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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS __________________________________________ REAL VIEW, LLC, ) ) Plaintiff and Counterclaim ) Defendant ) ) ) v. ) ) 20-20 TECHNOLOGIES, INC., ) ) ) Defendant and Counterclaim ) Plaintiff ) ) BORIS ZELDIN AND LEONID PERLOV ) Additional Party Defendants ) ) in Counterclaim.

CIVIL ACTION NO. PBS-07-12157

REALVIEW LLC, BORIS ZELDIN AND LEONID PERLOVS PRETRIAL MEMORANDUM [CORRECTED] Realview, LLC , Boris Zeldin and Leonid Perlov respectfully submit this pretrial memorandum. INTRODUCTION This case raises important issues of copyright law that have laid dormant for fifteen years, since the First Circuits decision in Lotus v. Borland, 49 F. 3d 807 (1st Cir. 1995), affd by equally divided court, 516 U.S. 233 (1996). The following quotes - the first by 20-20s technical expert Randall Davis, the second from the First Circuit in Lotus, illustrate the issues this case has revived fifteen years after Lotus: Professor Davis: A non-trivial part of getting trained on and oriented to a new piece of software involves coming to understand its overall layout and presentation of information and icons, i.e., how it presents its view of the task. The overall layout of these two programs is so similar that familiarity with one would instantly provide facility with the other. (Davis Expert Report, May 5, 2009, p. 10).

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Lotus Decision:

Under Lotuss theory, if a user uses several different programs, he or she must learn how to perform the same operation in a different way for each program used. For example, if the user wanted the computer to print material, then the user would have to learn not just one method of operating the computer such that it prints, but many different methods. We find this absurd. (Lotus, 49 F.3d at 818-819).

The conflict between these two views was at the heart of Lotus v. Borland, and is at the heart of this case as well. 20-20 is the dominant company in interior computer aided design (CAD) software, just as Lotus was 15 years ago. If 20-20 is allowed to protect its methods of operation (even as a compilation), it will be able to lock-in its user base by making it more difficult for users to migrate to a less expensive (and perhaps superior) program because of the cost of moving, i.e., the cost of having to learn to perform the same operation in a different way. 20-20 will have achieved this monopoly over its complex system of user commands and operations by making its users captives of the first provider of the program. Importantly, this will not be because of any creative effort or investment by 20-20, but because of the investment in learning made by the users. Id. at 821 (Boudin, concurring).
1

There have been no cases involving copyright protection of computer software user interfaces in the First Circuit since Lotus. For that reason, along with the inherent complexity of the subject matter, this case will present the Court, the jury, and the parties, with challenging issues of trial management. It is difficult enough for a jury to compare common artistic works (novels, paintings, movies) to determine substantial similarity; it is another thing altogether for a jury with no experience in computer aided design to be asked to compare two CAD programs. This is made more complex by the

See also Melville B. Nimmer and David Nimmer, Nimmer on Copyright 13.03[F] (2008): When a particular program becomes popular, users become accustomed to a certain structure and set of features and may expect similar features and nomenclature from new programs designed to perform the same function.

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fact that 20-20s software program -- 20-20 Design -- is based on the Microsoft Windows user interface, and has almost no independent creative or artistic content. Add to that the fact that 20-20 expects to prove infringement of three separate versions of 20-20 Design, two of which it never produced in discovery and did not disclose in its expert reports, and also expects to prove that three separate versions of Real Views ProKitchen software are infringing, the last of which was never alleged to be infringing or discussed in 20-20s expert reports, and the trial becomes more complex still. All of these issues will multiply the difficulty of this case for the jury. The already difficult nature of copyright law as applied to computer software will be greatly multiplied by confusion over which versions of each partys software is to be the subject of trial.
2

This pretrial brief will outline some of the more significant issues that Real View expects will arise at trial, including the version controversy described above. I. This Case Should be Limited to Version 6.1 of 20-20 Design and to Versions 2.0 and 3.0 of ProKitchen 20-20s copyright infringement case should be limited to infringement of version 6.1 of 20-20 Design. 20-20 denied Real View access to versions 6.4 and 8.1 during discovery. Subject to a couple of trivial exceptions (which appear to have been

See Intervest Const., Inc. v. Canterbury Estate Homes, 554 F. 3d 914, 920 (11th Cir. 2008) (Because a judge will more readily understand that all copying is not infringement, particularly in the context of works that are compilations, the "substantial-similarity" test is more often correctly administered by a judge rather than a jury -- even one provided proper instruction . . . . It is difficult for a juror, even properly instructed, to conclude, after looking at two works, that there is no infringement where, say, 90% of one is a copy of the other, but only 15% of the work is protectable expression that has not been copied); Bateman v. Mnemonics, Inc., 79 F. 3d 1532, 1543 (11th Cir. 1996) (Instructing a jury in the application of the law of copyright, which is characterized by often subtle and contradictory distinctions, is indeed a daunting task. Thus, the need for proper guidance is accentuated and heightened in directing a jury in this area of the law [computer technology], which may be foreign to many jurors, particularly in this rapidly changing technological world).

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20-20s own error), the only version of 20-20 Design produced to Real View in discovery, the only version used in the Markman hearing, and the only version addressed by 20-20s expert, Randall Davis, is version 6.1. Real View and its expert have never had access to version 6.4 or 8.1 of 20-20 Design, which 20-20 has now identified as trial exhibits. Therefore, Real View is unable to mount a case of noninfringement as to these versions. To be clear: Real View served 20-20 with a document request asking that it produce An executable copy of each version of the 20-20 Design software, along with any hardware keys or software codes necessary to install and access the software. 2020 responded that it would produce executable copies of the relevant version(s) of 2020 Design software in its possession, custody or control reasonably responsive to this request. (20-20 Response to Real View Document Request No. 4, October 22, 2008). 20-20 produced only version 6.1. It should not be permitted to take advantage of its non-production of other versions and assert infringement of them at trial. Cf. Storage Technology Corp. v. Custom Hardwood, 2006 U.S. Dist. LEXIS 43690 (D. Mass. 2005) ([copyright plaintiff] cannot now seek to press an infringement claim based on precisely the elements of the Maintenance Code that it refused to disclose). In the Joint Pre-Trial Memorandum filed by the parties on June 2, 2010 (Dkt. 113), 20-20 made a number of claims regarding the versions of 20-20 Design used by Professor Davis at the Copyrightability Hearings in 2010. For example, 20-20 states that Professor Davis included numerous screenshots of 20-20 Design versions 6.1 and 8.1 in the Exhibit 3 Chart Protectable Expression in 20-20 Design Copied by Real View dated July 22, 2009, examined during the Markman hearings. This statement is demonstrably false. Real View respectfully requests that the Court hold an evidentiary hearing, before trial, to determine which versions of 20-20 Design were utilized by Professor Davis in the reports, affidavit and trial exhibits. Only an evidentiary hearing will enable the Court to resolve this issue before trial.

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On top of this, 20-20s trial exhibits show that 20-20 now seeks to prove infringement of an updated version of Real Views ProKitchen software -- 4.0 -- that was neither the subject of Professor Davis reports or any other discovery. In fact, version 4.0 of ProKitchen was never produced to 20-20 in discovery. 20-20 never sought to amend its complaint to add this version of ProKitchen, which was released in early 2010. Version 4.0 of ProKitchen is significantly different than the earlier versions which were the subject of discovery and expert reports. If 2020 is seeking to prove infringement of this version, Real Views expert must be able to review it, analyze it, and prepare to show it to the jury. Because 20-20 never amended its complaint or its expert disclosures to include this version of ProKitchen, any allegation of copyright infringement with respect to ProKitchen 4.0 should be precluded. Because this version of ProKitchen was never produced to 20-20 in this litigation, how 20-20 obtained this software, which is subject to license restrictions that would have prevented someone from purchasing the software for the purpose of assisting 20-20 in litigation -- or using the software in any way other than for its intended purpose -- is a matter of concern for Real View. If 20-20 obtained this software illegally, it should be barred from use at trial. A determination of the exact versions of 20-20 Design and ProKitchen at issue in this case is a critical issue, affecting Real Views legal rights, efficient case management and the amount of potential jury confusion. These issues should be resolved before trial. Real View asks that the Court hold an evidentiary hearing to determine with finality which versions or 20-20 Design 20-20 used in its expert reports and at the copyrightability hearings. If Professor Davis mixed and matched different versions of 20-20 Design in his Exhibit 3 from that hearing, as 20-20 now claims, he should testify to that fact directly, so the Court can resolve the question of why this was not disclosed to the Court or to counsel for Real View.

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II.

The Comparison Stage of This Case A. Lotus v. Borland and Methods of Operation

An enormous amount of energy has gone into arguing the application of Lotus v. Borland to this case. While Real View believes the Court made clear that the elements of 20-20 Design found to be methods of operation under 17 U.S.C. 102(b) must be filtered out for all purposes, 20-20 asserts otherwise. 20-20s Proposed Jury Instructions make clear that, unless the Court orders otherwise, 20-20 plans to present evidence on icons, menus, menu commands or options, . . . methods of placing or modifying walls and cabinets in a design and mouse-clicks. (20-20 Proposed Jury Instructions, Dkt. 117, p. 12). Moreover, 20-20 has marked as an exhibit a video which demonstrates many of the items the Court ruled to be methods of operation, including the so-called placement zone. (20-20 Exhibit 30A). Yet, each of these elements was excluded from further consideration in the Copyrightability Order issued on February 11, 2010. Specifically, of the 54 items identified by 20-20 for the copyrightability hearing in 2009, the Court held that items 3-5, 15, 18, 19-34, 39-46, 49, 50, and 54 were methods of operation under 17 U.S.C. 102(b). The Court further held that items 11-14, 35-38 and 47 were of a mixed nature, and included elements that were methods of operation. 20-20s insistence that methods of operation are protectable as part of a compilation is inconsistent with the careful distinctions the Court drew in the Order, first filtering methods of operation under Lotus, and only then applying the remaining limiting doctrines.
3

The First Circuit did not hold to the contrary in Situation Management Systems, Inc. v. ASP. Consulting LLC, 560 F.3d 53 (1st Cir. 2009), as 20-20 incorrectly argued in its Notice of Supplemental Authority (Dkt. 103), and as Real View explained in detail in its response. (Dkt. 128).

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20-20s argument that methods of operation are protectable as part of a compilation was directly before the First Circuit in Lotus, and the Court refused to adopt it. In the last of the four decisions by Judge Robert Keeton, the court stated that it was protecting the structure of the menu tree or the selection and arrangement of executable operations as a non-literal aspect of the computer program. Lotus Dev. Corp. v. Borland Intl, Inc., 831 F. Supp. 223, 232-33 (D. Mass. 1993). This holding was squarely acknowledged by the First Circuit: the district court concluded that the Lotus developers choice and arrangement of command terms, reflected in the Lotus menu command hierarchy, constituted copyrightable expression. Lotus, 49 F.3d at 811. However, the first Circuit declined to find the selection and arrangement of the command terms protected by copyright. Id. at 816. In making this ruling the First Circuit was well aware of the minimal creativity standard that the Supreme Court had established four years earlier in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). In determining whether a compilation was protectable, the Feist Court held the originality requirement in copyright law was very low: it required only that the work was independently created by the author and possesse[d] at least some minimal degree of creativity. Id. at 345. Obviously, Lotus selection and arrangement of 469 command terms satisfied this low minimal creativity standard. Nevertheless, in denying protection to Lotus 1-2-3, the First Circuit noted that its decision did not go against Feist, stating that originality does not indicate that all expression is necessarily copyrightable; while original expression is necessary for copyright protection, we do not think that it is alone sufficient. Courts must still inquire whether original expression falls within one of the categories foreclosed from copyright protection by 102(b), such as being a method of operation. Lotus, 49 F.3d at 818. In other words, regardless of the original expression contained, methods of operation in the user interface of a software program cannot rise to the level of a protectable compilation, as defined in Feist. The Courts

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reliance on Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841 (1879), supports this conclusion. The Court stated, Lotus menu command hierarchy . . . falls squarely within the prohibition on copyright protection established in Baker v. Selden and codified by Congress in 102(b). Lotus, 49 F.3d at 817. This prohibition is absolute, and is not circumvented by calling the method of operation a compilation. 20-20s position today is no stronger than was Lotus position in 1995. Its argument is flatly inconsistent with Lotuss holding that a compilation of 469 menu commands was not protectable by copyright. Id. at 821 (Boudin, J., concurring). It would be inconsistent for this Court to find, on the one hand, that 20-20s various menus, submenus, pop-up menus and toolbars are directly analogous to the Lotus elements (Copyrightability Order, 683 F. Supp. 2d at 158), but on the other hand allow 20-20 to present a case that these items are protectible as a compilation.4 20-20s menu commands (File/Edit/View) are no different than those used by Lotus 1-2-3 (Copy/Print/Quit). If Lotus commands were uncopyrightable then, so are 20-20s now -- there is no legal or factual distinction. Applying the First Circuits decision in Lotus requires determining that, first, when program menu commands are the means by which a person operates the software, they are not copyrightable. Second, the court must ask a threshold question before proceeding with any analysis of abstraction or similarity whether the allegedly copied elements of a computer program can qualify as copyrightable subject matter. If

By its reversal of the district courts holding, the First Circuit implicitly rejected the district courts assertion that [t]he selection, arrangement, and manner of presentation in a compilation may provide the user with a method or systematic manner of accessing the (uncopyrightable) facts. . . . Nevertheless, the expressive aspects of a compilation remain copyrightable. Lotus Dev. Corp. v. Borland Int'l, Inc., 831 F.Supp. 223, 231 (D. Mass. 1993) (emphasis added). Under Lotus the selection and arrangement of facts may be protectible as a compilation, but the selection and arrangement of computer command terms are not, even if they reflect expressive choices. 49 F.3d at 816.

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they do not, no further infringement analysis need be performed. Many courts have followed Lotus holding, even if they have not expressly adopted the First Circuits holding that methods of operation are per se uncopyrightable subject matter. The leading copyright treatise has stated, Lotus had simply articulated a method of operation, which by definition lies beyond statutory protection. Nimmer, 13.03[F][3][ii].
5 6

The First Circuits 1995 holding in Lotus v. Borland is the law of the circuit, a subset of stare decisis. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010). Where a federal appellate court states a rule as clearly as the First Circuit did in Lotus v. Borland, inferior courts are entitled to expect equally blunt guidance should the court wish to retract the rule or declare that it is no longer good law. Doughty v. Underwriters at Lloyd's, London, 6 F.3d 856, 862 (1st Cir. 1993). Situation Management Systems, Inc. v. ASP Consulting LLC, 560 F.3d 53 (1st Cir. 2009), did not provide such blunt guidance, and therefore 20-20s attempt to elevate it to a reversal of Lotus v. Borland is incorrect. See, e.g., Ilog, Inc. v. Bell Logic, LLC, 181 F. Supp. 2d 3, 9, 10 (D. Mass. 2002), quoting Lotus, 49 F.3d at 816 (Under Lotus, where the expression is part of the method of operation even the expression is not copyrightable . . . . [t]his Court therefore begins by analyzing Bell Logic's eighteen elements in the aggregateare rules editors themselves copyrightable? If they are not, then as in Lotus, there can be no infringement); Jamison Business Systems v. Unique Software Support Corp., 2005 U.S. Dist. LEXIS 45480 at *35-36 (E.D.N.Y. 2005) (eighteen menu command hierarchy screens submitted by plaintiff as evidence of infringement are methods of operation under Lotus. Accordingly, they are not protectable elements of the [plaintiffs] program, and [defendant] did not infringe plaintiffs copyright by copying the menu command hierarchy for use in his own program.); Wyatt v. Malvern, 2009 U.S. Dist. LEXIS 66097 at *20 (C.D. Cal. 2009) (To the extent Plaintiff argues that the drop-down units menu is substantially similar, the Court notes that the menu commands are not protected, citing Lotus); Baystate Technologies, Inc. v. Bentley Systems, Inc., 946 F. Supp. 1079, 1088 (D. Mass. 1996) (In Lotus, the First Circuit held that the words used in Lotus 1-2-3's menu command hierarchy were not protectable because they were the means by which functions were performed and thus, constituted a "method of operation" excluded from copyright protection); MiTek Holdings, Inc. v. Arce Engineering Co., Inc., 89 F. 3d 1548, 1557 (11th Circuit 1996) (We agree with the conclusion reached by the district court that the ACES menu and submenu command tree structure is uncopyrightable under 17 U.S.C. 102(b)). Compare Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997) (We conclude that although an element of a work may be characterized as a method of operation, that element may nevertheless contain expression that is eligible for copyright protection . . . . [t]hus, we decline to adopt the Lotus court's approach to section 102(b)).

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20-20 should not be permitted to insert back into the case elements this Court has already determined, under Lotus, are not copyrightable. B. The Appearance of 20-20 Design is Determined, for the Most Part, by Standard Windows Interface Guidelines, and Therefore Look and Feel and Total Concept and Feel Should Not Apply in This Case 1. The Appearance of 20-20 Design is Determined by the Standard Windows Interface

Even apart from the elements presented to the Court at the copyrightability hearings, 20-20 Design consists almost entirely of elements not subject to copyright protection. Apart from a small number of icons (which the Court has held to be methods of operation under 17 U.S.C. 102(b), inseparable from their functional purpose), 20-20 has added no artistic or fanciful features to 20-20 Design. Nor, as Real View will demonstrate at trial, has 20-20 cobbled together an innovative melding of unprotectible features. Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp. 616, 623 (N.D. Cal. 1993). 20-20 Design offers little more than merely a compilation of scenes a faire, to which copyright protection cannot extend. Sportsmans Warehouse, Inc. v. Fair, 2008 U.S. Dist. LEXIS 7887 at *31 (D. Co. 2008), Magistrate Order accepted, 576 F. Supp. 2d 1175 (D. Co. 2008). No substantial similarity may be found under the intrinsic test [substantial similarity] where analytic dissection demonstrates that all similarities in expression arise from the use of common ideas. Aliotti v. R. Dakin & Co., 831 F. 2d 898, 901 (9th Cir. 1987). Nimmer has observed the impact software standards may have on a software interface, using the slightly outdated example of IBMs Common User Access Manual, a standard established by IBM in the 1980s. In this Manual, the definitions include such details as how specific information is arranged and displayed on a screen . . . As a result, many of the aesthetic elements of any software designed to run under IBMs SAA will appear nearly identical. Nimmer, 13.03[F][3][c]. Likewise, as Real View

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will show at trial, software that complies with Microsoft Windows guidelines will appear nearly identical. This is not a consequence of copying, but software standards. For example, the 20-20 Design default screen is an arrangement of common elements (menus, toolbars, tabs, scroll bars) that are present in countless Windows programs. Most members of the jury will have seen this arrangement of features many times before, and will rightly wonder how any of these components are protected by copyright law and can be claimed to be the property of 20-20. See, e.g., Productivity Software v. Healthcare Technologies, 1995 U.S. Dist. LEXIS 10381 (S.D.N.Y. 1995) (there are only two locations where a menu bar may be logically placed on a computer screen, the top and the bottom, . . . The limited alternatives available do not permit Plaintiff to claim copyright protection for its placement of the menu bar). The same is true of 20-20 Designs dialog boxes, which are indistinguishable from hundreds of thousands of dialog boxes implemented in Windows software over the last 20-plus years, and which closely adhere to Windows interface conventions. The Sixth Circuit has held the range of expression in a standard Windows dialog box

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using default components to be so narrow as to be unprotectible. Both 20-20 and Real View use default Windows settings in their dialog boxes. The critical -- and central -- fact in this case is that 20-20 Design is built upon the Microsoft Windows User Interface. 20-20 undertook no customization whatsoever almost every screen in the program uses the standard/default Windows Grey background color and the standard/default Windows font. Because as Real View will show at trial Microsoft Windows is highly standardized often down to the last pixel any two programs using the default Windows interface will look alike to a casual observer. Real View will amply illustrate this point at trial. Moreover, the layout of the start screen in 20-20 Design is a standard Windows/CAD interface screen, containing a large work area, a menu and a horizontal

Real View respectfully suggests that the Court reconsider its holding that dialog boxes are protectable under copyright law. The Court recognized that the buttons in dialog boxes are methods of operation under Lotus v. Borland. However, dialog boxes also are standard interface elements in Windows software. The range of expression is extremely narrow. It is doubtful that any programmer has worried that the creation of a dialog box which is assembled in an automated manner (drag and drop) out of pre-existing, standard components provided by Microsoft -- might constitute copyright infringement. To inject such a suggestion into the software industry today has the potential to be harmful to the industry. Moreover, no court has ever held a Windows dialog box infringing. The Sixth Circuits observations in Ross, Brovins & Oehmke, P.C. v. Lexis Nexis Group, 463 F. 3d 478, 485 (6th Cir. 2006), where the copyrightability of dialog boxes was at issue, equally applies here: LawMode's and Lexis's dialog boxes look very similar, such that a user who looked at LawMode's and Lexis's dialog boxes would have a hard time telling the two products apart. . . . [However] these similarities result from both Lexis's and LawMode's using HotDocs as the authoring tool. . . . Choosing the default setting on an underlying authoring tool is not sufficiently creative to warrant copyright protection. A user who looks at 20-20 and Real Views dialog boxes would find them indistinguishable under the spontaneous and immediate test often used for nontechnological works. However, the appearance of the dialog boxes is a function of Windows default guidelines. As the Sixth Circuit noted in Ross, Brovins, LawMode's choice to use the default settings is not subject to copyright protection. Some programming choices are either too trivial to support a finding of originality or are so constrained by practical reality as to lack originality. Id.

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tool bar. Therefore, to a casual viewer, the two screens appear similar. This is of particular concern where the color of the work area in 20-20 Design exhibits in this case have been modified by 20-20 to imitate the color of Real Views ProKitchen software.
8

Because the appearance of 20-20 Design is inseparable from the platform on which it was created, and from which 20-20 chose not to deviate, the Court must take strict measures to ensure that the jury does not base its decision on simply an overall impression of similarity. As the First Circuit noted in Johnson v. Gordon, 409 F. 3d 12, 19 (1st Cir. 2005), if such an impression flows from similarities as to elements that are not themselves copyrightable, it will not satisfy the predicate requirement of originality necessary to ground a finding of actionable copying. As outlined above, in this case almost all of the elements of 20-20 Design are not copyrightable, and therefore the jury should be instructed not just at the end of the case but at the outset that its evaluation of the two programs is limited to the alleged elements that survived filtration, and that all other features should be disregarded. Such an instruction is grounded in precedent, and will great facilitate the jurys consideration of a case that
8 9

20-20 has changed the color of the work area in 20-20 Design v. 6.1, which is gray, to white, the same color as ProKitchens work area. 20-20 did this in Exhibit 3 at the copyrightability hearings, in the video it attempted to put in the record following the hearing, in the exhibits is has provided for trial, and in the videos it hopes to play at trial. 9 See Dream Games of Arizona, Inc. v. PC Onsite, 561 F.3d 983, 989 (9th Cir. 2009) (Because the district court specifically identified the unprotected elements, the jury instructions fairly and sufficiently explained the theory of the case and did not misstate the law); Bateman v. Mnemonics, Inc., 79 F. 3d 1532, 1545-46 (11th Cir. 1996) (case reversed where district court instructed the jury that Altai filtration was limited to nonliteral copying, . . .. Much of the testimony of the expert witnesses dealt with the Nimmer test and its role as the proper methodology . . . it is clear that the jury was misled and did not fully understand the law of copyright relevant to this case); Harper House, Inc. v. Thomas Nelson, Inc., 889 F. 2d 197 (9th Cir. 1989) (case reversed where jury instruction encouraged the jury to put the two articles next to each other and determine whether they looked alike, not whether defendants copied protectable expression. In closing argument, counsel for Harper House asked the jury to do as (footnote continued) 13

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threatens to be highly confusing. Moreover, 20-20 should be restricted to displaying its software as it appears out of the box, without any changes or tampering. 2. The Jury Should be Instructed Not to Apply a Look and Feel or Total Concept and Feel Test in This Case

Similar to the concerns surrounding the overall similarity test, the total concept and feel and the look and feel tests are even less applicable here. 20-20 should not be permitted to base its case on these theories, either explicitly or implicitly. These principles have been universally rejected in the context of computer programs and other non-artistic works. As the district court observed in the Lotus litigation, despite its widespread use in public discourse on the copyrightability of nonliteral elements of computer programs, I have not found the look and feel concept, standing alone, to be significantly helpful in distinguishing between nonliteral elements of a computer program that are copyrightable and those that are not. Lotus Dev. Corp. v. Paperback Software Intern., 740 F. Supp. 37 (D. Mass. 1990). Nimmer states, look and feel is at most a bastardized version of total concept and feel, a copyright doctrine guiding Ninth Circuit decisions from the 1970s. Nimmer, Bernacchi & Frischling, A Structured Approach to Analyzing the Substantial Similarity of Computer Software in Copyright Infringement Cases, 20 Ariz. St. L. J. 625, 631 (1988). Case law from each circuit reflects that courts are conscious of the risk that courts or juries will confuse protectible and unprotectible elements during the comparison stage of a copyright infringement case. For example, the Ninth Circuit has made it clear that the total concept and feel test should not apply outside of the

(footnote continued from previous page) much . . . Given the extremely limited protection that Harper House's organizers receive, the jury instructions covering copyright infringement liability did not adequately distinguish between protectable and unprotectable material).

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traditional arts.

10

The Second Circuit has also recognized limitations to the total

concept and feel approach where the work consists of protectable and unprotectible elements. As the district court stated in Well-Made Toy Mfg. Corp. v. Goffa Intl Corp., 210 F. Supp. 2d 147 (E.D.N.Y. 2002), affd, 354 F.3d 112 (2nd Cir. 2003), commenting on the frequently cited Boisson v. Banian, 273 F.3d 262 (2nd Cir. 2001), Boisson seems best read as meaning that the discerning observer should distinguish between protectible and unprotectible elements, put the unprotectible elements out of mind, and determine whether the remainders of each work, taken together, are similar in total concept and feel. Id.
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But while the Ninth and Second Circuits have been willing to apply a total concept and feel test to some works, the First Circuit has never endorsed this
10

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See Cooling Systems and Flexibles, Inc. v. Stuart Radiator, Inc., 777 F. 2d 485, 493 (9th Cir. 1985) (in compilation case what is important is not whether there is substantial similarity in the total concept and feel of the works, . . . but whether the very small amount of protectible expression in Cooling Systems' catalog is substantially similar to the equivalent portions of Stuart's catalog); McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 321 (9th Cir. 1987) (Cooling Systems holding is inapplicable because the instant case involves an artistic work, while Cooling Systems involved a factual work. . . Works that are not factual receive much broader protection under the copyright laws because of the endless variations of expression available to the artist); Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 205 (9th Cir. 1989) (holding it error to give highly subjective total impact and effect jury instruction in case involving calendar organizers, which are copyrightable only as a compilation and are not infringed in the absence of bodily appropriation of expression"); Apple Computer, Inc. v. Microsoft Corp., 35 F. 3d 1435, 1446 (9th Cir. 1994) (unprotectable elements have to be identified, or filtered, before the works can be considered as a whole). See also William F. Patry, Patry on Copyright, Section 9.73 (2010) (if significant elements of a work are unprotectible, ... comparing the overall appearance of the parties' works may sweep into that consideration the unprotectible elements, thereby skewing the analysis against the defendant and in the process impermissibly expanding the scope of the plaintiffs copyright). See also Sheldon Abend Revocable Trust v. Speilberg, 2010 U.S. Dist. LEXIS 99080 (S.D.N.Y. 2010) (same); Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65 (2nd Cir. 1999) (Where the work at issue contains both protectible and unprotectible elements, the test must be "more discerning," excluding the unprotectible elements from consideration).

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approach. As the court stated in Yankee Candle Co. v. The Bridgewater Candle Co., 259 F. 3d 25, 33-34 (1st Cir. 2001), only the protected expression is relevant to an evaluation of substantial similarity . . . We first dissect the work to remove those aspects not protected by copyright. The Court further noted that there may be a qualification to the dissection test of some importance in certain cases . . . where the copyright holder claims that the copyrighted material is essentially a host of uncopyrightable individual elements that have been arranged in a unique way that qualifies them for copyright protection . . . This Court, however, has been more enthusiastic than the Second Circuit about the use of dissection analysis to disaggregate a visual work into its component elements for the purpose of removing the unprotectible elements contained within. Id. at 34.
12

The Yankee Candle statement stands as the law on analytic dissection and total concept and feel in the First Circuit. As the district court commented in Greenberg v. Town of Falmouth, 2006 U. S. Dist. LEXIS 4792 at *12, n. 2 (D. Mass. 2006), the total concept and feel test is not a proper test to use for determining if infringement has occurred; it measures the similarities to the original work in toto and does not limit itself to comparing the alleged infringing works similarity with the plaintiffs protected expression. . . . the total concept and feel test is out of step with the command of the First Circuit that, in determining whether alleged infringement has occurred, a court must only compare a plaintiffs protected expression (after

12

The Second Circuit case referenced in this quotation is Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996, 1003 (2d Cir. 1995).

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dissection) to the alleged infringing work.

13

Thus, the jury should be expressly

warned against applying total concept or feel or look and feel in this case. These principles are strongly disfavored in the First Circuit, and they have been rejected in most circuits where the work is technological or factual, and contains a combination of protectible and unprotectible elements, as is the case here.
14

To prevent the jury from following such an approach (even subconsciously), the Court should instruct the jury that only those items identified by 20-20 that survived the filtration process are relevant, and that it should not undertake a total concept and feel or look and feel approach to the comparison. Moreover, the jury should compare the two programs based on the law applicable to compilations, discussed below. C. The Elements That Survived Altai Filtration Must be Compared Under Legal Principles Applicable to Compilations and Works Subject to Narrow Copyright Protection

13

14

See also T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F. 3d 97, 112 (1st Cir. 2006) (The inquiry focuses not on every aspect of the copyrighted work, but on those "aspects of the plaintiff's work [that] are protectible under copyright laws and whether whatever copying took place appropriated those [protected] elements, quoting Johnson v. Gordon, 409 F. 3d 12 (1st Circuit 2005)); CMM Cable v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1514 (1st Cir. 1996) ( dissection analysis . . . comports with a key tenet of copyright law: [i]nfringement is shown by a substantial similarity of protectible expression, not just an overall similarity between the works. 3 Nimmer 13.03[F], at 13-124 . . . Indeed, we note that the Copyright Act itself seems to mandate the dissection of works into copyrightable and uncopyrightable elements); Flag Fables, Inc. v. Jean Ann's Country Flags and Crafts, Inc., 730 F. Supp. 1165 (D. Mass. 1990) (As a review of [Concrete Machinery Co., Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d 600 (1st Cir. 1988)] makes clear, the only substantial similarity which is legally significant is that existing between protected aspects of the plaintiff's work and conflicting elements of the defendant's design); 17 U.S.C. 103(b) (1995) (providing that copyright in compilation or derivative work extends only to material contributed by author as distinguished from preexisting material) Nimmer has even gone so far as to state that the feel of the total concept and feel test is a wholly amorphous reference which invites abdication of analysis. 4 Nimmer 13.03[A][1][c] at 13-39.

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From the outset of this case 20-20 has contended that the Second Circuits decision in Computer Assoc. Intl, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) should be controlling. The Altai test has been adopted by several circuits. See Bateman v. Mnemonics, Inc., 79 F. 3d 1532 (11th Cir. 1996); Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994); Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F. 3d 823 (10th Cir. 1993). Although Altai has not been formally endorsed by the First Circuit for cases involving non-literal elements of software, several district courts have used the abstraction - filtration - comparison test developed by the Second Circuit. See, e.g., Ilog, Inc. v. Bell Logic, LLC, 181 F. Supp. 2d 3 (D. Mass. 2002) (using Altai, but first filtering method of operation under Lotus); Maddog Software, Inc. v. Sklader, 382 F. Supp. 2d 268 (D. N.H. 2005). Accordingly, the jury should be told, at the outset, that the Court has filtered 20-20s list of 54 items, and that based on doctrines such as method of operation, merger, scenes a faire, public domain and blank forms, these items have been found to be unprotectible. 20-20 is restricted to proceeding based on the arrangement and organization of the elements it has identified (excluding methods of operation), and the jury should restrict itself to those elements. In addition to disregarding methods of operation, elements filtered out under Altai and elements not previously alleged to be infringing, the jury must be instructed to apply the virtually identical standard to the surviving elements. A compilation, or a work that is entitled to only narrow copyright protection, can be infringed only by a work that is virtually identical. See, e.g., Apple Computer, Inc. v. Microsoft Corp.,

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35 F.3d 1435, 1439 (9th Cir. 1994) (When the range of protectable and unauthorized expression is narrow, the appropriate standard for illicit copying is virtual identity). Moreover, the virtual identity test is not applied piecemeal - it must be applied to the allegedly infringed work as a whole. See Transwestern Pub. Co. v. Multimedia Mktg. Assoc., 133 F. 3d 773, 776-77 (10th Cir. 1998) (holding a compilation protectable insofar as it features original selection, arrangement or coordination of facts as they appear in a work as a whole; if we focus on the respective directories as a whole there are many differences); MiTek Holdings, Inc. v. Arce Engineering Co., Inc., 89 F. 3d 1548, 1558 (11th Cir. 1996) (software compilation, protection is limited, however, and extends only to the work as a whole); Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 205 (9th Cir. 1989) (copyright infringement of compilations consisting largely of uncopyrightable elements should not be found in the absence of bodily appropriation of expression . . . copying or unauthorized use of substantially the entire item); Schoolhouse, Inc. v. Anderson, 2000 U.S. Dist. LEXIS 22524 at *16 (D. Minn. 2000) (because the copyrightability of a factual compilation depends upon the originality in selection, coordination, or arrangement of the facts as a whole work, 17 U.S.C. 101, in an infringement action the court must compare the allegedly infringing work to the protected work as a whole); Wood v. Cendant Corp., 2006 U.S. Dist. LEXIS 18899 at
15

15

See also Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp. 616, 625 (N.D. Cal. 1993) (the critical factor in deciding whether to apply a virtual identity standard is whether the work is capable of only a narrow range of expression, not, as Apple contends, whether the work can be labeled a compilation); Concrete Machinery Co., Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir. 1988) (When the idea and its expression are not completely inseparable, there may still be only a limited number of ways of expressing the idea. In such a case, the burden of proof is heavy on the plaintiff who may have to show "near identity" between the works at issue).

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*24 (N.D. Okla. Apr. 11, 2006) (same).

16

In addition to an explanation of the Courts

ruling on filtration under Altai, the jury should be instructed on the virtual identity of the work as a whole standard. 1. Qualitative Analysis Does Not Apply to Compilations

20-20 should be precluded from arguing that some part of the compilation should be given weight based on its qualitative value, as suggested by its proposed jury instructions. While a qualitative comparison may make sense in the context of creative works at one end of the copyright spectrum, it makes no sense at the opposite end, which is occupied by functional, non-creative works such as compilations. By definition, these are protected only at the level of selection and arrangement. To provide any more protection than that would be to ignore the Supreme Courts admonition, quoted frequently by the First Circuit, that an inquiring court must focus only upon the constituent elements of the [plaintiffs] work that are original. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991). Under Feist, the only aspects of a compilation that are protected are the original
16 17

17

See 17 U.S.C. 101 (A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. ) 17 U.S.C. 101 (emphasis added); see also Jane C. Ginsburg, No Sweat? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 Colum. L. Rev. 338, 349 (1992) (Even if the compilation is deemed original, what kind of copying will be held to infringe it? The answer [after Feist] appears to be: Virtually none, short of extensive verbatim copying.). For example, Ludwig van Beethoven (assuming copyright protection) could claim that the four opening measures of his Fifth Symphony, are qualitatively important and that for this reason copying of those four measures alone constitutes infringement. William Shakespeare (assuming copyright protection) might claim that many of the lines from his plays are qualitatively important (For in that sleep of death what dreams may come when we have shuffled off this mortal coil, . . ..); and certainly Vladimir Nabokov could make such an argument (Lolita, light of my life, . . ..). However, a small component of a compilation can claim no copyright protection based on anything less than bodily appropriation substantially the entire item.

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selection and arrangement. Id. at 348. The only conceivable expression is the manner in which the compiler has selected and arranged the facts . . . [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers without infringement. Id. at 349. It is inconsistent with this principle for the creator of a compilation to claim that one of the facts, or some subset of the arrangement, is qualitatively significant, and therefore copying of that portion of the arrangement alone constitutes infringement. If only the selection and arrangement as a whole is protected by copyright law, a part of the arrangement is, by definition, not protectible. Accordingly, 20-20s argument (foreshadowed in its jury instructions) that copying of even a small part of its compilation may be qualitatively important is inconsistent with copyright law.
18

Moreover, 20-20 has not identified a

19

witness -- expert or otherwise -- who would testify to an argument of this sort.

20-20 must show virtual identity between the selection and arrangement of 20-20 Design and ProKitchen, and to do so it must show that Real View engaged in bodily appropriation of expression . . . copying or unauthorized use of substantially the entire item. Harper House, supra, 889 F.2d at 205. II. Evidentiary Issues There are numerous evidentiary issues which, if resolved before trial, will facilitate the trial of this case.

18

19

Real View anticipates that 20-20 will argue that the placement and order of its subwindows is qualitatively important. However, in the Copyright Order the Court noted that these aspects of 20-20s compilation are not individually protectable based on merger and scenes a faire . Given this ruling it would make little sense to permit 20-20 to claim that these minor aspects of its program which is comprised of over 90 separate screens and dialog boxes is qualitatively important, and that copying of the location and order of these sub-windows would, by itself, constitute infringement of the compilation as a whole. The subjective value of a particular component to 20-20 is not legally cognizable.

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A. 20-20 Has Changed the Screen Color of 20-20 Design v. 6.1 to Make it Appear Similar to ProKitchen. Real View is most troubled by the fact that 20-20 has changed the screen color of 20-20 Design v. 6.1. Real View alerted the Court to this tactic during the copyrightability hearing, and again in its post-hearing brief. (Abbott Tr. Vol. II, pp. 14-15 and Real View Post-Hearing Brief, p. 25). 20-20 did not rebut or respond to this allegation in any way. Based on its trial exhibits, 20-20 now expects to present at trial screen shots of 20-20 Design version 6.1 in which 20-20 (or its expert) have modified the background color of the work area the area that occupies more than 80% of the screen display to make 20-20 Design appear artificially similar to ProKitchen. Not only does Real View vehemently object to this, but it strongly urges the Court to hold an evidentiary hearing to explore this troubling issue. Furthermore, following the close of the copyrightability hearings 20-20 attempted to add to the record (without leave of court) a 35 minute, unauthenticated, video purporting to demonstrate an unidentified version of 20-20 Design. (Dkt. 71). Real View moved to strike this filing, one of many grounds for the motion being that 20-20 Design had been altered to present the same work-area color as Real Views ProKitchen. The Court allowed the motion to strike. (Dkt. entry 12/4/2009). Thus, 20-20 has been warned about this issue repeatedly. 20-20 changed the screen color at the copyrightability hearing, in the proposed video, and now again in its proposed trial Exhibit 8. Exhibit 8 should be excluded based on this alteration of evidence. Cf. Nimmer, 13.03[E][3][a][i] (substantial similarity may not be shown . . . by an analysis that alters the actual sequence or construction of plaintiffs work in order to achieve a juxtaposition that makes for greater similarity). Moreover, 20-20s screen shot exhibits show that 20-20 has created a complex room design, and copied it into the screen shots for both programs. This attempt to draw the jurys attention to a creation by 20-20 in the largest work area on the screen -a creation that has nothing whatsoever to do with any issue in this case -- is a

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transparent attempt to unfairly influence the jury. Any screen shot in 20-20 Design and ProKitchen that contains a design not at issue in this case should be excluded. B. The Court Should Apply the Intended Audience Standard, and Permit Expert Testimony to Assist the Jury. 20-20 Design and ProKitchen are sold to sophisticated design professionals. It is common, in cases where there is a targeted audience of this sort, to instruct the jury to compare the works at issue from the perspective of the intended audience. See, e.g., T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97 (1st Cir. 2006) (the need for expert testimony may be greater in cases involving complex subject matters where an ordinary observer may find it difficult to properly evaluate the similarity of two works without the aid of expert testimony. . . . we leave to the district court the determination of whether this may be a case in which expert testimony would be helpful on the issue of substantial similarity).
20

Moreover, the Court should permit the technical experts to assist the jury in evaluating similarity from the perspective of the intended audience, specifically users of high-end interior design CAD software. See, e.g., T-Peg, supra; Dawson v. Hinshaw Music, Inc., 905 F.2d 731, 733 (4th Cir. 1990) (inquiry [into the viewpoint of an observer with specialized expertise] may include, and no doubt in many cases will require, admission of testimony from members of the intended audience or, possibly, from those who possess expertise with reference to the tastes and perceptions of the intended audience).

20

See also Kohus v. Mariol, 328 F.3d 848 (6th Cir. 2003) (In cases where the target audience possesses specialized expertise . . . it is appropriate in such cases to consider similarity from the specialist's perspective); Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 at 713 ("In making its finding on substantial similarity with respect to computer programs, we believe that the trier of fact need not be limited by the strictures of its own lay perspective ).

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C. Expert Reports (and Expert Videos) are Not Admissible. 20-20 has marked expert reports and two expert videos (presumably prepared by Professor Davis) as exhibits. These documents are hearsay under Fed. R. Evid. 801(c), and should not be admitted as evidence. See, e.g., Ake v. General Motors Corp., 942 F.Supp. 869, 877-78 (W.D.N.Y. 1996) (excluding expert report as hearsay); Granite Partners, L.P. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2002 U.S. Dist. Lexis 7535, *19-20 (S.D.N.Y. 2003) (The written report[] of any expert expected to testify for either the [plaintiffs] or [defendant] is hereby excluded as inadmissible hearsay.). See also Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728 (6th Cir. 1994) (Rule 702 permits the admission of expert opinion testimony not opinions contained in documents prepared out of court.). 20-20 should be limited to its experts in-court testimony. D. The Court Should Restrict 20-20s Evidence of Alleged Copying to Professor Davis Affidavit Filed Immediately Prior to Commencement of the Copyrightability Hearings in 2009. 20-20 has continually attempted to expand the scope of the allegedly infringed elements in this case. Beginning with its interrogatory answers, Professor Davis Initial Report, a Rebuttal Report, an Affidavit (Dkt. 59), Exhibit 3 at the copyrightability hearing, and finally in the unauthenticated, speaker unidentified video following the hearing, 20-20 has continually added new elements to its case. If the past predicts the future, 20-20 can be expected to continue to expand its claims at trial. 20-20 should be restricted to the list of items identified in Professor Davis Affidavit (Dkt. 59). This Affidavit (82 pages in length) contains the 54 items that were the subject of the hearings, and was the only description the Court had a full opportunity to evaluate for copyrightability in the first instance. Real Views expert has not had the opportunity to respond to the additional elements 20-20 attempted to

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introduce into the case in Exhibit 3 and the video, and therefore Real View would be greatly prejudiced by new evidence and claims at trial.
21

E. The Court Should Preclude 20-20 From Adding a Claim for False Advertising at Trial. 20-20 has provided several trial exhibits that suggest it is seeking to add a claim of false advertising in this case. These exhibits relate to advertisements published by Real View after suit was filed. 20-20 never sought leave to amend its complaint to add a claim of this nature. Neither 20-20 nor Real View have any expert evidence on this issue, nor has 20-20 submitted an expert disclosure with respect to either liability or damages. This attempt to add a new claim to this case in this manner should be rejected, and the Court should exclude any evidence relating to false advertising. III. Jury Issues As discussed in detail above, this case presents a significant challenge to the prospective jury. Most jurors will likely have had experience with Microsoft Windows software and graphical user interfaces. However, unless the Court empanels a jury of copyright law experts, they will not have had experience with concepts such as literal and non-literal elements, structure, sequence and organization, scenes a faire, substantial similarity, and virtually identicality, to list just a few terms referenced in 20-20s Proposed Jury Instructions. (Dkt. 117). Real View respectfully requests that the Court take time -- perhaps more than might be typical in a civil case -- to explain the background of this litigation to the jury, describe the copyrightability hearings, and explain the holdings reached in the published Copyrightability Order. The Court should consider explaining the legal doctrines at issue, as well as the items that the jury will be asked to consider. Most importantly, the jury should be educated on the fact that it will be expected to analyze
21

20-20s Exhibit 3 buried many of its additional elements in footnotes.

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the evidence as dissected by the Court, and should not apply a look and feel or total concept and feel approach to a case where most of the similarities are due to both parties use of Microsoft Windows and standard CAD conventions. IV. 20-20 Cannot Prove Trade Dress Infringement Although 20-20 claims trade dress infringement based on the appearance of 2020 Design, it has failed to conduct a survey, failed to identify any document that supports its claim of confusion, and failed to designate an expert -- or even a lay witness -- to testify to confusion. 20-20 has also failed to clearly identify the trade dress at issue, as the First Circuit requires. See Yankee Candle, supra, 259 F.3d at 40 n. 9. Most importantly, 20-20 has failed to identify an expert to testify that its trade dress is non-functional. Yet, under a 1999 amendment to the Lanham Act, a party asserting unregistered trade dress rights has the burden of proving the absence of functionality.
22

This deficiency alone is fatal to 20-20s claim of trade dress

infringement. See The Straumann Co. v. Lifecore Biomedical Inc., 278 F. Supp. 2d 130, 134-35 (D. Mass. 2003) (holding trade dress plaintiffs experts failure to address proper legal standard to establish non-functionality grounds for summary judgment). The Court may recall that during the pretrial conference in 2009 it ordered 2020 to identify 20-20 customers (as listed on 20-20s witness list) by a date certain. Presumably, these customers would have testified to confusion. Yet, 20-20 never did so. However, it flaunted the Courts request by doing exactly the same thing the second time (pretrial in 2010) - designating witnesses as a group, not by individual name and

22

In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. 15 U.S.C. 1125(a)(3).

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address. Again the Court ordered 20-20 to identify specific witnesses within a few days, and again 20-20 did not do so. If 20-20 attempts (yet a third time) to present an unidentified witness on the issue of confusion (or any other issue), the witness should not be allowed to testify. V. 20-20s State Law Claims are Baseless on Their Face, and Further, are Preempted 20-20s state law claims are -- even before preemption -- quite bizarre. For example, 20-20 has complained about Real Views pricing structure, its license exchange program (something 20-20 does as well), the fact that Real View updates its product to follow changes to 20-20 Design, and that Real View mentions experience with 20-20 Design (among other programs) as a positive factor when advertising for employees. Next, 20-20 will complain that Real View has copied 20-20s choice of holiday baskets for its customers. Of course, these business practices are perfectly legal. 20-20 fails to understandboth as to its copyright claims and these more general business practice claims that copying is the norm, and not the exception, in the United States. It would be a startling departure from current law to suddenly prevent UPS from imitating Federal Expresss overnight hub-and-spoke delivery system; perfume companies from imitating Chanels latest fragrance, or Ford or GM from imitating Chryslers minivans. As Justice OConnor stated in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989), imitation and refinement through imitation are both necessary to invention itself and the very lifeblood of a competitive economy. Competition is not a tort. . . . Freedom to innovate, to copy, is a cornerstone of competition and operates to minimize monopoly profits. Landes & Posner, The Economic Structure of Intellectual Property Law, 23 (2003). Moreover, these claims are nothing more than 20-20s copyright claims under a different name, and therefore they are preempted by the Copyright Act. See, e.g., John

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G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26 (1st Cir. Mass. 2003) (93A claim preempted where state-law claim is the same behavior that Danielson alleged gave rise to copyright liability); Tingley Systems, Inc. v. CSC Consulting, Inc., 152 F. Supp. 2d 95 (D. Mass. 2001) (93A claim preempted by copyright law); Banxcorp v. Costco Wholesale Corp., 2010 U.S. Dist. Lexis 70380 (2010) (unfair competition claim preempted). It is worth noting that 20-20 has not even made an effort -- in its interrogatory answers, trial exhibits or witness list -- to identify evidence showing that Real View interfered with a contractual relationship. See, e.g., Storage Technology Corp. v. Custom Hardwood, 2006 U.S. Dist. LEXIS 43690 (D. Mass. 2005)(stating elements of interference claim under Massachusetts law, one of which is that plaintiff show a business relationship or contemplated contract of economic benefit). 20-20 has failed to identify any business relationship with which Real View interfered. VI. Damages Issues A key damages issue in this case is apportionment. That is, even assuming infringement, and assuming 20-20 is able to establish some profit earned by Real View based on infringing sales, the jury must apportion damages based on the presence of infringing and non-infringing elements. See Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 407-08 (1940) (apportionment used where profits of defendants film were largely attributable not to the plaintiffs pirated story but rather to the drawing power of the star performers and the artistry of others involved in the creation of the film); John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26 (1st Cir. 2003) (The case law is clear on this point: there must be a rational apportionment of profits. The division of profits between those portions attributable to the infringement and those attributable to other sources does not require mathematical exactness). As the First Circuit has emphasized, apportionment is ultimately a

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delicate exercise informed by considerations of fairness and public policy, as well as fact. Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1170 (1st Cir. 1994). The evidence at trial will show that, even assuming infringement of the drafting component of 20-20 Design, this was the least important part of the software (3D visualization and a large catalog database being by far the most important), and that any copying was trivial and de minimus. Accordingly, the jury should be permitted to apportion any profits it may find have been earned by Real View. Respectfully submitted, REAL VIEW LLC, BORIS ZELDIN AND LEONID PERLOV By their attorneys, /s/ Lee T. Gesmer . Lee T. Gesmer, BBO #190260 Joseph J. Laferrera, BBO #564572 Nancy M. Cremins, BBO #658932 Crystal L. Lyons, BBO #677931 Gesmer Updegrove LLP 40 Broad Street Boston, Massachusetts 02109 Telephone: (617) 350-6800 Facsimile: (617) 350-6878 email: lee.gesmer@gesmer.com Dated: December 1, 2010

CERTIFICATE OF SERVICE I hereby certify that on December 1, 2010, I electronically filed the foregoing with the Clerk for the United States District Court for the District of Massachusetts by using the CM/ECF system. I certify that all participants in the case are registered CM/ECT users and that service will be accomplished by the CM/ECT system. /s/ Lee T. Gesmer Lee T. Gesmer

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