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After four years of litigation, a federal judge has dismissed a copyright infringement suit brought by Gallup Inc. — the consulting firm best known for the Gallup Poll — after finding that it never properly registered a copyright for its “employee satisfaction survey.” In his 17-page opinion in Gallup Inc. v. Kenexa Corp., U.S. District Judge Lawrence F. Stengel found that Gallup’s copyright registration of its “Gallup Q-12″ employee survey was flawed because the company “failed to deposit a copy of the work to be copyrighted as it existed when it was allegedly first published.” As a result, Stengel found that the copyright was invalid and that Kenexa Corp. was therefore entitled to summary judgment since the copyright infringement claim was the only remaining claim in the suit. The ruling is a victory for attorneys Thomas E. Zemaitis, Paul J. Kennedy and Larry R. Wood Jr. of Pepper Hamilton who first raised the issue of the flawed registration in a recent pre-trial conference. Gallup had won the first round in the litigation when Senior U.S. District Judge Lowell A. Reed Jr. ruled in 2001 that the contents of the Gallup Q-12 were legally protectable. In the suit, Gallup claimed that Kenexa Corp. misappropriated the contents of the Gallup Q-12 employee survey and “raided” Gallup’s employees to hire away more than a dozen who were knowledgeable about the survey. The suit alleged that Kenexa had copied the Q-12 and was using 10 of the 12 survey questions, as well as the overall satisfaction question, in virtually identical form in its employee engagement survey business. In its copyright infringement claim, Gallup claimed that its researchers had developed the Q-12 by conducting thousands of focus groups across many varied industries over a period of 25 years. The suit sought an injunction barring Kenexa from working with any of Gallup’s current or former employees; doing business in the area of employee surveys for the next several years; or using Gallup’s confidential information. It also demanded statutory damages of $150,000 for each alleged infringement as well as damages for usurpation of business, lost profits, the value of lost goodwill, and the value of property rights and copyrights infringed and appropriated. But Kenexa won the next few rounds of litigation, knocking out all of the claims other than copyright infringement. In late 2001, Reed dismissed Gallup’s claim for “unlawful raid” after finding that Gallup failed to show that such a cause of action exists in the law. The case was later reassigned to Senior U.S. District Judge Herbert J. Hutton who dismissed Gallup’s claims for intentional interference with contract and intentional interference with business relations since they were premised on Kenexa’s alleged “unlawful raid.” In June 2003, Gallup agreed to drop its claims for unfair competition under the Lanham Act and unfair competition based on Kenexa’s deceptive conduct. By the time the case was reassigned to Stengel, only Gallup’s copyright claim remained. Stengel scheduled the case for a trial to begin Sept. 13, but put the case on hold when Kenexa’s lawyers raised the issue of the copyright’s validity at a final pre-trial conference. In the conference, Gallup’s lawyers noted that the Q-12 was revised several times in the 1990s and reached its final, current form in 1997 or 1998, Stengel wrote in his opinion. At that point, Kenexa’s lawyers complained that the information about the continuing development of the Q-12 raised an issue relating to the validity of the copyright registration. Stengel concluded that the issue of the copyright’s validity was “crucial” and ordered the lawyers to file briefs on the issue. Kenexa’s lawyers urged Stengel to dismiss the case, arguing that “on the eve of trial Gallup has disavowed the very registration that forms the basis for this court’s jurisdiction over the infringement claim.” The defense brief said Gallup had admitted that it never filed a copy of the original 1992 version of its Q-12 when it registered the copyright. “There now can be no dispute that, whatever 1992 survey Gallup intended to register, that survey was not the same as the deposit, nor can Gallup avoid the conclusion that the Q-12 as set out in the deposit did not exist in 1992 and, in fact, did not exist until sometime in 1998. Given these undisputed facts, the copyright registration is invalid,” Kenexa’s lawyers argued. But Gallup’s lawyers — Paul D. Weiner, Brian J. McCormick Jr. and Michael L. Dever of Buchanan Ingersoll, along with Marguerite S. Walsh of Littler Mendelson — urged Stengel to “promptly get the case firmly back on track and deny Kenexa’s last-minute, meritless motion.” In their brief, the plaintiff’s team said Kenexa’s argument “is baseless” because the 1992 date on the copyright certificate was at most “a mistake — and there is not a scintilla of evidence to the contrary.” Such technical mistakes, Gallup’s team argued, “can be corrected as a matter of law by this court or via a corrective/supplemental copyright registration.” Although Kenexa argued that such a mistake cannot be corrected, Gallup’s team insisted that argument “is wrong — it can be and has been.” The Gallup brief noted that the U.S. Copyright Office “has issued a corrective/supplementary registration which is more than sufficient to remedy any alleged defect.” Now Stengel has sided with Kenexa and declared that the copyright of the Q-12 is invalid. “The evidence and Gallup’s own admission establish that Gallup did not deposit an accurate copy of the version of the Q-12 as it existed on Jan. 10, 1992. The ‘deposit copy’ submitted with the 1999 application was neither a reproduction nor a valid copy of the work Gallop sought to protect,” Stengel wrote. Stengel rejected Gallup’s argument that the copyright registration suffered from nothing more than a “technical defect” which should not invalidate the copyright. “This case involves affirmative changes in the composition, wording and form of the material. Gallup deposited with the application a copy of a much different and later version of the Q-12 and has acknowledged those differences,” Stengel wrote. “The deposit copy is a 1997 or 1998 version that Gallup identified as the original work, not the version that existed in 1992. Simply stated, this does not satisfy the requirements of the Copyright Act,” Stengel wrote. Gallup’s registration, Stengel found, “did not contain a simple misstatement or clerical error. Gallup did not merely state that the Q-12 was first published in 1992 instead of 1993. Moreover, the copy of the Q-12 Gallup deposited did not merely contain a few incorrect items. Instead, Gallup stated in its application that the Q-12 was first published in 1992 but filed a copy of a much different and later version of the Q-12,” Stengel wrote. Finally, Stengel rejected Gallup’s argument that its claim was saved by an application for supplementary registration Gallup filed Sept. 13, 2004. Gallup argued that the supplementary registration corrected the 1992 information and stated that the Q-12 was created over time from 1993 until 1998 and first published in July 1998. But Stengel found that a supplemental registration may be used only to correct information that was incorrect at the time the basic registration was made, or to reflect omitted information or certain changes in facts that occurred since the original registration. “However, supplementary registration is not appropriate to reflect changes in the content of a work,” Stengel wrote. “Because Gallup’s supplementary registration reflects changes in the content of the Q-12 and was not simply an effort to correct an error, Gallup cannot rely on the supplemental registration as a substitute basis for this lawsuit,” Stengel wrote.

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