Page:ASTM v. PRO (D.D.C. 2022).pdf/33

 Thomas Decl. ¶ 12), 88 (citing Thomas Decl. ¶ 14; Jarosz Rep., ECF No. 119 ¶ 86; Pls.’ SMF ¶ 240 (citing Berry Decl. ¶¶ 11–12))).

For example, the relevant portions of the supplemental Pauley, Reiniche, Thomas, and Berry declarations offer only general assertions about Plaintiffs’ read-only access rooms. See Supp. Pauley Decl. ¶¶ 43, 45 (describing NFPA’s “belie[f]” that read-only access rooms offers members of the public adequate access to its standards); Supp. Reiniche Decl. ¶ 3 (explaining that ASHRAE offers online read-only access to many of its standards); Thomas Decl. ¶¶ 12, 14 (stating that ASTM develops consensus standards that are “used by scientists and engineers in their laboratories, by architects and designers in their plans, and by industry in their business contracts”); Berry Decl. ¶¶ 11–12, Exs. J, K (providing email exchange with third-party entity regarding the third-party’s ability to sell an NFPA standard on eBay and an email exchange with a second third-party entity regarding a “promotional piece” and the entity’s ability to access the 2014 National Electrical Code online). These declarations offer no clarity on whether entities who use the standards are likely to access Defendant’s postings instead of buying them from Plaintiffs or accessing them in Plaintiffs’ read-only rooms. The relevant portion of the Jarosz Report is mostly conclusory and, in part, undermines Plaintiffs’ argument that consumers will switch to using Defendant’s postings. See Jarosz Rep. ¶ 86 (describing ASTM’s standards as reasonably priced and easily accessible in read-only rooms).

With regards to the Circuit’s second question, Plaintiffs improperly shift the burden, arguing that Defendant has offered no analysis of what impact partial re-postings, as opposed to full re-postings, would have on the market for the originals. The court recognizes that it is difficult to provide quantifiable data on this issue given that Defendant has only reposted each of