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A federal appeals court has revived a copyright infringement suit brought by Gallup Inc. — the consulting firm best known for conducting the Gallup Poll — after finding that a lower court improperly dismissed the suit on the grounds that Gallup had never properly registered a copyright for its “employee satisfaction survey.” In a seven-page per curiam opinion in Gallup Inc. v. Kenexa Corp., a unanimous three-judge panel reversed a November 2004 decision by U.S. District Judge Lawrence F. Stengel that dismissed the suit because the copyright registration of the “Gallup Q-12″ employee survey was flawed since the company “failed to deposit a copy of the work to be copyrighted as it existed when it was allegedly first published.” The 3rd Circuit concluded that the issue was “a red herring” because, under the Copyright Act, “an otherwise valid registration is not jeopardized by inadvertent, immaterial errors in an application.” The three-judge panel — Judges Samuel A. Alito Jr., Franklin S. Van Antwerpen and Ruggero J. Aldisert — concluded that “the misrepresentations in Gallup’s application were plainly immaterial,” and that the survey “would have been copyrightable regardless of when it was created and published.” The ruling revives a suit in which Gallup claims 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. Gallup’s lawyers — Paul D. Weiner and Mary Kay Brown of Buchanan Ingersoll, along with Marguerite S. Walsh of Littler Mendelson — contend in the suit that Kenexa 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. According to the suit, the Q-12 is a survey that seeks the employee’s reaction to 12 specific issues relating to perceptions of his or her workplace, plus an overall employee satisfaction question. It was designed to measure employee “engagement” in the workplace. Gallup and Kenexa are competitors in the field of employee surveys. 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. 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 protectible. But Kenexa won the next few rounds, knocking out all of the claims other than copyright infringement. Reed dismissed a 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 had scheduled the case for a trial to begin Sept. 13, 2004, but put it on hold when Kenexa’s lawyers raised the issue of the copyright’s validity at a final pretrial conference. In the conference, Gallup’s lawyers — Thomas E. Zemaitis, Paul J. Kennedy and Larry R. Wood Jr. of Pepper Hamilton — argued for the first time that the case was fatally flawed because the registration of the copyright was invalid. Kenexa’s lawyers urged Stengel to dismiss the case, arguing that Gallup had “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. Stengel agreed and declared that the copyright of the Q-12 was invalid, saying “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 also rejected Gallup’s argument that the copyright registration suffered from nothing more than a “technical defect” which should not invalidate the copyright. Now the 3rd Circuit has ruled that Stengel erred because any misrepresentations in Gallup’s application could not be considered “material.” “Indeed, a certificate did issue after Gallup filed an application for supplementary registration correcting its initial application,” the appellate panel said. “Kenexa’s insinuation that the supplementary registration might have been denied had the register examined the application more closely … is baseless.” The panel said it was “troubled” by the possibility that Gallup’s misrepresentations “may have been intentional,” but concluded that “it is not clear that even knowing misrepresentations can void a copyright registration where the Register has not relied on them.” In the case of the Q-12 application, the panel said, “the register undoubtedly would have issued the certificate whether or not Gallup had misrepresented the dates of creation and publication. Gallup’s misrepresentations thus could not have voided its registration even if they were knowingly made.”

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