About a year ago, I wrote about a copyright case involving fireworks firing codes. This case did not get a lot of attention at the time, and it was yet another example of a plaintiff using copyright law as unexploded ordinance (if you will forgive the pun) to harass its competitors, rather than to protect works of authorship.
Fortunately, the Third Circuit recently vacated a prior injunction in the case, for lack of likelihood of success on the merits, and remanded to the district court with an order to to dismiss the claim with prejudice.
The court analyzed the copyright protection of both Pyrotechnics’ digital message format, and the digital messages created with it. The opinion linked above provides interesting detail on how the messages worked.
The court said, “Pyrotechnics’s digital message format is an uncopyrightable idea and the individual digital messages described in the [copyright registration] are insufficiently original to qualify for copyright protection.” Regarding the message format, it concluded:
Pyrotechnics admits that there is no way for the control panel to communicate with the field module without using the digital message format. Because there are no other “means of achieving the [protocol’s] desired purpose” of communicating with the devices, the digital message format must be part of the uncopyrightable idea and not a protectable expression.Citing Whelan, 797 F.2d at 1236.
As to the messages using the format, the court said, “The digital message format provides rules for constructing messages with particular meanings, and individual messages are generated by applying those rules mechanically.” Because there was insufficient human creativity in creating the format, the messages were not protected by copyright. It further noted that even assuming the messages were creatively produced, there was no creativity in the structure, and ordering, because “using leading header bytes for synchronization and a trailing byte as a cyclic redundancy check are standard communication practices, not creative sequencing.” The court relied on its prior decision in Southco, Inc. v. Kanebridge, 390 F.3d 276, 282 (3d Cir. 2004) (en banc), regarding a numbering system for fasteners, from which the court drew many parallels.
Fighting a David vs. Goliath Copyright Battle
I got a chance to correspond with the owner of FireTEK. Here is what he had to say about the case:
How did you become interested in fireworks systems? How did you learn to engineer them?
The first time I was in the backstage of a fireworks display it was with my system. I started this project because someone asked me if I could do this kind of system to control fireworks, in 2009. I said no a few times, but he insisted, so I decided to try to do it. But then he decided he did not need the system anymore. Also, I had hired some people to do the work, but they quit. So I started researching and learning, and did almost everything myself, and then I became passionate about developing and innovating.
Even though the project started with a lot of problems, now I could see almost all the problems I had, and that helped me make a better product. For example, a main component went out of production and I was forced to find a replacement, but the replacement I found was even better. Because I could not afford someone to do the project, I was forced to learn myself. Even this copyright trial was a learning experience, and a good thing in the end.
Copyright cases can be complicated. What encouraged you to fight the claim?
I run a very small company in Romania. Maybe the plaintiff thought I would not be able to defend myself, but that was not true. This was a difficult and expensive case for me to defend. I was also concerned that, because I was outside the US, I would not get justice from a US court. I knew I had the law on my side, but I didn’t know whether that meant I would win. I kept going, though, because this is my business and I need to protect it.
What do you think tipped the case in your favor?
To be honest I thought it would be an easy win at first, from what I have read about copyright and compatibility. I don’t think the district judge understood the differences between my product and theirs. It seemed to me that the district court opinion mostly copied the plaintiff briefs. That opnion never mentioned my main argument under 17 USC 102(b) and US Supreme court decision in Baker v. Selden. Furthermore, the district court found the work equivalent to an object code and found fixation even though one of the authors clearly states it is “not source code that resides in a computer or in a microprocessor somewhere.” The deposit material for the plaintiff’s copyright was just a simple text created after infringement from memory of someone which was not even listed as author and which briefly describes the protocol.The judge in the appeal understood this. That opinion shows the judge studied it carefully. But I don’t think the district court understood it though I found that hard to believe.
After reading the district court opinion and some other rulings made against me, I was feeling as the main character “The Trial” by Kafka.
What advice do you have for small businesses fighting legal claims?
It will not be an easy fight, but if you know you are right, go to fight. Very important in my case was my involvement in the strategy, briefs, arguments, and of course learning from mistakes. You know your case better than your attorney, so you should read, understand and correct the mistakes your attorney may write in the briefs.
What is next for you in your business?
Even though I won this case my goal is not to get clients with cheaper compatible products. I try to innovate and convince them to buy my product because of all it offers. The compatibility is only an argument to convince the potential client to try my product, because I know they can not switch so easily to another product. It is like you have an entire company which runs a CRM software and you decide to switch to another one if it has some advantages but you find out the cost of the switch is much higher if there is no compatibility to migrate databases for example.
Congratulations to FireTEK for winning a battle against copyright maximalism, just in time for Independence Day!