`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`CASE NO. 07-60654-CIV-ZLOCH
`UTOPIA PROVIDER SYSTEMS, INC.,
`a/k/a UTOPIA PROVIDERS SYSTEMS,
`INC.,
`
`Plaintiff,
`
`vs.
`PRO-MED CLINICAL SYSTEMS,
`L.L.C., and THOMAS L.
`GROSSJUNG,
`
`O R D E R
`
`Defendants.
` /
`THIS MATTER is before the Court upon Plaintiff’s Motion For
`Summary Judgment (DE 97) and Defendants’ Motion For Partial Summary
`Judgment (DE 112). The Court has carefully reviewed said Motions
`and the entire court file and is otherwise fully advised in the
`premises.
`Plaintiff Utopia Provider Systems, Inc. initiated the above-
`styled cause with the filing of its Complaint alleging violations
`of the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. (2006), and
`Florida state law. The Parties filed cross motions for summary
`judgment. The essence of Plaintiff’s argument is that it holds a
`valid copyright in a set of charts used by emergency room
`physicians, collectively entitled ED Maximus, and that Defendants
`infringed it. Defendants take the position that Plaintiff’s work
`is not copyrightable and, in the alternative, that there was no
`infringement. For the reasons expressed more fully below, the
`
`
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`Court finds that Plaintiff’s work does not qualify for copyright
`protection. For that reason, Defendants’ instant Motion (DE 112)
`will be granted, and Plaintiff’s instant Motion (DE 97) will be
`denied.
`
`I. Background
`Plaintiff is a corporation formed to own and manage the rights
`in a product called ED Maximus, a system of charts or templates for
`use by emergency room physicians. A full set of charts is
`1
`attached as Exhibit A-1 to Plaintiff’s Notice Of Filing (DE 100).2
`The charts speak for themselves as far as their content,
`organization, and layout are concerned; however, for the benefit of
`the Parties and any reviewing court, the Court provides the
`following brief description. The charts as a whole act as an
`integrated system for efficiently documenting a patient’s symptoms,
`and the physician’s conclusions and directions to the patient. ED
`Maximus is made up of numerous two- or three-page sets of charts,
`each useful for a particular type of ailment, such as chest pain,
`burns, head injury, pregnancy related problems, etc. Other than
`what necessarily differs chart to chart based on the nature of the
`ailment addressed, each chart is identical. They consist of blocks
`in which to record information from the patient: The top block
`
` Unless otherwise noted, these facts are taken from
`1
`Plaintiff’s Statement Of Material Facts In Support Of Its Motion
`For Summary Judgment (DE 99) and are undisputed.
` See also DE 115, Ex. 19.
`2
`
`2
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`calls for personal data such as name, date of birth, and chief
`complaint. The next block calls for information on the present
`illness, such as how long it has been present, the quality of the
`pain, what exacerbates it, what relieves it, etc. The next block
`calls for information on the present state of all the patient’s
`body systems. The next block calls for information about the
`patient’s medical and social history. The next two blocks, on page
`two, call for information to be input as part of the actual exam
`done for the problem presented and the decisions made by the
`physician. These blocks change based on the particular illness to
`be addressed using the chart. The final blocks allow for
`information to be input for clinical impressions, consultations
`with other doctors, and discharge instructions. See generally DE
`100, Ex. A-1. Each of the blocks on the charts contains blanks to
`be filled in by the physician with the relevant information. The
`line item blanks each have a word or two identifying what
`information should be placed there.
`The ED Maximus charts were created by Plaintiff’s principals,
`Joshua Plummer and Dr. Michael McHale. Plummer and McHale filed
`the ED Maximus charts with the United States Copyright Office,
`which issued a certificate of registration on October 29, 2001.
`Plaintiff and Defendants entered into a license agreement that gave
`Defendant the right to market ED Maximus to hospitals throughout
`the United States in exchange for royalty payments to be made to
`
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`Plaintiff. During the period of the license agreement, alongside
`of its marketing of the ED Maximus system, Defendant developed its
`Electronic Physician Documentation system (hereinafter “EPD”), an
`electronic template system similar to ED Maximus in its intended
`use and content. Defendant marketed EPD without paying royalties
`to Plaintiff based on the license agreement. The license agreement
`expired on October 1, 2006, after unsuccessful efforts to
`renegotiate the terms and renew the contract.
`Plaintiff initiated this action alleging that Defendants’
`development and sales of EPD have infringed on its copyright in ED
`Maximus. Plaintiff also sought relief for Defendants’ alleged
`breach of the license agreement and breach of fiduciary duties. By
`prior Order (DE 146), the Court dismissed without prejudice Counts
`2 and 3 of Plaintiff’s Third Amended Complaint (DE 86) because they
`involved questions of Florida state law that would predominate over
`the federal copyright claim at issue. Thus, only the federal
`Copyright claim in Count 1 remains pending.
`II. Standard of Review
`Under Federal Rule of Civil Procedure 56, summary judgment is
`appropriate
`if the pleadings, the discovery and disclosure materials
`on file, and any affidavits show that there is no genuine
`issue as to any material fact and that the movant is
`entitled to a judgment as a matter of law.
`Fed. R. Civ. P. 56(c); see also Eberhardt v. Waters, 901 F.2d 1578,
`
`4
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`1580 (11th Cir. 1990). The party seeking summary judgment “always
`bears the initial responsibility of informing the district court of
`the basis for its motion, and identifying those portions of the
`pleadings, depositions, answers to interrogatories, and admissions
`on file, together with the affidavits, if any, which it believes
`demonstrate the absence of a genuine issue of material fact.”
`Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation
`omitted). Indeed,
`the moving party bears the initial burden to show the
`district court, by reference to materials on file, that
`there are no genuine issues of material fact that should
`be decided at trial. Only when that burden has been met
`does the burden shift to the non-moving party to
`demonstrate that there is indeed a material issue of fact
`that precludes summary judgment.
`Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);
`Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
`The moving party is entitled to “judgment as a matter of law”
`when the non-moving party fails to make a sufficient showing of an
`essential element of the case to which the non-moving party has the
`burden of proof. Celotex Corp., 477 U.S. at 322; Everett v.
`Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). Further, the
`evidence of the non-movant is to be believed, and all justifiable
`inferences are to be drawn in his favor. Anderson v. Liberty
`Lobby, Inc., 477 U.S. 242, 255 (1986).
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`III. Analysis
`The sole Count left for disposition is the copyright claim in
`Count 1 of Plaintiff’s Third Amended Complaint (DE 86). Plaintiff
`claims that Defendants infringed on its federally protected
`copyright interest in the ED Maximus charts. Defendants’ principal
`argument in response is that Plaintiff’s ED Maximus product is not
`entitled to copyright protection. In the alternative, they argue
`that their EPD software does not infringe on Plaintiff’s rights.
`In light of the Court’s finding below that Plaintiff’s ED Maximus
`charts are not entitled to copyright protection, Defendants’
`actions with respect to them will not be addressed.
`A.
`To prove copyright infringement, Plaintiff must establish
`ownership of a valid copyright in its ED Maximus charts. Feist
`Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361
`(1991). In any case alleging an infringement of a copyright, the
`copyrightability of the work in question is the threshold issue.
`3 Nimmer on Copyright § 12.10 (2008). For works created after
`1977, “[c]opyright protection subsists . . . in original works of
`authorship fixed in any tangible medium of expression.” 17 U.S.C.
`§ 102(a). In 2001, the United States Copyright Office issued a
`certificate of registration for Plaintiff’s work, entitled “ED
`Maximus.” DE 96, Ex. A, ¶ 17.
`A certificate of registration from the United States Copyright
`
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`Office is prima facie evidence of the copyrightability of a work.
`Southern Bell Tel. and Tel. Co. v. Associated Tel. Directory
`Publishers, 756 F.2d 801, 811 (11th Cir. 1985); 4 Nimmer on
`Copyright § 13.01. But “a certificate of registration creates no
`irrebuttable presumption of copyright validity.” Durham Indus.,
`Inc. v. Tomy Corp., 630 F.2d 905, 908 (2d Cir. 1980). That is,
`even in the face of a registration from the Copyright Office,
`“[w]here other evidence in the record casts doubt on the question,
`validity will not be assumed.” Id.; see also Norris Indus. v.
`Int’l Tel. Corp., 696 F.2d 918, 922 (11th Cir. 1983) (approving the
`district court’s reliance on the Copyright Office’s decision to
`register a copyright but noting that “[t]his is not to say that the
`court should simply accept the Register’s decision without
`question”).
`Aside from the official certificate of registration, courts
`will examine the nature of the work itself to help answer the
`question as to copyrightability. Durham Indus., 630 F.2d at 908
`(noting that “the mute testimony of Mickey, Donald and Pluto
`themselves” necessitates an adverse determination). The Parties do
`not dispute the content of Plaintiff’s ED Maximus work and no
`question remains that it is the product of Plaintiff, through its
`principals. See DE 157. Thus, there is no mixed question of fact
`and law presented as to copyrightability. In that case the Court
`is free to look at the work in question and draw its own conclusion
`
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`on the question of whether the work is properly protected by
`copyright. See Gaiman v. McFarlane, 360 F.3d 644, 648 (7th Cir.
`2004) (noting a Circuit split on the question of whether
`copyrightability is a pure question of law or involves mixed
`questions of fact and law, the latter usually involving questions
`as to the originality of a work). Therefore, taking due account
`that the Copyright Office issued a certificate of registration and
`that this is evidence of the work’s copyrightability, the Court
`turns to the question of whether Plaintiff’s ED Maximus is
`sufficiently original to merit copyright protection.
`B.
`Plaintiff’s ED Maximus is a work of a literary nature,
`registered and described by the Parties herein as a compilation of
`terms. A compilation is defined by the Copyright Act as “a work
`formed by the collection and assembling of preexisting materials or
`of data that are selected, coordinated, or arranged in such a way
`that the resulting work as a whole constitutes an original work of
`authorship.” 17 U.S.C. § 101. Plaintiff’s work is not a
`compilation of materials; rather, it is of words. Therefore, to
`qualify as a compilation, according to § 101, it must be a
`compilation of data. Id.
`When compilations of literary material are addressed by the
`courts, it is always a compilation of data, sometimes spoken of as
`“facts.” Id.; see, e.g., Feist Publications, 499 U.S. at 345
`
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`(“[I]t is beyond dispute that compilations of facts are within the
`subject matter of copyright.”). Works that compile words, but
`3
`that do not compile facts, are not copyrightable. Thus, “works not
`subject to copyright” include “[b]lank forms, such as time cards,
`graph paper, account books, diaries, bank checks, scorecards,
`address books, report forms, order forms and the like, which are
`designed for recording information and do not in themselves convey
`information.” 37 C.F.R. § 202.1(b) (2008). What sets compilations
`of facts apart from blank forms is the conveyance of information.
`Because copyright protects the expression of ideas, or original
`works of authorship, something must be put down on the page to
`qualify for protection. That something must be of an original and,
`in this case, literary nature. Feist Publications, 499 U.S. at 345
`(noting that the sine qua non of copyright is the authorship of an
`original work). If the import of a page, even with words and
`
` See also Feist Publications, 499 U.S. at 350 (“A factual
`3
`compilation is eligible for copyright if it features an original
`selection or arrangement of facts, but the copyright is limited to
`the particular selection and arrangement.”) (emphasis removed);
`Warren Publ’g, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th
`Cir. 1997) (en banc) (directory of cable service providers);
`BellSouth Adver. & Publ’g Corp. v. Donnelly Info. Publ’g, Inc., 999
`F.2d 1436, 1441 (11th Cir. 1993) (en banc) (“The protection of
`copyright must inhere in a creatively original selection of facts
`to be reported and not in the creative means used to discover those
`facts.”) (second emphasis added); Worth v. Selchow & Righter Co.,
`827 F.2d 569 (9th Cir. 1987) (encyclopedia of trivia); Corwin v.
`Walt Disney Co., 475 F.3d 1239, 1251 n.8 (11th Cir. 2007) (“We have
`also recognized that a selection, arrangement, or organization of
`facts is copyrightable as a compilation if sufficiently original.”)
`(citation omitted).
`
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`phrases pre-marked on it, is to act as a mere receptacle for
`information input by the reader, it is not the proper subject of
`copyright protection. “It is well-established that blank forms
`which do not convey information or contain original pictorial
`expression are not copyrightable.” John H. Harland Co. v. Clarke
`Checks, Inc., 711 F.2d 966, 971 (11th Cir. 1983). Rather, the law
`analyzes blank forms not as original works of authorship but as
`“systems” for recording information. See Baker v. Selden, 101 U.S.
`99 (1879) (holding that copyright protection in a work on
`bookkeeping did not extend to accounting forms “ruled and arranged
`as designated by [the author] and described and illustrated in said
`book”); John H. Harland Co. v. Clarke Checks, Inc., 1980 WL 1183 *3
`(N.D. Ga. 1980) (“What the plaintiff’s [check stub] product
`actually represents is a new system for recording checkbook
`entries. As such, it is not subject to copyright protection.”),
`aff’d 711 F.2d 966. Such a system for recording information is not
`contemplated under the rubric of copyright. “In no case does
`copyright protection for an original work of authorship extend to
`any . . . procedure, process, system, [or] method of operation . .
`. regardless of the form in which it is described, explained,
`illustrated, or embodied in such work.” 17 U.S.C. § 102(b); see
`also 37 C.F.R. § 202.1 (interpreting the Copyright Act to withhold
`protection from works “designed for recording information and
`[that] do not in themselves convey information”).
`
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`Plaintiff’s ED Maximus work is a set of charts to be used by
`physicians when taking a patient’s medical history and listing
`present symptoms. The charts contain blanks calling for
`information to be filled in with the patient’s unique medical
`information. For example, the charts contain a box titled “History
`of Present Illness” that has blanks that can be filled in with
`information from the patient in the following categories: Timing,
`Duration, Location, Quality, Severity, Context, Exacerbated by,
`Associated Signs and Symptoms. See, e.g., DE 100, Ex. A-1, p. 2.
`All other charts likewise contain blanks and areas to record the
`patient’s present physical state. Thus, the charts are not truly
`a compilation of facts or data. Rather they are forms for the
`taking down of information.
`The cases cited above for the proposition that literary
`compilations are always compilations of facts deal directly with
`whether the efforts of the plaintiffs therein deserve protection.
`Even so, the works at issue always contained facts of interest to
`a reader, whether a telephone directory, a directory of cable
`service providers, or an encyclopedia of trivia. Plaintiff’s ED
`Maximus charts are at the opposite end of the spectrum: The facts
`of interest to the physicians using the charts are held by the
`patient until discovered and recorded by the physician in a medical
`consultation. The charts waiting ready to record the information
`provided are not a compilation of facts. To be sure, a review of
`
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`Plaintiff’s ED Maximus charts will convey certain information to
`the reader, for example the names of the body systems (endocrine,
`cardiovascular, respiratory, etc.). Yet the charts are not meant
`to be an organized display of preexisting data. Rather, they are
`meant to act as a template on which to enter the data. In gross
`simplification: The patient’s hurts, has been hurting for
` days, and the pain is of a nature. Before blanks
`such as these are filled in, the words surrounding them convey no
`information.
`Blank forms receive no protection under the Copyright Act. 37
`C.F.R. § 202.1(b). In 1879 the Supreme Court explained the limits
`of copyright protection with reference to blank forms. In Baker v.
`Selden, 101 U.S. 99, the Court sustained the extension of copyright
`protection to the whole of the plaintiff’s work on bookkeeping with
`the exception of the accounting forms included in an appendix.
`Specifically, the Court ruled that a copyright held in the treatise
`on bookkeeping does not extend to “the peculiar system of
`bookkeeping” that is “illustrated . . . by means of ruled lines and
`blank columns, with proper headings on a page, or on successive
`pages.” 101 U.S. at 104. The Court went to great length to
`distinguish between the copyrightable text of the treatise on
`bookkeeping and the system of recording numbers and data
`memorialized in the forms. The latter goes unprotected. Id. at
`101-03.
`
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`More recently, the Eleventh Circuit explained its position on
`blank forms. In John H. Harland Co., 711 F.2d 966, the court
`refused to grant copyright protection to the check stubs, noting
`that they “merely provide[] lines on which the check writer can
`record the date, the dollar amount of the check, the payee of the
`check, and the purpose of the check.” John H. Harland Co., 711
`F.2d at 972. Because the stub was “merely designed for recording
`information and does not convey information or contain original
`pictorial expression,” id., the Eleventh Circuit refused to protect
`it.
`
`The instant action is not meaningfully distinguishable from
`either Baker or John H. Harland Co. The charts and forms that make
`up Plaintiff’s ED Maximus work are not the proper subject of
`copyright protection because they embody Plaintiff’s system for a
`physician’s consultation with a patient. Just as a bookkeeper
`4
`would turn to the accounting forms in Baker for reference and
`guidance in bookkeeping, so do physicians use Plaintiff’s charts to
`organize their medical practice. But the charts themselves do not
`convey information in the manner contemplated by the applicable
`laws and regulations. 17 U.S.C. § 102(b); 37 C.F.R. § 202.1.
`Moreover, though different in size and concept, Plaintiff’s ED
`Maximus charts are no different qualitatively than the stub of a
`
` In fact, Plaintiff refers to its product as a “template
`4
`system.” DE 99, ¶ 25 (noting the sale to hospitals of “the [ED]
`Maximus template system”).
`
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`check at issue in John H. Harland Co. The fact that Plaintiff’s ED
`Maximus work is much more extensive than a check stub does not make
`it different in kind. There is simply less happening on a bank
`check than in the human body, and thus more blank forms are
`required for the latter. That fact alone cannot grant protection
`to Plaintiff’s work, dealing with the body, when a bank check stub
`is non-copyrightable. John H. Harland Co., 711 F.2d at 972.5
`Forms used by physicians in the treatment of patients have in
`the past received the protection of the copyright laws. In Norton
`Printing Co. v. Augustana Hosp., 155 U.S.P.Q. 133 (N.D. Ill. 1967),
`the court noted that the “quite detailed” medical forms “contain
`many separate categories and areas for examination.” Id. at 135.
`Thus, the court noted “[c]ertainly, they are used to record
`information.” Id. However, with respect to those forms the court
`stated that “the format and arrangement used, together with the
`different boxes and terms, can also serve to convey information as
`to the type of tests to be conducted and the information which is
`deemed important.” Id. Thus, the medical forms were deemed
`sufficiently original to be protected.
`The medical forms at issue and as described in Norton Printing
`
` The Court’s ruling announced herein--that Plaintiff’s ED
`5
`Maximus work is not a proper subject of copyright protection--
`should not be read as downplaying the efforts that went into
`producing it. Clearly, the charts are exhaustive and no doubt took
`considerable and admirable effort to compile and organize, but
`copyright protection for the “sweat of the brow” was eliminated
`long ago. See Feist Publications, 499 U.S. at 352-60.
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`differ from Plaintiff’s ED Maximus here, at least according to the
`Parties. In its briefing, Plaintiff does not argue that the ED
`Maximus forms are arranged in a way “to convey information as to
`the type of tests to be conducted and the information which is
`deemed important.” Id. In support of its argument that its work
`is copyrightable, Plaintiff only argues that its selection and
`arrangement of terms is sufficiently original to merit protection
`as a compilation of terms. Moreover, Dr. Michael McHale, one of
`Plaintiff’s principals who designed and created the ED Maximus
`charts, testified as follows regarding the function of such charts:
`Q. What are the functions of physician documentation
`templates?
`. . . .
`A. It is to capture a patient encounter.
`Q. You would agree with me that the purpose or rather the
`function of the template is to record the information
`gathered during that encounter. Correct?
`A. Capture, yeah.
`Q. In other words, a template doesn’t drive the
`encounter, it only captures the results of the encounter.
`Correct?
`A. No, it can prompt.
`Q. Do you think templates should prompt?
`. . . .
`A. I think that is a personal opinion.
`Q. I am asking your personal opinion.
`A. Well, it has to serve as, you know, a couple, you
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`know, basics. People buy templates so they do many
`things. The important thing is to capture the patient
`encounter, but you’ve got to worry about billing, coding,
`medical legal aspects of the form. So, some people need
`to be prompted to be sure they capture all that.
`Q. Let’s be clear about this. The template can act as a
`prompt to capture information. Are you suggesting that
`in addition the template is a prompt to provide adequate
`medical care in the emergency department?
`A. Can you repeat that last part?
`Q. Sure, I will try to be a little more artful.
`A. Go ahead.
`Q. I think you understand what I am asking but I will ask
`it a better way. With regard to the prompting you
`described that can result from using a paper template,
`that prompting relates to capturing information, not
`adequately addressing the needs of the patient. Correct?
`A. Two separate issues.
`Q. Do you think it does the latter as well?
`A. I don’t think it has anything to do with the actual
`patient care.
`Q. Okay. Please explain that.
`A. The practice of medicine is an art and science. We
`are talking a [sic] documentation form that you are
`capturing an encounter on. So, I don’t think there is
`any documentation to help anyone practice medicine.
`Q. Okay. So, a physician documentation template doesn’t
`prompt the physician to adequately care for the patient.
`Rather, it prompts the physician to capture the
`information that derives from providing that care.
`Correct?
`A. Correct.
`Deposition of Dr. Michael McHale, DE 115-25, pp. 154-56. Thus, the
`ED Maximus charts do not inform the physician about anything.
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`Rather, the physicians using the charts are expected to know what
`information from the patient is important and what tests ought to
`be run. Id. at 155 (“I don’t think it has anything to do with the
`actual patient care.”). Those decisions can be made after
`analyzing the information obtained from the patient. It is the ED
`Maximus charts that allow the information to be recorded in an
`orderly fashion. They are a receptacle for information, not a
`compilation of data or facts; the ED Maximus charts do not
`themselves convey information to the physician. This fact
`distinguishes Norton Printing, 155 U.S.P.Q. 133, from the case at
`hand, and the Court therefore declines to follow the same.
`IV. Conclusion
`The Court finds that Plaintiff’s ED Maximus charts are not
`properly the subject of copyright protection because they are not
`a compilation of terms, the only ground advanced for their
`copyrightability. Thus, no genuine issue of material fact remains
`for trial, and Defendants are entitled to judgment as a matter of
`law as to Count 1 of the Third Amended Complaint (DE 86).
`Accordingly, after due consideration, it is
`ORDERED AND ADJUDGED as follows:
`1. Plaintiff’s Motion For Summary Judgment (DE 97) be and the
`same is hereby DENIED;
`2. Defendants’ Motion For Partial Summary Judgment (DE 112) be
`and the same is hereby GRANTED; and
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`3. Final Judgment will be entered by separate Order.
`DONE AND ORDERED in Chambers at Fort Lauderdale, Broward
`County, Florida, this 2nd day of February, 2009.
`
`
`WILLIAM J. ZLOCH
`United States District Judge
`
`Copies furnished:
`All Counsel of Record
`
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