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Communication Protocols for Fireworks Are Not Copyrightable

Posted by James Juo | Jul 06, 2022 | 0 Comments

“It is axiomatic that copyright does not protect ideas, but only expressions of ideas.” Whelan Assocs., Inc. v. Jaslow Dental Lab'y, Inc., 797 F.2d 1222, 1234 (3d Cir. 1986); see also Mazer v. Stein, 347 U.S. 201, 217 (1954). The line between uncopyrightable idea and copyrightable expression can be difficult to draw, especially for utilitarian works. If something is the sole way to perform the function, it is an uncopyrightable idea. Apple Comput., Inc. v. Franklin Comput. Corp., 714 F.2d 1240, 1253 (3d Cir. 1983); see also Dymow v. Bolton, 11 F.2d 980 (2d Cir. 1926)). “[T]he line between idea and expression may be drawn with reference to the end sought to be achieved by the work in question.” Whelan, 797 F.2d at 1248 (noting that a work's idea is its “purpose or function”).

Fireworks Litigation

The Third Circuit recently held that a digital communication protocol used to control firework displays was uncopyrightable in Pyrotechnics Management, Inc. v. fireTEK, No. 21-1695, 2022 WL 2336477 (3d. Cir. Jun. 29, 2022).

Pyrotechnics used a proprietary protocol to communicate with and control a field module that would ignite a particular firework. The protocol enabled Pyrotechnics to control complex fireworks displays which could involve tens or hundreds of such field modules.

A competitor, fireTEK, reverse-engineered Pyrotechnics's communication protocol and developed a router with interoperability that could control Pyrotechnics's field modules.

The Western District of Pennsylvania had issued a preliminary injunction against fireTEK from selling a router that used Pyrotechnics's communication protocol based on Pyrotechnics's copyright registration for its protocol.

Pyrotechnics's Copyright Registration

The Deposit Copy submitted to the Copyright Office for Pyrotechnics's communication protocol included three components: (1) a custom digital message format; (2) specified individual messages that conform to the format and communicate specific information; and (3) a transmission scheme that describes how an individual digital message is converted into an analog signal that can be sent over the wires that connect the control panel and field module.

The Deposit Copy stated that each digital message used a twelve-byte format, where the first two bytes of each message were “header bytes” with synchronization information, and the last byte of each message was a “cyclic redundancy check,” whose value is calculated based on the values of the other eleven bytes. There was no dispute that the synchronization header bytes and cyclic redundancy check bytes were standard communication practices. The digital message format provides rules for constructing messages with particular meanings, and individual messages are generated by applying those rules mechanically.

When determining copyrightability, we cannot consider elements of Pyrotechnics's protocol related to the transmission scheme: the use of FSK modulation, the selection of non-standard frequencies, or the duration of each bit (the data rate). These elements constitute a “method of operation” ineligible for copyright.

The Deposit Copy did not include software such as source code or object code, or any digital message verbatim. “Instead, the Deposit Copy reads like a manual, instructing a user how to generate digital messages—and convert those digital messages to analog signals—that Pyrotechnics's control panel and field module can send and understand.”

Digital Message Format

Citing Southco, Inc. v. Kanebridge, 390 F.3d 276, 282 (3d Cir. 2004) (en banc), the Third Circuit held that Pyrotechnics's digital message format was analogous to a part-numbering system. As such, it was an uncopyrightable idea.

[T]he protocol enables Pyrotechnics's control panel and field module to communicate with each other. . . . Under Whelan, this communicative purpose is also the protocol's idea.

Moreover, the digital message format is an essential part of this idea. Pyrotechnics admits that there is no way for the control panel to communicate with the field module without using the digital message format. Because there are no other “means of achieving the [protocol's] desired purpose” of communicating with the devices, the digital message format must be part of the uncopyrightable idea and not a protectable expression. See Whelan, 797 F.2d at 1236.

Individual Digital Messages

As for the copyrightability of the individual digital messages in the Deposit Copy for Pyrotechnics's copyright registration, like part numbers that lack even a spark of creativity, “[t]he digital message format provides rules for constructing messages with particular meanings, and individual messages are generated by applying those rules mechanically.” Even setting aside the “mechanical way” of generating the digital messages, numeric “codes” similar to Pyrotechnics's digital messages lack the originality necessary for copyright protection. See Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1368, 1373 (10th Cir. 1997) (finding a company's set of over sixty four-digit numeric “command codes,” in which particular digits indicated particular functions, “largely unoriginal” because the company's “arbitrary selection of . . . numbers required de minimis creative effort”); Toro Co. v. R & R Products Co., 787 F.2d 1208, 1213 (8th Cir. 1986) (finding manufacturer's part numbering system “lacks the requisite originality” because numbers are “arbitrarily assign[ed] to a particular . . . part”).

The Third Circuit vacated the injunction, holding that “Pyrotechnics's digital message format is an uncopyrightable idea and the individual digital messages described in the Deposit Copy are insufficiently original to qualify for copyright protection.”

The attorneys at Thomas P. Howard, LLC litigate cases nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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