Kern River Gas Transmission Co. v. Coastal Corp.

• Citation: 899 F.2d 1458
• Decision Date: 08 May 1990
• Docket Number: No. 89-2831,89-2831
• Parties: , 1990 Copr.L.Dec. P 26,570, 14 U.S.P.Q.2d 1898 KERN RIVER GAS TRANSMISSION CO., Plaintiff-Appellant, v. The COASTAL CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1458

899 F.2d 1458

58 USLW 2706, 1990 Copr.L.Dec. P 26,570,

14 U.S.P.Q.2d 1898

KERN RIVER GAS TRANSMISSION CO., Plaintiff-Appellant, v. The COASTAL CORPORATION, et al., Defendants-Appellees.

No. 89-2831.

United States Court of Appeals, Fifth Circuit.

May 8, 1990.

Rehearing Denied June 15, 1990.

J. Timothy Hobbs, Vincent M. Amberly, David C. Gryce, Mason, Fenwick, Lawrence, Washington, D.C., Alan H. Gordon, William D. Raman, Arnold, White, & Durkee, Houston, Tex., for plaintiff-appellant.

Robin C. Gibbs, Robert N. Brailas, Gibbs & Ratliff, Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, THORNBERRY and JONES, Circuit Judges.

CLARK, Chief Judge:

Kern River Gas Transmission Company ("Kern River") brings an interlocutory appeal from the district court's denial of a preliminary injunction against Wyoming-California Pipeline Company ("Wy-Cal") under section 502(a) of the Copyright Act of 1976 (the "Act"), 17 U.S.C. Sec. 502(a). By means of lines added to government survey maps, Kern River depicted the proposed route of a natural gas pipeline and submitted the maps to the Federal Energy Regulatory Commission (the "Commission") and other federal and state regulatory agencies in support of its application for authority to build the pipeline. Wy-Cal copied portions of the maps and submitted the copies to the Commission and other agencies in furtherance of its own application for authority to build a pipeline in the same corridor. The district court denied preliminary injunctive relief, holding that the proof did not establish the existence of a substantial threat of irreparable harm to Kern River, and that it showed Wy-Cal's use of the maps was fair use within the meaning of section 107 of the Act. Finding the maps at issue are not copyrightable under the Act, we affirm.

I

In the mid-1980s Kern River was engaged in intense competition with Mojave Pipeline Company for Commission approval to construct an interstate pipeline to supply natural gas to areas in and around Kern County, California. A large new market for natural gas had developed there among producers of heavy oil who burned gas to produce steam used in enhanced oil recovery. Kern River applied in 1985 to the Commission for a certificate of public convenience and necessity to construct a pipeline from southwestern Wyoming through Utah and Nevada to southern California. In May 1986 the Commission consolidated Kern River's application with that of Mojave, which had proposed to serve the southern California market by a different route, and ordered an administrative law judge to hold comparative evidentiary hearings. Among other findings, the ALJ predicted that the enhanced oil recovery market in southern California would be unable to support more than one interstate pipeline. Public Utilities Comm'n v. FERC, 900 F.2d 269, 283 (D.C.Cir. 1990).

In the course of preparing data requested by the Commission and other state and federal regulatory agencies, Kern River drafted and submitted to the Commission several sets of maps depicting its entire proposed route and variations. Kern River submitted two sets of maps in October 1986, one set being on the scale of 1:250,000 (the "large-scale" maps), and the other at 1:24,000 (the "quad" maps). The quad maps are the focus of the copyright controversy here. They consisted of lines and mile markings drawn by Kern River on topographical maps published by the United States Geological Survey. Kern River developed the maps by conducting full, independent field work along every segment of the proposed route. Copies of Kern River's quad maps and the maps of its competitors were supplied to the Chambers Group, an environmental consultant under contract with the Commission and the California State Lands Commission to draft an environmental impact statement (EIS) describing and evaluating the pipeline construction and operation along the proposed route. Various other state and federal agencies as well as interested private parties received copies of the maps. Once submitted to the Commission, copies of the maps were available to all competitors who wished to study them.

In January 1987, the Chambers Group published a draft EIS. The document depicted among other things a mile-wide corridor running the length of Kern River's proposed route, as well as two variations proposed by Kern River known as the Wasatch and North Las Vegas Variations. The Commission's staff approved the EIS in December 1987. Staff approval was significant because any proposed pipeline constructed within the mile-wide corridor would require no further environmental study, whereas any route falling outside the corridor would be subject to further inquiry.

Wy-Cal applied to the Commission in August 1987 for a nonexclusive "Optional Expedited Certificate" pursuant to 18 C.F.R. Part 157, Subpart E. It proposed to adopt a 450-mile segment and other portions of Kern River's route. Wy-Cal drafted its own set of 1:250,000 maps in support of its application and submitted them to the appropriate agencies. In February 1988 the Commission served a data request on Wy-Cal asking for quad maps for fifty-two miles of Wy-Cal's route in Wyoming and Nevada that were not common to any of the corridors approved in the EIS. Wy-Cal complied and also created quad maps depicting its entire route at the request of the California State Lands Commission. Wy-Cal prepared all of these quad maps without reference to or use of any Kern River map. The Commission denied a motion to consolidate Wy-Cal's application with those of Kern River and Mojave.

In March 1988, after delivery of the requested maps to the Commission and the California State Lands Commission, the Chambers group notified Wy-Cal that the line drawn on their maps indicated Wy-Cal's proposed route still deviated from the EIS corridor in certain locations. Chambers permitted draftsmen employed by Colorado Interstate Gas Co., an affiliate of Wy-Cal and one of its codefendants below, to come to Chambers' Albuquerque, New Mexico headquarters to ascertain the exact location of the center line of the EIS corridor, and to plot that line onto their own maps. During the draftsmen's visit, Chambers Group personnel provided them with reduced-scale copies of Kern River's quad maps. The draftsmen copied the center line for the entire EIS-approved route as depicted on Kern River's quad maps. None of the maps contained a copyright notice and Wy-Cal had no notice of any copyright claim until Kern River brought this action in the district court. Kern River registered the quad maps with the Copyright Office in February 1988 when it determined that Wy-Cal had copied them.

The Commission issued a final certificate of public convenience and necessity to Wy-Cal in March 1989. Kern River then brought this action against Wy-Cal for copyright infringement and misappropriation. In Count One of its complaint, Kern River asserted that all of the maps it had created and submitted to the Commission were copyrightable material and had been copied by Wy-Cal, causing Kern River "extreme damage." Kern River argued essentially that by copying and using the maps, which were created at great expense to Kern River, Wy-Cal obtained an expedited certificate enabling them to commence construction and sign customers that would have done business with Kern River. In addition to praying for damages, Kern River asked the court to impound the maps and Wy-Cal's certificate of public convenience and necessity and to enjoin Wy-Cal from using the maps for any purpose. In Count II, Kern River claimed that by "adopting" the Kern River Route, Wy-Cal had committed common-law misappropriation, gaining an unfair advantage in the race for Commission approval, rate-setting and solicitation of customers. The misappropriation count is not involved in this appeal.

Simultaneously with the filing of the complaint, Kern River moved for a temporary restraining order (TRO) under the Copyright Act to impound the copied maps and to enjoin Wy-Cal from using them for any purpose. The court granted the TRO. The court then held a hearing on Kern River's motion for a preliminary injunction after which it dissolved the TRO and denied the preliminary injunction. The court held that the large-scale maps represented the idea of the pipeline route and that the idea was inseparable from its expression; therefore these maps were not copyrightable. The court found, however, that the quad maps were copyrightable and that Wy-Cal had copied them. The court also found that Wy-Cal had copied Kern River's maps in April of 1989; thus Kern River presented no evidence showing that the copying influenced the Commission's decision to grant Wy-Cal its certificate in March 1989. The court further determined that Kern River could suffer no harm unless it was required to alter its proposed route, thereby requiring additional EIS work and Commission approval, and unless Kern River was issued a certificate of public convenience and necessity under which it could commence construction. Thus, the court held Kern River had failed to prove a substantial threat of irreparable harm. Additionally, the court held that considering the "totality of the circumstances" Wy-Cal's use of the maps was fair use within the meaning of section 107 of the Act because Wy-Cal intended only to copy or adopt the Kern River route.

In December 1989, claiming there existed an irreconcilable conflict between our decision in Plains Cotton Cooperative Ass'n v. Goodpasture Computer Service, Inc., 807 F.2d 1256 (5th Cir.1987), and the decision of the Supreme Court of the United States in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984), Kern River filed a petition in this court suggesting that we hear the appeal en banc in the first instance. We denied this extraordinary request.

In January...