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1 KELLY M. KLAUS (State BarNo. 161091)
kelly.klaus@mto.com
2 BRYAN H. HECKENLIVELY (State Bar No. 279140)
bryan.heckenlively@mto.com
3 ROSE LEDA EHLER (State Bar No. 296523)
Rose.Ehler@mto.com
4 MUNGER, TOLLES & OLSON LLP FILED/ENDORSED
560 Mission Street
5 Twenty-Seventh Floor
San Francisco, Califomia 94105-2907 DEC 2 7 2021
6 Telephone: (415)512-4000
Facsimile: (415) 512-4077 By:. 1. Romo
Deputy Clerk
7
Attomeys for Proposed Intervenor
8 National Fire Protection Association, Inc.
9
LOUIS Y. LEE (State Bar No. 315753)
10 louis.lee@morgartiewis.com
MORGAN, LEWIS & BOCKIUS LLP
11 One Market, Spear Street Tower
San Francisco, CA 94105-1596
12
J. KEVIN FEE (admitted pro hac vice)
13 kevin.fee@morgartiev^s.com
JANE W. WISE (admitted pro hac vice)
14 jane.wdse@morgaitiewis.com
MORGAN, LEWIS & BOCKIUS LLP
15 1111 Permsylvania Ave. NW
Washington, DC 20004-2541
16
Attomeys for Proposed Intervenor
17 Intemational Code Coimcil, Inc.
18 SUPERIOR COURT OF THE STATE OF CALIFORNIA
19 COUNTY OF SACRAMENTO
20
21 Public.Resource.Org., Inc., CaseNo. 34-2021-80003612
22 Petitioner, Declaration of Bryan H. Heckenlively
23 vs. Filed In Support of Interveners' Brief in
Opposition to the Petition for a Writ of
24 Califomia Office of Administrative Law, and Mandate
the California Building Standards
25 Commission, Date: January 21, 2022
Time: 1:30 p.m.
26 Respondents. Dept.: 27
Judge: Hon. Steven M. Gevercer
27
Action Filed: March 17. 2021
28
Declaration of Bryan H. Heckenlively ISO Opposition to PRO's Petition for a Writ of Mandate
1
DECLARATION OF BRYAN H. HECKENLIVELY
2
I, Bryan H. Heckenlively, declare as follows:
3
1. I am an attomey at Munger, Tolles & Olson LLP and counsel of record for Plaintiff
4
National Fire Protection Association, Inc. ("NFPA") in this matter. The contents of this
5
declaration are based on my personal knowledge from my investigation and that of attomeys and
6
professionals in my law firm working at my direction. If called as a witness, I could and would
7
testify competently to the facts in this declaration.
8
2. Attached as Exhibit A to this declaration is a tme and conect copy of Carl
9
Malamud's Testimony, "An Edicts of Govemment Amendment," before the House Judiciary
10
Committee, Courts, Intellectual Property, and the Intemet Subcommittee on January 14, 2014,
11
which I accessed and dowrtioaded from °
This confhct edso extends to the federal level. When the Office of the Federal Register accepted a pubhc
petition to increase avaUeibihty of stemdards incorporated by reference, they ultimately responded that
"we agree with the petitioners that our regulations need to be updated, however the petitioners
proposed changes to our regulations that go beyond our statutory authority."'"' Likewise, the
Administrative Conference of the United States, while giving a passing nod to the constitutional
provisions of equal protection and due process noted that "there is some ambiguity in current law
regarding the continuing scope of copyright protection for materieds incorporated into regulations" and
then declined to "attempt to resolve the questions of copyright law."i02
The Administrative Conference of the United States, the Office of the Federal Register, the Office of
Management and Budget, and the Depeurtment of Transportation have aU wrestied with this issue, but
their hands are tied by contradictory pohcies such as those advanced in OMB Circular A-119, which
states "if a voluntary standard is used emd pubhshed in an agency document, your agency must observe
and protect therightsof the copyright holder and any other similar obhgations."'03 To be very clear, this
pohcy does not preclude an agency and a standards development organization voluntarily making a
stemdard available as required by law and pubhc pohcy, but the clause has been seized upon by those
wishing to protect their current mode of operation.
It is ironic that the Incorporation by Reference mechanism has been used as a way of keeping the law
under wraps. IBR became part of federal law as part of the landmark 1966 amendments to the
Administrative Procedures Act (APA) in a bill entitled "Clarifying and Protecting the Right ofthe Pubhc to
Information."'"* The bill was based on the fact that while the original 1946 APA was based upon "the
theory that administrative operations and procedures are pubhc property which the general pubhc,
rather than a few speciahsts or lobbyists, is entitled to know" in reahty, the APA had become an "excuse
for withholding. "105
Congressman Moss spent 11 years working tirelessly on these amendments, stating that "inherent in the
right offireespeech and offireepress is therightto know."'"3 Congressman Moss was joined in this
bipartisem effort by Congressman Donald Rumsfeld, who stated that "it is our intent that the courts
interpret this legislation broadly, as a disclosure statute and not as an excuse to withhold information
from the pubhc."'"? Congressman Rumsfeld was joined by Congressmem Bob Dole, who stated "in a
Edicts of Govemment Page 13
democracy, the pubhc must be weU informed if it is to intelhgentiy exercise the franchise."'"3 The
legislation passed the House unanimously by a vote of 307 to 0.
This legislation had as part and peurcel of disclosure arightto copy. The accompanying report stated
"federal agency records which are avaflable for pubhc inspection also must be aveuleible for copying,
since therightto inspect records is of httle value without therightto copy them for future reference. "'"9
When the Office of the Federal Register implemented these provisions, it stated copies of any materials
incorporated by reference must be "readily obtained with maximum convenience to the user."""
A clear statement of these issues, and the overriding pohcy consideration that the law must be aveiilable
to an informed citizenry, was pubhshed by the U.S. Copyright Office in its official statement of pohcy:
Edicts of govemment, such as judicial opinions, administrative rulings, legislative enactments,
pubhc ordinemces, and similar official legal documents are not copyrightable for reasons of pubhc
pohcy. This apphes to such works whether they are Federal, State, or loced as well as to those of
foreign governments.'"
This clear and compelhng statement reflects long-standing Copyright Office pohcy that "material as the
laws and govemmental rules emd decisions must be freely avaUed3le to the pubhc and made known as
widely as possible; hence there must be no restriction on the reproduction and dissemination of such
documents.""2
As this Committee considers revisions to the Copyright Act, there is one simple chemge that would medce
a world of difference to the functioning of our system of govemment, which is to specify, as the Copyright
Office stated, that "edicts of govemment... eire not copyrightable for reasons of pubhc pohcy." This
amendment to the copyright act was recently endorsed in a petition signed by 115 of the leading law
librarians and law professors in the country, and is included as an appendix to this testimony. "3
This simple chemge would make it clear that the law belongs to the people. If we give those without great
means a substandard web site as their only access to the law, we have put a poU teix on access to justice.
When we require a hcense to speak the law, we have made a mockery of freedom of speech. When we
deliberately restrict access to the law—^including the pubhc seifety codes that protect our homes,
famihes, and workplaces—^we have violated thefiindamentalprinciple of the mle of law that underpins
our democracy.
The Federal Register came about because regiUations were being created but the pubhc had no means
of knowing what those regulations were." * In the 1936 hearings that led to the passage of the Federal
Register Act, Congressman D.J. Driscoll reminded this Committee ofthe Emperor Cahgula, "who tacked
his edicts so high on the walls of the Forum that nobody could read them and then punished the people
for violations of the edicts."' 's
Professor Erwin Griswold of Harvard Law School, at the prodding of Justice Brandeis, wrote the semined
paper that led to the passage ofthe act."3 In his testimony,"? he reminded this Committee ofthe words of
Jeremy Bentham:
We hear of tyremts, and those cmel ones; but whatever we may have felt, we have never heard of
anyfiruantin such thought cruel, as to punish men for disobedience of laws and orders which he
has kept themfiromthe knowledge of. "3
Page J4 Edicts of Govemment
In introducing the Senate version of the 1966 amendments to the Administrative Procedure Act, Senator
RusseU B. Long quoted the words of James Madison, who was chairman of the committee which drafted
the First Amendment:
Knowledge vvill forever govem ignorance, and a people who mean to be their own
governors must arm themselves with the power knowledge gives. A popular government
without popular information or the means of acquiring it, is but a prologue to a farce or a
tragedy or perhaps both."9
That efforts to pubhsh edicts of gbvemment in the United Stiates have become the subject of threats, suits
—and even the threat of jaU—is a farce or a tragedy or perhaps both. Congress cem meike it cleeur that the
law belongs to the people and we edl have therightto read, know, and speeik the law.
Thank you for the opportunity to appear before you today. I would welcome any questions you might
have.
Petition for an Edicts of Government Amendment
Note that signatories to this petition have only endorsed the text that foUows emd have not reviewed nor
have they endorsed the testimony of Carl Malamud before the House Judiciary Committee. Please note
also that affihations eire hsted for identffication only and do not imply institutional endorsement.
Text of the Petition
To promote access to justice, equal protection, innovation in the legal meurketplace, and to codify long-
standing pubhc pohcy, the Copyright Act of the United States, 17 U.S.C, should be amended as foUows:
Edicts of govemment, such as judicial opinions, administrative rulings, legislative enactments, public
ordinances, and similar official legal documents are not copyrightable for reasons of public policy.
This applies to such works whether they are Federal, State, or local as well as to those of foreign
governments.
This language comes directiy from Section 206.01, Compendium of Office Practices II, U.S. Copyright
Office (1984). It reflects clear and estabhshed Supreme Court precedent on the matter in cases such as
Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) and Banks v. Manchester, 128 U.S. 244 (1888). The law
belongs to the people, who should befi'eeto read, know, and speedc the laws by which they choose to
govem themselves.
Signatories to the Petition
1. Jasmine C. Abdel-Khahk, Associate Professor, UMKC School of Law
2. Beth Adelman, Director of the Charles B. Sears Law library, SUNY Buffalo
3. Juhe Ahrens, Director of Copyright and Fair Use, Center for Intemet and Society, Stanford Law
School
4. John R. AUison, Spence Centennied Professor of Business and Professor of InteUectued Property,
Univ. of Texas at Austin
5. Pat Aufderheide, University Professor, American University
6. Meirgo A. Bagley, Professor of Law, University of Virginia School of Law
7. Ann Bartow, Professor of Law, Pace Law School
8. Karen S. Beck, Manager, Historical and Special Collections, Heun^eurd Law School Library
9. Yochai Benkler, Jack N. and Lilhan R. Berkman Professor for Entrepreneuried Legal Studies,
Heurvard Law School
10. Mehssa J. Bemstein, Library Director and Professor of Law, University of Utah
11. Robert C. Bierring, Jr., Walter Perry Johnson Professor of Law, UC Berkeley Law School
12. Annemarie Bridy, Associate Professor, CoUege of Law, University of Idaho
13. Wilheun J. Bmtocao, Adjunct Professor of InteUectual Property Law, University of La Veme
College of Law
14. Dan L. Burk, ChanceUor's Professor of Law, University of Cahfomia, Irvine
Page 16 Appendix: Petition for an Edicts of Govemment Amendment
15. Michael A. Carrier, Professor of Law, Rutgers Law School
16. Michael W. CarroU, Professor of Law, American University, Washington CoUege of Law
17. Brian W. Carver, Assistant Professor, University of Cedifomia, Berkeley
18. Carol Chomsky, Professor of Law and Associate Dean for Academic Affairs, University of
Minnesota Law School
19. Margaret Chon, Donald and Lynda Horowitz Professor for the Pursuit of Justice, Seattle University
School of Law
20. Ralph D. Chfford, Professor of Law, University of Massachusetts School of Law
21. Juhe E. Cohen, Professor of Law, Georgetown University Law Center
22. Kevin Emerson Collins, Professor of Law, Washington University School of Law
23. David G. Cowan, Vice President and Director of Library Services, South Texas CoUege of Law
24. Susan Crawford, Professor of Law, Cardozo Law School
25. Catherine Cmmp, Staff Attomey, ACLU
26. Richard A. Danner, Rufty Research Professor of Law and Senior Associate Dean, Duke University
School of Law
27. EsteUe Derclaye, Professor of InteUectual Property Law, University of Nottingheun
28. Pamela Edwards, Professor of Law and Director, Center for Diversity in the Legal Profession,
CUNY
29. MicheUe Vescio Evenson, Fellow, Center for Law and InteUectual Property, Thomas Jefferson
School of Law
30. Thomas G. Field, Jr., Emeritus and Visiting Professor of Law, UNH School of Law
31. John Flym, Professor Emeritus, Northeastem Univ. School of Law
32. A. Michael Froomkin, Laurie Stivers emd MitcheU Rubenstein Distinguished Professor of Law,
Univ. of Mieutti School of Law
33. Jon M. Garon, Professor of Law, Northem Kentucky University Chase CoUege of Law
34. James Gibson, Professor of Law, University of Richmond
35. Eric Goldman, Professor, Santa Clara University School of Law
36. Jerry Goldman, Research Professor of Law, UT Chicago-Kent CoUege of Law
37. EUen P. Goodman, Professor, Rutgers University School of Law
38. Jennifer Stisa Granick, Director of CivU Liberties, Stanford Center for Intemet and Society
39. James Grimmehnann, Professor of Law, New York Law School
40. David Halperin, Of Counsel, Pubhc.Resource.Org
41. WUham D. Henslee, Professor of Law, FAMU CoUege of Law
42. Laura A. Heymann, Class of 2014 Professor of Law, CoUege of WiUiam and Mary
Appendix: Petition for an Edicts of Govemment Amendment Page 17
43. Kenneth J. Hirsh, Director of the Law Libreiry emd I.T. emd Professor of Practice, University of
Cincinnati CoUege of Law
44. Cynthia Ho, Professor of Law, Loyola University of Chicago School of Law
45. Dem Hunter, Professor of Law, New York Law School
46. Todd T. Ito, Reference Librarian and Lecturer in Law, University of Chicago Law School
47. Conrad A. Johnson, Chnical Professor of Law, Columbia University School of Law
48. Janis L. Johnston, Associate Professor of Law, University of Uhnois
49. Faye E. Jones, Director emd Professor, Legal Research Center, Florida State University
50. Dennis S. Karjala, Jack E. Brown Professor of Law, Arizona State University
51. Mehnda Kent, Manager, Research Services, Harvard Law School Libreury
52. Ian Kerr, Professor of Law, University of Ottawa
53. Minjeong Kim, Associate Professor, Colorado State University
54. Anne Khnefelter, Director of the Law Library, University of North Carolina
55. Amy Lemders, Distinguished Professor of Law, Pacffic McGeorge School of Law
56. Seurah Hooke Lee, Assistant Dean and Director, Information and Research Services, Northeastem
School of Law Library
57. Richard Leiter, Director and Professor, Schmid Law Library, University of Nebraska CoUege of
Law
58. Mark A. Lemley, Wilheim H. Neukom Professor, Stanford Law School
59. Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School
60. Yvette Joy Liebesman, Assistant Professor of Law, Saint Louis University
61. Joseph P. Liu, Professor of Law, Boston CoUege Law School
62. Lee Ann W. Lockridge, David Weston Robinson Professor of Law, Louisiana State University
63. J. Paul Lomio, Library Director and Lecturer in Law, Stanford Law School
64. Lydia Pallas Loren, Kay Kitagawa and Andy Johnson-Laird IP Faculty Scholar and Prof, of Law,
Lewis & Clark Law School
65. Brian J. Love, Assistant Professor, Santa Cleira University School of Law
66. Carl Medamud, President and Founder, Pubhc.Resource.Org
67. Susan Nevelow Mart, Associate Professor and Director of the Law Library, University of Colorado
at Boulder
68. John Mayer, Executive Director, Center for Computer-Assisted Legal Instmction
69. Mark P. McKeima, Professor of Law , Notre Deune Law School
70. Hiram Melendez-Juarbe, Associate Professor, University of Puerto Rico Law School
Page 18 Appendix: Petition for an Edicts of Government Amendment
71. Michael J. Meurer, Professor of Law, Boston Univ. School of Law
72. Courtney Minick, Attomey, Justia.com
73. Deirdre K. MuUigem, Assistant Professor, UC Berkeley School of Infoimation
74. Ira Steven Nathenson, Associate Professor of Law, St. Thomas University School of Law
75. Charles R. Nesson, Weld Professor of Law, Harvard Law School
76. Beth Noveck, Professor of Law, New York Law School
77. Tyler T. Ochoa, Professor of Law, Santa Clara University School of Law
78. Harlan Onsmd, Professor, University of Maine
79. Sean Pager, Associate Professor of Law, Michigan State University
80. MicheUe Pearse, Senior Research Librarian, Heirveurd Law School Libreiry
81. Richeurd J. Peltz-Steele, Professor of Law, University of Massachusetts Dartmouth
82. Aaron Perzanowski, Associate Professor of Law, Case Westem Reserve University School
83. Laura QuUter, Copyright Attomey and Information Pohcy Librarian, University of Massachusetts
Amherst
84. R. Anthony Reese, ChanceUor's Professor, UC Irvine School of Law
85. Blake Reid, Staff Attomey, Institute for Pubhc Representation, Georgetown Law
86. Michael Risch, Associate Professor of Law, Villanova University School of Law
87. Matthew Sag, Professor, Loyola University Chicago School of Law
88. Zahr Seud, Assistant Professor of Law, University of Washington School of Law
89. Pam Samuelson, Richard M. Sherman Distinguished Professor of Law, UC Berkeley Law School
90. Sharon K. Semdeen, Professor of Law, Hamhne University School of Law
91. Joshua D. Samoff, Professor of Law, DePaul University CoUege of Law
92. Amndhati Satkalmi, Senior Research Librarian, St. John's University School of Law
93. Roger E. Schechter, Professor of Law, George Washington University Law School
94. Jason M. Schultz, Assistant Chnical Professor of Law, UC Berkeley School of Law
95. Wendy Seltzer, FeUow, Berkman Center, Harvard University
96. Jessica Silbey, Professor of Law, Suffolk University Law School
97. Joshua M. Silverstein, Professor of Law, University of Arkansas at Littie Rock
98. David A. Simon, FeUow, Project on Law and Mind Sciences, Harvard Law School
99. Christopher Jon Sprigman, Class of 1963 Research Professor, University of Virginia School of Law
100. Tim Stanley, Attomey, Justia.Com
101. Katherine Strandburg, Professor of Law, New York University School of Law
Appendix: Petition for an Edicts of Govemment Amendment Page 19
102. Peter Suber, Professor, Earlham CoUege
103. Barbara GeUis Traub, Head of Reference and Instmctional Services, St. John's University School
of Law
104. Samuel E. Trosow, Associate Professor, University of Westem Ontario
105. Geertrui Van Oveiwalle, Professor of Law, University of Leuven
106. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
107. Erika V. Wayne, Deputy Director and Lecturer in Law, Stanford Law School Library
108. Beth WiUiams, Director of the Library and Information Technology Services, Louisiana State
University Law Center
109. Cicely WUson, Librarian, Justia.com
110. Jane K. Winn, Charles I. Stone Professor, University of Washington School of Law
111. Suzanne Wones, Executive Director, Harvard Law School Library
112. Richard W. Wright, Distinguished Professor of Law, UT Chicago-Kent CoUege of Law
113. Alfred C. Yen, Professor of Law, Boston CoUege Law School
114. Sue Zago, Director of Law Library, University of New Heimpshire
115. Jonathem Zittrain, Professor of Law and Vice-Dean for Library and Information Resources,
Harveurd Law School
' John Adams, Thoughts on Govemment in Revolutionary Writings, 1775-1783 (Library of America: 2011), p. 48.
2 The doctrine of ignorantia legis neminem excusat has been repeatedly affirmed. See, e.g.. United States v.
Intemational Minerals & Chem. Corp., 402 U.S. 558, 563 (1971). ("The principle that ignorance of the law is no
defense applies whether the law be a statute or a duly promulgated and published regulation.")
3 See Carl Malamud, 12 Tables of Code, January 7, 2013. https://law.resource.org/pub/12tables.htitil
* Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge Univiversity Press, 2004), p. 34. The
classic statement of the doctrine is A.V. Dicey, Introduction of the Law of the Constitution (1885, reprinted by
Liberty Fund: 1982).
B Robert C. Byrd, The Senate of the Roman Republic: Addresses on the History of Roman Constitutionalism (U.S.
Govemment Printing Office, 1995), pp. 33, 128, 135. Public.Resource.Org has edso made these lecture aveiilable on
YouTube. http://www.youtube.com/playlist?list=PLlE1633114E0E358F
6 Thomas Henry Bingham, The Rule of Law (Penguin Press: 2011), pp. 37-38.
? Cf. Nieman v. VersusLaw, Inc., No. 12-2810 (7th Cir. Mar. 19, 2013). ("The First Amendment privileges tiie
publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them
concealed.")
B Cf. Harper v. Va. State Bd.of Elections, 383 U.S. 663, 666 (1966). (A state violatestiieEqual Protection Clause
"whenever it makes the affluence of the voter or payment of any fee an electoral standard"); See also Magna Carta
cl. 29 (1297). ("We will sell to no man, we will not deny or defer to any man either Justice or Right.")
9 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). https://law.resource.org/pub/us/case/reporter/US/33/33.US.
591.html
10 Craig Joyce, Reporters of Decisions of the Supreme Court of the United States, University of Houston Law Center No.
2005-A-l 1. http://papers.ssm.com/sol3/papers.cfm?abstract_id=800884
" Wheaton V. Peters, op. cit.
'2 Banks v. Manchester, 128 U.S. 244 9 S.Ct. 36 32 L.Ed. 425 (1888) quoting Nash v. Lathrop, 142 Mass. 29, 35, 6 N. E.
Rep. 559 (1886). https://law.resource.org/pub/us/case/reporter/US/128/128.US.244.html
13 Veeck v. Soutiiem Building Code Congress Intemational, Inc., 293 F.3d 791 (Sth Cir. 2002). https://
law.resource.org/pub/us/case/reporter/F3/293/293.F3d.791.99-40632.htinl
'* See Cory Doctorow, City of Chicago and Public-Spirited Hackers Unveil the Chicago City Code, Boing Boing,
November 17, 2013, http://boingboing.net/2013/ll/17/city-of-chicago-and-public-spi.htmlSee a7so Tom Lee, 7?ie
D.C. Code is Open —Come Hack on It!, Sunlight Foundation, April 4, 2013, http://sunlightfoimdation.com/blog/
2013/04/04/the-dc-code-is-open-come-hack-on-it/
's The official web site is maintained for the City of Chicago by American Legal Publishing, http://
www.amlegal.com/library/il/chicago.shtml Cf Chicago Decoded, http://chicagocode.org/
'B The District of Columbia contracts with LexisNexis for its codification services, who provide a primitive web site.
http://www.lexisnexis.com/hottopics/dccode/ Cf. DCcode. http://dccode.org/
'? Letter from Carl Malamud, Public.Resource.Org, to Hon. Scott Bedke, Idaho State Legislature, May 30, 2013.
https://law.resource.org/piib/us/code/id/id.gov.20130530.pdf
'3 Intemet Archive, Official State Codes Collection, https://archive.org/details/govlaw
'9 Letter from Bradlee R. Frazer on behalf of the Idaho State Legislature to Carl Malamud, Public.Resource.Org, July
12, 2013. https://law.resource.org/pub/us/code/id/id.gov.20130712.pdf
20/bid.
Appendix: Petition for an Edicts of Govemment Amendment Page 21
^' Public.Resource.Org paid $913.31 on April 9, 2013 for the Official Idaho Code, https://law.resource.org/ifcs/
lexis.com.20130409.pdf
22 LexisNexis, Idaho Code. ("Smart Idaho practitioners tum to LexisNexis' Idaho Code as the only official source in
Idaho for primary law.") http://www.lexisnexis.com/store/catalog/booktemplate/productdetcdl.jsp?prodId=6981
23 Letter from Carl Malamud, Public.Resource.Org, to Hon. Ben Ysura, Secretary of State of Idaho, July 15, 2013.
https://Iaw.resource.org/pub/us/code/id/id.gov.20130715.pdf
2* U.S. Const. Amend. XI. (The 11th Amendment establishes sovereign immunity and prohibits "any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.")
2s Letter from Hon. Josh McKoon, Georgia State Senate, to Carl Malamud, Public.Resoiurce.Org, July 25, 2013.
https://law.resource.org/pub/us/code/ga/ga.gov.20130725.pdf
26 Letter from Carl Malamud, Public.Resource.Org, to Hon. Josh McKoon, Georgia State Senate, July 30, 2013.
https://law.resource.org/pub/us/code/ga/ga.gov.20130730.pdf
2?lietter from Hon. Josh McKoon, Georgia State Senate, to Carl Malamud, Public.Resource.Org, August 15, 2013.
https://law.resource.org/pub/us/code/ga/ga.gov.20130815.pdf
2BI,etter from Larry A. Schemmel, Special Assistant Attomey General of Mississippi, to Carl Malamud,
Public.Resource.Org, October 7, 2013. https://law.resource.org/pub/us/code/ms/ms.gov.20131007.pdf
29 While a few states eissert copyright over state statutes, at least 25 states attempt to assert some kind of copyright
control over legal materials such as state regulations or court opinions. See Tina S. Ching and Emily Feltren, Update
on the National Inventory of Leged Materials, American Association of Law Libraries, Febmary 1, 2012. http://
blog.law.comeU.eduyvoxpop/2012/02/01/protecting-access-one-entry-at-a-time-an-update-on-the-nationed-
inventory-of-legal-materials/
30 State of Virginia, Legislative Information System, Code of Virginia, http://lis.virginia.gov/cgi-bin/legp604.exe?
000+cod+TOC C/Virginia Decoded, http://vacode.org/
31 Waldo Jaquith, The State Decoded: Legal codes, for humans, http://www.statedecoded.com/
32 Knight Foundation, The State Decoded, 2011 Knight News Challenge. (Amount: $165,000) http://
www.knightfoundation.org/grants/20110158/
33 U.S. Chemical Safety and Hazard Investigation Board, Investigation Report: Refinery Explosion and Fire, Report No.
2005-04-I-TX, March, 2007. http://www.csb.gOv/assets/l/19/CSBFinalReportBP.pdf
3* National Transportation Safety Board, Pacific Cas and Electric Company Natural Gas Transmission Pipeline Rupture
andFire, NTSB/PAR-11/01, PB2011-916501. http://www.ntsb.gov/doclib/reports/2011/PAR1101.pdf
35 Jxiifikar Aii Manik and Jim Yardley, Bangladesh Finds Gross Negligence in Factory Fire, New York Times, December
17, 2012. http://nytimes.coin/2012/12/18/world/asia/bangladesh-factory-fire-caused-by-gross-negligence.html
36 Julfikar Aii Manik and Jim Yardley, Building Collapse in Bangladesh Leaves Scores Dead, New York Times, April 24,
2013. http://nytimes.com/2013/04/25/world/cisia/bangladesh-building-collapse.html
3? Pub. L. No. 104-113, March 7, 1996. http://www.gpo.gov/fdsys/pkg/PIiAW-104pubI113/pdf/
PLAW-104publll3.pdf
38 Office of Management and Budget, Federal Participation in the Development and Use of Voluntary Consensus
Standards and in Conformity Assessment Activities, Circuleur No. A-119 Revised, Febmary 10, 1998, http://
www.whitehouse.gov/omb/circulars_al 19
39 Public.Resource.Org, Public Safety Codes Incorporated by Law, Last updated July 31, 2012. https://
law.resource.org/pub/us/code/safety.html
40 Veeck v. Soutiiern Building Code Congress hitemational, Inc., 293 F. 3d 791 (5tii Cir. 2002), yi 36.
Page 22 Appendix: Petition for an Edicts of Govemment Amendment
*' Quoting HoweU v. Miller, 91 F. 129, 137 (6tii Cir. 1898).
*2 Veeck at ^ 35.
*3 Titie 24, Califomia Code of Regulations, https://law.resource.org/pub/us/code/bsc.ca.gov/
** For a comparison of scanned images with the transformed versions see Public.Resource.Org, 12 Tables of Code,
Table 10, Table of Transformative Use, January 7, 2013. https://law.resource.org/pub/tablelO.html
45 World Wide Web Consortium, Mathematical Markup Language (MathML) Version 3.0, October 21, 2010. http://
www.w3.org/TR/MathMIj3/
« See Section 508 Amendment to the Rehabilitation Act of 1974, 29 U.S.C. § 749d.
*? World Wide Web Consortium, Scalable Vector Graphics (SVG) 1.1, Second Edition, August 16, 2011. http://
www.w3.org/TR/SVGll/
*3 http://www.iccsafe.Org/content/pages/freeresoiu:ces.aspx
*9 http://shop.iccsafe.org/ecodes/codes-plus
50 Intemational Code Council, i?etum of Organization Exempt from Income Tax, Form 990, 2011. http3://archive.org/
download/IRS990-2012_l l_EO/36-3999004_990O_201112.pdf
51 Incorporation by Reference is govemed by 1 CFR 51 and 5 U.S.C. § 552(a).
52 See, e.g., E-Govemment Act of 2002, 44 U.S.C. § 101 ("To promote use of the Intemet and other information
technologies to provide increased opportunities for citizen participation in Government.") and President Obama's
Open Government Directive, MlO-06, December 8, 2009 ("each agency shall take prompt steps to expand access to
information by making it available online in open formats").
53 Administrative Conference ofthe United States, Incorporation by Reference, Administrative Conference
Recommendation 2011-5, December 8, 2011. http://www.acus.gov/sites/default/files/Recommendation-2011-5-
Incorporation-by-Reference.pdf
54 Pipeline Safety Act of 2011, Pub. L. No. 112-90, January 3, 2012, § 24.
85 Office of tiie Federal Register, Incorporation by Reference, 78 FR 60784, October 2, 2013.
55 Public.Resource.Org, Notice of Incorporation, May 15, 2015. https://law.resource.org/pub/us/cfr/notice.sdo.
20120315_to.pdf
5? https://law.resource.org/pub/us/cfr/manifest.us.htmI
58 29 CFR 1910 ef. seq.
59 49 CFR 172 et. seq.
60 49 CFR 571 et. seq.
6'46 CFR 111 ef. seq.
62 10 CFR 430 et. seq.
63 Joe Bhatia, ANSI's New IBR Portal Provides Access to Standards Incorporated by Reference, Administrative
Conference of the United States Blog, November 4, 2013.
6* Email from B. Brett Heavner on behalf of the American Petroleum Institute to the Intemet Archive, November 2,
2012. https://law.resource.org/rfcs/api.20121102.pdf
66 Email from Carl Malamud, Public.Resource.Org, to B. Brett Heavner via the Intemet Archive, November 3,2012.
https://law.resource.org/rics/api.20121103.pdf
Appendix: Petition for an Edicts of Govemment Amendment Page 23
66 Email from Eraj Siddiqui on behalf of SMACNA to Carl Malamud, Public.Resource.Org, January 10, 2013. https://
law.re3ource.org//rfcs/smaccna.20130110.from.pdf See SMACNA, HVAC Air Duct Leakage Test Manual (RS-35)
(1985) as required by 10 CFR 434.403.2.9.3. https://law.resource.org/pub/us/cfr/ibr/005/smacna.hvac.1985.pdf
67 Public.Resource.Org v. Sheet Metal and Air Conditioning Contractors' National Association, Inc., 3:13-cv-00815,
March 22, 2013, https://archive.org/details/gov.uscourts.cand.263568/
68 Stipulated Judgement, Public.Resource.Org v. SMACNA, July 9, 2013. https://archive.org/download/
gov.uscourts.cand.263568/gov.uscourts.cand.263568.39.0.pdf
69 American Society for Testing and Materials et. al. v. Public.Resource.Org, Inc., l:13-cv-01215, Augusts, 2013.
https://archive.org/details/gov.uscourts.dcd. 161410/
^0 National Fire Protection Association, Media Statement Regarding Lawsuit Against Public.Resource. Org, August 6,
2013. http://www.nfpa.org/press-room/news-releases/2013/media-statement
?' NFPA Insider, NFPA President Jim Shannon Talks About Copyright Lawsuit. October 8, 2013. http://
n^atoday.bIog.nfpa.org/2013/lO/n^a-president-jim-shaimon-talks-about-copyright-lawsuit.html
?2 NFPA, Fire Sprinkler Initiative: Bringing Safety Home, http://www.firesprinklerinitiative.org/
?3NFPA, Coalition for Fire-Safe Cigarettes, http://www.firesafecigarettes.org/
?* See, e.g., Eight professional reference books that make heavy use of standards, https://www.google.com/search?
q="'Carl+MaleUiiud"&btnG=Seeu:ch+Books See also Seven Intemet RFCs. http://www.rfc-editor.org/search/
rfc_search_detail.php?author=malamud
?5 Statement of Jim Shemnon on behalf of the National Fire Protection Association, June 1,2012 submitted to the
Office of the Federal Register, Request for Comments, Federal Register, Vol. 77, No. 38, Febmary 27, 2012, NARA
12-0002. https://law.resource.org/pub/us/cfr/regulations.gov.docket.01/0900006481025751.pdf
^6 John Markoff, Plan Opens More Data to Public, N.Y. Times, October 22, 1993. http://www.nytimes.com/
1993/10/22/business/plan-opens-more-data-to-public.html
?? John Markoff, U.S. Is Urged to Offer More Data On Line, N.Y. Times, May 4, 1998. http://www.nytimes.com/
1998/05/04/business/us-is-urged-to-otfer-more-data-on-line .html
78 National Fire Protection Association, Report of Organization Exempt From Income Tax, Form 990, 2011. https://
archive.org/download/IRS990-2012_10_EO/04-1653090_990_201112.pdf
?9 American National Standards Association, Report of Organization Exempt From Income Tax, Form 990, 2012.
https://archive.org/download/IRS990-2013_07_EO/13-1635253_990_201212.pdf
80 Public.Resource.Org, 12TabIesofCode, Table 3, Table of Revenue and Remuneration, January 7, 2013. https://
law.resource.org/pub/teible03.html
81 Letter from Speaker John Boehner and Chairman Darrell Issa to Carl Malamud, Jemuary 5, 2011. https://
law.resource.org/rtcs/gov.house.20110105.pdf
82 National Fire Protection Association, Website Provides Resources for National Electrical Code Adoption, Jime 11,
2013. http://www.nfpa.org/press-room/news-releeises/2013/electrical-code-coalition-laimches-website
83 See, e.g., NFPA, NFPA 101 Life Safety Code now required by Dept of Vet Affairs in state homes nationwide, March 29,
2011. http://www.n^a.org/press-room/news-releases/2011/latest-from-n^a-lOl-life-safety-code-now-required-
by-dept-of-vet-eiffairs-in-state-homes-nationwide
84 BuildStrong Coaltion, Making America Stronger, http://www.buildstrongamerica.com/
^ ANSI, ANSI Launches Online Portal for Standards Incorporated by Reference, October 28, 2013. http://
www.ansi.org/news_publications/news_story.aspx?menmd=7&articleid=3771
Page 24 Appendix: Petition for an Edicts of Govemment Amendment
86 United States National Committee of Uie lEC, Meeting Minutes, USNC Council 576, August 13, 2013. http://
publicaa.ansi.org/sites/apdl/Documents/Standards%20Activities/Intemational%20Standardization/IEC/USNC
%20COUNCILAJSNC%20COUNCIL%20576%20Minutes.pdf
8? Statement of ASHRAE, March 30, 2012, submitted totiieOffice of the Federal Register, Request for Comments,
Federal Register, Vol. 77, No. 38, Febmary 27, 2012, NARA 12-0002. https://law.resource.org/pub/us/cfr/
regulations, gov.docket.01/0900006480fe4f55 .pdf
88 Based on an analysis of published ASHRAE techniced committee rosters on December 15, 2013. Note that not all
technical committees publish their rosters and not all that do publish affiliations of their members, http://
www.ashraetcs.org/
89 ASHRAE DOE Washington Fellowship, last viewed 12/1/2013. https://www.ashrae.org/govemment-afiairs/
ashrae-doe-weishington-fellowship
90 Joshua Kneifel, Benefits and Costs of Energy Standard Adoption in New Commercial Buildings, NIST Special
Publication 1147, Febmary 2013. http://nvlpubs.rust.gov/nistpubs/SpecialPublications/NIST.SP.1147.pdf
91 ANSL^ASHRAE/IES Standard 90.1-2010, Energy Standard for Buildings Except Low-Rise Residentied Buildings eis
incorporated by law in 34 Tex. Admin. Code Tit 34, Part 1, Chapter 19, Rule 19.32. https://law.resource.org/pub/us/
code/ibr/ashrae.90.1 .ip.2010.pdf
92 http://usaspending.gov/explore?recipientid=001963206&recipientname=NFPA&fiscal_year=all
93 http://usaspending.gov/explore?contractorid=557163081&contractomame=ASTM&fiscal_year=all
94 http://usaspending.gov/explore?contractorid=073294837&contractomame=ANSI&fiscal_year=all
95 Interview with Head Building Inspector Shems Peterson in Show Me the Manual, available on YouTube at https://
www.youtube.com/watch?v=2tOJdGaMvVw
96 Craig Joyce, 'A Curious Chapter in the History ofJudicature': Wheaton v. Peters and the Rest of the Story (of
Copyright in the New Republic), Houston Law Review, Vol. 42, 2005, p. 325. http://papers.ssm.com/sol3/
papers.c&n?abstract_id=801226
97 Ross E. Davies, West's Words, Ho! Law Books By the Million, Plus A Few, Green Bag, Vol. 14, p.303. http://
www.greenbag. org/v 14n3/v 14n3_from_the_bag_davies_sm.pdf
98 8 Del. C. 1953, § 397. ("Penalty for unauthorized publication of chapter. Whoever prints or pubhshes this
chapter.. .shall befinednot more than $500 or imprisoned not more theui 3 months, or both.") http://
delcode.delaware.gOv/titie8/c001/scl8/index.shtml#397
99 Miss. Code Ann., §l-l-9(3)(a). ("Copyright; use of code materied.") If Mississippi were successful in establishing
jurisdiction in state courts and were to invoke the minimum penalty, we face potential damages of $17,010,000 for
posting 81 volumes for 210 days in 2013. Altematively, Mississippifiledregistrations at the U.S. Copyright Office in
apparent violation of Copyright Office pohcies and in an apparent attempt to qualify for statutory damages of
$150,000 per work, which if a judge were to invoke such damages in federal court, could be $12,150,000 for the 81
works. See U.S. Copyright Registration TX0007617042, Mississippi Code of 1972 2012 Edition, November 1, 2012.
100 Lexis Nexis, Terms & Conditions of Use, Jemuary 7, 2013. http://www.lexisnexis.com/terms/
101 Office oftiie Federal Register, Incorporation by Reference, Docket Number OFR-13-0001, RDJ 3095-AB78,
October 2, 2013, 78 FR 60784. http://www.regulations.gov/#!dockeaDetail;D=OFR-2013-0001
102 Administrative Conference of the United States, Incorporation by Reference, op. cit., pp. 2-3.
103 Office of Management and Budget, Federal Participation in the Development and Use of Voluntary Consensus
Standards and in Conformity Assessment Activities, Circular No. A-119 Revised, Question 6j, Febmary 10, 1998,
http://www.whitehouse.gov/omb/circulars_all9
104 H.R. Rep. No. 1497, 89tii Congress, 2d Session (Govemment Printing Office: 1966), p. 1.
los H.R. Rep. No. 752, 79th Congress, 1st Session (Govemment Printing Office: 1946), p. 198.
Appendix: Petition for an Edicts of Govemment Amendment Page 25
106 38 Cong. Rec. 13008, 89th Congress, 2d Session, June 20, 1966.
107/hid. at 13020.
108/bid. at 13021.
109 H.R. Rep. No. 1497, op. cit., p. 8.
110 Office ofthe Federal Register, Incorporation by Reference, 37 Fed. Reg. 23614, November 4, 1972.
111 U.S. Copyright Office, Edicts of Government, Compendium of Office Practices II, §206.01, 1984.
112 U.S. Copyright Office, Copyright in Govemment Publications, Study No. 33, Prepared for the Committee on the
Judiciary, United States Senate, Govemment Printing Office, 1961.
113 The Petition for an Edicts of Govemment Amendment was circulated by Public.Resource.Org in collaboration
with Pam Seimuelson, Richard M. Sherman Distinguished Professor of Law, UC Berkeley Law School and Jonathan
Zittrain, Professor of Law and Vice-Dean for Library and Information Resources, Harvard Law School. The petition
was circulated May, 2013. https://law.resource.org/pub/edicts.html
114 See United States v. Smifli, 292 U.S. 633 (1934). See also Panama Refining Company v. Ryan, 293 U.S. 388 (1935).
https://law.resource.org/pub/us/case/reporter/US/293/293.US.388.135.260.htnil
115 Hearings Before Subcommittee No. II ofthe Committee on the Judiciary, House of Representatives, Serial 16,
Febmary 21, 1936, p. 23.
116 Erwin Griswold, Govemment in Ignorance of the Law—A Plea for Better Publication of Executive Legislation,
Harvard University Law Review, Vol. 48, December 1934, p. 204.
117 Hearings Before Subcommittee No. II, op. cit., p. 19.
118 Jeremy Bentham, Petition for Codification, in The Works of Jeremy Bentham (W. Tait: 1839), p. 547.
119 Sen. Rep. No. 1219, 88th Congress, 2d Session, July 22, 1964, quoting Letter of James Madison to W.T. Barry,
August 4, 1822.
EXHIBIT B
Case l:13-cv-01215-TSg, 1/15 Page 9 of 259
30(b)(6) Public.Resource.Org 02-26-2015
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS D/B/A ASTM INTERNATIONAL;
NATIONAL FIRE PROTECTION, INC.;
AND AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Plaintiffs,/
Counter-Defendants, Case No.:
vs 1:13-CV-01215-EGS
PUBLIC.RESOURCE.ORG, INC.
Defendant/
Counter-Plaintiff
VIDEOTAPED DEPOSITION OF THE 30 b) 6) OF
PUBLIC.RESOURCE.ORG
DATE : T h u r s d a y , F e b r u a r y 26, 2015
TIME : 10:07
LOCATION: 1 M a r k e t S t r e e t , Spear Tower, S u i t e
2000, San F r a n c i s c o , C a l i f o r n i a
R e p o r t e d by: A s h l e y Soevyn
C e r t i f i e d Shorthand Reporter
L i c e n s e Number 12019
(866) 448 - DEPO
www.CapitalReportingCompany.com © 2015
case l:13-cv-01215-TSC ^ ^ m ^ ^ S i & i i ^ U W } ^ Page 33 of 259
30(b)(6) PubUc.Resource.Org 02-26-2015
156
1 o f t h e s t a n d a r d s t h a t were p o s t e d on P u b l i c 1:27:37PM
2 R,esource's websi1;e as a r e s u l t o f an i n c o r p o r a t i o n 1:27:39PM
3 by r e f e r e n c e by a n o n f e d e r a l government e n t i t y ? 1:27:42PM
4 A I t h i n k so. 1:27:49PM
5 MR. FEE: We've been g o i n g about an hour 1:28:58PM
6 again. Do you want t o t a k e a l u n c h b r e a k now? 1:29:00PM
7 MR. BRIDGES: I f you want. 1:29:02PM
8 MR. FEE: Why d o n ' t we do t h a t . 1:29:04PM
9 THE VIDEOGRAPHER: We're g o i n g o f f t h e 1:29:05PM
10 record. The t i m e i s 1:29 p.m. 1:29:06PM
11 (Lunch recess t a k e n . ) 10:27:40AM
12 THE VIDEOGRAPHER: We're back on t h e 2:25:54PM
13 record. The t i m e i s 2:26 p.m. 2:25:55PM
14 BY MR. FEE: 2:25:58PM
15 Q Mr. Malamud, b e f o r e l u n c h we spoke a 2:25:59PM
16 little b i t about t h e p r o c e s s t h a t you went t h r o u g h 2:26:02PM
17 i n p u r c h a s i n g and making c o p i e s o f t h e 73 s t a n d a r d s . 2:26:05PM
18 I — I want t o t a l k t o you now about t h e p r o c e s s you 2:26:09PM
19 used t o make e l e c t r o n i c c o p i e s o f some o f t h e 2:26:12PM
20 standards going forward. 2:26:16PM
21 Can you d e s c r i b e b r i e f l y what p r o c e s s you 2:26:19PM
22 go t h r o u g h t o p o s t t h e s t a n d a r d s a t i s s u e on your 2:26:21PM
23 website? 2:26:26PM
24 A Step one i s t o d e t e r m i n e whether a 2:26:31PM
25 s t a n d a r d has been e x p l i c i t l y i n c o r p o r a t e d by 2:26:33PM
(866) 448 - DEPO
www.CapitalReportingCompany.com © 2015
case l:13-cv-01215-TSC ( ^ ^ m ^ ^ S i & v i t U W } ^ ^^^^ °^
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1 reference. Step two i s t o g e t a copy o f t h e 2 : 26: 38PM
2 s t a n d a r d and scan i t . Step t h r e e i s t o append a 2 :26 :4 3PM
3 cover s h e e t . And t h e n Step f o u r i s t o t r a n s f e r i t 2 :26 :5 5PM
4 o n t o t h e h t d o c s segment o f o u r web s e r v e r , w h i c h i s 2 : 27:01PM
5 where documents live. 2 :27 : 05PM
6 Q And once t h e document i s on your htdocs 2 :27 : 11PM
7 web server, i s i t generally accessible t o the 2 : 27: 14PM
8 public? 2 :27 :2 5PM-
9 A Yes. 2 : 27:2 5PM
10 Q Now, f o r t h e s t a n d a r d s t h a t a r e p o s t e d on 2 :27 :25PM
11 your w e b s i t e , d i d you always purchase paper c o p i e s 2 : 27:2 9PM
12 o f t h o s e s t a n d a r d s and t h e n scan them,, o r d i d you 2 :27 :32PM
13 buy e l e c t r o n i c c o p i e s a t times? 2 :27 : 3 6PM
14 A For t h e s t a n d a r d s a t i s s u e t h e y ' r e a l l 2 :27 : 39PM
15 paper c o p i e s . 2 : 27:43PM
16 Q D i d you purchase any o f t h e paper c o p i e s 2 :27 :4 5PM
17 o f t h e s t a n d a r d s a t i s s u e d i r e c t l y f r o m one o f t h e 2 :27 : 47PM
18 plaintiffs? 2 :27 : 50PM
19 MR. BRIDGES: O b j e c t i o n , asked and 2 : 27: 51PM
20 answered. 2 : 27:51PM
21 THE WITNESS: We — we a l r e a d y went over 2 :27 :52PM
22 t h a t , I b e l i e v e , on NFPA and ASTM f o r — 2 : 27:53PM
23 BY MR. FEE: 2 :27 :57PM
24 Q And t h a t was w i t h r e s p e c t t o s t a n d a r d s 2 :27 :58PM
25 t h a t a r e on t h e P u b l i c Resource w e b s i t e ? You d i d 2 : 28: 01PM
(866) 448 - DEPO
www.CapitalReportingCompany.com © 2015
case l:13-cv-01215-TSC ( S £ ^ m % ^ 8 i & i i t U ^ M j ^ ^^^9^ of 259
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1 an HTML v e r s i o n t h a t was produced i n c o n j u n c t i o n 4 : 31: 36PM
2 w i t h HTC and — and y o u r s e l f ; i s t h a t correct? 4 : 31 : 40PM
3 MR. BRIDGES: I f he's a s k i n g about t h e 4 : 31 :4 6PM
4 whole document, then make sure t h a t you u n d e r s t a n d 4 : 31:47PM
'5 t h e whole document and a
Preview
1 KELLY M. KLAUS (State BarNo. 161091) kelly.klaus@mto.com 2 BRYAN H. HECKENLIVELY (State Bar No. 279140) bryan.heckenlively@mto.com 3 ROSE LEDA EHLER (State Bar No. 296523) Rose.Ehler@mto.com 4 MUNGER, TOLLES & OLSON LLP FILED/ENDORSED 560 Mission Street 5 Twenty-Seventh Floor San Francisco, Califomia 94105-2907 DEC 2 7 2021 6 Telephone: (415)512-4000 Facsimile: (415) 512-4077 By:. 1. Romo Deputy Clerk 7 Attomeys for Proposed Intervenor 8 National Fire Protection Association, Inc. 9 LOUIS Y. LEE (State Bar No. 315753) 10 louis.lee@morgartiewis.com MORGAN, LEWIS & BOCKIUS LLP 11 One Market, Spear Street Tower San Francisco, CA 94105-1596 12 J. KEVIN FEE (admitted pro hac vice) 13 kevin.fee@morgartiev^s.com JANE W. WISE (admitted pro hac vice) 14 jane.wdse@morgaitiewis.com MORGAN, LEWIS & BOCKIUS LLP 15 1111 Permsylvania Ave. NW Washington, DC 20004-2541 16 Attomeys for Proposed Intervenor 17 Intemational Code Coimcil, Inc. 18 SUPERIOR COURT OF THE STATE OF CALIFORNIA 19 COUNTY OF SACRAMENTO 20 21 Public.Resource.Org., Inc., CaseNo. 34-2021-80003612 22 Petitioner, Declaration of Bryan H. Heckenlively 23 vs. Filed In Support of Interveners' Brief in Opposition to the Petition for a Writ of 24 Califomia Office of Administrative Law, and Mandate the California Building Standards 25 Commission, Date: January 21, 2022 Time: 1:30 p.m. 26 Respondents. Dept.: 27 Judge: Hon. Steven M. Gevercer 27 Action Filed: March 17. 2021 28 Declaration of Bryan H. Heckenlively ISO Opposition to PRO's Petition for a Writ of Mandate 1 DECLARATION OF BRYAN H. HECKENLIVELY 2 I, Bryan H. Heckenlively, declare as follows: 3 1. I am an attomey at Munger, Tolles & Olson LLP and counsel of record for Plaintiff 4 National Fire Protection Association, Inc. ("NFPA") in this matter. The contents of this 5 declaration are based on my personal knowledge from my investigation and that of attomeys and 6 professionals in my law firm working at my direction. If called as a witness, I could and would 7 testify competently to the facts in this declaration. 8 2. Attached as Exhibit A to this declaration is a tme and conect copy of Carl 9 Malamud's Testimony, "An Edicts of Govemment Amendment," before the House Judiciary 10 Committee, Courts, Intellectual Property, and the Intemet Subcommittee on January 14, 2014, 11 which I accessed and dowrtioaded from ° This confhct edso extends to the federal level. When the Office of the Federal Register accepted a pubhc petition to increase avaUeibihty of stemdards incorporated by reference, they ultimately responded that "we agree with the petitioners that our regulations need to be updated, however the petitioners proposed changes to our regulations that go beyond our statutory authority."'"' Likewise, the Administrative Conference of the United States, while giving a passing nod to the constitutional provisions of equal protection and due process noted that "there is some ambiguity in current law regarding the continuing scope of copyright protection for materieds incorporated into regulations" and then declined to "attempt to resolve the questions of copyright law."i02 The Administrative Conference of the United States, the Office of the Federal Register, the Office of Management and Budget, and the Depeurtment of Transportation have aU wrestied with this issue, but their hands are tied by contradictory pohcies such as those advanced in OMB Circular A-119, which states "if a voluntary standard is used emd pubhshed in an agency document, your agency must observe and protect therightsof the copyright holder and any other similar obhgations."'03 To be very clear, this pohcy does not preclude an agency and a standards development organization voluntarily making a stemdard available as required by law and pubhc pohcy, but the clause has been seized upon by those wishing to protect their current mode of operation. It is ironic that the Incorporation by Reference mechanism has been used as a way of keeping the law under wraps. IBR became part of federal law as part of the landmark 1966 amendments to the Administrative Procedures Act (APA) in a bill entitled "Clarifying and Protecting the Right ofthe Pubhc to Information."'"* The bill was based on the fact that while the original 1946 APA was based upon "the theory that administrative operations and procedures are pubhc property which the general pubhc, rather than a few speciahsts or lobbyists, is entitled to know" in reahty, the APA had become an "excuse for withholding. "105 Congressman Moss spent 11 years working tirelessly on these amendments, stating that "inherent in the right offireespeech and offireepress is therightto know."'"3 Congressman Moss was joined in this bipartisem effort by Congressman Donald Rumsfeld, who stated that "it is our intent that the courts interpret this legislation broadly, as a disclosure statute and not as an excuse to withhold information from the pubhc."'"? Congressman Rumsfeld was joined by Congressmem Bob Dole, who stated "in a Edicts of Govemment Page 13 democracy, the pubhc must be weU informed if it is to intelhgentiy exercise the franchise."'"3 The legislation passed the House unanimously by a vote of 307 to 0. This legislation had as part and peurcel of disclosure arightto copy. The accompanying report stated "federal agency records which are avaflable for pubhc inspection also must be aveuleible for copying, since therightto inspect records is of httle value without therightto copy them for future reference. "'"9 When the Office of the Federal Register implemented these provisions, it stated copies of any materials incorporated by reference must be "readily obtained with maximum convenience to the user.""" A clear statement of these issues, and the overriding pohcy consideration that the law must be aveiilable to an informed citizenry, was pubhshed by the U.S. Copyright Office in its official statement of pohcy: Edicts of govemment, such as judicial opinions, administrative rulings, legislative enactments, pubhc ordinemces, and similar official legal documents are not copyrightable for reasons of pubhc pohcy. This apphes to such works whether they are Federal, State, or loced as well as to those of foreign governments.'" This clear and compelhng statement reflects long-standing Copyright Office pohcy that "material as the laws and govemmental rules emd decisions must be freely avaUed3le to the pubhc and made known as widely as possible; hence there must be no restriction on the reproduction and dissemination of such documents.""2 As this Committee considers revisions to the Copyright Act, there is one simple chemge that would medce a world of difference to the functioning of our system of govemment, which is to specify, as the Copyright Office stated, that "edicts of govemment... eire not copyrightable for reasons of pubhc pohcy." This amendment to the copyright act was recently endorsed in a petition signed by 115 of the leading law librarians and law professors in the country, and is included as an appendix to this testimony. "3 This simple chemge would make it clear that the law belongs to the people. If we give those without great means a substandard web site as their only access to the law, we have put a poU teix on access to justice. When we require a hcense to speak the law, we have made a mockery of freedom of speech. When we deliberately restrict access to the law—^including the pubhc seifety codes that protect our homes, famihes, and workplaces—^we have violated thefiindamentalprinciple of the mle of law that underpins our democracy. The Federal Register came about because regiUations were being created but the pubhc had no means of knowing what those regulations were." * In the 1936 hearings that led to the passage of the Federal Register Act, Congressman D.J. Driscoll reminded this Committee ofthe Emperor Cahgula, "who tacked his edicts so high on the walls of the Forum that nobody could read them and then punished the people for violations of the edicts."' 's Professor Erwin Griswold of Harvard Law School, at the prodding of Justice Brandeis, wrote the semined paper that led to the passage ofthe act."3 In his testimony,"? he reminded this Committee ofthe words of Jeremy Bentham: We hear of tyremts, and those cmel ones; but whatever we may have felt, we have never heard of anyfiruantin such thought cruel, as to punish men for disobedience of laws and orders which he has kept themfiromthe knowledge of. "3 Page J4 Edicts of Govemment In introducing the Senate version of the 1966 amendments to the Administrative Procedure Act, Senator RusseU B. Long quoted the words of James Madison, who was chairman of the committee which drafted the First Amendment: Knowledge vvill forever govem ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both."9 That efforts to pubhsh edicts of gbvemment in the United Stiates have become the subject of threats, suits —and even the threat of jaU—is a farce or a tragedy or perhaps both. Congress cem meike it cleeur that the law belongs to the people and we edl have therightto read, know, and speeik the law. Thank you for the opportunity to appear before you today. I would welcome any questions you might have. Petition for an Edicts of Government Amendment Note that signatories to this petition have only endorsed the text that foUows emd have not reviewed nor have they endorsed the testimony of Carl Malamud before the House Judiciary Committee. Please note also that affihations eire hsted for identffication only and do not imply institutional endorsement. Text of the Petition To promote access to justice, equal protection, innovation in the legal meurketplace, and to codify long- standing pubhc pohcy, the Copyright Act of the United States, 17 U.S.C, should be amended as foUows: Edicts of govemment, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments. This language comes directiy from Section 206.01, Compendium of Office Practices II, U.S. Copyright Office (1984). It reflects clear and estabhshed Supreme Court precedent on the matter in cases such as Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) and Banks v. Manchester, 128 U.S. 244 (1888). The law belongs to the people, who should befi'eeto read, know, and speedc the laws by which they choose to govem themselves. Signatories to the Petition 1. Jasmine C. Abdel-Khahk, Associate Professor, UMKC School of Law 2. Beth Adelman, Director of the Charles B. Sears Law library, SUNY Buffalo 3. Juhe Ahrens, Director of Copyright and Fair Use, Center for Intemet and Society, Stanford Law School 4. John R. AUison, Spence Centennied Professor of Business and Professor of InteUectued Property, Univ. of Texas at Austin 5. Pat Aufderheide, University Professor, American University 6. Meirgo A. Bagley, Professor of Law, University of Virginia School of Law 7. Ann Bartow, Professor of Law, Pace Law School 8. Karen S. Beck, Manager, Historical and Special Collections, Heun^eurd Law School Library 9. Yochai Benkler, Jack N. and Lilhan R. Berkman Professor for Entrepreneuried Legal Studies, Heurvard Law School 10. Mehssa J. Bemstein, Library Director and Professor of Law, University of Utah 11. Robert C. Bierring, Jr., Walter Perry Johnson Professor of Law, UC Berkeley Law School 12. Annemarie Bridy, Associate Professor, CoUege of Law, University of Idaho 13. Wilheun J. Bmtocao, Adjunct Professor of InteUectual Property Law, University of La Veme College of Law 14. Dan L. Burk, ChanceUor's Professor of Law, University of Cahfomia, Irvine Page 16 Appendix: Petition for an Edicts of Govemment Amendment 15. Michael A. Carrier, Professor of Law, Rutgers Law School 16. Michael W. CarroU, Professor of Law, American University, Washington CoUege of Law 17. Brian W. Carver, Assistant Professor, University of Cedifomia, Berkeley 18. Carol Chomsky, Professor of Law and Associate Dean for Academic Affairs, University of Minnesota Law School 19. Margaret Chon, Donald and Lynda Horowitz Professor for the Pursuit of Justice, Seattle University School of Law 20. Ralph D. Chfford, Professor of Law, University of Massachusetts School of Law 21. Juhe E. Cohen, Professor of Law, Georgetown University Law Center 22. Kevin Emerson Collins, Professor of Law, Washington University School of Law 23. David G. Cowan, Vice President and Director of Library Services, South Texas CoUege of Law 24. Susan Crawford, Professor of Law, Cardozo Law School 25. Catherine Cmmp, Staff Attomey, ACLU 26. Richard A. Danner, Rufty Research Professor of Law and Senior Associate Dean, Duke University School of Law 27. EsteUe Derclaye, Professor of InteUectual Property Law, University of Nottingheun 28. Pamela Edwards, Professor of Law and Director, Center for Diversity in the Legal Profession, CUNY 29. MicheUe Vescio Evenson, Fellow, Center for Law and InteUectual Property, Thomas Jefferson School of Law 30. Thomas G. Field, Jr., Emeritus and Visiting Professor of Law, UNH School of Law 31. John Flym, Professor Emeritus, Northeastem Univ. School of Law 32. A. Michael Froomkin, Laurie Stivers emd MitcheU Rubenstein Distinguished Professor of Law, Univ. of Mieutti School of Law 33. Jon M. Garon, Professor of Law, Northem Kentucky University Chase CoUege of Law 34. James Gibson, Professor of Law, University of Richmond 35. Eric Goldman, Professor, Santa Clara University School of Law 36. Jerry Goldman, Research Professor of Law, UT Chicago-Kent CoUege of Law 37. EUen P. Goodman, Professor, Rutgers University School of Law 38. Jennifer Stisa Granick, Director of CivU Liberties, Stanford Center for Intemet and Society 39. James Grimmehnann, Professor of Law, New York Law School 40. David Halperin, Of Counsel, Pubhc.Resource.Org 41. WUham D. Henslee, Professor of Law, FAMU CoUege of Law 42. Laura A. Heymann, Class of 2014 Professor of Law, CoUege of WiUiam and Mary Appendix: Petition for an Edicts of Govemment Amendment Page 17 43. Kenneth J. Hirsh, Director of the Law Libreiry emd I.T. emd Professor of Practice, University of Cincinnati CoUege of Law 44. Cynthia Ho, Professor of Law, Loyola University of Chicago School of Law 45. Dem Hunter, Professor of Law, New York Law School 46. Todd T. Ito, Reference Librarian and Lecturer in Law, University of Chicago Law School 47. Conrad A. Johnson, Chnical Professor of Law, Columbia University School of Law 48. Janis L. Johnston, Associate Professor of Law, University of Uhnois 49. Faye E. Jones, Director emd Professor, Legal Research Center, Florida State University 50. Dennis S. Karjala, Jack E. Brown Professor of Law, Arizona State University 51. Mehnda Kent, Manager, Research Services, Harvard Law School Libreury 52. Ian Kerr, Professor of Law, University of Ottawa 53. Minjeong Kim, Associate Professor, Colorado State University 54. Anne Khnefelter, Director of the Law Library, University of North Carolina 55. Amy Lemders, Distinguished Professor of Law, Pacffic McGeorge School of Law 56. Seurah Hooke Lee, Assistant Dean and Director, Information and Research Services, Northeastem School of Law Library 57. Richard Leiter, Director and Professor, Schmid Law Library, University of Nebraska CoUege of Law 58. Mark A. Lemley, Wilheim H. Neukom Professor, Stanford Law School 59. Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School 60. Yvette Joy Liebesman, Assistant Professor of Law, Saint Louis University 61. Joseph P. Liu, Professor of Law, Boston CoUege Law School 62. Lee Ann W. Lockridge, David Weston Robinson Professor of Law, Louisiana State University 63. J. Paul Lomio, Library Director and Lecturer in Law, Stanford Law School 64. Lydia Pallas Loren, Kay Kitagawa and Andy Johnson-Laird IP Faculty Scholar and Prof, of Law, Lewis & Clark Law School 65. Brian J. Love, Assistant Professor, Santa Cleira University School of Law 66. Carl Medamud, President and Founder, Pubhc.Resource.Org 67. Susan Nevelow Mart, Associate Professor and Director of the Law Library, University of Colorado at Boulder 68. John Mayer, Executive Director, Center for Computer-Assisted Legal Instmction 69. Mark P. McKeima, Professor of Law , Notre Deune Law School 70. Hiram Melendez-Juarbe, Associate Professor, University of Puerto Rico Law School Page 18 Appendix: Petition for an Edicts of Government Amendment 71. Michael J. Meurer, Professor of Law, Boston Univ. School of Law 72. Courtney Minick, Attomey, Justia.com 73. Deirdre K. MuUigem, Assistant Professor, UC Berkeley School of Infoimation 74. Ira Steven Nathenson, Associate Professor of Law, St. Thomas University School of Law 75. Charles R. Nesson, Weld Professor of Law, Harvard Law School 76. Beth Noveck, Professor of Law, New York Law School 77. Tyler T. Ochoa, Professor of Law, Santa Clara University School of Law 78. Harlan Onsmd, Professor, University of Maine 79. Sean Pager, Associate Professor of Law, Michigan State University 80. MicheUe Pearse, Senior Research Librarian, Heirveurd Law School Libreiry 81. Richeurd J. Peltz-Steele, Professor of Law, University of Massachusetts Dartmouth 82. Aaron Perzanowski, Associate Professor of Law, Case Westem Reserve University School 83. Laura QuUter, Copyright Attomey and Information Pohcy Librarian, University of Massachusetts Amherst 84. R. Anthony Reese, ChanceUor's Professor, UC Irvine School of Law 85. Blake Reid, Staff Attomey, Institute for Pubhc Representation, Georgetown Law 86. Michael Risch, Associate Professor of Law, Villanova University School of Law 87. Matthew Sag, Professor, Loyola University Chicago School of Law 88. Zahr Seud, Assistant Professor of Law, University of Washington School of Law 89. Pam Samuelson, Richard M. Sherman Distinguished Professor of Law, UC Berkeley Law School 90. Sharon K. Semdeen, Professor of Law, Hamhne University School of Law 91. Joshua D. Samoff, Professor of Law, DePaul University CoUege of Law 92. Amndhati Satkalmi, Senior Research Librarian, St. John's University School of Law 93. Roger E. Schechter, Professor of Law, George Washington University Law School 94. Jason M. Schultz, Assistant Chnical Professor of Law, UC Berkeley School of Law 95. Wendy Seltzer, FeUow, Berkman Center, Harvard University 96. Jessica Silbey, Professor of Law, Suffolk University Law School 97. Joshua M. Silverstein, Professor of Law, University of Arkansas at Littie Rock 98. David A. Simon, FeUow, Project on Law and Mind Sciences, Harvard Law School 99. Christopher Jon Sprigman, Class of 1963 Research Professor, University of Virginia School of Law 100. Tim Stanley, Attomey, Justia.Com 101. Katherine Strandburg, Professor of Law, New York University School of Law Appendix: Petition for an Edicts of Govemment Amendment Page 19 102. Peter Suber, Professor, Earlham CoUege 103. Barbara GeUis Traub, Head of Reference and Instmctional Services, St. John's University School of Law 104. Samuel E. Trosow, Associate Professor, University of Westem Ontario 105. Geertrui Van Oveiwalle, Professor of Law, University of Leuven 106. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law 107. Erika V. Wayne, Deputy Director and Lecturer in Law, Stanford Law School Library 108. Beth WiUiams, Director of the Library and Information Technology Services, Louisiana State University Law Center 109. Cicely WUson, Librarian, Justia.com 110. Jane K. Winn, Charles I. Stone Professor, University of Washington School of Law 111. Suzanne Wones, Executive Director, Harvard Law School Library 112. Richard W. Wright, Distinguished Professor of Law, UT Chicago-Kent CoUege of Law 113. Alfred C. Yen, Professor of Law, Boston CoUege Law School 114. Sue Zago, Director of Law Library, University of New Heimpshire 115. Jonathem Zittrain, Professor of Law and Vice-Dean for Library and Information Resources, Harveurd Law School ' John Adams, Thoughts on Govemment in Revolutionary Writings, 1775-1783 (Library of America: 2011), p. 48. 2 The doctrine of ignorantia legis neminem excusat has been repeatedly affirmed. See, e.g.. United States v. Intemational Minerals & Chem. Corp., 402 U.S. 558, 563 (1971). ("The principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation.") 3 See Carl Malamud, 12 Tables of Code, January 7, 2013. https://law.resource.org/pub/12tables.htitil * Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge Univiversity Press, 2004), p. 34. The classic statement of the doctrine is A.V. Dicey, Introduction of the Law of the Constitution (1885, reprinted by Liberty Fund: 1982). B Robert C. Byrd, The Senate of the Roman Republic: Addresses on the History of Roman Constitutionalism (U.S. Govemment Printing Office, 1995), pp. 33, 128, 135. Public.Resource.Org has edso made these lecture aveiilable on YouTube. http://www.youtube.com/playlist?list=PLlE1633114E0E358F 6 Thomas Henry Bingham, The Rule of Law (Penguin Press: 2011), pp. 37-38. ? Cf. Nieman v. VersusLaw, Inc., No. 12-2810 (7th Cir. Mar. 19, 2013). ("The First Amendment privileges tiie publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed.") B Cf. Harper v. Va. State Bd.of Elections, 383 U.S. 663, 666 (1966). (A state violatestiieEqual Protection Clause "whenever it makes the affluence of the voter or payment of any fee an electoral standard"); See also Magna Carta cl. 29 (1297). ("We will sell to no man, we will not deny or defer to any man either Justice or Right.") 9 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). https://law.resource.org/pub/us/case/reporter/US/33/33.US. 591.html 10 Craig Joyce, Reporters of Decisions of the Supreme Court of the United States, University of Houston Law Center No. 2005-A-l 1. http://papers.ssm.com/sol3/papers.cfm?abstract_id=800884 " Wheaton V. Peters, op. cit. '2 Banks v. Manchester, 128 U.S. 244 9 S.Ct. 36 32 L.Ed. 425 (1888) quoting Nash v. Lathrop, 142 Mass. 29, 35, 6 N. E. Rep. 559 (1886). https://law.resource.org/pub/us/case/reporter/US/128/128.US.244.html 13 Veeck v. Soutiiem Building Code Congress Intemational, Inc., 293 F.3d 791 (Sth Cir. 2002). https:// law.resource.org/pub/us/case/reporter/F3/293/293.F3d.791.99-40632.htinl '* See Cory Doctorow, City of Chicago and Public-Spirited Hackers Unveil the Chicago City Code, Boing Boing, November 17, 2013, http://boingboing.net/2013/ll/17/city-of-chicago-and-public-spi.htmlSee a7so Tom Lee, 7?ie D.C. Code is Open —Come Hack on It!, Sunlight Foundation, April 4, 2013, http://sunlightfoimdation.com/blog/ 2013/04/04/the-dc-code-is-open-come-hack-on-it/ 's The official web site is maintained for the City of Chicago by American Legal Publishing, http:// www.amlegal.com/library/il/chicago.shtml Cf Chicago Decoded, http://chicagocode.org/ 'B The District of Columbia contracts with LexisNexis for its codification services, who provide a primitive web site. http://www.lexisnexis.com/hottopics/dccode/ Cf. DCcode. http://dccode.org/ '? Letter from Carl Malamud, Public.Resource.Org, to Hon. Scott Bedke, Idaho State Legislature, May 30, 2013. https://law.resource.org/piib/us/code/id/id.gov.20130530.pdf '3 Intemet Archive, Official State Codes Collection, https://archive.org/details/govlaw '9 Letter from Bradlee R. Frazer on behalf of the Idaho State Legislature to Carl Malamud, Public.Resource.Org, July 12, 2013. https://law.resource.org/pub/us/code/id/id.gov.20130712.pdf 20/bid. Appendix: Petition for an Edicts of Govemment Amendment Page 21 ^' Public.Resource.Org paid $913.31 on April 9, 2013 for the Official Idaho Code, https://law.resource.org/ifcs/ lexis.com.20130409.pdf 22 LexisNexis, Idaho Code. ("Smart Idaho practitioners tum to LexisNexis' Idaho Code as the only official source in Idaho for primary law.") http://www.lexisnexis.com/store/catalog/booktemplate/productdetcdl.jsp?prodId=6981 23 Letter from Carl Malamud, Public.Resource.Org, to Hon. Ben Ysura, Secretary of State of Idaho, July 15, 2013. https://Iaw.resource.org/pub/us/code/id/id.gov.20130715.pdf 2* U.S. Const. Amend. XI. (The 11th Amendment establishes sovereign immunity and prohibits "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.") 2s Letter from Hon. Josh McKoon, Georgia State Senate, to Carl Malamud, Public.Resoiurce.Org, July 25, 2013. https://law.resource.org/pub/us/code/ga/ga.gov.20130725.pdf 26 Letter from Carl Malamud, Public.Resource.Org, to Hon. Josh McKoon, Georgia State Senate, July 30, 2013. https://law.resource.org/pub/us/code/ga/ga.gov.20130730.pdf 2?lietter from Hon. Josh McKoon, Georgia State Senate, to Carl Malamud, Public.Resource.Org, August 15, 2013. https://law.resource.org/pub/us/code/ga/ga.gov.20130815.pdf 2BI,etter from Larry A. Schemmel, Special Assistant Attomey General of Mississippi, to Carl Malamud, Public.Resource.Org, October 7, 2013. https://law.resource.org/pub/us/code/ms/ms.gov.20131007.pdf 29 While a few states eissert copyright over state statutes, at least 25 states attempt to assert some kind of copyright control over legal materials such as state regulations or court opinions. See Tina S. Ching and Emily Feltren, Update on the National Inventory of Leged Materials, American Association of Law Libraries, Febmary 1, 2012. http:// blog.law.comeU.eduyvoxpop/2012/02/01/protecting-access-one-entry-at-a-time-an-update-on-the-nationed- inventory-of-legal-materials/ 30 State of Virginia, Legislative Information System, Code of Virginia, http://lis.virginia.gov/cgi-bin/legp604.exe? 000+cod+TOC C/Virginia Decoded, http://vacode.org/ 31 Waldo Jaquith, The State Decoded: Legal codes, for humans, http://www.statedecoded.com/ 32 Knight Foundation, The State Decoded, 2011 Knight News Challenge. (Amount: $165,000) http:// www.knightfoundation.org/grants/20110158/ 33 U.S. Chemical Safety and Hazard Investigation Board, Investigation Report: Refinery Explosion and Fire, Report No. 2005-04-I-TX, March, 2007. http://www.csb.gOv/assets/l/19/CSBFinalReportBP.pdf 3* National Transportation Safety Board, Pacific Cas and Electric Company Natural Gas Transmission Pipeline Rupture andFire, NTSB/PAR-11/01, PB2011-916501. http://www.ntsb.gov/doclib/reports/2011/PAR1101.pdf 35 Jxiifikar Aii Manik and Jim Yardley, Bangladesh Finds Gross Negligence in Factory Fire, New York Times, December 17, 2012. http://nytimes.coin/2012/12/18/world/asia/bangladesh-factory-fire-caused-by-gross-negligence.html 36 Julfikar Aii Manik and Jim Yardley, Building Collapse in Bangladesh Leaves Scores Dead, New York Times, April 24, 2013. http://nytimes.com/2013/04/25/world/cisia/bangladesh-building-collapse.html 3? Pub. L. No. 104-113, March 7, 1996. http://www.gpo.gov/fdsys/pkg/PIiAW-104pubI113/pdf/ PLAW-104publll3.pdf 38 Office of Management and Budget, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, Circuleur No. A-119 Revised, Febmary 10, 1998, http:// www.whitehouse.gov/omb/circulars_al 19 39 Public.Resource.Org, Public Safety Codes Incorporated by Law, Last updated July 31, 2012. https:// law.resource.org/pub/us/code/safety.html 40 Veeck v. Soutiiern Building Code Congress hitemational, Inc., 293 F. 3d 791 (5tii Cir. 2002), yi 36. Page 22 Appendix: Petition for an Edicts of Govemment Amendment *' Quoting HoweU v. Miller, 91 F. 129, 137 (6tii Cir. 1898). *2 Veeck at ^ 35. *3 Titie 24, Califomia Code of Regulations, https://law.resource.org/pub/us/code/bsc.ca.gov/ ** For a comparison of scanned images with the transformed versions see Public.Resource.Org, 12 Tables of Code, Table 10, Table of Transformative Use, January 7, 2013. https://law.resource.org/pub/tablelO.html 45 World Wide Web Consortium, Mathematical Markup Language (MathML) Version 3.0, October 21, 2010. http:// www.w3.org/TR/MathMIj3/ « See Section 508 Amendment to the Rehabilitation Act of 1974, 29 U.S.C. § 749d. *? World Wide Web Consortium, Scalable Vector Graphics (SVG) 1.1, Second Edition, August 16, 2011. http:// www.w3.org/TR/SVGll/ *3 http://www.iccsafe.Org/content/pages/freeresoiu:ces.aspx *9 http://shop.iccsafe.org/ecodes/codes-plus 50 Intemational Code Council, i?etum of Organization Exempt from Income Tax, Form 990, 2011. http3://archive.org/ download/IRS990-2012_l l_EO/36-3999004_990O_201112.pdf 51 Incorporation by Reference is govemed by 1 CFR 51 and 5 U.S.C. § 552(a). 52 See, e.g., E-Govemment Act of 2002, 44 U.S.C. § 101 ("To promote use of the Intemet and other information technologies to provide increased opportunities for citizen participation in Government.") and President Obama's Open Government Directive, MlO-06, December 8, 2009 ("each agency shall take prompt steps to expand access to information by making it available online in open formats"). 53 Administrative Conference ofthe United States, Incorporation by Reference, Administrative Conference Recommendation 2011-5, December 8, 2011. http://www.acus.gov/sites/default/files/Recommendation-2011-5- Incorporation-by-Reference.pdf 54 Pipeline Safety Act of 2011, Pub. L. No. 112-90, January 3, 2012, § 24. 85 Office of tiie Federal Register, Incorporation by Reference, 78 FR 60784, October 2, 2013. 55 Public.Resource.Org, Notice of Incorporation, May 15, 2015. https://law.resource.org/pub/us/cfr/notice.sdo. 20120315_to.pdf 5? https://law.resource.org/pub/us/cfr/manifest.us.htmI 58 29 CFR 1910 ef. seq. 59 49 CFR 172 et. seq. 60 49 CFR 571 et. seq. 6'46 CFR 111 ef. seq. 62 10 CFR 430 et. seq. 63 Joe Bhatia, ANSI's New IBR Portal Provides Access to Standards Incorporated by Reference, Administrative Conference of the United States Blog, November 4, 2013. 6* Email from B. Brett Heavner on behalf of the American Petroleum Institute to the Intemet Archive, November 2, 2012. https://law.resource.org/rfcs/api.20121102.pdf 66 Email from Carl Malamud, Public.Resource.Org, to B. Brett Heavner via the Intemet Archive, November 3,2012. https://law.resource.org/rics/api.20121103.pdf Appendix: Petition for an Edicts of Govemment Amendment Page 23 66 Email from Eraj Siddiqui on behalf of SMACNA to Carl Malamud, Public.Resource.Org, January 10, 2013. https:// law.re3ource.org//rfcs/smaccna.20130110.from.pdf See SMACNA, HVAC Air Duct Leakage Test Manual (RS-35) (1985) as required by 10 CFR 434.403.2.9.3. https://law.resource.org/pub/us/cfr/ibr/005/smacna.hvac.1985.pdf 67 Public.Resource.Org v. Sheet Metal and Air Conditioning Contractors' National Association, Inc., 3:13-cv-00815, March 22, 2013, https://archive.org/details/gov.uscourts.cand.263568/ 68 Stipulated Judgement, Public.Resource.Org v. SMACNA, July 9, 2013. https://archive.org/download/ gov.uscourts.cand.263568/gov.uscourts.cand.263568.39.0.pdf 69 American Society for Testing and Materials et. al. v. Public.Resource.Org, Inc., l:13-cv-01215, Augusts, 2013. https://archive.org/details/gov.uscourts.dcd. 161410/ ^0 National Fire Protection Association, Media Statement Regarding Lawsuit Against Public.Resource. Org, August 6, 2013. http://www.nfpa.org/press-room/news-releases/2013/media-statement ?' NFPA Insider, NFPA President Jim Shannon Talks About Copyright Lawsuit. October 8, 2013. http:// n^atoday.bIog.nfpa.org/2013/lO/n^a-president-jim-shaimon-talks-about-copyright-lawsuit.html ?2 NFPA, Fire Sprinkler Initiative: Bringing Safety Home, http://www.firesprinklerinitiative.org/ ?3NFPA, Coalition for Fire-Safe Cigarettes, http://www.firesafecigarettes.org/ ?* See, e.g., Eight professional reference books that make heavy use of standards, https://www.google.com/search? q="'Carl+MaleUiiud"&btnG=Seeu:ch+Books See also Seven Intemet RFCs. http://www.rfc-editor.org/search/ rfc_search_detail.php?author=malamud ?5 Statement of Jim Shemnon on behalf of the National Fire Protection Association, June 1,2012 submitted to the Office of the Federal Register, Request for Comments, Federal Register, Vol. 77, No. 38, Febmary 27, 2012, NARA 12-0002. https://law.resource.org/pub/us/cfr/regulations.gov.docket.01/0900006481025751.pdf ^6 John Markoff, Plan Opens More Data to Public, N.Y. Times, October 22, 1993. http://www.nytimes.com/ 1993/10/22/business/plan-opens-more-data-to-public.html ?? John Markoff, U.S. Is Urged to Offer More Data On Line, N.Y. Times, May 4, 1998. http://www.nytimes.com/ 1998/05/04/business/us-is-urged-to-otfer-more-data-on-line .html 78 National Fire Protection Association, Report of Organization Exempt From Income Tax, Form 990, 2011. https:// archive.org/download/IRS990-2012_10_EO/04-1653090_990_201112.pdf ?9 American National Standards Association, Report of Organization Exempt From Income Tax, Form 990, 2012. https://archive.org/download/IRS990-2013_07_EO/13-1635253_990_201212.pdf 80 Public.Resource.Org, 12TabIesofCode, Table 3, Table of Revenue and Remuneration, January 7, 2013. https:// law.resource.org/pub/teible03.html 81 Letter from Speaker John Boehner and Chairman Darrell Issa to Carl Malamud, Jemuary 5, 2011. https:// law.resource.org/rtcs/gov.house.20110105.pdf 82 National Fire Protection Association, Website Provides Resources for National Electrical Code Adoption, Jime 11, 2013. http://www.nfpa.org/press-room/news-releeises/2013/electrical-code-coalition-laimches-website 83 See, e.g., NFPA, NFPA 101 Life Safety Code now required by Dept of Vet Affairs in state homes nationwide, March 29, 2011. http://www.n^a.org/press-room/news-releases/2011/latest-from-n^a-lOl-life-safety-code-now-required- by-dept-of-vet-eiffairs-in-state-homes-nationwide 84 BuildStrong Coaltion, Making America Stronger, http://www.buildstrongamerica.com/ ^ ANSI, ANSI Launches Online Portal for Standards Incorporated by Reference, October 28, 2013. http:// www.ansi.org/news_publications/news_story.aspx?menmd=7&articleid=3771 Page 24 Appendix: Petition for an Edicts of Govemment Amendment 86 United States National Committee of Uie lEC, Meeting Minutes, USNC Council 576, August 13, 2013. http:// publicaa.ansi.org/sites/apdl/Documents/Standards%20Activities/Intemational%20Standardization/IEC/USNC %20COUNCILAJSNC%20COUNCIL%20576%20Minutes.pdf 8? Statement of ASHRAE, March 30, 2012, submitted totiieOffice of the Federal Register, Request for Comments, Federal Register, Vol. 77, No. 38, Febmary 27, 2012, NARA 12-0002. https://law.resource.org/pub/us/cfr/ regulations, gov.docket.01/0900006480fe4f55 .pdf 88 Based on an analysis of published ASHRAE techniced committee rosters on December 15, 2013. Note that not all technical committees publish their rosters and not all that do publish affiliations of their members, http:// www.ashraetcs.org/ 89 ASHRAE DOE Washington Fellowship, last viewed 12/1/2013. https://www.ashrae.org/govemment-afiairs/ ashrae-doe-weishington-fellowship 90 Joshua Kneifel, Benefits and Costs of Energy Standard Adoption in New Commercial Buildings, NIST Special Publication 1147, Febmary 2013. http://nvlpubs.rust.gov/nistpubs/SpecialPublications/NIST.SP.1147.pdf 91 ANSL^ASHRAE/IES Standard 90.1-2010, Energy Standard for Buildings Except Low-Rise Residentied Buildings eis incorporated by law in 34 Tex. Admin. Code Tit 34, Part 1, Chapter 19, Rule 19.32. https://law.resource.org/pub/us/ code/ibr/ashrae.90.1 .ip.2010.pdf 92 http://usaspending.gov/explore?recipientid=001963206&recipientname=NFPA&fiscal_year=all 93 http://usaspending.gov/explore?contractorid=557163081&contractomame=ASTM&fiscal_year=all 94 http://usaspending.gov/explore?contractorid=073294837&contractomame=ANSI&fiscal_year=all 95 Interview with Head Building Inspector Shems Peterson in Show Me the Manual, available on YouTube at https:// www.youtube.com/watch?v=2tOJdGaMvVw 96 Craig Joyce, 'A Curious Chapter in the History ofJudicature': Wheaton v. Peters and the Rest of the Story (of Copyright in the New Republic), Houston Law Review, Vol. 42, 2005, p. 325. http://papers.ssm.com/sol3/ papers.c&n?abstract_id=801226 97 Ross E. Davies, West's Words, Ho! Law Books By the Million, Plus A Few, Green Bag, Vol. 14, p.303. http:// www.greenbag. org/v 14n3/v 14n3_from_the_bag_davies_sm.pdf 98 8 Del. C. 1953, § 397. ("Penalty for unauthorized publication of chapter. Whoever prints or pubhshes this chapter.. .shall befinednot more than $500 or imprisoned not more theui 3 months, or both.") http:// delcode.delaware.gOv/titie8/c001/scl8/index.shtml#397 99 Miss. Code Ann., §l-l-9(3)(a). ("Copyright; use of code materied.") If Mississippi were successful in establishing jurisdiction in state courts and were to invoke the minimum penalty, we face potential damages of $17,010,000 for posting 81 volumes for 210 days in 2013. Altematively, Mississippifiledregistrations at the U.S. Copyright Office in apparent violation of Copyright Office pohcies and in an apparent attempt to qualify for statutory damages of $150,000 per work, which if a judge were to invoke such damages in federal court, could be $12,150,000 for the 81 works. See U.S. Copyright Registration TX0007617042, Mississippi Code of 1972 2012 Edition, November 1, 2012. 100 Lexis Nexis, Terms & Conditions of Use, Jemuary 7, 2013. http://www.lexisnexis.com/terms/ 101 Office oftiie Federal Register, Incorporation by Reference, Docket Number OFR-13-0001, RDJ 3095-AB78, October 2, 2013, 78 FR 60784. http://www.regulations.gov/#!dockeaDetail;D=OFR-2013-0001 102 Administrative Conference of the United States, Incorporation by Reference, op. cit., pp. 2-3. 103 Office of Management and Budget, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, Circular No. A-119 Revised, Question 6j, Febmary 10, 1998, http://www.whitehouse.gov/omb/circulars_all9 104 H.R. Rep. No. 1497, 89tii Congress, 2d Session (Govemment Printing Office: 1966), p. 1. los H.R. Rep. No. 752, 79th Congress, 1st Session (Govemment Printing Office: 1946), p. 198. Appendix: Petition for an Edicts of Govemment Amendment Page 25 106 38 Cong. Rec. 13008, 89th Congress, 2d Session, June 20, 1966. 107/hid. at 13020. 108/bid. at 13021. 109 H.R. Rep. No. 1497, op. cit., p. 8. 110 Office ofthe Federal Register, Incorporation by Reference, 37 Fed. Reg. 23614, November 4, 1972. 111 U.S. Copyright Office, Edicts of Government, Compendium of Office Practices II, §206.01, 1984. 112 U.S. Copyright Office, Copyright in Govemment Publications, Study No. 33, Prepared for the Committee on the Judiciary, United States Senate, Govemment Printing Office, 1961. 113 The Petition for an Edicts of Govemment Amendment was circulated by Public.Resource.Org in collaboration with Pam Seimuelson, Richard M. Sherman Distinguished Professor of Law, UC Berkeley Law School and Jonathan Zittrain, Professor of Law and Vice-Dean for Library and Information Resources, Harvard Law School. The petition was circulated May, 2013. https://law.resource.org/pub/edicts.html 114 See United States v. Smifli, 292 U.S. 633 (1934). See also Panama Refining Company v. Ryan, 293 U.S. 388 (1935). https://law.resource.org/pub/us/case/reporter/US/293/293.US.388.135.260.htnil 115 Hearings Before Subcommittee No. II ofthe Committee on the Judiciary, House of Representatives, Serial 16, Febmary 21, 1936, p. 23. 116 Erwin Griswold, Govemment in Ignorance of the Law—A Plea for Better Publication of Executive Legislation, Harvard University Law Review, Vol. 48, December 1934, p. 204. 117 Hearings Before Subcommittee No. II, op. cit., p. 19. 118 Jeremy Bentham, Petition for Codification, in The Works of Jeremy Bentham (W. Tait: 1839), p. 547. 119 Sen. Rep. No. 1219, 88th Congress, 2d Session, July 22, 1964, quoting Letter of James Madison to W.T. Barry, August 4, 1822. EXHIBIT B Case l:13-cv-01215-TSg, 1/15 Page 9 of 259 30(b)(6) Public.Resource.Org 02-26-2015 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN SOCIETY FOR TESTING AND MATERIALS D/B/A ASTM INTERNATIONAL; NATIONAL FIRE PROTECTION, INC.; AND AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC. Plaintiffs,/ Counter-Defendants, Case No.: vs 1:13-CV-01215-EGS PUBLIC.RESOURCE.ORG, INC. Defendant/ Counter-Plaintiff VIDEOTAPED DEPOSITION OF THE 30 b) 6) OF PUBLIC.RESOURCE.ORG DATE : T h u r s d a y , F e b r u a r y 26, 2015 TIME : 10:07 LOCATION: 1 M a r k e t S t r e e t , Spear Tower, S u i t e 2000, San F r a n c i s c o , C a l i f o r n i a R e p o r t e d by: A s h l e y Soevyn C e r t i f i e d Shorthand Reporter L i c e n s e Number 12019 (866) 448 - DEPO www.CapitalReportingCompany.com © 2015 case l:13-cv-01215-TSC ^ ^ m ^ ^ S i & i i ^ U W } ^ Page 33 of 259 30(b)(6) PubUc.Resource.Org 02-26-2015 156 1 o f t h e s t a n d a r d s t h a t were p o s t e d on P u b l i c 1:27:37PM 2 R,esource's websi1;e as a r e s u l t o f an i n c o r p o r a t i o n 1:27:39PM 3 by r e f e r e n c e by a n o n f e d e r a l government e n t i t y ? 1:27:42PM 4 A I t h i n k so. 1:27:49PM 5 MR. FEE: We've been g o i n g about an hour 1:28:58PM 6 again. Do you want t o t a k e a l u n c h b r e a k now? 1:29:00PM 7 MR. BRIDGES: I f you want. 1:29:02PM 8 MR. FEE: Why d o n ' t we do t h a t . 1:29:04PM 9 THE VIDEOGRAPHER: We're g o i n g o f f t h e 1:29:05PM 10 record. The t i m e i s 1:29 p.m. 1:29:06PM 11 (Lunch recess t a k e n . ) 10:27:40AM 12 THE VIDEOGRAPHER: We're back on t h e 2:25:54PM 13 record. The t i m e i s 2:26 p.m. 2:25:55PM 14 BY MR. FEE: 2:25:58PM 15 Q Mr. Malamud, b e f o r e l u n c h we spoke a 2:25:59PM 16 little b i t about t h e p r o c e s s t h a t you went t h r o u g h 2:26:02PM 17 i n p u r c h a s i n g and making c o p i e s o f t h e 73 s t a n d a r d s . 2:26:05PM 18 I — I want t o t a l k t o you now about t h e p r o c e s s you 2:26:09PM 19 used t o make e l e c t r o n i c c o p i e s o f some o f t h e 2:26:12PM 20 standards going forward. 2:26:16PM 21 Can you d e s c r i b e b r i e f l y what p r o c e s s you 2:26:19PM 22 go t h r o u g h t o p o s t t h e s t a n d a r d s a t i s s u e on your 2:26:21PM 23 website? 2:26:26PM 24 A Step one i s t o d e t e r m i n e whether a 2:26:31PM 25 s t a n d a r d has been e x p l i c i t l y i n c o r p o r a t e d by 2:26:33PM (866) 448 - DEPO www.CapitalReportingCompany.com © 2015 case l:13-cv-01215-TSC ( ^ ^ m ^ ^ S i & v i t U W } ^ ^^^^ °^ 30(b)(6) PubUc.Resource.Org 02-26-2015 157 1 reference. Step two i s t o g e t a copy o f t h e 2 : 26: 38PM 2 s t a n d a r d and scan i t . Step t h r e e i s t o append a 2 :26 :4 3PM 3 cover s h e e t . And t h e n Step f o u r i s t o t r a n s f e r i t 2 :26 :5 5PM 4 o n t o t h e h t d o c s segment o f o u r web s e r v e r , w h i c h i s 2 : 27:01PM 5 where documents live. 2 :27 : 05PM 6 Q And once t h e document i s on your htdocs 2 :27 : 11PM 7 web server, i s i t generally accessible t o the 2 : 27: 14PM 8 public? 2 :27 :2 5PM- 9 A Yes. 2 : 27:2 5PM 10 Q Now, f o r t h e s t a n d a r d s t h a t a r e p o s t e d on 2 :27 :25PM 11 your w e b s i t e , d i d you always purchase paper c o p i e s 2 : 27:2 9PM 12 o f t h o s e s t a n d a r d s and t h e n scan them,, o r d i d you 2 :27 :32PM 13 buy e l e c t r o n i c c o p i e s a t times? 2 :27 : 3 6PM 14 A For t h e s t a n d a r d s a t i s s u e t h e y ' r e a l l 2 :27 : 39PM 15 paper c o p i e s . 2 : 27:43PM 16 Q D i d you purchase any o f t h e paper c o p i e s 2 :27 :4 5PM 17 o f t h e s t a n d a r d s a t i s s u e d i r e c t l y f r o m one o f t h e 2 :27 : 47PM 18 plaintiffs? 2 :27 : 50PM 19 MR. BRIDGES: O b j e c t i o n , asked and 2 : 27: 51PM 20 answered. 2 : 27:51PM 21 THE WITNESS: We — we a l r e a d y went over 2 :27 :52PM 22 t h a t , I b e l i e v e , on NFPA and ASTM f o r — 2 : 27:53PM 23 BY MR. FEE: 2 :27 :57PM 24 Q And t h a t was w i t h r e s p e c t t o s t a n d a r d s 2 :27 :58PM 25 t h a t a r e on t h e P u b l i c Resource w e b s i t e ? You d i d 2 : 28: 01PM (866) 448 - DEPO www.CapitalReportingCompany.com © 2015 case l:13-cv-01215-TSC ( S £ ^ m % ^ 8 i & i i t U ^ M j ^ ^^^9^ of 259 30(b)(6) PubUc.Resource.Org 02-26-2015 224 1 an HTML v e r s i o n t h a t was produced i n c o n j u n c t i o n 4 : 31: 36PM 2 w i t h HTC and — and y o u r s e l f ; i s t h a t correct? 4 : 31 : 40PM 3 MR. BRIDGES: I f he's a s k i n g about t h e 4 : 31 :4 6PM 4 whole document, then make sure t h a t you u n d e r s t a n d 4 : 31:47PM '5 t h e whole document and a