Situation Mgt. Systems v. Asp Consulting Group
| Decision Date | 28 February 2008 |
| Docket Number | Civil Action No. 06-11557-WGY. |
| Citation | 535 F.Supp.2d 231 |
| Parties | SITUATION MANAGEMENT SYSTEMS, Plaintiff, v. ASP CONSULTING GROUP, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
William F. Dolan, Jones Day, Chicago, IL, Ryan C. Siden, Siden & Associates, PC, Boston, MA, for Plaintiff.
James J. Foster, Laura E. Topper, Wolf, Greenfield & Sacks, PC, Boston, MA, for Defendant.
FINDINGS AND RULINGS
Situation Management Systems ("SMS") and ASP Consulting Group ("ASP") compete to provide corporations and individuals with strategies for effective communication and negotiation in the workplace. See Pl.'s Mem. Supp. Summ. J. [Doc. No. 39] at 3-4. To that end, both companies offer workshops designed to "improv[e] business and personal productivity." See Compl. [Doc. No. 1] ¶¶ 1-4. SMS brought this suit claiming that ASP infringes the copyrighted workbooks and training materials distributed in connection with three of its workshops. See Compl. ¶ 8.
After the Court denied cross-motions for summary judgment, [Doc. Nos. 36, 38], the parties agreed to treat the matter as a case stated. "In a case stated, the parties waive trial and present the case to the court on the undisputed facts in the pretrial record." TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n. 6 (1st Cir.2007). "[T]he Court must review the record, draw reasonable inferences, apply the governing law, and enter such judgment as may be appropriate." Heller v. Cap Gemini Ernst & Young Welfare Plan, 396 F.Supp.2d 10, 18 (D.Mass.2005).
Exercising jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338, this Court rules that ASP, copied SMS's materials, but that ASP is not liable for infringement because the accused works are not substantially similar to the originals.
The backdrop to this suit, is a bitter struggle between a company and `Its' former employees. In 2001, SMS declared bankruptcy and emerged that same year with new ownership, which restructured the company and terminated the employment of two SMS'S former leaden, Dane Harwood and Alex Moore. Compl. ¶ 10; Pl.'s Mem. Supp. Summ. J. ¶ 8. Harwood and Moore, who had helped create SMS's workshops, went on to became two of ASP's founders. Id. ¶¶ 5, 9. Harwood and Moore helped develop the three accused works; Communicating 2 Influence, Championing Ideas, and Negotiating Successful Agreements, which are basically workbooks consisting of anywhere from eighty to hundreds of pages apiece. Pl.'s Concise state. Mat. Facts [Doc. No. 41] ¶ 9.
Comprised of text, flow charts, exercises, and surveys for self-assessment, the materials focus on developing skills associated with promoting ones influence inside an organization, promoting ideas within a business, and successful negotiation. Id. ¶ 3. Three of SMS's products, Positive Power & Influence, Positive Negotiation Program, and Promoting and Implementing Innovation, focus on the same topics. Id. SMS, alleges that these and other similarities amount to infringement.
SMS seeks to prove infringement by, demonstrating that ASP copied the three workbooks. In order to prove infringement by copying, a plaintiff must first demonstrate that the defendant used the plaintiffs work "as a model, template, or even inspiration" in creating its own and that the new work is substantially similar to the original. See 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT, § 13.01[B] (footnotes omitted), at 13-8 (2007).
SMS has satisfied the first part of the inquiry. It is undisputed that Harwood and Moore had intimate familiarity with SMS's programs because they helped write them. See Harwood Decl. [Doc. NO. 48] ¶ 3. Moreover, Harwood, Moore, and at least one other ASP employee had access SMS's works during the period when they generated the accused works. See Harwood Dep. Tr., August 22, 2007 [Doc. No. 47], 107-12. The fact that ASP's works address the same topics as SMS's is not a matter of coincidence. In addition, the speed with which SMS's former employees were able to generate. ASP's new materials underscores that they did not start from scratch. For example, ASP developed Communicating 2 Influence in between 6 and 34 days. Harwood Dep. Tr., August 23, 2007 at 232. The Court therefore finds that the creators of ASP's programs used SMS's materials in creating their own.
Nevertheless, "the question still remains whether such copying is actionable." NIMMER, supra, 13.01[B] (footnotes omitted); see also Feist Publications, Inc. v. Rural Tel. Serv. Co, 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (). In order for the copying to give rise to infringement liability, SMS must prove that ASP's works are "substantially similar to [its own] such that liability may attach." NIMMER, supra, § 13.01[B].
Two works are substantially similar if a hypothetical ordinary observer would view the works as a whole and "conclude that the defendant unlawfully appropriated the plaintiff's protectable expression." T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97, 112 (1st Cir.2006) (quoting Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir.2005)). Because substantial similarity is based only on a comparison of the copyrightable elements of a work, the Court must begin its analysis by paring away ideas, facts, and any other uncopyrightable elements. See Johnson, 409 F.3d at 19 ().
Below, the Court holds that much of the content of the SMS works is not copyrightable because it is devoted to discussing concepts and processes. See 17 U.S.C. 102(b).1 To the extent that the content could be characterized as expression, much of it is simply not original. See Feist, 499 U.S. at 348, 111 S.Ct. 1282. Ultimately, the Court concludes that SMS has failed to meet its burden of proving infringement because, when viewed as a whole, excluding the non-protectable material, an ordinary observer would not find the works to be substantially similar.
Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 558, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). An intellectual property regime where authors could secure monopolies over ideas could hardly coexist with free expression. See id. Thus, despite what the term intellectual property might connote, "[t]he most fundamental axiom of copyright law is that no author may copyright his ideas...." Feist, 499 U.S. at 344-45, 111 S.Ct. 1282. While authors retain a limited monopoly over their original expression, the idea/expression dichotomy ensures that "every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication." Eldred v. Ashcroft 537 U.S. 186, 219, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003).
Expression is a term that refers to the copyrightable portion of work; it describes the more tangible characteristics that distinguish a work from the underlying ideas. For example, one might say that John Lennon's classic song "Imagine" is based on the idea that individuals ... can bring about world peace through humanistic introspection. However revolutionary the idea may have seemed at the time, the notion that imagining can be a panacea for the world's ills is not protectable. Instead, the copyrightable aspects — the expression — are Lennon's lyrics and the particular notes that comprise the melody, harmony, and accompaniment. See Golan v. Gonzales, 501 F.3d 1179, 1184 (10th Cir. 2007) () (internal quotation marks omitted).
Even though the law is clear about the rights that inure in each, the line between idea and expression resists definition. Judge Learned Hand, a towering figure in American copyright law, once observed that Peter Pan Fabrics Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). Nevertheless, Judge Hand formulated what has become known as the "abstractions" test:
Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use, of `his ideas' to which, apart from their expression, his property is never extended.
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930).
The principles underlying the Learned Hand abstractions test are perhaps best explained by way of example. For instance, in Cold Mountain, a novel by Charles Frazier, a man who has been away at war sets off for home and a woman who is waiting for him there, but on the way he encounters many obstacles. When described at this level of generality, there is nothing copyrightable about the plot because it is merely an idea. In fact, at this level of abstraction, the plot is indistinguishable from Homer's epic tale of Ulysses's return from the Trojan Wars.2
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