Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 9 of 47
Plaintiffs and Defendant have since developed (and sought to limit) the factual record by filing statements of fact and evidentiary objections,[1] and each side has again moved for summary judgment.
As to its copyright claims, Plaintiffs move for summary judgment with regard to 217 standards. See ECF No. 199, Pls.’ Second Mot. for Summ. J. (“Pls.’ 2d MSJ”); see also ECF 198-2, Pls.’ Appendix A (listing each of the 217 standards). Plaintiffs argue that they own valid copyrights in the 217 standards, that Defendant “indiscriminately” copied and republished those standards and therefore failed to comport with Circuit guidance on what qualifies as “fair use.” See Pls.’ 2d MSJ at 10–12. Plaintiffs group the standards into five categories: (1) standards for which Defendant has not correctly identified an incorporating reference; (2) standards containing discretionary portions or reference procedures; (3) standards that have only been partially incorporated by reference into law; (4) standards that do not impose legal duties on any private party; and (5) standards containing non-mandatory aids or supplements, including appendices,
- ↑ See Pls.’ 2d SMF; ECF No. 203-2, Def.’s Second Statement of Material Facts (“Def. 2d SMF”); Def.’s SDF; ECF No. 204-2, Def.’s Evidentiary Objs.; Pls.’ SDF; ECF No. 212-2, Pls.’ Resp. to Def. Statement of Disputed Facts; ECF No. 213-1, Pls.’ Third Statement of Material Facts (“Pls.’ 3d SMF”); ECF No. 213-21, Pls.’ Resp. to Evidentiary Objs.; ECF No. 214-1, Def.’s Resp. to Evidentiary Objs.; ECF No. 215-2, Def.’s Evidentiary Objs. in Reply to Pls.’ Opp’n; ECF No. 215-10, Def.’s Suppl. Statement of Disputed Facts (“Def.’s Suppl. SDF”); ECF No. 215-12, Def.’s Mot. to Strike Pls.’ Resp. to Def.’s Statement of Disputed Facts; ECF No. 217, Pls.’ Evidentiary Objs. to Def.’s Reply ISO 2d MSJ; ECF No. 218, Def.’s Resp. to Pls.’ Evidentiary Objs. to Def.’s Reply ISO 2d MSJ. The court does not rely on the disputed evidence in resolving the parties’ cross-motions and therefore does not address the evidentiary objections.
Defendant has also asked the court to take judicial notice of certain aspects of the version of the 2002 National Electrical Safety Code (NESC) that the Indiana Supreme Court cited in Bellwether Properties, LLC v. Duke Energy Indiana, Inc., 87 N.E.3d 462, 469 (Ind. 2017), see ECF No. 204-3. The court grants Defendant’s request to take judicial notice of certain aspects of the version of the 2002 National Electrical Safety Code (NESC) that the Indiana Supreme Court cited in Bellwether Properties, LLC v. Duke Energy Indiana, Inc., 87 N.E.3d 462, 469 (Ind. 2017); however, the court does not rely on this information to resolve the parties’ cross-motions.
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