded being one of the zs entíties
who'd,receívethislaw-bombondeposit. Iwasonlytoogladtoaccept--ontheconditionthatCatlwríteus
o,guestedítorialexplaíníngwhatthÍswosall about.Hewastruetohísword.-Coryl

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The Standards PeoPle

TheRestofUsPeoPIe

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Our Right to Replicate the Law Without a License

law are secret, and you're only allowed to rcad them if you pay
standards body thousands of dollars for the right to find out what the law of the land is?

Did you know that

vital parts of the

US

a

buying privately-produced technical public safety standards that
have been incorporated into U.S. federal law. These public safety standards govern and protect a wide
range of activity, from how bicycle helmets are constructed to how to test for lead in water to the safety
characteristics of hearing aids and protective footwear. We have started copying those 73 standards
despite the fact they are festooned with copyright wamings, shrinkwrap agreements, and other dire
warnings. The reason we are making those copies is because citizens have the right to read and speak
the laws that we are required to obey and which are critical to the public safety.

public.Resource.Org spent

$7,414.26

on the Web, the standards people came
When peter Veeck posted the Building Code
"f 93-Y9Y. TS"+*-q
after him with a legal baseball bat. The standards people run private nonprofit organizations that
draft model laws that states then adopt as law, through a mechanism known as incorporation by
reference.
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Liberating America's secret, for-pay larae - Boirg Boing

Peter thought the people of his town should be able to read the law that governed
them. But the
standards people were adamant that the model building codes were their

copyright-protected property
¡nd that nobody could post this informatioir w-iiiit¡uL a iicense,
nobociy couici copy their property
without paying the tollmaster,
The U'S. Court of Appeals disagreed, saying that there is a "continuous understand.ing
that .the law,,
whether articulated in j ud.icial opinions or legislative acts or ordinances, is in the public
domain and
thus not amenable to copyright ." Veeck v. Southern Building Code Congress, zgs F.3d

Tq 6¡th Círcuit,

zoo2).

fi.

"If a Law Isnt Fubtic, rt trsnt a Law"-Justice ste¡lhen Breyer

Based on the Veeck decision-and a long line of other court opinions that
steadfastly maintain that
public access to the text of the laws that govern us is a fundamental aspect
of our democratic systemPublic'Resource.org has been posting the buitding, fire, plumbing, and other siate public
safety codes
since zooT' For the last two years, weVe taken the public safely codes of California
and convèrted them

t"

"HT.Y!:

A group of students in the RDC rural mentoring program have converted the formulas
and

graphics to SVG and

IvIATHIIL_,

and we put the whole thing

into an open code repository.

However, the building, ñre, and plumbing codes are just a subset of the technical
standards that have
become law. Despite the zooz Veeck decision, standards incorporated. by reference
continue to be sold
forbig bucks. Big bucks as in $65 for a z-page standard from the Society of Automotive Engineers,

Federal Motor Vehicle Safety Standards in 4e cFR s s7r Big bucks as
in
for a 48-page rgoe ;t;ndar¿ rrom unáerwtit"tr; r"¡"rãiori". ,ãår.,ìr"å
p""t of the osHA
".
workplace safety standards in 29 CFR S æro.
required as part of the
g8+z

Public'Resource.org has a mission of making'uhe law available to aii citizens, and
these technical
standards are a big black hole in the legal universe. We've taken a gamble and spent g1,4t4.z6to
buy
of these technical public safety standards that are incorporated into the U.S.

73

Ç""iç g{ FSg9l"l
ASggl+ligl9. w" made z5 print copies of each of these standards and bound each document in a

red/white/blue patriotic C.sRt¡r¡c¿t¡ Or Ilco¡pon¿r¡ol stating that the documents are legally
binding on
citizens and residents of the United States and that "criminal penalties mav applv for
noncompliance!,,

UI. Our gzzg.z Million Gamble on print
;,.W..[i:þEriirco¡ie-i'y9 ,*áyfá:í.fif:,,F_.iär¡lili;.hè¡áu-ó,ð.riiJ:æ,iiÉe4reätáh.d, nIèdtiä:[äkäå,¿ãirïiöüËãhd

;þruaêntrriisttb.Èpintmiil¡iadngtä.è.s-órl gid#úrnén wittr r pri"t
*" are able to rimii
"aitior,,
distribution with none of those infinite-copy side effects we know and love about our digital
world.
Print seemed to be a medium the standards people and the legal people could relate to.

rcknÑ-f

ält'lhè,¡ffiri¿rit,warnings;t¿¡ o¡ust Êti,fhffik-'-piäg'iËêma'rtó;iþlrd.'ò-ihürêä:

hot rhetoric that accompanies theäes documents that the producers

rnal''¡ot"6¿ta&.únüálylËiiclrmstances.

.ortirru"";il;;" ,*r;i|;

Those of ygu.famltlar ¡4rith

sta-tu-tory damages for unlawful replication of a document is $go,ooo "opvrigrr'i,ffirr,tlr*:t6,rn;g
0", irrfrJ.rion. So, *rr"n tfrougl,
are not entirted. ro cgpyrigþ! proråçtion, a¿-ã,*¿i:66ç-e"'.¡r,i¿¡î
'strongly'ualiêie,ttiái'th.èrao¿unuts

**

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Liberating America's secret, for-paylaws - Boing Boing

timited print run is in any case definitely fair use, if a judge were to decide that what we did was
Èreaking the law, 25 copies of 73 standards works out to ûzTs,Tío,ooo in potential liability, White whales
may make bigger bets, we draw the line at $273 miltion.
Those copies were bound up in 27.9-pound boxed sets and dispatched to 3 classes of recipients:

the Standards Development Organizations (SDOs) with a Nor¡cs o¡
I¡¡coRpoR¿r¡o¡¡, stating that comments must be received by Public.Resource.Org by May l,2ou. The
recipients include the American National Standards Institute, American Society of Mechanical
Engineers, American Society for Testing and Materials, British Standards Institute, IEEE,
International Organization for Standardization, National Fire Protection Association, National
Sanitation Foundation, Society of Automotive Engineers, and the Underwriters' Laboratories. 7
sets were sent to U.S. government offices, including the White House, Senate (Senators Grassley

1o sets were sent to

and \n/hitehouse), House (Representatives Issa and Lofgren),

N1!iolalalçþiyçt,

Administrative Conference of the United States,
and the
-Fe_dgrylJ"r"?d" ÇqT.TiP-s¡,q1,
Copyright Office raising zr points of Iaw and policy ranging from excessive CEO compensation to
cahootenizing in restraint of trade. The remaining copies have been reserved for public
exhibition and legal d.efense, including copies furnished to
faculty, two copies for the

M3in¡!ry?+ M94¡3,

EFF, the

Ha-rvat{ "!ly.lçþoql

and one to our legal counselor, David

Halperin.
Upon the close of the May t comment period, it is our intention to begin posting these Z3 standards in
HTML and begin the process of providing a unified, easy-to-use interface to all public safety standards
in the Code of Federal Regulations. It is also our intention to continue this effort to include all
standards specifically incorporated by reference in the 50 states. That the law must be available to

citizens is a cardinal principle.of law in countries such as
we

will expand our efforts to i.nclude those jurisdictions

ry.

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and the

V4Iç4_ $i_ngrlom, ana

as well.

A Poll Tax on Access to Justice

The argument for the status quo is that it costs money to develop these high-quality standards and
that it is the stated public policy of government that these standards shall be developed by the private
sector using a voluntary, consensus-b ased approach. (Having spent a lot of time with these documents,
we can vouch that many of these standards are very high-quality technical documents. This is

important stuff and groups like AS_ME and NFPA do a great job.)
AII nonprofits need money and SDOs are no exception. But, no matter how you slice the cheese, you
can't do this on the backs of the informed citizenry. Access to the law is a fundamental legal right.
Do these organizations need the revenue from standards sales in order to keep making high-quality
standards? While SDOs have come to rely on this very lucrative monopoly over pieces of the public

domain, a look at their revenue streams and executive compensation levels indicates that perhaps they
don't need quite as much as they're getting. They all have a variety of revenue streams in addition to
document sales ranging from membership fees to conferences to training and directed research (often
done with grants, subsidies, or direct support from government). As sot(c)(3) nonprofits with an explicit
goal of making their standards into law, SDOs have moral and legal obligations to make those
standards that have already become law available to the public and in no case can they prohibit others

from doing

so.

The scale of these operations is indicated in Table I which lists the CEO compensation for ten leading
standards-making nonprofits. (ISO refuses to divulge executive compensation despite their status as a

nongovernmental organization based in
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AERA APA NCME 0031766

Liberating America's secret, for-pay

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Table r: Cornpensat¡on of Major Nonprofíts Involved Ín Standards Setting

F-ank- Na¡neof Nonnroñt

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The status quo assumes that the only way to fund a standards-making process is to charge lots of
money for the enil product. But that is a self-serving self-delusion. The SDOs would actually grow aíd
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They might need to change their business models, but hasn't the internet made the rest of us change
our business models?

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"Let Every Sluice of Knowledge tse Set A-Flowing"-John Adarns

The internet was built on open standards that are freely available. Many readers may not realize it, but
there were originalty two

Intefnets.

The one we use is based on TCP/IP and was developed by the

iETF and other groups such as the WsC. But, there was another Internet calted
_OP_en Qyplç1r:
(OSi) which was being pushed in the rs80s and early rseos by the International
Jllgfçg+199"t*i9l

Organization for Standardizaiion (1SO) and other SDOs. The OSI Interne'¡- was based on very expensive
standards and it failed miserably. It was open that won and open that scaled.

It is our contention that the physical standards that we're posting are j ust as important as Internet
standards. By making things like the National Fuel and Gas Code, the standard for safety in wood and
metal ladders, or the standards for safety and hygiene in water supplies readily available to all without
testriction, we rnake society better, People can read the siancìarcìs and iearn, they can improve upon
them by making searchable databases or better navigational tools, they can build new kinds of
businesses.

Innovation and education are just two of the benefits of opening up this world, but at the root are
basic issues of democracy and justice. We cannot tell citizens to obey laws that are only available for
the rich to read. The current system acts as a poll tax on access tojustice, a deliberate rationing and
restriction of information critical to our public safetv. That system is morally wrong and it is legally
unconstitutional.

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v[. Supporting Materials
office
In response to a petition drafted by Professor Strauss or_Çg-I-qgr-þl"q _l-gq
"lç_4-"ql,the
public as to whether they should provide
of the Federal Register is taking comments from the
greater public access to standards incorporated by reference. YouhaveuntilMarchzStorespondPleaseletthemknowwhatyouthink! rne

Administrative Conference of the United

!!-g!ç_q recently considered the issue of Incorporation by Reference, but ended up not taking
any significant action. A particularly strong letter of protest was submitted by EFF. For makers
and doers interested in the craft of public printing, we posted photographs ofthe construction of
these boxes of in our print factory. A copy of the packing sl.ip that was in the boxes, including
the ÀIor¡ce Or Ilvconponerro¡u. the shipping manifest, and the T letters of transmittal to government
officials is available for your review as a PDF file as is a sample CsRr¡r¡cerr O¡ I¡¡co¡poRar¡o¡¡.

MORE: CAROUSEL . COPYTIGHT. LAW . POLITICS

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Responses to "Liberating Arnerica's secret, for-pay laws"

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Gene Poole says:

March rg,zoJz at 9:47 pm

Either make all laws freely available to the public or accept ignorance of the law as a valid defense.
Seems cheaper to make the law available.
Reply

Lemoutan says:
March 20,zoJz at u:o3 am

youwant to achieve something,Iegísløte for íts opposíte" I suppose you
couid also level the playing field by making oll laws pay-per-view. And you wouldn't get a free
By the principle of."If
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March zo,zoJz at u:o8 am
They are not exactly laws. It's more along the lines of a law saying, "if you want to make
protective shoes You have to adhere to standard u3 by standards organization XYZ." This is, of
course, still outrageous but is typically intended for professionals and enterprises for whom this
isn't a huge expense.
There are real secret (criminal) laws whose mere existence is completely hidden from the public.
Not sure if we should use the same words to describe those and standards.

Edit: Also, read Bahumat's comment below; he's spot-on, standards are important and expensive
to produce. Difficult to solve; if everything were funded by the public you'd have people

complaining that they shouldn't have to pay just so some protective shoe manufacturer (evil

http://boingboing.neV20lZ03ll9liberating-an€ricas-secret.html

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