Pyrotechnics Management Inc v. XFX Pyrotechnics LLC

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-1695
____________
PYROTECHNICS MANAGEMENT, INC.
v.
*XFX PYROTECHNICS LLC; FIRETEK,
Appellants
*Dismissed Pursuant to Clerk Order dated 12/29/21.
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:19-cv-00893)
District Judge: Honorable Robert J. Colville
____________
Argued on April 27, 2022
Before: HARDIMAN, NYGAARD, and FISHER, Circuit
Judges.
(Filed: June 29, 2022)
Louis J. Kroeck [Argued]
LJK Law PLLC
1200 Sarah Street
Pittsburgh, PA 15203
Counsel for Appellant
Kevin C. Harkins
Lucy E. Hill [Argued]
Frederick L. Tolhurst
Dentons Cohen & Grigsby P.C.
625 Liberty Avenue
5th Floor
Pittsburgh, PA 15222
Counsel for Appellee
___________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
This appeal arises under the copyright laws of the
United States. The parties are competitors in the fireworks
business. Appellee Pyrotechnics Management, LLC
(Pyrotechnics) sued Appellant fireTEK under 17 U.S.C. § 106,
claiming fireTEK violated Pyrotechnics’s copyright in the
communication protocol it uses to control fireworks displays.
Pyrotechnics sought, and received, a preliminary injunction
preventing fireTEK from distributing its allegedly infringing
product. fireTEK contends here, as it did in the District Court,
that Pyrotechnics’s copyright in the protocol is invalid. We
agree, so we will vacate the preliminary injunction entered by
2
the District Court and remand the case for the District Court to
dismiss Pyrotechnics’s copyright claim.
I
A Pennsylvania company, Pyrotechnics manufactures
and sells hardware and software that control fireworks displays
under the “FireOne” brand. fireTEK App. 71–72. The FireOne
system includes two main devices: a control panel and a field
module. The control panel accepts user input, creates digital
messages, and converts the digital messages to analog signals
that it sends to a field module over two wires. On receipt of the
analog signal, the field module decodes the message and
performs the assigned task—for example, the message may
instruct the field module to ignite a particular firework.
Sometimes the field module sends a response message to the
control panel. Since around 1995, Pyrotechnics’s control
panels and field modules have used a proprietary protocol to
communicate with each other. Pyrotechnics developed the
protocol to enable the FireOne system to precisely—and
safely—control complex fireworks displays, which can
involve tens or hundreds of field modules.
Pyrotechnics’s Romanian competitor, fireTEK, reverse-
engineered Pyrotechnics’s hardware to learn its
communication protocol. In 2018, fireTEK developed a router
that could send analog signals to Pyrotechnics’s field module
just like those sent by Pyrotechnics’s control panel. In early
2019, fireTEK began promoting its router as a replacement for
Pyrotechnics’s control panel. Pyrotechnics responded by
sending fireTEK a letter claiming the router infringed
Pyrotechnics’s copyright in its communication protocol.
3
In June 2019, Pyrotechnics filed a seven-page document
describing its protocol (the Deposit Copy) with the United
States Copyright Office and received from the Office a
Certificate of Registration. Though the Certificate indicates the
copyrighted work is “text,” fireTEK App. 60, Pyrotechnics
asserts that it submitted the Deposit Copy as “identifying
material” for its protocol under 37 C.F.R. § 202.20(c)(2)(viii)
(permitting submission of specified representative “identifying
material” for certain “[m]achine-readable” electronic works).
Pyrotechnics claims the protocol was first published when it
was embedded inside its hardware in 1995.
With its Certificate of Registration in hand,
Pyrotechnics sued fireTEK—and its United States distributor,
XFX Pyrotechnics, LLC—for copyright infringement, tortious
interference with prospective contractual relations, and unfair
competition. See 17 U.S.C. § 411(a). Shortly after filing its
complaint, Pyrotechnics moved for a preliminary injunction
prohibiting fireTEK and XFX from selling or distributing
fireTEK’s router.
After hearing testimony from the principal of each
company and Pyrotechnics’s electrical engineering expert
witness, the District Court granted Pyrotechnics’s motion and
enjoined fireTEK and XFX. Pyrotechnics Mgmt., Inc. v. XFX
Pyrotechnics LLC, 2021 WL 925812, at *17 (W.D. Pa. Mar.
11, 2021). The District Court held that Pyrotechnics was likely
to prevail on its infringement claim because the company’s
“command codes” (a part of the communication protocol) are
protected by copyright and fireTEK’s router infringed that
copyright. Id. at *12, *15. The District Court rejected
fireTEK’s contentions that (1) the protocol was not
copyrightable, (2) Pyrotechnics had not properly registered its
protocol, (3) the merger and scènes à faire doctrines barred
4
extending protection to the protocol, and (4) fireTEK’s
implementation of the protocol was fair use. 1 Id. at *8 & n.7,
*9–11, *13–15. fireTEK timely appealed. 2
II
The District Court had jurisdiction over Pyrotechnics’s
copyright infringement claim under 28 U.S.C. §§ 1331 and
1338. We have jurisdiction over this interlocutory appeal under
28 U.S.C. § 1292(a)(1). We review findings of fact for clear
error, legal conclusions de novo, and the Court’s decision to
grant the preliminary injunction for abuse of discretion.
Osorio-Martinez v. Att’y Gen., 893 F.3d 153, 161 (3d Cir.
2018) (citation omitted).
In this appeal, fireTEK challenges only one element
supporting the preliminary injunction: whether Pyrotechnics
has shown a likelihood of success on its copyright infringement
claim. See Dam Things From Den. v. Russ Berrie & Co., 290
F.3d 548, 556 (3d Cir. 2002). To succeed, Pyrotechnics must
show that (1) it owns a valid copyright and (2) fireTEK copied
protected, original elements without authorization. 3 See Dun &
1
fireTEK did not challenge the District Court’s conclusions on
scènes à faire or fair use, so we do not address those issues.
2
XFX also appealed the preliminary injunction order, but its
appeal was dismissed by agreement of the parties after
Pyrotechnics and XFX settled. See Fed. R. App. P. 42(b).
3
Because Pyrotechnics claims that its copyrighted materials
were first published in a product nearly 25 years before it
registered its Deposit Copy, the presumption of validity that
5
Bradstreet Software Svcs., Inc. v. Grace Consulting, Inc., 307
F.3d 197, 206 (3d Cir. 2002).
III
Pyrotechnics’s communication protocol and the
Deposit Copy submitted to the Copyright Office are central to
resolving this dispute, so we describe both in some detail.
According to the Deposit Copy, the protocol includes three
components: (1) a custom digital message format; (2) specified
individual messages that conform to the format and
communicate specific information; and (3) a transmission
scheme that describes how an individual digital message is
converted into an analog signal that can be sent over the wires
that connect the control panel and field module.
The Deposit Copy states that each digital message must
conform to a twelve-byte format. A byte is a series of eight bits,
where each bit is a digital 0 or 1, so each twelve-byte digital
message is a series of ninety-six bits. The first two bytes of
each message are designated “header bytes” that contain
synchronization information. The last byte of each message is
a “cyclic redundancy check,” whose value is calculated based
on the values of the other eleven bytes. The cyclic redundancy
check byte is used to ensure there are no errors in the
transmitted message. Pyrotechnics acknowledges that using
synchronization header bytes and cyclic redundancy check
bytes are standard communication practices. The remaining
normally attaches to a Certificate of Registration does not
apply. 17 U.S.C. § 410(c). Pyrotechnics thus bears the burden
of proving its copyright is valid. See Montgomery v. Noga, 168
F.3d 1282, 1289 (11th Cir. 1999).
6
nine bytes of Pyrotechnics’s digital messages have different
values depending on the message being communicated.
According to Pyrotechnics, its twelve-byte digital
message format can generate more than four billion distinct
digital messages. Yet Pyrotechnics’s Deposit Copy identifies
only four individual messages: three that the control panel can
send to the field module (Enable Fire Power, Cue Test, and Fire
Cue(s)) and one that the field module can send to the control
panel (response to the Cue Test message). The Deposit Copy
graphically depicts how each message is constructed by
showing the values of specified bytes using a hexadecimal
number. 4 For example, the Deposit Copy describes the Enable
Fire Power message this way:
0 1 2 3 4 5 6 7 8 9 10 11
0x23 0x23 X X X X X X X FPE X CRC
See XFX App. 197; fireTEK App. 77. The second row
indicates the value assigned to the byte number indicated in the
first row. See XFX App. 197.
As shown, for the Enable Fire Power message the
Deposit Copy specifies the values of only four of the twelve
message bytes: it specifies the same hexadecimal number
(0x23) for the first two synchronization header bytes; “CRC”
for the last byte, which is the cyclic redundancy check value;
4
Hexadecimal is an alphanumeric code that uses the numbers
0 through 9 and the letters “a” through “f” as shorthand to
represent the eight bits—the 0’s and 1’s—in each byte. See,
e.g., Lotus Dev. Corp. v. Paperback Software Int’l, 740 F.
Supp. 37, 43–44 (D. Mass. 1990).
7
and “FPE” for the tenth byte, which the Deposit Copy explains
is the hexadecimal number 0x46 when fire power is enabled.
XFX App. 197; fireTEK App. 77. The remaining eight bytes
are labeled “X,” which the Deposit Copy explains are “Don’t
care[s],” meaning those bytes are not used for that message.
XFX App. 197; fireTEK App. 106–07. Pyrotechnics’s expert
testified that, in practice, the “Don’t care” bytes must have a
value of 0 for the control panel and field module to understand
the message. fireTEK App. 106–07. For the other three
messages, the Deposit Copy shows the contents of some bytes
rather than specifying particular values. For example, the
Deposit Copy shows that one byte of the Cue Test message
contains the “address” of the module to which the message is
directed, without specifying the particular value of that
address. XFX App. 197, 199.
Finally, the Deposit Copy describes how the digital
messages are converted to an analog signal that can be
transmitted along the wires connecting the control panel and
field module. The Deposit Copy states that the 0’s and 1’s of
the message bits are encoded through frequency shift keying
(FSK)—a standard modulation technique—using two non-
standard frequencies at a specified data rate. Pyrotechnics
selected the frequencies to avoid interference with other
broadcast signals.
We have described what the Deposit Copy contains. But
what the Deposit Copy omits is also relevant. The Deposit
Copy does not reproduce any digital message verbatim (i.e., it
does not state the complete series of ninety-six bits for any
message in either binary or hexadecimal formats). And though
the parties and the District Court refer to the digital messages
as “command codes,” the Deposit Copy does not contain any
8
source code or object code. 5 See, e.g., Pyrotechnics Mgmt.,
2021 WL 925812, at *4; Pyrotechnics Br. 19–20; fireTEK Br.
9. Instead, the Deposit Copy reads like a manual, instructing a
user how to generate digital messages—and convert those
digital messages to analog signals—that Pyrotechnics’s control
panel and field module can send and understand.
IV
Having described the essential facts of the case, we turn
to the applicable law. Copyright protection is available for
“original works of authorship fixed in any tangible medium of
expression.” 17 U.S.C. § 102(a). “[A] valid copyright,”
however, “extends only to copyrightable subject matter.” Star
Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1008
(2017). Congress expressly excluded certain subjects from
copyright protection, no matter how original they might be.
Those exclusions include “any idea, procedure, process,
system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described.” 17 U.S.C.
§ 102(b).
5
“Source code” refers to the human-readable statements—
written in a syntax defined by a programming language like
JavaScript or Python—that make up a computer program. See
Apple Comput., Inc. v. Franklin Comput. Corp., 714 F.2d
1240, 1243 (3d Cir. 1983). “Object code” is a translation of
source code into a binary machine language (0’s and 1’s) that
is readable by a computer. Id. While both source and object
code are copyrightable, see id. at 1249, Pyrotechnics has not
sought protection for the source or object code of any computer
program.
9
The copyright statute thus limits the scope of our
inquiry. When determining copyrightability, we cannot
consider elements of Pyrotechnics’s protocol related to the
transmission scheme: the use of FSK modulation, the selection
of non-standard frequencies, or the duration of each bit (the
data rate). These elements constitute a “method of operation”
ineligible for copyright. Id. And since Pyrotechnics did not
register a copyright in any computer program, we have no
cause to consider whether any source code or object code is
protected. To the extent the District Court relied on non-
copyrightable elements to determine copyrightability and
characterized the digital messages as copyrightable object
code, it erred. See Pyrotechnics Mgmt., 2021 WL 925812, at
*9, *1.
So the question becomes: are the digital message format
and the individual messages copyrightable? We conclude not.
As we will describe, Pyrotechnics’s digital message format is
an uncopyrightable idea and the individual digital messages
described in the Deposit Copy are insufficiently original to
qualify for copyright protection. 6
6
Even if Pyrotechnics’s Certificate represents a valid
copyright in the Deposit Copy’s text as a literary work, that
copyright could not prevent fireTEK—or anyone else—from
using the digital message format or individual messages
described in the Deposit Copy. Baker v. Selden, 101 U.S. 99,
102, 107 (1879) (an author’s copyright for a book explaining
an accounting system and containing blank accounting forms
did not give the author the exclusive right to use the art or
method).
10
A
“It is axiomatic that copyright does not protect ideas,
but only expressions of ideas.” Whelan Assocs., Inc. v. Jaslow
Dental Lab’y, Inc., 797 F.2d 1222, 1234 (3d Cir. 1986); see
also Mazer v. Stein, 347 U.S. 201, 217 (1954). “[A] patent
affords protection . . . to the means of reducing an inventive
idea to practice,” while copyright “protects the means of
expressing an idea.” Apple Comput., Inc. v. Franklin Comput.
Corp., 714 F.2d 1240, 1250 (3d Cir. 1983) (quoting Dymow v.
Bolton, 11 F.2d 980 (2d Cir. 1926)). So determining whether
an author is claiming protection for an idea or for the
expression of an idea is often dispositive to resolve
copyrightability. See, e.g., Tanksley v. Daniels, 902 F.3d 165,
174 (3d Cir. 2018) (discussing the effect of the idea-expression
determination on the extent of copyright protection in a
television show).
The line between uncopyrightable idea and
copyrightable expression can be difficult to draw, however,
particularly for utilitarian works like Pyrotechnics’s
communication protocol. We first examined the idea-
expression distinction in the analogous computer software
context nearly forty years ago. In Apple Computer, we adopted
a test for computer programs that “focus[ed] on whether the
idea is capable of various modes of expression. If other
programs can be written . . . which perform the same function
. . . then that program is an expression of [an] idea and hence
copyrightable.” 714 F.2d at 1253. But if the computer program
is the sole way to perform the function, it is an uncopyrightable
idea. See id.We refined our idea-expression rule for utilitarian
works three years later in Whelan. 797 F.2d at 1248. There,
11
we recognized that “the line between idea and expression may
be drawn with reference to the end sought to be achieved by
the work in question.” Id. A work’s idea, we said, is its
“purpose or function.” Id. “[E]verything that is not necessary
to that purpose or function [is] part of the expression of the
idea. Where there are various means of achieving the desired
purpose, then the particular means chosen is not necessary to
the purpose; hence there is [protectable] expression, not idea.”
Id. (emphasis omitted) (citations omitted). We observed in
Whelan that, though perhaps “difficult to understand in the
abstract,” the rule becomes clearer in its application. Id. at 1248
n.28. That is true here.
The District Court identified the “purpose or function”
of the protocol as “to communicate between the FireOne
control panel and . . . field module.” Pyrotechnics Mgmt., 2021
WL 925812, at *9. But the Court also described the protocol’s
“idea” generically as “controlling pyrotechnics displays.” Id.at *3–4, *10. The District Court’s disparate designations
conflict with Whelan: “the purpose or function of a utilitarian
work [is] the work’s idea.” 797 F.2d at 1236 (emphasis omitted
in part).
The District Court correctly identified the purpose and
function of the protocol. While the purpose of the FireOne
system—including the control panel and the field module,
together—is to control fireworks displays, the protocol enables
Pyrotechnics’s control panel and field module to communicate
with each other. This purpose is underscored by Pyrotechnics’s
repeated references to the “communication protocol” and the
“communication code.” See, e.g., fireTEK App. 64–65
(statements of Pyrotechnics’s counsel), 73–75 (statements of
Pyrotechnics’s President) (emphasis added). Under Whelan,
this communicative purpose is also the protocol’s idea.
12
Moreover, the digital message format is an essential part
of this idea. Pyrotechnics admits 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. See Whelan, 797 F.2d at 1236.
Our conclusion that the digital message format forms
part of an uncopyrightable idea tracks our decision in Southco,
Inc. v. Kanebridge, 390 F.3d 276, 282 (3d Cir. 2004) (en banc).
In that case, fastener manufacturer Southco developed a part-
numbering system to identify its products. Id. at 278. Its system
assigned a nine-digit number to each part, with different digits
(or groups of digits) signifying different relevant product
characteristics—for example, screw type, thread size, screw
composition, and finish. Id. When a competitor adopted the
same numbering system, Southco alleged copyright
infringement. Id. at 279. Before evaluating whether any
individual part numbers were protected, we observed that
“[b]ecause ideas may not be copyrighted, Southco does not
assert any claim of copyright in its numbering system.” Id. at
282 (emphasis omitted).
Pyrotechnics’s digital message format is analogous to
Southco’s part-numbering system. Pyrotechnics’s format
defines a twelve-byte message (like Southco’s nine-digit part
number), where different bytes (like Southco’s digits)
represent different functions (like Southco’s product
characteristics). As with Southco’s part numbers, the digital
messages are “produced mechanically using a [format] with
fixed rules.” See id. at 284. We observed in Southco that the
part-numbering system was an uncopyrightable idea. Id. at
13
282. For similar reasons, we hold that Pyrotechnics’s digital
message format is part of an uncopyrightable idea. 7
7
fireTEK also challenges the District Court’s conclusion that
merger did not bar copyright protection of Pyrotechnics’s
protocol. Under merger, “when the idea and the expression of
the idea coincide, then the expression will not be protected in
order to prevent creation of a monopoly on the underlying
‘art.’” Educ. Testing Servs. v. Katzman, 793 F.2d 533, 539 (3d
Cir. 1986). Though “rare,” it “is generally found in works with
a utilitarian function.” Kay Berry, Inc. v. Taylor Gifts, Inc., 421
F.3d 199, 209 (3d Cir. 2005). As “[t]he merger principle . . . is
a variation of the idea/expression dichotomy,” Educ. Testing
Servs., 793 F.2d at 539, it requires essentially the same inquiry
as the Whelan rule, see Apple Comput., 714 F.3d at 1253.
Because we conclude that Pyrotechnics’s digital message
format is an essential part of the protocol’s idea, even if any
part of the digital message format is expression, the merger
doctrine bars enforcement of copyright protection for that
expression. Otherwise, extending copyright protection to
Pyrotechnics’s digital message format would yield the very
situation merger seeks to prevent: granting Pyrotechnics a
monopoly on communication with its field modules. See
Silvertop Assocs., Inc. v. Kangaroo Mfg. Inc., 931 F.3d 215,
222 (3d Cir. 2019). To secure such a monopoly, Pyrotechnics
could have sought a patent, but it did not. See Mazer, 347 U.S.
at 217 (“Unlike a patent, a copyright gives no exclusive right
to the art disclosed.”); Vaupel Textilmaschinen KG v.
Meccanica Euro Italia SPA, 944 F.2d 870, 875 (Fed. Cir. 1991)
(citing 35 U.S.C. § 154) (“A patent provides its owner with the
14
B
We now consider the copyrightability of the individual
digital messages Pyrotechnics specified in its Deposit Copy.
Only “original works” are eligible for copyright protection. 17
U.S.C. § 102(a). “In order to satisfy the ‘original works’
requirement, a work must be original in the sense that it was
not copied from another’s work and in the sense that it shows
creativity (‘the creativity requirement’).” Southco, 390 F.3d at281 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.
340, 346 (1991)). The creativity requirement does not present
a high bar. Dam Things From Den., 290 F.3d at 563–64. But
the requirement is not satisfied if “the creative spark is utterly
lacking or so trivial as to be virtually nonexistent.” Southco,
390 F.3d at 281 (quoting Feist, 499 U.S. at 358–59).
In Southco, we concluded that the manufacturer’s part
numbers were “not ‘original’ because each number [was]
rigidly dictated by the rules of the [manufacturer’s numbering]
system.” 390 F.3d at 282. Any creativity in developing the
numbering system—for example, identifying relevant product
characteristics and assigning particular digits to represent a
given characteristic—did not reflect creativity in the individual
part numbers themselves. Id. “Once . . . the system was in
place, . . . all of the products in the class could be numbered
without the slightest element of creativity”; the part numbers
“result[ed] from the mechanical application of the system, not
creative thought.” Id. (citation omitted). In fact, we noted that
the “utter absence of creativity” was “an essential attribute” of
the part numbers. Id. Were the products numbered creatively
right to exclude others from making, using, and selling the
claimed invention.”).
15
(i.e., if the part numbers varied from those specified by the
numbering system), customers would be unable to specify the
precise fastener they wished to purchase. Id. We observed that
it is a “basic copyright principle[]” that “protection should not
be extended to part numbers that represent an ‘inevitable
sequence dictated by the logic of the parts system.’” Id. at 282–
83 (quoting 1 WILLIAM F. PATRY, COPYRIGHT LAW AND
PRACTICE 46 (2d ed. 2004)). Because Southco’s part numbers
were not original, they were not copyrightable. Id. at 285.
Pyrotechnics’s digital messages can ignite fireworks,
but like Southco’s part numbers, they lack “even a spark of
creativity.” See id. at 283. The digital message format provides
rules for constructing messages with particular meanings, and
individual messages are generated by applying those rules
mechanically. See id. at 283. As with Southco’s part numbers,
the “utter absence of creativity” is “an essential attribute” of
Pyrotechnics’s digital messages, see id. at 282. Were the
messages to vary from those specified—for example, if a
different bit sequence were substituted for a header byte—
Pyrotechnics’s devices would not recognize the messages, and
the purpose of the protocol (i.e., to enable Pyrotechnics’s
control panels and field modules to communicate) would be
defeated. Thus, the messages are no more than an “inevitable
sequence dictated by the logic” of the format. Id. at 282–83
(quoting 1 PATRY, at 46). “[B]ecause they are mechanically
produced by the inflexible rules of” Pyrotechnics’s digital
message format, the individual digital messages “are not
protected by copyright.” See id. at 285.
Even if we were to set aside the mechanical way in
which the digital messages are generated, we would still
conclude that the digital messages fail to exhibit the minimal
originality required for copyright protection. The potentially
16
creative copyrightable elements include the organization and
sequencing of the bytes, as well as the precise byte values that
Pyrotechnics selected. Cf. Whelan, 797 F.2d at 1239, 1241(court may consider both literal and non-literal elements, like
sequence and ordering, when determining copyrightability of
computer programs). But using leading header bytes for
synchronization and a trailing byte as a cyclic redundancy
check are standard communication practices, not creative
sequencing. And Pyrotechnics fails to specify values for many
other bytes, instead labeling them “Don’t care” or showing the
type of information the byte contains, rather than a particular
value. For example, beyond the unoriginal header and error
check bytes, the Enable Fire Power message specifies a value
for only one of the remaining nine bytes. Any originality in
selecting a value for one of nine bytes is, in the words of
Southco, “so trivial as to be virtually nonexistent.” 390 F.3d at
281. Indeed, other courts of appeals have agreed that numeric
“codes” similar to Pyrotechnics’s digital messages lack the
originality necessary for copyright protection. See Mitel, Inc.
v. Iqtel, Inc., 124 F.3d 1366, 1368, 1373 (10th Cir. 1997)
(finding a company’s set of over sixty four-digit numeric
“command codes,” in which particular digits indicated
particular functions, “largely unoriginal” because the
company’s “arbitrary selection of . . . numbers required de
minimis creative effort”); Toro Co. v. R & R Products Co., 787
F.2d 1208, 1213 (8th Cir. 1986) (finding manufacturer’s part
numbering system “lacks the requisite originality” because
numbers are “arbitrarily assign[ed] to a particular . . . part”).
We “must determine whether the author’s creativity is
enough to overcome a charge of triviality.” Dam Things From
Den., 290 F.3d at 564. In this case, we disagree with the
District Court: the creativity in the individual digital messages
17
is, at most, de minimis. See Pyrotechnics Mgmt., 2021 WL
925812, at *9. So it cannot support the broad protections
afforded by copyright. 8
V
In sum, neither Pyrotechnics’s digital message format
nor its individual messages are copyrightable. So it cannot
prevail on its copyright infringement claim. The injunction
must be vacated for want of likelihood of success on the merits,
and we will remand to the District Court with instruction to
dismiss with prejudice Pyrotechnics’s copyright infringement
claim against fireTEK. 9 Because they are not before us in this
8
fireTEK also contends that the digital messages are not “fixed
in [a] tangible medium of expression,” as required for
copyright protection, 17 U.S.C. § 102(a). The District Court
found that they were fixed, observing that the digital messages
“that are transmitted on wires to the field modules also occur
in the microprocessor of [Pyrotechnics’s] controller.”
Pyrotechnics Mgmt., 2021 WL 925812, at *10. “Occurring” in
a microprocessor is not, however, the same as being “fixed in
[a] tangible medium.” Pyrotechnics’s President stated that the
messages are “not source code that resides in a computer or in
a microprocessor somewhere,” but are “the message[s] that
flow[] from one device to another.” fireTEK App. 73.
Pyrotechnics has not explained where, or how, these
“flow[ing]” digital messages are “fixed” in a microprocessor,
memory device, or other component of its control panel or field
module.
9
Because we will vacate the preliminary injunction, we do not
address fireTEK’s challenge to the injunction bond’s
18
appeal, we express no opinion on the merits of Pyrotechnics’s
remaining claims.
adequacy. See Sprint Comms. Co. v. CAT Comms. Int’l, Inc.,
335 F.3d 235, 241 (3d Cir. 2003).
19