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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

STEPHEN E. POE,

Plaintiff,

 

CV-N-99-006-HDM (RAM)  

v. ROY TRAYWICK YOUNG, a natural
person; AnhR Publication, a
business form, unknown, and
DOES I-X,

Defendants.

_____________________________/

ORDER

Before the court is defendant Roy Young's ("Young") motion for

summary judgment (#19) and related motions. Plaintiff Stephen Poe

("Poe") alleges that Young's version of a concordance entitled "Big

Book Concordance," which is an index of every significant word used

in the book entitled "Alcoholics Anonymous" (a.k.a. the "Big

Book"), infringes upon a concordance prepared by Poe. Poe asserts

five claims for relief: negligence, interference with present

contractual relationships, interference with prospective

contractual relationships, copyright infringement, and conversion.

Poe is a Nevada resident who has a copyright on his 1990 book

entitled "A Concordance to Alcoholics Anonymous." Poe claims that


he used the third edition of the Big Book to make his concordance.

Currently, the third edition, first printed in 1976, is the edition

that is being printed. Poe states that he used a complex computer

program to establish his concordance. He maintains the process was

difficult and time consuming. Young, a New York resident, used his

personal computer to make a concordance of the Big Book. Young

made his version available on the Internet in 1997, and shortly

thereafter was contacted by Poe's attorney, who claimed that Young

was infringing on Poe's copyright.

Summary judgment is appropriate where the pleadings,

discovery, and affidavits show that there is no genuine issue as to

any material fact, and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). The initial

burden is on the moving party to show the absence of material

factual issue. De Homey v. Bank of America National Trust and

Savings, 879 F.2d 459, 464 (9th Cir. 1989). An issue is genuine

only "if the evidence is such that a reasonable jury could return a

verdict for the non-moving party. Anderson v. Liberty, Inc., 477

U.S. 242, 248-50 (1986). The burden on the moving party defendant

"may be discharged by 'showing'--that is, pointing out to the

district court--that there is an absence of evidence to support the

nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986)

Once the moving party meets its burden, the burden then shifts

to the non-moving party to set forth specific facts demonstrating a

genuine issue for trial. Program Engineering v. Triangle

Productions, 634 F.2d 1188, 1193 (9th Cir. 1980) . A party opposing

a motion for summary judgment must introduce `sufficient evidence

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supporting the claimed factual dispute...to require a jury or judge

to resolve the parties' differing versions of the truth at trial.'

A mere scintilla of evidence will not do, for a jury is permitted

to draw only those inferences of which the evidence is reasonably

susceptible; it may not resort to speculation. British Airways

Board v. Boeing Company, 585 F.2d 946, 952 (9th Cir. 1978) (citation

omitted). When considering a motion for summary judgment, the

court must view the facts and inferences drawn therefrom most

favorable to the non-moving party. Baker v. Centennial Ins. Co.,

970 F.2d 660, 662 (9th Cir. 1992)

To succeed on the merits of a copyright infringement

claim, Poe must prove 1) ownership of a valid copyright, and 2)

copying of constituent elements of the work that are original.

Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S.

340, 361 (1991) (citation omitted). The first requirement is not

contested. Poe has a valid copyright. The second requirement,

that there is copying of original material, is dispositive of the

motion for summary judgment. To prove copying, Poe must

demonstrate that Young had access to Poe's concordance and that

Young's concordance is substantially similar to the protectable

expression in Poe's concordance. Apple Computer v. Microsoft Corp.,

35 F.3d 1435, 1442 (9th Cir. 1994).

Poe cannot establish that Young's concordance is substantially

similar to Poe's protectable expression. First, Young contends

that Poe's version is entitled to little or no protection. Poe's

concordance is considered a "compilation" under the Copyright Act

of 1976 because it was created by collecting and assembling

existing data. The scope of protection afforded a compilation is

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set forth expressly in § 103 of the Copyright Act and "extends only

to the material contributed by the author of such work,

distinguished from the preexisting material employed in the work,

and does not imply any exclusive right in the preexisting

material." 17 U.S.C. § 103(b). (emphasis added)

Poe actually states in the preface of his concordance that

"All text on every page of the Concordance is pure Third Edition

Big Book text. There are no changes, interpretations, or

modifications whatsoever." Thus, whatever material Poe copied from

the Big Book is not original. The page numbers that he copied are

not original. Merely creating an alphabetical listing of the words

that appear in the Big Book is not original. As the Supreme Court

has stated, alphabetizing names in listings is "an age-old

practice, firmly rooted in the tradition and so commonplace that it

has come to be expected as a matter of course." Feist, 499 U.S. at

363 (listing of names in white pages of telephone book not

original, nor deserving of protection). Therefore, Poe's creation

of listing each word alphabetically and providing the corresponding

page number is not original material deserving of protection. Poe

claims that putting the words in bold typeface in the Big Book was

original expression. However, this does not constitute protectable

expression. Putting the subject word in bold type to set it apart

from the accompanying definition is a standard practice. Moreover,

Poe bolded every single cited word, thus he did not demonstrate

original expression by choice of arrangement.

The only remaining element in examining Poe's concordance is

his word selection. Poe indicated that he included every word

except those that are excluded generally due to their common usage,

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such as a, an, and, any, are, as, at, etc. This is not original

material that he contributed that deserves protection.

Accordingly, there appears to be no creativity deserving of

protection in this concordance.1 (emphasis added)

Second, Poe cannot establish that Young substantially copied

the similar words. While Poe excluded words that are most commonly

used in the English language, Young excluded words based on their

frequency and significance in the Big Book. As a result of the

different criteria employed by Young and Poe, their concordance

versions contain many differences in word structure. For example,

Young's version contains the words did, can, any, too, said,

himself, I'm, I've, it's, and that's. The inclusion of words in

Young's version that are not contained in Poe's version suggests

the work was not copied.

Also, there is no evidence of tell-tail signs of copying. For

example, Poe does not point to any common errors between the two

works that would be evidence of copying. In fact, in examining 50

random words (the first and last 25) of Poe's concordance and

comparing it to Young's version, it results in a different number

of references to that word in 18 of the 50 words (36%). These

differences further show that Young did not copy Poe's work.

Because there is no evidence that there is a substantial similarity

between the protectable expression of Poe's version and Young's

 


1The forward, preface, and acknowledgments and appendices are

original in Poe's version, thus deserving of protection. However,

these aspects of the work were not contained in Young's work, and are

not the subject of this litigation.

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version, Poe has failed to show that a material issue of fact

exists upon which he can prove copying of original material. (emp. added)

In addition to the copyright infringement claim, Poe asserts

four state law claims against Young. The Copyright Act provides

that state law claims are preempted if they create "legal or

equitable rights that are equivalent to any of the exclusive rights

within the general scope of copyright as specified by Section 106."

17 U.S.C. § 301(a). A state law claim is preempted by the

Copyright Act unless the state law contains an extra element that

is not included in the federal copyright claim and which changes

the nature of the state law claim so that it is qualitatively

different from a copyright infringement claim. Summit Tool Mfg.

Corp. v. Victor CNC Systems, Inc., 7 F.3d 1434, 1442 (9th Cir.

1993).

Poe asserts a claim of negligence. Poe contends that Young

had a duty to refrain from copying the page numbers from Poe's

concordance and had a duty to search the literature to ensure no

copyright violations occurred. In Dielsi v. Falk, 916 F. Supp. 985

(C.D. Cal. 1996), the court held that a negligence claim was

preempted by the Copyright Act where the claim "merely

recharacterizes a copyright infringement claim as one for

negligence." Id. at 992. Here, Poe's negligence claim is

qualitatively similar to Poe's copyright infringement claim, thus

the negligence claim is preempted by the copyright claim.

Poe also asserts a claim for intentional interference with

present contractual relationships in count 2 and intentional

interference with prospective business relationships in count 3.

Claims for intentional interference with contractual relationships

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are preempted by the Copyright Act where the alleged interference

is based on copyright infringement. See Worth v. Universal

Pictures, Inc., 5 F. Supp.2d. 816, 822 (C.D. Cal 1997); Motown

Record Corp. v. George A. Hormel & Co., 657 F. Supp. 1236, 1240

(C.D. Cal. 1987). In this case, Poe's claim for intentional

interference with contractual relationships and prospective

business relationships are based upon the act of copyright

infringement. Essentially, the same conduct Poe alleges for the

copyright infringement claim is alleged for the intentional

interference claims.

Finally, Poe asserts a claim of conversion in count 5.

Conversion is also preempted by the Copyright Act if the acts

alleged as to conversion are the same as those underpinning the

copyright claim. See Worth v. Universal Pictures, Inc., 5 F.

Supp.2d. 816, 822-823 (C.D. Cal 1997); Dielsi v. Falk, 916 F. Supp.

985 (C.D. Cal. 1996). In this case, there is nothing in the

conversion claim that would render it qualitatively different from

the copyright infringement claim. The same alleged facts are the

basis for both causes of action.

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Therefore, Young's motion for summary judgment (#19) is

granted on all claims (emp. add.). Young's request for attorney's fees and

costs under 17 U.S.C. § 505 is denied. Poe's objection to

defendant's affidavits (#25) is denied. Poe's motion for leave to

supplement (#32) is denied.

It is so ORDERED.

 

 

 

DATED: This 18th day of August, 1999.

 

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