Case 1:11-cv-01468-WJM-BNB Document 218 Filed 03/22/13 USDC Colorado Page 1 of 40
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge William J. Martínez
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`Civil Action No. 11-cv-01468-WJM-BNB
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`SOLIDFX, LLC,
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`Plaintiff,
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`v.
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`JEPPESEN SANDERSON, INC.,
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`Defendant.
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT
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`Plaintiff SolidFX, LLC (“Plaintiff”) brings this action against Defendant Jeppesen
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`Sanderson, Inc. (“Defendant”) alleging violations of the Sherman Antitrust Act, 15
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`U.S.C. §§ 1 et seq., as well as common law contract and quasi-contract claims. (Sec.
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`Am. Compl. (“SAC”) (ECF No. 158) pp. 20-37.) Before the Court are the following
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`motions: (1) Plaintiff’s Partial Motion for Summary Judgment (ECF No. 96); and (2)
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`Defendant’s Motion for Summary Judgment (ECF No. 130). For the reasons set forth
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`below, Plaintiff’s Motion is denied, and Defendant’s Motion is granted in part and denied
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`in part.
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`I. LEGAL STANDARD
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`Summary judgment is appropriate only if there is no genuine issue of material fact and
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`the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
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`Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co.,
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`Case 1:11-cv-01468-WJM-BNB Document 218 Filed 03/22/13 USDC Colorado Page 2 of 40
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`Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a
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`material fact depends upon whether the evidence presents a sufficient disagreement to
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`require submission to a jury, or conversely, is so one-sided that one party must prevail
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`as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v.
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`Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal Service, 812
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`F.2d 621, 623 (10th Cir. 1987).
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`A fact is “material” if it pertains to an element of a claim or defense; a factual
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`dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
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`reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.
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`The Court must resolve factual ambiguities against the moving party, thus favoring the
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`right to a trial. Houston v. Nat’l General Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
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`II. FACTUAL BACKGROUND
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`The relevant facts , viewed in the light most favorable to the non-movant, are as
`1
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`follows.
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`Defendant Jeppesen is a subsidiary of the Boeing Company and is a creator and
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`seller of terminal charts (“Terminal Charts” or “Charts”) that graphically represent details
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`of airports and their surroundings; it has been in this business since 1934. (ECF No.
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`128 ¶¶ 1, 3; ECF No. 164 ¶ 6.) Defendant’s Charts are produced using publically
`2
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` The parties’ briefing includes over 600 numbered paragraphs of “undisputed” facts,
`1
`many of which are, in fact, hotly disputed. In this Order, the Court sets forth only the facts that
`are pertinent to its analysis of the issues.
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` Because there are cross-motions for summary judgment and nearly four hundred
`2
`exhibits attached thereto, for ease of reference, the Court will cite to the parties’ briefs for
`record support.
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`2
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`Case 1:11-cv-01468-WJM-BNB Document 218 Filed 03/22/13 USDC Colorado Page 3 of 40
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`available information which it compiles into a unique proprietary format that includes
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`Defendant’s own symbology, colors, fonts, and distinctive layout. (Id. ¶¶ 5-6.)
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`Defendant’s Terminal Charts are copyrighted. (Id. ¶ 8.)
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`Plaintiff SolidFX is a small software company that creates software applications
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`to access, organize, and use critical data. (ECF No. 164 ¶ 1.) Both principals of
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`SolidFX are private pilots with substantial experience and training in the technology
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`field. (Id. ¶¶ 2-5.)
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`Historically, pilots have carried heavy binders of paper terminal charts. (ECF No.
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`164 ¶ 45.) Over the past 15 years, charts have increasingly been distributed
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`electronically, but limitations have existed due to the electronic devices’ (such as laptop
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`computers) limited battery life, awkwardness, and efficiency. (ECF No. 128 ¶ 4; 164 ¶
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`45.) In 2008, Plaintiff anticipated rapid development in the efficiency, battery life, and
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`display technology of mobile computing devices and began developing software that
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`would allow pilots to access terminal charts on these devices in the cockpit. (ECF No.
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`164 ¶ 47.) At that time, there were few mobile devices on the market that would
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`support third-party software development. (Id. ¶ 48.)
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`In November 2008, Defendant contacted Plaintiff about forming a business
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`relationship in which Plaintiff would develop software for pilots to access Defendant’s
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`Terminal Charts on e-book viewers. (Id. ¶ 49.) Plaintiff began developing software to
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`display Defendant’s Charts on an e-book viewer manufactured by iRex Technologies
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`(“iRex”). (Id. ¶ 48.) Plaintiff touted the advantages of using an e-book viewer for
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`displaying Defendant’s Terminal Charts because the e-ink technology required limited
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`battery usage and was visible in bright sunlight, as was required for use in a cockpit.
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`(ECF No. 128 ¶ 71.)
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`In April 2009, Plaintiff demonstrated its iRex prototype to Defendant at an
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`aviation convention. (ECF No. 128 ¶ 76.) The parties then agreed to move forward
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`with their relationship and began negotiating a licensing agreement (“Agreement”). (Id.
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`¶ 77.) The first draft of the Agreement specifically referenced the iRex device and
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`limited Plaintiff’s licensing rights to that device only. (ECF No. 164 ¶ 58.) Plaintiff sent
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`a revised draft to Defendant that, in relevant part, used the more general term “e-book
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`viewer”. (Id. ¶ 59.)
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`On December 31, 2009, the final version of the Agreement was executed by the
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`parties. (Id. ¶ 56.) The relevant portions of the Agreement are discussed in the
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`Analysis section below. However, the Agreement generally gave Plaintiff a license to
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`develop a “data management reader solution” that works in conjunction with an e-book
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`viewer to access, use, and display Jeppesen’s copyrighted Terminal Charts. (Agmt.
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`(ECF No. 128-2) § 1.6.) In addition to the Terminal Charts, the Agreement gave
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`Plaintiff a license to use Defendant’s copyrighted Jeppesen Integration Toolkits (“JIT”)
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`which are proprietary products that allow the integration of the Terminal Charts in third
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`party systems. (Id. § 1.5.) The term of the Agreement was for a period of five years,
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`and was renewable. (Id. § 5.)
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`Under the Agreement, Defendant was to provide Plaintiff with the JIT and
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`technical support for the development of the software necessary to display the Terminal
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`Charts on an e-book viewer. (Agmt. App. § 1.2.2.) Plaintiff was not permitted to alter
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`4
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`Case 1:11-cv-01468-WJM-BNB Document 218 Filed 03/22/13 USDC Colorado Page 5 of 40
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`the Terminal Charts in any manner. (Id. § 1.2.2.2.) Plaintiff was responsible for the
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`design and development of the “System” (the definition of which will be discussed later)
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`and was required to install the most current worldwide database of Defendant’s
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`Terminal Charts onto every “System” prior to its delivery to the customer. (Id. §§ 1.1.1
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`& 1.3.1.)
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`Defendant provided Plaintiff with the JIT for use with several different iRex
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`models and Plaintiff began selling the devices in July 2009. (ECF No. 164 ¶ 67.) The
`3
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`iRex device was not widely available in the retail market so Plaintiff would purchase the
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`device, load its software, and sell the combined hardware and software to the
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`consumer. (Id.) Plaintiff received excellent feedback from its customers and high
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`praise in the aviation industry. (Id. ¶ 70.)
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`In January 2010, Apple announced the soon-to-be released iPad. (Id. ¶ 71.)
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`The iPad does not employ e-ink technology; rather, it features an LED-backlit color
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`display. (ECF No. 128 ¶ 123.) The iPad can be used to view and read e-books, but it
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`also has the capacity to browse the web, play games, send e-mail, watch videos, listen
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`to music, and take photographs. (Id. ¶ 122.) Because of its functionality, the iPad is
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`typically referred to as a tablet computer. (Id. ¶ 124.)
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`Shortly after the iPad was announced, Plaintiff registered with Apple as a
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`developer for apps on the iPad. (ECF No. 164 ¶ 72.) In January 2010, Plaintiff
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`requested the JIT from Defendant so that Plaintiff could develop an app for the iPad.
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` It appears Plaintiff began selling the devices before the Agreement was fully executed.
`3
`However, the record shows that the material provisions of the Agreement had been negotiated
`and agreed upon before July 2009. (ECF No. 128 ¶ 79.)
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`5
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`(Id. ¶ 73.) Plaintiff proposed the development of a “software only” solution for the iPad
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`that would not involve pre-loading Defendant’s Terminal Charts prior to the purchase of
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`the iPad. (ECF No. 128 ¶ 139.) At that time, Defendant’s representative indicated that
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`they believed such “software only” solution would fall within the ambit of the December
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`31, 2009 Agreement. (Id. ¶ 140; ECF No. 164 ¶ 74.)
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`Despite this understanding, Defendant refused to provide Plaintiff the JIT
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`necessary to develop an iPad app because it was determining its own strategy for the
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`iPad. (ECF No. 164 ¶ 75.) Between February and May 2010, Plaintiff repeatedly
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`informed Defendant that it was moving forward with plans to develop an iPad app that
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`would display Defendant’s Terminal Charts. (ECF No. 128 ¶¶ 147-51.) Defendant did
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`not inform Plaintiff that it had changed its position on the scope of coverage of the
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`Agreement, and that it was now taking the position that the iPad app did not fall within
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`the ambit of the Agreement. (ECF No. 164 ¶ 79.)
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`On May 26, 2010, Defendant informed Plaintiff that it would not allow others,
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`including Plaintiff, to have the JIT for the iPad. (Id. ¶ 81.) Defendant announced its
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`own iPad app on May 27, 2010. (Id. ¶ 82.) In July 2010, Defendant launched its
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`“Mobile TC” app in the Apple Store for the iPad. (ECF No. 128 ¶ 172.) Mobile TC is
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`available for free download and, to use the app, a purchaser must have a
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`corresponding subscription to Defendant’s Terminal Charts. (Id. ¶¶ 173-74.) In
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`February 2011, Defendant released a second iPad app—Jeppesen Mobile FD—which
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`includes en route charts and other features in addition to the capabilities included in the
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`Mobile TC app. (Id. ¶ 179.) The Jeppesen Mobile FD app is also offered to
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`Case 1:11-cv-01468-WJM-BNB Document 218 Filed 03/22/13 USDC Colorado Page 7 of 40
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`subscribers for free in the Apple store. (Id. ¶ 180.)
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`Defendant does not attribute any revenue to its apps and has no plans to begin
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`charging for their download. (Id. ¶¶ 173, 180-81.) The subscription price for
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`Defendant’s terminal charts increased only nominally between 2010 and 20011 and did
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`not increase in 2012. (Id. ¶ 185.) As of May 2012, Defendant’s apps had been
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`downloaded more than 230,000 times. (ECF No. 164 ¶ 135.) Defendant continues to
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`offer its Terminal Charts in paper form, on Windows-based computers via its JeppView
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`system, by CD-ROM, via built-in panel systems in airplanes, or through Plaintiff’s iRex
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`products. (ECF No. 128 ¶ 184.)
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`The parties’ Agreement also contemplates that Defendant will support Plaintiff’s
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`development of the iRex device for commercial customers using Defendant’s tailored
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`terminal charts. (Agmt. § 1.3.1.) The data set necessary for Plaintiff to develop a
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`workable iRex device marketable to commercial customers is called JIT 2.2. (ECF No.
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`164 ¶ 169.) Defendant provided Plaintiff with an “evaluation set” of JIT 2.2 with which
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`Plaintiff was able to develop a prototype of the iRex for commercial customers. (ECF
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`No. 128 ¶¶ 199-200.) Defendant estimated that development of the full version of JIT
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`2.2 would require about 2 ½ months of effort. (Id. ¶ 196.) Defendant would not spend
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`these resources until Plaintiff had a commercial customer that had committed to
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`purchasing the iRex device. (Id. § 203.) Despite interest from a number of commercial
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`airlines, Plaintiff was unable to obtain a customer commitment without a fully
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`functioning prototype. (ECF No. 164 ¶¶ 172-74.)
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`7
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`III. ANALYSIS
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`This case involves essentially three categories of claims: (1) those arising out of
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`the Sherman Act and alleging antitrust violations; (2) common law contract claims; and
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`(3) common law tort and quasi-contract claims arising out of the December 31, 2009
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`Agreement. The Court will discuss each category of claims below.
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`A.
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`Sherman Act Claims
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`Plaintiff brings six Sherman Act claims: (1) Per Se Illegal Tying in violation of
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`Section 1; (2) Illegal Tying under the Rule of Reason in violation of Section 1; (3)
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`Monopolization in violation of Section 2; (4) Attempted Monopolization in violation of
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`Section 2; (5) Monopolization of the Combined Market for Terminal Charts and Apps in
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`violation of Section 2; and (6) Attempted Monopolization of the Combined Market for
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`Terminal Charts and Apps in violation of Section 2. (SAC pp. 23-32.) Defendant
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`moves for summary judgment on all six antitrust claims. The Court will discuss the
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`Section 1 and Section 2 claims separately below.
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`1.
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`Section 1—Illegal Tying
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`Plaintiff’s Section 1 claims both involve allegations that Defendant “uses its
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`monopoly power in the Terminal Charts Market to force consumers in the Apps Market
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`to choose a product in that Downstream Market that those consumers would not
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`choose in a competitive market.” (SAC ¶ 105.)
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`Section 1 of the Sherman Act provides, “Every contract, combination in the form
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`of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several
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`States, or with foreign nations, is hereby declared to be illegal.” 15 U.S.C. § 1. A tying
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`8
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`arrangement is an agreement by a party to sell one product—the “tying product”—only
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`on condition that the buyer also purchase a second product—the “tied product”—or at
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`least agree not to buy that product from another supplier. Eastman Kodak Co. v. Image
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`Technical Servs., Inc., 504 U.S. 451, 461-62 (1992) (citing Northern Pac. Ry. Co. v.
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`United States, 356 U.S. 1, 5-6 (1958)).
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`The elements of a Section 1 tying claim, are “(1) two separate products, (2) a
`4
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`tie—or conditioning of the sale of one product on the purchase of another, (3) sufficient
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`economic power in the tying product market, and (4) a substantial volume of commerce
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`affected in the tied product market.” Multistate Legal Studies, Inc. v. Harcourt Brace
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`Jovanovich Legal & Prof. Publ’s., 63 F.3d 1540, 1546 (10th Cir. 1995). Because the
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`Court finds that Plaintiff has not shown a genuine dispute of fact as to the second
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`prong, which is an essential element of a tying claim, the Court will address only this
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`element.
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`For an illegal tie-in to exist, “purchases of the tying product must be conditioned
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`upon purchases of a distinct tied product.” Fox Motors, Inc. v. Mazda Distribs., Inc.,
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`806 F.2d 953, 957 (10th Cir. 1986). While not dispositive, it is notable that Defendant
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`gives its app away for free. That is, Defendant does not require anyone to purchase its
`5
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` Though Plaintiff brings a tying claim under both the per se analysis and the rule of
`4
`reason analysis, the test for these claims appears to be the same. United States v. Microsoft
`Corp., 87 F.Supp.2d 30, 47 (D.D.C. 2000) (noting that the four elements of an unlawful tying
`claim are the same regardless of whether the arrangement is subjected to the per se or the rule
`of reason analysis). Neither party has drawn a distinction between the two in its papers and,
`applying the law to the facts of this case, the Court has been unable to discern any meaningful
`distinction here between the per se and the rule of reason analysis.
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` There is evidence that commercial customers are required to purchase the app for
`5
`$9.99 through Apple’s volume purchase program. (Buhl Dep. at 234.) However, this amount
`was imposed by Apple and has since been rescinded. (ECF No. 180-95.) Thus, the Court
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`app in order to utilize the app to view the Terminal Charts on an iPad or other similar
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`device. There is also no evidence showing that Defendant has raised the prices of its
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`Terminal Charts subscription to reflect the cost of its app. Compare Multistate Legal
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`Studies, 63 F.3d at 1548 (where cost of tying product was raised $50 after tied product
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`was introduced, a jury could infer that the tied product was not “free”).
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`More significantly, however, Plaintiff has failed to show that Defendant requires a
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`purchaser of its Terminal Charts subscription to also “purchase” its app. Instead, the
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`record shows that any purchaser can obtain the Terminal Charts in hard copy/paper
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`format, by CD-ROM, on a Windows-based tablet, laptop or desktop computer, or on an
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`IRex device purchased from Plaintiff. (Phillips Dep. at 231-32; McDonald Dep. at 490-
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`92.) Only if the purchaser wants to view the Charts on an iPad is he or she required to
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`download Defendant’s app.
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`Additionally, there is no evidence that Defendant disadvantages its customers in
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`any way if they choose to access the Terminal Charts in some format other than
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`through its app. Compare Cascade Health Solutions v. PeaceHealth, 515 F.3d 883,
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`914-16 (9th Cir. 2008) (finding that there was a tying arrangement where a customer
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`who chose not to use the tied product would have to pay more for the tying product).
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`The record plainly shows that a purchaser can download the Terminal Charts to up to
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`four devices (such as a computer, avionic system, or an iPad) before having to pay any
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`additional subscription rate. (Abbot Dep. at 182-83; 235-36.)
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`The cases cited by Plaintiff in support of its argument that there was a tying
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`finds no evidence showing that Defendant has charged or is currently charging a fee for its app.
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`agreement in this case are inapposite. In all of these cases, the seller refused to sell
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`the tying product without the tied product. See Heartland Payment Sys., Inc. v.
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`MICROS Sys., 2008 WL 4510260, *8 (D.N.J. Sept. 29, 2008) (tying arrangement
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`existed when defendant would only sell its MICROS POS machine with a certain
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`processor); Parsons v. Bright House Networks LLC, 2010 WL 5094258, *5 (N.D. Ala.
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`Feb. 23, 2010) (finding a tying arrangement when cable company would not allow a
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`subscription unless the subscriber also rented a cable box from the company); In re
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`Cox Enter., Inc., 2010 WL 5136047, *3 (W.D. Okla. Jan. 19, 2010) (same). In this
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`case, Defendant continues to sell its Terminal Charts subscription to purchasers that do
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`not have its app.
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`Because Plaintiff has not shown that a purchaser was required to obtain the tied
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`product—Defendant’s app—in order to be able to purchase the tying product—the
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`Terminal Charts subscription—it has failed to show that there was a tying arrangement
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`in this case. See Eastman Kodak, 504 U.S. at 461-62 (“A tying arrangement is an
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`agreement by a party to sell one product but only on the condition that the buyer also
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`purchases a different (or tied) product, or at least agrees that he will not purchase that
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`product from any other supplier.”) (internal quotation omitted).
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`Because the Court has found no dispute of fact as to whether there was a tying
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`arrangement—which is an essential element of a Section 1 claim—Plaintiff has failed to
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`meet its summary judgment burden. Therefore, Defendant’s Motion for Summary
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`Judgment is granted in so far as it seeks summary judgment on Plaintiff’s Section 1
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`claim.
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`2.
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`Section 2—Monopolization Claims
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`Section 2 of the Sherman Act prohibits monopolization or attempted
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`monopolization of any part of interstate trade or commerce. 15 U.S.C. § 2. “The
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`offense of monopoly under § 2 of the Sherman Act has two elements: (1) the
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`possession of monopoly power in the relevant market and (2) the willful acquisition or
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`maintenance of that power as distinguished from growth or development as a
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`consequence of a superior product, business acumen, or historic accident.” United
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`States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966).
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`For purposes of summary judgment, the Court assumes that Defendant has
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`monopoly power in the relevant market and, therefore, that Plaintiff has established the
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`first element of its monopolization claim. Thus, the Court’s analysis will focus solely on
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`the second element. “The second element of a § 2 claim is the use of monopoly power
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`‘to foreclose competition, to gain a competitive advantage, or to destroy a competitor.’”
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`Eastman Kodak, 504 U.S. at 482-83. This is generally referred to as anti-competitive or
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`predatory behavior.
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`“‘Anticompetitive conduct’ can come in too many different forms, and is too
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`dependent upon context, for any court or commentator ever to have enumerated all the
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`varieties.” Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1087
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`(D.C. Cir. 1998). In this case, Plaintiff alleges that Defendant engaged in anti-
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`competitive behavior by refusing to enter into an agreement with Plaintiff to develop an
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`app and by refusing to provide access to an essential facility. Each of these theories
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`will be discussed below.
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`Case 1:11-cv-01468-WJM-BNB Document 218 Filed 03/22/13 USDC Colorado Page 13 of 40
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`a.
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`Refusal to Deal
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`Plaintiff alleges that Defendant’s refusal to license its Terminal Charts constitutes
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`anti-competitive behavior. (ECF No. 164 at 33-34.) A refusal to deal may be one of the
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`mechanisms by which a monopolist maintains its power. Rural Tel. Serv. Co., Inc. v.
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`Feist, 957 F.2d 765, 768 (10th Cir. 1992). In determining whether a monopolist which
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`has refused to deal with a competitor has acted lawfully or in violation of § 2, the Court
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`applies a two-part test: (1) the effects of the monopolist’s conduct; and (2) the
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`monopolist’s motivation. Id. To prevail on this claim, Plaintiff must show that
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`Defendant’s conduct was “intended to or did have some anti-competitive effect beyond
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`the loss of its own business.” Id. “[A]s a general matter a firm can refuse to deal with
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`its competitor. But such a right is not absolute; it exists only if there are legitimate
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`competitive reasons for the refusal.” Eastman Kodak, 504 U.S. at 483 n.32.
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`Defendant contends that it has a legitimate basis for its refusal to license its
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`Terminal Charts to Plaintiff, i.e., it was properly exercising its right to refuse to license
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`its copyrighted work. (ECF No. 128 at 31-33.) “Intellectual property rights do not confer
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`a privilege to violate the antitrust laws.” In re Indep. Serv. Orgs. Antitrust Litig. CSU,
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`LLC v. Xerox Corp., 203 F.3d 1322, 1325 (Fed. Cir. 2000) (hereafter “Xerox”). But it
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`also true that antitrust laws do not negate the intellectual property holder’s right to
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`exclude others from intellectual property. Intergraph Corp. v. Intel Corp., 195 F.3d
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`1346, 1362 (Fed. Cir. 1999).
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`The most sweeping analysis of the interplay between the rights conferred by the
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`Copyright Act on a holder of a copyright and the prohibition on anticompetitive behavior
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`Case 1:11-cv-01468-WJM-BNB Document 218 Filed 03/22/13 USDC Colorado Page 14 of 40
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`established by the Sherman Act is Data General Corportation v. Grumman Systems
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`Support Corporation, 36 F.3d 1147, 1182 (1st Cir. 1994). In Data General, the First
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`Circuit noted that the Copyright Act grants a copyright owner the exclusive right to
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`distribute the protected work by “transfer of ownership, or by rental, lease, or lending.”
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`Id. (citing 17 U.S.C. § 106). By enacting the Copyright Act, “Congress itself made an
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`empirical assumption that allowing copyright holders to collect license fees and exclude
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`others from using their works creates a system of incentives that promotes consumer
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`welfare in the long term by encouraging investment in the creation of desirable artistic
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`and functional works of expression.” Data Gen., 36 F.3d at 1186-87. However,
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`because the Copyright Act does not purport to limit the Sherman Act, the First Circuit
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`determined that they must be read harmoniously. Thus, the First Circuit held that “while
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`exclusionary conduct can include a monopolist’s unilateral refusal to license a
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`copyright, an author’s desire to exclude others from use of its copyrighted work is a
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`presumptively valid business justification for any immediate harm to consumers.” Data
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`Gen., 36 F.3d at 1187.
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`The Tenth Circuit has neither explicitly adopted nor rejected the First Circuit’s
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`reasoning. However, in an opinion in which the Federal Circuit was predicting how the
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`Tenth Circuit would rule, it adopted the reasoning in Data General. See Xerox, 203
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`F.3d at 1328-29 (“We believe the First Circuit’s approach is more consistent with both
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`the antitrust and the copyright laws and is the standard that would most likely be
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`followed by the Tenth Circuit.”); see also Serv. & Training, Inc. v. Data Gen. Corp., 963
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`F.2d 680, 686 (4th Cir. 1992) (holding that the Sherman Act “does not entitle a
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`purchaser to buy a product that the seller does not wish to offer for sale.”); In re Educ.
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`Testing Serv. Praxis Principles of Learning, 429 F. Supp. 2d 752, 759 (E.D. La. 2005)
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`(failure to release its copyrighted testing materials to competitors was not exclusionary
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`conduct).
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`Based on this case law, the Court finds that Defendant’s assertion of its
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`copyright is a presumptively valid justification for refusing to license its Terminal Charts
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`and/or JIT to Plaintiff. Plaintiff contends that this justification still does not entitle
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`Defendant to summary judgment because it is pretextual and Defendant’s true
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`motivation for refusing to license its Terminal Charts had nothing to do with its
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`copyright. (ECF No. 164 at 35-36.) The Court agrees with Plaintiff that an antitrust
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`defendant’s business justification must be legitimate to protect it from an antitrust
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`violation. Kodak, 504 U.S. at 438 n.32. However, the case law holds that assertion of
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`one’s copyright interests is per se legitimate. Xerox, 203 F.3d at 1329; Data Gen., 36
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`F.3d at 1187. The only exception to the presumption recognized by the Federal Circuit
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`was if the holder of the copyright protection had come into such right in an unlawful
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`manner. Xerox, 203 F.3d at 1329. There is no allegation that Defendant obtained its
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`copyright in its Terminal Charts in any unlawful manner; rather, it is undisputed that
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`Defendant’s prowess in the terminal charts market is the result of years of experience in
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` The viability of the pretext argument in the Tenth Circuit is in significant dispute. The
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`case relied on by the Plaintiff in support of this contention was rejected by the Federal Circuit in
`Xerox and has otherwise been criticized. See Xerox, 203 F.3d at 128; Schor v. Abbott Labs.,
`457 F.3d 608, 613-14 (7th Cir. 2006). On the other hand, the Federal Circuit (predicting how
`the Tenth Circuit would rule) has held that a copyright holder’s presumption of a valid business
`judgment can be overcome only by a showing that the copyright was obtained in violation of the
`law or that the copyright holder exceeded the scope of the copyright. Xerox, 203 F.3d at 129.
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`the industry. (ECF No. 128 ¶¶ 1-4.) Thus, the Court finds that Plaintiff has failed to
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`introduce any evidence that rebuts Defendant’s legitimate business justification—its
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`copyright in the Terminal Charts and/or the JIT—for its refusal to license such works to
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`Plaintiff.
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`Plaintiff also argues that Defendant’s copyright in its Terminal Charts is not
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`implicated at all in this case because Plaintiff’s app is a separately copyrightable
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`software that does not fall within the copyright for the Charts. (ECF No. 164 at 34-35.)
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`Specifically, Plaintiff contends: “Because the apps provide only a means for displaying
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`terminal charts, they are excluded from Jeppesen’s claimed copyright.” (Id. at 34.)
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`However, it is undisputed that, in order to develop its app, Plaintiff needs access to
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`Defendant’s JIT, for which Defendant also holds a copyright. (ECF No. 164 ¶ 113.)
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`Additionally, Defendant’s copyright grants it the exclusive right to “display” or authorize
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`the “display” of its copyrighted Terminal Charts. See 17 U.S.C. § 106. It is undisputed
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`that the sole purpose of Plaintiff’s app is to provide Defendant’s customers with a
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`means of “displaying” Defendant’s Terminal Charts on their mobile devices. (ECF No.
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`164 at 35.) Because Defendant has the right to control the display of its copyrighted
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`Terminal Charts, as well as the right to control the use of its copyrighted JIT, Plaintiff’s
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`argument that its app does not implicate Defendant’s copyrights is not persuasive.
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`Moreover, even if the refusal to deal did not invoke Defendant’s copyright, the
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`outcome would be the same. Typically, unilateral refusals to deal are lawful. See
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`Trinko, 540 U.S. at 408 (“[A]s a general matter, the Sherman Act does not restrict the
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`long recognized right of a trader or manufacturer engaged in an entirely private
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`business, freely to exercise his own independent discretion as to parties with whom he
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`Case 1:11-cv-01468-WJM-BNB Document 218 Filed 03/22/13 USDC Colorado Page 17 of 40
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`will deal.”). “The Sherman Act does not force [a company] to assist a competitor in
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`eating away its own customer base.” Christy Sports, LLC v. Deer Valley Resort Co.,
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`555 F.3d 1188, 1197 (10th Cir. 2009). Even if a company has an ongoing relationship
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`with a competitor and later changes course, so long as a business proffers some
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`business reason for its decision, such decision is not precluded by the Sherman Act
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`(though it may give rise to liability under a contract or tort theory). Id. at 1196; see also
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`Four Corners Nephrology Assoc., P.C. v. Mercy Med. Ctr., 582 F.3d 1216, 1225 (10th
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`Cir. 2009) (courts should impose a duty to deal “very cautiously because of the
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`uncertain virtue of forced sharing and the difficulty identifying and remedying
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`anticompetitive conduct by a single firm.”) (quoting Trinko, 540 U.S. at 408). Thus,
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`absent some showing that Defendant’s reason for refusing to deal with Plaintiff was
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`actually anticompetitive, Plaintiff cannot prevail on its Section 2 claim.
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`To avoid this case law, Plaintiff argues that Defendant’s refusal to enter into a
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`licensing agreement falls under the ambit of unlawful conduct created by Aspen Skiing
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`Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985). Specifically, Plaintiff
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`contends that, because the parties were previously engaged in a cooperative and
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`profitable venture, from which Defendant unilaterally withdrew, Defendant’s conduct
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`was anti-competitive. However, the Court finds this argument unpersuasive. The
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`Supreme Court has recognized that Aspen Skiing was an exceptional case that lies “at
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`or near the outer boundary of § 2 liability.” Verizon Commc’ns, Inc. v. Trinko, 540 U.S.
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`398, 409 (2004). Unlike the relationship in Aspen Skiing, the parties here had been in
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`business together for less than one year when the issue regarding the development of
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`an iPad app arose. See Eatoni Ergonomics v. Research in Motion Corp., 826 F. Supp.
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`2d 705 (S.D.N.Y. 2011) (Aspen Skiing did not apply where parties’ relationship was less
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`than a year). Additionally, and of greater importance here, Aspen Skiing did not involve
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`a party’s copyright, nor was the subject matter of the dispute there intellectual property
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`owned by one of the parties. Thus, the Court finds that this case does not fall within the
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`narrow purview of Aspen Skiing and that Plaintiff has not shown that Defendant’s
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`refusal to license its Terminal Charts and/or JIT wa