More Fireworks in the Copyright World

The US District Court for the Western District of Pennsylvania issued an injunction, on March 11, 2021, in PYROTECHNICS MANAGEMENT, INC. v. XFX PYROTECHNICS LLC and FIRETEK regarding the copyright protection of “command codes” in a fireworks system.

Pyrotechnics Management filed suit July 24, 2019, alleging copyright infringement, tortious interference with prospective contractual relations, and unfair competition. fireTEK filed a motion to dismiss on October 15, 2019, and the motion was denied on October 15, 2019. Then, Pyrotechnics filed for an injunction.

Pyrotechnics makes and sells digital pyrotechnics firing systems used to create complex fireworks displays, under the brand name “FireOne.” Those products incorporate the command and control protocols.

FireOne Control Panels

The FireOne field modules use the protocol to communicate with a FireOne control panel. FireTEK is a competitor of Pyrotechnics in the distribution and sale of digital pyrotechnics firing systems. FireTEK admitted at the hearing that it had created its router by reverse engineering FireOne’s control panel.

FireTEK is owned by Laurian Antoci, from Romania, and had been selling firing systems successfully for some time. YouTube videos like this one are available describing its system, and they are kind of fun to watch even if you aren’t a pyrotechnics enthusiast. (Random note: This video shows how to sync a fireworks show to music with Audacity and a few other tools. Cool stuff.) The court commented that a Youtube video demonstrated a fireTEK Router
controlling a FireOne field module using the FireOne protocols. But that wasn’t at issue — fireTEK admitted copying the protocols.

The case concerned whether the command codes were copyrightable expression, and if so, whether a defense, such as fair use, merger, scene a faire would make the infringement claims unlikely to succeed. These defenses are all common in cases involving copyright claims for material at the edge of the law’s protection.

The Court’s Injunction

To win an injunction under US copyright law, Pyrotechnics had to show a likelihood of success on the substance of its copyright claim, as well as meet certain other criteria that would justify the court awarding injunctive relief.

The court stated that “an expression of alpha-numeric characters that are original with Plaintiff and that do not flow from considerations that are external to the author’s creativity” and were created “not according to hardware standards, mechanical specifications, software standards, computer design standards, industry programming practices, or market factors.”

The court said, “Moreover, Pyrotechnics created the copyrighted command codes with attention to unique expressions that were not used by others
and were not intuitively obvious choices. External factors did not dictate the design of the FireOne Protocol such that it is lacking in originality…The precise alphanumeric expression selected by Pyrotechnics—the method by which it
chose to represent a digital 1 or a digital 0 within its system—also is uncommon, original, and intentional.”

The court was not convinced by a scene-a-faire argument, such as the one that succeeded at trial in 2016 in Cisco Systems v. Arista, a case that the EFF called copyright abuse of standard software protocols. (The jury verdict was appealed, and eventually vacated pursuant after a settlement following remand by the Federal Circuit.) So in other words, the result here is even worse copyright maximalism than in that case. The court in this case relied on the 2018 Federal Circuit decision in Oracle America v. Google for the proposition that “nothing prevented the Defendants from writing their own code to achieve the same result” and therefore a merger defense did not apply. Also, based on Oracle, it rejected a a fair use defense based on interoperability.

This judgment reflects a troubling trend of recent cases undermining fair use and similar defenses. Copyright was never meant to protect things like digital command codes. We are losing, by a death of a thousand cuts, the peace of mind that Lotus v Borland and Computer Associates once afforded innovators. And this loss is, to a great extent, being throttled by the CAFC — a court whose special subject matter jurisdiction was created to address patents, not copyrights. A few years ago it was conventional wisdom that appending a patent claim to a copyright claim was a “best practice” for plaintiffs, in order to engage in forum shopping on appeal, to the CAFC. Now, it seems, it may no longer be necessary, as we see a district court is following the CAFC’s apparent view that copyright protects just about everything.

What is a Command Code?

Now, you may wonder what these highly protectable bits of expression might be, as a result of which, all of those amateur pyrotechnicians cannot use their cool FireTEK controllers. Pyrotechnics filed a copyright registration for the Protocol (TX 8-738-709), styled “FireOne Firing System Abridged Command Format Version 1.0.”

A publicly available document from the case, Document 94-14 Filed 08/24/20, describes the command codes as having the format of a 12-byte number, with certain bytes set to indicate they are on or off.

One of the elements the court pointed to as expressive was that the Mark was used as a one and the Space as a zero. Which is basically…a binary code? So essentially, these so-called copyrightable elements are 12 bytes of data, with the bytes set as on or off in order to control the function of the firing system. That this would be a copyrightable work is dubious. It’s a little hard to believe that such a thing was ever registered by the Copyright Office, and one suspects that the material registered by the copyright office was not the firing codes, but the documentation describing them.

Then the World Changed

Most infringement claims that result in an injunction do not go to trial, because at that point, the defendant is unlikely to avoid a judgment as to the infringement claim, or the disruption to its business is already so severe that the claim is not worth fighting. So, it is common for cases to end or settle in the plaintiff’s favor after an injunction issues. In other words, even though the merits of the infringement claim have not yet been fully heard by the court, the case is probably over.

But as you may have read, the Supreme Court issued an opinion this week in Oracle America v. Google — just after the Pyrotechnics case was published, about the boundaries of copyright protection for the structure and sequence of APIs. It’s unclear at this point whether the Pyrotechnics court’s reliance on the now overturned Oracle decision by the CAFC will result in further process, such as an appeal. At least it represents a re-balancing of the relative merits of the case.

Author: heatherjmeeker

Technology licensing lawyer, drummer

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