In Brief: Copyright in fireworks text messages is invalid.

Here’s What Happened:

Since 1995, Pyrotechnics Management manufactures and sells hardware and software that controls fireworks displays under the “FireOne” brand. One of its devices is a control panel that converts digital messages into analog signals that are used by a series of field modules that control a fireworks display.

Pyrotechnics’ competitor, fireTEK, reversed engineered the Pyrotechnics’ communication protocol and developed a competing product.

Pyrotechnics sent a cease and desist letter to fireTEK.

Then, Pyrotechnics applied to register the copyright in a document that described its communication protocol. The Copyright Act allows the registration of “identifying material” for certain machine readable electronic works. Pyrotechnics’ deposit copy of the work was basically a manual that instructs a user on how to generate the digital messages. It didn’t contain any source or object code.

Upon receipt of its registration certificate, Pyrotechnics brought suit against fireTEK and its company, XFX Pyrotechnics. The court granted Pyrotechnics’ motion for a preliminary injunction.

The defendants appealed to the Third Circuit Court of Appeals. The Third Circuit first addressed whether a document with instructions for generating a digital message is copyrightable. In its analysis, the Third Circuit eliminated elements of the work that were a method of operation because they are not copyrightable. What remained were uncopyrightable ideas rather than copyrightable expressions of ideas. The line between ideas and expression, or the idea/expression dichotomy, can be hard to draw. But the courts have grappled with this dichotomy with respect to software for over 40 years. The test has boiled down to the number of ways that an idea can be expressed. If there are limited ways to express an idea, it’s not copyrightable. If there are multiple ways to express an idea, then choosing the way to express the idea reaches the threshold of minimum creativity for copyright protection. Pyrotechnics admitted 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.”

The Third Circuit next turned to the text messages themselves and found that they lacked “even a spark of creativity” necessary for copyright protection.

The Third Circuit reversed the preliminary injunction and remanded the case back to the district court with instructions to dismiss the copyright claims with prejudice. Pyrotechnics had other claims which will go forward.

Why You Should Know This: Pyrotechnics, understandably, wanted to protect something it had created and that had been driving its business for years. Intellectual property law offered few avenues for protection. A patent wasn’t available because the technology had been around for over 25 years. And the patent would have probably expired by now, anyway. Trade secrets were obviously not available because fireTEK was able to reverse engineer technology. And, as we see here, copyright was not available either. In 20/20 hindsight, Pyrotechnics probably should have solidified a method of protection at the inception of the technology.

*Translation (for the uninitiated): Oh my god, as a matter of fact, texts are not copyrightable.

Case Information: Pyrotechnics Mgmt. v. XFX Pyrotechnics LLC aka fireTEK, 38 F.4th 331 (3d Cir. 2022)

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