95. The second proposed Bramwell employment contract provided in pertinent part:
3.1 "PROGRAM" means "THE COOPERATIVE SELF-FUNDED WORKERS (Workers Compensation: A cooperative self-funded method COMPENSATION TRUST") program developed, copy written and licensed by the COMPANY.
3.2 "EXISTING ACCOUNT" shall mean any client serviced by COMPANY or any potential client for which COMPANY has submitted a proposal of services during the term of EMPLOYEE'S employment including all brokers, agents, producers and licensee's associated with the Program.
EMPLOYEE agrees that in the event he leaves the employ of COMPANY for a period of two (2) years from the date thereof, he will neither directly nor indirectly, as an Employee, Stockholder or Partner of any firm, corporation or otherwise compete or otherwise perform any service similar to that conducted by. COMPANY for any existing accounts of the COMPANY. EMPLOYEE recognizes and acknowledges that the program of COMPANY is proprietary and unique and will not be divulged at any time without the express written consent of COMPANY.
96. Bramwell and NRM Consulting did not enter into a valid and binding employment contract.
H. Unfair trade secret infringement:
97. Defendants have not misappropriated Plaintiff corporations' trade secrets nor are they using Plaintiff corporations' business information to compete unfairly in the market place.
98. The information which plaintiffs seek to keep a secret has not been held in confidence by the company as is required to maintain trade secret status.
99. Although plaintiffs contend that their self-funded program is proprietary and consists of trade secrets, plaintiffs program, its components and operation are fully described in plaintiffs' proposal book which is distributed at Trade shows and seminars and to prospective clients. Much of this information about plaintiffs' program has also been published in articles appearing in trade publications as well as in brochures which have been distributed at seminars and to prospective clients. These distributions also include copies of plaintiffs' non-exhaustive client list, which services as a reference list for prospective clients. An inadequate effort has been made to keep these distributions or the information in them confidential.
I. Tortious interference with contract:
100. Bramwell and Rakoff intentionally interfered with the prospective contractual arrangement between NRM and Aliquippa Hospital.
101. Rakoff's interference occurred at a time when he was still employed by NRM.
102. The conduct of both Rakoff and Bramwell in regard to this matter was outrageous.
103. While NRM, Inc was still able to secure a contractual relationship with Aliquippa Hospital, it did so at an added expense and inconvenience. The tortious interference proximately caused NRM $ 1,696.00 for which amount they are entitled to recover.
104. The outrageous and intentional nature of Bramwell's and Rakoff's actions also justifies the award of punitive damages to plaintiffs.
105. Ryan was unaware of the fact that Aliquippa had signed the contracts Rakoff had furnished the hospital on behalf of NRM.
II. Conclusions of law:
A. Copyright infringement:
In order to establish copyright infringement a plaintiff must prove ownership of the copyright and "copying" by the defendants. Sid and Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir. 1977); Educational Testing Services v. Katzman, 793 F.2d 533, 538 (3d Cir. 1986) "Copying," in turn, is said to be shown by circumstantial evidence of access to the copyrighted work and substantial similarity between the copyrighted work and the defendant's work. Krofft, 562 F.2d at 1162.
Copyright registration is prima facie evidence of the validity of copyright. This evidence, however, is rebuttable. ETS, 793 F.2d at 538. Because I conclude that the documents at issued were not copied, I have not ruled on the issue of whether the copyright in this case is valid. Even assuming arguendo that plaintiff possesses a valid copyright, there is no violation here as there is no "copying." In determining whether a defendant has copied a protected work, the Third Circuit has applied the reasonable person standard, under which
the test is whether the accused work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectable expression by taking material of substance and value.
Id. at 541 (citations omitted).
Duplication is not necessary to establish infringement:
An infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred or reproduced, with more or less colorable alterations to disguise the piracy.
Universal Pictures Co., Inc. v. Harold Lloyd Corp., 162 F.2d 354, 360 (9th Cir. 1947).
A limitation on copyright protection is provided by the classic distinction between an "idea" and the "expression" of that idea. Krofft, 562 F.2d at 1163. "It is an axiom of copyright law that the protection granted to a copyrighted work extends only to the particular expression of the idea and never to the idea itself." Id. Only this expression may be protected and only it can be infringed.
With respect to commercial documents, which we have here, the similarity must be more extensive than in the case of mere artistic works in order to justify a finding of substantial similarity. Nimmer on Copyright, § 143.2 at 631.
A copyright does not cover an idea or a system of doing business but only the particular mode of expression of the idea embodied in the copyrighted material. The public is free to use the idea or method of doing business and hence, while the copyrighted description of the idea may not be slavishly copied, the copyright is not infringed by an expression of the idea which is substantially similar where such similarity is necessary because the idea or system being described is the same.