Dice Corp. v. Bold Technologies , 556 F. App'x 378 ( 2014 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0063n.06
Nos. 12-2513, 13-1712
FILED
UNITED STATES COURTS OF APPEALS Jan 24, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
DICE CORPORATION )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
BOLD TECHNOLOGIES, ) DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
BEFORE: GUY, GIBBONS, and ROGERS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Dice Corporation and
defendant-appellee Bold Technologies are competitors that provide services and license software
to companies in the alarm industry. Dice claims that Bold committed a host of intellectual
property violations when converting one of Dice’s former customers to its systems. The district
court granted Bold’s motion for summary judgment on all of Dice’s claims and denied Dice’s
motions for reconsideration and indicative ruling. For the following reasons, we affirm.
I.
A.
Dice Corporation and Bold Technologies are in the same business—both license software
to companies in the alarm industry. Alarm companies monitor signals sent from their respective
subscribers’ alarm systems. When an alarm signal is tripped, the alarm company contacts the
appropriate authorities such as the police or fire department. Alarm companies collect an
impressive amount of data. The data typically consists of names, addresses, contact information,
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Dice v. Bold
billing information, and information regarding the type and location of alarms. As a general
matter, both companies’ software monitors alarm signals and compiles information in databases.
Dice’s software is known as Dice software; Bold’s is licensed under the trade name Manitou.
Despite providing similar services, the technical features of their software are
significantly different. By way of quick background, computers operate in a binary number
system: 0 for off and 1 for on. Current computers are capable only of executing functions based
on this basic language consisting of strings of 1’s and 0’s. This is known as object code.
Computer programming languages—such as C++ and Thoroughbred Basic—facilitate human
programming by obviating the need for programmers to write in cumbersome object code. The
text of these languages is known as source code. Whether directly or indirectly, the instructions
written in source code are ultimately translated into object code so that commands can be
executed by the computer. See generally Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.
2d 294, 305 (S.D.N.Y. 2000). Dice software is written using the programming language
Thoroughbred Basic and runs on the Linux operating system. Manitou is written in the C++ and
Visual Basic languages and runs on the Windows operating system.
B.
This dispute stems from a customer defection. ESC Central was a Dice customer for a
decade. In 2011, it transitioned to Bold. Switching software systems is no easy task. The
conversion process must be undertaken carefully because the alarm company continues to
monitor alarm signals from its subscribers. The transition must be seamless to ensure that the
new software is interpreting the incoming alarm signal in the same manner as the old so that no
alarm signals are misread or missed. As Bold’s chief of operations explained:
After the customer data is extracted and converted, there will be a period of time,
usually about 3 months when the customer’s central station is running live on the
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old software, but the new software is running in parallel on different servers. The
purpose of running the two software systems in parallel is to ensure that the new
software is monitoring the alarm signals consistent with the old software. After
this period is completed the customer will go live on the new software and will
often terminate its license for the old software.
Following this protocol, Bold first extracted ESC Central customer data from Dice’s
software databases. This data—names, addresses, etc.—is owned by ESC Central and not by
Dice. Matt Narowski, a current Bold employee and former Dice employee, wrote the computer
program (“Extraction Program”) used to extract customer data from Dice’s database. He
explained that he wrote the program using information available to the public together with
general knowledge of computer programming; he did not read, review, copy, or rely upon any
information about Dice source or object code; the Extraction Program does not contain any Dice
source or object code; and, since being employed at Bold, he has not seen a copy of Dice source
or object code. And he explained that “the database files where the customer data is stored are
not subject to any Dice security features and can be accessed by anyone who has a copy of
Thoroughbred Basic, which Bold licensed from that company.”
Not so, says Dice. Dice maintains that Bold used and copied Dice’s proprietary software
in operating the Extraction Program. Clifford Dice stated that he “analyzed the conversion
program created by” Narowski and concluded that “[t]he program which Bold has created for
converting information belonging to Dice customers cannot operate without access to Dice
software and the source code contained within that software.”
C.
Following extraction, the Bold and Dice software systems were run in parallel from June
2011 to August 2011. Although not aware at the time that ESC Central was converting to Bold’s
Manitou, Dice subsequently became aware through Facebook activity by ESC Central’s vice
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president, Kristi Harris Jennings. Immediately thereafter, Dice’s Director of Software
Development, Julie Coppens, logged into the ESC Central system. She found that someone had
accessed Dice’s ALSCHART file. Coppens testified that although ESC Central had
disconnected Dice, it had not removed access to a phone connection. ESC Central described this
as “illegal entering,” and sent a cease and desist letter, threatening suit if Dice did it again. Dice,
on numerous occasions, admitted that it has no evidence that it was anyone at Bold who accessed
the file.
The ALSCHART is a file containing a master list or database of alarm codes.
Manufacturers code1 outgoing alarm signals to identify the type of emergency. For example, a
fire signal may be coded “F” by one company and “1” by another. The alarm panel sends these
signals to receivers at alarm companies where the information is converted into Dice’s standard
and compiled in the ALSCHART, a part of Dice’s software. Dice’s receiver-drivers software
performs the conversion from manufacturers’ signals to Dice’s standard. Dice contends that the
ALSCHART and its receiver drivers are proprietary. According to Dice, its standards are
unique.
D.
On December 5, 2011, Dice filed its operative complaint in the Eastern District of
Michigan. Dice asserted claims under Michigan’s Uniform Trade Secrets Act (“MUTSA”),
Mich. Comp. Laws §§ 445.1901–1910, the Copyright Act, 17 U.S.C. §106, the Digital
Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201 et seq., and the Computer Fraud and
Abuse Act (“CFAA”), 18 U.S.C. § 1030. Dice alleged three basic wrongs: (1) Bold’s Extraction
1
These are not computer codes in the same way that object and source code are computer
code—i.e., they do not function to allow humans to operate the computer. Alarm codes function
as labels indicating the type of alarm.
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Program impermissibly accessed and utilized Dice’s proprietary code; (2) former Dice employee
and current Bold employee Amy Condon accessed Dice servers and initiated file transfers of
proprietary software; and (3) Bold circumvented Dice security protections to access protected
material.
Clifford Dice was deposed on February 29, 2012. Bold did not provide Dice with a copy
of the Extraction Program until May 14, 2012. Bold moved for summary judgment on June 29,
2012, attaching twenty exhibits covering most of the factual material discussed thus far. Dice
filed a cursory response. The response relied in large part on an attached affidavit in which
Clifford Dice attested that he had “analyzed the conversion program created by former Dice and
current Bold employee Matt Narowski.” He claimed that the Extraction Program could not
“operate without access to Dice software and the source code contained within that software.”
Bold’s reply attached a rebuttal expert report from Dr. William McUmber. The report
analyzed the Extraction Program and concluded that:
Bold Extract only performs the task of pulling data from the customer’s database
so that it can be transferred to a different system. . . . Bold Extract does not and
cannot read program source code, and does not need to use the Dice source code
to perform the data extraction. Bold Extract has no decryption functions, either
for data or source code. All of the customer data Bold Extract pulls from the
database is unencoded and requires no special handling with decoding functions.
No proprietary knowledge is required to write Bold Extract. All of the
information that would be needed to write it can be found in ThoroughBred
reference guides.
Dice requested that Bold produce Dr. McUmber for deposition prior to filing its summary
judgment motion. On this basis, Dice moved to strike Dr. McUmber’s report. Dr. McUmber
was deposed on September 26, 2012. Dice did not move to file a sur-reply or supplement the
record following the deposition. Dice’s motion to strike was eventually denied as moot.
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The district court rejected Dice’s claims in a forty-page opinion, finding them conclusory
and devoid of factual support. Dice moved for reconsideration on two grounds. First, Dice
claimed that the district court improperly credited the affidavit of Narowski, which Dice claimed
was at odds with his deposition testimony. Second, Dice claimed that new evidence—a copy of
the “entire extraction program”—was improperly withheld until after Bold filed its motion for
summary judgment. Dice claimed that at the time of Dr. McUmber’s deposition, Bold produced
for the first time the File List used by Bold’s Extraction Program (known as “FILELIST.txt”).
“Receipt of the entire program,” Dice claimed, “permitted [Dice] for the first time to quantify the
extent to which [Bold’s program was dependent upon Dice source code” and “also permitted
[Dice] to disprove the [notion] that [Bold’s] extraction program simply utilized commercially-
available software produced by Thoroughbred.”
Dice attached a comparison highlighting several areas which, Dice claimed, showed
literal copying. But as the district court noted in its opinion denying the motion for
reconsideration, Clifford Dice did not explain how this evidence demonstrated that Bold used
Dice’s source code. “Instead he attache[d] a computer printout to his affidavit that [Bold]
charitably describes as ‘virtually incomprehensible.’ . . . The Court’s own review, in contrast,
finds the document completely incomprehensible.” The printout contained hundreds of pages of
unexplained computer code. Moreover, the File List on which Clifford Dice’s analysis was
based was not attached to Dice’s motion. Dice claims that the failure to attach this document
was inadvertent.
After filing its motion for reconsideration but before the district court ruled on that
motion, Dice filed a notice of appeal. Subsequently, the district court denied Dice’s motion for
reconsideration. Dice did not amend its notice of appeal within 30 days of that date. On May
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16, 2013, Dice filed a motion for indicative ruling and relief from judgment pursuant to Federal
Rules of Civil Procedure 60(b) and 62.1. Dice asserted that its clerical error in attaching the
wrong exhibit caused the district court to deny the motion for reconsideration and asked the
district court to enter an order indicating that it would grant Dice’s motion for reconsideration if
the court of appeals remanded for that purpose. The district court denied the motion, holding
that Dice again failed to explain how the proffered evidence demonstrated that Bold
misappropriated its property.
Dice filed an amended notice of appeal within 30 days of the denial of its motion for
indicative ruling expressly seeking review of the order granting Bold’s motion for summary
judgment and the order denying Dice’s motion for indicative ruling; it did not seek review of the
reconsideration order.
II.
The first question is one of jurisdiction. Dice attempts to appeal the district court’s denial
of its motion for indicative ruling. Under Rule 62.1, a district court may make certain indicative
rulings on motions that the court lacks authority to grant because of a pending appeal. A district
court may defer considering the motion, deny the motion, or state that it would grant the motion
or that the motion raises a substantial issue. See Fed. R. Civ. P. 62.1(a).
Corresponding to Rule 62.1 is Federal Rule of Appellate Procedure 12.1. Rule 12.1(b)
provides that “if the district court states that it would grant the motion or that the motion raises a
substantial issue, the court of appeals may remand for further proceedings.” Bold argues that
because Rule 12.1(b) does not expressly provide for circumstances in which the district court
denies a motion for indicative ruling, courts of appeal lack jurisdiction to entertain appeals from
such motions. We are unaware of any case which so holds. See Fed. R. App. P. 12.1 advisory
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committee’s notes (citing Jordan v. Bowen, 808 F.2d 733, 736–37 (10th Cir. 1987) (refusing to
review order denying motion for indicative ruling where party failed to appeal from that order));
see also Ray v. Pinnacle Health Hosps., Inc., 416 F. App’x 157, 161 (3d Cir. 2010) (reviewing
denial of motion for indicative ruling). Nor do we believe Rule 12.1 requires a party to wait until
its initial appeal is adjudicated, file a new Rule 60(b) motion, and then appeal that motion’s
denial. Rule 12.1 does not foreclose our review.
Next is Dice’s unappealed motion for reconsideration. In its amended notice of appeal,
Dice did not mention the order denying its motion for reconsideration. Bold argues that under
Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) and this court’s opinions construing that rule,
we lack jurisdiction to review the order denying reconsideration as well as the evidence put
forward in Dice’s motion.
Rule 4’s strictures are jurisdictional. See, e.g., Browder v. Director, 434 U.S. 257, 264
(1978). It provides in part that a party challenging an order disposing of any motion listed in
Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice
of appeal. Fed. R. App. P. 4(a)(4)(B)(ii). Rule 3(c)(1)(B), with which Rule 4(a)(4)(B)(ii)
requires compliance, requires the designation of the judgment or order from which an appeal is
taken. See United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir. 1999
(citing Fed. R. App. P. 3(c)(1)(B)). Although jurisdictional, the notice requirements of Rule
3(c)(1) are liberally construed and applied. See Caudill v. Hollan, 431 F.3d 900, 907 (6th Cir.
2005) (citing Foman v. Davis, 371 U.S. 178, 180–81 (1962)).
We consider all arguments asserted prior to the final disposition of a case if the party
indicates in its notice of appeal that it appeals either the final judgment or the final order. Id. at
906. Where the notice of appeal limits the orders appealed, we will not, “absent specific mention
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in the notice of appeal, entertain issues raised in post-judgment motions.” Id. However, “[t]o the
extent that the post-judgment motions relate to issues raised before judgment, the appellate court
will deal with them anyway.” Id. Although the case law speaks of issues raised before the “final
order” or the “final judgment,” there is no principled reason to hold that this language bars
consideration of issues raised before the last order appealed. The only concern motivating this
jurisprudence is compliance with the Federal Rules of Appellate Procedure’s notice requirement.
See id. Parties receive the same notice of the issues on appeal whether they were raised in a
notice of appeal of a motion granting summary judgment or subsequent motion for indicative
ruling. What matters is that the issues flagged in the notice of appeal have already been raised.
The dividing line is the last appealed judgment: issues raised before the last appealed judgment
will be considered, issues raised after will not. Here, the last appealed judgment was the motion
for indicative ruling.
Dice raised two issues in its motion for reconsideration. The first issue was whether the
district court erred in relying on Narowski’s affidavit. This issue was before the district court in
Bold’s motion for summary judgment. The second issue was whether Bold’s untimely
production of the File List prevented Dice from demonstrating that Bold misappropriated its
copyrighted source code. Dice’s motion for indicative ruling argued that the district court erred
in denying the motion for reconsideration because Dice inadvertently attached the wrong exhibit.
The motion for indicative ruling, relying on the same arguments and evidence and the properly
attached exhibit, sought to cure that defect. Indeed, it would be impossible to consider the
motion for indicative ruling—which was properly appealed—without considering the motion for
reconsideration. Accordingly, this court has jurisdiction to consider the issues and facts raised in
Dice’s motion for reconsideration.
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III.
It is the parties, in our adversarial system, who frame the issues before the court. This is
true of both factual and legal arguments. The rules of civil procedure and standards of appellate
review acknowledge this. The nub of this dispute is the district court’s summary judgment order.
Rule 56(c) requires a party objecting to a motion for summary judgment to support its assertions
by “citing to particular parts of materials in the record.” Accordingly, we do not “‘entertain on
appeal factual recitations not presented to the district court’ when reviewing a district court’s
decision.” Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007) (quoting
Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir. 1992)). The “proper focus is
on the factual evidence submitted below.” Id. at 996; Cacevic v. City of Hazel Park, 226 F.3d
483, 491 (6th Cir. 2000) (“Although [plaintiffs] proffered evidence that might or might not show
a genuine issue of material fact after the district court had granted the defendants’ motion for
summary judgment, that evidence will not be considered by us on review.”); Estate of Mills v.
Trizec Props., 965 F.2d 113, 115 (6th Cir. 1992). “This burden to respond is really an
opportunity to assist the court in understanding the facts. But if the non-moving party fails to
discharge that burden . . . its opportunity is waived and its case wagered.” Guarino, 980 F.2d at
405.
The same is true of legal arguments. This court requires “timely and reasoned
presentation of non-jurisdictional issues to avoid forfeiture.” Winnett v. Caterpillar, Inc., 553
F.3d 1000, 1006 (6th Cir. 2009). “It is well-settled that this court’s ‘function is to review the
case presented to the district court, rather than a better case fashioned after an unfavorable
order.’” Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (internal alterations
and quotation marks omitted) (quoting Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th
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Cir. 2005). Arguments not squarely presented to the district court are not reviewed on appeal.
See, e.g., Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996).
With these parameters in mind, we review the district court’s order granting summary
judgment de novo, see Crouch v. Honeywell Int’l Inc., 720 F.3d 333, 338 (6th Cir. 2013), and,
treating a denial of indicative relief as we would a Rule 60(b) motion, we review the district
court’s order denying Dice’s motion for indicative ruling for abuse of discretion, see Ray, 416 F.
App’x at 161 n.3. As will be discussed in greater detail below, Dice’s appeal suffers from both
aforementioned ailments—it presents new legal arguments supported by previously unmentioned
record evidence.
IV.
A.
Dice argues that the district court erred in granting summary judgment to Bold on the
MUTSA claim. A claim for misappropriation of trade secrets, as the cause of action suggests,
requires: (1) a trade secret; and (2) misappropriation. See Mich. Comp. Laws § 445.1902.2
A trade secret consists of two component parts. It is information that derives independent
economic value from not being generally known to, and not being readily ascertainable by
proper means by, other persons who could obtain economic value from its disclosure or use. Id.
§ 445.1902(d). And the information must be the subject of reasonable efforts under the
circumstances to maintain its secrecy. Id. As a general matter, trade secret law does not protect
“an idea which is well known or easily ascertainable.” Manos v. Melton, 100 N.W.2d 235, 238
(Mich. 1960). “Trivial advances or differences in formulas or process operation are not
2
The district court and the parties rely on Stromback v. New Line Cinema’s articulation of
a three-part trade secret claim. 384 F.3d 283, 302 (6th Cir. 2004). Stromback explicitly stated
that the three-element trade-secret claim was the common-law claim and that the common-law
claim was displaced by MUTSA. Id.
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protectable as trade secrets.” Id. at 239 (internal quotation marks omitted); Agency
Solutions.Com, LLC v. Trizetto Grp., Inc., 819 F. Supp. 2d 1001, 1017 (E.D. Cal. 2011)
(“Proprietary ways of doing the same thing that others in the same field do are not trade
secrets.”). “Of critical importance here, to be worthy of trade secret status, the secret
information must afford the owner a competitive advantage by having value to the owner and
potential competitors.” Daimler-Chrysler Servs. N. Am., LLC v. Summit Nat’l, Inc., 289 F.
App’x 916, 922 (6th Cir. 2008) (applying MUTSA).
MUTSA defines misappropriation as acquisition, disclosure, or use of a trade secret by a
person who knows or has reason to know that the trade secret was acquired by improper means.
See Mich. Comp. Laws § 445.1902(b).
Dice argues that Bold misappropriated two trade secrets: (1) the ALSCHART; and (2) its
receiver drivers software.
1.
Dice argues that the district court erred in concluding that the data obtained from the
ALSCHART file via the Thoroughbred query was not a trade secret. Again, the ALSCHART is
a file containing a master list or database of alarm codes. Dice argues that because the
ALSHCART contains codes converted to Dice’s standards, the ALSCHART was subject to trade
secret protection.
Dice fails to explain how this information, even if uniquely coded, is a trade secret. The
ALSCHART is a compilation of labelling codes created by manufacturers, not Dice. The codes
were collected by Dice’s customers, not Dice. Dice has not put forward an explanation of how
the value of its unique labelling is derived from it not being readily ascertainable by proper
means. And Dice has not produced any evidence to that effect. See Mich. Comp. Laws §
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450.1902(d); see also Daimler-Chrysler, 289 F. App’x at 922 (plaintiff bears the burden to
produce sufficient evidence to suggest that information derives independent economic value
secrecy); Utilase, Inc. v. Williamson, 188 F.3d 510, 1999 WL 717969, at *6 (6th Cir. Sept. 10,
1999) (plaintiff must identify trade secret with specificity); Dura Global Techs., Inc. v. Magna
Donnelly Corp., 662 F. Supp. 2d 855, 859 (E.D. Mich. 2009) (same).
In addition, Dice failed to present competent evidence of misappropriation to the district
court. Noting the fact that Dice did not cite any record evidence, the district court granted Bold’s
well-supported motion for summary judgment. Dice, for the first time on appeal, cites record
evidence that it claims supports a finding of misappropriation. We do not, however, “entertain
on appeal factual recitations not presented to the district court any more readily than [we] will
tolerate attempts to enlarge the record itself.” Guarino, 980 F.2d at 404. The district court did
not err in rejecting Dice’s conclusory allegations of misappropriation in the face of competent
evidence to the contrary. See Fed. R. Civ. P. 56(c).
2.
Dice also argues that its software is a trade secret. Specifically, Dice claims that Bold
misappropriated its receiver drivers that take incoming signals and convert the data to Dice’s
standard. Although Dice’s briefing on this claim is opaque, we are skeptical whether Dice raised
this claim before the district court. Neither in the operative complaint nor in Dice’s response to
Bold’s motion for summary judgment can we find a trade secret claim based on receiver drivers
or software that performs that function. In Bold’s motion for summary judgment, Bold discussed
only the ALSCHART as material potentially subject to trade secret protection. In response, Dice
referred only to software that compiles information—a description consistent with the
ALSCHART’s function and not the receiver drivers. The district court then treated the
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ALSCHART file as the subject of Dice’s trade secret claim in its order granting summary
judgment. Had the district court made so plain an error in failing to consider an entirely
independent trade secret claim, we would expect Dice to mention that in its motions for
reconsideration or indicative ruling. It did not.
Even if not forfeited for this reason, Dice’s claim is defective for two independent
reasons. First, as discussed above, Dice failed to present competent evidence of
misappropriation to the district court. Second, much like the ALSCHART claim, Dice has never
put forward any evidence, let alone make the argument, that its receiver drivers are actually a
trade secret. Other than a generalized explanation of what the receiver drivers do, Dice has
failed to explain whether the receiver drivers derive economic value from their secrecy.
B.
Dice alleges that to undertake the extraction process, Bold created an unauthorized
derivative work in violation of the Copyright Act, 17 U.S.C. § 106(2). 17 U.S.C. § 411(a)
provides: “no civil action for infringement of the copyright in any United States work shall be
instituted until preregistration or registration of the copyright claim has been made in accordance
with this title.” In Reed Elsevier, Inc. v. Muchnick, the Supreme Court clarified that this
requirement is a precondition to suit and not a jurisdictional rule. 559 U.S. 154, 161 (2010).
Dice did not seek copyright protection until after it filed suit.3 We do not decide whether
late registration can cure this non-jurisdictional defect. See Positive Black Talk Inc. v. Cash
Money Records, Inc., 394 F.3d 357, 365 (5th Cir. 2004), abrogated by Reed Elsevier, 559 U.S. at
157. Dice’s claim fails for a separate reason. Not all copying amounts to copyright
3
Dice’s reliance on Coles v. Wonder, 283 F.3d 798, 801 (6th Cir. 2002), is misplaced.
Coles stands for the unremarkable proposition that although an action for infringement cannot be
enforced until § 411’s filing requirements have been satisfied, copyright protection extends
retroactively to the time the artist creates the work. Id.
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infringement. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Allowing
that registration constitutes prima facie evidence of the copyright’s validity, see 17 U.S.C. §
410(c)4, the plaintiff must still prove “that the defendant copied protectable elements of the
work.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir.
2004); see also Feist, 499 U.S. at 361. Only original material is subject to copyright protection
and, even then, elements of a computer program dictated by practical realities may not be
protectable. See Lexmark, 387 F.3d at 535.
Dice has not attempted to demonstrate which aspects of its programs were protectable.
Dice does not identify any original elements in its software and does not argue that the receiver
drivers represent non-functional expression. Irrespective of how unique the Dice standard or its
source code, the district court was right not to find a fact question on the basis only of Dice’s
say-so. Dice attempts to explain its failure to produce any such evidence by pointing to the fact
that Bold belatedly produced the File List document, which, according to Dice, finally allowed it
to inspect Bold’s Extraction Program. But in its motion for reconsideration and in its motion for
indicative ruling, Dice failed to identify the original and non-functional elements of its work.
Instead, it provided hundreds of pages of incomprehensible computer code without explanation
other than Clifford Dice’s claim that “Bold’s extraction program utilized Dice source code in the
conversion process.”
4
Dice does not make this argument. Moreover, at least at the time Dice filed suit, it was
not entitled to this benefit of registration. And finally, Dice does not claim a copyright in the
ALSCHART, only in its receiver drivers.
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C.
Dice asserts on appeal that Bold violated the Digital Millennium Copyright Act
(“DMCA”), 17 U.S.C. § 1201(a), because customers allowed Bold to use their passwords to
login to the Dice servers through the “Go To Assist function.”
For two reasons this claim fails. First, Dice did not cite any evidence of circumvention of
technological measures to the district court. The district court rejected Dice’s claim for this
reason. Likewise on appeal, to the extent we are inclined to allow Dice to resurrect its argument,
Dice cites no evidence. Second, Dice’s general theory before the district court was that Bold
circumvented Dice’s attempts to encrypt its software. Dice now argues that Bold violated the
DMCA because ESC Central improperly allowed Bold to use its passwords to login to the Dice
software operating at the customer’s site through the Go To Assist function. This is a new
argument not appropriately considered on appeal.
D.
Dice argues that the district court erred in dismissing its private cause of action under the
Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. 1030(g).5 Generally, the CFAA protects
against unauthorized computer access. Dice puts forward a complex claim of unauthorized
access. It claims that, although ESC Central’s servers running Dice software were owned by
ESC Central, they were connected to the Dice disaster recovery network at Dice’s office in
Michigan. According to Dice, customer-owned servers, like the ESC Central server running the
Dice software, were actually a branch of Dice’s network. This is because, when a Dice system is
installed, Dice’s Michigan servers mirror its customers’ servers. Consequently, according to
Dice, when Bold employees accessed ESC Central servers they necessarily accessed the Dice
5
Dice does not clarify under which subsection it brings its claims, but this is ultimately
irrelevant.
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Dice v. Bold
disaster recovery network. This argument, like many before, was not fairly made to the district
court.6
Even assuming this claim were fairly raised, it would still fail. Liability under the CFAA
requires a showing of intentional access. 18 U.S.C. § 1030(a)(2). Neither Narowski nor Condon
was aware that performing a Go To Assist Function on ESC Central servers allowed access to
Dice servers in Bay City, Michigan. Dice also does not explain how, even if the Go To Assist
function allowed access to Dice servers, Condon or Narowski used the Go To Assist function to
obtain Dice source code. See 18 U.S.C. § 1030(e)(6). Condon explains:
If permission is granted by the customer, the Go To Assist function allows me to
view the computer screen of the customer from Bold’s Colorado office and to
perform commands on the customer’s computer. . . . The result is the same as if I
was at the customer’s office and the customer allowed me to sit at their computer
terminal and view their computer screen. . . .
Using Go To Assist I was able to view ESC’s computer screens for the ESC
server running Dice and the ESC server running Bold to help diagnose [a]
discrepancy in the signal interpretations. As far as I am aware, the Go to Assist
function would not allow myself or any other Bold user to access Dice source
code in the Dice software running on ESC’s servers and I have never used Go To
Assist for that purpose.”
And Narowski attested: “With GoToAssist I cannot access any Dice source code even if the Dice
software is running on the customer’s computer which grants access and I have never used
6
Dice’s response to Bold’s motion for summary judgment stated: “gotoassist enabled Mr.
Narowski and any other qualified Bold employee to access Dice servers without alerting Dice.”
Dice did not explain that this occurred through the mirroring function of the disaster recovery
network nor did Dice cite any evidence for that claim. On appeal, Dice points to the fact that in
an affidavit attached as an exhibit, Clifford Dice explained the mirroring function. But the
district court was not required to comb through the uncited record to make sense of Dice’s claim
and, at the very least, Dice was obligated to explain the factual basis for its claim to the district
court. See Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008).
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Nos. 12-2513, 13-1712
Dice v. Bold
GoToAssist to access any Dice source code.” As for Dice’s claim that Condon accessed Dice’s
servers to acquire the ALSCHART file, Dice has not presented any evidence.
V.
For the foregoing reasons, we affirm the district court’s grant of Bold’s motion for
summary judgment and its denial of Dice’s motion for indicative ruling.
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