The U.S. Court of Appeals for the Ninth Circuit recently affirmed the district court’s holding that Adobe Systems’s InDesign desktop publishing program did not infringe the copyright of Brookhaven Typesetting Services’s K2 typesetting software due to insufficient evidence that the programs were “substantially similar.” Brookhaven Typesetting Services v. Adobe Systems, Case No. 07-16700 (9th Cir., June 1, 2009) (per curiam).

The K2 software was first developed by Science Typographers Inc. (STI). STI intended to license K2 to Aldus Corp. and provided Aldus with the program’s source code. Before STI and Aldus entered into a license for the software, STI filed for bankruptcy and sold the rights to K2 to the software’s developers. Adobe purchased Aldus, while Brookhaven purchased the rights to K2 from the developers. A few years later, Adobe announced it was developing a program named K2, which began as a project by former Aldus employees. The program was later renamed InDesign. Brookhaven filed a copyright application for K2 in 2001 and shortly thereafter filed suit against Adobe for copyright infringement, misappropriation of trade secrets, unfair competition and breach of contract. In its complaint, Brookhaven alleged that the announced capabilities of InDesign contained features similar to those in K2 that were communicated to Aldus during licensing discussions. Brookhaven also contended that while the first version of InDesign did not contain several key capabilities of K2, it suspected future versions of InDesign would.

The district court granted summary judgment in favor of Adobe on all claims. The court concluded Brookhaven did not submit sufficient evidence of “substantial similarity” between the ideas and expressive elements of K2 and InDesign to warrant copyright infringement; Brookhaven neither identified similarities between the programs, nor refuted Adobe’s expert testimony that negated substantial similarity. The court ruled against Brookhaven’s remaining claims as they were premised on the alleged copyright infringement. Brookhaven appealed.

The Ninth Circuit affirmed the district court, finding that while Brookhaven could legitimately assert the ownership and access elements of copyright infringement, the only similarity between the programs that Brookhaven offered was “not substantial in the context of the entire program.” The Ninth Circuit similarly upheld the district court’s grant of summary judgment on the trade-secret, unfair competition and breach of contract claims, as such claims were either based on insufficient evidence or were dependent upon the copyright claim. The Ninth Circuit also affirmed the district court’s refusal to impose terminating sanctions on Adobe despite its “troubling and unflattering history of discovery compliance,” finding no evidence to suggest that Adobe acted in bad faith or intentionally destroyed earlier versions of relevant source code.