Case 2:16-cv-01762 Document 213 Filed 08/04/17 Page 1 of 49 PageID #: 4217
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
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`CHARLESTON DIVISION
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`
`
`CSS, INC.,
`
`
`Plaintiff,
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`
`
`
`
`
`
`
`v.
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`CHRISTOPHER HERRINGTON, et al.,
`
`
`
`
`
`
` CIVIL ACTION NO. 2:16-cv-01762
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`Defendants.
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`
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`AMENDED MEMORANDUM OPINION AND ORDER
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`Pending before the court is Plaintiff’s Motion for Preliminary Injunction
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`[ECF No. 65]. For the following reasons, the Motion is DENIED.
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`I.
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`Background
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`The plaintiff, CSS, Inc. (“CSS”), has asked the court to preliminarily enjoin
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`defendants, Christopher Herrington, Gene Yoho, and Compiled Technologies, LLC
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`(collectively, “CT”), from “advertis[ing], licens[ing], offer[ing] to license, sell[ing] or
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`otherwise mak[ing] available for use” CT’s land indexing and estate management
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`software; “offer[ing] or . . . provid[ing] support services” for CSS’s software; or
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`“mak[ing] use of any trade secrets, confidential information or proprietary
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`information of CSS.” Pl.’s Mot. Prelim. Inj. 1 [ECF No. 65]. However, CSS is unable
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`to show a likelihood of success on any of the claims presently before the court, that
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`irreparable harm will occur absent the injunction, that the balance of the hardships
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`weighs in its favor, nor that an injunction is in the public interest. Thus, a
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`

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`preliminary injunction is not warranted.
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`II.
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`Procedural History
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`CSS filed its Complaint [ECF No. 1] on February 23, 2016. On September 16,
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`2016, CSS filed its First Amended Complaint. First Am. Compl. [ECF No. 59]. CSS
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`brings actions against CT for copyright infringement, breach of contract, violation of
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`the duty of loyalty, tortious interference with business relationships, and
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`misappropriation of trade secrets under the West Virginia Uniform Trade Secrets Act
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`(“WVUSTA”). In their Answer, CT filed a counterclaim against CSS for tortious
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`interference. Answer 11 [ECF No. 61].
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`On November 23, 2016, CSS filed Plaintiff’s Motion for Preliminary Injunction
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`wherein it asserted that it was likely to succeed on its copyright infringement,
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`misappropriation of trade secrets claims, and breach of contract. Pl.’s Mot. Prelim.
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`Inj. [ECF No. 65]. CT responded on December 13, 2016. Defs. Mem. Opp. Pls. Mot.
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`Prelim. Inj. [ECF No. 68]. On December 16, 2016, CSS moved for an extension of time
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`to reply to the defendants’ response. Unopposed Mot. for Extension of Time to File a
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`Reply to Defs. Mem. Opp. Pls. Mot. Prelim. [ECF No. 72]. I granted this Motion
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`[ECF No. 73], and CSS filed a Reply Brief [ECF No. 74] on December 29, 2016.
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`On January 25, 2017, the court conducted a hearing on the Plaintiff’s Motion
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`for Preliminary Injunction. Prelim. Inj. Mot. Hr’g [ECF No. 82]. Because of the
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`volume and length of evidence put forth, the hearing could not be completed in one
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`afternoon. This matter was continued to February 23, 2017, and it was ultimately
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`completed on February 24, 2017. See Order Continuing Prelim. Inj. Hr’g
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`2
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`[ECF No. 84]; Mot. Hr’gs [ECF Nos. 89, 90]. On March 22, 2017, both parties filed
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`their proposed findings of fact and conclusions of law. [ECF Nos. 106, 109, 110]. CSS’s
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`Motion is ripe for my review.
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`III. Findings of Fact
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`I need only make findings of fact pertinent to determining whether a preliminary
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`injunction should issue. I FIND that the facts of this case are as follows:
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`1. CSS is a company that provides software and related support services to local
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`government entities, namely county clerks in West Virginia. See Hr’g Tr., Jan.
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`25, 2017, Auburn Direct, 28:1–9.
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`2. CSS has been in business since 1983. See Hr’g Tr., Feb. 23, 2017, D. Herrington
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`Direct, 105:11.
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`3. Kofile acquired CSS in May 2014. See Hr’g Tr., Jan. 25, 2017, Auburn Direct,
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`39:18–19.
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`4. For over twenty years, CSS has provided various software solutions including:
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`a land records indexing package, an estate management package as well as
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`utility billing, sheriff’s tax collection, and other applications. See Hr’g Tr., Jan.
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`25, 2017, Auburn Direct, 28:1–4.
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`5. Defendant Christopher Herrington was first employed by CSS in October 1991.
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`See Hr’g Tr., Feb. 23, 2017, C. Herrington Direct, 157:8–12, 190:14–15.
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`6. Christopher Herrington worked at CSS in the computer software, applications,
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`and programming business related to county government information and
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`document management systems. See Hr’g Tr., Feb. 23, 2017, C. Herrington
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`3
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`Direct, 157:8–12; see also Hr’g Tr., Jan. 25, 2017, Auburn Direct, 42:10–13.
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`7. During most of his employment with CSS, Christopher Herrington was a
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`programmer, and his work included development of CSS’s software, bug fixes,
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`and modifications. See Hr’g Tr., Jan. 25, 2017, Auburn Direct, 14:14–23, 16:22–
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`17:5.
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`8. Christopher Herrington also provided support for CSS software packages. Id.
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`at 15:13–23.
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`9. Christopher Herrington’s duties included programming responsibilities and
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`support responsibilities for both the CSS land indexing software and the CSS
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`estate management software. Id. at 16:2–9.
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`10. On August 23, 2014, Christopher Herrington resigned as an employee of CSS.
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`See Hr’g Tr., Feb. 23, 2017, C. Herrington Direct, 190:14–15.
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`11. On September 6, 2014, Christopher Herrington returned to CSS. See Hr’g Tr.,
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`Feb. 23, 2017, C. Herrington Direct, 203:22–24.
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`12. On September 12, 2014, Christopher Herrington was required to sign a
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`confidentiality agreement. See Hr’g Tr., Jan. 25, 2017, Auburn Direct, 44:14–
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`45:2.
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`13. CSS had never required Christopher Herrington to sign a confidentiality
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`agreement prior to September 12, 2014. See Hr’g Tr., Feb. 23, 2017, McCasker
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`Redirect, 97:6–17; see also Hr’g Tr., Feb. 23, 2017, C. Herrington Cross, 239:3–
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`8.
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`14. Christopher Herrington was employed by CSS until June 5, 2015. See Hr’g Tr.,
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`4
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`Feb. 23, 2017, C. Herrington Direct, 203:22–24.
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`15. On August 12, 2015, Gene Yoho formed CT. See Hr’g Tr., Feb. 24, 2017,
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`C. Herrington Direct, 43:19–44:5.
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`16. Gene Yoho and Christopher Herrington operate CT. See Hr’g Tr., Feb. 24,
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`2017, C. Herrington Direct, 43:19–44:5.
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`17. CT is in the business of licensing custom computer software applications. CT
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`offers one program for land records recording and indexing and one for an
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`estate management application. See Hr’g Tr., Feb. 24, 2017, C. Herrington
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`Direct, 44:3–5; see also Hr’g Tr., Feb. 23, 2017, C. Herrington Cross, 242:9–11.
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`18. CT also provides support services to county clerks’ offices related to these
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`applications. See Hr’g Tr., Feb. 23, 2017, C. Herrington Cross, 242:9–11.
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`19. CT competes with CSS for West Virginia county clerk contracts. See Hr’g Tr.,
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`Feb. 24, 2017, C. Herrington Direct, 43:19–44:5.
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`20. CT’s code is not a literal1 copy of CSS’s code. See Mot. by Defs. for Leave to
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`File Under Seal Ex. 1, at 26 [ECF No. 70-1] (“McCasker Expert Report”); see
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`also Hr’g Tr., Feb. 23, 2017, McCasker Cross, 9:7–10.
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`21. The programming language RM/COBOL (“COBOL”) was used in the software
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`of both CSS and CT. See McCasker Expert Report at 25; see also Mot. by Defs.
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`for Leave to File Under Seal Ex. 2, at 3 [ECF No. 70-2] (“Zeidman Expert
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`Report”).
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`
`1 Literal copying is the wholesale copying of the software or its components, while non-literal
`copying is “copying that is paraphrased or loosely paraphrased rather than word for word.” Lotus
`Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 814 (1st Cir. 1995).
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`5
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`22. CSS uses COBOL version 11, and CT uses COBOL version 12. See McCasker
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`Expert Report at 25.
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`23. CT’s COBOL data files are structured differently than CSS’s COBOL data files.
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`See Hr’g Tr., Jan. 25, 2017, McCasker Direct, 115:14–15.
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`24. The parts of CSS’s software relevant to this case consist of the following
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`architecture and technology: a client application written in the Microsoft
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`Visual Basic 6 computer language (VB6), a VanGUI Network Communication
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`Interface Builder (“VanGUI”), TCP (Transmission Control Protocol) Sockets,
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`an application server with data files written in COBOL, a Relativity Server,
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`an ODBC (Open Database Connectivity) Interface, and Crystal Reports OCX.
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`See McCasker Expert Report at 7–9.
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`25. The parts of CT’s software relevant to this case consist of the following
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`architecture and technology: a client application written in the C# computer
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`language (pronounced “C-Sharp”), a Louis Network Communication Interface,
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`TCP Sockets, an application server with data files written in COBOL, a
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`Relativity Server, an ODBC Interface, and Crystal Reports. See Hr’g Tr., Feb.
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`24, 2017, C. Herrington Direct, 9–13.
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`26. CSS’s software includes third-party components such as VB6, the VanGUI
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`interface, the COBOL programming language, the Relativity server, and
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`Crystal Reports. See Zeidman Expert Report at 14–18.
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`27. The intellectual property rights to the third-party components—VB6, the
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`VanGUI interface, the COBOL programming language, the Relativity Server,
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`6
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`and Crystal Reports—are not owned by any party to this case. See Hr’g Tr.,
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`Feb. 23, 2017, D. Herrington Cross, 148:21–149:12.
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`28. The source code was initially provided along with CSS’s software applications
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`and installed on servers owned by the various West Virginia county clerks’
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`offices. See Hr’g Tr., Jan. 25, 2017, Auburn Direct, 31:1–9, 35:12–18; Defs. Exs.
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`2, 14 from Prelim. Inj. Mot. Hr’g [ECF Nos. 96-2, 96-13].
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`29. At some point after 2014, this practice was discontinued, and all of CSS’s
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`source code was removed from all county servers. See Hr’g Tr., Jan. 25, 2017,
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`Auburn Direct, 31:1–9, 35:12–18.
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`30. Source code present on the county servers was available to anyone who had
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`administrative rights2 authorized by the county. Id. at 31:3–20, 35:15–18.
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`31. Some of CSS’s contracts with county clerks’ offices did not have any language
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`requiring the county clerks to protect CSS’s source code on the county servers.
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`Id.
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`32. Some of CSS’s contracts with the county clerks’ offices did stipulate that the
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`county must protect CSS’s source code. Id. at 32:12–22.
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`33. CSS’s corporate representative, Hubert “Bert” Auburn, does not know how
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`many of CSS’s contracts required the clerks’ offices to protect CSS’s source
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`code. See Hr’g Tr., Jan. 25, 2017, Auburn Direct, 31:1–9; 35:15–18.
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`34. Bert Auburn does not know how many people had access to CSS’s source code.
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`Id. at 35.
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`2 This refers to the ability of a person to access the files with an administrative login and password.
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`7
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`35. CSS founder, current employee, and father of defendant, Chris Herrington,
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`Doug Herrington does not know how many people had access to CSS’s source
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`code. See Hr’g Tr., Feb. 23, 2017, D. Herrington Direct, 105:12–13, 106:14–17,
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`120:13–16, 121:24–122:1.
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`36. Bert Auburn does not know whether CSS’s source code was password-
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`protected. See Auburn Direct, 31:1–9; 35:15–18.
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`37. Bert Auburn is not aware of the source code being identified as confidential
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`when on the county servers. See Mot. by Defs. for Leave to File Under Seal Ex.
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`4, at 60:13–18 [ECF No. 70-4] (“Auburn Dep.”).
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`38. Bert Auburn does not believe that CSS’s source code was encrypted when on
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`county servers. See Hr’g Tr., Jan. 25, 2017, Auburn Direct, 35:1–9.
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`39. CSS’s source code was neither password protected nor encrypted on the county
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`servers. See Hr’g Tr., Feb. 23, 2017, D. Herrington Direct, 120:21–23; Test. &
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`Ex. Submission by CSS, Inc., Ex. 1 at 182:20–24 [ECF No. 105-1] (“Lowers
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`Dep.”).
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`40. WVNet is a virtual private network that provides access to the county servers.
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`See Hr’g Tr., Jan. 25, 2017, Auburn Direct, 31:1–9, 35:15–18.
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`41. WVNet provides all companies with a contract with any county access to all
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`West Virginia county servers. Id.
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`42. Anyone who can access WVNet can access any of the West Virginia county
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`servers. See Hr’g Tr., Jan. 25, 2017, Auburn Direct, 31:1–9, 35:15–18.
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`43. A competitor of CSS with a password for WVNet may have been able to access
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`8
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`CSS’s source code. See Hr’g Tr., Jan. 25, 2017, Auburn Direct, 31:1–20.
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`44. The password to access the CSS software application was “top gun.” See Hr’g
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`Tr., Feb. 23, 2017, D. Herrington Cross, 135:3–11; see also Hr’g Tr., Feb. 23,
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`2017, Smith Direct, 175:20–22.
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`45. CSS did not enter into confidentiality agreements with the clerks’ offices that
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`had the “top gun” password. See Hr’g Tr., Feb. 23, 2017, Smith Direct, 17–19.
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`Hr’g Tr., Feb. 23, 2017, D. Herrington Cross, 136:20–23.
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`46. CSS would share the “top gun” password with county employees who attended
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`training sessions. See Hr’g Tr., Feb. 23, 2017, D. Herrington Cross, 136:6–19;
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`see also Hr’g Tr., Feb. 23, 2017, Smith Direct, 176:9–16.
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`47. CSS’s contracts with county clerks’ offices are subject to document requests
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`pursuant to the state freedom of information act. See Hr’g Tr., Jan. 25, 2017,
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`Auburn Direct, 38.
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`48. CSS’s pricing information for its county clients is public information. See
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`Auburn Dep. 166:15–21.
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`49. CSS bases its pricing structure, in part, on a publically available tax base
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`classification of counties that is published every two years. Id. at 167:14–15,
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`166:24–167:8, 179:5–6.
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`50. Christopher Herrington obtained CSS pricing information by email, face-to-
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`face conversations, and phone calls with county clerks. See Hr’g Tr., Feb. 24,
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`2017, C. Herrington Direct, 41:16–43:1.
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`51. CSS has some customers in Ohio. See Hr’g Tr. Auburn Direct, 28:9.
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`9
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`52. CT has no customers in Ohio. See Hr’g Tr., Feb. 23, 2017, C. Herrington Direct,
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`241:9–14.
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`53. CSS has lost contracts to CT. See Hr’g Tr., Jan. 25, 2017, 9:13–18.
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`IV.
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`Standard for Obtaining a Preliminary Injunction
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`
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`To secure a preliminary injunction, “plaintiffs must demonstrate that (1) they
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`are likely to succeed on the merits; (2) they will likely suffer irreparable harm absent
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`an injunction; (3) the balance of hardships weighs in their favor; and (4) the injunction
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`is in the public interest.” League of Women Voters v. North Carolina, 769 F.3d 224,
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`236 (4th Cir. 2014) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
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`(2008)). The Fourth Circuit reviews the grant or denial of a preliminary injunction
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`for abuse of discretion. The Real Truth About Obama, Inc. v. Fed. Election Comm’n,
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`575 F.2d 342, 346–47 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
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`“[A] a preliminary injunction is an extraordinary and drastic remedy, one that should
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`not be granted unless the movant, by a clear showing, carries the burden of
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`persuasion.” 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and
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`Procedure § 2948 (3d. ed. 2017) (footnotes omitted).
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`
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`The Fourth Circuit permits district courts to rely on hearsay or other
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`inadmissible evidence when deciding whether a preliminary injunction should be
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`awarded. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 725 (4th Cir.
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`2016), vacated on other grounds and remanded, 137 S. Ct. 1239 (2017).
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`10
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`V.
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`Conclusions of Law
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`A. Likelihood of Success on the Merits for the Copyright Claim
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`In order to show copyright infringement, CSS must prove (1) it owned a valid
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`copyright and (2) CT copied original elements of the copyright. Humphreys &
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`Partners Architects, Ltd. P’ship v. Lessard Design, Inc., 790 F.3d 532, 537
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`(4th Cir. 2015) (citing Lyons P’ship v. Morris Costumes, Inc., 243 F.3d 789, 801 (4th
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`Cir. 2001)). A valid copyright gives the owner the exclusive right to reproduce the
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`copyrighted work and prepare derivative works. 17 U.S.C. § 106. Anyone who violates
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`this exclusive right infringes the owner’s copyright. Id. at § 501(a).
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`Copyright law protects “original works of authorship fixed in any tangible
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`medium of expression.” 17 U.S.C. § 102(a). Computer programs are explicitly covered
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`as “literary works.” 17 U.S.C. § 101; see Atari Games Corp. v. Nintendo of Am., Inc.,
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`975 F.2d 832, 838 (Fed. Cir. 1992). Courts have also granted copyright protection over
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`computer source code. See Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d
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`1222, 1233 (3d Cir. 1986). Copyright protection extends to the “non-literal elements
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`of computer programs that embody original expression”. Lotus Dev. Corp. v.
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`Paperback Software Int’l, 740 F. Supp. 37, 76–77 (D. Mass. 1990).
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`However, copyright analysis in the computer program context is often a
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`“difficult task.” Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1354 (Fed. Cir. 2014);
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`see Lotus Dev., 49 F.3d at 820 (Boudin, J., concurring) (“Applying copyright law to
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`computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.”);
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`see also Comput. Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 696 (2d Cir. 1992) (“In
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`recent years, the growth of computer science has spawned a number of challenging
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`legal questions, particularly in the field of copyright law. . . . As scientific knowledge
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`advances, courts endeavor to keep pace, and sometimes—as in the area of computer
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`technology—they are required to venture into less than familiar waters.”). As the
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`Second Circuit remarked:
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`To be frank, the exact contours of copyright protection for non-literal
`program structure are not completely clear. We trust that as future
`cases are decided, those limits will become better defined. Indeed, it may
`well be that the Copyright Act serves as a relatively weak barrier
`against public access to the theoretical interstices behind a program’s
`source and object codes. This results from the hybrid nature of a
`computer program, which, while it is literary expression, is also a highly
`functional, utilitarian component in the larger process of computing.
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`Comput. Assocs. Int’l, 982 F.2d at 712.
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`The scope of copyright protection, however, is limited in that it does not cover
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`“any idea, procedure, process, system, method of operation, concept, principle, or
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`discovery, regardless of the form in which it is described, explained, illustrated, or
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`embodied in such a work.” Id. at § 102(b); see Mazer v. Stein, 347 U.S. 201, 217 (1954)
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`(“Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection
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`is given only to the expression of the idea—not the idea itself.”); see also Feist Publ’ns,
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`Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 358 (1991); Avtec Sys., Inc. v. Peiffer, 21
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`F.3d 568, 572 (4th Cir. 1994) (“To reiterate, copyright protects not original ideas but
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`their incarnation in a tangible means of expression.”).
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`A work must be “original” to qualify for copyright protection. 17 U.S.C. § 102(a).
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`This “originality requirement is not particularly stringent,” however. Feist Publ’ns,
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`499 U.S. at 358. In the copyright context, “original” means “that the work was
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`independently created by the author (as opposed to copied from other works), and
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`that it possesses at least some minimal degree of creativity.” Id. at 345. The more
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`creative a work is, the “thicker” the protection is for the work, and “less similarity is
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`needed for a court to find the similarity sufficiently ‘substantial’ and thus infringing.”
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`Lydia Pallas Loren, The Pope’s Copyright? Aligning Incentives with Reality by Using
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`Creative Motivation to Shape Copyright Protection, 69 La. L. Rev. 1, 30 (2008).
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`Conversely, highly functional, less creative works have “thin” protection, and more
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`similarity is needed to show infringement. Id.
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`1. The Test For Copyright Infringement in the Fourth Circuit
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`CSS is alleging non-literal copyright infringement, which covers “the
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`structure, sequence, organization, user interface, screen displays, and menu
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`structures.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 142 (5th Cir. 2004).
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`The Fourth Circuit has not yet explicitly endorsed a test for non-literal
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`copyright infringement for computer source code. Many jurisdictions have now
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`adopted the Second Circuit’s abstraction-filtration-comparison test (“AFC Test”) to
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`deal with this particular type of work. 3 Robert W. Harris, A New Ball Game:
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`Litigating Copyright Infringement for Nonliteral Software Elements, 76 J. Pat. &
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`Trademark Off. Soc’y 157, 158 (1994) (“After a period of several years in which courts
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`applied a rather bewildering variety of tests for substantial similarity of software
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`products in copyright infringement cases, a consensus has recently emerged among
`
`
`3 Whether to adopt the AFC Test has previously been raised on appeal, but the Fourth Circuit did
`not decide this issue. Comprehensive Techn. Int’l, Inc. v. Software Artisans, Inc., 3 F.3d 730, 734–35
`(4th Cir. 1993).
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`the circuits, on the proper approach for analyzing the substantial similarity of
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`copyright-protectable elements of computer software, which approach was earlier
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`recommended by the Nimmer copyright treatise.”). The Fifth, Ninth, Tenth, and
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`Eleventh Circuits apply the AFC Test. See Gen. Universal Sys., 379 F.3d at 142 (“To
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`assess a claim of software infringement, we have generally endorsed the ‘abstraction-
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`filtration-comparison’ test first outlined by the Second Circuit in Altai and refined by
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`the Tenth Circuit in Gates Rubber Co. v. Bando Chemical Industries, Ltd.”); Sega
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`Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1525 (9th Cir.1992) (“In our view, in
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`light of the essentially utilitarian nature of computer programs, the Second Circuit’s
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`approach is an appropriate one.”); Gates Rubber Co. v. Bandon Chem. Indus, Ltd., 9
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`F.3d 823, 833 (10th Cir. 1993); MiTek Holdings, Inc. v. Arce Eng’g Co., 89 F.3d 1548,
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`1559 (11th Cir. 1996) (“Our circuit, in applying the Altai test, employs the substantial
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`similarity standard in comparing what remains after the abstraction and filtration
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`steps . . . .”). The Sixth Circuit uses a similar test, and the First Circuit addressed the
`
`AFC Test in its case of first impression and viewed it favorably.4 Kevin J. Hickey,
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`Reframing Similarity Analysis in Copyright, 93 Wash. U.L. Rev. 681, 694 (2016); see,
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`e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534 (6th
`
`Cir. 2004); Lotus Dev., 49 F.3d at 815.
`
`The AFC Test “has the major advantage of being entirely consistent with the
`
`infringement calculus used for infringement issues concerning other types of works.
`
`
`4 However, the First Circuit ultimately did not rely on the AFC Test because Lotus involved literal
`infringement. Lotus Dev., 49 F.3d at 814–15.
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`14
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`Case 2:16-cv-01762 Document 213 Filed 08/04/17 Page 15 of 49 PageID #: 4231
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`In effect, it is an adaptation of the traditional infringement test to the medium of
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`computer programs.” Howard B. Abrams, Copying of Protected Expression—
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`Technology, Functionality and the Ordinary Observer Test—Commentary, 2 The
`
`Law of Copyright § 14:33 (2016). The AFC Test “arose out of the difficulties of
`
`assessing similarity in computer software cases. At its core, the AFC Test is simply a
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`formalized system to ensure that elements that are not protected by copyright are
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`excluded when comparing two works.” Hickey, supra, at 694. In essence, the AFC
`
`Test works as follows:
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`In ascertaining substantial similarity [between two or more programs]
`under this approach, a court would first break down the allegedly
`infringed program into its constituent structural parts. Then, by
`examining each of these parts for such things as incorporated ideas,
`expression that is necessarily incidental to those ideas, and elements
`that are taken from the public domain, a court would then be able to sift
`out all non-protectable material. Left with a kernel, or possibly kernels,
`of creative expression after following this process of elimination, the
`court’s last step would be to compare this material with the structure of
`an allegedly infringing program. The result of this comparison will
`determine whether the protectable elements of the programs at issue
`are substantially similar so as to warrant a finding of infringement.
`
`
`Comput. Assocs. Int’l, 982 F.2d at 706.
`
`I will therefore employ the AFC Test to determine substantial similarity for
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`alleged non-literal copyright infringement of source code.
`
`2. Relevant Background Information
`
`Given the complexity of this type of copyright infringement analysis, some
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`background information is helpful. In this case, both CSS and CT’s programs have
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`client/server architecture. Client/server describes “a program relationship in which
`
`the client requests a service or resource from the server.” Zeidman Expert Report, Ex.
`
`15
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`

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`Case 2:16-cv-01762 Document 213 Filed 08/04/17 Page 16 of 49 PageID #: 4232
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`J at 1. Both parties’ programs are client/server applications, meaning that there is a
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`“front end” or “client side” and a “back end” or “server” side. Id.; McCasker Expert
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`Report at 7, 9.
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`The three coding languages used in this case are COBOL, VB6, and C#. The
`
`server sides of both CSS and CT are written in COBOL. The client side of CSS is
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`written in VB6, and the client side of CT is written in C#. COBOL is “exclusively
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`owned, developed and maintained by Micro Focus.” Defs. Mem. Opp. Pls. Mot. Prelim.
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`Inj., Ex. 9, at 2 [ECF 68-9] (“Letter from Courtney Wood, Associate General Counsel
`
`for Micro Focus”).
`
`This case also involves several third-party applications: Relativity, VanGUI,
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`Louis, and Crystal Reports. Relativity is a data-access middleware product,
`
`specifically it is an ODBC-accessible relational database management system. Defs.
`
`Mem. Opp. Pls. Mot. Prelim. Inj., Ex. 9, at 4–5 [ECF 68-9]. It improves access to
`
`COBOL data. Relativity is a COBOL-specific database engine/driver that is
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`“exclusively owned, developed and maintained by Micro Focus.” 5 Letter from
`
`Courtney Wood, Associate General Counsel for Micro Focus 2. VanGUI is a
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`communication middleware that allows application programs written in COBOL to
`
`be combined with graphical user interface (GUI) front-ends written in programming
`
`languages that support VB6. Defs. Mem. Opp. Pls. Mot. Prelim. Inj., Ex. 9 at 6–7
`
`[ECF 68-9]. VanGUI is “a way to modernize COBOL applications.” Id. at 1; Zeidman
`
`
`5 Liant acquired the rights to use and market Louis with its RM/COBOL and other COBOL products
`prior to its acquisition by Micro Focus in 2008.
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`Case 2:16-cv-01762 Document 213 Filed 08/04/17 Page 17 of 49 PageID #: 4233
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`Expert Report at 18. Louis is an interface builder that works in conjunction with
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`COBOL platforms and products and GUIs. Louis is “exclusively owned, developed
`
`and maintained by Micro Focus.” Letter from Courtney Wood, Associate General
`
`Counsel for Micro Focus 2. Crystal Reports is a business intelligence application that
`
`helps generate reports. Zeidman Expert Report, Ex. H at 2.
`
`3. CSS has Valid Copyrights
`
`A certificate of copyright registration is prima facie evidence of ownership of a
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`valid copyright. 17 U.S.C. § 410(c); Serv. & Training, Inc. v. Data Gen. Corp., 963
`
`F.2d 680, 688 (4th Cir. 1992). CSS is the registered owner of three copyrights in
`
`computer software code: Document Indexing and Imaging for Counties 2015 (TX 8-
`
`230-758), Estate Management 2015 (TX 8-230-809), and Web Inquiry 2013 (TX 8-230-
`
`816). CT did not dispute the validity of the copyrights in its Response to CSS’s motion.
`
`The defendants did not introduce evidence calling the validity of the copyright
`
`into question.6 If CT had wished to dispute validity at the hearing, it would have had
`
`the “burden of overcoming the presumption [of validity] arising out of the granting of
`
`the copyright by the Copyright Office.” M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421,
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`434 (4th Cir. 1986). Thus, I FIND that CSS is likely to show that it owns valid
`
`copyrights.
`
`4. The AFC Test
`
`The next stage of the analysis is more complex. In order to demonstrate
`
`
`6 Through cross examination, defendants have implied that the dates of creation on the estate and
`indexing software copyright registrations are incorrect. Hr’g, Tr., C. Herrington Direct, 233: 3–234:2.
`However, they did not present sufficient evidence to rebut the presumption of validity.
`
`17
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`

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`Case 2:16-cv-01762 Document 213 Filed 08/04/17 Page 18 of 49 PageID #: 4234
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`copyright infringement, CSS must produce either direct evidence of infringement, or
`
`in the alternative, that (1) CT had access to the copyrighted work, and (2) CT’s
`
`software is substantially similar to CSS’s copyrighted material. Comput. Assocs. Int’l,
`
`982 F.2d at 701. CSS argues the latter, which means I must apply the AFC Test for
`
`substantial similarity.
`
`a. Step 1: Abstraction
`
`
`
`The first step described in Altai is abstraction. Abstraction is a very fact-
`
`specific process. The overarching goal of abstraction is to break out a program into its
`
`numerous ideas and expressions. Id. at 706–07. Each level of the AFC Test involves
`
`“dissective analysis.” Pamela Samuelson, A Fresh Look for Nonliteral Copyright
`
`Infringement, 107 Nw. U. L. Rev. 1821, 1838 (2013). The purpose of this step is to
`
`distinguish the copyrightable expressive aspects of software from its underlying
`
`ideas, which are not protectable by copyright. Id. at 707.
`
`Analytic dissection is relevant not only to the copying element of a
`copyright infringement claim, but also to the claim’s ownership element.
`One aspect of the ownership element is the copyrightability of the
`subject matter and, more particularly, the scope of whatever copyright
`lies therein. To the extent a plaintiff’s work is unprotected or
`unprotectable under copyright, the scope of the copyright must be
`limited.
`
`Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1476 (9th Cir. 1992) (citations
`
`omitted). I rely entirely on the report and testimony of CSS’s expert, Andrew
`
`McCasker, and the report of CT’s expert, Dr. Robert Zeidman to perform the
`
`abstraction process.
`
`b. Step 2: Filtration
`
`
`
`The second step in the AFC Test is filtration. After the experts identify the
`
`18
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`Case 2:16-cv-01762 Document 213 Filed 08/04/17 Page 19 of 49 PageID #: 4235
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`abstracted levels of the software in this case, the court must next examine the
`
`structural components and determine if they are copyrightable. Comput. Assocs. Int’l,
`
`982 F.2d at 707. The purpose of filtration is to define the scope of the plaintiff’s
`
`available copyright. Id. Courts have been encouraged to be more explicit about
`
`addressing which elements in protected works are not protectable by copyright. See
`
`Samuelson, supra, at 1839. The Altai case names three specific categories of elements
`
`that cannot be protected: (1) elements dictated by efficiency, which are barred by the
`
`merger doctrine, (2) elements dictated by external factors, similar to scènes à faire in
`
`traditional copyright analysis, and (3) elements from the public domain. Comput.
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`Assocs. Int’l, 982 F.2d at 707–11.
`
`When there is only one way to express a particular idea, the idea and its
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`expression are “merged” and copyright will not protect that expression. Id. Coders are
`
`driven to write the leanest, most efficient code in order to make a program run as fast
`
`as possible.7
`
`Efficiency is an industry-wide goal. Since, as we have alrea