In this age of increasingly aggressive use of intellectual property laws to try to take control over anything a competitor does in the name of competition, it's good to see at least a few judges pushing back. William Patry points us to a fascinating (and somewhat surprising) decision from a Massachusetts district court, involving two firms that produce workplace training manuals full of platitudes about management styles and concepts. One firm accused the other of stealing its ideas in creating its manuals. In fact, the second company was made up of ex-employees from the first company, and they admit to using what they learned at the first company in producing their own manual. However, the judge eloquently points out that these vapid concepts are not protected by copyright
"These works 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. While the workbooks' vague character may serve SMS well in the marketplace where it meets the demands of clients in different industries, they lack the “incident” that Judge Hand described as essential for differentiating the works from the underlying ideas. To the extent that the works contain expression, they are largely noncopyrightable because they are devoted to describing a process or because they are not original....
At their creative zenith, these works translate common-sense communication skills into platitudinal business speak. One engaged in the industry might refer to the practice as jargonization. When an noncopyrightable idea is cloaked in a neologism such as "innovision," copyright law permits protection over the cloak, but not the concept or the process it describes."
The judge also notes that it is not illegal for the second firm to have based its work on the first firm's work, since it was not violating its copyright, but merely using the general and unprotected concepts to market its own, different, work:
"[A] defendant may legitimately avoid infringement by intentionally making sufficient changes in a work which would otherwise be regarded as substantially similar to that of the plaintiff's."
For example, presuming Shakespeare's poetry was subject to copyright, an aspiring poet might purchase a collection of his sonnets and select one to serve as the inspiration for her own poem. She might select Sonnet 18 and attempt to emulate the poem's depiction of unwavering beauty by borrowing his iambic pentameter and even a word or short phrase, fully intending to write a poem that will usurp the Bard's virtual monopoly on romantic sonnets and win fame and fortune for herself in the process. The aspiring poet's motives are of no moment so long as the final product is not substantially similar to the original.
In this case, the Court has already found that, like the aspiring poet, Harwood and Moore used SMS's works to create ASP's. Even if they smuggled copies of SMS's programs and poured over them, redlining and rewriting, such "intentional dissimilarity" is permissible."
This is an excellent reminder for those who seem to think that merely using the general concepts of someone else's work to create your own is somehow a violation of their IP rights. Competition in the marketplace is a good thing -- and some of that competition is always going to come from firms copying what the other has done and trying to improve on it. Limiting that competition hurts markets and hurts consumers.