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Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 1 of 33
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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`
`
`Plaintiff,
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`PYROTECHNICS MANAGEMENT, INC.,
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`
`
`
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`XFX PYROTECHNICS LLC and fireTEK,
`
`
`
`v.
`
` Defendants.
`
`
`
`Civil Action No. 2:19-cv-00893
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`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`Robert J. Colville, United States District Judge
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`OPINION
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`
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`On July 24, 2019, Plaintiff Pyrotechnics Management, Inc. (“Plaintiff” or
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`“Pyrotechnics”) filed a Complaint (ECF No. 1, hereinafter “Compl.”) against fireTEK and XFX
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`Pyrotechnics LLC (“XFX”). The Complaint alleges copyright infringement (Count I), tortious
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`interference with prospective contractual relations (Count II), and unfair competition (Count III)
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`arising out of Defendants’ alleged unauthorized copying, distribution and sale of
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`command/control protocols in which Pyrotechnics owns the copyright; and arising out of the
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`unauthorized distribution and sale of fireTEK products that incorporate or reproduce such
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`command/control protocols.
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`
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`This Court has original jurisdiction under 17 U.S.C. § 104 et seq. and 28 U.S.C.
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`§§ 1331 and 1338.
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`
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`On May 28, 2020, Plaintiff filed a Motion for Preliminary Injunction with Brief in
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`Support (ECF Nos. 55, 56), to which both Defendants have responded. (ECF Nos. 59, 60, 67).
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`The Court entered a scheduling order setting forth deadlines for the filings of proposed findings
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`of fact and conclusions of law, as well as witness lists, exhibit lists, and stipulations. (ECF No.
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`1
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 2 of 33
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`66). On August 19, 2020, the Court held an evidentiary hearing on the motion for preliminary
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`injunction. Thereafter, the parties filed post-hearing proposed findings of fact and conclusions of
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`law. An official transcript of the hearing was prepared. (ECF No. 106). On February 18, 2021,
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`the Court heard closing arguments. (ECF Nos. 116, 117).
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`
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`FINDINGS OF FACT AND CONCLUSIONS OF LAW
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` In accordance with Federal Rule of Civil Procedure 65, and based upon the pleadings,
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`record papers, affidavits, depositions, exhibits, stipulations of counsel and the evidence presented
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`at the hearing on August 19, 2020, as well as arguments of counsel, we make the following
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`Findings of Fact and Conclusions of Law.
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`I. FINDINGS OF FACT
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`Procedural History
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`Pyrotechnics filed the Complaint in this matter on July 24, 2019, alleging claims
`
`A.
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`1.
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`of copyright infringement, tortious interference with prospective contractual relations, and unfair
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`competition against Defendants fireTEK and XFX. (ECF No. 1.)
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`2.
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`Plaintiff filed a motion seeking to enjoin Defendants from further infringement of
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`Plaintiff’s copyrighted work simultaneously with its Complaint. (ECF No. 7.)
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`3.
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`Defendant XFX answered the Complaint on September 9, 2019, whereas
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`Defendant fireTEK filed a motion to dismiss the Complaint on October 15, 2019. (ECF Nos. 28,
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`34.)
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`4.
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`Plaintiff’s Motion for Preliminary Injunction was administratively denied without
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`prejudice on February 3, 2020, pending resolution of the fireTEK’s Motion to Dismiss. (ECF
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`No. 43.)
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`2
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 3 of 33
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`5.
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`On April 30, 2020, the Court denied fireTEK’s Motion to Dismiss the Complaint.
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`(ECF No. 49.)
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`6.
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`7.
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`fireTEK answered the Complaint on May 13, 2020. (ECF No. 50.)
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`Pyrotechnics then refiled the instant Motion for Preliminary Injunction on May
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`28, 2020. (ECF No. 55.)
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`8.
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`Defendants XFX and fireTEK filed briefs in opposition to Plaintiff’s Motion for
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`Preliminary Injunction on June 1, 2020 and June 11, 2020, respectively. (ECF No. 60, 67.)
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`9.
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`The Court held a hearing on the Motion for Preliminary Injunction on August 19,
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`2020 (ECF No. 89); supplemental briefing and transcripts were filed, and final argument was
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`heard.
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`B.
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`Factual Background
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`1.
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`The Parties
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`10.
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`Plaintiff Pyrotechnics is a Pennsylvania corporation with a principal place of
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`business at 863 Benner Pike Ste. 100, State College, PA 16801-7315. Its owner is Daniel
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`Barker.
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`11.
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`Pyrotechnics manufactures digital pyrotechnics firing systems and related
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`products that are used to create fireworks displays. Pyrotechnics sells such systems and products
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`worldwide, including in the Western District of Pennsylvania. Many of those systems and
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`products incorporate the command/control protocols that Pyrotechnics authored and for which
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`Pyrotechnics is sole owner of all copyrights.
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`12.
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`Defendant fireTEK is a Romanian corporation with a place of business at Strada
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`Silvestru 24A, Iaşi, Romania.
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`13.
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`Defendant fireTEK is owned by Laurian Antoci.
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`3
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 4 of 33
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`14.
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`fireTEK sells digital pyrotechnic firing equipment and related products
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`worldwide, including in the United States.
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`15.
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`fireTEK is a competitor of Pyrotechnics in the distribution and sale of digital
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`pyrotechnics firing systems and related products.
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`16.
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`Defendant XFX is a Delaware limited liability company with a place of business
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`at 44 Ridgewood Drive, McDonald, Pennsylvania 15057.
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`17.
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`XFX distributes and offers for sale fireTEK’s digital pyrotechnics firing systems
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`and related products in the United States.
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`2.
`
`The Copyrighted Protocol
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`18.
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`Plaintiff Pyrotechnics has been a world leader in the manufacture and sale of
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`digital pyrotechnic firing systems for nearly twenty-five years.
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`19.
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`Pyrotechnics’ digital pyrotechnic firing systems and related products are sold
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`under the brand name “FireOne” (herein “the FireOne Products”). FireOne systems and products
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`are also sometimes referred to as “F1” systems and products.
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`20.
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`The FireOne brand is used in connection with a variety of digital pyrotechnic
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`firing systems and related products. Certain FireOne systems include FireOne field modules
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`which are used for remote ignition of pyrotechnic products such as fireworks.
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`21.
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`FireOne field modules are activated through the use of FireOne’s
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`command/control protocol (the “Protocol”). The FireOne field modules use the Protocol to
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`communicate with a FireOne control panel.
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`22.
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`In response to commands, the FireOne control panel uses the Protocol to
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`communicate to one or more FireOne field modules so as to cause the FireOne field modules to
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`execute certain predefined functions. Such functions include, but are not limited to, causing the
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`4
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 5 of 33
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`FireOne field modules to ignite pyrotechnic products that are electrically connected to the
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`FireOne field modules.
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`23.
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`The Protocol enables the operator to use the FireOne control panel and FireOne
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`field modules to execute fireworks displays in which fireworks are ignited in a particular order
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`and at specific times.
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`24.
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`Pyrotechnics has invested substantial time and money to develop the FireOne
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`system in which the Protocol is an integral and essential part.
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`25.
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`The Protocol was created by Pyrotechnics’ engineers Daniel Barker, Elwood
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`Seifert, and Robert Ceschini in 1993. (Hr. Test. of Daniel Barker at 73-74).
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`26.
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`The Protocol was first published by Pyrotechnics embedded inside hardware in
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`1995.
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`27.
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`The Protocol includes command codes that are not the expression of the idea of
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`controlling pyrotechnics displays but are the author’s original expression. (Hr. Test. of Daniel
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`Barker at 25-26, 31-32, 76, 82; Hr. Test. of Robert Capuro at 106-07)1; see also Conclusions of
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`Law, infra.
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`
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`1 As Pyrotechnic’s owner Daniel Barker explained, “It's actually the unique communications code that is expressed
`by the control panel and is on this wire that goes to the field modules. It is, in fact, the message that flows from one
`device to another to allow you to control a very complex [sy]stem. . . . In the development of the system and the
`communications code that we used, we were concerned about having an extremely secure, extremely safe system.
`So we used a lot of existing types of ideas that have been out there for years and years, and we modified them
`significantly to make this system unique so we wouldn't have interference, we wouldn't have problems with
`broadcasts from radio and TV and the cellular communications and that type of thing. So the two frequencies that
`we chose were specifically chosen as nonstandard frequencies to be out of the band paths of typical devices that are
`out around the world. . . . This is a very offbeat, very strange frequency standard that we devised specifically for
`safety. This is information that was derived specifically to empower our system. And up until the time that we
`placed it with the Copyright Office, it was not something that you could find anywhere. So the only way you could
`get this information would be to use some sophisticated equipment to look at our hardware while it's operating and
`decode it and, therefore, you could derive the information. . . . The only system I know of in the world that would
`use this command structure would be FireOne, other than the attempt by fireTEK to pirate the information.”
`(Transcript, ECF No. 106 at 25-26, 31-32). He continued to explain that the purpose of the code was to control
`Pyrotechnics proprietary hardware, specifically for the purpose to control its field modules. All of the codes were
`not included in the Copyright registration because, he posed, “Can you imagine if we sent them four or five billion
`pages? No. That would be nonsensical. What we sent them was the base code. And it said, look, here is how you talk
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 6 of 33
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`28.
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`The Protocol includes command codes whose expression is not limited by
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`external factors that are inherent in the subject matter of pyrotechnics displays.
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`29.
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`The idea of controlling pyrotechnics displays can be expressed in many ways that
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`are not linked to external factors that are inherent in the subject matter of pyrotechnics displays.
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`30.
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`The idea of controlling pyrotechnics displays can be expressed in many ways that
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`are workable alternatives to Plaintiff’s original, copyrighted expressions.
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`31.
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`Plaintiff’s copyrighted command codes do not serve as a lock-out code as they
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`permit communication with field modules.
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`32.
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`Plaintiff’s Protocol is Plaintiff’s original expression that includes creative
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`organization and sequencing; they are unique expression which are necessary to the operation of
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`the system and which uniquely communicate with the Plaintiff’s field modules.
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`33.
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`Plaintiff’s Protocol is an expression of alpha-numeric characters that are original
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`with Plaintiff and that do not flow from considerations that are external to the author’s creativity.
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`34.
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` Plaintiff’s Protocol is an expression of alpha-numeric characters that are selected
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`according to the author’s creativity and not according to hardware standards, mechanical
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`specifications, software standards, computer design standards, industry programming practices,
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`or market factors.
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`to a module. Here's how a module replies. Here's how you can turn on fire power. Here's how you can ask it to tell
`us what's connected to it. It's the base code that we registered, which everything is derived from. So based on the
`fact that there are lots and lots of variations of that, it should be very obvious to the casual observer. It's like
`publishing an alphabet and saying, you know, you can make words with this. . . . We published the alphabet and the
`words and the specific sentences that we're using to operate the firing modules. So it's very specific what we
`registered with them.” (Transcript, ECF No. 106 at 76-77); see also Hearing Transcript of Robert Capuro, ECF No.
`106 at 106-07.
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`6
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 7 of 33
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`35.
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`The Protocol is unique to Pyrotechnics’ FireOne system; it is not a commonly
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`used protocol for firing pyrotechnic products or communicating between remote ignition devices
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`in the pyrotechnics industry.
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`36.
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`Prior to fireTEK’s infringement of the Protocol, the Protocol was not used in any
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`of the other dozens of similar pyrotechnics firing systems manufactured by Pyrotechnics’
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`competitors; instead, those competitors developed their own command structures to fire their
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`pyrotechnic devices.2
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`37.
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`Pyrotechnics deliberately employed an obscure command structure in its Protocol
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`to prevent the inadvertent detonation of pyrotechnic products.
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`38.
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`Pyrotechnics has registered its copyright for the Protocol with the U.S. Copyright
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`Office under Registration Number TX 8-738-709. See Pl.’s Ex. 1 (ECF No. 94-1).
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`39.
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`The copyright deposit materials for the Protocol list the specific command
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`sequences that are subject to Pyrotechnics’ copyright. See Pl.’s Ex. 1, 14 (ECF Nos. 94-1, 94-
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`14).
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`40.
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`Pyrotechnics’ command code is transmitted on wires to the field modules, and
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`also occurs in the microprocessor of the Plaintiff’s controller.3
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`
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`2 In addition to the testimony of Daniel Barker, cited supra at fn. 1, specifically Transcript at p. 26-27, Robert M.
`Capuro, an electrical engineer who confirmed the fireTEK routers contained a copy of the Protocol, explained:
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`Q. Is this basic message format [FSK or “frequency shift keying”] in any way an industry
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`standard or a custom? Is this common in the industry?
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`A. The use of FSK is common.
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`Q. However, but the way that this basic message format, is it common or an industry standard?
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`A. Not in the context within which FireOne has chosen those frequencies and used them to represent a
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`digital 1 or digital 0 in the scheme of their command system.
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`(Transcript, ECF No. 106 at 107).
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`3 Mr. Capuro explained, on cross-examination:
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`Q. The output of those command codes is numbers; is that right?
`A. Well, they can be represented -- (Zoom froze) -- in a piece of electronic equipment, I don't see numbers.
`I see bits or letters or words. So part of that is broken down into the finer level that you're referring to.
`Q. But in a digital format, would it be numbers?
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 8 of 33
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`3.
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`Defendants’ Infringement of the Protocol
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`41.
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`Defendant fireTEK is manufacturing, distributing, and selling fireTEK routers
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`that fireTEK claims can control Pyrotechnics’ FireOne field modules (the “fireTEK Routers”).
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`42.
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`fireTEK further claims that purchasing fireTEK Routers eliminates the need to
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`purchase FireOne control panels in order to use FireOne field modules to orchestrate a
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`pyrotechnics display.
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`43.
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`fireTEK admitted at the hearing that it had created its router by reverse
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`engineering FireOne’s control panel. fireTEK copied Plaintiff’s command codes in their entirety.
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`44.
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`On January 23, 2019, fireTEK posted information concerning its fireTEK Routers
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`on several websites, including the fireTEK Facebook® page, the UK Fireworks Forum, and
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`pyrofan.com, inter alia.
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`45.
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`Each of fireTEK’s posts boasted that its new product “[c]an direct control F1
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`modules (no need F1 panels – it can replace it and add more useful features to end users” and
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`that the “fireTEK router can control up to 50 F1 modules.”
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`46. When one user on pyrofan.com responded to the post requesting the price of the
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`new fireTEK Routers, fireTEK responded, “[a]s price it will start from 1500 to 2000 depending
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`on the options you want to add: GPS and DMX. And if you pay only 400 (500 with internal
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`audio player and 550 with time code also) more for a fireTEK remote you can wireless control
`
`
`A. No. It would be a 1 or a 0.
`Q. Are 1 and 0 numbers?
`A. It's a binary system that is understood by the hardware.
`Q. Okay. Would they be words?
`A. What is your question?
`Q. I understand you're not -- you're saying they're not numbers. Are they words or short phrases?
`A. They're a method for the electronics to understand what we understand in words.
`
`Q. But electronics use numbers to understand those features; right?
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`A. You can call it whatever you want. But I call them bits, 1s and 0s that are understood by standard
`processing systems. They don't learn a language from us. We create a language that they understand.
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`8
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 9 of 33
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`your F1 modules with centralized and local error reports and even with possibility to local
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`control of each F1 router. Think about how much it cost a F1 wireless solution and it is not so
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`good like fireTEK wireless.”
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`47.
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`These posts also embed a video posted by fireTEK owner Laurian Antoci on
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`youtube.com, also uploaded on January 23, 2019, which demonstrates a fireTEK Router
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`controlling a FireOne field module (the “YouTube Video”).
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`48.
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` The YouTube Video again acknowledged in the description of the video that
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`“[t]his device can direct control F1 modules and replace F1 panels and add more useful features
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`to your F1 system.”
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`49.
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`In order to control the FireOne field modules (a/k/a “the F1 modules”), the
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`fireTEK Routers must incorporate the copyrighted Protocol. (Transcript, Daniel Barker, ECF
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`No. 106 at 31-32; Transcript, Robert Capuro, ECF No. 106 at 109-111,4 116-118, 119-120, 124,
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`128, 129, 131-132, 177; Pl.’s Ex. 7-8.)
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`50.
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`Pyrotechnics retained Robert M. Capuro, an electrical engineer with fifty years of
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`experience in his field, to conduct expert testing on the fireTEK Routers to confirm whether they
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`contained a copy of the Protocol. (Hr. Test. of Robert Capuro at 103-04; Pl.’s Ex. 7-8.)
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`4 Capuro explained his testing and conclusions:
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`
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`We utilized standard factory test equipment. As I said earlier, we captured realtime analog and digital
`signals that were monitored, captured and recorded. Those monitored, captured and recorded data
`were compared to provide conclusions. How were they compared? We compared FireOne to the
`copyrighted code. We compared fireTEK to the copyrighted code. We compared them to one another.
`And in each case they were identical. So my conclusions as an engineer evaluating the data that was
`acquired according to the approved test procedure, that the FireOne message format, as we all know,
`is copyrighted. . . . So my final conclusion based on the analysis of the data that was taken according
`to the test plan was that the fireTEK FXT-320FO router violated the FireOne copyrights. That is
`based entirely on my professional opinion and my observance of the test and my concurrence that it
`was conducted according to the approved test procedure.
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`Transcript, Robert Capuro, ECF No. 106 at 109-111).
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 10 of 33
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`51.
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`On November 7, 2019, Mr. Capuro conducted testing on the fireTEK Router, and
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`concluded based upon the results of that testing that the fireTEK Routers contain an exact copy
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`of Pyrotechnics’ copyrighted Protocol.
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`Defendants’ copy of Plaintiff’s copyrighted work is a literal copy.
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`Pyrotechnics has never authorized fireTEK or XFX to copy, distribute, sell or use
`
`52.
`
`53.
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`the Protocol.
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`54.
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`XFX is the official distributor of fireTEK’s products in the United States and
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`Canada.
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`55.
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`Ralph Piacquadio, the principal of XFX, is a pyrotechnician who has frequently
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`used Pyrotechnics’ FireOne firing system to choreograph and produce fireworks displays.
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`56.
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`Both XFX and fireTEK had access to FireOne’s copyrighted Protocol via the
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`FireOne firing system.
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`57.
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`XFX has unlawfully distributed at least one copy of the infringing fireTEK router
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`to Zambelli Fireworks, a Pennsylvania-based fireworks company.5 It took possession of and was
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`prepared to give to Zambelli the router, which fireTEK labelled at one point a “gift” in
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`conjunction with a potential order. Hr. Test. of Ralph Piacquadio at 198-199, 221, 224-226;
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`Piacquadio Aff. (ECF Docket No. 31-1) ¶¶ 20-22; Pl.’s Ex. 15; XFX Ex. 4 (noting that Zambelli
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`owned the router)
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`
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`5 Counsel for XFX executed a “Receipt for Transfer of Possession of fireTEK Router” which states:
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`NOW, this 3rd day of September 2019, Counsel for Plaintiff, Pyrotechnics Management Inc., took
`possession from counsel for Defendant, XFX Pyrotechnics LLC, one (1) functional router
`manufactured by Defendant fireTEK, Inc. and owned by Zambelli Fireworks (a non-party), in
`accordance with Judge Horan’s Order of Court dated August 8, 2019.” (ECF No. 94-21).
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 11 of 33
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`58.
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`In letters dated March 18, 2019, Pyrotechnics complained to XFX and fireTEK
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`about their infringing activities with respect to the Protocol. (Pl.’s Ex. 4-5, ECF Nos. 94-4, 94-
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`5).
`
`59.
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`Neither XFX nor fireTEK has made any written response to the letters from
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`Pyrotechnics.
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`60.
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`The principal of fireTEK, Laurian Antoci, told Daniel Barker, the owner of
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`Pyrotechnics, that he had received the letters. He admitted that the Protocol had been taken from
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`FireOne Products and incorporated into fireTEK products. Further, Mr. Antoci told Mr. Barker
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`that he intended to continue to copy, distribute, sell and use the Protocol in fireTEK products
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`with no accounting to Pyrotechnics. Mr. Antoci further informed Mr. Barker at that if
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`Pyrotechnics brought any legal proceeding against fireTEK, Mr. Antoci intended to delay and
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`forestall any final decision in such a proceeding for years and that, meanwhile, he would
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`continue to copy, distribute, sell and use the Protocol throughout the course of the proceeding. 6
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`61.
`
`In July 2019, Pyrotechnics Guild International, Inc., a trade organization for
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`pyrotechnicians in the United States, circulated its PGI Bulletin, a trade publication, which
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`included an advertisement from Defendant fireTEK again highlighting its “fireTEK to F1
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`compatibility.” It further claimed “fireTEK can control any F1 firing module and improve F1
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`system capabilities …. fireTEK firing modules can be controlled from any F1 control panel.
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`Add to your F1 system the possibility to directly control any DMX device automatically or
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`semiautomatically, increase firing accuracy and speed up to 1 ms, ensure 100% fire and more.”
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`6 The court found the testimony of Mr. Barker particularly credible in this regard because Mr. Barker took
`handwritten notes after this conversation.
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 12 of 33
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`(Transcript, Daniel Barker, ECF No. 106 at 57-59; Pl.’s Ex. 6.) fireTEK asserts it created a
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`compatible product with additional features in order to fill a gap in the consumer market.
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`62.
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`Phone numbers for Mr. Piacquadio and another XFX employee are listed as the
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`United States contacts on the fireTEK advertisement circulated in the PGI Bulletin.
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`63.
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`By advertising the fireTEK Routers by reference to FireOne products, Defendants
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`hope to capitalize on FireOne’s popularity in the marketplace to convince Pyrotechnics’
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`customers that there is no longer a need to purchase FireOne’s more expensive control panels,
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`because the fireTEK Routers can communicate with FireOne field modules. See Pl’s Ex. 2, ECF
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`No. 94-2).
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`64.
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`Should Defendants engage in infringing activity, Pyrotechnics faces severe
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`economic harm. (Transcript, Daniel Barker, ECF No 106 at 42, 93.)
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`65.
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`Defendants claim that they are not currently selling any of the infringing fireTEK
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`Routers in the United States. (Transcript, Ralph Piacquadio, ECF No. 106 at 191; Transcript,
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`Laurian Antoci, ECF No. 106 at 165).
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`II. CONCLUSIONS OF LAW
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`
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`Pyrotechnics has requested that Defendants XFX and fireTEK be enjoined from
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`importing, distributing, or selling any products that infringe upon Plaintiff’s copyrighted
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`command/control protocols as registered under Registration Number TX 8-738-709, including
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`but not limited to the fireTEK routers that incorporate or transmit those command/control
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`protocols.
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`A court should issue a preliminary injunction where a plaintiff can establish: (1)
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`likelihood of success on the merits; (2) likelihood that plaintiff will suffer irreparable harm if an
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`injunction is not issued; (3) the effect of the injunctive relief on the defendant; and (4) the public
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`12
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 13 of 33
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`
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`interest. Reilly v. City of Harrisburg, 858 F.3d 173, 176–177 (3d Cir. 2017), as amended (June
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`26, 2017) (collecting cases).
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`[A] movant for preliminary equitable relief must meet the threshold for the first two
`“most critical” factors: it must demonstrate that it can win on the merits (which
`requires a showing significantly better than negligible but not necessarily more
`likely than not) and that it is more likely than not to suffer irreparable harm in the
`absence of preliminary relief. If these gateway factors are met, a court then
`considers the remaining two factors and determines in its sound discretion if all
`four factors, taken together, balance in favor of granting the requested … relief.
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` Id. at 178–179.
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`The Court begins by considering the reasonable probability of success on the merits of
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`Pyrotechnics’ copyright infringement claim.
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`A. Pyrotechnics’ Likelihood of Succeed on the Merits.
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`
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`To establish a likelihood of success on the merits, a party must show its likelihood of
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`success is significantly better than negligible, but it need not establish that success on the merits
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`is more likely than not. See Reilly, 858 F.3d at 179 (quoting Singer Mgmt. Consultants, Inc. v.
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`Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (en banc)). “A district court need only determine
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`that the moving party would likely succeed on one claim to issue injunctive relief.” Johnson v.
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`Wetzel, 209 F. Supp.3d 766, 775 (M.D. Pa. 2016).
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`
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`Pyrotechnics is likely to succeed on its claim for copyright infringement, and as such, has
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`satisfied this factor of the analysis. To succeed on the merits of its copyright infringement claim,
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`Pyrotechnics must demonstrate “(a) ownership of a valid copyright, and (b) unauthorized
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`copying of original elements of the plaintiff’s work.” Dun & Bradstreet Software Servs., Inc. v.
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`Grace Consulting, Inc., 307 F.3d 197, 212 (3d Cir. 2002) (citing Whelan Assocs., Inc. v. Jaslow
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`Dental Laboratory, Inc., 797 F.2d 1222, 1231 (3rd Cir. 1986)).
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`13
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`

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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 14 of 33
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`1. Whether Pyrotechnics Owns a Valid Copyright in the Protocol
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`The Copyright Act (“the Act”) provides protection to “original works of authorship fixed
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`in any tangible medium of expression,” including “literary works.” 17 U.S.C. § 102(a).
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`Computer programs—defined in the Act as “a set of statements or instructions to be used
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`directly or indirectly in a computer in order to bring about a certain result,” 17 U.S.C. § 101—
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`can be subject to copyright protection as “literary works.” See Atari Games Corp. v. Nintendo of
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`Am., Inc., 975 F.2d 832, 838 (Fed. Cir.1992) (“As literary works, copyright protection extends
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`to computer programs.”); see Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1354 (Fed. Cir.
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`2014).
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`a. Whether Plaintiff’s Copyrighted Command Codes are “Original Works.”
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`
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`The Court concludes that Plaintiff’s command code is an original work of authorship that
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`
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`is owned by Pyrotechnics and duly registered with the U.S. Copyright Office.7 (FOF, ¶¶ 25-26,
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`32, 38.) Plaintiff’s command code constitutes protected expression and Pyrotechnics’ registered
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`copyright on the Protocol is valid. See 17 U.S.C. § 102. “In judicial proceedings, a certificate of
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`copyright registration constitutes prima facie evidence of copyrightability and shifts the burden
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`to the defendant to demonstrate why the copyright is not valid.” Bibbero Sys., Inc. v. Colwell
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`Sys., Inc., 893 F.2d 1104, 1106 (9th Cir. 1990).
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`
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`The Supreme Court has instructed that “[o]riginal ... means only that the work was
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`independently created by the author (as opposed to copied from other works), and that it
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`possesses at least some minimal degree of creativity,” even if the work is not a “novel” one. Feist
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`
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`7 The Act’s regulations permits, for the copyright holder whose literary works exist only in machine readable form,
`to submit identifying material in the form of a deposit copy, as was done here. 37 C.F.R. 202.20. Contrary to
`Defendants’ assertions, Plaintiff properly submitted identifying material to register its copyright, rather than the
`entire code.
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`
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`14
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`

`

`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 15 of 33
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`Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345-346 (1991) (originality
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`requires both “independent creation plus a modicum of creativity”). Although constitutionally
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`mandated, the threshold showing of originality is not a demanding one. Id. at 345 (“To be sure,
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`the requisite level of creativity is extremely low; even a slight amount will suffice.”). Plaintiff
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`has met its burden as to originality.
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`
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`It is black letter law that copyright law protects the expression of an idea, but not the idea
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`itself. See Dun & Bradstreet, 307 F.3d at 1234. “[T]he existence of … intellectual production, of
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`thought and conception” reflect originality in a work. See Feist Publications, 499 U.S. at 362
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`(quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59-60 (1884). Arbitrary
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`selection of an expression weighs against a finding of originality. Toro Co. v. R&R Prods. Co.,
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`787 F.2d 1208, 1213 (8th Cir. 1986) (assignment of sequential part numbers to replacement parts
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`was arbitrary and not original).
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`
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`For utilitarian works such as computer protocols, “the purpose or function of [the]
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`utilitarian work [is] the work’s idea, and everything that is not necessary to that purpose or
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`function [is] part of the expression of the idea. Where there are various means of achieving the
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`desired purpose, then the particular means chosen is not necessary to the purpose; hence, there is
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`expression, not idea.” Id. at 1236 (internal citation omitted).
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`
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`Where there are a variety of program structures through which an idea can be expressed,
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`the structure and organization of a computer program, in addition to its object and source codes,
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`are protected by copyright law. Id. at 1240; see also Oracle, 750 F.3d at 1366. (“[T]he structure,
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`sequence, and organization of a computer program is eligible for copyright protection where it
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`qualifies as an expression of an idea.”).
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`15
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`Case 2:19-cv-00893-RJC Document 118 Filed 03/11/21 Page 16 of 33
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`Here, the purpose or function of the Protocol is to communicate between the FireOne
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`control panel and the FireOne field module to permit the remote ignition of fireworks. (Findings
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`of Fact (“FOF”), ¶¶ 21-23.) The particular code and command structure embodied in the
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`protocol is not necessary to achieve that purpose. Moreover, Pyrotechnics created the
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`copyrighted command codes with attention to unique expressions that were not used by others
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`and were not intuitively obvious choices. External factors did not dictate the design of the
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`FireOne Protocol such that it is lacking in originality. (FOF, ¶¶ 27-30, 33-34.) See Dun &
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`Bradstreet, 307 F.3d at 215-16; Atari, 975 F.2d at 840. Pyrotechnics did not take its command
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`codes from the public domain. (FOF ¶¶ 27-30, 33-34).
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`
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` In fact, Plaintiff has incorporated in its copyrighted command codes creative
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`organization and sequencing that are unnecessary to the objective of controlling the ignition of
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`pyrotechnics. (FOF, ¶¶ 27-30, 35-37.) Rather, Plaintiff chose command code expressions and
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`arranged them in a unique sequence to create an original data stream. (Id.) Plaintiff may protect
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`this creative element of the command codes under copyright. See Atari, 975 F.2d 840; Whelan,
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`797 F.2d at 1238.
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`
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`The precise alphanumeric expression selected by Pyrotechnics—the method by which it
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`chose to represent a digital 1 or a digital 0 within its system—also is uncommon, original, and
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`intentional. (FOF ¶¶ 32-36.) There are numerous ways to express a command control protocol
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`in the pyrotechnics industry, and Pyrotechnics’ protocol i

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