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Case l:13-cv-01215 Document 1 Filed 08/06/13 Page 1 of 51 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



AMERICAN SOCIETY FOR TESTING 

AND MATERIALS d/b/a/ ASTM 

INTERNATIONAL, 

100 Barr Harbor Drive, 

West Conshohocken, PA 19428; 

NATIONAL FIRE PROTECTION 
ASSOCIATION, INC., 
1 Battery march Park, 
Quincy, MA 02169; and 

AMERICAN SOCIETY OF HEATING, 
REFRIGERATING, AND AIR- 
CONDITIONING ENGINEERS, INC. 
1791 TuUie Circle, N.E., 
Atlanta, GA 30329 

Plaintiffs, 

V. 

PUBLIC.RESOURCE.ORG, INC., 

1005 Gravenstein Hwy. North, 
Sebastopol, CA 95472 

Defendant. 



COMPLAINT 

This is an action by three not-for-profit standards developing organizations: 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, Inc. (collectively "Plaintiffs"). This action seeks injunctive relief for copyright 
infringement, contributory copyright infringement and trademark infringement against 
Public.Resource.Org, Inc. ("Public Resource" or "Defendant"), an organization that seeks to 



Civil Action No. 



COMPLAINT FOR INJUNCTIVE RELIEF 



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destroy clearly established copyright protection for Plaintiffs' standards that various 
governments have incorporated by reference into regulations. Plaintiffs, by their attorneys, 
allege as follows: 

INTRODUCTION 

1. Standards are technical works that encourage consistent practices among private 
actors. The goals of standards include advancing public safety, ensuring compatibility across 
products and services, facilitating training and spurring innovation. In the United States, 
standards are typically developed by private organizations with expertise in the subject matter 
the standard addresses. The resulting standards are original works containing creative content 
which are protected from infringement under the Copyright Act. Government entities frequently 
incorporate these private standards by reference in statutes, regulations, or ordinances. 

2. This established system of private standards development in the United States 
yields great public benefits. In the modem era, standards are necessary for a well-functioning 
economy and a safe society. The development of standards by private organizations allows for 
private actors to bear the significant costs of creating standards, through processes and 
procedures that incorporate a diverse array of viewpoints and interests and draw on the 
knowledge of numerous experts. Moreover, this system imposes virtually no costs on 
governments or taxpayers, while enabling government entities at every level to incorporate 
private standards into their regulations or statutes as they see fit — subject to the creators of the 
standards retaining the copyrights in the standards. Plaintiffs underwrite — either entirely or in 
substantial part — the costs they incur in creating the standards through the revenues derived from 
the sales or licensing of their copyright-protected standards. At the same time, as detailed herein, 
each Plaintiff has developed policies for providing interested members of the public access to 
standards known to have been incorporated by reference into statutes and regulations. 



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3. The Defendant in this action, Public.Resource.Org, Inc. ("Public Resource"), has 
engaged in conduct that violates U.S. copyright and trademark law and threatens to undermine 
the many significant benefits of private standards development. Public Resource has copied en 
masse Plaintiffs' copyrighted standards in their entirety, posted them to its public website, and 
encouraged the public to disregard Plaintiffs' copyrights and to copy, distribute, and create 
derivative works of those standards at will. Public Resource's bulk copying of Plaintiffs' 
standards is not supported by, and in fact violates, the Copyright Act. And Public Resource's 
actions threaten the substantial public benefits, including safety, efficiency and cost savings, that 
result from Plaintiffs' ownership and exploitation of their copyrights in the standards they create. 

THE PARTIES 

4. Plaintiff American Society for Testing and Materials d/b/a ASTM International 
("ASTM") is a Pennsylvania not-for-profit corporation with its principal place of business at 100 
Barr Harbor Drive, West Conshohocken, Pennsylvania. ASTM maintains an office in 
Washington, DC, located at 1850 M Street, NW, Washington DC 20036. ASTM's Washington 
office staff includes ASTM's Vice President of Global Policy and Industry Affairs and ASTM's 
Manager of Government and Industry Affairs. The DC staff focuses on communicating with the 
federal government and industry to increase awareness about ASTM's standards and to 
encourage participation in ASTM's standard development activities. 

5. Plaintiff National Fire Protection Association, Inc. ("NFPA") is a Massachusetts 
not-for-profit corporation with its principal place of business located at One Batterymarch Park, 
Quincy, MA 02169. NFPA maintains an office in Washington, DC, located at 1401 K Street, 
NW, Suite 500, Washington, DC 20005. NFPA's Washington office staff includes its Director 
of Government Affairs. The staff's primary responsibilities include monitoring federal activities 



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and facilitating outreach to the federal government concerning NFPA standards as well as other 
fire, electrical, building, and life safety issues related to NFPA's safety mission. 

6. Plaintiff American Society of Heating, Refrigerating and Air-Conditioning 
Engineers, Inc. ("ASHRAE") is a New York not-for-profit corporation with its principal place of 
business located at 1791 TuUie Circle, N.E., Atlanta, OA 30329. ASHRAE maintains an office 
in Washington, DC, located at 1828 L St., NW, Washington, DC 20036, which was established 
approximately 33 years ago. ASHRAE' s Washington office staff includes ASHRAE' s Director 
of Government Affairs, a Senior Manager of Federal Government Affairs, a Manager of State 
and Local Government Affairs, and an office manager. That DC staff is engaged in building 
relationships for ASHRAE with numerous government representatives, including members of 
Congress and their staffs, and with many international organization representatives. They also 
facilitate the dissemination of technical information and assistance on matters affecting the 
public, the engineering profession and the ASHRAE professional community; they collect, 
digest and disseminate to ASHRAE members and staff relevant information regarding current or 
anticipated government actions; and they pursue technology transfer and government funding 
opportunities independently or jointly with other organizations. 

7. Defendant Public Resource is a California corporation with its principal place of 
business at 1005 Gravenstein Highway North, Sebastopol, CA 95472. 

NATURE OF ACTION, JURISDICTION, AND VENUE 

8. This is an action for infringement and contributory infringement of federally 
registered copyrights in violation of 17 U.S. C. § 501, infringement of trademarks in violation of 
Sections 32 and 43 of the Lanham Act, 15 U.S.C. §§ 1 1 14 and 1 125, and common law trademark 
infringement. 



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9. This Court has jurisdiction over this action pursuant to 15 U.S.C. § 1 121 and 
pursuant to 28 U.S.C. §§ 1331, 1338(a) and 1400, because this is a civil action arising under an 
Act of Congress relating to copyrights and trademarks. This court has supplemental jurisdiction 
over the common law trademark infringement claim asserted herein pursuant to 28 U.S.C. § 1367 
because this claim is so related to the federal claims that they form part of the same case or 
controversy and derive from a common nucleus of operative facts. 

10. Venue is proper in this court pursuant to 28 U.S.C. §§ 1391 and 1400: 
because the claims alleged in the Complaint arose, in substantial part, in the District of 
Columbia; because the Defendant may be found in this District; and because this Court has 
personal jurisdiction over Defendant. Among other things. Defendant has directed its infringing 
activities to this District and, on information and belief, has materially contributed to the 
infringing activities of third parties in this District. Defendant has designed its website to attract 
visitors from the District of Columbia who are encouraged to copy, to distribute to others in this 
District and/or to create derivative works based on Plaintiffs' standards incorporated by reference 
into the law of the District of Columbia. Visitors also are solicited to submit financial donations 
on Defendant's website through the Defendant's PayPal account. Moreover, Defendant sells 
various items on the Internet, including Public.Resource.Org stamps and stickers, amongst other 
items. See http://www.zazzle.com/carlmalamud/. 

11. Defendant also has participated in conferences, round tables, and meetings 
in the District of Columbia. See, e.g., http://news.cnet.com/8301-13512_3-10354324-23.html; 
http ://web.resourceshelf . com/go/resourceblog/5 8 874 ; and 

http://www.gov2expo.com/gov2expo2010/public/schedule/speaker/1824. Defendant also 
recently posted copyrighted material owned by a third party online and engaged in public 



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relations activities connected thereto that were directed toward the District of Columbia. See 
http://frrole.eom/o/this-is-really-good-to-hear-washington~carlmalamud-washington-dc; 
http://www.washingtontimes.com/news/2013/mar/31/ignorance-of-dcs-copyrighted-laws-can-be- 
costly/; andhttp://frrole.com/o/this-is-really-good-to-hear-washington~carlmalamud- 
washington-dc. 

FACTS 

I. THE UNITED STATES STANDARDS DEVELOPMENT SYSTEM 

12. The term "standards" comprises a wide variety of technical works ranging from 
codes to compilations of rules, test methods, interoperability standards, product specifications, 
installation standards, guidelines, and recommended practices. Standards can range in length 
from a few pages, such as ASTM E2877-12el: Standard Guide for Digital Contact 
Thermometers, promulgated by ASTM International, to hundreds of pages, such as NFPA 70, 
National Electrical Code (^'National Electrical Code'' or "NEC"), promulgated by the NFPA. 

13. Standards sometimes may be developed by government entities. Indeed, in most 
other countries, standards are typically developed or overseen by the government, and are paid 
for or heavily subsidized by government funds. 

14. In the United States, however, standards are typically developed by private 
organizations with technical expertise in the relevant area. In fact, the National Technology 
Transfer and Advancement Act of 1995 requires federal agencies to use privately developed 
standards wherever possible. § 12, Pub. L. No. 104-113, 110 Stat. 775, 782-83 (1996) (codified 
as part of 15 U.S.C. § 272 (2006)). Privately developed standards are used by the private sector 
for voluntary self -regulation and as a source of best practices. Some privately developed 



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standards also are incorporated by reference by government entities in statutes, regulations, and 
ordinances. 

15. The United States standards development system has evolved over more than a 
century as a decentralized system of private organizations. These organizations develop 
standards in different ways, and for myriad purposes. Although this system of private 
organizations receives virtually no government funding, it yields substantial public benefits. It 
provides the public sector with up-to-date, technically advanced, widely accepted standards — 
which may be used and adopted by reference, at no cost, by government entities at the local, 
state, and federal level — subject to the standards organizations retaining the copyright in the 
standards. 

A. The Evolution of the United States Standards Development System 

16. Private-sector standards confer tremendous benefits on society. The need for 
voluntary, uniform standards to deal with an increasingly technical society emerged during the 
Industrial Revolution. As technology advanced at a breathtaking pace, and American industry 
grew exponentially, the absence of widely accepted standards created grave threats to public 
health and safety. 

17. For example, at the turn of the twentieth century, the size of the threads on fire 
hydrants and hoses varied across the major cities of the Atlantic seaboard. When a large fire 
burned out of control in Baltimore in 1904, fire brigades from Washington, D.C., New York, 
Philadelphia, and elsewhere arrived to lend assistance. But because the threads on their hoses 
did not match the Baltimore fire hydrants, they stood by helplessly as the conflagration 
consumed 70 blocks of downtown Baltimore. 



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18. Similarly, a fire at the crowded Triangle Shirtwaist Company in New York City 
cost 146 garment workers their lives in 1911. Locked exit doors, the lack of a fire alarm, 
unreliable fire escapes, and the absence of proper methods for extinguishing the fire all 
contributed to the devastation. 

19. As another example, there were no fewer than 20 different gauges of track in the 
early days of the railroad industry, making it difficult and costly to connect railroads and travel 
over long distances. 

20. In response to these types of problems, private organizations were founded to 
develop standards that would apply nationwide within a particular industry or field. For 
example, ASTM Standard Al provided uniform specifications for carbon steel tee rails that made 
it possible for manufacturers from different parts of the country to cooperate in building the 
national railroads. 

21. Over time, the number of organizations dedicated to the development of 
standards — and the breadth of their activities — expanded along with the evolution of existing 
technologies and the emergence of new ones. Today, there are more than 600 organizations 
within the United States that develop voluntary standards. These organizations have 
promulgated approximately 93,000 active standards. 

22. There are many different types of private-sector standards, including standards 
governing materials testing, systems design and installation, product testing and certification, and 
professional qualifications. Private-sector standards are developed on a wide array of subjects, 
such as indoor air quality, building and electrical safety, welding procedures, and the design of 
manufacturing equipment. 



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23. Standards preserve public safety, protect consumers, ensure compatibility and 
uniformity across products and services, facilitate training and education, and spur innovation. 
Standards usually are highly technical and specialized, and are written for audiences that have 
particular expertise in the relevant fields. 

B. The Standards Development Process 

24. Private-sector standards are developed in a variety of ways. Some are developed 
by ad hoc business groups or consortia that convene to create standards for a specific business 
purpose and do not provide for public review or broad participation. The most widely used and 
accepted standards, however, are what are known as "voluntary consensus standards." 
Voluntary consensus standards are developed through published procedures that ensure broad 
participation of the affected interests, provide for public comment, and ensure due process 
through a mechanism for appeal. 

25. Not-for-profit organizations usually develop voluntary consensus standards. 
Some of these organizations are trade associations that fund their standards activities through 
membership or participation fees. Others, particularly those that develop standards related to 
health, safety and the environment, sustain their standards development activities, in significant 
part, with revenues derived from the sales or licensing of their copyright-protected standards to 
the people and companies who use those standards in the course of their professional work. 

26. There are several different types of U.S. -based standards developing 
organizations that develop voluntary consensus standards (hereafter, "SDOs"). They include 
trade associations, professional societies, third-party organizations that test and certify products, 
and general membership organizations created to pursue public interest goals. Some SDOs 
produce a single standard, while others produce hundreds. For some SDOs, standards 



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development is an ancillary activity; for others, it is their main activity and the principal means 
by which they serve their missions. 

27. While SDOs function independently, many cooperate through the American 
National Standards Institute ("ANSI"). ANSI is a not-for-profit organization that coordinates 
voluntary consensus standards development in the United States. ANSI is a federation that 
draws its members from SDOs and other professional, technical, trade, labor, academic, industry, 
and consumer organizations, as well as government agencies. Among its principal functions, 
ANSI accredits SDOs whose procedures meet ANSI requirements governing openness, 
consensus and due process. 

28. All Plaintiffs in this case are ANSI-accredited SDOs that also are not-for-profit 
organizations, organized under their respective state laws, and recognized as tax exempt for 
federal purposes under Section 501(c)(3) of the Internal Revenue Code. 

29. Drafting effective standards requires wide-ranging creative input from a variety of 
concerned constituencies and sources of expertise. Plaintiffs rely on committees to create and 
revise their standards. As required by ANSI, these committees contain balanced membership, 
including experts within the particular field addressed by the standard, consumers, government 
representatives, industry representatives, and other interested stakeholders. 

30. Plaintiffs also comply with the other ANSI essential requirements governing the 
process for developing voluntary consensus standards. Those requirements include: open 
proceedings; proceedings that are not dominated by any single interest; coordination and 
harmonization with existing standards; public notice of standards of activity; consideration of 
views and objections; consensus voting methods; opportunity for appeals; and written 



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procedures. The federal government has recognized that these procedural protections are the 
hallmarks of a "voluntary consensus standards body." 

31. Plaintiffs regularly publish standards that they create through such processes, in 
both print and electronic form. Plaintiffs' standards reflect the complex expression of a 
multitude of ideas, and contain original and highly creative content. 

32. Because technology and best practices continue to evolve. Plaintiffs' work is 
ongoing. Plaintiffs publish revised versions of their standards on a regular basis, as required by 
ANSI, as well as ever-changing technology and marketplace demands. New versions may add 
content that responds to changes in the industry, or may expand and improve the standards to 
make them more effective. 

C. The Benefits of Plaintiffs' Standards 

33. Plaintiffs' standards confer significant public benefits. Plaintiffs' standards 
promote public health and safety, in fields as diverse as consumer products, indoor air quality, 
building and electrical safety, welding procedures, construction materials, alarm systems, fire 
test methods, and the design of manufacturing equipment. By identifying and embracing best 
practices. Plaintiffs' standards help protect the public from dangerous practices and products. In 
addition to protecting the public. Plaintiffs' standards benefit consumers by helping to ensure the 
quality and consistency of goods and services. For example, ASTM F977 Consumer Safety 
Specification for Infant Walkers addresses the quality and safety of a category of products used 
by young children. 

34. Plaintiffs' standards also help drive technological innovation. A recent report by 

the National Science and Technology Council concluded that 

[s]tandards can play an important role in enabling technological innovation by defining 
and establishing common foundations upon which product differentiation, innovative 



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technology development and other value-added services may be developed. Standards 
are also essential for enabling seamless interoperability between and across products and 
systems. In the United States private-sector-led standards development that is informed 
by market needs has played a foundational role in facilitating competition, innovation and 
global trade. 

See Federal Engagement in Standards Activities to Address National Priorities 3 (Oct. 201 1), 
available at http://www.whitehouse.gov/sites/default/files/microsites/ostp/federal_engagement_ 
in_standards_activities_october 1 2-final.pdf . 

35. Plaintiffs' standards also make markets more efficient. Without building-related 
standards, such as model building codes. Plaintiff NFPA's Life Safety Code, or Plaintiff 
ASHRAE's Ventilation for Acceptable Indoor Air Quality standard, contractors, trades people 
and manufacturers of building materials would be confronted with an extraordinarily complex 
marketplace, where the practices governing their businesses vary widely from one town to the 
next. Building standards provide for consistency across jurisdictions, enabling the efficient 
exchange of building materials and services. Similarly, standards allow for the interoperability 
of products. For example, the nationwide use of Plaintiff NFPA's National Electrical Code, in 
conjunction with other product standards, helps to ensure that wherever consumers go in the 
United States, their electric appliances can be plugged in and will operate safely and effectively. 

36. Many of Plaintiffs' standards apply to and are referenced by professionals and 
specialists — including manufacturers, installers, trades people, engineers, architects, and 
technical experts — rather than members of the general public. Hence, while Plaintiffs' standards 
ultimately benefit members of the public, the vast majority of their standards are directed to 
manufacturers, professionals, and other specialists and are highly technical in nature. 



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D. Government Incorporation of Private-Sector Standards 

37. In addition to their many private uses, a portion of these voluntary consensus 
standards also have been incorporated by reference into the laws of government entities, at little 
to no cost to taxpayers (beyond the minimal travel costs attendant to the participation of 
government representatives on SDO consensus bodies). For well over a hundred years, 
government entities have used privately developed standards to provide health, safety, and other 
technical regulations for the benefit of the public, simply by incorporating the standards by 
reference into statutes, regulations, and ordinances. When governments incorporate by reference 
the standards of Plaintiffs and other SDOs, it amplifies the public benefits of these standards, 
yielding tremendous efficiency gains and substantial savings for taxpayers. 

38. In the early part of the twentieth century, many state and local governments 
adopted model codes on such common subjects as construction, fire safety, and electrical work. 
For example, NFPA's National Electrical Code was first published in 1897. By the 1930s, 
approximately 2,000 communities throughout the United States adopted the NEC, and many 
cities and states that previously followed unique electrical codes had revised them to conform to 
the national model. 

39. Federal policy strongly encourages the development of standards by private 
organizations and the incorporation of those standards by federal departments and agencies. In 
1982, the federal Office of Management and Budget promulgated 0MB Circular No. A-1 19 
("the OMB Circular"). In its current iteration, the OMB Circular "directs agencies to use 
voluntary consensus standards in Ueu of government-unique standards except where inconsistent 
with law or otherwise impractical." The policy articulated in the OMB Circular is "intended to 



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reduce to a minimum the reliance by agencies on government-unique standards," in order "to 
achieve the following goals:" 

a. Eliminate the cost to the Government of developing its own standards and decrease the 
cost of goods procured and the burden of complying on agency regulation. 

b. Provide incentives and opportunities to establish standards that serve national needs. 

c. Encourage long-term growth for U.S. enterprises and promote efficiency and 
economic competition through harmonization of standards. 

d. Further the policy of reliance upon the private sector to supply Government needs for 
goods and services. 

The OMB Circular is available at 

https://www.google.com/#bav=on.2,or.r_qf.&fp=335c82eb2f3786ba&q=omb-i-circular-i-no-i-a-i-ll 
9. 

40. In 1995, Congress enacted the National Technology Transfer and Advancement 
Act (the "NTTAA"). The NTTAA codifies the federal government's policy of adopting 
privately developed standards. With certain exceptions, the NTTAA provides that "all Federal 
agencies and departments shall use technical standards that are developed or adopted by 
voluntary consensus standards bodies, using such technical standards as a means to carry our 
policy objectives or activities determined by the agencies and departments." The NTTAA is 
available at http://www.gpo.gov/fdsys/pkg/PLAW-104publl 13/pdf/PLAW-104publl 13.pdf. 

41. Today, literally thousands of private-sector standards are incorporated by 
reference in the Code of Federal Regulations. Thousands of standards are also adopted by state 
and local governments. Hundreds of Plaintiffs' standards have been incorporated by reference 
by various government entities. 

42. Governments at all levels adopt standards developed by SDOs because they yield 
substantial benefits and efficiencies. Incorporating existing standards by reference allows 



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government agencies to develop a comprehensive regulatory scheme quickly and with limited 
costs. By comparison, government agencies and bodies at all levels would incur enormous 
expenses if they were to engage in the lengthy and complicated process of developing their own 
unique standards. The cost of coordinating, updating, testing and the many other activities 
required to keep standards up to date and to comply with the demanding and rigorous procedural 
requirements that Plaintiffs and other SDOs follow would be enormous, and in many cases cost- 
prohibitive, for government agencies and bodies at many levels. 

43. Moreover, because standards created by SDOs reflect the collective experience, 
knowledge, and judgment of industry representatives, practitioners, academics, and other 
experts, incorporation by reference enables the government to capitalize on expertise from the 
private sector that often does not exist within government bureaucracy — ^particularly with respect 
to ever-evolving industries and technologies. As the National Science and Technology Council 
noted in its recent report, the "U.S. government has long recognized that the private-sector, 
driven by innovators and market need, is ordinarily in the best position to drive standardization 
in a technology area." Federal Engagement in Standards Activities to Address National 
Priorities 3 (Oct. 2011), available at 

http ://w w w . whitehouse. gov/sites/def ault/f iles/microsites/ostp/f ederal_engagement_in_standards_ 
activities_octoberl2-final.pdf. For this reason, the Administrative Conference of the United 
States concluded that incorporation by reference "furthers important, substantive regulatory 
policies, enabling agencies to draw on the expertise and resources of private-sector standard 
developers to serve the public interest." Administrative Conference of the United States, 
Recommendation 2011-5, at 1, available at 



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http://www.acus.gov/sites/default/files/Recommendation-2011-5-Incorporation-by- 
Reference.pdf. 

44. For example, the Federal Energy Regulatory Commission ("FERC") has 
incorporated by reference standards created by the North American Energy Standards Board 
("NAESB"), because of its view that the NAESB "process is [a] far more efficient and cost 
effective method of developing technical standards for the industries involved than the use of a 
notice and comment rulemaking process involving numerous technical conferences in 
Washington that all believe they have to attend." Standards for Business Practices and 
Communication Protocols for Public Utilities, 74 Fed. Reg. 63,288, 63,302 (Dec. 3, 2009). 

45. Incorporating existing standards also decreases the burden of regulation on 
industry. Plaintiffs' standards align with existing industry best practices, with which many 
regulated parties already comply. Incorporation by reference, therefore, reduces gaps between 
government regulation and industry practice, and makes it easier and less expensive for industry 
to comply with regulations. 

E. Costs of Developing Private-Sector Standards 

46. The development of high quality, up-to date, voluntary consensus standards is 
costly. In addition to the value of the time and expertise contributed by the many volunteers who 
participate in the standards-development process. Plaintiffs expend substantial resources to 
provide the administrative, technical, and other support necessary to produce standards. 
Plaintiffs must pay for salary and benefits for administrative and expert staff, office space, 
meeting facilities, outreach and education efforts, information technology, and the cost of 
publication of their standards, among other things. 



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47. The robust and open process followed by Plaintiffs, which includes multiple 
levels of review, opportunity for notice and comment, and representation from a diverse array of 
interests, is particularly costly to administer and coordinate. For example, NFPA has spent 
significant sums to build a computerized interface that allows for the online development and 
revision of standards. It also has increased the participation of underrepresented groups on its 
technical committees, such as by creating an Enforcer Funding Program to raise the percentage 
of government enforcement officials on the committees, during a time of public-sector budget 
cuts. 

II. PLAINTIFFS' STANDARDS 

A. Plaintiff ASTM's Standards 

48. For more than 100 years, ASTM has provided a global forum for the development 
and publication of voluntary consensus standards for materials, products, systems, and services 
that are utilized by ninety industry sectors in the United States and in most geographic regions of 
the world. ASTM is the developer and publisher of over 12,000 voluntary consensus standards 
in a wide range of fields, including, but not limited to, consumer products, iron and steel 
products, rubber, paints, plastics, textiles, medical services and devices, electronics, construction, 
aviation, energy, water, and petroleum products. 

49. Over 30,000 individuals representing 135 countries, including manufacturers, 
retailers, consumers, representatives from government agencies, academics, and researchers, 
serve on ASTM's 143 Technical Committees. Each Technical Committee is further divided into 
more focused technical areas called subcommittees. 

50. The voting membership of each ASTM Technical Committee is constituted to 
include a balance of relevant interests. For example, producers or sellers of materials, products. 



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systems or services covered within the scope of a given committee or subcommittee cannot 
exceed more than 50 percent of the voting membership of that committee or subcommittee. All 
standards actions, including new standards as well as revisions, withdrawals and reapprovals of 
existing standards, must be approved by at least 66.7 percent of the voting subcommittee 
members and 90% of the voting main committee members, with not less than 60 percent of the 
voting members returning ballots. 

51. ASTM standards development activities are governed by a detailed set of written 
procedures that are accredited by ANSI as satisfying the essential requirements of a voluntary 
consensus standards development process. The process through which ASTM develops its 
standards includes multiple levels of review, and numerous opportunities for public review and 
comment. All ASTM standards are reviewed on a 5 year schedule and reapproved, revised or 
withdrawn in revision cycles that typically take 8-12 months to complete. Each revision cycle 
proceeds according to a published schedule that includes final dates for all major events in the 
process, including opportunities for input and comment. Technical Committee meetings, appeals, 
and final publication of the standard. 

52. ASTM strives to enable broad stakeholder representation in the process and does 
everything possible to minimize barriers to entry. Individual participating ASTM members pay 
$75 annually for membership, which entitles them to full participation rights in the development 
of standards and free access to standards relevant to their interest. ASTM often waives the 
membership fee for interested consumers or participants from developing countries. 

53. Each year ASTM incurs substantial costs for its standards development 
infrastructure and delivery platforms, including resources for collaboration. Technical 
Committee meetings, balloting, editorial, production, distribution, promotion and protection of 



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ASTM Standards. ASTM also incurs significant costs related to achieving and maintaining 
accreditation by ANSI and for engaging in policy-related activities within the global standards 
community. 

54. Sales of ASTM's standards account for approximately 75% of ASTM's total 
revenue. 

55. Many ASTM standards have been incorporated by reference by government 
entities in statutes, regulations, and ordinances. 

56. For example, the U.S. Department of Agriculture (USD A) BioPref erred Program, 
which is designed to increase the promotion and use of biobased products, incorporates by 
reference ASTM D6866 ~ Standard Test Methods for Determining the Biobased Content of 
Solid, Liquid, and Gaseous Samples Using Radiocarbon Analysis - to calculate the biobased 
content included in a given material. Over 9,000 products from nearly 90 product categories have 
qualified for this USDA program. According to USDA, the increased purchase of biobased 
products will be expected to reduce petroleum consumption, increase the use of renewable 
resources, better manage the carbon cycle, and may contribute to reducing adverse 
environmental and health impacts. 

57. Over 1,200 ASTM standards, out of more than 12,000 total ASTM standards, are 
referenced in the Code of Federal Regulations. ASTM has not voluntarily transferred or licensed 
any of its rights in these standards to any governmental agencies whose regulations incorporate 
ASTM's standards. Nor has ASTM been compensated by the federal government for any of its 
safety standards. 

58. ASTM owns or controls the copyrights and/or the relevant exclusive rights in the 
works at issue in this case ("ASTM Standards") under the United States copyright laws. ASTM 



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has obtained Certificates of Copyright Registration from the Register of Copyrights for the 
ASTM Standards. Attached hereto as Exhibit A is a list of the ASTM Standards that Defendant 
infringed by the acts complained of herein. Exhibit A also identifies by number the Certificates 
of Copyright Registration issued to ASTM. 

59. The ASTM standards are original works of authorship. The content of the ASTM 
Standards is original to ASTM and includes a high degree of creativity. 

60. ASTM expressed the concepts underlying its standards through particular words 
and drawings that it selected from myriad options through which it could have expressed those 
concepts. 

61. ASTM owns the exclusive trademark rights in the following registered trademarks 
that refer to ASTM (the "ASTM Marks"): 

a. U.S. Trademark Registration No. 2,679,320, which covers the ASTM 
word mark. 

b. U.S. Trademark Registration No. 2,685,857, which covers the ASTM 
INTERNATIONAL word mark. 

c. U.S. Trademark Registration No. 2,651,796, which covers the following 
logo: 




INTERNATIONAL 



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d. U.S. Trademark Registration No. 4,079,772, which covers the following 
logo: 

62. ASTM also owns common law rights in the ASTM Marks. 

63. Through ASTM's exclusive, continuous and widespread use of the ASTM Marks, 
the ASTM Marks have acquired a substantial amount of goodwill, and consumers have come to 
rely on the ASTM Marks to identify ASTM's high quality goods and services. ASTM has spent 
significant funds and resources marketing and promoting its goods and services in connection 
with the ASTM Marks, and considers them to be important, valuable assets. ASTM vigorously 
and continuously enforces its ASTM Marks against infringers and counterfeiters. 

B. Plaintiff NFPA's Standards 

64. Founded in 1896, the NFPA is a not-for-profit organization incorporated as a 
public charity under the laws of the Commonwealth of Massachusetts and recognized as a 
Section 501(c)(3) organization under the Internal Revenue Code. The NFPA's mission is to 
reduce the dangers of fire and other hazards by providing and advocating for consensus 
standards, research, training, and education. The development of voluntary consensus standards 
is NFPA's principal activity and the primary means through which it furthers its safety mission. 

65. NFPA develops and disseminates over 300 standards in the areas of fire, 
electrical, and building safety. These standards are designed to minimize damage to property 



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and to protect people from death and injury. NFPA standards range from large, multi-chapter 
installation standards such the National Electrical Code, to standard test methods of only a few 
pages, such as NFPA 259, Standard Test Method for Potential Heat of Building Materials. 
There are many different types of NFPA standards, covering a broad range of subjects. By way 
of example, NFPA has promulgated standards regarding fire protective clothing, fire service 
professional qualifications, firefighting equipment, firefighter training, incident management, 
and firefighter deployment. NFPA standards also cover the installation of electrical systems, 
fuel gas piping, and other building systems and components, and offer guidance on emergency 
and disaster planning, explosion prevention, and fire investigation. There are NFPA standards 
that apply to homes and hospitals, airports and coal mines, tunnels and historic structures, grain 
silos and nuclear power plants. 

66. NFPA's flagship work is the National Electrical Code, which is the world's most 
widely used and accepted standard for electrical installations. The NEC was created in 1897 out 
of a desire to establish uniform standards regarding the installation of electrical systems. Since 
1959, the NEC has been revised every three years. Other widely used NFPA standards include 
the NFPA 13, Standard for the Installation of Sprinkler Systems, which establishes standards for 
the installation of fire sprinklers, and NFPA 101, Life Safety Code, which establishes standards 
for the protection of human life from fire, smoke, and toxic fumes in buildings and other 
structures. 

67. NFPA's standards contain a variety of materials, including prescriptive rules, as 
well as explanatory material, such as informational notes and annexes, illustrations, charts, and 
diagrams. 



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68. NFPA standards are advisory and are made available for a wide variety of private 
and public uses. The private sector relies heavily on NFPA standards. Private actors use NFPA 
standards for purposes including industry and professional best practices, insurance 
underwriting, professional training and certification, worker protection, and product testing and 
certification. 

69. NFPA standards are also widely incorporated by reference by government entities 
in statutes, regulations, and ordinances. Some NFPA standards, such as the NEC, are adopted by 
one or more levels of government in every state in the country. For example, the municipal 
regulations of the District of Columbia incorporate the NEC by reference. See 12 D.C. Mun. 
Regs. tit. 12, § lOl.A(lOl.l). And virtually every NFPA standard is incorporated by reference 
by one or more of the thousands of local and state governments within the United States. The 
federal government also relies on NFPA standards; the Code of Federal Regulations references 
NFPA standards approximately 380 times. 

70. NFPA standards development activities are governed by a detailed set of written 
procedures that are accredited by ANSI as satisfying the essential requirements of a voluntary 
consensus standards development process. The consensus bodies primarily responsible for the 
drafting and updating of NFPA standards are known as "Technical Committees" (or, in the case 
of the NEC, as "Panels"). Each Technical Committee is assigned a scope of activities that may 
include a number of standards or just one portion of a single standard. 

71. NFPA's Technical Committees are comprised of volunteers from business, 
industry, public interest groups, government, and academia, as well as other subject matter 
experts and stakeholders. An NFPA Technical Committee may include electricians, other 
tradesman, government officials, and experts with advanced degrees in electrical engineering or 



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many other fields. Although NFPA is a membership organization, individuals may serve on a 
Technical Committee without themselves being NFPA members. 

72. Each NFPA Technical Committee is constituted to include a balance of relevant 
interests, with no one interest occupying more than one-third of the Committee. All new 
standard provisions, and any revision to an existing standard, must be approved by at least two- 
thirds of the Committee. 

73. The NFPA process includes multiple levels of review, and numerous 
opportunities for public review and comment. All NFPA standards are revised and updated 
every three to five years, in revision cycles that typically take two years to complete. Each 
revision cycle proceeds according to a published schedule that includes final dates for all major 
events in the process, including opportunities for input and comment, technical committee 
meetings, appeals, and final issuance of the standard. 

74. In addition to its standards development activities, NFPA works to protect lives 
and property through educational programs such as Fire Prevention Week in October — a national 
campaign for which NFPA has been the official sponsor since 1922 — and by overseeing the 
operation of advocacy campaigns dedicated to increasing fire safety and awareness, including: 
the Fire Sprinkler Initiative, Bringing Safety Home, the Coalition for FireSafe Cigarettes, and the 
Alliance to Stop Consumer Fireworks. NFPA also publishes dozens of texts, guides, and other 
safety information and materials, and offers training on the content and use of its standards for 
professionals, government regulators, fire service members, and other first responders. And 
NFPA is the premier resource for fire data analysis and research (through its fire analysis 
department and the NFPA-affiliated Fire Protection Research Foundation). Many of NFPA's 
publications and activities are costly, but generate little or no revenue. 



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75. NFPA's day-to-day operations depend upon a reliable stream of revenue to cover 
the numerous expenses NFPA incurs in its activities. These expenses include, but are not limited 
to, employing a full-time staff of technical experts who serve as liaisons to committees in the 
standards development process, employing publication staff and administrative personnel, 
publishing standards, funding the NFPA-affiliated research foundation and educational outreach 
efforts, and arranging and paying for meeting sites. NFPA's revenues are approximately $70 
million on an annual basis and approximately 70% of NFPA's annual revenue is derived from 
the sale of its copyrighted publications, with the remaining revenue derived from membership 
fees, professional development, and other sources. 

76. The standards created by NFPA are original works of authorship. The content of 
NFPA's standards is original to NFPA and includes a high degree of creativity. 

77. The concepts underlying NFPA's standards are expressed through particular 
words and drawings that have been selected from myriad options through which these concepts 
could be expressed. 

78. NFPA owns or controls the copyrights and/or the relevant exclusive rights in the 
works at issue in this case ("NFPA Standards") under the United States copyright laws. NFPA 
has obtained Certificates of Copyright Registration from the Register of Copyrights for its works. 
Attached hereto as Exhibit B is a list of certain of NFPA copyrighted works that Defendant has 
infringed by the acts complained of herein. Exhibit B also identifies by number the Certificates 
of Copyright Registration issued to NFPA. 

79. NFPA owns or controls the exclusive trademark rights in the registered marks that 
refer to the NFPA organization and NFPA standards (the "NFPA Marks"), including: 



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a. U.S. federal registration no. 2,834,633, which covers the following logo: 




NFPA 

b. U.S. federal registration no. 1,148,903, which covers the following logo: 




c. U.S. federal registration no. 1,094,460, which covers the NATIONAL 
ELECTRICAL CODE word mark. 

d. U.S. federal registration no. 3,165,010, which covers the NATIONAL HRE 
PROTECTION ASSOCIATION word mark. 

e. U.S. federal registration no. 1,165,496, which covers the NEC word mark. 

f. U.S. federal registration no. 3,354,321, which covers the NFPA 70 word mark. 

g. U.S. federal registration no. 3,141,884, which covers the NFPA word mark. 

h. U.S. federal registration no. 1,924,881, which covers the NATIONAL FIRE 
ALARM CODE word mark. 

i. U.S. federal registration no. 1,951,710, which covers the NFPA 72 word mark, 
j. U.S. federal registration no. 1,107,267 which covers the LIFE SAFETY CODE 

word mark. 



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80. NFPA also owns common law rights in the NFPA Marks. 

8 1 . NFPA' s use of the NFPA Marks, in publications, marketing materials, 
conferences and events, on its website, and in other contexts, has been substantially continuous 
and exclusive. NFPA has attained strong name recognition in the NFPA Marks, which have 
come to be associated with NFPA and which identify NFPA as the source of the NFPA's 
products offered in connection with the NFPA Marks. NFPA has developed substantial goodwill 
in the NFPA Marks. NFPA has spent significant sums marketing and promoting its products in 
connection with the NFPA Marks, and considers them to be important, valuable assets. NFPA 
has vigorously and continuously enforced its NFPA Marks against infringers and counterfeiters. 

C. Plaintiff ASHRAE's Standards 

82. Founded in 1894, ASHRAE is a not-for-profit organization incorporated as a 
public charity under the laws of the State of New York. ASHRAE's mission is to advance the 
arts and sciences associated with heating, ventilating, air-conditioning and refrigerating to serve 
humanity and promote a sustainable world. It does so through research, standards writing, 
publishing and continuing education. The development of voluntary consensus standards is 
ASHRAE's principal activity, and the primary means through which it furthers its safety 
mission. 

83. ASHRAE develops and disseminates many standards in the areas of heating, 
ventilating, air-conditioning and refrigerating ("HVAC&R"). ASHRAE develops standards for 
both its members and others professionally concerned with HYAC&R processes and the design 
and maintenance of indoor environments. 

84. ASHRAE writes standards for the purposes of establishing consensus for 
methods of HVAC&R-related testing for use in commerce, and establishing HVAC&R-related 



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performance criteria to facilitate guidance within the HVAC&R industry. ASHRAE publishes 
the following three types of voluntary consensus standards: Method of Measurement or Test, 
Standard Design and Standard Practice. ASHRAE does not write rating standards unless a 
suitable rating standard would not otherwise be available. 

85. Consensus standards are developed and published to define minimum values or 
acceptable performance, whereas other documents, such as design guides, may be developed and 
published to encourage enhanced performance. 

86. ASHRAE guidelines are developed through the participation of its national and 
international members, associated societies, and public review. 

87. By way of example. Standard 90. 1-2010, Energy Standard for New Buildings 
Except Low Rise Residential Buildings, was first promulgated in 1989. The 90.1 Standard was 
developed by a subcommittee whose mission was to balance the interest of all the members of 
the subcommittee as it relates to the insulation of all buildings, including metal buildings. The 
membership of the 90. 1 subcommittee includes various manufacturers, architects, builders, and 
members of federal and state agencies. 

88. In connection with the development and maintenance of the 90.1 Standard, 
ASHRAE provides for an ongoing review and revision of its Energy Standard through its 
Continuing Maintenance Procedures. These procedures include a Public Review Process and an 
Emergency Interim Standards Action. Although in practice ASHRAE issues revisions more 
frequently, ASHRAE typically publishes regular revisions to the 90.1 standard every 18 months. 

89. In addition to its standards development activities, ASHRAE offers courses in a 
variety of formats, including eLeaming, professional development seminars (in locations around 
North America or online), short courses (seminars offered during ASHRAE meetings) and self- 



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directed learning courses (home study courses), all through the ASHRAE Learning Institute. 
ASHRAE also produces hundreds of publications, including the ASHRAE Handbook (the 
"bible" of the HVAC&R industry), books on specialized topics within the field, technology 
applications and various CDs and DVDs. ASHRAE also publishes the peer-reviewed bimonthly 
HVAC&R Research — which is among the most prestigious archival research reporting resources 
in the field of environmental control for the HVAC&R industry. Further, ASHRAE' s research 
program, established in 1912, currently supports more than 70 active research projects with a 
combined value of more than $12 million. Research focus includes: energy and resource 
efficiency, indoor environmental quality, alternative technologies, and materials and equipment. 
Through scholarships, grants and awards, ASHRAE supports engineering education for 
undergraduate students and research projects for graduate engineering students and new post- 
doctoral scholars. 

90. ASHRAE' s day-to-day operations depend upon a reliable stream of revenue to 
cover the numerous expenses ASHRAE incurs in its activities, which amount to approximately 
$21 million annually. Approximately 20-25% of ASHRAE's annual revenue is derived from the 
sale of its copyrighted publications, with the remaining revenue derived from membership fees, 
advertising income, and other sources. 

91. The standards created by ASHRAE are original works of authorship. The content 
of ASHRAE's standards is original to ASHRAE and includes a high degree of creativity. 

92. ASHRAE expressed the concepts underlying ASHRAE's standards through 
particular words and drawings that it selected from myriad options through which it could have 
expressed those concepts. 



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93. ASHRAE owns or controls the copyrights and/or the relevant exclusive rights in 
the works at issue in this case under the United States copyright laws (the "ASHRAE 
Standards"). ASHRAE has obtained Certificates of Copyright Registration from the Register of 
Copyrights for the ASHRAE Standards. Attached hereto as Exhibit C is a list of ASHRAE 
Standards that Defendant has infringed by the acts complained of herein; the same Exhibit 
identifies by number the Certificates of Copyright Registration issued to ASHRAE for those 
works. 

94. ASHRAE owns or controls the exclusive trademark rights in the following 
registered marks that refer to the ASHRAE organization and ASHRAE Standards (the 
"ASHRAE Marks"): 



95. ASHRAE also owns common law rights in the ASHRAE Marks. 

96. ASHRAE' s use of the ASHRAE Marks in publications, marketing materials, 
conferences and events, on its website, and in other contexts, has been substantially continuous 



(a) U.S. federal registration no. 1,503,000 covering the following logo: 




(b) U.S. federal registration no. 4,262,297 covering the following logo: 



ASHRAE 




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and exclusive. ASHRAE has attained strong name recognition in the ASHRAE Marks, which 
have come to be associated with ASHRAE and which identify ASHRAE as the source of the 
ASHRAE' s products offered in connection with the ASHRAE Marks. 

97. ASHRAE has developed substantial goodwill in the ASHRAE Marks. ASHRAE 
has spent significant sums marketing and promoting its products in connection with the 
ASHRAE Marks, and considers them to be important, valuable assets. ASHRAE has vigorously 
and continuously enforced its ASHRAE Marks against infringers and counterfeiters. 

III. AVAILABILITY OF PLAINTIFFS' STANDARDS 

98. Plaintiffs make their standards available through multiple distribution channels, 
including Internet, catalog, telephone, and retail sales. Plaintiffs' standards are generally offered 
in a number of different formats, including a variety of electronic formats, individual pamphlets, 
complete bound sets, and loose-leaf subscription services. 

99. ASTM strives to be flexible and reasonable when working with federal agencies 
and the regulated public to provide the public with reasonable access to its standards. ASTM 
charges a modest fee to persons who want copies of the ASTM standards. The most expensive 
ASTM standard costs $71 and most ASTM standards cost between $25 and $35. 

100. NFPA sells its standards at a reasonable cost to the professionals and tradespeople 
who use the standards. For example, the hard copy edition of the NEC, an 800-page work, is 
offered for purchase for $75. NFPA publishes its standards in a variety of hard copy and digital 
formats. Those wishing to own a personal copy can purchase and download an electronic copy 
instantly, for example, or can purchase a subscription service that updates all NFPA standards 
and allows downloading, printing, and other functionalities. 



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101. ASHRAE Standards and Guidelines are available for purchase to everyone as 
downloadable Digital Publications (PDFs), hard copy, or CD-ROMs. For example, a hard copy 
of the complete ASHRAE Standard 90.1-2010 - Energy Standard for Buildings Except Low- 
Rise Residential Buildings - is typically sold for $125. The ASHRAE online bookstore is 
updated each time a new publication from ASHRAE is available. 

102. It is also common for SDOs to provide access to their standards (or portions 
thereof) for free. The specific details surrounding access to standards vary depending on the 
SDO at issue, the nature of the standard, and the audience that consumes it. 

103. ASTM has created a reading room on its website, available at 
http://www.astm.org/READINGLIBRARY/index.html, through which the public can access all 
ASTM standards that have been incorporated by reference into federal regulations at no cost on a 
read-only basis. That is, members of the public may access the standards online and view them 
at no cost, but are not able to copy or modify them. Additionally, when a federal agency 
proposes to incorporate by reference an ASTM standard in rulemaking, ASTM works with the 
relevant agency to provide the public with read-only access to the standard at no cost during the 
public comment period. 

104. As part of its commitment to enhancing public safety, NFPA began making the 
full text of NFPA standards available for free viewing on its website, in read-only form, more 
than a decade ago. NFPA currently provides such access for all of its standards, including many 
older editions that are still referenced in laws. See 

http://www.niipa.org/aboutthecodes/list_of_codes_and_standards.asp. This access allows any 
member of the public, including citizens of jurisdictions that have incorporated NFPA standards 
by reference, to review NFPA standards without cost. NFPA also encourages jurisdictions that 



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incorporate its standards by reference to link their websites to its free, online version of the 
standards. 

105. ASHRAE strongly supports public access to its standards. It currently provides 
free-to-the -public online read-only access, in non-downloadable format, to 28 standards, 
including every single standard referenced in laws or codes. This includes all the ASHRAE 
Standards listed on Exhibit C. This access is provided through a service called RealRead®. 
ASHRAE incurs significant costs in order to provide such access. 

106. Government entities have adopted policies for providing public access to the 
standards they incorporate by reference. For example, the Code of Federal Regulations states 
that any materials incorporated by reference at the federal level must be "reasonably available to 
and usable by the class of persons affected by the publication." 1 C.F.R. § 51.7(a)(4). In 
particular, the Office of the Federal Register and the relevant agency each must maintain a hard 
copy of any material incorporated by reference that is available for public inspection. See 1 
C.F.R. §§ 5.2, 51.9(b)(4). At the state and local levels, copies of standards incorporated by 
reference typically must be made available for inspection in government offices or designated 
depository libraries. 

107. The Code of Federal Regulations does not provide a precise definition of the term 
"reasonably available." Neither the Office of the Federal Register nor any other governmental 
body has ever interpreted "reasonably available" to mean that the material must be available to 
the public without cost (let alone for free with the further ability to copy, distribute and modify). 

108. Government entities have expressly recognized the considerable benefits of the 
developer of standards retaining copyright protection for standards that are incorporated by 
reference. For example, the National Science and Technology Council has taken the position 



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that "the text of standards and associated documents should be available to all interested parties 
on a reasonable basis, which may include monetary compensation where appropriate." Federal 
Engagement in Standards Activities to Address National Priorities 11 (Oct. 2011), available at 
http ://w WW . whitehouse. gov/sites/def ault/f iles/microsites/ostp/f ederal_engagement_in_standards_ 
activities_octoberl2-final.pdf (emphasis added). 

109. OMB Circular 1 19-A also takes the position that incorporation by reference of a 
standard does not destroy the copyright in that standard. It states that "[i]f a voluntary standard 
is used and published in an agency document, your agency must observe and protect the rights of 
the copyright holder and any other similar obligations." See 
http://www.whitehouse.gov/omb/circulars_all9. 

110. A number of offices within the Executive branch are currently engaged in the 
process of evaluating the procedures for incorporating material by reference, in a manner that 
allows for reasonable access by the public and also respects the rights of copyright owners to 
protect their intellectual property. 

111. Although Public Resource participated in this process by submitting extensive 
comments and letters to these offices, both before and during this process it engaged in conduct 
that infringed on Plaintiffs' copyrights. In or around March 2012, for example. Public Resource 
launched a campaign designed to make an end-run around the Executive branch evaluation 
process by flagrantly copying and distributing certain standards that had been incorporated by 
reference into federal or state regulations. 



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rv. DEFENDANT'S UNLAWFUL CONDUCT 

A. Copyright Infringement 

112. Public Resource has purchased paper copies of 73 standards created and owned 
by SDOs, including standards created and owned by ASTM and NFPA, that have been 
incorporated by reference in federal regulations. 

1 13. Upon information and belief, although well aware that the SDOs owned 
copyrights in the standards. Public Resource made 25 print copies of each of these standards, 
placed them in boxes covered with American flag packing tape, and sent the packages to a 
number of recipients, including the 10 SDOs that wrote the standards, the White House, United 
States Senators and Congressmen, the National Archives, the Federal Trade Commission, the 
Administrative Conference of the United States, the Copyright Office, several professors, and 
members of the media. Each package also included a packing slip informing the recipient of the 
cost Public Resource expended to obtain the standards and requesting some manner of action. 

114. Public Resource' s statements to the media made it clear that it intended to begin 
posting these 73 standards on the internet in HTML format. Attached as Exhibit D is an article 
by Public Resource's president discussing Public Resource's intentions. 

1 15. In or about December 2012, without Plaintiffs' consent. Public Resource began 
posting copies of those 73 standards and other standards that were created and owned by 
Plaintiffs that are allegedly incorporated by reference in federal and state regulations ("Plaintiffs' 
Standards") on its website, which is located at 
https://law.resource.org/pub/us/cfr/manifest.us.html. 

116. Public Resource also took steps to induce, promote, cause, and materially 
contribute to the further copying and dissemination of Plaintiffs' Standards by members of the 



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public. Public Resource posted Plaintiffs' Standards on its website in pdf format, which allows 
others not only to view but also to make further unauthorized copies of Plaintiffs' Standards and 
to distribute them to others. Upon information and belief. Public Resource also has uploaded 
standards owned by Plaintiffs without authorization to the www.archive.org website. The 
electronic nature of these documents, and their availability on the Internet, magnifies the ease 
and speed with which they may be reproduced and disseminated to others. 

1 17. Moreover, PubUc Resource "rekeyed" some of Plaintiffs' Standards and posted 
them on its website in html format. Its stated purpose for doing this was to make it possible for 
members of the public to copy and manipulate the standards, thereby encouraging the creation of 
works that are derivative of Plaintiffs' copyrighted standards. Public Resource also redrew 
graphics within some of Plaintiffs' Standards in the open Scalable Vector Graphics (SVG) 
format, which enables the images to be searched, indexed, scripted, and compressed. Further, 
Public Resource reset mathematical formulas into the Math Markup Language application that 
integrates mathematical formulae into web pages and other documents to make it easier for 
members of the public to manipulate the standards. And Public Resource added metadata to the 
document "headers," which made Plaintiffs' Standards more accessible and discoverable by 
Internet search engines, thereby increasing the number of people who might access the standards 
and disseminate them further. See Exhibit E, a printout from Public Resource's website. 

118. Public Resource designed its website to attract visitors from states throughout the 
Nation, including by organizing Plaintiffs' Standards by jurisdiction so that visitors may 
download and copy the Standards adopted by their jurisdiction. For example, the Public 
Resource website has a page dedicated to "Public Safety Codes Incorporated By Law," with a 
separate section linking to copies of standards incorporated by reference by the District of 



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Columbia, including the National Electrical Code. Attached as Exhibit F hereto is a copy of the 
section of Public Resource's website that provides copies of standards incorporated by reference 
by each state and the District of Columbia. 

1 19. According to Public Resource's website, standards have the force of law when 

they are incorporated by reference and: 

[t]he law belongs to the people, and cannot become the private property of some 
governmental or non-governmental organization, no matter how seemingly well-deserved 
are the rents one could extract from winning a monopoly concession on a parcel of the 
law. While standards bodies need money to carry out their valuable work, and while it is 
clear that these standards bodies create high-quality documents that are essential to our 
public safety, one cannot cordon off the public domain simply because of an institutional 
desire for funds. 

Thus, Public Resource's website states that Public Resources has copied and posted standards 
created and owned by many SDOs, including Plaintiffs' Standards, "as it is the right of all 
humans to know and speak the laws that govern them." See Exhibit E. 

120. Public Resource has represented that all of the standards it has copied and 
displayed on its website have been incorporated by reference into federal and state law. 
However, some Standards that Public Resource claims were incorporated by reference into 
federal law have not in fact been incorporated into the Code of Federal Regulations. 

121. Plaintiffs' Standards, which are original works of authorship that Plaintiffs 
developed at great cost and effort, unquestionably were afforded copyright protection the 
moment Plaintiffs fixed them in tangible forms of expression. 

122. If Public Resource were to prevail in its argument that Plaintiffs' Standards lost 
their copyright protection whenever incorporated by reference in any federal or state regulation, 
this would raise serious questions of government liability under the Takings Clause of the Fifth 



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Amendment to the United States Constitution, made applicable to state and local governments 
through the Fourteenth Amendment. 

B. Trademark Infringement 

123. In copying and rekeying Plaintiffs' Standards, Public Resource has also used in 
commerce a reproduction or copy of Plaintiffs' registered trademarks in connection with the sale, 
offer for sale, distribution or advertising of goods or services. 

124. Public Resource has used reproductions or copies of ASTM's Marks in 
connection with the distribution of ASTM's Standards. Attached as Exhibit G is an excerpt from 
an ASTM standard that Public Resource has posted on its website that contains a reproduction or 
copy of several of ASTM's Marks. 

125. Public Resource has used reproductions or copies of NFPA' s Marks in connection 
with the distribution of NFPA's Standards. For example, attached as Exhibit H is an excerpt 
from an NFPA standard that Public Resource has posted on its website that contains a 
reproduction or copy of several of NFPA's Marks. 

126. Public Resource has used reproductions or copies of ASHRAE's Marks in 
connection with the distribution of ASHRAE's Standards. Attached as Exhibit I is an excerpt 
from an ASHRAE standard that Public Resource has posted on its website that contains a 
reproduction or copy of several of ASHRAE's Marks. 

127. Plaintiffs have not authorized Public Resource to use their trademarks, and use of 
Plaintiffs' trademarks by Public Resource is likely to lead consumers to believe mistakenly that 
the standards displayed on Public Resource's website are authentic, unaltered standards of each 
respective Plaintiff that meet Plaintiffs' quality control standards, and/or that Plaintiffs have 
endorsed, approved, or are otherwise affiliated with Public Resource and/or its activities. 



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128. Public Resource has implied and/or suggested to the public that Plaintiffs sponsor 
or endorse Public Resource's posting of the standards by including a cover page before certain 
standards that states the name of the standards body that created the standard and contains an 
image of a seal of approval. The first page of Exhibit G provides an example of the cover page 
that Public Resource has added to certain of Plaintiffs' Standards. 

129. Many of Plaintiffs' Standards that Public Resource has displayed and distributed 
on its website are not the current versions of the standards that have been published by the 
relevant Plaintiff. The copies that Public Resource has displayed and distributed on its website 
do not contain any notation that indicates that these standards are out-of-date. Absent a warning 
that a standard is not the most recent version, consumers are likely to be misled into believing 
that the versions of Plaintiffs' Standards that are displayed on its website constitute current 
industry standards and/or are currently endorsed by the organization that created the standard. 

130. Public Resource has retyped the text of some of Plaintiffs' Standards and redrawn 
many of the graphics so that it could convert Plaintiffs' Standards into different formats. Upon 
information and belief, in retyping and redrawing the information, Public Resource did not 
undertake the same quality control procedures that Plaintiffs use before they publish their 
standards to ensure that the published standards reflect the actual standards that the technical 
committees approved. 

131. When posting unauthorized copies of Plaintiffs' Standards on its website, Public 
Resource has included the relevant Plaintiffs registered logo on each standard in addition to that 
Plaintiff's name, which is more than is necessary to identify the SDO that authored the standard. 

132. Public Resource's actions have damaged and will continue to harm Plaintiffs, 
consumers, and the public in general. 



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133. Public Resource's continued unauthorized use of Plaintiffs' trademarks is 
depriving Plaintiffs of the ability to control the use of their trademarks, which has caused and 
will continue to cause Plaintiffs to lose control over their brand identities, their goodwill and 
their reputations. 

134. Mistakes Public Resource made in retyping or redrawing content from Plaintiffs' 

Standards could cause harm to consumers and/or the public in general, which would in turn 

cause harm to the reputation of the SDO that created that standard. 

V. DEFENDANT'S DESIRED OUTCOME WOULD DESTROY THE VIABILITY 

OF A SYSTEM THAT IS OPERATING EFFECTIVELY. 

135. If Public Resource were to succeed in convincing the Court that the copyright 
covering a standard was destroyed when the government incorporates the standard by reference 
into regulations, the SDOs would lose their exclusive rights to copy and distribute their standards 
and create derivative works therefrom, and would be unable to charge fees to members of the 
industry or other interested persons who want copies of the standards. 

136. Plaintiffs are not-for-profit entities. Plaintiffs underwrite the substantial costs of 
developing standards, in whole or in significant part, by relying on revenues made possible from 
the sales and licensing of their copyrighted standards to the audiences that consume them, 
primarily in the course of professional activities. Revenue from the sale or licensing of 
Plaintiffs' copyrighted works yields a substantial part — and often the majority — of Plaintiffs 
ASTM's, NFPA's and ASHRAE's operating revenues, with revenues from membership dues, 
contributions, and other sources usually trailing far behind. 

137. Depriving Plaintiffs and other SDOs of this important, independent source of 
revenue would substantially diminish the quality of future standards, including those in the 
health and safety areas which are most suitable for use by government entities. To the extent that 



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Plaintiffs were able to continue their standards development activities without copyright 
revenues, they could be forced to rely on funding from interested parties, or to charge fees to 
participate in the process of developing the standards, which would inhibit the participation of 
small businesses, consumers, academics, and other important stakeholders in the standards 
development process. 

138. If SDOs could no longer rely on the revenue derived from sales and licensing of 
their copyrighted standards to fund future standards work, they may also decrease the number of 
standards they develop, which would require the government to develop certain standards 
independently. However, the government lacks, among other things, the funds, the experience, 
and the technical expertise that would be needed to create standards that are comparable to those 
the SDOs develop. 

139. As explained above, the development of standards is a complex and resource- 
intensive process that requires, among other things, a professional staff, the housing and 
administration of the process, planning and execution of committee meetings, and technology 
infrastructure that facilitates the collaboration and participation of a diverse membership. If the 
federal government were to develop standards independently, it could cost tax payers hundreds 
of millions of dollars, which would be diverted away from other mission-critical programs (or 
require higher taxes). 

140. The government does not have experience and technical expertise that is 
comparable to those possessed by the SDOs and their members. The government also does not 
have the flexibility to update and revise standards at any time as do the SDOs, which would 
make it difficult for the government to react quickly to advances in technology and respond to 
other industry changes. 



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141. Public Resource's efforts to vitiate Plaintiffs' copyright protection in their 

standards threatens to destroy the open, cooperative system that has functioned effectively for 

over a century. This system has allowed the government and the public to benefit from the 

adoption of high quality standards, which Plaintiffs make available to interested members of the 

public, while allowing SDOs to pay for their operating costs by charging reasonable fees to 

members of the public interested in downloading or obtaining hard copies of their standards. 

COUNT I 
COPYRIGHT INFRINGEMENT 

142. Plaintiffs reallege and incorporate herein by reference Paragraphs 1 through 141 
of the Complaint as if fully set forth herein. 

143. As alleged above, ASTM owns registered copyrights for the standards listed in 
Exhibit A. 

144. As alleged above, NFPA owns registered copyrights for the standards listed in 
Exhibit B. 

145. As alleged above, ASHRAE own registered copyrights for the standards listed in 
Exhibit C. 

146. Plaintiffs' Standards contain material that is wholly copyrightable subject matter 
under the laws of the United States. 

147. The content of each of Plaintiffs' Standards is original to the respective Plaintiff 
and includes a high degree of creativity. Each Plaintiff selected the words and drawings that it 
used to express the concepts underlying its standards from myriad options through which it could 
have expressed these concepts. 

148. Notwithstanding Plaintiffs' ownership of the original content in Plaintiffs' 
Standards, Public Resource purchased copies of Plaintiffs' Standards and then made copies of 



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Plaintiffs' Standards and displayed copies of the Plaintiffs' Standards on its website without 
Plaintiffs' consent. Public Resource also rekeyed some of Plaintiffs' Standards and displayed 
copies of these standards on its website. 

149. Public Resource had access to each of Plaintiffs' Standards, which it has 
displayed in a form identical, or nearly identical, to that in which they appear in Plaintiffs' 
publications of these standards. 

150. By copying the standards listed in Exhibits A, B, and C and displaying them 
online. Public Resource has infringed Plaintiffs' copyright in each of Plaintiffs' Standards, 
specifically the exclusive right of Plaintiffs to reproduce, distribute, display, and make derivative 
works of their copyrighted works under 17 U.S.C. §§ 106 (1), (2), (3) and (5). The infringement 
of each of Plaintiffs' Standards constitutes a separate act of copyright infringement. 

151. Public Resource's conduct in copying, displaying, distributing, and creating 
derivative works of Plaintiffs' Standards has been knowing, willful and/or intentional. 

152. Public Resource has not added new expression, meaning, or insight to Plaintiff's 
Standards. It has simply made unauthorized copies of Plaintiffs' Standards and posted them 
online, sometimes in different electronic file formats. 

153. Public Resource has copied, displayed, and distributed Plaintiffs' Standards in 
their entirety. 

154. Public Resource claims to be a non-profit corporation, but it stands to profit from 
the display and distribution of Plaintiffs' Standards by driving traffic to its website, where it 
solicits donations, and by increasing its own profile in the media. 

155. Public Resource's display and distribution of Plaintiffs' Standards on its website 
destroys the potential market for, and value of. Plaintiffs' Standards. Members of the public will 



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not be willing to pay for Plaintiffs' publications of their standards if unauthorized copies are 
available for free on Public Resource's website. Moreover, by using Plaintiffs' standards to 
drive traffic to its website. Public Resource diverts traffic away from Plaintiffs' websites, 
depriving them not only of revenues related to web traffic but also of valuable opportunities to 
inform and educate visitors concerning important safety and other mission-related issues. 

156. Public Resource's copyright infringement has caused and will continue to cause 
irreparable harm to Plaintiffs for which there is no adequate remedy at law and Plaintiffs are 
entitled to and seek injunctive relief as a result thereof pursuant to 17 U.S.C. § 502. 

COUNT II 

CONTRIBUTORY COPYRIGHT INFRINGEMENT 

157. Plaintiffs reallege and incorporate herein by reference Paragraphs 1 through 156 
of the Complaint as if fully set forth herein. 

158. Public Resources' stated purpose of rekeying certain of Plaintiffs' Standards and 
displaying them on its website in html format without Plaintiffs' consent was to allow for 
members of the public to manipulate Plaintiffs' Standards, including resizing of drawings as well 
as cutting and pasting formulas. 

159. Public Resource knowingly displayed and distributed unlawful copies of 
Plaintiffs' Standards with the intent to induce, enable, facilitate and/or materially contribute to 
others making unauthorized copies and derivative works of Plaintiffs' Standards, and continues 
to do so. 

160. On information and belief, given the express purpose of Defendant' s posting of 
Plaintiffs' standards, it is likely that members of the public have accessed the copies of Plaintiffs' 
Standards that Public Resource displayed on its website and made copies of and/or derivative 
works based on Plaintiffs' Standards. 



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161 . Public Resource' s contributory copyright infringement has caused and will 
continue to cause irreparable harm to Plaintiffs for which there is no adequate remedy at law. 

COUNT III 

INFRINGEMENT OF REGISTERED TRADEMARKS UNDER 15 U.S.C. § 1114 

162. Plaintiffs reallege and incorporate herein by reference Paragraphs 1 through 161 
of the Complaint as if fully set forth herein. 

163. As alleged above, ASTM owns all rights, title and interest in the U.S. trademark 
registrations for the ASTM Marks. 

164. As alleged above, NFPA owns all rights, title and interest in the U.S. trademark 
registrations for the NFPA Marks. 

165. As alleged above, ASHRAE owns all rights, title and interest in the U.S. 
trademark registrations for the ASHRAE Marks. 

166. In copying and displaying Plaintiffs' Standards, Public Resource has used in 
commerce a reproduction or copy of Plaintiffs' registered trademarks in connection with the sale, 
offer for sale, distribution or advertising of goods or services without Plaintiffs' authorization or 
consent. 

167. Public Resource's use in commerce of trademarks that are confusingly similar, 
and indeed identical, to Plaintiffs' registered trademarks is likely to cause confusion, to cause 
mistake and/or to deceive consumers as to the source, sponsorship, or origin of the standards 
Public Resource has posted on its websites. 

168. The aforesaid acts of Public Resource constitute trademark infringement in 
violation of Section 32 of the Lanham Act, 15 U.S.C. §§ 1 1 14. 

169. The aforesaid acts of Public Resource have been and continue to be intentional, 
willful and in bad faith. 



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170. Plaintiffs have been and are likely to be damaged by Public Resource's infringing 
and unlawful acts. 

171. The acts of Public Resource have caused and, unless enjoined by this Court, are 
likely to continue to cause Plaintiffs to suffer irreparable harm to their business, reputation and 
goodwill. 

172. Plaintiffs have no adequate remedy at law and are entitled to and seek injunctive 
relief as a result thereof pursuant to 15 U.S. C. § 1116. 

COUNT IV 

UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN UNDER 15 U.S.C. 

§ 1125(A)m 

173. Plaintiffs reallege and incorporate herein by reference Paragraphs 1 through 172 
of the Complaint as if fully set forth herein. 

174. As alleged above, ASTM owns all rights, title and interest in the ASTM Marks. 

175. As alleged above, NFPA owns all rights, title and interest in the NFPA Marks. 

176. As alleged above, ASHRAE owns all rights, title and interest in the ASHRAE 

Marks. 

177. Each of the ASTM Marks, NFPA Marks, and ASHRAE Marks is distinctive 
and/or has acquired secondary meaning. 

178. Plaintiffs have used their marks in commerce continuously and extensively in the 
United States for many years. As a result, the public associates each of Plaintiffs' marks with the 
relevant Plaintiff and Plaintiffs have built up valuable goodwill in their respective trademarks. 

179. Public Resource has used and continues to use Plaintiffs' marks on its copies of 
and/or rekeyed versions of Plaintiffs' Standards, without license or authorization from Plaintiffs. 



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1 80. Public Resource' s use of the ASTM Marks, NFPA Marks, and ASHRAE Marks is 
likely to cause confusion, to cause mistake and/or to deceive consumers as to the affiliation, 
connection, or association of Public Resource with Plaintiffs and/or as to the origin, sponsorship 
or approval of the standards posted on Public Resource's website. 

181. The aforesaid acts of Public Resource have been and continue to be intentional, 
willful and in bad faith. 

182. Plaintiffs have been and are likely to be damaged by Public Resource's infringing 
and unlawful acts. 

183. The acts of Public Resource have caused and, unless enjoined by this Court, are 
likely to continue to cause Plaintiffs to suffer irreparable harm to their business, reputation and 
goodwill. 

184. Plaintiffs have no adequate remedy at law and are entitled to and seek injunctive 
relief as a result thereof. 

COUNT V 

TRADEMARK INFRINGEMENT UNDER COMMON LAW 

185. Plaintiffs reallege and incorporate herein by reference Paragraphs 1 through 184 
of the Complaint as if fully set forth herein. 

186. As described above, ASTM owns all rights, title and interest in and to the ASTM 

Marks. 

187. As described above, NFPA owns all rights, title and interest in and to the NFPA 

Marks. 

188. As described above, ASHRAE owns all rights, title and interest in and to the 
ASHRAE Marks. 



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1 89. The ASTM Marks, NFPA Marks, and ASHRAE Marks are distinctive and 
Plaintiffs have built up valuable goodwill in their respective trademarks. 

190. Public Resource' s use of the ASTM Marks, NFPA Marks, and ASHRAE Marks 
infringes Plaintiffs' rights therein and is likely to cause confusion, to cause mistake and/or to 
deceive consumers as to the source, sponsorship and origin of the standards posted on Public 
Resource's website. 

191. The aforesaid acts of Public Resource constitute trademark infringement in 
violation of common law. 

192. The aforesaid acts of Public Resource have been and continue to be intentional, 
willful and in bad faith. 

193. Plaintiffs have been and are likely to be damaged by Public Resource's infringing 
and unlawful acts. 

194. The acts of Public Resource have caused and, unless enjoined by this Court, are 
Ukely to continue to cause Plaintiffs to suffer irreparable harm to their business, reputation and 
goodwill. 

195. Plaintiffs have no adequate remedy at law and are entitled to and seek injunctive 
relief as a result thereof. 

PRAYER FOR RELIEF 

Wherefore, Plaintiffs pray for judgment against Defendant as follows: 
(1) That Defendant, its officers, agents, servants, employees and attorneys, and all 
those in active concert with it or in participation with it, be permanently enjoined from all further 
unauthorized reproduction of any standards published by Plaintiffs, preparation of derivative 



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works based upon any standards published by Plaintiffs, and distribution of copies of any 
standards published by Plaintiffs by any means or method. 

(2) That Defendant, its officers, agents, servants, employees and attorneys, and all 
those in active concert with it or in participation with it, be permanently enjoined from the 
unauthorized use of the ASTM Marks, NFPA Marks, and/or ASHRAE Marks, as well as any 
colorable imitations thereof or confusingly similar marks. 

(3) That the Defendant be directed to file with the Court and serve upon Plaintiffs, 
within 30 days after entry of final judgment, a report in writing and under oath setting forth in 
detail the manner and form by which Defendant has complied with the provisions set forth in 
Paragraphs 1 and 2 of this Prayer for Relief. 

(4) That Plaintiffs be entitled to recover their reasonable attorneys' fees, costs of suit 
and interest. 

(5) That Plaintiffs be awarded any and all such other and further relief as this Court 
shall deem just and proper. 



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Dated: August 6, 2013 Respectfully submitted, 

/s/ Michael F. Clayton 



Michael F. Clayton (D.C. Bar: 335307) 
J. Kevin Fee (D.C. Bar: 494016) 
Jordana S. Rubel (D.C. Bar: 988423) 
Morgan, Lewis & Bockius LLP 
1111 Pennsylvania Ave., N.W. 
Washington, D.C. 20004 
Telephone: 202.739.5215 
Email: mclayton@morganlewis.com 

jkfee@morganlewis.com 

jrubel@morganlewis.com 

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

I si Anjan Choudhury 

Anjan Choudhury (D.C. Bar: 497271) 

Munger, ToUes & Olson LLP 

355 South Grand Avenue, 35th Floor 

Los Angeles, CA 90071 

Tel: 213.683.9100 

Email: Anjan.Choudhury@mto.com 

Kelly M. Klaus 
Jonathan H. Blavin 
Michael J. Mongan 
Munger, ToUes & Olson LLP 
560 Mission St., 27th Floor 
San Francisco, CA 94105 
Tel: 415.512.4000 
Email: Kelly.Klaus@mto.com 

Jonathan.Blavin@mto.com 

Michael.Mongan@mto.com 

Counsel for National Fire Protection Association, Inc. 
I si Jeffrey S. Bucholtz 



Jeffrey S. Bucholtz (D.C. Bar: 452385) 
King & Spalding LLP 
1700 Pennsylvania Avenue, NW, Ste. 200 
Washington, DC 20006-4707 



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Tel: 202.737.0500 

Email: jbucholtz@kslaw.com 

Kenneth L. Steinthal 
Joseph R. Wetzel 
King & Spalding LLP 
101 Second Street, Ste. 2300 
San Francisco, CA 94105 
Tel: 415.318.1211 
Email: ksteinthal@kslaw.com 
j wetzel @ kslaw. com 

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



51