Case: 3:16-cv-00122-jdp Document #: 134 Filed: 03/27/18 Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
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`DATACARRIER S.A.,
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`Plaintiff,
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`v.
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`WOCCU SERVICES GROUP, INC.,
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`Defendant.
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`OPINION & ORDER
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`16-cv-122-jdp
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`This is a copyright infringement dispute over transactional switch software, which is a
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`component of a payment processing system. Plaintiff Datacarrier S.A. alleges that the copyright
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`to its switch software is infringed by the switch software owned by defendant WOCCU Services
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`Group, Inc. (WSG).
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`WSG moves for summary judgment. Dkt. 68. Datacarrier’s switch software is written
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`in the Cobol programming language, whereas WSG’s is written in Java. There is no genuine
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`dispute that WSG has not literally copied any of Datacarrier’s source code. But that leaves the
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`possibility that WSG might have copied some other aspect of Datacarrier’s software, so that
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`the two programs are nevertheless substantially similar. Datacarrier contends that WSG has
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`copied three aspects of its software: two message formats used to communicate information
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`about transactions and certain ATM configuration information.
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`The court concludes that the two message formats are not independently copyrightable
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`because they are derived from pre-existing industry standards, the particular implementation
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`of those standards is driven by functional considerations, and the formats are the digital
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`equivalents of blank fill-in forms, which have long been regarded as not copyrightable. The
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`ATM configuration information is not part of the switch software, and thus it is not copied by
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`WSG’s switch software. Because these three aspects of the switch software are the only
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`substantial points of similarity asserted by Datacarrier, the court will grant summary judgment
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`to WSG and close this case. The court will deny as moot WSG’s motion in limine to exclude
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`certain evidence from trial. Dkt. 128.
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`FACTUAL BACKGROUND
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`Except where noted, the following facts are undisputed. Additional facts will be
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`provided where pertinent to the analysis.
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`A. The parties
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`Plaintiff Datacarrier S.A., is an Ecuadorian software company, which owns transactional
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`switch software called TID, the copyrighted work asserted in this case. The TID source code is
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`registered with the United States Copyright Office, Registration No. TX-7-946-574, effective
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`December 15, 2014. Datacarrier is affiliated (though exactly how is disputed) with a
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`Guatemalan software company, Servicios Tecnologicos de Guatemala S.A. (ServiTech).
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`Defendant WOCCU Services Group, Inc., a Wisconsin corporation, provides services
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`to credit unions in Latin America. WSG has provided transactional switch services to its
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`affiliates in Ecuador, Peru, Bolivia, and Mexico. WSG’s transactional switch software, which
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`Datacarrier alleges infringes its copyright, is called Entura.
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`B. Technical background
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`Transactional switch software is used to process financial transactions, such as a cash
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`withdrawal from an ATM or a credit card purchase at a store. For purposes of illustration, we
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`will stick with the ATM withdrawal example. Such a transaction involves a network that
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`connects the ATM from which a card holder would like to withdraw cash to the financial
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`institution that holds the account and issued the debit card. The network requires
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`communication of the transaction request to the financial institution and communication of
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`the response from the financial institution back to the ATM. The parties use the diagram below
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`to illustrate the pertinent components of the network. The three points of similarity on which
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`Datacarrier bases its allegations of infringement are identified in the diagram as “NDC code,”
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`“intra-switch messages,” and “switch-to-host messages.”
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`The switch software runs on the “central server.” The entity that operates the ATM, and thus
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`receives requests from a card users, is referred to as the “acquirer.” The financial institution
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`that maintains the account and determines whether to approve the request is referred to as the
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`“authorizer,” the “host,” or the “issuer.”
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`The switch software routes messages between the ATM and the authorizer. If the card
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`user’s account is with the same financial institution that operates the ATM network, that
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`financial institution’s local switch (essentially a local network server) handles the request. But
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`if the user’s account is elsewhere—that is, if the acquirer and the authorizer are different
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`institutions—then the transactional switch on the central server transmits the request to the
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`authorizer’s server. Thus, to work effectively, the switch software must communicate with
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`different ATM networks and with different financial institutions. The communications to the
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`local switches operating ATM networks are called “intra-switch messages” and the
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`communications to financial institutions are calls “switch-to-host messages.”
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`The International Organization for Standardization developed the ISO 8583 standard
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`to facilitate transactional switching among financial systems. There are three versions of ISO
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`8583, identified by the year of their release: 1987, 1993, and 2003. ISO 8583 defines a
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`common standard for message formatting with a library of more than 100 data fields. Financial
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`networks typically adapt and customize the data fields in the ISO 8583 standard to the needs
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`of their networks and the institutions that use them.
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`C. Development of the parties’ switch software
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`In 2009, a company called Multisoft developed transaction switch software called
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`Sharing. ServiTech supplied Sharing switch software to WSG, which sublicensed Sharing to its
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`affiliated ATM-network operators in Ecuador, Peru, Bolivia, and Mexico. Datacarrier provided
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`Sharing-related maintenance and technical support to ServiTech’s customers.
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`Sharing had technical problems, so Datacarrier developed a replacement—the TID
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`switch software. One of the programmers who worked on TID was a former Multisoft
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`employee, Maria Fernanda Martinez. At some point, Multisoft’s assets were liquidated in an
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`Ecuadoran legal proceeding, and the Multisoft programmers ended up owning the Sharing
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`software. Martinez had developed a format for switch-to-host messages for Sharing, and she
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`used that switch-to-host message format in TID. Martinez assigned her ownership interest in
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`the switch-to-host message format to Datacarrier. TID is written in the Cobol programming
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`language.
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`WSG agreed to offer TID to its affiliates. Datacarrier licensed TID to ServiTech, and
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`ServiTech sublicensed it to WSG and its affiliates. But TID had its own problems, and only
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`one of WSG’s affiliates—RTC in Ecuador—successfully converted to it. The parties blame each
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`other for the problems with TID, but that the dispute is immaterial to this case.
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`There was another alternative to Sharing. A Peruvian company, Kuskanet, developed
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`new switch software (which later would be renamed Entura) to address problems that Kuskanet
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`had had with Sharing. The primary programmer was Edwin Ayala, a Kuskanet engineer, who
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`wrote the program in the Java programming language. Ayala began developing Entura in 2010
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`and it was operational in mid-2011, about the same time as TID was ready for commercial use.
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`Neither Ayala nor anyone on his team had access to the TID program’s source code. See Dkt.
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`64. But at some point after Entura was operational, Ayala saw TID in operation at WSG’s
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`Ecuadoran affiliate, RTC. Ayala also got a copy of a Datacarrier document—referred to by the
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`parties as the Intercambio Document—that describes the TID program’s format for switch-to-
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`host messages. Both TID and Entura use this format, although WSG denies that Ayala made
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`any use of the Intercambio Document in creating Entura, because Ayala received it only after
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`Entura was operational.
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`In early 2012, Steven Schaefer, WSG’s technology manager, visited Kuskanet to
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`evaluate Entura as a potential replacement for Sharing and TID. WSG decided to stop using
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`the TID program and acquire the Entura switch software from Kuskanet. Dkt. 110, ¶ 115.
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`After WSG acquired Entura, it stored the source code on servers in the United States. Entura
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`is actually used, however, outside the United States in the countries where WSG’s affiliates
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`operate.
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`Datacarrier applied for registration of the TID program with the United States
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`Copyright Office on December 12, 2014. On February 26, 2016, Datacarrier filed this suit
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`alleging that WSG infringes the TID copyright by storing or using Entura in the United States.
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`ANALYSIS
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`To maintain its copyright infringement claim, Datacarrier must prove two elements:
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`“(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that
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`are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). And, as the
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`court decided in an earlier order, the infringing acts must take place in the United States. Dkt.
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`39. Thus, Datacarrier’s infringement allegations must be based on Entura software that is kept
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`and used in the United States, not on versions of Entura used in Latin America.
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`The parties agree that TID and Entura are written in dissimilar programming languages,
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`Cobol and Java respectively, and thus there has been no literal copying of the TID source code.
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`Datacarrier’s expert, Howard Cohen, verified this by using code comparison software, although
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`he did not include these results in his report. Dkt. 110, ¶¶ 73-75.
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`The use of different programming languages would not necessarily preclude substantial
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`similarity in non-literal aspects of two computer programs. Consider, for example, the code for
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`a video game. One could completely re-write the code in a different programming language,
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`and yet closely copy the imagery and narrative structure of the game. The actual code of the
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`two programs would be completely dissimilar, but the two programs would nevertheless be
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`substantially similar in imagery and narrative structure. In that example, the non-literal aspects
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`of the game—imagery and narrative structure—clearly constitute aspects of original authorship
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`protected by copyright. But this case involves software that is more routinely functional than
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`a video game, so its non-literal features do not necessarily constitute aspects of original
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`authorship.
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`With literal copying of the code off the table, it is incumbent on Datacarrier, as the
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`party with the burden of proof on its copyright claim, to identify the basis for its allegation
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`that Entura copies protected aspects of TID. Datacarrier cites three points of similarity that it
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`contends support a finding of infringement: (1) the ATM configuration information that
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`Datacarrier calls “NDC code,” (2) the format of switch-to-host messages; and (3) the format
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`of intra-switch messages. WSG moves for summary judgment on the basis that the first of these
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`is not actually part of Entura, and the two message formats are not copyrightable.
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`Summary judgment is appropriate if the moving party “shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
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`R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the
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`governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby,
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`Inc., 477 U.S. 242, 248 (1986). In reviewing WSG’s motion for summary judgment, the court
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`must construe the evidence and draw all reasonable inferences in Datacarrier’s favor. Id. at 255.
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`A. Preliminary evidentiary issues
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`Before turning to the merits, the court begins with some evidentiary issues.
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`The first issues relate to the opinions of Maria Fernanda Martinez, a Datacarrier
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`employee and one of the programmers who wrote Sharing and TID. Datacarrier proffers
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`Martinez both as a fact witness and as an expert with “extensive training and experience in
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`computer programming and software design and maintenance.” Dkt. 97, ¶ 1. WSG asks the
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`court to exclude Martinez’s expert testimony. Dkt. 108, at 2–9. The court will exclude her
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`expert opinions, particularly her infringement analysis. But the court will consider Martinez’s
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`testimony as a fact witness.
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`The first reason Martinez cannot provide expert testimony is that she has not disclosed
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`an expert report that complies with Rule 26(a)(2)(B). Datacarrier apparently assumed that
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`because Martinez is a Datacarrier employee rather than a retained expert, she did not have to
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`serve a full expert report. Accordingly, Datacarrier served only a summary of her opinions, in
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`the form of a 164-page document that looks like a PowerPoint presentation that might
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`accompany live testimony. But that document does not comply with the court’s pretrial order,
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`which requires that “[a]ny employee of a party who will be offering expert opinions during any
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`phase of this case must comply with the requirements of Rule 26(a)(2)(B).” Dkt. 24, at 2. As
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`WSG’s computer code expert, Daniel Milstein, points out, Dkt. 79-3, at 32, Martinez’s
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`summary is hard to follow and it is difficult to understand exactly what her opinions are. The
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`summary document that Martinez provided simply does not make much sense on its own.
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`Summaries of expert testimony tend to lead to disputes about whether the expert has properly
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`disclosed her opinions, which is why the court requires a full written report from employee
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`experts.
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`The second reason that the court will exclude Martinez’s expert opinion is that her
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`infringement analysis relies on an unauthenticated copy of Entura, which she acquired from
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`Datacarrier, which acquired it from a criminal investigation in Ecuador. Purportedly, the copy
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`came from a WSG affiliate, RTC. Under Federal Rule of Evidence 703, an expert can
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`sometimes base a reliable opinion on evidence that would be inadmissible on its own, if it is
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`the type of evidence that experts in that field would typically rely on. But no reasonable
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`copyright infringement analysis could be based on copy of the accused work with such
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`questionable provenance. We simply don’t know how the RTC copy of Entura was collected
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`or what it includes. We know that it is not the same as the Entura copy maintained in the
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`United States. Through discovery in this case, Datacarrier and its retained expert, Howard
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`Cohen, had access to an authenticated copy of WSG’s Entura program as maintained in the
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`United States. Martinez did not. So her opinions about whether Entura infringes TID are not
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`based on reliable information. Finally, any admissible component of Martinez’s infringement
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`opinions would be cumulative of Cohen’s opinions anyway. The bottom line is that the court
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`will consider Martinez’s fact testimony only.
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`The problems with the RTC code also affect the opinions of Howard Cohen,
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`Datacarrier’s infringement expert. Cohen relies on the RTC code for two aspects of his analysis.
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`First, Cohen relies on the RTC copy of Entura for his analysis of whether Entura’s NDC Code
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`is copied from TID. Cohen acknowledges that the NDC Code is stored in a database separate
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`from the switch software itself. The switch software pulls the NDC Code from the database
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`and then loads it onto the ATM. Cohen therefore did not find WSG’s NDC Code in the Entura
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`software that he got through discovery from WSG. Rather, he contends that he was able to
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`derive WSG’s NDC Code from the code that was given to Datacarrier by the Ecuadoran police:
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`Files collected by the Ecuadorian police in their investigation of
`RTC (WSG's Ecuadorian affiliate) were provided to me. These
`included a number of such log files. Using the same one the police
`used in their analysis, I was able to extract the Entura NDC code
`in order to compare it with the Datacarrier NDC code.
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`In particular, I used the log file 23202.log, also used by Ing. Jaime
`Padilla [the Ecuadoran investigator] in his report (pp. 18-19).
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`Dkt. 78-13, ¶¶ 7-8. Cohen’s analysis of WSG’s NDC Code is, like Martinez’s infringement
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`analysis, predicated on an unauthenticated copy of code purportedly obtained from RTC. The
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`court deems Cohen’s analysis of Entura’s use of NDC Code unreliable and inadmissible. And
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`even if the court considered this part of Cohen’s testimony, the most that it would show is that
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`in operation, Entura moves the NDC Code from a database to an ATM. This does not establish
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`that WSG has a copy of the NDC Code in the United States.
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`Second, Cohen uses the RTC copy of Entura in his analysis of the switch-to-host
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`message format. In Exhibit F to his report, he explains that he based his analysis of the switch-
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`to-host message format on the RTC copy of Entura:
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`In the Entura code collected by the Ecuadorian police the java
`archive (jar) file
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`…/Codigo Fuente/SWITCH_ENTURA/WebContent/WE
`BINF/lib/Tramaiso8583.jar
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`contains a compiled class, TramaSwitchHost. Using tools
`available on the web, this archive file was decompiled and the
`source code for this class reconstructed.
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`Dkt. 78-16, ¶ 16 (footnote omitted). Although Cohen contends that he “made reference to”
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`parts of the Entura code as produced by WSG (Dkt. 78-16, ¶ 23), he does not explain how
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`that version of Entura mattered in his analysis. He used a file reconstructed from the RTC code
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`to conclude that Entura used the same data fields and names as used in the TID switch-to-host
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`message format. So the foundation of Cohen’s analysis is, again, the unauthenticated code from
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`RTC.
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`Cohen’s analysis of the switch-to-host message format has another problem. Cohen
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`acknowledges that the intra-switch message format is based on ISO 8583. Cohen contended
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`that TID had significantly customized the ISO 8583 standard, but he mistakenly compared
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`TID to the 2003 version of ISO 8583. He had missed that TID actually used the 1993 version,
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`so his opinions about the degree of customization are unreliable and thus inadmissible.
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`(Datacarrier sought to submit an untimely supplemental report to correct this error, but the
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`court did not allow it. Dkt. 125.)
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`To sum up the evidentiary rulings: the court will consider Martinez’s fact evidence, but
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`it will exclude her expert opinions; the court will exclude any analysis based on the
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`unauthenticated RTC version of Entura; and the court will exclude Cohen’s analysis of the
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`switch-to-host message format.
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`B. Infringement analysis
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`In cases involving computer software, many courts analyze infringement with the
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`“abstraction-filtration-comparison” approach first described in Computer Associates International,
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`Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). Melville B. Nimmer, Nimmer on Copyright §
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`13.09 (Matthew Bender ed. 2005) (the abstraction-filtration-comparison is the “dominant,
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`albeit not universal, standard”). In brief, the court begins by parsing the allegedly infringed
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`program into its constituent parts, isolating the level of abstraction of each part. The court then
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`filters out the protectable elements of expression from the unprotectable ideas and functions.
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`Finally, the court compares the core of protectable expression in the original work to the alleged
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`infringing work, to determine whether enough of the protectable core has been copied to make
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`the two works substantially similar.
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`The abstraction-filtration-comparison approach has not been endorsed by the Seventh
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`Circuit Court of Appeals, although at least one district court in the circuit has used it. See, e.g.,
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`Nikish Software Corp. v. Manatron, Inc., No. 2010 WL 5099281 (S.D. Ind. Dec. 8, 2010).
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`Regardless of the status of that approach in this circuit, the court need not apply it directly in
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`this case, because the parties have already identified the specific elements at issue. In essence,
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`abstraction is done because Datacarrier has identified the three particular points of similarity
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`between TID and Entura. And comparison is unnecessary, because for purposes of this motion,
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`the court will assume the Entura uses the same NDC Code and message formats as TID. What’s
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`left is, essentially, filtration: the court must determine whether the three asserted points of
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`similarity are part of the core of protected expression in TID.
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`1. NDC Code
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`Datacarrier alleges that one point of similarity between TID and Entura is that they
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`both use the same data to configure ATM machines that connect to transactional switch
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`software. Datacarrier refers to this data as “NDC Code.” WSG contends that this data is more
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`accurately referred to as ATM “customization data.” The terminological dispute is not material;
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`the parties agree about what this data is and how it is used. To keep things clear, the court will
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`follow Datacarrier and use the term NDC Code (although the court agrees that it would be
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`more accurate to call it customization data).
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`NDC Code is used to configure an ATM that connects to the network through which
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`the transaction will be processed. NDC is an abbreviation for NCR Direct Connect, which is
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`an ATM transaction protocol developed by NCR Corporation. NCR has a software suite called
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`NCR Aptra, which facilitates the programming and management of ATMs. The Aptra manual
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`is the source of Cohen’s information about how NDC Code works. As WSG points out, the
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`Aptra manual refers to the ATM configuration data as “customization data,” which is
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`appropriate because the purpose of the NDC Code is to configure the ATM to operate in a
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`certain way.
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`There is no genuine dispute that the NDC Code is not part of the switch software itself.
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`Rather, as the parties’ experts agree, the switch software pulls the NDC Code from a database,
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`and then loads the NDC Code to the ATM that is accessing the network. WSG has shown that
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`the Entura switch source code does not include NDC code. See Dkt. 110, ¶ 22 (citing Dkt. 79-
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`3, ¶ 23 and Dkt. 61 (Cohen Dep. 70:5-8)). For reasons that are not entirely clear, the TID
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`deposit material (submitted in support of Datacarrier’s copyright registration) included two
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`pages of NDC Code. But Cohen did not find this NDC Code anywhere in the Entura software
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`as it was maintained in the United States. Dkt. 61 (Cohen Dep., 56:25–57:7).
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`Datacarrier argues that Entura is substantially similar to TID because they both use
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`NDC Code in the same way, and they both use the same NDC Code. It’s apparent that any
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`network that uses an ATM that has been configured using NCR Direct Connect will have to
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`use NDC Code substantially in the way that both TID and Entura use it. That much is built
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`into the way NCR’s ATM configuration software works. So the fact that both Entura and TID
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`pull NDC Code from a database and pass it on to the ATM cannot be the basis for any
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`copyright infringement claim against WSG.
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`The claim that both TID and Entura use the same NDC Code fails for the evidentiary
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`reasons discussed above: Cohen reaches this conclusion solely on his analysis of the
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`unauthenticated RTC code. But even if both TID and Entura did both use the same NDC
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`Code, WSG has not shown that NDC Code is actually part of the switch software. Cohen tries
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`to describe the NDC Code in a way that makes it appear to be a form of source code, but his
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`explanation makes clear that NDC Code is produced when someone uses NCR Aptra software
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`to set up the configuration of an ATM. Some of this code was included in the TID deposit
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`material, but Cohen did not find this NDC Code in the Entura source code maintained in the
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`United States.
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`The court concludes that Datacarrier cannot base a viable copyright infringement claim
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`on Entura’s use of NDC Code because the NDC Code is not part of the core of protectable
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`expression in TID. And the Entura code as maintained in the United States does not include
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`NDC Code anyway.
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`2. Message formats
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`Entura and TID use the same format for communications with ATM systems and with
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`financial institutions, which are referred to as intra-switch messaging and switch-to-host
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`messaging respectively. Datacarrier contends that these message formats are points of
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`substantial similarity that support an infringement claim against WSG.
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`WSG contends that the message formats are not copyrightable elements of the switch
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`software because they are not truly original to Datacarrier and they lack enough creativity to
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`constitute authorship. WSG pitches its argument in terms of the doctrines of merger and scènes
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`à faire. “The merger doctrine reflects the principle that where the expression is essential to the
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`statement of the idea, or where there is only one way or very few ways of expressing the idea,
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`the idea and the expression ‘merge’ into an unprotectable whole.” Woods, 725 F. Supp. 2d at
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`821. If the expression merges with the idea, the expression is not protectable. Altai, 982 F.2d
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`at 708. Scènes à faire are “incidents, characters or settings which are as a practical matter
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`indispensable, or at least standard, in the treatment of a given topic.” Incredible Techs., Inc. v.
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`Virtual Techs., Inc., 400 F.3d 1007, 1012 (7th Cir. 2005). These are creditable arguments, and
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`the Second Circuit Court of Appeals invoked the doctrines of merger and scènes à faire in its
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`explication of the filtration step in Computer Associates. But here the court undertakes a more
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`direct evaluation of the originality and creativity of the data formats.
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`Datacarrier contends that the TID message formats are copyrightable as “data
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`structures.” Datacarrier relies chiefly on Assessment Techs. of WI, LLC v. WIREdata, Inc., 350
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`Case: 3:16-cv-00122-jdp Document #: 134 Filed: 03/27/18 Page 15 of 19
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`F.3d 640 (7th Cir. 2003), for the proposition that data structures are copyrightable.1 But that
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`is not what the Court of Appeals held in Assessment Technologies. The case involved a computer
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`program for real estate assessment called Market Drive, which compiled information about real
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`property and organized it into 456 fields arranged into 34 categories. Some municipalities used
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`Market Drive to assist in assessing property, but the underlying data were in the public domain
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`and not copyrightable. On appeal, the defendant, WIREdata, contended that the Market Drive
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`software was itself uncopyrightable. The Court of Appeals promptly dismissed that idea,
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`holding that Market Drive was sufficiently original because no other real estate assessment
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`program had arranged real estate date into those specific 456 fields grouped into those specific
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`34 categories. The main issue in the case was whether WIREdata could obtain the underlying
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`data without infringing the copyright in Market Drive. The court held that WIREdata could
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`obtain the underlying data, even if the only way to obtain it would involve copying the Market
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`Drive data structure. Id. at 645. Assessment Technologies does not hold that every “data structure”
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`is copyrightable (and it’s not clear that the data structure would have been copyrightable apart
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`from the software that used it).
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`The message formats in TID are distinguishable from the elaborate data structure in
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`Assessment Technologies for several reasons. First, the message formats in TID are far simpler. The
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`format for switch-to-host messages comprises only 24 fields, and each field has only three
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`characteristics—name, length, and data type. The message format for intra-switch messages is
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`1 Datacarrier cites half a dozen additional district court cases in a footnote. Dkt. 91, at 24 n.16.
`The court would not have to consider these cases at all—Datacarrier includes only a brief
`parenthetical comment on each, without analysis to show how their reasoning would be useful
`to this case. But the court has reviewed the cases. They repeat the basic principles applied in
`this opinion, and together they show that the copyrightability of data structure, as a non-literal
`aspect of a computer program, demands a careful fact-intensive inquiry.
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`Case: 3:16-cv-00122-jdp Document #: 134 Filed: 03/27/18 Page 16 of 19
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`also relatively simple. According to Cohen, four message types are pertinent to this case, and
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`they have between 13 and 26 data elements.
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`Second, the message formats used by TID are not entirely original: they are derived
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`from the industry standard for financial transactions, ISO 8583. Martinez admitted that she
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`used the error codes and transaction codes of ISO 8583 when she developed the switch-to-host
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`message format for Sharing, Dkt. 97, ¶ 19, which was then used by TID. Cohen acknowledges
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`that the intra-switch message format is based on ISO 8583. For reasons given above, Cohen’s
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`opinion that TID had significantly customized the ISO 8583 standard is inadmissible.
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`Third, and most important, functional considerations are paramount in the message
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`formats. ISO 8583 provides a library of more than 100 data fields, but the message formats
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`used by TID and Entura include only the fields that are needed for the kind of transactions
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`performed by the switch software. Martinez says in her declaration that her choices were not
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`dictated by external factors, but this testimony is merely conclusory and manifestly incorrect.
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`Dkt. 97, ¶¶ 23, 24, 33. In designing the switch-to-host format, for example, Martinez was not
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`free to decide whether to include a data field for the card-holder’s account number; that field
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`would be required so the financial institution could process the request. Similarly, the length
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`of that field was determined by the need for efficiency: the field had to be long enough to
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`accommodate the account number, but it would be wasteful to make the field longer than
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`required. Martinez’s main explanation is that she selected the order of the fields, and she could
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`have made a trillion other choices. Dkt. 97, ¶¶ 22-23. But making an arbitrary selection of the
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`order of the 24 fields demonstrates only trivial creativity, scarcely more than it takes to put the
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`phone book in alphabetical order. Feist, 499 U.S. at (1991) (“There remains a narrow category
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`of works in which the creative spark is utterly lacking or so trivial as to be virtually
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`Case: 3:16-cv-00122-jdp Document #: 134 Filed: 03/27/18 Page 17 of 19
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`nonexistent.”). The mere selection from available alternatives does not, by itself, demonstrate
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`the requisite creativity. Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 818 (1st Cir. 1995),
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`aff'd, 516 U.S. 233 (1996). Ultimately, transactional switch software must use a data format
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`that provides the information demanded by the other parts of the network with which the
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`switch must interact. As Cohen acknowledged in his deposition, the financial institution
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`dictates the protocol that the switch software must use to communicate with it. Dkt. 61, at 99:
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`16-24. The design of these simple message formats was shot through with functional and
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`efficiency concerns.
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`The message formats used by TID are the digital equivalent of blank fill-in forms, which
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`have long been regarded as not copyrightable. The seminal case is Baker v. Selden, 101 U.S. 99
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`(1879), which held that blank account books were not copyrightable, because granting such a
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`copyright would be tantamount to granting a monopoly on using the underlying bookkeeping
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