real view v. 20-20 technologies (real view pretrial brief; d. mass. 2010, copyright)

8/4/2019 Real View v. 20-20 Technologies (Real View Pretrial Brief; D. Mass. 2010, copyright)

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS

__________________________________________REAL VIEW, LLC, )

)Plaintiff and Counterclaim )Defendant )

))

v. ))

20-20 TECHNOLOGIES, INC., ) CIVIL ACTION NO.) PBS-07-12157)

Defendant and Counterclaim )Plaintiff )

)BORIS ZELDIN AND LEONID PERLOV )Additional Party Defendants )in Counterclaim. )

REALVIEW LLC, BORIS ZELDIN AND LEONID PERLOVSPRETRIAL 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 newpiece of software involves coming to understand its overalllayout and presentation of information and icons, i.e., how itpresents its view of the task. The overall layout of these twoprograms is so similar that familiarity with one would instantlyprovide facility with the other. (Davis Expert Report, May 5,2009, p. 10).

Case 1:07-cv-12157-PBS Document 156 Filed 12/01/10 Page 1 of 29


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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 adifferent way for each program used. For example, if the userwanted the computer to print material, then the user would haveto learn not just one method of operating the computer such thatit 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

1See also Melville B. Nimmer and David Nimmer, Nimmer on Copyright 13.03[F]

(2008): When a particular program becomes popular, users become accustomed to acertain structure and set of features and may expect similar features and nomenclaturefrom 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 itsexpert 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 Versions2.0 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 8.1during discovery. Subject to a couple of trivial exceptions (which appear to have been

2See 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 notinfringement, particularly in the context of works that are compilations, the"substantial-similarity" test is more often correctly administered by a judge ratherthan 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 thework 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 contradictorydistinctions, is indeed a daunting task. Thus, the need for proper guidance isaccentuated and heightened in directing a jury in this area of the law [computertechnology], which may be foreign to many jurors, particularly in this rapidlychanging 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 nowidentified as trial exhibits. Therefore, Real View is unable to mount a case of non-

infringement 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. 20-

20 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 statementis 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 20-

20 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 reportsand 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

3The 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 inits Notice of Supplemental Authority (Dkt. 103), and as Real View explained indetail 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 arrangementof 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 thecategories 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 isabsolute, 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

4By 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 systematicmanner of accessing the (uncopyrightable) facts. . . . Nevertheless, the expressiveaspects of a compilation remain copyrightable. Lotus Dev. Corp. v. BorlandInt'l, Inc., 831 F.Supp. 223, 231 (D. Mass. 1993) (emphasis added). Under Lotus theselection and arrangement of facts may be protectible as a compilation, but theselection and arrangement of computer command terms are not, even if they reflectexpressive choices. 49 F.3d at 816.



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they do not, no further infringement analysis need be performed.5

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.6

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].

5The First Circuits 1995 holding in Lotus v. Borland is the law of the circuit, asubset of stare decisis. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1stCir. 2010). Where a federal appellate court states a rule as clearly as the FirstCircuit did in Lotus v. Borland, inferior courts are entitled to expect equally bluntguidance should the court wish to retract the rule or declare that it is no longergood 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 attemptto elevate it to a reversal of Lotus v. Borland is incorrect.

6See, 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 themethod of operation even the expression is not copyrightable . . . . [t]his Courttherefore begins by analyzing Bell Logic's eighteen elements in the aggregatearerules editors themselves copyrightable? If they are not, then as in Lotus, there canbe 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 menucommand hierarchy screens submitted by plaintiff as evidence of infringement aremethods of operation under Lotus. Accordingly, they are not protectableelements of the [plaintiffs] program, and [defendant] did not infringe plaintiffscopyright 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 theextent Plaintiff argues that the drop-down units menu is substantially similar, theCourt notes that the menu commands are not protected, citing Lotus ); BaystateTechnologies, 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 menucommand hierarchy were not protectable because they were the means by whichfunctions were performed and thus, constituted a "method of operation" excluded

from copyright protection); MiTek Holdings, Inc. v. Arce Engineering Co., Inc., 89F. 3d 1548, 1557 (11th Circuit 1996) (We agree with the conclusion reached by thedistrict court that the ACES menu and submenu command tree structure isuncopyrightable under 17 U.S.C. 102(b)). Compare Mitel, Inc. v. Iqtel, Inc., 124F.3d 1366 (10th Cir. 1997) (We conclude that although an element of a work maybe characterized as a method of operation, that element may nevertheless containexpression that is eligible for copyright protection . . . . [t]hus, we decline to adoptthe 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 Lookand Feel and Total Concept and Feel Should Not Apply in ThisCase

1. The Appearance of 20-20 Design is Determined by theStandard 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 functionalpurpose), 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 Windowsprograms. 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.7

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

7Real View respectfully suggests that the Court reconsider its holding that dialogboxes are protectable under copyright law. The Court recognized that the buttonsin dialog boxes are methods of operation under Lotus v. Borland. However, dialogboxes also are standard interface elements in Windows software. The range of expression is extremely narrow. It is doubtful that any programmer has worried thatthe creation of a dialog box which is assembled in an automated manner (dragand drop) out of pre-existing, standard components provided by Microsoft -- mightconstitute copyright infringement. To inject such a suggestion into the softwareindustry today has the potential to be harmful to the industry. Moreover, no courthas ever held a Windows dialog box infringing. The Sixth Circuits observations inRoss, 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 lookedat LawMode's and Lexis's dialog boxes would have a hard time telling the twoproducts apart. . . . [However] these similarities result from both Lexis's andLawMode's using HotDocs as the authoring tool. . . . Choosing the default settingon an underlying authoring tool is not sufficiently creative to warrant copyrightprotection.

A user who looks at 20-20 and Real Views dialog boxes would find themindistinguishable under the spontaneous and immediate test often used for non-technological 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 originalityor 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,9

and will great facilitate the jurys consideration of a case that

820-20 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 thecopyrightability hearings, in the video it attempted to put in the record following thehearing, in the exhibits is has provided for trial, and in the videos it hopes to play attrial.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 juryinstructions fairly and sufficiently explained the theory of the case and did not misstatethe 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 tononliteral copying, . . .. Much of the testimony of the expert witnesses dealt with theNimmer test and its role as the proper methodology . . . it is clear that the jury wasmisled and did not fully understand the law of copyright relevant to this case); HarperHouse, 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 anddetermine whether they looked alike, not whether defendants copied protectableexpression. In closing argument, counsel for Harper House asked the jury to do as(footnote continued)



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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 andFeel 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 organizersreceive, the jury instructions covering copyright infringement liability did notadequately 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.11

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

10See 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 issubstantial similarity in the total concept and feel of the works, . . . but whether thevery small amount of protectible expression in Cooling Systems' catalog issubstantially 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 isinapplicable because the instant case involves an artistic work, while Cooling

Systems involved a factual work. . . Works that are not factual receive muchbroader protection under the copyright laws because of the endless variations of expression available to the artist); Harper House, Inc. v. Thomas Nelson, Inc., 889F.2d 197, 205 (9th Cir. 1989) (holding it error to give highly subjective totalimpact and effect jury instruction in case involving calendar organizers, which arecopyrightable only as a compilation and are not infringed in the absence of bodilyappropriation of expression"); Apple Computer, Inc. v. Microsoft Corp., 35 F. 3d1435, 1446 (9th Cir. 1994) (unprotectable elements have to be identified, orfiltered, 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 areunprotectible, ... comparing the overall appearance of the parties' works may sweepinto that consideration the unprotectible elements, thereby skewing the analysisagainst the defendant and in the process impermissibly expanding the scope of theplaintiffs copyright).

11See also Sheldon Abend Revocable Trust v. Speilberg, 2010 U.S. Dist. LEXIS99080 (S.D.N.Y. 2010) (same); Nihon Keizai Shimbun, Inc. v. Comline BusinessData, Inc., 166 F.3d 65 (2nd Cir. 1999) (Where the work at issue contains bothprotectible and unprotectible elements, the test must be "more discerning," excludingthe 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 aqualification 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

12The 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 ComparedUnder Legal Principles Applicable to Compilations and WorksSubject to Narrow Copyright Protection

13See 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 andwhether whatever copying took place appropriated those [protected] elements,quoting Johnson v. Gordon, 409 F. 3d 12 (1st Circuit 2005)); CMM Cable v. OceanCoast 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 asubstantial similarity of protectible expression, not just an overall similarity betweenthe works. 3 Nimmer 13.03[F], at 13-124 . . . Indeed, we note that the CopyrightAct itself seems to mandate the dissection of works into copyrightable anduncopyrightable elements); Flag Fables, Inc. v. Jean Ann's Country Flags andCrafts, Inc., 730 F. Supp. 1165 (D. Mass. 1990) (As a review of [ConcreteMachinery 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 thatexisting 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 incompilation or derivative work extends only to material contributed by author asdistinguished from preexisting material)

14Nimmer has even gone so far as to state that the feel of the total concept andfeel 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).15

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

15See 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 iswhether the work is capable of only a narrow range of expression, not, as Applecontends, whether the work can be labeled a compilation); Concrete MachineryCo., 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 beonly 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 theworks 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 Compilations20-20 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,17

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

See 17 U.S.C. 101 (A compilation is a work formed by the collection andassembling of preexisting materials or of data that are selected, coordinated, orarranged in such a way that the resulting work as a whole constitutes an originalwork of authorship. ) 17 U.S.C. 101 (emphasis added); see also Jane C.Ginsburg, No Sweat? Copyright and Other Protection of Works of InformationAfter Feist v. Rural Telephone, 92 Colum. L. Rev. 338, 349 (1992) (Even if thecompilation 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 verbatimcopying.).

17For example, Ludwig van Beethoven (assuming copyright protection) could claimthat the four opening measures of his Fifth Symphony, are qualitatively important

and that for this reason copying of those four measures alone constitutesinfringement. William Shakespeare (assuming copyright protection) might claimthat many of the lines from his plays are qualitatively important (For in that sleepof 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 mylife, . . ..). However, a small component of a compilation can claim no copyrightprotection based on anything less than bodily appropriation substantially theentire 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 withthis 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

witness -- expert or otherwise -- who would testify to an argument of this sort.19

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.

18Real View anticipates that 20-20 will argue that the placement and order of its sub-windows is qualitatively important. However, in the Copyright Order the Courtnoted that these aspects of 20-20s compilation are not individually protectablebased on merger and scenes a faire . Given this ruling it would make little sense topermit 20-20 to claim that these minor aspects of its program which is comprisedof over 90 separate screens and dialog boxes is qualitatively important, and thatcopying of the location and order of these sub-windows would, by itself, constituteinfringement of the compilation as a whole.

19The 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. (AbbottTr. 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 soldto 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).

20See also Kohus v. Mariol, 328 F.3d 848 (6th Cir. 2003) (In cases where the targetaudience possesses specialized expertise . . . it is appropriate in such cases toconsider 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 respectto computer programs, we believe that the trier of fact need not be limited by thestrictures 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., 942F.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 itemsthat 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 isseeking 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 legaldoctrines 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

2120-20s 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 InfringementAlthough 20-20 claims trade dress infringement based on the appearance of 20-

20 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 20-

20 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

22In a civil action for trade dress infringement under this chapter for trade dress notregistered on the principal register, the person who asserts trade dress protection hasthe burden of proving that the matter sought to be protected is not functional. 15U.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 imitatingFederal 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 rationalapportionment 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 thedrafting 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.

Dated: December 1, 2010

Respectfully submitted,

REAL VIEW LLC, BORIS ZELDINAND LEONID PERLOV

By their attorneys,

/s/ Lee T. Gesmer .Lee T. Gesmer, BBO #190260Joseph J. Laferrera, BBO #564572Nancy M. Cremins, BBO #658932Crystal L. Lyons, BBO #677931Gesmer Updegrove LLP

40 Broad StreetBoston, Massachusetts 02109Telephone: (617) 350-6800Facsimile: (617) 350-6878email: [email protected]

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 byusing the CM/ECF system. I certify that all participants in the case are registeredCM/ECT users and that service will be accomplished by the CM/ECT system.

/s/ Lee T. GesmerLee T. Gesmer


real view v. 20-20 technologies (real view pretrial brief; d. mass. 2010, copyright)

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