1st Cir.: Compare infringing software with copyrighted code, not modified, non-copyrighted version

There are two critical lessons for software companies in Airframe Systems, Inc. v. L-3 Communications Corp., No. 10-2001 (1st Cir. Sept. 14, 2011):

    (1) It’s not enough to register the copyright in the original source code. When you modify it, register the modified versions too; and

    (2) retain copies of all prior versions because you never know which one you might need in an infringement case.

Plaintiff Airframe registered the original software code, then licensed defendant L-3 to use that code. As its clients changed computer systems, Airframe routinely modified its software. When L-3 upgraded its computer system, it got ahold of a newer version of the code and began using it. Airframe found out and sued.

The First Circuit noted that to prove infringement, a plaintiff has to prove both “factual copying” of the copyrighted work and “substantial similarity.” Faced with a summary judgment motion, Airframe put in an affidavit showing how similar L-3’s software was with an updated but unregistered version of the copyrighted software. (The court didn’t explain why Airframe didn’t compare the infringing code to the original, registered code.) The 1st Circuit affirmed summary judgment against Airframe, explaining that Airframe never proved the content of its registered software, so it couldn’t, as a matter of law, establish factual copying.

Three not-so-interesting circuit decisions -- TV Guide version

Here are links to 3 recent earth-(non)shattering trademark and copyright decisions.

In Schwan's IP, LLC v. Kraft Pizza Co., No. 05-3463 (8th Cir. Aug. 18, 2006), the court held that the mark BRICK OVEN is generic for . . . . . no, not brick ovens, but for . . . . . wait for it . . . . . . PIZZA!! Descriptive, I could see. But generic??? "Um, waiter, I'd like to order the brick oven with extra pepperoni. And can you get the busboy to structurally reinforce our table while we wait?" Sheesh.

In R.J. Reynolds Tobacco Co. v. Cigarettes Cheaper!, No. 05-1456 (7th Cir. Aug. 24, 2006), the Seventh Circuit came to the unremarkable conclusion that the sale in the U.S. of "gray market" goods -- i.e., goods that are in fact produced under authority of the trademark owner but exclusively sold outside the U.S. -- can constitute infringement if the gray market goods are "materially different" than their U.S. market counterparts.

And in T-Peg, Inc. v. Vermont Timberworks, Inc., No. 05-2866 (1st Cir. Aug. 18, 2006), the First Circuit reversed a grant of summary judgment to the defendant in a copyright case involving the Architectural Works Copyright Protection Act amendments to the Copyright Act. The court's analysis was fact-intensive, focusing on the substantial similarity issue.