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

Filing 69

MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Memorandum in Support of Public.Resource.Org's Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction, #2 Statement of Material Facts, #3 Statement of Disputed Facts, #4 Objections to Evidence, #5 Declaration of Carl Malamud, #6 Declaration of Matthew Becker, #7 Request for Judicial Notice, #8 Text of Proposed Order Granting Public.Resource.Org's Motion for Summary Judgment and Denying Plaintiffs' Motion for Summary Judgment and Permanent Injunction)(Bridges, Andrew)

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,
v.
PUBLIC.RESOURCE.ORG,
Defendant.

Case No. 1:14-CV-00857-TSC-DAR
DECLARATION OF CARL
MALAMUD IN SUPPORT OF
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG’S MOTION
FOR SUMMARY JUDGMENT AND
OPPOSITION TO PLAINTIFFS’
MOTION FOR SUMMARY
JUDGMENT AND PERMANENT
INJUNCTION
Action Filed: May 23, 2014

I, Carl Malamud, declare as follows:
1.

I am over the age of 18 years and am fully competent to testify to the

matters stated in this declaration.
2.

This declaration is based on my personal knowledge. If called to do so, I

would and could testify to the matters stated herein.
3.

I am the President and sole employee of Public.Resource.Org, Inc.

(“Public Resource”), which is a 501(c)(3) non-profit corporation headquartered in
Sebastopol, California. I have worked at Public Resource since I founded the
organization in 2007. It is my only source of employment.
4.

Public Resource’s core mission is to make the law and other government

materials more widely available so that people, businesses, and organizations can easily
read and discuss our laws and the operations of government. Attached to Public
Resource’s Consolidated Index of Exhibits as Exhibit 1 is a true and correct copy of
Public Resource’s Articles of Incorporation from our website at
https://public.resource.org/public.resource.articles.html.
5.

That mission grows out of my longtime professional commitment to

improving public access to essential documents that shape our fundamental activities. In
1991, I convinced the Secretary-General of the International Telecommunication Union
that the Blue Book, the specification for how telephone networks operate, should be
freely available on the Internet. Working with Dr. Michael Schwartz, I transformed and
posted the Blue Book into formats compatible with modern publication technologies and
made it available on the Internet. The service was extremely popular, and the ITU today
makes all of its standards documents freely available on the Internet. I wrote a book about

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this experience called “Exploring the Internet” (Prentice Hall, 1993).That book can be
viewed and read at http://museum.media.org/eti/Exploring_the_Internet.pdf.
6.

I was privileged to be able to participate in the Internet Engineering Task

Force, the standards body that has developed most of the standards that specify the
functioning of the Internet, during the early 1990s, a period of very rapid development,
both in the functionality of the Internet and its scope.
7.

In 1993, when the Internet was beginning to grow explosively, I created

the first radio station on the Internet, operating as a nonprofit corporation called the
Internet Multicasting Service. In addition to transmitting audio and video programming,
the service also provided the first high-speed Internet link into the White House, using a
temporary infrared connection from our studios in the National Press Building. The radio
service, which I dubbed “Internet Talk Radio,” became a member of the Public Radio
Satellite System, received accreditation from the U.S. House and Senate Radio &
Television Correspondents Galleries, sent out live audio from the floors of the House and
Senate, streamed all National Press Club luncheons, and transmitted original
programming. Many of those programs can still be listened to at http://museum.
media.org/radio/.
8.

At the Internet Multicasting Service, I also put a number of important

government databases online, including the Securities and Exchange Commission
EDGAR database and the U.S. Patent database. When the SEC took the EDGAR service
over from me, I loaned it computers and donated all of our source code so they could be
up and running quickly. The SEC ran the system on our software for several years. On

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October 10, 1995, the Hon. Arthur Levitt, Chairman of the SEC, wrote to me thanking us
for our efforts and calling the project an “extraordinary achievement.”
9.

After I started Public Resource in 2007, one of our first efforts was to

place online the historical opinions of the U.S. Courts of Appeals, material that was not
previously available on the Internet. Public Resource also converted all of the opinions in
the first 40 volumes of the Federal Reporter as well as the Federal Cases into Hypertext
Markup Language (HTML) and placed those online. These materials are now used by
numerous websites that provide access to legal materials.
10.

Public Resource maintains an archive of laws and other government

authored materials on several domains under the public.resource.org website.
11.

Public Resource has helped increase access to many other court

documents. We scanned approximately 3 million pages of briefs submitted to the U.S.
Court of Appeals for the Ninth Circuit dating back to the creation of that court and have
placed those materials online. The materials may be downloaded from
https://law.resource.org/pub/us/case/ca9/.
12.

Public Resource has conducted a number of other projects that have

resulted in more government information being placed online. Using volunteers in
Washington D.C. with the cooperation of the Archivist of the United States, we put
approximately 6,000 government videos on YouTube and the Internet Archive for people
to use with no restriction, a service we call FedFlix. It has had over 60 million views. The
videos may be viewed at https://www.youtube.com/user/PublicResourceOrg and
https://archive.org/details/FedFlix.

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13.

Public Resource also placed over eight million Form 990 exempt non-

profit organization returns obtained from the IRS on the Internet. As part of that posting,
we conducted an intensive privacy audit which led to fundamental changes in how the
IRS deals with privacy violations. Through a Freedom of Information Act request and
litigation, we obtained release of high-quality versions of Form 990 filings, which the
IRS had refused to make available. The court decision in that case
(Public.Resource.Org v. United States Internal Revenue Service, No. 3:13-cv-02789WHO, ECF No. 62 (N.D. Cal. January 29, 2015)) led to a recent announcement by the
IRS that all e-file returns will be made available in bulk in 2016. I am pleased to be
working with the IRS as a member of the test group for this service.
14.

In 2007, I wrote a report addressed to Speaker of the House Nancy Pelosi

suggesting that video from Congressional hearings should be more broadly available on
the Internet. On January 5, 2011, Speaker John Boehner and Representative Darrell Issa
wrote to me asking me to assist them in carrying out that task. In a little over a year,
Public Resource was able to put over 14,000 hours of video from hearings on the
Internet, to assist the House Committee on Oversight and Government Reform in posting
a full archive of their committee video and, for the first time ever for congressional
hearings, to provide closed-captioning of those videos based on the official transcripts.
The letter from Speaker Boehner may be found at
https://law.resource.org/rfcs/gov.house.20110105.pdf.
15.

Also in 2008, I examined the issue of availability of state-mandated safety

codes, such as building, electric, plumbing, and fire codes. At the time, none of those
documents were available freely on the Internet. I made a detailed survey of state

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regulations and statutes, looking for direct and specific incorporation of particular model
codes. Over the next few years, Public Resource posted many of the incorporated state
safety codes for U.S. states.
16.

Public Resource’s process of posting these codes has been deliberate and

careful and has grown in sophistication over time. First, we purchased paper copies of
codes that are incorporated into law. Then, we scanned the documents, applied metadata
and optical character recognition (OCR) to the PDF files, and placed a cover sheet on
each document explaining that this was a posting of the law of a specific jurisdiction.
17.

Over time, we also began converting some of these standards into modern

HTML format, including setting the tables, converting formulas to Mathematics Markup
Language (MathML), and converting graphics to the Scalable Vector Graphics (SVG)
format. Coding formulas in MathML makes them significantly more accessible to people
who are visually impaired. Converting the graphics to SVG means they can be resized
smoothly, and can be incorporated into graphic editing programs and word processing
programs. Converting the documents into standard HTML means the documents can be
more readily used on different platforms, such as tablets and smartphones.
18.

In late 2008, I was asked by the Obama-Biden Transition Project to

consult on the subject of how the Official Journals of Government could be made more
readily available. Many of my recommendations were adopted, including removing the
subscription fee from bulk access to the Federal Register. That led to a dramatic
transformation of the Federal Register, which is now based on open source software that
was developed by three volunteers in California and then adopted by the government.
That system can be viewed at https://federalregister.gov/. A copy of my memorandum to

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the Obama Transition Project may be viewed at
https://public.resource.org/change.gov/reboot.register.pdf.
19.

In 2011, I began to look seriously at the federal use of standards

incorporated by reference into the Code of Federal Regulations. I was participating at the
time as an appointed member of the Administrative Conference of the United States, and
I carefully read materials such as the legislative history of the mechanism of
incorporation by reference, the Code of Federal Regulations provisions for incorporation
by reference, and cases such as the Veeck decision.
20.

In 2012, I began a new initiative to make standards incorporated by

reference into federal law available on the Internet. I examined the Code of Federal
Regulations carefully and selected 73 standards that spanned a variety of agencies. I
purchased physical copies of each of these standards. I created 25 paper replicas of each
of these standards, and placed a cover sheet on each one indicating which section of the
CFR incorporated the document.
21.

To accompany the 73 standards, I also created a detailed cover memo,

titled “Notice of Incorporation,” which included letters addressed to seven senior
government officials. The memo included a request for comments from each of the ten
standards development organizations (SDOs) named in the document by May 1, 2012.
The plaintiffs in this case were not among the ten SDOs named in the document. I
packaged the 73 standards, the Notice of Incorporation, two posters, and other materials
in 29-pound boxes and sent the boxes to the seven government officials and the ten
SDOs. I sent the boxes by Federal Express on March 15, 2012. A copy of the Notice of

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Incorporation memo may be found at https://law.resource.org/pub/us/cfr/notice
.sdo.20120315_to.pdf.
22.

After sending the standards, I received acknowledgements from several

government addressees, including personal notes from the Chairman of the Federal Trade
Commission, the Archivist of the United States, and the Chairman of the House
Committee on Oversight and Government Reform. I did not receive any response from
the SDOs.
23.

On May 1, 2012, I posted the 73 documents on the Public Resource web

site. I also began a process of examining the Code of Federal Regulations, the National
Institute of Standards and Technology (NIST) database of Standards Incorporated by
Reference (SIBR), and the Office of the Federal Register’s incorporation by reference
listings to put together a list of documents that are incorporated into the CFR. I then
began the process of trying to procure these documents, many of which are unavailable
for purchase from the SDOs and which I had to obtain on the used book market.
24.

Every standard that I have posted on my website has been incorporated

into law by a governmental authority. Public Resource does not impose any restrictions
on the use of the standards. Public Resource has never charged for access to the standards
or other legal materials, and has never asserted any intellectual property rights in them.
We do not require people to log in or register before accessing content from Public
Resource.
25.

Public Resource posted a PDF version of the 1999 Standards on its

website. The PDF version accurately appeared as a scan of a physical version of the
incorporated standard. Public Resource’s regular practice is to perform OCR on the

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incorporated standards that it posts and to convert them further into standard Hypertext
Markup Language (HTML) to make them still more accessible. I intended to do so for the
1999 Standards, but I suspended further work on the 1999 Standards when this lawsuit
was filed. In May 2014, Plaintiffs sued Public Resource for posting on its website and the
Internet Archive website the 1999 Standards. Subsequently, so as to ensure that this
lawsuit would be decided on a full record, in June 2014 Public Resource agreed to take
down the versions of the 1999 Standards that it had posted on its website and on the
Internet Archive website, pending the resolution of this case
26.

Public Resource has continued to develop techniques for making the

documents that we post more usable, including double-keying and adding markup to
HTML and SVG versions of the documents. Double-keying means having two separate
typists copy the text of the incorporated standard; the results are then compared in order
to eliminate any errors. We have also developed new markup techniques that increase the
accessibility of the documents to people with visual impairments and print disabilities.
We have also made significant advances in adding metadata to the documents, so each
section, table, figure, and formula can be bookmarked and linked to, making internal
navigation within the documents significantly friendlier for the user.
27.

We have applied these markup techniques to a number of standards

incorporated by reference, though not to the 1999 Standards. Public Resource’s goal is to
have the entire CFR, including all documents incorporated by reference, available in this
new format so that users can seamlessly and transparently navigate the entire CFR. I
believe this will be useful for employees of affected business enterprises, researchers and
journalists covering public policy issues, government workers at the federal, state, and

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local levels who must interact with the code as part of their daily activities, and for
interested citizens.
28.

We have made several examples of our new approach available on the

Internet and submitted them as examples of how the law can be made better in formal
comments to Notices of Proposed Rulemaking that propose to incorporate standards by
reference.
29.

Public Resource’s website is structured for navigation by search engines

and for bulk access. Data are organized by country (e.g., /pub/us/) then by type of data,
such as standards incorporated by reference (/pub/us/cfr/ibr/).
30.

Public Resource has one employee, myself, and three contractors who

assist me in systems administration, conversion of graphics and formulas, and legal
advice. Our core operating costs are under $500,000 per year, and we are funded entirely
by donations, contributions and grants. Rather than adding staff, I have prioritized capital
expenses, such as the purchase of the U.S. Court of Appeals backfile for $600,000 and
the scanning of 3 million pages of Ninth Circuit briefs. Public Resource does not accept
donations that are tied to the posting of specific standards or groups of standards. Public
Resource’s operating income is not based on the amount of traffic its websites receive.
Though we are a small organization, we observe all current best practices of corporate
governance and transparency. I am proud that we have been awarded the GuideStar Gold
Seal for nonprofit transparency. A full repository of our financials and other disclosures
is maintained at https://public.resource.org/about.
31.

Public Resource has never sought benefit or compensation from its posting

of the 1999 Standards. We have never used the 1999 Standards for marketing.

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32.

I pay a great deal of attention to quality control, including verifying the validity of

the HTML, SVG, and MathML that I post. I respond immediately to any reports of errors
from the public.
33.

To Public Resource's knowledge, the 2014 edition of the Standards For

Educational and Psychological Testing has not been incorporated by reference into law.
Public Resource posts only those standards that have become law. Consistent with this
policy, Public Resource has no plans to post the 2014 Standards on the Internet.
34.

My work at Public Resource, including the posting of standards incorporated by

reference into federal and state law and my efforts to post briefs, opinions, regulations,
statutes, and other materials that are edicts of government, are based on a long-held belief
that the primary legal materials of our country must be available to all, especially those
who lack the means to access the law in the status quo, because an informed citizenry is
the key to the functioning of our democracy.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this 21st day of January, 2016 at Sebastopol, California.

Carl Malamud
SF/5546571.2

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