Petition for Writ of Certiorari — NLFC, Inc. v. Devcom Mid-America, Inc.

Supreme Court brief1995

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Supreme Court, U.S.

FiL BD

\\) 94170 SapR 181995

No. OFRAICE OF THE CLERK.

In the

Supreme Court of the United Staies

October Term, 1994

NLFC, Inc.,

Petitioner,

vs.

Devcom Mid-America, Inc.,

Respondent.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

Petition for Writ of Certiorari

Peter S. Vogel*

Stacy R. Obenhaus

John E. Castafieda

GARDERE & WYNNE, L.L.P.

3000 Thanksgiving Tower

Dallas, Texas 75201

(214) 999-3000

Attorneys for Petitioner

*Counsel of Record

QUESTIONS PRESENTED

This case arises from NLFC’s claim against Devcom

for copyright infringement. NLFC contends that Devcom

infringed the copyright in a computer software program

NLFC owned. Devcom printed on its own computers the

source code of that NLFC software. The district court

granted a summary judgment in favor of Devcom, and the

court of appeals affirmed, holding that Devcom’s action

did not constitute "copying" under the Copyright Act.

‘ Did the court of appeals err in affirming the district

court’s summary judgment ruling that a party’s printing of

a physical copy of the source code of a computer software

program does not constitute "copying" that would support

a claim of copyright infringement?

2. Did the court of appeals err in construing a local

rule of the Northern District of Illinois in such a way as to

obviate the standards of rule 56 of the Federal Rules of

Civil Procedure, thereby improperly allowing a party to

obtain a summary judgment essentially by default?

LIST OF PARTIES

The following is a list of all parties to the

proceeding in the United States Court of Appeals for the

Seventh Circuit, whose judgment is sought to be reviewed:

| Petitioner: |. NLFC, Inc.

Respondent: Devcom Mid-America, Inc.

Neither party has parent companies or subsidiaries within

the meaning of Supreme Court Rule 29.1.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc.,

477 UB. 202 CIS) oc ccc sscesces

Celotex Corp. v. Catrett,

MTT Sd BAT COED 6 haces auadces

Frazier v. Heebe, 482 U.S. 641 (1987)

Henry v. Gill Indus., Inc.,

983 F.2d 943, 949 (9th Cir. 1993) ...

Hibernia Nat'l Bank v. Administracion

Central Sociedad Anonima, 776 F.2d,

vag Mrs, Fi oe AR. .) re

ISC-Bunker Ramo Corp. v. Altech, Inc.,

765 F. Supp. 1310, 1332

Ce eo Seer rer reer ee

MAI Systems Corp. v. Peak Computer, Inc.,

991 F.2d 511, 518 (9th Cir. 1993),

cert. dismissed, 114 S. Ct. 671 (1994) .

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574,

re fi Peeererer Ter Tiree

Midway Mfg. Co. v. Strohon,

564 F. Supp. 741 (N.D. Ill. 1983) ...

NLFC, Inc. v. Devcom Mid-America, Inc.,

By Pam Bee CF CH. BIS) ove cic cncevcs 2, 11,13

Rules and Statutes

17 U.S.C.A. § 101 (West 1977 & Supp. 1995) .... 3, 12

17 U.S.C.A. § 106(1) (West 1977 & Supp. 1995) . . 3, 1(

17 U.S.C.A. § 501(a) (West Supp. 1995) .......... :

23 USCA. § 1254 (West 1993) 2.2.0... 02. ce aes Z

28 U.S.C. § 1331, 1338(a) (West 1995) ........... 7

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No.

In the

Supreme Court of the United States

October Term, 1994

NLFC, Inc.,

Petitioner,

VS.

Devcom Mid-America, Inc.,

Respondent.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

TO THE UNITED STATES SUPREME COURT:

Pursuant to 28 U.S.C. § 1254, NLFC, Inc., asks this

Court to issue a writ of certiorari to review the dpinion

issued on January 19, 1995 by the United States Court of

Appeals for the Seventh Circuit.

OPINIONS AND JUDGMENTS BELOW

Petitioner has reproduced in a separate appendix

the opinions issued by the courts below, as follows:

NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231 (7th

Cir. 1995) (court of appeals’ decision)

NLFC, Inc. v. Devcom Mid-America, Inc., No. 93 C 0609

(N.D. Ill. Feb. 3, 1994) (district court’s judgment)

NLFC, Inc. v. Devcom Mid-America, Inc., No. 93 C 0609

(N.D. Ill. Jan. 4, 1994) (district court’s order)

NLFC, Inc. v. Devcom Mid-America, Inc., No. 93 C 0609

(N.D. Ill. Nov. 16, 1993) (magistrate’s recommendation)

JURISDICTION

The court of appeals issued its opinion January 19,

1995. Pursuant to 28 U.S.C. § 1254(1) (West 1993), this

Court has jurisdiction to review the decision of the court

of appeals.

STATUTES INVOLVED

17 U.S.C.A. § 101 (West Supp. 1995):

"Copies" are material objects, other than phono-

records, in which a work is fixed by any method now know

or later developed, and from which the work can be per-

ceived, re-produced, or otherwise communicated, either

directly or with the aid of a machine or device. The term

“copies” includes the material object, other than a phono-

record, in which the work is first fixed.

17 U.S.C.A. § 106(1) (West 1977 & Supp. 1995):

Subject to sections 107 through 120, the owner of

to authorize any of the following:

(1) to reproduce the copyrighted work in copies or

phonorecords; .. .

17 U.S.C.A. § 501(a) (West Supp. 1995):

Anyone who violates any of the exclusive rights of

the copyright owner as provided by sections 106 through

118 or of the author as provided in section 106A(a), or

who imports copies or phonorecords into the United

States in violation of section 602, is an infringer of the

Fed. R. Civ. P. 56(c):

be served at least 10 days before the time fixed for the

hearing. The adverse party prior to the day of hearing

may serve opposing affidavits. The judgment sought shall

be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. A summary

judgment, interlocutory in character, may be rendered on

the issue of liability alone although there is a genuine issue

as to the amount of damages.

Fed. R. Civ. P. 83:

Each district court by action of a majority of the judges

thereof may from time to time, after giving appropriate

public notice and an opportunity to comment, make and

amend rules governing its practice not inconsistent with

these rules. A local rule so adopted shall take effect upon

the date specified by the district court and shall remain in

effect unless amended by the district court or abrogated by

the judicial council of the circuit in which the district is

located. Copies of rules and amendments so made by any

district court shall upon their promulgation be furnished to

the judicial council and the Administrative Office of the

United States Courts and be made available to the public.

In all cases not provided for by rule, the district judges and

magistrates may regulate their practice in any manner not

inconsistent with these rules or those of the district in

which they act.

Northern District of [linois Local Rule 12(M), (N):

M. Motions for summary judgment; moving party. With

each motion for summary judgment filed pursuant to

F.R.Civ.P. 56 the moving party shall serve and file —

(1) any affidavits and other materials referred to in

F.R.Civ.P. 56(e);

(2) a supporting memorandum of law;

(3) a statement of material facts as to which the

moving party contends there is no genuine issue

and that entitle the moving party to a judgment as

a matter of law, and that also includes:

(a) a description of the parties, and

(b) all facts supporting venue and jurisdiction in

this court.

The statement referred to in (3) shall consist of short

numbered paragraphs, including within each paragraph

specific references to the affidavits, parts of the record,

and other supporting materials relied upon to support the

facts set forth in that paragraph. Failure to submit such a

statement constitutes grounds for denial of the motion.

If additional material facts are submitted by the opposing

party pursuant to section N of this rule, the moving party

may submit a concise reply in the form prescribed in

section N for a response. All material facts set forth in

the statement filed pursuant to section N(3)(b) will be

deemed admitted unless controverted by the statement of

the moving party.

N. Motions for summary judgment; opposing party. Each

party opposing a motion filed pursuant to F.R.Civ.P. 56

shall serve and file—

(1) any opposing affidavits and other materials

referred to in F.R.Civ.P.56(e);

(2) a supporting memorandum of law; and

(3) a concise response to the movant’s statement

that shall contain:

(a) a response to each numbered paragraph

in the moving party’s statement, including, in

the case of any disagreement, specific

references to the affidavits, parts of the

record, and other supporting materials relied

upon, and

(b) a statement consisting of short num-

bered paragraphs, of any additional facts

that require the denial of summary judg-

ment, including references to the affidavits,

parts of the record, and other supporting

materials relied upon. All material facts

set forth in the statement required of the

moving party will be deemed to be admitted

unless controverted by the statement of the

opposing party.

STATEMENT OF THE CASE

NLFC designs, develops, and maintains computer

software for use in medical pathology laboratories. NLFC

owns a valid copyright in the software at issue, having

obtained the copyright in that software from its original

designer, Lab Force.

Cabrini Medical Center ("Cabrini") in New York

and Franciscan Shared Laboratory ("FSL") in Wisconsin

were both licensed users of NLFC’s copyrighted software.

Cabrini’s license agreement strictly prohibited Cabrini from

copying the software and from providing copies to third

parties such as Devcom. In 1989, FSL entered into a

similar license agreement which also prohibited unauthor-

ized copying.

Cabrini and FSL had separately hired Devcom as

a computer consulting company. They asked Devcom to

modify the NLFC software. Devcom thereby obtained

access to the NLFC software licensed to Cabrini and FSL.

Devcom then exploited its access to NLFC software by

printing at its Chicago offices a physical print-out

containing a "viewable print-out" of the NLFC software

source code.

NLFC filed suit against Devcom alleging copyright

infringement and related state law claims. The district

court thus had jurisdiction of NLFC’s claim of copyright

infringement pursuant to 28 U.S.C. §§ 1331, 1338(a) (West

1995). The court could exercise supplemental jurisdiction

over the state law claims. 28 U.S.C. § 1367 (West 1995).

Devcom filed a summary judgment motion as to all the

claims. In response, NLFC filed deposition excerpts and

other evidence, as well as its brief opposing Devcom’s

motion. Devcom’s motion contained a list of the facts it

claimed were not in dispute, pursuant to Rule 12(M) of

the court’s local rules. NLFC’s response similarly

contained a list of the facts it claimed were in dispute,

pursuant to rule 12(N) of the court’s local rules.

The court referred the matter to a magistrate, who

eventually filed a memorandum which recommended that

the district court should grant summary judgment because

(1) Devcom’s creation of a "viewable print-out" allegedly

for modification purposes did not constitute infringement

of copyright, and (2) NLFC’s licensing agreements with

Cabrini and FSL permitted third parties such as Devcom

to make copies of the NLFC software.

The district court, over NLFC’s objection, entered

an order accepting the recommendations and adopting the

magistrate’s reasoning. The court entered final judgment,

and NLFC filed its notice of appeal to the United States

Court of Appeals for the Seventh Circuit.’ The court of

appeals affirmed the district court’s decision, concluding

that Devcom’s actions did not constitute "copying" under

the Copyright Act. The court also affirmed the district

court’s ruling on NLFC’s claim that Devcom improperly

tried to market NLFC’s software without permission.

Upon granting summary judgment against NLFC on

its copyright claim, the court dismissed NLFC’s state law

claims, exercising its discretion to dismiss these claims on

the grounds that the amount in controversy was insufficient

to vest the court with diversity jurisdiction and the court

no longer had supplemental jurisdiction over those claims.

ARGUMENT

In its published opinion, the court of appeals has

affirmed a district court’s decision that the unauthorized

printing of a hard copy print-out of the source code of a

computer software program does not constitute copyright

infringement if the printing is done by telephone. This is

a novel interpretation of the law of copyright infringement

in the context of computer software. Because of the broad

implications of the court’s decision in the realm of soft-

ware copyright protection, this Court should act to correct

the court of appeals’ misapplication of the Copyright Act.

A. The standard for summary judgment.

This Court reviews de novo an order that grants a

summary judgment. See, e.g., Eastman Kodak Co. v. Image

Technical Servs., Inc., 504 U.S. 451 (1992); Anderson v.

Liberty Lobby, inc., 477 U.S. 242, 249-52 (1986). Summary

judgment is proper only if the moving party demonstrates

that there exists no genuine issue of any material fact and

that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 247.

The moving party bears the initial burden to demonstrate

that no genuine issue of material fact exists. Celotex Corp.

v. Catrett, 477 U.S. 317, 324 (1986). Alli facts must be

construed in the light most favorable to the party opposing

the motion, and the court must draw inferences in favor of

that party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587-88 (1956). Any doubt as to the

existence of a genuine issue for trial must be resolved

against the party requesting summary judgment. Anderson,

477 USS. at 255.

B. The court of appeals improperly concluded that

Devcom’s actions were not "copying."

Computer programs take two forms: both human-

readable "source code," and machine-readable "object

code." Midway Mfg. Co. v. Strohon, 564 F. Supp. 741, 750

(N.D. Ill. 1983). The mere copying of computer software

from disk into memory has been held as an infringement,

let alone making a printed copy. MAI Systems Corp. v.

Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993),

cert. dismissed, 114 S. Ct. 671 (1994); ISC-Bunker Ramo

Corp. v. Altech, Inc., 765 F. Supp. 1310, 1332 (N.D. II.

1990).

In the district court, Devcom did not dispute that

a company called Lab Force had developed the software

at issue and that NLFC had obtained from Lab Force the

the software. See 17 U.S.C.A. § 106 (West 1977 & Supp.

1995). Thus, Devcom could prevail on summary judgment

either by proving that it had not copied NLFC’s software

or by showing that NLFC would not be able to prove that

Devcom had copied the software.

NLFC’s summary judgment proof created an issue

of fact regarding whether Devcom had copied the NLFC

software by printing the source code at Devcom’s Chicago

office. Devcom submitted affidavits of Devcom personnel

suggesting that it had not copied NLFC software, "except

to create a viewable print-out necessarily required for

modification purposes." In reply, NLFC offered deposition

testimony of Jon Kristofferson, the director of Devcom’s

software development, which stated as follows:

_ ee

Q: _[Y]ou still have Exhibit No. 1 there

in front of you, and am I wrong, isn’t

that a Lab Force program?

A: It says Lab Force.

Q: It also says Devcom. Does that

mean it was printed out at Devcom’s

offices?

Yeah, I would say it was.

Do you know where that particular

program ... came from?

No.

Was it printed at Devcom’s office?

Yes.

POP OF

The district court had concluded that Devcom’s evidence

established that Devcom had not infringed a copyright in

the NLFC software, and that the above evidence did not

create an issue of fact regarding this "copying" issue.

The court of appeals agreed. The court reasoned

that when Devcom printed the source code at its Chicago

offices, it had not done so by downloading the NLFC

software program into Devcom’s own computer located in

its Chicago offices. NLFC, 45 F.3d at 235. The court

inferred that instead Devcom had used telephone lines

between its Chicago office computer and Cabrini’s New

York computer, making a copy directly from Cabrini’s own

computer. The court concluded that "the only plausible

inference favoring NLFC that can be drawn from the

evidence produced by NLFC is that Devcom accessed the

memory or hard drive of one of the laboratory computers

directly through a dedicated phone line, and that the

source codes were printed directly from that source.

There is no support here for the inference that this

information originated from one of Devcom’s computers."

Based on the inference it drew from the evidence,

the court of appeals should have concluded that Devcom

"copied" the computer program within the meaning of the

source code, without permission from NLFC, constituted

infringement of copyright regardless of the exact means by

which Devcom made the copy. In defining what actions

constitute infringement, the Copyright Act does not make

a distinction between unauthorized copying off one’s own

computer and unauthorized copying off of someone else’s

computer by means of telephone or some other electronic

access. NLFC’s summary judgment proof thus created an

issue of fact as to whether Devcom had infringed NLFC’s

The court of appeals endorsed the district court’s

conclusion that the Kristofferson testimony did not create

an issue of fact because it failed to contradict Devcom’s

assertion that the only "copy" Devcom had made was the

"print-out" for purposes of modifying the NLFC software.

NLFC, 45 F.3d at 235 n.5. The court’s reasoning misses

the point. Whether or not the print-out was made for the

purpose of modification, it was still unauthorized copying

of NLFC’s software, which was an infringement of NLFC’s

wrong under the Copyright Act.

‘. NLFC’s license agreements with Cabrini and FSL

did not allow Devcom to copy the NLFC software.

The court of appeals also concluded that NLFC

had failed to show that Devcom’s actions were inconsistent

with the terms of the Cabrini and FSL license agreements.

The question was whether Devcom could claim that those

licenses authorized Devcom’s copying. Devcom admits it

12 )

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modified and enhanced the NLFC software in Cabrini’s

and FSL’s possession. This conduct is expressly included

in the definition of preparation of a derivative work, and,

therefore, constitutes a violation of the Copyright Act

unless NLFC authorized it. See 17 U.S.C.A. $§ 101, 106

(West 1977 & Supp. 1994).

Both Cabrini’s license and FSL’s license prohibited

Cabrini and FSL from using the NLFC software other than

internally for the licensee’s own business operations. The

licenszs also prohibited Cabrini and FSL from distributing

copies of the NLFC software or allowing third parties to

make copies.’ Cabrini and FSL thus both agreed to keep

2 Relevant terms of the Cabrini license include the

following:

6.2.2. PURCHASER agrees not to copy the

COMPUTER SOFTWARE covered by _ this

Agreement in any manner except as reasonably

necessary for license to use and in the normal

backup procedures, without the express written

consent of [NLFC].

6.2.7. [NLFC] shall give the PURCHASER copies

of the source code corresponding to all LICENSED

SOFTWARE including, but not limited to, each

application, compiler, file structure, data base

handler and file layout corresponding thereto.

PURCHASER may use the foregoing for purposes

of modification, maintenance, enhancement and

integration by PURCHASER. . . . PURCHASER

shall not disclose or transfer any COMPUTER

SOFTWARE source code to third parties.

the NLFC software confidential and not disclose it to third

parties. Cabrini agreed not to copy the software except as

specified in its license, and FSL’s contractual right to

secure maintenance from a third party did not grant it or

anyone else legal authority to make copies of the NLFC

software or to maintain a copy on that third party’s com-

puter. Thus, neither Cabrini nor FSL had authority to give

Devcom permission to do what it did.

D. The court of appeals improperly refused to

consider NLFC’s rule 12(n) statement.

The court of appeals erred in affirming the district

court’s ruling that NLFC had not filed a proper statement

of contested facts in compliance with Local Rule 12(n) of

the Northern District of Illinois Local Rules. That rule

requires that any party that opposes a motion for summary

judgment must file a statement listing those material facts

which are in dispute. N.D. Ill. Local R. 12(n). The district

court concluded that NLFC’s rule 12(n) statement failed

to controvert Devcom’s rule 12(m) statement listing of un-

disputed facts. The court asserted that NLFC’s rule 12

statement offered conclusory allegations and misleading

characterizations of the record.

Relevant terms of the FSL license include the following:

7. FSL agrees that [the Software] provided consists

of valuable trade secrets of [NLFC], and FSL

agrees to keep all [NLFC] Software and

documentation confidential and not make any

disclosures to third parties, with the exception of

disclosures made pursuant to FSL’s rights under

this letter agreement.

——

NLFC’s rule 12(n) statement did not contain mere

conclusory allegations, and it made clear reference to

deposition testimony which created an issue of fact for

trial. NLFC’s rule 12(n) statement said:

Devcom copied and/or reproduced NLFC’s

software, in violation of NLFC’s rights under

Title 17 of the United States Code.

Devcom’s employee, Jon Kristofferson,

Devcom’s Director of Software Develop-

ment, during his deposition of April 22, 1993

admitted that Devcom copied NLFC’s soft-

ware: see Exhibit A, Kristofferson Deposi-

tion, p. 121, lines 2-13, and Deposition

Exhibit 1. Also, see Exhibit B hereto.

Incredibly, the district court and court of appeals held

NLFC’s response insufficient, and they deemed Devcom’s

statement of material facts as being admitted. The court

of appeals’ decision to uphold the district court’s ruling

disregarding NLFC’s rule 12(n) statement was erroneous,

because NLFC’s statement complied with rule 12(n).

E. The district court erred in deeming as admitted

statements in Devcom’s rule 12(m) statement.

If NLFC’s rule 12(n) statement could be said not to

be in technical compliance with the local rule requirement,

the court of appeals erred in affirming the district court’s

decision to deem admitted the facts set forth in Devcom’s

rule 12(m) statement. Deeming admitted the allegations

in a rule 12(m) statement conflicts with the requirements

of rule 56 of the Federal Rules of Civil Procedure. Thus,

to the extent that Local Rule 12 allows such a practice, the

district court has gone beyond its rule-making authority.

The district courts have authority to promulgate

local rules governing practice in their courts. See 28

U.S.C. § 2071 (West 1995); Fed. R. Civ. P. 83. However,

that rule-making authority is limited. The courts’ local

rules must be consistent with the Federal Rules of Civil

Procedure and with all Acts of Congress. Jd. If a local

rule is inconsistent with the rules of practice which this

Court has prescribed, this Court has inherent supervisory

power to invalidate those rules. Frazier v. Heebe, 482 US.

641, 645 (1987).

Rule 56 says that summary judgment is proper "if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any" show

that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). The "admissions" to which rule 56

refers are admissions made in response to rule 36 of the

Federal Rules. Local rule 12(m) provides for admissions

other than those made in accordance with the procedures

in rule 36 for requesting admissions of fact and responding

to such requests.

The district court’s application of its local rule

12(m) allows the district courts to grant summary judgment

by default. It allows the district court to grant summary

judgment based on the bare allegations contained in a rule

12(m) statement, regardless of whether the record contains

pleadings, depositions, interrogatory answers, admissions,

or affidavits which show that no genuine issue of material

fact exists. Thus, the rule is inconsistent with rule 56.

A local rule that allows a court to grant summary

judgment as a result of the opposing party’s failure to

respond to a motion for summary judgment is inconsistent

with rule 56 and therefore improper. See, e.g., Henry v.

Gill Indus., Inc., 983 F.2d 943, 949 (9th Cir. 1993) (local

rule allowing summary judgment when no opposition filed

is inconsistent with rule 56 and violates rule 83); Hibernia

Nat’l Bank v. Administracion Central Sociedad Anonima,

776 F.2d 1277, 1279 (Sth Cir. 1985) (a local rule cannot

permit court to grant a summary judgment merely because

there is no opposition). The court of appeals’ action in

allowing the district court to deem a fact admitted because

it is listed in a rule 12(m) statement is inconsistent with

rule 56 and thus inconsistent with rule 83 and section 2071

of the Code of Judicial Procedure. The court of appeals,

therefore, erred to the extent it affirmed the district court’s

ruling based on the allegations contained in Devcom’s rule

12(m) statement.

CONCLUSION

Because of the broad implications that the court of

appeals’ reported decision has for the software industry,

this Court should grant this petition and correct the court

of appeals’ decision.

Respectfully submitted,

Peter S. Vogel*

Stacy R. Obenhaus

John E. Castafieda

GARDERE & WYNNE, L.L.P.

3000 Thanksgiving Tower

Dallas, Texas 75201

(214) 999-3000

Attorneys for Petitioner

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.