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Case l:14-cv-00857-TSC Document 130 Filed 02/07/19 Page 1 of 3 


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., 


Case No. l:14-cv-00857-TSC 


Plaintiffs/ 

Counter-Defendants, 


v. 

PUBLIC.RESOURCE.ORG, INC., 

Defendant/ 

Counter-Plaintiff. 


MOTION TO RETURN CASE TO THE COURT’S ACTIVE DOCKET AND TO ADOPT 
PROPOSED BRIEFING SCHEDULE TO ADDRESS THE REMANDED ISSUE 


Plaintiffs move this Court to return this case to the Court’s active docket, see Minute 
Order, July 6, 2017, and to enter a scheduling order on the copyright fair use issue remanded by 
the Court of Appeals. 

This case is back before this Court on remand from the Court of Appeals, after this 
Court’s decision in Plaintiffs’ favor. See American Society for Testing and Materials, et al. v. 
Public.Resource.Org, Inc., 896 F.3d 437, 448 (D.C. Cir. 2018) (mandate entered Sept. 7, 2018, 
Dkt. 185). Although Defendant raised several issues on appeal, the Court of Appeals reserved 
judgment on most of them or held them forfeit. See, e.g., 896 F.3d 437, 441 (D.C. Cir. 2018) 
(“leaving for another day ... whether standards retrain their copyright after they are incorporated 
by reference into law”); id. at 446 (Defendant forfeited argument that the standards were not 
validly copyrighted). Instead, noting the number of instances of copying, the number of 


DCACTIVE-48673344.1 


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Case l:14-cv-00857-TSC Document 130 Filed 02/07/19 Page 2 of 3 


standards, and multiplicity of circumstances at issue in American Society for Testing and 
Materials v. PublicResource.Org, Inc., No. l-13-cv-01215 (“ ASTM ”), the Court of Appeals 
remanded that case and this one for a single purpose: “for the district court to further develop the 
factual record and weigh the [fair use] factors as applied to [Defendant’s] use of each standard in 
the first instance.” Id. at 448-49. 

Significantly, the fair use issues presented in this case do not involve many of the 
complicating questions — stemming from multiple differing standards, methods and 
circumstances of incorporation in regulation, and instances of copying — that the Court of 
Appeals identified with respect to the fair use issues in the companion ASTM case. See, e.g., id. 
at 449 (cautioning against “treating the standards interchangeably” in fair use analysis); id. at 
452 (noting that Defendant’s “copying must be considered standard by standard”). Indeed, the 
Court of Appeals never specifically addressed the fair use issue presented by this case, which 
involves one instance of defendant’s wholesale copying of the entirety of a single work, rather 
than the myriad of separate standards at issue in ASTM, which the Court of Appeals felt would be 
better addressed by grouping the standards in some way. 1 

In any event, the Court of Appeals’ remand order now requires the parties and this Court 
to address the fair use issue. In accordance with Local Rule 7(m), Plaintiffs have conferred with 
Defendant. Plaintiffs and Defendant agree that the next phase of this case should be decided on 
cross-filings in the nature of summary judgment briefing. There may, however, be disagreement 


1 As a practical matter, the Court of Appeals appears not to have separately considered the fair 
use issues in this case because this case and the ASTM case had been consolidated for argument 
in that court, and there was no separate briefing of the fair use factors as applied to this particular 
case. 


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Case l:14-cv-00857-TSC Document 130 Filed 02/07/19 Page 3 of 3 


about the scope of the next phase of proceedings in this Court, including whether discovery 
ought to be reopened. 

Plaintiffs therefore propose a simultaneous briefing schedule, with opening cross-motions 
for summary judgment due 60 days after the Court’s order setting the briefing schedule, amicus 
briefs due 30 days after the date opening cross-motions are filed, and opposition briefs due 45 
days after opening cross-motions are filed, with argument to be set at this Court’s convenience. 

CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully request that this Court return this case to 
the Court’s active docket to address the issue on which the Court of Appeals remanded, and enter 
a scheduling order that adopts the deadlines set out above. 


Dated: February 7, 2019 Respectfully submitted, 

/s/ Clifton S. Elgarten _ 

Clifton S. Elgarten (D.C. Bar # 366898) 
Crowell & Moring LLP 
1001 Pennsylvania Ave., N.W. 
Washington, D.C. 20004 
Telephone: 202.624.2523 
Email: celgarten@crowell.com 

Counsel for Plaintiffs 


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