| Brown Bag Software v. Symantec Corp | |
|---|---|
| Court | United States Court of Appeals for the Ninth Circuit |
| Full case name | Brown Bag Software, a California Corporation, Formerly Telemarketing Resources, Inc. v. Symantec Corp., a California Corporation John L. Friend, an Individual and Dba Softworks Development, 960 F.2d 1465 (9th Cir. 1992) |
| Decided | April 7, 1992 |
| Citation(s) | 960 F. 2d 1465 - Court of Appeals, 9th Circuit 1992 |
| Court membership | |
| Judge(s) sitting | Joseph Tyree Sneed III, Thomas Tang, David R. Thompson |
| Keywords | |
| Copyright Infringement, substantial similarity | |
Brown Bag Software v. Symantec Corp. is an intellectual property law case in which the United States Court of Appeals for the Ninth Circuit affirmed-in-part and vacated-in-part the previous ruling of the United States District Court for the Northern District of California. Brown Bag Software sued Symantec Corporation and John L. Friend, an individual software developer for Softworks Development, for copyright infringement and several state law claims regarding the similarity of Symantec Corporation's and Brown Bag Software's computer outlining programs.
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The District Court rejected Brown Bag Software's copyright infringement claims and the Ninth Circuit Court of Appeals affirmed these rulings. The Ninth Circuit Court of Appeals noted the lack of a decision regarding Brown Bag's state law claims and returned the case back to the District Court for a ruling. The District Court later rejected Brown Bag's state law claims, finalizing all claims in this case.
- 2Court Decision by the Ninth Circuit
Background[edit]
John L. Friend was an independent computer program developer for Softworks Development. Friend was inspired by Symantec's original ThinkTank outlining program and created his own outlining program called PC-Outline.[1]
In 1987, Friend sold ownership of PC-Outline's intellectual property to Brown Bag Software under two stipulations. First, Friend could not develop a program that would infringe Brown Bag's newly acquired copyright of PC-Outline. Second, Friend had a non-exclusive right to use several pages of PC-Outline's source code.
In the same year, Friend developed and sold another outlining program called GrandView to Symantec. Symantec rebranded this acquisition as an upgrade to its computer outlining programs, ThinkTank and MORE.
On June 8, 1988, Brown Bag Software sued Symantec in federal district court for infringing Brown Bag's copyright and trademark rights.[2] Brown Bag alleged that Symantec and Friend copied several of PC-Outline's features including: basic computer GUI concepts, the idea of an outlining program, the use of pull-down windows, and the color scheme of the program. Furthermore, Brown Bag alleged that Symantec had falsely advertised its GrandView program as an upgrade over Brown Bag's PC-Outline program.
Court Decision by the Ninth Circuit[edit]
Access of Trade Secrets Divulged in Discovery[edit]
A protective order was issued on behalf of Symantec Corp to limit Brown Bag's in-house counsel from accessing any trade secrets divulged in discovery.[1] Symantec claimed that access to these trade secrets, which included source code, developmental plans, and beta tester information, were an undue burden. The magistrate issued the order after concluding that Brown Bag's counsel's employment would 'necessarily entail advising employers in relating to Symantec's trade secrets'.[1]
Brown Bag claimed that the magistrate who issued the order failed to perform a factual inquiry before issuing the protective order. The Court reviewed the records and found that the magistrate had performed comprehensive hearing with both parties before issuing the protective order. The Court made note that the magistrate had also allowed Brown Bag to indirectly interpret the trade secrets deemed 'attorneys eyes only' through an independent consultant and ask for unhindered access to any documents it deemed necessary on a document-by-document basis.[3] The Court viewed this as good reason for a protective order, and upheld the magistrate's decision.
Copyright Infringement Claim[edit]
The Court also upheld the district court's summary judgement of the copyright infringement claims in favor of Symantec.[1] From an affidavit written by computer expert Ronald Ogg, the district court identified five groups of features that Brown Bag thought was infringing their copyright:
- Concepts fundamental to a host of computer programs
- The idea of an outlining program
- The use of pull-down windows
- The color scheme used by PC-Outline
- The set of features similar to PC-Outline
The Court ruled that the first four groups of features are either unprotectable by copyright law as they were ideas or concepts essential to general outliners, or not substantially similar between the two programs. The Court also agreed with the district court that the set of features posing any resemblance to PC-Outline was due to Friend's right to exercise his non-exclusive license to the source code of PC-Outline.
Substantial similarity analysis[edit]
Brown Bag claimed that the district court did not properly perform legal analysis by using analytical dissection in the intrinsic test for the test of substantial similarity.[1] Although application of 'analytical dissection and expert testimony is inappropriate for intrinsic tests,' analytical and expert testimony is appropriate for extrinsic tests.[3] The Court rejected Brown Bag's contention, noting that extrinsic tests have expanded to utilize analytical dissection 'as a tool for comparing not only ideas but also expression.'[1]
The intrinsic test can only be applied to the examination of protectable expression.[3] The Court cites Data East USA, Inc. v. Epyx, Inc. to back this claim, noting that 'the source of the similarity must be identified and a determination made as to whether this source is covered by plaintiff's copyright.'[1] Instead of using analytical dissection for substantial similarity, the district court used analytical dissection to identify which elements were protectable.[4][5] The Court deemed the analytical dissection of copyrighted elements necessary to determine the scope of Brown Bag's copyright. The intrinsic tests were performed only after filtering out unprotectable elements and made no use of analytical dissection and expert testimony.
Trademark claim[edit]
The Court believed that the district court attempted to dispose all of Brown Bag's federal claims (copyright and trademark), but the District Court failed to explicitly state a decision regarding the claim that Symantec infringed trademark rights under the Lanham Act.[1] The Court could not make a new ruling and returned the case back to district court for a clarified decision.
Significance[edit]
The Ninth Circuit established that analytical dissection could be used for substantial similarity of expression of user interfaces and carefully worded their opinion such that it applies to all subject matters.[3] Furthermore, the Ninth Circuit established that analytical dissection could be used to separate protectable forms of expression from the unprotectable ones. The Ninth Circuit made a clear distinction between the analytical dissection used for the extrinsic tests and the analytical dissection used for copyright analysis.[1]
References[edit]
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- ^ abcdefghiBrown Bag Software v. Symantec Corp., U.S. 960 F.2d 1465 (1992).
- ^Hastings Communications and Entertainment Law Journal (Comm/Ent), Vol. 15, Issue 3 (1992-1993), pp. 571-604 Russo, Jack; Nafziger, Jamie 15 Hastings Comm. & Ent. L.J. 571 (1992-1993)
- ^ abcdUniversity of Puget Sound Law Review, Vol. 16, Issue 1 (Fall 1992), pp. 319-372 Bierman, Ellen M. 16 U. Puget Sound L. Rev. 319 (1992-1993)
- ^Apple Computer, Inc. v. Microsoft Corp., U.S. 35 F.3d 1435 (1994).
- ^Jeffrey Kouf v. Walt Disney Pictures & Television, U.S. 16 F.3d 1042 (1994).
Why employers might want to offer brown bag lunches
Brown bag lunches or lunch and learns provide an opportunity to develop employees' knowledge and pique their interest in opportunities to learn. They are an opportunity for employees to gather at lunchtime to share information about topics of interest. They are a fun, motivating approach to sharing information.
The original concept of brown bag lunches referred to the brown paper sacks that employees might pack for their lunch at work. Of course, brown bag lunches are rare these days as technology has far outstripped the traditional bag.
And, employees can dash to grab fast food in minutes before the lunch, so times have changed. But, the brown bag lunches haven't changed. Employees share knowledge. They might also provide an opportunity for an outside presenter to bring knowledge that employees want to learn into the company.
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Brown bag lunches are also a way to demonstrate the company's commitment to providing a healthy, value-based, motivational work environment.
Here's more about why you might want to offer brown bag lunches or lunch and learns.
Brown bag lunches are developed to:
- enhance employee learning about topics that are ancillary to work topics, but you do help them to keep on learning,
- develop employee knowledge about life skills, the world, in general, and other topics of interest,
- provide an informal reason for employees to gather to enhance teamwork and company values,
- raise employees' level of engagement and motivation at work by providing onsite education, and
- recognize that any continuous learning experience enhances an employee's knowledge and ability to contribute to the successful serving of your customers—your fundamental reason for existing.
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Topic Ideas for Brown Bag Lunches
The goal of brown bag lunches, or lunch and learns, as the meeting is sometimes called, is to enhance the skills, knowledge, thinking, and learning abilities of employees. They are provided in a relaxing, informal environment that employees appreciate learning something new and interesting.
But, even more importantly, brown bag lunches are an opportunity to build teamwork and a positive work culture or environment for employees.
Thus, topics for brown bag lunches are as far ranging as the creativity and imagination of your employees. Brown bag lunches are presented by your internal employees or by external resources, as needed. They can include something as simple as an employee sharing slides and videos of his trip to Australia or hiking the Grand Canyon.
Employees may want to hear about opportunities for volunteering in their community that the community relations committee has pulled together for them. These may include brief presentations by people who work in the volunteer organization.
They may also contain training in an employee's favorite hobby like the secret to great beer making or how to make candles and soaps. One company teaches employees how to pick locks.
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They can allow employees who have attended a conference or training the chance to share the highlights for other employees who did not attend. This can include lean operations, six sigma, a new approach to marketing, and how to delight customers.
They can help raise employee awareness in the functions of the company's product and/or service. All of these ideas client companies have implemented.
Specific Suggested Topics
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These are topic ideas for brown bag lunches.
- Options for 401(k) investments
- How to take advantage of the employer's benefits company advice/counseling
- Slideshow from an employee's trip to India
- How to play poker
- How to talk, so people listen
- Techniques of speed reading
- Time management tips
- How to accelerate baby's learning
- Fun places to visit in the local community
- How to adapt a regular recipe for a slow cooker version
- Productivity apps for various browsers, smartphones, or the Apple iPad
- How to select hardware for streaming movies and videos
- Considerations in writing a will and estate planning
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- Tips for baking great bread
- Community childcare options
- What to pack in holiday gift baskets for needy members of the community
- Stress management tips
- Mastering email overload in an organized, helpful fashion
- Tips about getting the most out of Microsoft Windows and Word
- The operations, functions, and contributions of any department in the company
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Use your company activity, culture, wellness, or employee morale committee to schedule brown bag lunches as an opportunity to show employees that you care about them, the quality of their lives, and their ongoing learning for the success of your customers. Plus? Do them because they're fun.