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).

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/Counterclaimant.

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Civil Action No. 1:14-cv-00857-TSC-DAR
[PROPOSED] ORDER AND ENTRY
OF A PERMANENT INJUNCTION

THIS MATTER comes before the Court on Plaintiffs’ Motion for summary judgment
and the entry of a permanent injunction.
This is an action by three non-profit organizations: the American Educational Research
Association, Inc., the American Psychological Association, Inc., and the National Council on
Measurement in Education, Inc. (collectively, “Plaintiffs”), creators of the work entitled
“Standards for Educational and Psychological Testing” (1999 ed.) (the “Standards”). Pursuant to
the Copyright Act, 17 U.S.C. §§ 101, et seq., Plaintiffs seek injunctive relief against
Public.Resource.Org, Inc. (“Defendant”) for infringement and contributory infringement of
Plaintiffs’ copyright in the Standards. Defendant filed an answer and counterclaim asserting
certain defenses and seeking declaratory relief.
Having reviewed the parties’ submissions, the record and the applicable law,
THE COURT FINDS that Plaintiffs are the rightful owners of the copyright in the
Standards, and that the copyright in said Standards is valid.

THE COURT ALSO FINDS that Defendant infringed Plaintiffs’ copyright when it
digitally copied Plaintiffs’ Standards and unlawfully posted those electronic copies to the
Internet.
THE COURT FURTHER FINDS that Defendant’s actions encouraged others to engage
in multiple of acts of copyright infringement, such that Defendant has engaged in contributory
copyright infringement.
THE COURT ADDITIONALLY FINDS that Defendant’s asserted defense of fair use
and its other alleged defenses are without merit.
THE COURT MOREOVER FINDS that a permanent injunction is necessary.
Plaintiffs have been, and will continue to be, irreparably harmed by Defendant’s actions. The
harm to Plaintiffs from the continued availability of their Standards on the Internet without
restriction is not compensable through remedies available at law. On the other hand, Defendant
will not suffer cognizable harm if it must terminate its infringement. The public interest will also
be served from the entry of a permanent injunction.
IT THEREFORE IS HEREBY ORDERED that Plaintiffs’ Motion for Summary
Judgment and the entry of a Permanent Injunction is GRANTED; and it is further
ORDERED that, within 5 days of the date of this Order, Defendant remove all versions
of Plaintiffs’ Standards from Defendant’s website, the Internet Archive, and any other website(s)
within its possession, custody or control; and it is further
ORDERED that, within 5 days of the date of this Order, Defendant destroy all copies of
Plaintiffs’ Standards, and any predecessor, successor, modified or updated versions thereof, that
were made by Defendant and/or its agents, servants, employees, and all those in active concert
with Defendant.

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ORDERED that, within 5 days of the date of this Order, Defendant shall provide a copy
of this Court’s Order to the Internet Archive, and request that the Internet Archive destroy all
copies of Plaintiffs’ Standards, and any predecessor, successor, modified, or updated versions
thereof, that were provided to the Internet Archive by Defendant and/or its agents, servants,
employees, and all those in active concert with Defendant; and it is further
ORDERED that Defendant, its officers, agents, servants, employees, and all those in
active concert with it or in participation with it, be permanently restrained and enjoined from all
further unauthorized reproduction, distribution and/or display of Plaintiffs’ Standards, and any
predecessor, successor, modified or updated versions thereof, by any means or method, now
known or hereinafter developed, and from preparation of derivative works based upon any
Standards published by Plaintiffs; and it is further
ORDERED that Defendant shall post this Order at the top of the home page of its
website (www.law.resource.org) in 12-point type or larger within 5 days of the date of this
Order, for a period of not less than two years; and it is further
ORDERED that Defendant shall file a Declaration under penalty of perjury stating that it
has complied with the requirements set forth above within 10 days of the date of this Order.
IT IS SO ORDERED:

Dated: ________________, 201_

__________________________________
Hon. Tanya S. Chutkan
United States District Judge

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Submitted by
Jonathan Hudis (DC Bar # 418872)
QUARLES & BRADY LLP
1700 K Street NW, Suite 825
Washington, DC 20006-3825
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
Kathleen Cooney-Porter (DC Bar # 434526)
OBLON, McCLELLAND, MAIER &
NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
Attorneys for Plaintiffs
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC.
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.

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Names and addresses of all attorneys
entitled to be notified of the entry of this Order:
For Plaintiffs:
Jonathan Hudis
QUARLES & BRADY LLP
1700 K Street NW, Suite 825
Washington, DC 20006-3825
[e-mail]
Kathleen Cooney-Porter
OBLON, McCLELLAND, MAIER & NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
[e-mail]
For Defendants:
Andrew P. Bridges
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
[e-mail]
Matthew B. Becker (Pro Hac Vice)
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
Corynne McSherry (Pro Hac Vice)
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
[e-mail]
[e-mail]
David Halperin (D.C. Bar No. 426078)
1530 P Street NW
Washington, DC 20005
[e-mail]

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