First Circuit Decision on Copyright Requirements

The First Circuit Court of Appeals issued a decision on September 14, 2011, that emphasized the elements that must be established to maintain a successful copyright infringement suit.  The case was brought by Airframe Systems, Inc. against L-3 Communications Corporation.  Airframe had developed proprietary aircraft maintenance tracking software in 1979.  By July of 2003, the company had registered and deposited with the United States Copyright Office copies of four versions of the source code for the software.  Airframe had licensed the software to L-3 Communications.  The suit alleged that some of the source code files were inappropriately copied into L-3’s computer system and that L-3 thereafter used the source code to modify the software and to develop its own separate tracking software system.

The decision by the First Circuit Court of Appeals explained that the Copyright Act “makes registration a precondition to filing a valid copyright infringement claim under the Federal Statute.”  The decision described three significant elements in such cases: 1) ownership of a valid copyright, 2) proof of registration of the allegedly infringed work, and 3) copying of constituent elements of the work that are original.  In order to establish the third element—copying—there is a bifurcated inquiry: “(a) that the defendant actually copied the work as a factual matter,” and “(b) that the defendant’s copying of the copyrighted material was so extensive that it rendered the infringing and copyrighted works ‘substantially similar’.”  Thus, there can be copying of copyrighted material that is benign.  To be legally actionable, the actual “copying must be extensive enough to render the works ‘substantially similar’.”

In this particular case, First Circuit Court of Appeals held that there was a failure of proof in resisting L-3’s Motion for Summary Judgment.  Airframe submitted an affidavit from its President that compared source codes—the source code for the L-3 system as compared to the most current version of Airframe’s source code, namely the 2009 version.  However, the 2009 version had not been registered.  The First Circuit Court of Appeals held that Airframe would have had to have demonstrated that the copying was done of registered source code and that the substantial similarity had to exist between the registered code and the claimed infringing code.  Since Airframe’s affidavit only claimed substantial similarity in regard to the 2009 version, which was not registered, there was a failure of proof and summary judgment was appropriate.