329 F.3d 923 (7th Cir. 2003), 02-2244, Bucklew v. Hawkins

Docket Nº:02-2244
Citation:329 F.3d 923
Party Name:STEPHEN L. BUCKLEW, Plaintiff-Appellee, Cross-Appellant v. HAWKINS, ASH, BAPTIE & CO., LLP, and HAB, INC., Defendants-Appellants, Cross-Appellees.
Case Date:May 27, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 923

329 F.3d 923 (7th Cir. 2003)

STEPHEN L. BUCKLEW, Plaintiff-Appellee, Cross-Appellant


HAWKINS, ASH, BAPTIE & CO., LLP, and HAB, INC., Defendants-Appellants, Cross-Appellees.

No. 02-2244

United States Court of Appeals, Seventh Circuit

May 27, 2003


Appeals from the United States District Court for the Western District of Wisconsin. No. 01-C-47-S John C. Shabaz, Judge.

Page 924

[Copyrighted Material Omitted]

Page 925


Harry E. Van Camp (argued), Hayes, Van Camp & Schwartz, WI, for plaintiff-Appellee.

Donald W. Rupert (argued), Mayer, Brown, Rowe & maw, Chicago, IL, for defendants-appellants.

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges .

POSNER, Circuit Judge.

Stephen Bucklew brought this suit in a federal district court in Wisconsin against two affiliated companies that we'll call "HAB." The suit charges copyright infringement, fraud, conversion, and violation of RICO. The district judge dismissed all but the copyright claim, which was tried to a jury, resulting in a verdict for Bucklew of $660,000, which the judge cut down to $395,000. HAB appeals; Bucklew cross-appeals, challenging the dismissal of his noncopyright claims.

Local housing authorities that want grants from the federal department of Housing and Urban Development have to complete forms prescribed by HUD. The forms require not only specific basic data such as salaries and other categories of proposed expenditure by the grant applicant but also simple arithmetical transformations of the data, such as adding the numbers in particular cells in the table of basic data. Bucklew developed and copyrighted software, intended to be used in conjunction with standard spreadsheet applications Page 926

such as Lotus 1-2-3 and Excel, for doing these transformations and displaying them in tables. The essential transformation involves entering the basic data in an electronic copy of the HUD prescribed form and applying to those data an algorithm that picks out the relevant cells and performs the relevant operation (namely addition) on them and displays the results in tabular form. Standard spreadsheet applications make this transformation relatively easy to program because they include functions such as DSUM, a simple command for adding up the numbers in the cells identified by a criterion specified by the programmer and displaying the results of the addition. Bucklew does not claim copyright in either the spreadsheet applications or DSUM. But there is more, though not a great deal more, to his product than these programs. Decisions have to be made regarding choice and size of font, the size of cells and columns, whether and where to use color, the wording of labels and headings (other than those prescribed by the HUD forms), and whether to use boldface or italics for column headings. These decisions were made by Bucklew. The ones we have named all involve the appearance of the forms, but software that is read only by the computer and not by its human user is also copyrightable, and Bucklew does claim copyright in the "construction" as well as display of his forms; but it is unexplained what he means by this or whether it has been infringed. The trial focused on one of the four forms (as the parties refer to the conversion of a prescribed HUD form into an electronic form that computes and displays the arithmetic manipulations that HUD requires) copyrighted by Bucklew that he claimed were copied by HAB. This form is a transformation of HUD form 52566, which requires salary data; the other three forms require data for other categories of expenditure. HAB grudgingly concedes that the evidence compels an inference that it copied Bucklew's form 52566 to create its own form 52566. Some similarities between a copyrighted work and a work alleged to infringe it are consistent with an inference of independent creation, and in that case evidence that the alleged infringer had access to (that is, saw or at least could have seen) the copyrighted work is indispensable. Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1169-70 (7th Cir. 1997). But when the similarities concern details of such an arbitrary character that the probability that the infringer had duplicated them independently is remote, an inference of copying may be drawn without any additional evidence. Id.; Selle v. Gibb, 741 F.2d 896, 901, 903-05 (7th Cir. 1984); Gaste v. Kaiserman, 863 F.2d 1061, 1067-68 (2d Cir. 1988); Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350, 355-56 (4th Cir. 2001). These cases say that access can be inferred from a sufficiently striking similarity between the two works, and that is true; but as the Fifth Circuit suggested in Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978), it is more straightforward to say that in some cases proof of access isn't required.

It is in order to avoid having to prove access that mapmakers will sometimes include a fictitious geographical feature in their maps; if that feature (what is called in the trade a "copyright trap") is duplicated in someone else's map, the inference of copying is compelling. Rockford Map Publishers, Inc. v. Directory Service Co. of Colorado, Inc., 768 F.2d 145, 147 (7th Cir. 1985); Melville B. Nimmer & David Nimmer, Nimmer on Copyright, vol. 4,§ 13.03[C], pp. 13-75 to 13-77 (2002); see also General Drafting Co. v. Andrews, 37 F.2d 54, 56 (2d Cir. 1930) (errors as distinct from deliberately set traps). And that is Page 927

the case with regard to form 52566. Bucklew's version contains an arbitrary pattern of boldfacing of cells; HAB's duplicates it exactly. Bucklew's form also contains an "output range," an intermediate table that he carried over from a previous spreadsheet program but that has no function in his current program—or in HAB's. Had HAB written its program from scratch, it would have had no reason to include an output range—yet it did. And in another intermediate table, one that contains the identical data as the form 52566 itself (the starting point for the transformation), HAB's version uses the identical headings as Bucklew's corresponding intermediate table, rather than the headings in the form 52566 with which HAB had begun. (For unexplained reasons, that form had different headings from the form from which Bucklew had begun.) And HAB's program like Bucklew's used a font (Swiss font) that was not available in the version of the Windows operating system that HAB used to develop its software. This is further evidence that rather than creating its own form using the software available to it on Windows, HAB had copied Bucklew's form. The evidence of copying with regard to the other three forms is scanty. Indeed, they were barely mentioned at trial. HAB complains that they were smuggled into the trial and that the jury should not have been permitted to consider them. Before trial the district judge, in conformity with his established practice (though we cannot find it stated in writing in the rules of his court or anywhere else), explained to the parties that any objections to exhibits, other than objections based on relevance, had to be made before trial and any exhibit not objected to before trial would become a part of the trial record. The exception for relevance was presumably intended for the situation in which, because of the course the trial might take, a document that had seemed relevant to the issues in the case before trial no longer was. HAB did not object before trial to the introduction into evidence of any of the four forms of Bucklew's that were alleged to be infringed. But it argues that it assumed that the forms would be discussed at trial rather than just being handed to the jury, along with the other exhibits that had not been ruled inadmissible, when the jury retired to deliberate.

There was no basis for the assumption. Admissible documents are evidence, just like testimony. They do...

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