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.

“My clients had written the original material and then left the
company,” Foster says. “They rewrote the manuals using entirely different language and verbiage.”

In his opinion, Young said even if a work constitutes original expression, no author may claim protection over a process. He cited the 11th Circuit’s 2002 ruling in Palmer v. Braun, in which the creator of a self-help course claimed the defendant had appropriated various written materials, including a set
of exercises. The court reasoned that the exercises were “simply a process and such processes, even if original, cannot be protected by copyright.”

In Feist Publishing Inc. v. Rural Tel. Serv. Co. (1991) the Supreme Court emphasized that the most “fundamental axiom of copyright law is that no author may copyright his ideas” and “no matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking.”

As Young wittily noted in SMS v. ASP, “Even Darwin could not have copyrighted the theory of natural selection outlined in The Origin of Species.”

Motivation Doesn’t Matter
Experts say subject matter itself played a significant role in Young’s opinion.
“It’s clear the court thinks these training courses are nonsense,” Band says. “If it was something the court thought was important…it might provide more protection for the methodology,” he adds.

Young also dismissed motivation as a test of infringement in SMS v. ASP.
“The defendants left [SMS] with the intent to set up a business using the work products of their previous employer,” Sneath says. “But Young didn’t care why they were doing it or that they had essentially taken [SMS] work products. He focused on the material itself. That’s an important lesson here. Motivation doesn’t matter. It’s the material and whether or not it deserves protection.”

Young devoted several pages of his opinion to literary references that illustrate why he concluded the SMS material ultimately did not deserve protection, writing: “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, 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.”

In a footnote, Young added, “Any author is free to borrow or co-opt Homer’s plot because it is in the public domain.”

Clearly, in this case, literature and law were on the defendant’s side.
Sneath says, “Using this opinion would be a good way to teach someone where he’s crossing the line in creating a new work.”