Source Code: 1st Circuit Finds Plaintiff Couldn't Satisfy Best Evidence Rule In Aircraft Tracking Software Appeal

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

Federal Rule of Evidence 1004, however, provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if [one of four situations apply]....

If however, a party seeks to prove the content of a writing and cannot satisfy one of the Rule 1004 factors (or produce a duplicate), it will be unsuccessful as was the case in the recent opinion of the First Circuit in Airframe Systems, Inc. v. L-3 Communications Corp., 2011 WL 4058676 (1st Cir. 2011).

In Airframe Systems,

In 1979, Airframe began developing proprietary aircraft maintenance tracking software known as the Airline Resource Management System ("ARMS"). Since that time, Airframe has continually modified and expanded the source code of its ARMS software to create updated versions of the program. "Source code" is the original version of a computer program that is written in human-readable words and symbols. Source code must be compiled into machine-readable "object code" before a computer can read and execute the software. A program in source code format can be modified by a computer programmer, whereas a program in object code format cannot be easily modified.

In July 2003, Airframe registered and deposited with the United States Copyright Office copies of four versions of its ARMS source code....

Airframe later brought a copyright infringement action against L-3, alleging that L-3 copied the ARMS source code to create a replacement aircraft maintenance program titled "M3." In support of its action, Airframe submitted the declaration of its President, Gordon S. Rosen, who compared the ARMS source code with M3. L-3 thereafter moved for summary judgment claiming that the declaration

was insufficient because the ARMS source code version which Rosen compared to the M3 program—and which was the only version that Airframe produced during discovery—was an updated version of the ARMS program created in 2009. L–3 contended that the updated 2009 version of the ARMS source code was not registered and was insufficient to establish the content of the prior source code versions covered by Airframe's copyright registrations (including the 1981 IBM version, the 1984 PC version, the 1988 UNIX version, and the 2003 version). As such, L–3 argued, Airframe could not prove there was "substantial similarity" between the M3 source code and the registered source code that was allegedly infringed.

The district court agreed and granted L-3's motion for summary judgment. The First Circuit later agreed, finding that the case before it was similar to Bridgmon v. Array Sys. Corp., 325 F.3d 572 (5th Cir. 2003), in which the Fifth Circuit found that the plaintiff could not present a reconstruction of its source code consistent with the Best Evidence Rule. The First Circuit found that the same reasoning applied in Airframe Systems because Airframe did not satisfy Federal Rule of Evidence 1004; instead, "Airframe....made no effort to satisfy the requirements of the Best Evidence Rule here."

-CM