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

PUBIIC.RESOURCE.ORG - A Nonprofit Corporation
Open Source .A,merica's Operating System
"It's Not Just.A, Good ldea-It's The Law!"

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December 19, 2013

John Neikirk
Director of Publications
American Educational Research Association
1430 K Street, NW, Suite 1200
Washington, DC 2005
Dear Mr. Neikerk:

lam receipt of your communication of December 16 regarding the publication of the
for Educational and Psychological Testing" (1999) at
https://law.resource.orglpub/us lcfrlibrl00llaera.standards.1999.pdf. We are
responsible for uploading this document. ln addition, you will find this document at

AERA publication, "standard

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The 1999 Edition of "standard for Educational and Psychological Testing" was
lncorporated by Reference by the Department of Education, Oflice of Postsecondary
Education, at 34 CFR 668.148(aXl)(iv). lncorporation by reference is not a casual allair
and requires a carefully followed procedure by the governmental agenry and the
explicit approval of the Director of the Ofiice of the Federal Register.
As this standard has been incorporated into law, the standard contalned in this
document is the law of the United States, and people in the United States are
compelled to obey it. Long-standing precedent of the United States Supreme Court
holds that copyright claims cannot prevent citizens from reading and speaking the law.
See Wheaton v. Peters, 33 U.S. 591 (1834); Banks v. Manchester, 128 U.5.244 (1888).

While the standards drafted by the American Educational Research Association, were
entitled to copyright protection when issued, once they were incorporated into
regulations these standards became the law, and thus have entered the public domain.
Chief Judge Edith H.Jones of the 5th Circuit expressed this principle clearly in her
opinion in Veeck v. Southern Building Code Congress, which concerned a model
building code incorporated in the law of two Texas towns:
"The issue in this en banc case is the extent to which a private organization may
assert copyright protection for its model codes, after the models have been
adopted by a legislative body and become "the law." Specifically, may a code-

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Letter to AERA, Page 2

writing organization prevent awebsite operator from posting the text of a
model code where the code is identified simply as the building code of a city
that enacted the model code as law? Our short answer is that as law, the model
codes enter the public domain and are not subject to the copyright holder's
exclusive prerogatives. As model codes, however, the organization's works
retain their protected status." 293 F.3d 791 (5th Cir. 2002) (en banc).

As you can see by looking at the document in question, a cover sheet has been
prepended clearly spelling out the section of the Code of Federal Regulations that has
incorporated by reference this document into law. Please note thatwe were careful to
only publish the specific document incorporated by law. As the 1999 Edition is the one
required by law and as it has been duly incorporated into law, we respectfully decline
to remove this document and respectfully decline to request permission.

Sincerely yours,
Digitally signed by Carl

Malamud

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Carl Malamud

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