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

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Terms of Use
10 March

2fi)l

This terms of use agreement (the "Agreement') govems your use of the collection of
Web pages and other dig¡tal content (the'Collections') ava¡lable through the lntemet
Archive (the'Archive'). When accessing an archived page, you will be presented with
the lerms of use agreement. lf you do not agree to these lerms, please do not use the
Archive's Collections or its Web site (the "Site").

Access to the Archive's Collections is provided at no cost to you and is granted for
scholarship and research purposes only. The Archive, at its sole discretion, may provide
you with a password to access certain Collections, provided that you complete eny
required application process and prcvide accurate information in your application. Yotr
may use your password only lo access tlte Collections in ways consistent with this
Agreemenl
no other access to or use of the Site, the Cdlections, or the Archive's
seryices ¡s authorized. You agree not to interfere with the work of ottpr users or Archive
personnel, servers, or fesources. Further, you agree not to recirculate your password to
other people or organ¡zations or to copy offsite any part of the Collections w¡thoüt writlen
permission. Please report any unauthorized use of your password promptly to
info(ôarchive.oro. You acknowledge that yor have read and understood lhe Archive's
Privacy Policy and agree that the Archive may collect, use, and distribute information
pursuant to that policy. lf you prov¡de any content to the Archive, you gr¿nt the Archive a
nonexclusive, royalty-free right to use that content.

-

Some of lhe content available through the Archive may be govemed by local, national,
and/or intemational laws and regulalions, and your use of such content is solely at your
own risk. You agree to abide by all applicable laws and regulations, including intellectual
propefty laws, in connection with your use of the Archive. ln particular, you cedify that
your use of any part of the Archive's Collections will be noncommercial and will be
limited to noninlringirç or fair use under copyright law. ln us¡ng the Archive's site,
Collections, and/or services, you further agree (a) not to v¡olate arryone's rights of
privacy, (b) not to act in any way that might give ñse to civil or criminal liability, (c) rrct to
use or attempt to use another peson's password, (d) not to collect or store personal data
about anyone, (e) not to infringe any copyright, trademark, patent, or other proprietary
rights of any person, (f) not to transmit or facilitate the transmission of unsolicited email
('spam"), (g) nol to harass, lhreaten, or otherwise annoy anyone, and (h) not to act in any
way that might be harmful to minors, including, without limitation, lransmitting or
facilitating the lransmission of child ponography, which is prohibited by federal law and
may be repoded to the authorities should it be discovered by the Archive.
You agree that we may contact you from lime to time with surveys or other questions
regarding yorr op¡nions about and uses of the Archive, as well as with information we
believe may be of interest to you. We encourage you to respond to these surveys
because we value your input, wh¡ch w¡ll assist us in improving the Archive. ln addilion,
we requesl that, according to standard academic praclice, if yru use the Archive's
Collections for any research that results in an article, a bod<, or olher publ¡cation, you list
the Archive as a resource in your bibliography.
While we collect publicly available lnlemet documenls, sometimes aulhors and
publishers express a desire for their documents not to be included in the Collections (by
tagg¡ng a file for robot exclusion or by contacting us or the orig¡nal crawler grorp). lf lhe
author or publisher of some part of the Archive does nol want his or her work in our
Collections, then we may remove that portion of the Collections without notice.
The Archive may ¡mmediately terminate this Agreement at its sde discretion at any lime
upolr written notice (including via email) to you. Upon termination, you agree that the
Archive may immediately deactivate any password it has ¡ssued to you and bar you from
accessing the Collections or the Site.
The Archive may modify this Agreement from time to lime, and your conlinued use of the
Collections and/or the Site constitules your acceptance of any and all modifications. The
Archive will attempt to nolify you ol substant¡al modifications via the email address that
you have registered with us, if any.
Eecause the content of the Collections comes from around the wodd and from many
different sectors, the Collections may conla¡n information that m¡ght be deemed
offensíve, distuôing, pomographic, racist, sexist, bizane, misleading, fraudulent, or
otherwise objectionable. The Archive does not endorse or sponsor any content ¡n the
Collections, nor does it guarantee or warrant that the content available in the Collections
is accurate, complete, noninfiinging, or legally accessible in yourjuñsdiction, and you
agree that you are solely respons ble for abiding by all laws and regulations that may be

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applicable to the viewing of the content. ln addition, the Collections are provided to you
on an as-is and as-âvailable basis. You agree that your use ofthe Site and the
Collections is at your sole risk. You understand and agree that the Archive makes no
wananty or representation regarding the accuracy, cunency, completeness, reliability, or
usefulness of the content ¡n the Collections, that the Site orthe Collections will meet
your requirements, that access to the Collections will be uninterupted, timely, secure, or
enor free, or that defects, if any, will be conected. We make no wananty of any kind,
either express or implied.
You agree to indemnify and hold harmless the lntemet Archive and ¡ts parents,
subsidiaries, affiliates, agents, officers, directors, and employees from and against any
and all liability, loss, claims, damages, costs, and/oractions (including attomeys'fees)
arising from your use of the Archive's services, the site, or the Collections. You agree
that this Agreement is govemed by Califomia law and that any suit arising from this
Agreement will be brought in San Francisco, Cal¡fomia, and you further agree that on the
election and reasonable notice of elther party any litigation shall be refened to arbitration
pursuant to the Califomia Code of Civil Procedure, SS1280 et seq. ln addition, you agree
that should any provision in the Agreement be found invalid, unlawful, or unenforceable,
that provision shall not affect the validity or enforceability of the remaining provisions.
Under no circumstances, including, without limitation, negligence, shall the Archive or ¡ts
parents, affiliates, offÌcers, employees, or agents be respons ble for any ¡ndirect,
incidental, special, or consequential damages arising from or in connection with the use
of or the inability to use the Site or the Collections, or any content conta¡ned on the Slte
or in the Collections, or resulting from unauthorized access to the Collections oryour
transmissions of data, ¡ncluding, without limitation, damages for loss of profits, use,
data, or other intangibles, even if the Archive has been advised of the poss bility of such
damages. Some jurisdictions do not allow the limitation or exclusion of liability for
incidental or consequential damages, so some of the above may not apply to you.
Th¡s Agreement, the Privacy Policy, and other policies posted on the Site constitute the
full and complete agreement between you and the Arch¡ve and are not intended to inure
to third-party beneficiaries.
We welcome your input. Please contact us with any comments or quest¡ons at
info(ôarchive.oro.

Pr¡vacy Policy
10 March 2001

The lntemet Archive (the "Archive") is committed to making its constantly growing
collection of Web pages and other forms of digital content (the "Collections") freely
available to researchers, historians, scholars, and others ("Researchers") for purposes of
benefit to the public. The Archive offers access to some of its Collections mainly by
allowing Researchers to access its Unix machines. This open approach is somewhat
lke the situation in a public library, where staff and patrons might see who else was in
the library and a bit of what they were working on, When Researchers us¡ng the
Collections log on to the same Unix machine using different accounts, some sharing of
information may take place. While the Archive endeavors to enforce its Terms of Use
and maintain standard computer security, it is important for both those who visit the site
("Visitors") and Researchers (collectively, "Users") to be aware of the open nature of the
Archive.
The Archive may make changes to this policy from time to tlme and will notify you of
such changes by posting an updated date in the Terms, Privacy, and Copyright link at
the bottom the home page of the Archive's Web site (the "Site'). Your continued use of
the Site and/or the Collections constitutes your acceptance of any changes to the
Privacy Policy conceming, but not limited to, both previously and prospectively collected
¡nformation.

What Personal lnformation May the Archive Have on lts Computers and Systems?
Because the Archive uses standard Web logging in its Web servers, our Web server
may automatically recognize the domain name of each Visitor, each Visitods lP address,
what Web page the Visitor requests, and the time of the request, along with a variety of
information supplied by the visitofs browser. See www.microsoft.com and
www.netscape.com for information about the Microsoft lntemet Explorer and Netscape
Nav¡gator browsers, and see www.apache.org for details about Web logs.
ln addition, the Archive may collect the email addresses and messages of those who
communicate with ¡t via email or who enter email addresses in forms.
The Archive may collect personally identifying information when a Researcher registers
for access to the Collections, including the Researcheis name, address, telephone
number, and email address, and the Researche/s proposal for using the Collections.
The Archive may use "cookies" to track Users' activities on the Site and in the
Collections. Cookies are small files that a server transfers to the hard drive of someone
who visits a slte and that the server can access when the person retums to the site.
The primary sources of content for the Collections are publicly accessible Web pages
that were collected and donated by third parties, but the Archive will expand on such
sources through its own collection activlties. Forinstructions on remov¡ng a particularset
of pages cunently included in the Collections, please see our policies and procedures for
page removal.

IA-AERA-O3S

The communicat¡ons between you and the Archive may pass through many machines,
operating systems, programs, brovrsers, Web servers, networks, routers, Ethemet
switches, lntemet service providers, proxy servers, ¡ntranets, the public phone system,
or other devices (collectively, "Devices") on your premises, at the Archive, and in
between. Some of these Devices create logs of activities that are recorded on computer
systems.

What Might the lnternel Archive Do With the lnformation on lts Computers?
The Archive has no present intention to charge for access to the Collections. The
Archive may lransfer the informatian on its machines, including personally identifying
infomation, into the Collections. The Collections are made ava¡lable to ¡esearchers and
may be made available on the Site, or prov¡ded to thid parties, for any use, without
limitation. For instance, parts of the Collections are rþtv in the collections of the Library

of Congress and the Smithsonian lnstitutior¡.
Advances in data mining technology may make it possible to d¡scover more personally
¡dentifiaHe information or prcfiles in the Collections.
The Archive mry disclose arry information ¡t collects fiorn Usels if the Archive believes
in good faith that such actiofl is reasoriably tËcessary to enforce its Terms of Use or
other policies, to comdy with ttrc laril, to comdy with legal prccess, to operate its
systems properly, or to protect the dghts or property of itself , its Users, or others.

It is possible that the cornpúers at the Archive could become comprom¡sed by others
and that the information on the Archive's comglters could be collected and disseminated
withoul the knowledge or consent of the Archive. While the Archive endeavors to Hock
"crackers" from breaking into its machines, ttre Archive is mt æsponsible or liable for
any such unarfho¡ized uses of the Arch¡ve or its data.
How to Update Researcher Registralion lnformation
Researchers can help tln Archive maintain the accuracy of their information by notifying
the Archive of any changes in their address, title, phorie number, o¡ email address.
Contact the Archive by email at ¡dq@.4&h¡yg.gÍqto see, update, or delete your

infomation.

Copyright Policy
10 March

ã$1

The lntemet Archive respects the intellectual propedy dghts and othe¡ propdetary rights
of othes. The lntemet Archive mqy, in appropriate circumstances and at its discretion,
remove certain content or disable access to content that appears to infringe the copyright
or other intellectual property rights of others. lf you beliwe that your copytight has been
violated by material anailable thmugh the lntemet Archive, please pro/¡de the lntemet
Archive Copyrþtrt Agent with the following information:
ldentification of the copyrighted work that you claim has been infiinged;
An exact description of wtrere the material about which you complaìn is located $tithin
lhe lntemet Archive collections;
Your address, telephofle number, ar¡d email address;
A statement by you that you have a good-faith belief that tle disputed use is not
aulhorized by the copydght cn¡rner, its agent, or tte laur;
A statement by you, made urder penalty of pedury, that the above informatíon in your
notice is accurate and that yotr are the owner of the cçyright intercst invdved or aæ
authorized lo act on behaff of that o¡tneq and
Your electronic or physical signaturc.
The lntemet Archive Copyright Agent can be reached as follot¡rs:

lnternet Archive Copyrighl Agent
lnten¡et Archive
3{X) Furiston Ave.

San Fmncisco, CA 94118
Phone: [phone]
Email. lgþ@s¡qþlyss

For More lnformation
lf you have any questions or comments regøding these terms and policies or the
A¡chive's data collection practices, please contact tlte Archive at ldg@atç¡igpIg or
lntemet Archive, 300 Funstm Ave., San Francisco, CA 94118, phone 415-561S767.

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