serial numbers are non-copyrightable

Serial numbers are non-copyrightable — Southco v. Kanebridge Corp., No. 02-1243, 3d Circ., en banc, 12/3/2004.

Wacky procedural history. The case is all about Southco’s screw numbering system — which produces numbers that look like this: “47-10-202-10” and “47-10-502-50”. Kanebridge used Southco’s screw numbering system to label their own screws which were sold at a lower price. Southco of course sued, for copyright & TM infringement. [I haven’t read the briefing & lower court opinions but wouldn’t Kanebridge have had a counterclaim for intentional interference with business, unfair business practices, and abuse of process? The TM infringement claim is not discussed in this case but must surely have been dismissed — you can use someone else’s mark to make comparisons.]

Lower court (2000 WL 21257, ED PA 2000) said, Yes, the numbering system is copyrightable.

The Numbering System, with its unique, non-intuitive and highly complex attributes, easily satisfies the standard for originality. It was created out of nothing, and has developed to some use as an industry standard…. It is expandable as new products are developed, and is of use to Southco employees and customers.

That was clearly wrong — a system is by definition not copyrightable.

A Third Circuit panel in SouthCo I (258 F.3d 148 (3d Cir. 2000)) thought so too, and reversed/remanded, finding that there was a system, which was not copyrightable because, well, systems aren’t copyrightable. As for the individual numbers, the system dictated the assignment of numbers, and there was no creativity in their assignment.

Dist. Ct followed, apparently reluctantly, SouthCo I and granted SJ.

A new 3d Circuit panel now reversed, saying that panel I was factually wrong as to how the numbers were assigned. SouthCo II.

Now the Third Circuit decided to hear the case en banc and concluded that the SouthCo part numbers are not copyrightable.

Discussion

The court supported its holding of noncopyrightability with two lines of reasoning.

(1) The first looked at the Feist for originality, and found that

In this case, the Southco product numbers are not ‘original’ because each number is rigidly dictated by the rules of the Southco system. Because ideas may not be copyrighted, Southco does not assert any claim of copyright in its numbering system, but instead focuses on the part numbers themselves. The numbers, however, do not reflect any creativity. … In sum, we hold that the Southco part numbers are not protected by copyright because they are mechanically produced by the inflexible rules of the Southco system.

Southco v. Kanebridge Corp. [pdf], p.10, p.14. Southco had argued that Burrow-Giles (the Oscar Wilde photographs-can-be-copyrightable case) supported their contention that the mechanical process of assigning numbers was akin to the mechano-chemical processes that created photographs. The court also pointed out that an “aleatoric painting (or other work of aleatoric art) does not result from the rigid application of a system of pre-set rules,” (*) apparently responding to a suggestion at oral argument that aleatoric painting might be a good analogy to the Southco numbering system!

(2) The court also said that the numbers themselves were not copyrightable because they were effectively short phrases or the titles of works, citing to 37 CFR § 202.1. The court cited Copyright Office’s determination that such short numbers lack creativity, and concern that granting copyright to them would interfere with their legitimate uses.

… more later