Have a Heart, but not an Infringement Claim

The Federal Circuit gets to hear copyright infringement claims when they are coupled with a patent claim. In that circumstance, they apply the law of the circuit from which the appeal was taken at the district court level. A recent case on appeal from Massachusetts, evidenced a rather expansive view on plaintiff's part for programs and information used for portable defibrillators, Hutchins v. Zoll Medical Corp., 2007 WL 1892467 (Fed. Cir. July 3, 2007). The court's discussion is succinct and worth quoting:

The Copyright Act provides protection against unauthorized copying of computer programs, defined in 17 U.S.C. § 101 as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” .... This definition has been applied to protect computer codes and design and text, as well as the tangible expressions such as the screen display. However, copyright protection does not extend to the methods that are performed with program guidance, as discussed by the First Circuit in Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807, 818 (1st Cir.1995), aff'd 516 U.S. 233, 116 S.Ct. 804, 133 L.Ed.2d 610 (1996) (“a text describing how to operate something would not extend copyright protection to the method of operation itself; other people would be free to employ that method and to describe it in their own words”). Mr. Hutchins' Copyright No. Txu-213-859 is for the “text of computer program” for his system. The district court, applying Lotus v. Borland, ruled that Mr. Hutchins' copyright does not afford the scope of protection he seeks. The court explained that copyright does not protect the technologic process independent of the program that carries it out; that is, the copyright covers the way the process is described in the written or electronic form of the computer program, but does not cover the process independent of the copyrighted program. The district court held that Mr. Hutchins' copyright for a computer program for performing CPR in accordance with audio and visual instructions shields the software code from copying and may cover the specific audio-visual forms and text if original, but it does not cover the standard instructions for performing CPR or their independent placement in electronic form. Mr. Hutchins states that his program for performing CPR and the Zoll program for performing CPR “perform the same task in the same way, that is, by measuring heart activity and signaling the quantity and timing of CPR compressions to be performed by the rescuer.” He argues that his copyright covers the system of logic whereby CPR instructions are provided by computerized display, and that the unique logic contained in software programs is protectable subject matter under 17 U.S.C. § 101 (“A ‘computer program’ is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”) The district court correctly distinguished the specific computer program and its expression, which are the province of copyright law, from the technologic method of treating victims by using CPR and instructing how to use CPR. The court correctly held that Mr. Hutchins' copyright is limited to preventing the copying of the specific computer program that he developed, and does not include coverage of all programs that guide the performance of CPR derived from information in the public domain. See Lotus v. Borland, 49 F.3d at 818 (methods of operation are not copyrightable, although a specific program that implements the method can be protected against copying). It was not established that Mr. Hutchins' specific computer program, or any original aspects of his display in audio or video, was copied. We affirm the ruling that this copyright is not infringed. Mr. Hutchins' Copyright No. TXu-210-208 is for a “Script & Word List” of words and phrases used in his CPR-guidance system. The district court held that the Zoll CPR guidance system did not infringe this copyright. ... It is axiomatic that copyright law denies protection to “fragmentary words and phrases” and to “forms of expression dictated solely at functional considerations” on the grounds that these materials do not exhibit the minimal level of creativity necessary to warrant copyright protection; 37 C.F.R. § 202.1(a)). Mr. Hutchins' charge of infringement relates to Zoll's use of words and phrases that are included on his copyrighted List. Both the Hutchins and the Zoll systems guide the rescuer through the CPR process by way of a series of computer-generated instructions presented in words and phrases. Mr. Hutchins asserts that Zoll's system uses twenty-seven phrases from the copyrighted list. The district court found that Zoll's instructions contain two phrases that are identical to those on Hutchins' list, viz., “call for help” and “check breathing.” The court found that three more phrases are similar, viz., Hutchins' “stay calm” (Zoll's “remain calm”); “if no pulse, start CPR” (“if no pulse, continue”); and “give two breaths” (“start with two breaths”). However, the court concluded that these phrases are entirely functional, that they are not original with Hutchins but are standard CPR instructions, and that they are not subject to copyright. Copyright does not protect individual words and “fragmentary” phrases when removed from their form of presentation and compilation. Although the compilation of public information may be subject to copyright in the form in which it is presented, the copyright does not bar use by others of the information in the compilation. See Feist, 499 U.S. at 348-49 (no matter how much original authorship is embodied, the facts and ideas are not barred from use by others). The district court found that the words and phrases on Mr. Hutchins' “Script and Word List” are standard CPR instructions devoid of “creative expression that somehow transcend the functional core of the directions... ."