Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 4 of 47
promoting efficiency, competition, and trade, and furthering the reliance on private sector expertise. See ASTM, 2017 WL 473822, at *2–4 (discussing incorporation by reference of industry standards); Am. Soc’y for Testing & Materials v. Public.Resource.Org, Inc., 896 F.3d 437, 442 (D.C. Cir. 2018) (same).
Plaintiffs recoup the cost of creating their standards the way that copyright owners generally do—they sell copies of their work product in both PDF and hard copy form to the public. See ASTM, 2017 WL 473822, at *4, *10–11; Pls.’ SMF ¶¶ 45–47, 106–08, 153–54. Plaintiffs also maintain “reading rooms” on their websites that allow interested parties to view the standards that have been incorporated by reference into law as images. Id. ¶¶ 63–64, 100, 161. Those standards may not, however, be printed or downloaded in that format. Id.
Defendant Public.Resource.Org, Inc. (“PRO”) is a not-for-profit organization whose mission is to “make the law and other government materials more widely available so that people, businesses, and organizations can easily read and discuss [the] laws and the operations of government.” ECF No. 213-20, Pls.’ Statement of Disputed Facts (“Pls.’ SDF”) ¶ 2. For example, Defendant posts government-authored materials on its website, including judicial opinions, Internal Revenue Service records, patent filings, and safety regulations. Id. ¶¶ 3–4. It does not charge fees to view or download these materials. Id. ¶ 5.
Between 2012 and 2014, Defendant purchased hard copies of each of the standards at issue, scanned them into PDF files, added a cover sheet, and posted them online. ASTM, 896 F.3d at 444. In some instances, Defendant modified the files so that the text of the standards could more easily be enlarged, searched, and read with text-to-speech software. Id. The copies that Defendant posted to its website all bore Plaintiffs’ trademarks. Pls.’ SMF ¶ 210. Defendant
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