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Case l:13-cv-01215-TSC Document 194 Filed 07/23/19 Page 1 of 5 


UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 


AMERICAN SOCIETY FOR TESTING 
AND MATERIALS d/b/a/ ASTM 
INTERNATIONAL; 

NATIONAL FIRE PROTECTION 
ASSOCIATION, INC.; and 


AMERICAN SOCIETY OF HEATING, 
REFRIGERATING, AND AIR 
CONDITIONING ENGINEERS, 


Case No. l:13-cv-01215-TSC 


Plaintiffs/ 

Counter-Defendants, 


v. 

PUBLIC.RESOURCE.ORG, INC., 

Defendant/ 

Counter-Plaintiff. 


MOTION TO STAY ALL DEADLINES PENDING DECISION OF 
UNITED STATES SUPREME COURT, GEORGIA V PUBLIC.RESOURCE.ORG, INC. 

Plaintiffs move the Court to stay all deadlines pending the Supreme Court’s decision in 

Georgia et a/, v. Public.Resource. Org, No. 18-1150 (“ Georgia v. PRO"). Granting a stay would 

benefit judicial efficiency and there is no harm to Public.Resource.Org, Inc. (“PRO”). 1 

The Supreme Court granted certiorari on June 24, 2019. Georgia’s statement of the 

question presented in the case is as follows: 

This Court has held, as a matter of “public policy,” that judicial opinions 
are not copyrightable. Banks v. Manchester, 128 U.S. 244, 253-254 (1888). 

Lower courts have extended that holding to state statutes. See, e.g.,John G. 

Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26, 38 (1st Cir. 

2003). But the rule that “government edicts” cannot be copyrighted has “proven 
difficult to apply when the material in question does not fall neatly into the 
categories of statutes or judicial opinions.” Ibid. 


1 Pursuant to Local Rule 7(m), the parties met-and-conferred regarding this Motion. PRO opposes a stay. 


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Case l:13-cv-01215-TSC Document 194 Filed 07/23/19 Page 2 of 5 


The question presented is: 

Whether the government edicts doctrine extends to—and thus renders 
copyrightable—works that lack the force of law, such as the annotations in the 
Official Code of Georgia Annotated. 

Petition for a Writ of Certiorari at i, Georgia v. PROr 

PRO, the defendant in this case and the respondent in the Georgia case, agreed that the 

Court should grant certiorari. Brief in Opposition to Certiorari (“Op.”) at 2, Georgia v. PRO 

(“The Court should grant certiorari to clarify, authoritatively, how courts should analyze whether 

a given work is an uncopyrightable government edict.”). As relevant to this case, PRO argued 

“[t]he scope of the government edicts doctrine is raised by a number of active disputes, including 

the American Society case pending in the district court on remand from the D.C. Circuit.” Id. at 

13. It asked the Supreme Court to take the Georgia case because, it acknowledged that this case 

“will not reach [the Supreme] Court, if ever, for several years” and, according to PRO, “[a]ll 

parties would benefit from this Court’s earliest guidance.” Id. 

District courts have the inherent authority to stay an action when appropriate. “[C]ourts 

possess inherent authority to stay proceedings in the interests of judicial economy and 

efficiency.” American Postal Workers Union v. U.S Postal Service, 422 F. Supp. 2d 240, 248 

(D.D.C. 2006) (staying proceedings pending ruling by NLRB). “[T]he power to stay 

proceedings is incidental to the power inherent in every court to control the disposition of the 

causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” 

Landis v. North American Co., 299 U.S. 248, 254-55 (1936). 

Plaintiffs cannot control what Georgia or PRO intend to argue to the Supreme Court. 

PRO may make arguments that are the same or similar to those it has made in this lawsuit—it 


2 Docket available at https://www.supremecourt.gov/docket/docketfiles/html/public/18-1150.html. 


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Case l:13-cv-01215-TSC Document 194 Filed 07/23/19 Page 3 of 5 


has previewed as much in its “opposition” to certiorari which asked the Supreme Court to take 
the case because, in its view, this and other cases “would benefit from the Court’s earliest 
guidance.” Op. at 13. The Supreme Court’s ruling has the potential to impact the contours of 
this case—either in a way that could save judicial resources or, more likely, in a way that, if the 
parties continue through briefing summary judgment before that case is decided, could require 
yet another round of briefing to address. That cannot be known before the case is argued and 
decided. Plaintiffs believe it would be prudent to stay this litigation while the Supreme Court 
decides the Georgia case. 

PRO has not explained how a stay would prejudice it. PRO has re-posted Plaintiffs’ 
works following the D.C. Circuit’s decision vacating the injunction in this case. The parties are 
currently engaged in time consuming and expensive discovery. PRO has served two rounds of 
document discovery on each Plaintiff as well as a substantial number of interrogatories and 
Plaintiffs have served additional discovery on PRO. PRO has noticed four third-party 
depositions and sought documents from those witnesses and is planning to conduct additional 
fact depositions of Plaintiffs’ witnesses. Fact discovery is set to close on September 9, 2019— 
meaning the parties would have to engage in these depositions and complete document 
production over the next several weeks. See Dkt. Entry 5/21/2019. Shortly thereafter Plaintiffs’ 
motion for summary judgment is due—on October 4, 2019— and the parties are to complete 
summary judgment briefing by December. This ambitious litigation schedule makes no sense 
given that PRO has already asked the Court for guidance that may impact this case. 

For the foregoing reasons, Plaintiffs respectfully request that this Court grant a stay of 
this action and suspend discovery and briefing deadlines pending the Supreme Court’s decision 
in Georgia et al. v. Public.Resource.Org, No. 18-1150. 


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Case l:13-cv-01215-TSC Document 194 Filed 07/23/19 Page 4 of 5 


Dated: July 23, 2019 


Respectfully submitted, 

/s/ J. Kevin Fee _ 

J. Kevin Fee (D.C. Bar: 494016) 

Jane Wise (D.C. Bar: 1027769) 

Morgan, Lewis & Bockius LLP 
1111 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 
Telephone: 202.739.5353 
Email: kevin.fee@morganlewis.com 
jane.wise@morganlewis.com 

Counsel for American Society For Testing And Materials 
d/b/a/ ASTM International 

/s/ Kelly M. Klaus _ 

Rachel G. Miller-Ziegler (D.C. Bar: 229956) 

Munger, Tolies & Olson LLP 
1155 F St. NW, 7th Floor 
Washington, DC 20004 
Tel: 202.220.1100 

Email: Rachel.Miller-Ziegler@mto.com 

Kelly M. Klaus (pro hac vice) 

Rose Leda. Ehler (pro hac vice) 

Munger, Tolies & Olson LLP 
560 Mission St., 27th Floor 
San Francisco, CA 94105 
Tel: 415.512.4000 
Email: Kelly.Klaus@mto.com 
Rose.Ehler@mto.com 

Counsel for National Fire Protection Association, Inc. 


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Case l:13-cv-01215-TSC Document 194 Filed 07/23/19 Page 5 of 5 


/s/ J. Blake Cunningham _ 

Jeffrey S. Bucholtz (D.C. Bar: 452385) 

King & Spalding LLP 

1700 Pennsylvania Avenue, NW, Ste. 200 

Washington, DC 20006-4707 

Tel: 202.737.0500 

Email: jbucholtz@kslaw.com 

J. Blake Cunningham 

King & Spalding LLP 

101 Second Street, Ste. 2300 

San Francisco, CA 94105 

Tel: 415.318.1211 

Email: bcunningham@kslaw.com 

Counsel for American Society of Heating, Refrigerating, 
and Air Conditioning Engineers 


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