Case 1:07-cv-01378-RPM Document 24 Filed 08/19/08 USDC Colorado Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. 07-cv-01378-RPM
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`R.W. BECK, INC., a Colorado Corporation,
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`Plaintiff,
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`v.
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`E3 CONSULTING, LLC, a Colorado limited liability company,
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`Defendant.
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`ORDER GRANTING SUMMARY JUDGMENT
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`R.W. Beck, Inc. (“Beck”), an engineering and management consulting firm, provides
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`services to utilities, financial institutions, and governmental entities. Defendant E3 Consulting,
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`LLC (“E3”) is a competitor in the same business. Both companies prepare independent
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`engineer’s reports of their analyses and opinions to support the financing of infrastructure
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`projects. At issue in this case are two of the plaintiff’s copyrighted reports, claimed to have been
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`infringed by E3 reports.
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` Four exhibits are attached to the complaint: (1) copyright certificate number TX 5-093-
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`728, effective November 3, 1999, for a Beck report, identified as “Independent Engineer’s
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`Report, Orange Cogeneration Limited Partnership Project” (“Orange Report”); (2) copyright
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`certificate TX 4-254-058, effective April 1, 1996, for a Beck report, identified as “Independent
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`Engineer’s Report, Sacramento Power Authority Cogeneration Project” (“Sacramento Report”);
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`(3) a three-page excerpt from the Orange Report, and (4) a three-page excerpt from an E3 report
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`known as the Windsor Report.
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`Beck alleges comparing the excerpt from its Orange Report (Ex. 3) and the excerpt from
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`the defendant’s Windsor report (Ex. 4) shows that “significant portions of E3 Consulting’s
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`reports are copies of significant portions of R.W. Beck’s original works.” (Compl. ¶ 15).
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`Invoking jurisdiction provided by 28 U.S.C. § 1331, Beck asserts willful copyright infringement
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`in violation of 17 U.S.C. § 101, et seq.; and supplemental jurisdiction under § 1367 for three
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`claims under Colorado law: (1) unfair competition; (2) deceptive trade practices in violation of
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`the Colorado Consumer Protection Act , Colo. Rev. Stat. § 6-1-101, et seq. (“CCPA”), and
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`(3) unjust enrichment.
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`On August 22, 2007, the defendant moved to dismiss all four claims. Because the
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`defendant supported its motion with two declarations and seven exhibits attached to those
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`declarations, the motion was converted to a motion for summary judgment by order of August
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`23, 2007. The plaintiff moved pursuant to Rule 56(f) to deny the defendant’s motion or hold it
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`in abeyance pending discovery. That motion was denied by order of November 9, 2007.
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`To establish a claim of copyright infringement, the plaintiff must show that it possesses a
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`valid copyright and that the defendant copied protectable elements of the copyrighted work.
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`Country Kids 'N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1284 (10th Cir 1996). “[A] plaintiff
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`may prove defendant's copying either by direct evidence or, as is most often the case, by
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`showing that (1) the defendant had access to the plaintiff's copyrighted work, and (2) defendant's
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`work is substantially similar to the plaintiff's copyrightable material.” Autoskill Inc. v. Nat’l
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`Educ. Support, 994 F.2d 1476, 1489 (10th Cir. 1993)(quoting Computer Assocs. Int'l, Inc. v.
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`Altai, Inc., 982 F.2d 693, 701 (2d Cir.1992)).
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`Both Beck’s Orange Report and E3's Windsor report contain a section entitled “Principal
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`Considerations and Assumptions Used in the Projection of Operating Results,” and both follow it
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`with “Conclusions.” Beck claims that its former employees who now work for E3 copied these
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`portions of the Beck reports as shown by the substantial similarity of language.
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`Assuming the validity of Beck’s copyrights, E3 denies that the specific portions of
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`Beck’s Sacramento and Orange Reports alleged to have been copied are protectable elements of
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`those works.
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`To determine whether there has been copying of protectable elements of a copyrighted
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`work, the United States Court of Appeals for the Tenth Circuit has directed use of an “abstract-
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`filtration-comparison” test. In Country Kids, the court explained:
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`At the abstraction step, we separate the ideas (and basic utilitarian functions), which
`are not protectable, from the particular expression of the work. Then, we filter out
`the nonprotectable components of the product from the original expression. Finally,
`we compare the remaining protected elements to the allegedly copied work to
`determine if the two works are substantially similar.
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`Country Kids, 77 F.3d at 1284-85.
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`Citing similar language in a July 29, 1993 report prepared by the engineering firm Black
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`& Veatch (the “Black & Veatch Report”), the defendant’s Senior Vice President, Paul Plath, in
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`his declaration asserts that the Black & Veatch Report was the source of the relevant language in
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`the plaintiff’s Sacramento and Orange Reports. Saying that he worked for Beck from 1985-1997
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`and was the primary author of the Sacramento Report, Plath explained that in 1994, the
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`Sacramento Municipal Utility District (SMUD) selected Beck to be the independent engineer for
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`two special entities, the Sacramento Power Authority and the Sacramento Cogeneration
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`Authority. They were formed to finance and build two electric power plants. Goldman Sachs &
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`Company served as the lead investment bank for the Sacramento projects. Beck ultimately
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`prepared two reports for the Sacramento projects. One is the subject of copyright certificate TX
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`4-254-058, attached as Exhibit 2 to the complaint. (Plath decl. ¶¶ 5-9).
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`Plath said that at a meeting in July or August 1994, a representative of Goldman Sachs
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`gave Plath a copy of the Black & Veatch Report with a request that Beck follow that format in
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`its Sacramento Reports. According to Plath, the Black & Veatch Report was used as a template
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`for the Sacramento Report. (Plath decl. ¶¶ 7-8).
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`Plath said that he was one of the principal authors of Beck’s Orange Report, prepared for
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`CS First Boston in connection with the Orange Cogeneration Limited Partnership Project located
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`near Barstow, Florida. (Plath decl. ¶ 10). According to Plath, an electronic version of one of the
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`Sacramento Reports was used as a template for the Orange Report, although Plath left Beck in
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`1997, before the report was completed.
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`Attached as Exhibit C to the Plath declaration are the same three pages of the Orange
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`Report that are Exhibit 3 to the complaint. Plath highlighted the language in Exhibit C which he
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`says was adopted from the Black & Veatch Report. Comparing the remaining language of the
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`Orange Report after this filtration to the pages of E3's Windsor Report attached as Exhibit 4 to
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`the Complaint, and highlighting those words found in both the Windsor Report and the Orange
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`Report, Plath states this comparison shows identity with respect to only 130 words out of
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`approximately 1500. (Plath decl. ¶ 11-12).
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`Relying on Plath’s declaration, E3 contends that the plaintiff’s claim of copyright
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`infringement must be dismissed because the language claimed to have been copied is not
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`protectable because it was not original to the Orange and Sacramento Reports and any
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`similarities remaining after filtration are too insignificant to support a claim of infringement.
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`The plaintiff acknowledges that the abstraction-filtration-comparison test is applicable to
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`the determination of substantial similarity, but argues that the Black & Veatch Report is an
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`improper basis for abstraction and filtration because Beck used the subject language before it
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`appeared in the Black & Veatch Report. To support this contention, the plaintiff submitted the
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`declarations of its employees, Kenneth Marino and Michael Gaines, with twelve exhibits.
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`According to Gaines, Beck created an internal training manual entitled “The Consulting
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`Engineer’s Role in the Preparation of Municipal Official Statement” in 1982. (Gaines decl. ¶ 5
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`& Ex. 10 (the “Manual”)). The Manual was proprietary to Beck and included a copyright notice
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`from September 1982. The Manual addresses matters of legal, risk management and
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`professional practices applicable to a consulting engineer’s role in the financing of municipal
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`electrical facility projects. (Gaines decl. ¶¶ 5, 6). In Chapter 7, the Manual describes the main
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`items normally found in a consulting engineer’s report, including a sample lead-in paragraph for
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`the section regarding “principal considerations and assumptions.” Gaines’ declaration states,
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`“R.W. Beck carefully developed this language in consultation with experts in the municipal
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`financing industry . . . . These reports require the application of sophisticated engineering and
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`technical analysis of complex facilities in a report which must be prepared in consideration for
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`the potential securities law, third party reliance issues, accuracy of forecasts, disclosure of
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`limitations and disclaimers and similar legal liabilities of the Consulting Engineer and its client.”
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`(Gaines Decl. ¶ 10).
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`In his declaration, Marino explains that an important section in all engineering reports in
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`support of financing is a section discussing “sensitivity analyses.” Sensitivity analyses
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`demonstrate the impact that different assumptions or future conditions would have on the
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`opinions and analyses of the report. According to Marino, Beck has included an original
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`standard sensitivity section in all of its consulting engineers reports since 1985. (Marino decl.
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`¶¶ 6, 8-9). Marino’s declaration describes the importance of a “reliance and risk management
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`section,” included in reports under the heading “Principal Considerations and Assumptions.”
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`Marino states that each of Beck’s engineering reports from 1985 through 1995 included a
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`“Considerations and Assumptions” statement, original to Beck, which was revised in 1987,
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`because of developments in securities law. (Marino decl. ¶¶ 10, 14).
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`Excerpts from four Beck reports were attached to Marino’s declaration: the SES
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`Claremont Report, dated July 24, 1985 (Ex. 6); the Chicopee Report, dated August 21, 1985 (Ex.
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`7), the Alexandria Report, dated September 18, 1986 (Ex. 8), and the Delaware Report, dated
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`January 7, 1992 (Ex. 5). These excerpts are submitted to show that the relevant portions of the
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`Sacramento and Orange Reports did not originate from the Black & Veatch Report.
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`Gaines reported that Beck issued a document entitled “Standards of Practice” in 1994.
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`(Ex. 11, “the SOP”). It incorporated the standard language which Beck had been using in its
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`reports and directed that certain preferred standard language be used in certain portions of
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`Beck’s engineering reports. (Gaines decl. ¶¶ 15-20).
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`In short, the plaintiff’s position is that the original sources for the relevant language in
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`Beck’s Sacramento and Orange Reports are the SES Claremont, Alexandria, Chicopee and
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`Delaware Reports (along with the 1982 Manual) and Beck’s SOP. (Pl.’s opp’n br. at 4). The
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`plaintiff’s opposition brief also advances a theory of copyright infringement that is not
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`articulated in the complaint. The plaintiff contends that the format of its reports (i.e., the
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`arrangement and sequence of the various sections) is copyright protected, and that the defendant
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`has infringed its copyright by using the same format. The plaintiff argues that it has
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`demonstrated that there are genuine issues of material fact, making summary judgment
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`inappropriate.
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`The defendant points out that the plaintiff has acknowledged that the relevant language in
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`the Sacramento and Orange Reports is not original to those reports. Applying the filtration to
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`those earlier texts, the result is the same as using the Black & Veatch Report for comparison.
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`That is, after unoriginal text is filtered from the plaintiff’s Orange and Sacramento Reports, any
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`similarities between the remaining text and the Windsor Report are de minimis.
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`E3 argues that as a matter of law, the plaintiff’s copyrights for the Sacramento and
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`Orange Reports do not extend to those portions copied from pre-existing materials.
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`The defendant argues that the plaintiff’s claim fails because the plaintiff has not shown
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`that its earlier works (i.e., the SES Claremont Report, the Chicopee Report, and the Alexandria
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`Report) are subject to copyright protection, saying that any material dated earlier than February
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`28, 1989, which lacks a copyright notice and was not registered with the Copyright Office has
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`passed into the public domain.
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`The defendant argues that the format of Beck’s works is not subject to copyright
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`protection because there are only a limited number of ways that these qualifiers and limitations
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`can be expressed.
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`The determinative question raised by the defendant is whether the language alleged to be
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`copied constitutes protected elements of the Sacramento and Orange Reports. Factual disputes
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`about the degree of similarity between the plaintiff’s and the defendant’s reports are immaterial
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`if the expression alleged to be copied is not protected. Utilitarian statements disclaiming
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`liability, qualifying assumptions, or identifying risk factors in a consulting engineer’s report are
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`not protected by copyright.
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`Beck has acknowledged that the relevant portions of the Sacramento and Orange Reports
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`are not original to those reports. The plaintiff also acknowledges that the abstraction-filtration-
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`comparison test applies and that unoriginal content must be filtered from the subject works. The
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`essence of copyright is originality. To show that the copyright extends to the language in
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`question, the plaintiff must show that it is original to the copyrighted reports. It has not.
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`The plaintiff’s evidence showing the history of Beck’s use of the subject language, dating
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`back to the 1980s does not make that showing. Beck is not suing for infringement of the 1982
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`Manual, its SES Claremont Report, the Chicopee Report, the Alexandria Report, the Delaware
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`Report, or the 1994 SOP. Gaines’ declaration states, “R.W. Beck carefully developed this
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`language in consultation with experts in the municipal financing industry.” This statement does
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`not identify who authored the language in question. That is information known to the plaintiff
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`and does not require discovery. The plaintiff’s evidence is not sufficient to support its claim of
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`authorship of the subject language.
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`The Copyright Act defines a “derivative work” as follows:
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`A “derivative work” is a work based upon one or more preexisting works, such as
`a translation, musical arrangement, dramatization, fictionalization, motion picture
`version, sound recording, art reproduction, abridgment, condensation, or any
`other form in which a work may be recast, transformed, or adapted. A work
`consisting of editorial revisions, annotations, elaborations, or other modifications
`which, as a whole, represent an original work of authorship, is a “derivative
`work”.
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`17 U.S.C. § 101. To constitute a “derivative work,” the work must have been “substantially
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`copied” from the prior work. Mulcahy v. Cheetah Learning, LLC, 386 F.3d 849, 853 (8th Cir.
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`2004). This standard is similar to the test for infringement. Id. If the plaintiff’s Sacramento and
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`Orange Reports are derivative works, then the plaintiff loses because the copyright for those
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`works “is limited to the features that the derivative work adds to the original.” Id. at 852. If the
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`plaintiff’s Sacramento and Orange Reports are not derivative works because they are not
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`substantially similar to the plaintiff’s earlier reports, then the similarities between the plaintiff’s
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`Sacramento and Orange Reports and the Windsor Reports are not substantial enough to show
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`infringement.
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`The subject language had passed into the public domain. 17 U.S.C. § 405(a)(2) provides:
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`(a) Effect of Omission on Copyright.--With respect to copies and phonorecords
`publicly distributed by authority of the copyright owner before the effective date of
`the Berne Convention Implementation Act of 1988, the omission of the copyright
`notice described in sections 401 through 403 from copies or phonorecords publicly
`distributed by authority of the copyright owner does not invalidate the copyright in
`a work if–
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`* * *
`(2) registration for the work has been made before or is made within five years after
`the publication without notice, and a reasonable effort is made to add notice to all
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`copies or phonorecords that are distributed to the public in the United States after the
`omission has been discovered.
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`Thus, any material predating February 28, 1989, lacking a copyright notice and not registered
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`with the Copyright Office within five years of its publication is deemed dedicated to the public.
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`The plaintiff has not denied that these earlier reports were given to those having an interest in the
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`projects for which they were written. That constitutes publication.
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`In short, the plaintiff has failed to show sufficient evidentiary support to proceed to trial
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`on its claim of copyright infringement.
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`Beck’s claim of unfair competition is summarized as follows:
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`When competitors simply use the words used in R. W. Beck Reports, such use
`suggests to the reader that the R. W. Beck analyses as required by securities law and
`other legal requirements have been performed, up to R. W. Beck standards. . . . Such
`use inappropriately trades off R. W. Beck’s goodwill, which it has expended
`significant time, expense, and labor building. To the extent that E3 is not only
`copying the words from R. W. Beck’s Copyrighted Works and is also using R. W.
`Beck’s entire system of analyzing information to create such works, it is unlawfully
`using R. W. Beck’s methodologies, methods, language, skills, labor, reputation, and
`goodwill.
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`(Pl.’s opp’n br. at 21).
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`To the extent that the plaintiff’s claim of unfair competition arises out of the defendant’s
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`allegedly improper use of language found in the plaintiff’s copyrighted works, it falls within the
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`subject matter and general scope of federal copyright law and is preempted. 17 U.S.C. § 301(a).
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`Because copyright law does not protect methods, the plaintiff’s broader claim, that it is
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`injured by the defendant’s use of Beck’s analytical methods, is not preempted. The claim fails
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`because the plaintiff has not shown any factual basis for it. In NetQuote, Inc. v. Byrd, 504
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`F.Supp.2d 1126 (D. Colo. 2007), Judge Ebel reviewed the Colorado cases addressing unfair
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`competition and summarized that law as follows:
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`Thus, state and federal courts applying Colorado law have consistently held that the
`tort of unfair competition requires, first, that the defendant has copied the plaintiff's
`products or services or misappropriated plaintiff's name or operations in some regard,
`and second, that this conduct is likely to deceive or confuse the public because of the
`difficulties in distinguishing between the plaintiff's and defendant's products and
`services.
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`Id. at 1131. Here, the plaintiff ’s allegations of unfair competition are merely conclusory. The
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`plaintiff has not pleaded any specific facts and has not come forth with any evidence showing
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`public confusion. The plaintiff has not has produced any evidence showing that E3 represents its
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`materials as those of Beck. The plaintiff has not identified any consumers or potential
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`consumers of the subject services and reports who are confused or deceived about them. These
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`deficiencies are fatal to the plaintiff’s claim of unfair competition under Colorado law.
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`In its third claim for relief, the plaintiff alleges that E3 has knowingly passed off text
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`from Beck’s proprietary and copyrighted reports as those of E3 and knowingly made false
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`representations about the source of its reports. The plaintiff alleges that these acts constitute
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`deceptive trade practices having a significant public impact, in violation of the Colorado
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`Consumer Protection Act, Colo. Rev. Stat. § 6-1-105.
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`To prove its claim under the CCPA, the plaintiff must show: “(1) that the defendant
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`engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the
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`course of defendant's business, vocation, or occupation; (3) that it significantly impacts the
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`public as actual or potential consumers of the defendant's goods, services, or property; (4) that
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`the plaintiff suffered injury in fact to a legally protected interest; and (5) that the challenged
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`practice caused the plaintiff's injury.” Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining,
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`Inc., 62 P.3d 142, 146-47 (Colo. 2003).
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`The defendant seeks dismissal of this claim, arguing that the plaintiff has neither pleaded
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`nor shown factual support of significant public impact. Factors relevant to the determination of
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`whether a challenged practice significantly impacts the public within the context of the CCPA
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`include “(1) the number of consumers directly affected by the challenged practice, (2) the
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`relative sophistication and bargaining power of the consumers affected by the challenged
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`practice; and (3) evidence that the challenged practice has previously impacted other consumers
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`or has the significant potential to do so in the future.” Rhino Linings, 62 P.3d at 149.
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`In his declaration, the President and Chief Executive Officer of E3, Donald J. Hurd,
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`informs that E3 prepared the Windsor Report at the request of a lender, Calyon Corporate, as
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`part of technical due diligence in connection with financing sought for two coal-fired
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`cogeneration plants owned by Windsor Financing, LLC. Windsor Financing was a
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`special-purpose limited liability company owned by Cogentrix Energy ("Cogentrix"), a
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`subsidiary of the Goldman Sachs Group, Inc., and was organized to facilitate the private offering
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`of bonds. (Hurd decl. ¶ 7). Hurd states that the Windsor Report was requested by the lender
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`(Calyon), paid for by the borrower, and was not distributed in any offering to the public, rather it
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`was included as an appendix to a Rule 144A Offering Circular to “qualified institutional buyers.”
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`(Id. ¶¶ 8-9). Hurd states that qualified institutional buyers are sophisticated institutional investors,
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`such as pension or mutual funds with $100M under management or broker-dealers with at least $10M
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`portfolios. (Id. ¶ 7). According to Hurd, E3's reports are not issued to individual members of the
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`consumer public, but only to investment banks and/or commercial lenders, and E3's services are
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`not offered to the general consuming public. (Id. ¶ 10).
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`The defendant argues that these facts show that the Windsor Report had no significant impact
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`on the public-at-large, and thus the plaintiff cannot prove an essential element of its claim under
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`the CCPA.
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`The plaintiff counters by defining the consuming public as “qualified institutional
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`buyers” and client energy companies seeking to raise capital through the sale of bonds, arguing
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`that this subset of the general public can be considered the “consuming public” for the purposes
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`of the CCPA. The plaintiff points out that “qualified institutional buyers” include a variety of
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`entities, including corporations, partnerships, certain governmental and private registered
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`dealers, registered investment companies, banks, saving and loan associations, and others. The
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`plaintiff states “it is likely that E3's deceptive trade practices have a significant impact within the
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`consuming public of qualified institutional buyers.” (Pl.’s opp’n br. at 26).
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`The legal arguments advanced by the plaintiff are without merit. Ramirez v. eWork, Inc.,
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`2007 WL 2746634, Civil Action No. 06-CV-00686 (D. Colo. Sept. 18, 2007), cited by the
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`plaintiff, provides no support for the plaintiff’s position. The facts of Ramirez bear no
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`resemblance to this one. The purposes of the CCPA (to deter and punish deceptive trade
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`practices against the public) are not implicated here. The plaintiff’s CCPA claim is without legal
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`or factual support.
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`Claiming unjust enrichment, Beck alleges that E3 has benefitted from its unauthorized
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`use of Beck’s copyrighted works at the expense of Beck, and as a result of Beck’s consulting
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`work for its own clients.
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`To the extent that the plaintiff’s claim of unjust enrichment arises out of the defendant’s
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`allegedly improper use of language found in the plaintiff’s copyrighted works, the claim falls
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`within the subject matter and general scope of federal copyright law and is preempted. To the
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`extent that the claim relates to the defendant’s use of particular methodologies, it fails because
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`Beck has not pleaded sufficient facts nor provided evidence to support its conclusory statement
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`that E3 has improperly obtained a benefit from the plaintiff.
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`All of the plaintiff’s claims appear to be based on an annoyance with Plath who learned
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`Beck’s methods and practices, and then departed to E3. The plaintiff does not allege that Plath
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`or any other E3 employee is violating a covenant not to compete or violating a trade secrets
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`agreement or any other agreement that would protect the plaintiff’s methods. The plaintiff
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`simply complains that E3 is damaging the plaintiff’s goodwill by using its methods. Notably, the
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`plaintiff does not cite any legal authority in support of this theory of unjust enrichment. This
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`claim is without merit.
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`Upon the foregoing, it is
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`ORDERED, that the defendant’s motion for summary judgment [doc. 8] is granted. The
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`clerk shall enter a final judgment dismissing all of the plaintiff’s claims and this civil action with
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`an award of defendant’s costs.
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`Dated: August 19, 2008
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`BY THE COURT:
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`s/Richard P. Matsch
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`Richard P. Matsch, Senior District Judge
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