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American Society for Testing and Materials v. Public.Resource.Org, Inc.

United States District Court, D. Columbia.

February 2, 2015

AMERICAN SOCIETY FOR TESTING AND MATERIALS et al., Plaintiffs,
v.
PUBLIC.RESOURCE.ORG, INC., Defendant

For AMERICAN SOCIETY FOR TESTING AND MATERIALS, Plaintiff: Jordana Sara Rubel, LEAD ATTORNEY, MORGAN, LEWIS -- BOCKIUS LLP, Washington, DC; J. Kevin Fee, Michael Franck Clayton, MORGAN, LEWIS -- BOCKUS LLP, Washington, DC.

For NATIONAL FIRE PROTECTION ASSOCIATION, INC., Plaintiff, Counter Defendant : Nathan M. Rehn, LEAD ATTORNEY, MUNGER, TOLLES -- OLSON, LLP, San Franciso, CA; Anjan Choudhury, MUNGER, TOLLES -- OLSON LLP, Los Angeles, CA; Jonathan H. Blavin, Kelly Klaus, MUNGER, TOLLES -- OLSON LLP, San Francisco, CA; Michael Franck Clayton, MORGAN, LEWIS -- BOCKUS LLP, Washington, DC.

For AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR& CONDITIONING ENGINEERS, INC., Plaintiff: Jeffrey S. Bucholtz, LEAD ATTORNEY, KING -- SPALDING LLP, Washington, DC; Joseph R. Wetzel, Kenneth L. Steinthal, KING -- SPALDING, LLP, San Francisco, CA; Michael Franck Clayton, MORGAN, LEWIS -- BOCKUS LLP, Washington, DC.

For PUBLIC.RESOURCE.ORG, INC., Defendant: Andrew Phillip Bridges, LEAD ATTORNEY, FENWICK -- WEST, LLP, San Francisco, CA; Mitchell L. Stoltz, LEAD ATTORNEY, ELECTRONIC FRONTIER FOUNDATION, San Francisco, CA; Corynne McSherry, ELECTRONIC FRONTIER FOUNDATION, San Francisco, CA; David Elliot Halperin, Washington, DC; Kathleen Lu, FENWICK -- WEST LLP, San Francisco, CA; Matthew B. Becker, FENWICK -- WEST LLP, Mountain View, CA.

For PUBLIC.RESOURCE.ORG, INC., Counter Claimant: Andrew Phillip Bridges, LEAD ATTORNEY, FENWICK -- WEST, LLP, San Francisco, CA; Mitchell L. Stoltz, LEAD ATTORNEY, ELECTRONIC FRONTIER FOUNDATION, San Francisco, CA; Corynne McSherry, ELECTRONIC FRONTIER FOUNDATION, San Francisco, CA; David Elliot Halperin, Washington, DC; Matthew B. Becker, FENWICK -- WEST LLP, Mountain View, CA.

For AMERICAN SOCIETY FOR TESTING AND MATERIALS, Counter Defendant: Jordana Sara Rubel, LEAD ATTORNEY, MORGAN, LEWIS -- BOCKIUS LLP, Washington, DC; J. Kevin Fee, MORGAN, LEWIS -- BOCKUS LLP, Washington, DC; Michael Franck Clayton, MORGAN, LEWIS -- BOCKIUS LLP, Washington, DC.

For AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND, AIR& CONDITIONING ENGINEERS, INC., Counter Defendant: Jeffrey S. Bucholtz, LEAD ATTORNEY, KING -- SPALDING LLP, Washington, DC; Joseph R. Wetzel, Kenneth L. Steinthal, KING -- SPALDING, LLP, San Francisco, CA; Kenneth L. Steinthal, KING -- SPALDING, LLP, San Francisco, CA; Michael Franck Clayton, MORGAN, LEWIS -- BOCKUS LLP, Washington, DC.

Page 535

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge.

Before the Court is Plaintiffs' motion to strike Defendant's jury demand. Because no party seeks damages and Defendant has not otherwise shown any grounds for its jury demand, the motion is granted.

I. BACKGROUND

Plaintiffs American Society for Testing and Materials, National Fire Protection Association, Inc., and American Society Of Heating, Refrigerating, And Air-Conditioning Engineers, Inc., brought this action for copyright infringement and trademark infringement against Public.Resource.org, Inc. (" Public Resource" ). Plaintiffs are not-for-profit organizations that develop private-sector codes and standards. Plaintiffs sell or license these codes to generate revenue. State and local government entities frequently incorporate Plaintiffs' codes into statutes, regulations, and ordinances. For example, Plaintiff National Fire Protection Association develops the National Electrical Code, which provides a standardized code for installation of electrical systems. Plaintiffs allege that the codes are original works protected from copyright infringement, and brought suit because Public Resource has posted a number of Plaintiffs' codes on its website. Plaintiffs seek a permanent injunction enjoining Public Resource from posting Plaintiffs' codes and trademarks. Plaintiffs do not seek money damages in their Complaint.

Page 536

Defendant Public Resource is a non-profit entity devoted to publicly disseminating legal information. According to Defendant, its " mission is to improve public access to government records and the law . . . To accomplish this mission, Public Resource acquires copies of . . . records, including legal decisions, tax filings, statutes, and regulations, and publishes them online in easily accessible formats that make them more useful to readers, entirely free of charge." (Def Answer ¶ ¶ 27-28). Public Resource argues that because the codes at issue have been incorporated by reference into federal, state, and local laws, it is entitled to publish them as public materials. Public Resource filed a counterclaim seeking a declaratory judgment that posting the codes does not infringe Plaintiffs' copyrights or trademarks, and included a jury demand in its counterclaim.

Plaintiffs have moved to strike this jury demand, arguing that because neither party seeks money damages, there is no basis for a jury demand. Plaintiffs further argue that as the copyright holders, they possess the right to demand a jury, and Public Resource cannot rely on a counterclaim for a declaratory judgment of noninfringement as a basis for a jury demand. Public Resource argues in response that it is entitled to a jury trial on its noninfringement counterclaim based on the fact that Plaintiffs could have requested a jury trial, had they asked for money damages. Public Resource argues that its counterclaims are legal claims which create a jury right, and further that its declaratory judgment counterclaims must be " inverted," meaning Public Resource is considered the plaintiff on those claims and can assert whatever jury rights Plaintiffs may have had - regardless of the fact ...


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