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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`CURTIS TREY SEASTRUNK,
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`Plaintiff/Counter-Defendant,
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`v.
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`DARWELL INTEGRATED
`TECHNOLOGY, INC.,
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`Defendant/Counter-Plaintiff,
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`DTS INTERNATIONAL INC., d/b/a
`DARWELL TECHNOLOGY SYSTEMS, §
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` § Civil Action No. 3:05-CV-0531-BF
` § ECF
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`Defendant.
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`DARWELL INTEGRATED
`TECHNOLOGY, INC.,
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`Third Party Plaintiff,
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`v.
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`CURTIS TREY SEASTRUNK and
`SITE MONITORING SOLUTIONS,
`INC.,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Pursuant to the District Court’s Order of Transfer (doc. 35), this is now a consent case before
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`the United States Magistrate Judge. Before the Court is Plaintiff’s and Third Party Defendant’s
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`Motion for Combined Traditional and No Evidence Motions for Summary Judgment (doc. 108).
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`Defendant Darwell Integrated Technology, Inc. (“DIT”) filed a response on December 20, 2007
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`Case 3:05-cv-00531-BF Document 121 Filed 01/22/08 Page 2 of 11 PageID 2006
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`(doc. 111). Plaintiff Curtis Trey Seastrunk (“Seastrunk”) filed his reply on January 10, 2008 (doc.
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`113). DIT filed a response to Seastrunk’s reply brief (doc. 115.) Seastrunk objected to this response
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`because it was not filed in accordance with Local Rule 7.1. Because Seastrunk did not obtain leave
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`of the Court to file a sur-reply, the Court will not consider DIT’s response to Seastrunk’s reply.
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`BACKGROUND
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`Seastrunk brought this action against DIT for copyright infringement. Daniel Fuhrmann
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`(“Fuhrmann”) created two source codes known as the Liebert Protocol Convertor (“Convertor”) and
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`the Protocol Board Addressing Decode (“Decode”). (Pl.’s Am. Compl. at 3.) On August 8, 2004,
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`Fuhrmann executed an Agreement for Assignment of Copyright and assigned the copyright to the
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`Convertor and the Decode to Seastrunk. (Id.) This agreement was clarified through an amended
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`agreement on August 17, 2005. (Id.) Seastrunk registered the copyright for the Convertor on
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`September 20, 2004 and registered the Decode on January 13, 2005. (Id. at 3–4.) Seastrunk claims
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`that DIT is infringing his copyright by using the Convertor and the Decode in DIT’s site monitoring
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`programs. (Pl.’s Br. Summ. J. at 5.) Seastrunk has moved for summary judgment on his copyright
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`claim against DIT and on all of DIT’s counterclaims against Seastrunk.
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`STANDARD OF REVIEW
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`The Court should only grant summary judgment if there is “no genuine issue as to any
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`material fact” and “the moving party is entitled to judgment as a matter of law.” Celotex Corp. v.
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`Catrett, 477 U.S. 317, 323 (1986). If the nonmovant bears the burden of proof at trial, the summary
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`judgment movant may satisfy his burden by pointing to the absence of evidence supporting the
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`nonmovant’s case. Id. At this point, the nonmovant must show that summary judgment is not
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`appropriate by going beyond the pleadings to demonstrate “specific facts showing that there is a
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`genuine issue for trial.” Id. Mere conclusory allegations or denials unsupported by specific facts
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`are not enough. Id. Courts ruling on summary judgment motions “must review all of the evidence
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`in record, but make no credibility determinations or weigh any evidence.” Peel &Co., Inc. v. The
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`Rug Market, 238 F.3d 391, 394 (5th Cir. 2001). “In reviewing all the evidence, the court must
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`disregard all evidence favorable to the moving party that the [fact finder] is not required to believe,
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`and should give credence to evidence favoring the nonmoving party as well as to evidence
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`supporting the moving party that is uncontradicted and unimpeached.” Id.
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`ANALYSIS
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`Seastrunk’s motion contains two types of summary judgment. First, Seastrunk seeks
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`“traditional” summary judgment against DIT on copyright infringement and on DIT’s counterclaims
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`of copyright infringement and trademark infringement. Second, Seastrunk contends that his “no
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`evidence” motion for summary judgment should be granted on DIT’s remaining counterclaims. The
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`Court will first consider Seastrunk’s “no evidence” motion for summary judgment.
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`A. “No Evidence” Summary Judgment
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`Seastrunk argues that summary judgment is proper on DIT’s claims for conversion, breach
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`of fiduciary duty, Texas Theft Liability Act, copyright infringement, trade secret misappropriation,
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`civil conspiracy, tortious interference with existing contracts, unfair competition, trademark
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`infringement, and temporary restraining order because there is no evidence that supports these
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`claims. In support of his motion, Seastrunk lists the elements of the above mentioned claims and
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`then states that “there is no evidence to support any of these essential elements, and the Seastrunk
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`Parties are entitled to summary judgment on the DIT parties’ [claims].” (See Pl.’s Br. Summ. J. at
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`12–16.) Seastrunk contends that a “no evidence” summary judgment motion differs from the
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`Case 3:05-cv-00531-BF Document 121 Filed 01/22/08 Page 4 of 11 PageID 2008
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`“traditional” summary judgment motion. Seastrunk asserts that listing the elements and stating that
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`there is no evidence to support the elements satisfies his burden of proof for a “no evidence”
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`summary judgment motion, and that the burden shifts to DIT to present specific evidence showing
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`a genuine issue of material fact.
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`The Court does not recognize two distinct types of summary judgment. As stated above,
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`summary judgment should only be granted if there is “no genuine issue as to any material fact” and
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`“the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
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`317, 323 (1986). Seastrunk correctly notes that “the moving party may support its motion for
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`summary judgment by submitting evidence in an attempt to negate an essential element of the non-
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`movant’s claim or by pointing out that there is no evidence to support an essential element of the
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`non-movant’s claim.” (Pl.’s Br. Summ. J. at 11 (citing Shaw v. Broadcast.com, Inc., No. 3:98-CV-
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`2017-P, 2005 WL 2095770, *2 (N.D. Tex. August 30, 2005).) However, while the court in Shaw
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`at one point refers to the motion as a “no-evidence motion for summary judgment,” the court is
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`merely distinguishing between a moving party who submits evidence to negate an essential element
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`and one who points out that there is no evidence to support an essential element by directing the
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`court to “portions of the record that demonstrate such an absence.” Shaw, 2005 WL 2095770, *2.
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`The Shaw court, in using this language, is not creating a second type of summary judgment; it
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`merely provides the party with a choice of how to prove there is no genuine issue of material fact.
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`Moreover, the sentence preceding the one Seastrunk quoted from Shaw elaborates on the
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`movant’s burden when pointing out that there is no evidence supporting an essential element. The
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`court in Shaw states, “[t]he moving party bears the burden of informing the district court of the basis
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`for its belief that there is an absence of a genuine issue of fact for trial, and of identifying those
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`Case 3:05-cv-00531-BF Document 121 Filed 01/22/08 Page 5 of 11 PageID 2009
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`portions of the record that demonstrate such an absence.” Id. The moving party, therefore, must
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`point to evidence in the record that shows there is no evidence to support one or all of the essential
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`elements of the non-moving party’s claim. There is a difference between pointing out that there is
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`no evidence by making a conclusory assertion and pointing out there is no evidence by discussing
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`what the record shows. In other words, the moving party must show that the evidence currently in
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`the record does not show a genuine issue of material fact. It is only after this is shown that the
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`moving party satisfies its burden, and the burden shifts to the non-moving party to go beyond the
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`pleadings to provide additional evidence demonstrating a genuine factual dispute.
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`Seastrunk also cites to the court’s decision in Freeman v. Jackson, No. 4:06-CV-516-A, 2007
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`WL 2219440 (N.D. Tex. Aug. 1, 2007) to support the concept of a distinct “no evidence summary
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`judgment” standard. The court, in Freeman, also states that the moving party can “discharge its
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`burden by pointing out the absence of evidence to support one or more essential elements of the non-
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`moving party’s claim ‘since a complete failure of proof concerning an essential element of the
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`nonmoving party’s case necessarily renders all other facts immaterial.’” Freeman, 2007 WL
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`2219440, *2 (citing Celotex Corp., 477 U.S. at 323–25). However, like Shaw, the court did not
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`create a new summary judgment standard. The moving party, while not needing to produce
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`evidence, must at least identify portions of the record that demonstrate an absence of evidence. It
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`is not sufficient to merely list the elements of the claim and state that there is no evidence to support
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`the elements. This is the type of conclusory assertion the court has said would not satisfy the
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`summary judgment burden. Seastrunk, in doing so, fails to meet the initial burden required of the
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`moving party in a motion for summary judgment. Accordingly, Plaintiff’s No Evidence Motion for
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`Summary Judgment on Defendant’s claims for conversion, breach of fiduciary duty, Texas Theft
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`Case 3:05-cv-00531-BF Document 121 Filed 01/22/08 Page 6 of 11 PageID 2010
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`Liability Act, copyright infringement, trade secret misappropriation, civil conspiracy, tortious
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`interference with existing contracts, unfair competition, trademark infringement, and temporary
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`restraining order is DENIED.
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`B. “Traditional” Summary Judgment
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`Seastrunk also contends that summary judgment is proper on Seastrunk’s copyright
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`infringement claim against DIT and DIT’s copyright and trademark claims against Seatrunk. Instead
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`of listing the elements of copyright infringement and asserting there is no evidence, Seastrunk refers
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`to the evidence directly and argues that no genuine issue of material fact exists on any of the
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`elements.
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`1. Seastrunk’s Copyright Infringement Claim against DIT
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`In order to prevail on a claim for copyright infringement, the plaintiff must prove (1)
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`ownership of a valid copyright and (2) that “the defendant copied constituted elements of the
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`plaintiff’s work that are original.” Sony Pictures Home Ent’m, Inc. v. Lott, 471 F. Supp. 2d 716
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`(N.D. Tex. 2007). Because direct evidence of copying is not often available, “factual copying may
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`be inferred from (1) proof that defendant had access to copyrighted work prior to creation of
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`infringing work and (2) probative similarity.” Peel & Co., Inc. v. The Rug Market, 238 F.3d 391,
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`394 (5th Cir. 2001). “To determine whether an instance of copying is legally actionable, a side-by-
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`side comparison must be made between the original and the copy to determine whether a layman
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`would view the two works as ‘substantially similar.’” Id. “Although this question typically should
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`be left to the factfinder, summary judgment may be appropriate if the court can conclude, after
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`viewing the evidence and drawing inferences in a manner most favorable to the nonmoving party,
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`that no reasonable juror could find substantial similarities of ideas and expression.” Id.
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`Case 3:05-cv-00531-BF Document 121 Filed 01/22/08 Page 7 of 11 PageID 2011
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`In considering whether Seastrunk owns a valid copyright, there seems to be some confusion
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`over what exactly Seastrunk claims DIT infringed. Seastrunk contends that DIT infringed two
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`copyrighted pieces of code known as the Decode and the Convertor. As proof of copyright
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`ownership for the Decode and Convertor, Seastrunk points to its Certificates of Registration. DIT
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`does not appear to challenge the validity of the Certificates of Registration, and Seastrunk does not
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`claim to have ownership beyond what is registered by these certificates. Therefore, the Court finds
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`that Seastrunk owns a valid copyright for the source code listed in the certificates of registration.
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`After showing ownership of a valid copyright, Seastrunk must prove that DIT violated that
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`copyright by making unauthorized copies of the protected work. Seastrunk contends that the
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`Convertor is used with DIT’s site monitoring programs called MiCore, ProCore, and Beacon. (Pl.’s
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`Br. Summ. J. at 5.) Seastrunk also claims that DIT uses the Decode with its site monitoring
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`program Beacon. (Id.) DIT does not dispute that it uses the site monitoring programs MiCore,
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`ProCore, and Beacon. (Id. at Ex. 3, App. 37.) There is also no dispute that DIT obtained MiCore
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`and SitePro from DIT employees who had previously worked for DTS and brought the software to
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`DIT. (Id. at Ex. 3, App. 30.) The dispute, therefore, centers around whether these programs contain
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`the Convertor and Decode. Seastrunk, in his reply brief, claims that it is unnecessary to determine
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`if there is a substantial similarity between the Convertor and Decode and the source codes used in
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`DIT’s site monitoring programs because DIT committed comprehensive literal copying of the
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`Convertor and Decode. In support of this argument, Seastrunk offers his own affidavit in which he
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`states that he “burned parts of the Fuhrmann Code, including the Convertor and the Decode, onto
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`computer boards to be used in site monitoring products and equipment.” (Id. at Ex. 2, App. 5.)
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`This evidence, however, is contradicted by DIT’s corporate representative, Sheila Darisse.
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`Case 3:05-cv-00531-BF Document 121 Filed 01/22/08 Page 8 of 11 PageID 2012
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`Ms. Darisse, in her deposition, was asked if DIT claims any rights to the code written by Mr.
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`Fuhrmann. (Id. at Ex. 3, App. 38.) Ms. Darisse responded that DIT does not use the code, and that
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`she did not believe they claimed any right to it. (Id.) Under further questioning, Ms. Darisse was
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`asked if she had any knowledge as to whether the code written by Mr. Fuhrmann was included in
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`any of the code brought to DIT by former DTS employees. (Id.) Ms. Darisse stated that she did not
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`have any knowledge of that. (Id.) While this may affect Ms. Darisse’s credibility, it does not
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`change the fact that genuine issues of material fact exist. The Court’s role on summary judgment
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`is not to weigh the evidence or determine credibility. A reasonable trier of fact could believe Ms.
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`Darisse and find that the protected codes are not included in the site monitoring programs.
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`Accordingly, the Court finds that there is a question of material fact as to whether DIT directly
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`copied Seastrunk’s protected work in its site monitoring programs.
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`While Seastrunk claims that it is unnecessary to show indirect copyright infringement
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`because, as stated above, he believes there is sufficient evidence of comprehensive literal copying,
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`Seastrunk offers evidence of indirect copying as well. Accordingly, because the Court finds that
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`there is a genuine issue of material fact regarding comprehensive literal copying, the Court will
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`consider whether Seastrunk can succeed on his motion for summary judgment by showing indirect
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`copying. Seastrunk argues that the expert report and affidavit of Steve Widom (“Widom”) shows
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`indirect copying by DIT. Widom, in his report and affidavit, states that after reviewing the
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`confidential codes of both parties, it is his expert opinion that there is a substantial similarity
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`between the codes and that the code produced by DIT was copied from the code produced by
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`Seastrunk. (Pl.’s Br. Summ. J. at Ex. 1, App. 2.) Widom also states that it was unnecessary to
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`obtain the specific subdirectory locations for the Convertor or Decode to determine that there was
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`Case 3:05-cv-00531-BF Document 121 Filed 01/22/08 Page 9 of 11 PageID 2013
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`a substantial similarity between the Seastrunk’s and DIT’s codes. (Id.)
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`DIT disputes Widom’s findings and opinion that there is a substantial similarity between the
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`codes and that DIT copied Seastrunk’s code. In support of this argument, DIT offers the rebuttal
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`report of Professor Judy Etchison (“Etchison”). (Def.’s Resp. Ex. 9.) It is Etchison’s opinion that
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`Widom disregarded extensive dissimilarities between the two codes and used criteria not generally
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`accepted in the computer industry in forming his opinion about any similarities between the two
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`codes. (Id.) Etchison claims that Widom failed to take into account the real reasons for the
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`similarities, which are “hardware requirements, functional requirements, well-known programming
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`constructs, and industry standards of business.” (Id. at 9.) Moreover, Etchison states that Widom’s
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`report includes a comparison of source codes that are not within the scope of this case. (Id. at 5.)
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` As stated earlier, the trier of fact is usually responsible for determining substantial similarity. This
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`question is only taken from the fact finder when no reasonable trier of fact could find otherwise. A
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`reasonable fact finder could find that Seastrunk failed to prove indirect copying.
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`The conflicting expert opinions create a genuine issue of material fact as to whether there
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`is substantial similarity between Seastrunk’s and DIT’s code. Because a genuine issue of material
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`fact remains as to whether DIT engaged in comprehensive literal copying of Seastrunk’s copyright,
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`and whether the codes are substantially similar, the Court DENIES Seastrunk’s motion for summary
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`judgment on Seastrunk’s copyright infringement claim.
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`2. DIT’s Copyright Claim against Seastrunk
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`Seastrunk also claims to be entitled to summary judgment on DIT’s copyright claim against
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`Seastrunk. Seastrunk does not challenge the validity of DIT’s copyright, but argues that Ms.
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`Darisse, DIT’s corporate representative, admitted in her deposition that DIT is unaware of any
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`Case 3:05-cv-00531-BF Document 121 Filed 01/22/08 Page 10 of 11 PageID 2014
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`similarities between Seastrunks’s code and DIT’s code. (See Pl.’s Br. Summ. J. at Ex. 6, App. 46.)
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`In response to this motion, DIT argues that Ms. Darisse is unable to identify similarities between
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`Seastrunk’s code and DIT’s code because she does not have access to Seastrunks’s code due to the
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`April 27, 2007 protective order entered by this Court. DIT claims that if the same question was
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`asked to Seastrunk, he also would not be able to identify the similarities between the two codes. As
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`a result, DIT contends that Seastrunk has not pointed to the absence of a genuine issue of material
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`fact, which would shift the burden to DIT. The Court agrees. Ms. Darisse’s “opinion” was not put
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`into a context that would allow her to know the appropriate legal standard for evaluating whether
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`the source codes were substantially similar. Seastrunk failed to meet its initial burden of showing
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`that there is no genuine issue of material fact. Accordingly, Seastrunk’s motion for summary
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`judgment on DIT’s copyright claim is DENIED.
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`3. Trademark Infringement
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`Finally, Seastrunk also claims that he is entitled to summary judgment on DIT’s trademark
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`infringement claim. DIT has admitted that it does not claim a trademark in Site Monitoring
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`Solutions, and therefore, has abandoned its claim. Accordingly, the Court GRANTS Seastrunk’s
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`motion for summary judgment on DIT’s trademark infringement claim because there is no genuine
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`issue of material fact.
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`CONCLUSION
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`For these reasons, the Court DENIES Seastrunk’s motion for summary judgment regarding
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`DIT’s claims for conversion, breach of fiduciary duty, Texas Theft Liability Act, copyright
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`infringement, trade secret misappropriation, civil conspiracy, tortious interference with existing
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`contracts, unfair competition, trademark infringement, and temporary restraining order . Moreover,
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`Case 3:05-cv-00531-BF Document 121 Filed 01/22/08 Page 11 of 11 PageID 2015
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`the Court DENIES Seastrunk’s motion for summary judgment on his copyright infringement claim
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`against DIT and on DIT’s copyright infringement claim against Seastrunk. Finally, the Court
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`GRANTS Seastrunk’s motion for summary judgment on DIT’s trademark infringement claim and
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`dismisses this claim with prejudice.
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`SO ORDERED. January 22, 2008.
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`_____________________________________
`PAUL D. STICKNEY
`UNITED STATES MAGISTRATE JUDGE
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`11