FRE 1002 "Best Evidence" And Proving Copyright Infringement

In a computer source code copyright infringement suit, summary judgment granted to the defendant when the plaintiff's sole proof of the content of the allegedly infringed source code was a statement by its writer and a reconstruction of the original source code which had been derived from a later version of the code, leaving the court unable to address whether a substantial similarity could be shown absent introduction of the "original writing" as required by FRE 1002, the "Best Evidence" Rule, in Airframe Systems, Inc. v. L-3 Communications Corp., __ F.3d _ (1st Cir. Sept. 14, 2011) (Nos. 10-2001, 11-1169)

Under FRE 1002, often referred to as “The Best Evidence Rule," a party that must prove the “content” of a writing must introduce the "original" (or a "duplicate" under FRE 1003, unless it is shown under FRE 1004 that that (1) all originals are lost or destroyed (absent bad faith by the proponent); (2) the original cannot be obtained; (3) the original is in the possession of an opposing party who refuses to produce it; or (4) the writing is not closely related to a controlling issue. The First Circuit recently reviewed a case that ran afoul of the best evidence rule and the circuit provided an interesting discussion of how the failure to produce an original adversely impacted the plaintiff's copyright infringement claim.

In the case, plaintiff Airframe pursued copyright infringement charges against defendant L-3 regarding software Airframe had developed, called Airline Resource Management System (“ARMS”). In 2003, Airframe registered and deposited four versions of its ARMS source code" with the Copyright Office. According to the circuit, the dispute was rooted in the following circumstances:

Airframe began licensing its ARMS software to L–3 in 1986. L–3's license was limited to the use of ARMS in compiled object code format. Nonetheless, while performing system maintenance for L–3 at some time in either 1997 or 1998, Airframe's (now former) employee John Stolarz (“Stolarz”) allegedly acted without Airframe's authorization and copied some unspecified version of the ARMS source code files onto L–3's computer system. Stolarz allegedly used the source code to modify the ARMS software so that it could run on L–3's newer computers—actions not authorized under L–3's license.
AirFrame, __ F.3d at __ (footnote omitted).

The particular contention at issue in the Airframe case was whether defendant L-3 copied the plaintiff's ARMS source code to create a related replacement aircraft maintenance program titled “M3.” L-3 moved for summary judgment arguing that the plaintiff's evidence of infringement was insufficient for a prima facie case. This focused attention on the main basis for the plaintiff's infringement claims. The plaintiff had produced only "a single declaration by Rosen—the principal designer of the ARMS software—in support of" the Plaintiff's infringement allegations. The statement noted that he had "examined the allegedly infringing M3 source code and compared it to the most current version of Airframe's ARMS source code (the 2009 version)." Based on only a comparison of 15% of the source code, he concluded the defendant's program was “almost complete[ly] identical[ ] down to the use of improper hyphenation and misspelled words that appeared in the original ARMS program,” including "programmers' comments in the M3 source code that evidenced copying" from the ARMS code. AirFrame, __ F.3d at __.

The circuit affirmed the grant of summary judgment for the defendant. This was warranted because the plaintiff's inability to produce the original source code made it impossible for them to show the copying necessary for an infringement. Such a showing necessarily placed on the plaintiff the burden to "establish the content of the copyrighted work that it contends was infringed." AirFrame, __ F.3d at __.

From this failure of proof, granting the motion for summary judgment seemed a foregone conclusion, as:

Here, the only evidence of copying Airframe presented was Rosen's declaration. Rosen made no direct comparison between the allegedly infringing M3 program and the ARMS source code versions covered by Airframe's copyright registrations, as would normally be done. Rather, he compared the M3 program to the updated 2009 version of the ARMS source code. While this would support a finding of substantial similarity between the M3 program and Airframe's “current” source code (i.e., the 2009 ARMS source code), there is no claim that the 2009 source code was itself registered or that the 2009 version is the same as one of Airframe's earlier registered versions—the 1981 “IBM version,” 1984 “PC version,” or 1988 “UNIX version” [which had been available to the defendant].... Having presented no evidence sufficient to prove the content of its registered source code versions, Airframe cannot show that any of its registered works is substantially similar to the allegedly infringing M3 program, and Airframe has failed to create a genuine issue of material fact as to its claim of copyright infringement.
AirFrame, __ F.3d at __.

The circuit found prior precedent to guide this determination: For example:
  • In Unistrut Corp. v. Power, 280 F.2d 18 (1st Cir. 1960), the first circuit considered a case in which "the plaintiff sought to prove infringement of the 1942 version of its catalog that it had registered with the Copyright Office, but the only evidence the plaintiff produced was an unregistered 1943 edition of the catalog 'which admittedly contained some, unspecified, additions.' Though the '1943 edition ... was clearly shown to have been pirated,' the court dismissed the plaintiff's case 'for want of proof' because the plaintiff had offered 'no proof that the infringed material was contained in the [allegedly infringed] 1942 edition.'”
  • In Bridgmon v. Array Sys. Corp., 325 F.3d 572 (5th Cir.2003), "The Fifth Circuit addressed a similar situation ... which like the present case involved computer source code. Because the plaintiff had offered no admissible evidence that could prove the content of his copyrighted source code, the district court found the evidence “insufficient to create a genuine issue of material fact as to whether [the copyrighted and accused programs] are ‘substantially similar.’ ” The Fifth Circuit affirmed, holding that the plaintiff's 'failure to adduce evidence to allow a comparison between the [copyrighted source code] and the allegedly infringing program vitiates his claim.'
The significant role the best evidence rule could play in proving the content of the original writing the First Circuit explained in a footnote:
The Best Evidence Rule requires that a party seeking to prove the “content” of a writing must introduce the “original” or a “duplicate” of the original, unless it is established that (1) all originals have been lost or destroyed (absent bad faith by the proponent); (2) the original cannot be obtained; (3) the original is in the possession of an opposing party who refuses to produce it; or (4) the writing is not closely related to a controlling issue. See Fed.R.Evid. 1001–1004. We note that, if the Best Evidence Rule is satisfied, evidence other than the original may be sufficient to establish the content of a copyrighted work. Airframe has made no effort to satisfy the requirements of the Best Evidence Rule here.
AirFrame, __ F.3d at __ n.9 (citing Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1319 (9th Cir. 1986) (excluding a “reconstruction” of plaintiff's allegedly infringed Star Wars artwork under the Best Evidence Rule, and further noting: “The dangers of fraud in this situation are clear. The [Best Evidence Rule] ensure[s] that proof of the infringement claim consists of the works alleged to be infringed. Otherwise, ‘reconstructions' which might have no resemblance to the purported original would suffice as proof for infringement of the original.”); Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 207 & n. 3 (9th Cir. 1988) (evidence sufficient where plaintiff sought to prove the content of a video game by offering still photographs of the game being played)).

While there be multiple ways to show copying for purpose of copyright infringement, cases such as Airframe demonstrate the usefulness of FRE 1002 to establishing that a copy had been made.


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Federal Rules of Evidence