Intellectual Property Directions

In “Why Can’t the English [teach their children how to speak]?” Henry Higgins observes that the French don’t care what they say “as long as they pronounce it properly”. So too, when it comes to copyrights it seems it doesn’t matter if the content has any value… as long as you use your own words. No matter that the works in question “exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid — hundreds of pages filled with generalizations, platitudes, and observations of the obvious.”, they still deserve copyright protection.

In a recent court case that might best be called a marketing Pyrrhic victory, the consultants at Situation Management Systems overturned their earlier loss in a copyright battle to protect their “aggressively vapid” but copyrighted training manuals. In a nutshell, two former employees set up a competing consulting business for which they produced 3 training manuals, running to hundreds of pages of copy, in a matter of weeks. Not surprisingly the manuals bore certain similarities to the SMS’s manuals - after all, these employees had worked on the originals.

In the original decision, the judge apparently misapplied two key infringement considerations when he dismissed SMS’s suit. But in doing so he lambasted the quality of the material in the manuals, pointing out what many engineers I know already feel about consultants - that consultants often provide cookie cutter solutions that include nothing actionable.

The Appeals Court clarified the tests for what material is subject to copyrighting and what constitutes infringement. First, the material you want to copyright must be original to you. But original in this context only means that you did not copy the tangible expression of the material from other sources. You are perfectly free to see a photograph of Hancock tower from across the Charles River and hike over to Cambridge to capture a similar image. Artistically unoriginal, copyrightably original.

Second, while a process or idea is NOT copyrightable, the expression of the idea or process is. In the present case, for example, the process (or steps) that a individual can take to gain consensus for a new idea within an organization is not, per se, subject to copyright, but the way you describe those steps, the words you use, certainly are. The “business methods patent” controversy at least in part comes about because of this copyright limitation - but let’s not go there now.

Because the judge in the original case erroneously threw out most of SMS’s material as not subject to copyright before ruling on infringement, the Appeals Court has overturned his non-infringement decision and sent the case back down.

SMS is now in the situation of going back to court to say, like Henry Higgins’s French, “our manuals may be filled with platitudes… but the expression of those platitudes is ours alone.” Even if they win an infringement ruling this time around I don’t think any of their marketing materials are going to point to this victory.