InsideCounsel » June 2008
Judge Puts a Literary Twist on Copyright Infringement Case
Federal District Judge William Young summoned all his creative literary gifts to say that a plaintiff faces a more arduous journey than Ulysses when it comes to copyright protection of business publications. In an opinion praised for its detail and wit, Young made it clear the court finds near-verbatim copying of such materials establishes copyright infringement.
“Judge Young basically restated the principle that you can only copyright expression and not ideas, albeit he did so quite eloquently using wonderful literary examples,” says Henry Sneath, shareholder in Picadio Sneath Miller & Norton and a national member of the Board of Directors of the Defense Research Institute.
“Copyright law is elusive sometimes, so this opinion might ease understanding with Young’s references to great novels. For instance, you can borrow Homer’s plot, but once new names, new faces and new locations are put to it then it becomes copyrightable expression,” Sneath says.
In Situation Management Systems v. ASP Consulting Group, Young had to decide where to draw the line between expression that is protected by the law and that which is not.
The Massachusetts judge ruled in February that much of the content of the Situation Management Systems (SMS) training materials was not copyrightable because it was devoted to discussing concepts and processes.
Also, some of the content was not original. He said SMS also failed to meet its burden of proving infringement by ASP Consulting Group because ASP materials were not substantially similar to those of SMS.
“A lot of things are not protected, and plaintiffs need to be reminded
of that constantly,” says Jonathan Band, a solo intellectual property practitioner in Washington, D.C. “Copyright is very specific. ”
Young’s ruling won’t bring an end to copyright action, experts say, but his punctilious opinion will prove influential.
“If anyone brings a copyright suit in the future that deals with this type of issue, this is the opinion that will be frequently cited and quoted,” says James Foster, a shareholder in Wolf, Greenfield & Sacks who represented ASP.
Scope of Protection
The back story of SMS’s suit is a bitter struggle between a company and its former employees. In 2001, SMS declared bankruptcy and emerged with new ownership, which terminated two of SMS’s creative leaders, Dane Harwood and Alex Moore. Harwood and Moore went on to become two of ASP’s founders and helped develop that company’s training materials. SMS sued for copyright infringement, claiming ASP copied SMS workbooks.
