Motion for Leave to Intervene in Public. Resource.Org, Inc. vs. California Office Of Administr...| Trellis.Law

On March 17, 2021 a Motion-Secondary was filed involving a dispute between and for (Writ - Administrative Mandamus) in the District Court of Sacramento County.

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1 COOLEY LLP FILED
MATTHEW D. CAPLAN (260388) Superior Court Of Califodiia,
2 (mcaplan@cooley.com) ' Sdcramento
JOSEPH D. MORNIN (307766) 08/16/2021
3 (jmomin@cooley.com)
RYAN O'HOLLAREN (316478) tcrowtlter
4 (rohollaren@cooley.com) By Deputy
3 Embarcadero Center, 20"^ floor Castt Numbur:
5 San Francisco, CA 94111-4004
Telephone: +1 415 693 2000 34-2021-80003612
6 Facsimile: +1 415 693 2222
7 Attorneys for Petitioner
PUBLIC.RES0URCE.ORG, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 PUBLIC.RES0URCE.ORG, INC., CaseNo. 34-2021-80003612
13 Petitioner, PUBLIC.RESOURCE.ORG, INC.'S
OPPOSITION TO NATIONAL FIRE
14 PROTECTION ASSOCIATION, INC. AND
INTERNATIONAL CODE COUNCIL, INC.'S
15 CALIFORNIA OFFICE OF MOTION TO INTERVENE
ADMINISTRATIVE LAW, and tiie
16 CALIFORNIA BUILDING STANDARDS Date: August 27, 2021
COMMISSION Time: 10:00 a.m.
17 Dept.: 27
Respondents. Judge: Hon. Steven M. Gevercer CQ
18 Filed: March 17, 2021
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ATTORNEYS AT LAW
SAN FRANCISCO FExmoNER PUBLIC.RESOURCE.ORG, INC'S OPPOSITION TO MOTION TO INTERVENE
CASE NO. 34-2021-80003612
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION 5
4 II. BACKGROUND 6
III. ARGUMENT 7
5 A. There is no basis for mandatory intervention 7
6 1. NFPA and ICC lack the requisite interest in this proceeding 7
7 2. The disposition of this action will not impair NFPA and ICC's
ability to enforce their alleged copyrights 10
8
3. Respondents adequately represent NFPA and ICC's interests 10
9 B. The Court should not allow permissive intervention 11
1. NFPA and ICC have no direct and immediate interest in this
10 proceeding 11
11 2. NFPA and ICC's intervention will unduly enlarge the issues in this
litigation '. 14
12 3. NFPA and ICC's reasons for intervention do not outweigh Public
Resource's reasons for opposing intervention 14
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IV. CONCLUSION 15
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ATTORNEYS AT LAW
Lc6 A N G E L S PETFTIONER PUBLIC.RESOURCE.ORG, I N C ' S OPPOSFFION TO MOTION TO INTERVENE
CASE No. 34-2021-80003612
1 T A B L E OF AUTHORITIES

2 Page(s)

3 Cases

4 Am. Soc y for Testing & Materials v. Public.Resource.Org, Inc.,
896 F.3d 437 (D.C. Cir. 2018) 8
5
Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc.,
6 United States District Court for the District of Columbia, Case No. 1:13-cv-
01215-TSC 10
7
Building Officials & Code Adm 'rs v. Code Tech., Inc.,
8 628 F.2d 730 (1st Cir. 1980) 8
9 Caldecott v. Superior Ct.,
243 Cal. App. 4th 212 (2015) 9
10
City & Cnty. ofS.F. v. State of Cal,
11 128 Cal. App. 4th 1030 (2005) 11
12 City of Burlingame v. Cnty. of San Mateo,
103 Cal. App. 2d 885 (1951) 12
13
City of Inglewood v. Teixeira,
14 No. CV1501815MWFMRWX, 2015 WL 5025839 (CD. Cal. Aug. 20, 2015) 14"
15 City of Malibu v. Cal. Coastal Comm 'n,
128 Cal. App. 4th 897 (2005) 12
16
City of San Jose v. Superior Ct.,
17 2 Cal 5th 608 (2017) 13
18 Cnty. of LA. v. Superior Ct. (Axelrad),
82 Cal. App. 4tii 819 (2000) 9
19
Cnty. of Santa Clara v. Superior Ct.,
20 170 Cal. App. 4th 1301 (2009), as modified (Feb. 27, 2009) 9, 14
21 Connell v. Superior Ct.,
56 Cal. App. 4th 601 (1997) : 9
22
Edwards v. Heartland Payment Sys., Inc.,
23 29 Cal. App. 5th 725 (2018) 7, 11
24 Georgia V. Public.Resource.Org, Inc.,
140 S. Ct. 1498 (2020) 8
25
Hughes Salaried Retirees v. Adm 'r of Hughes,
26 72F.3d686 (9th Cir. 1995) 9
27 Int'I Code Council, Inc. v. UpCodes, Inc.,
No. 17 Civ. 6261 (VM), 2020 WL 2750636 (S.D.N.Y. May 27, 2020) 8
28
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ATTORNEYS AT L A W
LCGANCELES PETFTIONER PUBLIC.RESOURCE.ORG, I N C ' S OPPOSFFION TO MOTION TO INTERVENE
CASE No. 34-2021-80003612
1 T A B L E OF AUTHORITIES
(continued)
2 Page(s)

3 Int'lFed'nofPro. & Tech. Eng'rs, Loc. 21, AFL-CIO v. Superior Ct.,
42 Cal. 4th 319 (2007) 13
4
L.A. Unified Sch. Dist. v. Superior Ct.,
5 228 Cal. App. 4th 222 (2014) 9
6 Royal Indem. Co. v. United Enters., Inc.,
162 Cal. App. 4th 194 (2008), as modified (May 7, 2008) 12
7
Sander v. State Bar of Cal.,
8 26 Cal. App. 5th 651 (2018)..... 13
9 Siena Ct. Homeowners Ass 'n v. Green Valley Corp.,
164 Cal. App. 4th 1416 (2008) 11, 12
10
Veeck v. S. Bldg. Code Cong. Int 'I, Inc.,
11
293 F.3d 791 (5th Cir. 2002) (en banc) 8
12
Statutes
13
17 U.S.C. § 106 i 12
14
Cal. Code Civ. Proc.
15 § 387(d)(1) 7
§ 387(d)(2) 11.
16 Cal. Gov't Code
§ 6253.9(a)(lH2) 6
17 § 6254(c) 13
§ 6255(a) 13
18 §6257.5 5,9
19 Califomia's Public Records Act 6
20 CCR passim
21 OAL passim
22 PRA passim
23 Other Authorities
24 https://vyww.bostonglobe.coni/metro/2017/03/12/fire-protection-association-
25 nonprofit-doesn-mean-low-pay/ftUqM2eCbEbvFxfeAcMnZP/storv.html 7

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ATTORNEYS AT LAW
LC6 ANGELES PETFTIONER PUBLIC.RESOURCE.ORG, INC.'S OPPOSFFION TO MOTION TO INTERVENE
CASE No. 34-2021-80003612
1 I. INTRODUCTION

2 In this public records petition, Public.Resource.Org ("Public Resource") seeks a complete
3 electronic copy of the Califomia Code of Regulations ("CCR") as maintained by the state
4 agencies charged with administering the CCR. National Fire Protection Association, Inc.
5 ("NFPA") and Intemational Code Council, Inc. ("ICC") seek to intervene to prevent the State of
6 Califomia from providing a copy of its own laws to Public Resource because they claim to own
7 copyrights in parts of Califomia's laws. Their copyright ownership claim is mistaken, and even if
8 it were valid, it still would not be a proper basis for intervention. NFPA and ICC therefore fail to
9 satisfy the legal standards for both mandatory intervention and permissive intervention.
10 First, mandatory intervention is unwarranted because NFPA and ICC lack the requisite
11 interest in this proceeding. They do not own copyrights in the laws of Califomia because model
12 codes enter the public domain when they are enacted as law. And even if they could assert
13 ownership of copyrights in Califomia's laws (and they cannot), they still would have no valid
14 basis to intervene. They argue that Public Resource intends to infringe their alleged copyrights by
15 copying and disseminating the CCR, but this argument fails because the State may not withhold a
16 public record "based upon the purpose for which the record is being requested" or the motives of
17 the party making the request. Cal. Gov't Code § 6257.5. NFPA and ICC also fail to show that the
18 disposition of this action would impair their ability to enforce their alleged copyrights, because
19 the outcome here has no bearing on the alleged copyrights NFPA and ICC are interested in
20 enforcing. And, in any event, NFPA and ICC's interest is adequately represented by the
21 respondents in this action.
22 Second, the Court should not allow permissive intervention because NFPA and ICC have
23 no direct and immediate interest in this proceeding. If the Court mles in favor of Public Resource
24 and directs the agencies to disclose the CCR, that disclosure in itself could not infringe any
25 alleged copyright in the CCR. Copyright infringement could only occur if there is a separate,
26 intermediate step, such as impermissible copying or distribution. Califomia case law is clear on
27 this issue: this type of indirect interest cannot satisfy the legal standard for permissive
28 intervention. Additionally, permissive intervention is inappropriate because it would unduly
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ATTORNEYS AT LAW
SAN FRANCISCO
PETFTIONER PUBLICRESOURCE.ORG, INC.'S OPPOSFFION TO MOTION TO INTERVENE
CASE No. 34-2021-80003612
1 enlarge the issues in this litigation (by introducing copyright issues that the Court need not
2 address to resolve the underlying dispute), and NFPA and ICC's reasons for intervening do not
3 outweigh the parties' interests in resolving this proceeding without third-party intervention.

4 II. BACKGROUND

5 Public Resource is a Califomia nonprofit that seeks to improve public access to
6 govemment records and primary legal materials. See generally Pet'n for Writ of Mandate, filed
7 Mar. 17, 2021, at 7-13. In December 2020, Public Resource submitted requests under
8 Califomia's Public Records Act ("PRA") to the Office of Administrative Law ("OAL") and the
9 Building Standards Commission ("BSC") seeking electronic copies of the CCR. The agencies
10 refused on several grounds, including that the CCR is available online on a proprietary platform
11 operated by West; paper copies of the CCR are available for inspection at certain public libraries;
12 print editions ofthe CCR can be purchased (in whole or part) from private entities; parts of Title
13 24 of the CCR are available online on various private websites (with restrictions on their access
14 and use); and BSC "does not have the publishing rights to Title 24 and therefore cannot provide
15 free copies to the public" because "Title 24 is based on an includes model codes produced by the .
16 publishing entities, and they then publish Califomia's codes, retaining copyright protections."
17 Pet'n for Writ of Mandate, Ex. G.
18 In response. Public Resource explained that these justifications do not relieve the agencies
19 of their obligations to disclose public records under the PRA, including the duty to provide
20 records in "any electronic format in which it holds the information" and any format "used by the
21 agency to create copies for its own use or for provision to other agencies." Cal. Gov't Code
22 § 6253.9(a)(l)-(2). After the agencies continued to refiise, Public Resource filed a petition asking
23 this Court to issue a writ commanding OAL and BSC to produce electronic copies of the CCR.
24 NFPA and ICC are private entities that facilitate the development of building codes,
25 electrical codes, and other technical standards. See generally Mot. to Intervene ("Mot."), filed
26 May 24, 2021, at 4-5. Some of the standards that NFPA and ICC publish are incorporated by
27 reference in the CCR. For example, elements of NFPA's National Electrical Code are
28 (
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PETFFIONER PUBLIC.RESOURCE.ORG, I N C ' S OPPOSFFION TO MOTION TO INTERVENE
CASE No. 34-2021-80003612
I incorporated by reference in the Califomia Electrical Code at Title 24, Part 3 of the CCR,' and
2 elements of ICC's Intemational Fire Code are incorporated by reference in the Califomia Existing
3 Building Code at Title 24, Part 10 ofthe CCR. This is no accident; NFPA and ICC actively
4 promote the incorporation of those standards into state law. Because these standards are
5 incorporated by reference in the CCR, they constitute binding law that Califomia citizens must
6 understand and obey. Among other revenue sources, NFPA and ICC make money by selling
7 access to these parts of the law.^
8 NFPA and ICC now seek to intervene in this proceeding to attempt to prevent OAL and
9 BSC from disclosing the CCR to the public.
10 HI. ARGUMENT

11 A. There is no basis for mandatory intervention.
12 A court must allow a third party to intervene when (I) itfilesa timely motion to intervene,
13 (2) it has an interest in the property or transaction at issue, (3) it shows that the disposition of the
14 action may impair its ability to protected that interest, and (4) its interest is not adequately
15 represented by an existing party. Cal. Code Civ. Proc. § 387(d)(1); Edwards v. Heartland
16 Payment Sys., Inc., 29 Cal. App. 5tii 725, 732 (2018). Here, NFPA and ICC's motion is timely,
17 but it fails to satisfy the other three factors.
18 1. NFPA and ICC lack the requisite interest in this proceeding.
19 NFPA and ICC do not have a legitimate interest in this case because they do not own
20 copyrights in the laws of Califomia. The CCR is created by agencies at the direction of the state
21 legislature, and imder the govemment edicts doctrine, "copyright does not vest in works that are
22 (I) created by judges and legislators (2) in the course of their judicial and legislative duties."
23
' Every three years, NFPA's National Electrical Code undergoes an intensive review process in
24 which several Califomia govemment agencies participate under the guidance of BSC. The review
process includes extensive hearings involving the participation of local govemments and the
25 public. The result is a heavily amended and revised document, which then becomes Part 3 of Title
24 oftiieCCR.
26
^ Among several lucrative revenue streams—including training, certification, and accreditation—
27 NFPA and ICC also make money by selling access to these parts of the law. See, e.g.,
https://www.bostonglobe.com/metro/2017/03/12/fire-protection-association-nonprofit-doesn-
28 mean-low-pay/ftUqM2eCbEbvFxfeAcMnZP/storv.html (reporting that NFPA had amassed a
$207 million cash surplus and that its president eamed $4.1 million in one year).
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SAN FRANCISCO PETFFIONER PUBLIC.RESOURCE.ORG, I N C ' S OPPOSFFION TO MOTION TO INTERVENE
CASE NO. 34-2021-80003612
1 Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1508 (2020) (holding that eventiiougha
2 state commission hired private publishers to draft annotations in the law, the finished work was
3 not copyrightable due to the govemment edicts doctrine).
4 Even though it incorporates parts of certain model codes authored by private entities, the
5 fiill text of CCR is unambiguously in the public domain. The Fifth Circuit has decided this very
6 issue:
7 The issue in this en banc case is the extent to which a private
organization may assert copyright protection for its model codes,
8 after the models have been adopted by a legislative body and
become "the law". Specifically, may a code-writing organization
9 prevent a website operator from posting the text of a model code
where the code is identified simply as the building code of a city
10 that enacted the model code as law? Our short answer is that as law,
the model codes enter the public domain and are not subject to the
II copyright holder's exclusive prerogatives.
12 Veeck V. S. Bldg Code Cong Int'l, Inc., 293 F.3d 791, 793 (5th Cir. 2002) (en banc). Other courts
13 across the country have reached the same conclusion. See, e.g., Int'l Code Council, Inc. v.
14 UpCodes, Inc., No. 17 Civ. 6261 (VM), 2020 WL 2750636, at *7 (S.D.N.Y. May 27, 2020)
15 (explaining that "a private party cannot exercise its copyrights to restrict the public's access to the.
16 law" and concluding that a plaintiff "cannot claim actionable infringement based only on
17 Defendants' accurate posting of the [plaintiffs codes] as [a]dopted, which are essentially enacted
18 state and local laws"); Building Officials & Code Adm 'rs v. Code Tech., Inc., 628 F.2d 730, 734
19 (1st Cir. 1980) ("The citizens are the authors of the law, and therefore its owmers, regardless of
20 who actually drafts the provisions, because the law derives its authority from the consent ofthe
21 public, expressed through the democratic process."); Am. Soc 'y for Testing & Materials v.
22 Public.Resource.Org, Inc., 896 F.3d 437, 451 (D.C. Cir. 2018) ("the express text ofthe law falls
23 plainly outside the realm of copyright protection"). So too here: NFPA and ICC cannot use
24 copyright to restrict the public's access to the CCR.
25 In addition, even if NFPA and ICC could show that they own valid copyrights in the laws
26 of Califomia (which, under federal law, they cannot), they would have no valid basis to intervene
27 in this case. The only issue in this proceeding is whether Public Resource is entitled to a copy of
28 the CCR in response to its PRA request. NFPA and ICC claim to have an interest because Public
COOLEY LLP -8-
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SAN FRANCISCO PETITIONER PUBLICRESOURCE.ORG, I N C ' S OPPOSFFION TO MOTION TO INTERVENE
CASE NO. 34-2021-80003612
1 Resource could subsequently reproduce or distribute copies of the CCR if it prevails in this
2 action, which NFPA and ICC assert would implicate their alleged copyrights in the law. But
3 under the PRA, an agency cannot withhold a public record "based upon the purpose for which the
4 record is being requested." Cal. Gov't Code § 6257.5; L.A. Unified Sch. Dist. v. Superior Ct., 228
5 Cal. App. 4th 222, 242 (2014) (citing Connell v. Superior Ct.,56 Cal. App. 4th 601, 616 (1997));
6 Caldecott v. Superior Ct., 243 Cal. App. 4th 212, 219 (2015); Cnty. of L.A. v. Superior Ct.
7 (Axelrad), 82 Cal. App. 4th 819, 826 (2000). The law is clear: "The motive ofthe particular
8 requester in seeking public records is irrelevant, and the CPRA does not differentiate among those
9 who seek access to them." L.A. Unified, 228 Cal. App. 4th at 242 (citing Cnty. of Santa Clara v.
10 Superior Ct., 170 Cal. App. 4th 1301, 1324 (2009), as modified (Feb. 27, 2009)).
11 The justification for this mle is that "[t]here is no practical way of limiting the use of the
12 information, once it is disclosed, to the purpose asserted by the requestor." Cnty. of L.A., 82 Cal.
13 App. 4th at 826 (quoting Hughes Salaried Retirees v. Adm 'r of Hughes, 72 F.3d 686, 693 (9th
14 Cir. 1995)). Nor is there any way of "assuring that the information will not be used by the
15 requestor for other purposes, or, for that matter, will not be used by third parties who manage to .
16 obtain the information once it has been disclosed to [the requestor]." Id.
17 Indeed, the PRA requires disclosure even when the "requesting party is a commercial
18 entity using the information for strictly commercial purposes." Connell, 56 Cal. App. at 617. To
19 be clear, Public Resource is not a commercial entity. Unlike NFPA and ICC, it does not sell
20 access to the law; its mission is to make the law more accessible to the public. Regardless of how
21 NFPA and ICC characterize Public Resource's activities, however, their arguments are unavailing
22 because Public Resource's motives have no bearing on the PRA analysis. NFPA and ICC's
23 purported interest in this proceeding—^to protect their alleged copyrights from possible future
24 infringement—is not a valid basis for intervention. Tellingly, NFPA and ICC cite no case law
25 showing that this purported interest is sufficient. Nor can they, because no Califomia court has
26 permitted a third party to intervene based on claims that it owns copyrights in the public records
27 at issue.
28
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SAN FRANCISCO PETFFIONER PUBLIC.RESOURCE.ORG, I N C ' S OPPOSFFION TO MOTION TO INTERVENE
CASE NO. 34-2021-80003612
1 2. The disposition of this action will not impair NFPA and ICC's ability to
enforce their alleged copyrights.
2
The adjudication of Public Resource's PRA request will have no effect on NFPA and
3
ICC'S ability to enforce their alleged copyrights. If Public Resource prevails, NFPA and ICC may
4
continue to seek any remedy that copyright law provides.
5
Ignoring the extensive federal case law holding that there can be no copyright in the law,
6
NFPA and ICC appear to argue that copyright infringement will inevitably occur if the state
7
discloses the CCR tb Public Resource. Mot. at 5, 9. Even if that were tme (and it is not), it is not a
8
basis to intervene. Whether or not the state agencies provide the requested electronic copy of the
9
CCR has no immediate bearing on NFPA's and ICC's alleged copyrights.
10
NFPA and ICC's motion, the ultimate goal of which is to prevent OAL and BSC from
11
releasing the CCR to the public, seeks to put the copyright cart before the PRA horse. This is not
12
a proper basis for intervention because the outcome of these proceedings will have no impact on
13
NFPA and ICC's ability to enforce their alleged copyrights, which could only be properly
14
enforced in a federal action.^ I f Public Resource prevails in this action and the Court orders the
15
agencies to disclose the CCR, no copyright infringement will have occurred (even assuming for
16
the sake of argument that NFPA and ICC own valid copyrights in CCR). Any potential
17
infringement can only occur after the agencies disclose the CCR to the public. And if Public
18
Resource does not prevail and the State does not disclose the CCR, NFPA and ICC's concems are
19
moot. Either way, after the Court enters its judgment in this action, NFPA and ICC will remain
20
free to seek an injunction (or any other available relief) in federal court if they have a legitimate
21
claim for copyright infringement—^which they do not, because, as discussed above, they cannot
22
claim a copyright interest in the laws of the State of Califomia.
23
3. Respondents adequately represent NFPA and ICC's interests.
24
As explained above, NFPA and ICC's purported interest in this litigation—to protect their
25

26
^ Notably, since 2013, NFPA has been engaged in federal litigation with Public Resource
27 regarding distribution to the public of standards incorporated by reference into law, and therefore
NFPA and ICC are well aware of the correct avenues to seek an injunction for alleged copyright
28 infringement. Am. Soc 'y for Testing & Materials v. Public.Resource.Org, Inc., United States
District Court for the District of Columbia, Case No. 1:13-cv-01215-TSC.
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ATTORNEYS AT LAW
SAN FRANCISCO PETFFIONER PUBLIC.RESOURCE.ORG, I N C ' S OPPOSFFION TO MOTION TO INTERVENE
CASE NO. 34-2021-80003612
1 alleged copyrights from potential future infringement—is not a valid basis for intervention. But
2 even it if were, the respondents in this proceeding—OAL and BSC—^are capable of adequately
3 representing their interest. NFPA and ICC contend that BSC has a contractual obligation not to
4 disclose their allegedly copyrighted materials. Mot. at 9. They then assert, without explanation or
5 support, that BSC lacks the ability to fiilfill its contractual obligation. Id. There is simply no basis
6 for this assertion, and it is undermined by the fact that the state agencies declined to provide the
7 requested records in response to Public Resource's PRA requests. As a result, NFPA and ICC fail
8 to carry their burden of showing that their interests are not adequately represented.

9 B. The Court should not allow permissive intervention.
10 Altematively, a court has discretion to allow a third party to intervene when (1) itfilesa
11 timely motion to intervene, (2) it has a direct and immediate interest in the litigation,
12 (3) intervention will not enlarge the issues in the case, and (3) the reasons for intervention
13 outweigh opposition by the existing parties. Cal. Code Civ. Proc. § 387(d)(2); Edwards, 29 Cal.
14 App. 5th at 736. Here, NFPA and ICC's motion istimelybut legally deficient.

1^ 1. NFPA and ICC have no direct and immediate interest in this
^^ proceeding.

17 As discussed above, NFPA and ICC lack a valid interest in this proceeding because they
18 do not own copyrights in the CCR and because Public Resource's purpose for requesting the
19 records is irrelevant to the PRA analysis. See section III.A.I.
20 In addition, the Court should not allow permissive intervention because NFPA and ICC's
21 purported interest in this proceeding is too speculative and remote. Permissive intervention is
22 appropriate only when a third party establishes that its interest is "direct and immediate."
23 Edwards, 29 Cal. App. 5th at 736 (citing Siena Ct. Homeowners Ass'n v. Green Valley Corp., 164
24 Cal. App. 4th 1416, 1428 (2008)). A "direct and immediate" interest exists when the moving
25 party "will either gain or lose by the direct legal operation and effect of thejudgment." Siena, 164
26 Cal. App. 4th at 1428 (quoting City & Cnty. ofS.F. v. State of Cal, 128 Cal. App. 4th 1030, 1037
27 (2005). Conversely, an interest is "consequential and thus insufficient for intervention when the
28 action in which intervention is sought does not directly affect it although the results ofthe action
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1 may indirectly benefit or harm its owner." Id.
2 Here, the result of this action will not directly affect NFPA or ICC. There are two possible
3 outcomes of this writ proceeding: the Court will order the agencies to disclose the CCR, or it will
4 not. Neither outcome will immediately and directiy affect NFPA and ICC's alleged copyright
5 interest. As NFPA and ICC concede, any alleged copyright infringement could occur only if their
6 copyrighted works are subsequently unlawfully copied and disseminated in a way that violates
7 federal law. Mot. at 5. And, critically, no copying or dissemination could occur as a result of the
8 "direct legal operation" of the outcome of this action. Siena, 164 Cal. App. 4th at 1428. For any
9 alleged copyright infringement to occur, there must be a separate, intermediate step constituting
10 impermissible copying or distribution (or a violation of one of the other exclusive rights
11 enumerated in 17 U.S.C. § 106). NFPA and ICC may be able to identify indirect interests flowing
12 from the outcome of this proceeding—for example, they contend that a judgment in Public
13 Resource's favor could lead to the CCR being disclosed to the public, which could enable
14 members of the public to copy or disseminate it, which could impact the "market" for NFPA and '
15 ICC's products and their "incentive[s]" within that market. Mot at 10. But those potential effects
16 do not justify intervention because they do not result from the direct legal operation of the
17 judgment. Instead, if they happen at all, they would flow indirectly from the judgment's
18 downstream effects. That is not enough to justify intervention. See, e.g.. Royal Indem. Co. v.
19 United Enters., Inc., 162 Cal. App. 4th 194, 204 (2008), as modified (May 7, 2008) (prospective
20 intervenor's interest was insufficient where "the threatened injury will not inevitably result from
21 the judgment but rather from something done afterwards, pursuant to or as a consequence of the
22 judgment"); City of Burlingame v. Cnty. of San Mateo, 103 Cal. App. 2d 885, 890 (1951)
23 (prospective intervenor's interest was "remote and consequential" and therefore insufficient); City
24 of Malibu v. Cal. Coastal Comm 'n, 128 Cal. App. 4th 897, 905 (2005) (prospective intervenors'
25 interest was insufficient because it was based on remote and speculative harms to their property);
26 Siena, 164 Cal. App. 4th at 1428 (a "consequential" interest in an action is not enough, even when
27 the "results of the action may indirectiy benefit or harm its owner" (citation omitted)).
28 Courts permit intervention where the judgment itself would directly affect the proposed
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1 interveners' interests. For example, a court allowed employee unions to intervene in a PRA case
2 involving requests for public records that would disclose the salaries of govemment employees.
3 Int 7 Fed'n of Pro. & Tech. Eng 'rs, Loc. 21, AFL-CIO v. Superior Ct., 42 Cal. 4tii 319, 328
4 (2007). Similarly, a court allowed bar associations to intervene in a PRA case involving requests
5 for state bar admissions records that would disclose applicants' undergraduate GPAs, LSAT
6 scores, bar exam performance, and other information. Sander v. State Bar of Cal., 26 Cal. App.
7 5th 651, 656-57 (2018). These cases are distinguishable in two ways.
8 First, in both cases, thejudgment itself would have directiy and immediately affected
9 intervenors' interests. For example, employees' privacy interests would be directly affected as
10 soon as their salary information is disclosed to the public. Here, by contrast, disclosure of the
11 CCR would have no direct effect on NFPA or ICC. There may be indirect, downstream effects,
12 but those are not enough to satisfy the legal standard for permissive intervention. And in that
13 scenario, as explained above, NFPA and ICC would not be without remedy. If they believe
14 copyright infringement has occurred (or will occur), they would remain free to pursue the full
15 panoply of remedies that copyright law provides, including injunctive relief to prevent threatened
16 infringement.
17 Second, the prospective intervenors in those cases cited PRA exemptions that would have
18 prevented disclosure. Sander, 26 Cal. App. 5th at 657 (intervenors sought "to protect privacy and
19 reputational interests" of bar applicants under Cal. Gov't Code § 6254(c), which exempts
20 "personal, medical, or similar files, the disclosure of which would constitute an unwarranted
21 invasion of personal privacy"); Int'l Fed'n, 42 Cal. 4th at 328-29 (intervenors sought to prevent
22 disclosure of the salaries of govemment employees under Cal. Gov't Code § 6254(c)). In contrast,
23 NFPA and ICC cite no PRA exemption here. The PRA is clear: public records must be disclosed
24 in response to PRA requests "unless a statutory exception is shown." City of San Jose v. Superior
25 Ct, 2 Cal. 5tii 608, 616 (2017) (citation omitted); Cal. Gov't Code § 6255(a). Thus, a proposed
26 intervenor must tie its interest to a specific statutory exemption that would justify withholding the
27 public record at issue. In some limited circumstances, copyright can be a basis to withhold public
28 records in response to a PRA request, but only when expressly authorized by specific a specific
COOLEY LLP - 13-
ATTORNEYS AT LAW
SANFRANOSCO PETFFIONER PUBLICRESOURCE.ORG, I N C ' S OPPOSFFION TO MOTION TO INTERVENE
CASE NO. 34-2021-80003612
I statutory provision. See, e.g., Cnty. of Santa Clara, 170 Cal. App. 4th at 1333, 1335 (because no
2 "express authorization to secure copyrights" existed for GIS data, the county could not assert
3 copyright protection as a basis for nondisclosure); City of Inglewood v. Teixeira, No.
4 CV1501815MWFMRWX, 2015 WL 5025839, at *4 (CD. Cal. Aug. 20, 2015) (becausetiiecity
5 could identify "no affirmative grant of authority that permits it to obtain and assert a copyright for
6 the City Council Videos," the city could not withhold the videos on copyright grounds); see also
7 Pet'n for Writ of Mandate at 16-17.
8 No such provision exists here. Accordingly, NFPA and ICC's alleged copyright interest
9 has no relevance to whether OAL and BSC must disclose the CCR in response to Public
10 Resource's request, and they have no basis to intervene.
11 2. NFPA and ICC's intervention will unduly enlarge the issues in this
litigation.
12
13 NFPA and ICC seek to introduce an array of new issues into this proceeding, including
14 whether they hold valid copyrights in parts of the CCR, whether disclosure ofthe CCR would
15 have an impact on the market for their works or their incentives to develop new standards, and
16 whether any of those interests provide a legal basis to compel the agencies to withhold the CCR
17 from disclosure to the public.
18 There is no need for the Court to address these issues in order to resolve Public
19 Resource's writ petition. Further, Califomia courts are not the proper venues to address the
20 questions of federal law that NFPA and ICC seek to introduce. Accordingly, intervention would
21 unduly enlarge the issues in this litigation, which weighs against granting permissive intervention.
22 3. NFPA and ICC's reasons for intervention do not outweigh Public
Resource's reasons for opposing intervention.
23
24 Ultimately, this case is about whether the State of Califomia has an obligation to make its
25 laws accessible to its citizens. Public Resource seeks nothing more than a complete electronic
26 copy of the CCR, and in this writ proceeding, the Court will decide whether the agencies must
27 produce the CCR in response to Public Resource's PRA requests. NFPA and ICC seek to
28 intervene to prevent the public from accessing the law, based on the theory that they own
COOLEYLLP - 14-
ATTORNEYS AT LAW
SAN FRANCISCO PETFFIONER PUBLIC.RESOURCE.ORG, INC'S OPPOSFFION TO MOTION TO INTERVENE
CASE NO. 34-2021-80003612
I copyrights in parts of it. This is not a legitimate basis for intervention; rather, it is a peripheral

2 concem that has no bearing on the legal issues at stake in this proceeding.

3 IV. CONCLUSION

4 NFPA and ICC have failed to satisfy the legal standards for mandatory and permissive

5 intervention. Accordingly, Public Resource respectfully requests that the Court deny their motion

6 to intervene.

8 Dated: August 16, 2021 COOLEY LLP
9

Case Info

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Jill H. Talley Track Judge’s New Case

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August 16, 2021

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March 17, 2021

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