APPLE COMPUTER, INC., Plaintiff, v. MICROSOFT CORPORATION and HEWLETT-PACKARD
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
821 F. Supp. 616; 1993 U.S. Dist. LEXIS 6787; 27 U.S.P.Q.2D (BNA) 1081; Copy. L.
Rep. (CCH) P27,115; 93 Daily Journal DAR 9485
May 18, 1993, Filed
COUNSEL: [**1] For Apple Computer, Inc., Plaintiff: Jack E. Brown,
BROWN & BAIN, P.A., Post Office Box 400, 2901 North Central Avenue, Phoenix,
Arizona 85012, (602) 351-8000. Lois W. Abraham, Chris R. Ottenweller, Martin L.
Lagod, BROWN & BAIN, 600 Hansen Way, Suite 100, Palo Alto, California 94306,
(415) 856-9411. Bernard Petrie, 633 Battery Street, San Francisco, California
94111, (415) 982-4743.
For Microsoft Corporation, Defendant: David T. McDonald, Karl J. Quackenbush,
McDonald & Quackenbush, P.S., 1201 Third Avenue, Suite 5250, Seattle, WA 98101,
(206) 224-7099. William O. Ferron, Seed & Berry, 6300 Columbia Center, 701 Fifth
Avenue, Seattle, WA 98104, (206) 622-4900. John N. Hauser, McCutchen, Doyle,
Brown & Enersen, Three Embarcadero Center, Suite 2800, San Francisco, CA 94111,
(415) 393-2000. David H. Binney, Preston, Thorgrimson, Shidler, Gates & Ellis,
5400 Columbia Center, 701 Fifth Avenue, Seattle, WA 98104, (206) 623-7580. For
HEWLETT-PACKARD COMPANY, Defendant: JONATHAN A. MARSHALL, WILLIAM G. PECAU, JON
R. STARK, STEVEN I. WALLACH, PENNIE & EDMONDS, 1155 Avenue of the Americas, New
York, New York 10036, (212) 790-9090. NEIL BOORSTYN, McCUTCHEN, DOYLE, BROWN &
ENERSEN, Three Embarcadero [**2] Center, San Francisco, California 94111, (415)
393-2000. STEPHEN P. FOX, ROLAND I. GRIFFIN, HEWLETT-PACKARD COMPANY, 3000
Hanover Street, Palo Alto, California 94303, (415) 857-1501.
OPINIONBY: VAUGHN R. WALKER
OPINION: [*618] ORDER ADDRESSING MOTIONS FOR RECONSIDERATION FOR
SUMMARY JUDGMENT FOR LACK OF SUBSTANTIAL SIMILARITY AND FOR CONTRIBUTORY
On May 5, 1993, at 2:00 p.m., the court conducted a hearing to address the
(1) Hewlett-Packard Company's ("HP") and Microsoft Corporation's
("Microsoft") motions for summary judgment for lack of substantial
(2) Apple Computer, Inc.'s ("Apple") motion to reconsider the court's April
14, 1993, ruling directing application of the virtual identity standard in
determining the similarity of defendants' works as a whole;
(3) Microsoft's motion for summary judgment on Apple's contributory
infringement claim; and
(4) Apple's claim that HP cannot rely on the November 22, 1985 license
agreement ("1985 Agreement") as a defense to Apple's infringement claim.
Shortly before the May 5 hearing, the court issued tentative rulings on each of
the foregoing motions and invited the parties to direct their comments
accordingly. [**3] Having considered the extensive and capable oral arguments
of counsel and having reviewed the papers, declarations and exhibits submitted,
the court hereby: (1) GRANTS in part and DENIES in part
Microsoft's motion for summary judgment for lack of substantial similarity; (2)
GRANTS in part and DENIES in part HP's motion for summary judgment
for lack of substantial similarity; (3) DENIES Apple's motion for
reconsideration; (4) DENIES Microsoft's motion for summary judgment on
Apple's contributory infringement claim; and (5) DENIES Apple's motion
regarding HP's lack of a sublicense under the 1985 Agreement.
In addition, HP requested the court to rule on its Motion For Summary Judgment
That It Is Not Jointly And Severally Liable With Microsoft and its Motion for
Summary Judgment On The Literary And Application Program Works In Suit.
Microsoft also urged the court to rule on its Motion For Partial Summary
Judgment Dismissing Apple's Claims Against Windows 2.03 and 3.0 Based On Certain
Copyrights before the commencement of trial. Having reviewed the papers
submitted, the court hereby DENIES HP's first motion, GRANTS HP's
second motion, and GRANTS [**4] Microsoft's motion dismissing Apple's
claims against Windows based on certain copyrights.
To prevail on its claim of copyright infringement, Apple must ultimately prove
both ownership of a valid copyright and copying of protected expression by
defendants. Copying may be inferred from (1) access to the copyrighted work by
defendants and (2) substantial similarity of both ideas and expression between
the copyrighted work and the allegedly infringing work. Data East USA, Inc v
Epyx, Inc, 862 F2d 204, 206 (9th Cir 1988).
As articulated in Apple Computer, Inc v Microsoft Corp, 799 F Supp 1006 (ND Cal
1992) (hereinafter "August 7 order"), the Ninth Circuit employs a two-part
analysis for determining substantial similarity: extrinsic and intrinsic tests.
The extrinsic test is an objective one to determine whether there is [*619]
substantial similarity in the ideas; it depends upon specific criteria which can
be listed and analyzed. Analytic dissection is appropriate. Sid & Marty Krofft
Television Productions, Inc v McDonald's Corp, 562 F2d 1157, 1164 (9th Cir
1977); Shaw v Lindheim, 919 F2d 1353, 1357 (9th Cir 1990). [**5] The intrinsic
test is a subjective one to determine whether there is substantial similarity in
expression; it depends on the response of the ordinary reasonable person.
Krofft, 562 F2d at 1164. Infringement can only be found if each of the two parts
is satisfied. Id; Olson v National Broadcasting Co, Inc, 855 F2d 1446, 1449 (9th
Cir 1988); Frybarger v International Business Machines Corp, 812 F2d 525, 529
(9th Cir 1987).
In the present case, the parties do not dispute Apple's ownership of valid
copyrights, and defendants clearly had access to Apple's copyrighted works. The
only remaining issue is whether defendants' works are substantially similar in
both ideas and expression to warrant a finding of infringement.
Here, the court has already completed the extrinsic analysis and summarized its
results in the August 7 order. In that order, the court determined that the vast
majority of the allegedly similar items were unprotectible due to merger, scenes
a faire, functionality and unoriginality. Of the approximately one-hundred fifty
alleged similarities, the court found that only five items [**6] -- A1, D1,
G4, G13 and J10 -- could possibly be associated with unlicensed artistic
expression to be compared under the "virtually identical" standard in the course
of intrinsic analysis. Apple, 799 F Supp at 1041-42. The court also conclude
that only items G28, G29, G33 and H2 could be associated with unlicensed
artistic expression to be judged under the "substantial similarity" standard
during the intrinsic analysis phase. Id.
After the court issued the August 7 order, both HP and Microsoft moved for
summary judgment for lack of substantial similarity on the remaining elements.
Microsoft moved for summary judgment as to items A1, D1 and G4. HP moved for
summary judgment as to items A1, D1, G4, G13, J10, G28, G29, G33 and H2. Section
II presents the court's rulings on each of these remaining items.
A1 The design and layout in Macintosh includes overlapping rectangular
windows in front of a muted background pattern.
The only feature of the overlapping windows in the Macintosh Finder and Lisa
Desktop which reflects any separate artistic expression is the drop shadow that
appears at the right and lower edges of the overlapping windows in those [**7]
works. As stated in the August 7 order, this item is to be judged on a virtually
identical standard. Yet, no version of HP's NewWave nor any version of
Microsoft's Windows uses a drop shadow on its windows. Therefore, item A1 in
both NewWave and Windows is not virtually identical to item A1 in Macintosh or
D1 Macintosh design animation drags a gray outline of the window along with
the cursor when the mouse is pressed on a window's title bar.
Applying the virtual identity standard as noted by the August 7 order, the court
finds that item D1 in all versions of Microsoft's Windows and all versions of
HP's NewWave is not virtually identical to item D1 in Apple's works. Apple's
works depict a moving window with a thin (single-pixel wide), dotted, gray
outline. In contrast, the outlines in each version of the Microsoft and HP works
are solid, contrasting colored and of variable width, capable of increasing or
decreasing thickness (up to several-pixel wide).
Furthermore, the court previously ruled that the use of an outline to indicate a
moving window is not protectible, and Apple has pointed to no separate artistic
expression beyond the outline. Accordingly, HP's and Microsoft's [**8] motions
for lack of similarity as to item D1 are GRANTED.
[*620] G4 Macintosh design animation moves an icon to any part of the
screen by dragging it along with the cursor when the user presses the mouse on
the icon. Windows 2.03 and NewWave (within the NewWave Office windows) also
present the same animation design, appearance and style.
When an icon is moved in Macintosh Finder, the icon is represented by a thin
(single-pixel) outline that approximates the shape of the icon and its title.
The shape of the outline varies with the length of the icon title and generally
resembles an inverted "T". While the outline moves about with the cursor, the
icon itself is shown at its original position in inverse video. In Lisa Desktop,
a moving icon is shown by an outline in the shape of the icon that is dragged
with the cursor. At its original location the icon is whited-out while the title
remains in inverse video.
Each version of NewWave uses visual displays that are markedly different when an
icon is moved. The moving icon is represented by a set of thick (several-pixel
wide) dark brackets that are the same size and shape regardless of the shape of
the icon and the length of its name. [**9] At its original position, the icon
is grayed-out. These displays are not virtually identical to the corresponding
displays of item G4 in Apple's works.
Similarly, each version of Microsoft's Windows employs methods of depicting a
moving icon that differ significantly from those used in Macintosh and Lisa. For
example, in Windows 3.0 and 2.03, the moving icon is represented not by an
outline or square brackets but by a complete icon with all its details. Also,
while the user moves the icon to a new position, nothing remains at the original
position, not even an inverse video image or a whited-out shadow. Accordingly,
the court GRANTS HP's and Microsoft's motions for summary judgment for
lack of virtual identity as to item G4.
G13 The design and layout in Macintosh presents different images within the
outline of a generic page icon to indicate objects of different non-directory
In its August 7 order, the court held that the actual depiction of the images in
the page icons can be protectible. Apple has not, however, identified any
particular icon images in any version of NewWave that Apple contends is similar
to any particular icon images in the Macintosh or Lisa works. [**10] Each
image within a page icon in the three versions of NewWave is different from
those images contained in Apple's works. Notably, NewWave 3.0 uses color and
perspective. Although images in the page icons of NewWave 1.0 and NewWave 1.0
Developer's Release more closely resemble those pictures in Apple's works, many
of these similarities arise out of the need for the picture on the icon's face
to reveal the contents of the folder or the functionality of the program. For
example, a folder which contains a bar chart should normally depict a bar chart
on the face of the icon. In no instance, however, are any such images in any
version of NewWave virtually identical to the images used within Macintosh or
Lisa page icons. Accordingly, HP's motion for lack of virtual identity is
GRANTED as to item G13.
J10 The design and layout in Macintosh attributes dialog presents the
object's icon, name, type, creation date, modification date, size, and
The court's August 7 ruling held that the attributes dialog box n1 is not
protectible except to the extent that it contains identifiable artwork or a
unique arrangement, and in the latter case receives protection only [**11]
against virtually identical copying. The Macintosh Finder "Get Info" box
contains no identifiable artwork, and the arrangement of the NewWave
"Attributes" dialog box is not virtually identical.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 An attributes dialog box provides the user with certain basic information
about a document or a directory, such as name of the document or directory, date
created, date modified, size, type and any special comments from the user.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In NewWave 1.0 and 3.0, the dialog box includes a scroll bar in the comments
area; [*621] "OK", "Cancel", and "Help" buttons; an editing field for the icon
name; and creator and address information. Macintosh Finder's "Get Info"
contains none of these features.
The "Attributes" dialog box in NewWave Developer's Release features the icon on
the left and provides an edit field for the icon title, whereas in Macintosh
Finder the icon is on the right and its title cannot be edited. Also, like
NewWave 1.0 and 3.0, NewWave Developer's Release provides a scroll bar in the
comment area; "Done", "Cancel", and [**12] "Help" buttons; and identification
of the creator and last modifier of the document. The Macintosh Finder provides
none of these features. Thus, each version of NewWave has an attributes dialog
box that presents different information in a different arrangement in comparison
to the attributes dialog box in Macintosh Finder. Lisa Desktop does not have an
attributes dialog box. Accordingly, the court finds no virtual identity between
Apple's works and HP's works in the expressions corresponding to item J10 and
GRANTS HP's motion.
G28 Macintosh design animation displays a rapid sequence of expanding
rectangles beginning at the icon's position and ending at the window's position
when an icon is opened into a window.
G29 Macintosh design animation displays a rapid sequence of expanding [sic,
contracting] rectangles beginning at the window's position and ending at the
icon's position when a window is closed into an icon.
HP draws the court's attention to several differences between the "zooming
rectangles" in NewWave and those in Macintosh Finder and Lisa Desktop. Most
notably, Macintosh Finder uses rectangles drawn with small, thin (single-pixel
wide), black lines and [**13] employs an effect characterized by Apple as a
"curve ball" n2 effect when opening an icon or closing a window. Lisa Desktop
also utilizes thin (single-pixel), black rectangles for its zooming rectangles.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 The "curve ball" effect describes a path traversed by the zooming rectangular
windows similar to that traversed by a curve ball pitch in baseball.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In contrast, HP notes that its NewWave 1.0 and 3.0 employ a set of thick
(several-pixel wide) corner brackets, not rectangles, that expand to the final
window position. Unlike any of Apple's works, each corner bracket in NewWave
appears in a color (often times blue, red or gray) that contrasts with the
background displays that it passes over, and no curve-ball effect is used. When
an icon is opened in NewWave Developer's Release, HP claims that a set of thick
(several-pixel wide) rectangles expands to the final window position, again
using contrasting colors but no curve ball effect.
The court finds that the minor variations that HP point to, such as the use of a
"curve-ball" [**14] effect, brackets instead of solid lines, and contrasting
and multiple colors, are likely to be overlooked or dismissed as inconsequential
by the average user. Opening or closing a window takes only a fraction of a
second. As such, it is difficult to discern the differences noted by HP,
especially the absence of the "curve-ball" effect in HP's products. Therefore,
the court cannot decide as a matter of law that no reasonable juror would find
items G28 and G29 substantially similar. Accordingly, HP's motions for summary
judgment for lack of substantial similarity as to items G28 and G29 are
G33 Macintosh design animation indicates that a folder icon has been opened
into a window by displaying the icon as dimmed.
Applying the substantial similarity test as noted by the August 7 order, the
court finds that a jury could reasonably conclude that item G33 in all versions
of NewWave is substantially similar to item G33 in Apple's works. To be sure,
there are minor differences in the way Apple implements icon dimming and the way
HP implements dimming. For example, when an icon is opened into window in
Macintosh Finder, the dimming effect replaces the outline of the icon [**15]
with a dotted area of the same size, eliminating all of the detail that the icon
previously featured. The appearance of the icon's title [*622] remains
unchanged, with dark letters on a white background. Similarly, in Lisa Desktop,
the outline and all detail in the icon are removed and the title of the icon is
unchanged. In addition, no dimming appears in Lisa Desktop, resulting in an
effect much like the whiting-out used in the Xerox 8010 Star Information System.
In contrast, after opening an icon into a window in NewWave 3.0, the outline and
details of the icon are still visible, the lettering in the title changes from
white to black and a thin drop shadow appears at the right and bottom edges of
The similarities, however, between Apple's works and HP's are even more
impressive. As in Macintosh Finder, in NewWave 3.0, a distinctive, dotted gray
pattern covers the icon to indicate that the icon has been opened. The same
distinctive, dotted gray pattern covers the icon in NewWave 1.0 and NewWave
Developer's Release. The court recognizes that there are numerous alternatives
to "dimming" to indicate an opened icon, including use of color, changes in
texture, shading, blinking, [**16] a surrounding box or other shape, or
three-dimensional pop-up effects, to name a few. See P 17 of the March 30, 1990
Shneiderman Declaration. Notwithstanding these alternatives, HP adopted
animation in all three versions of NewWave that a trier of fact could reasonably
conclude is substantially similar to Apple's dimming effect. Accordingly, the
court DENIES HP's motion for summary judgment for lack of substantial
similarity as to item G33.
H2 The design and layout in Macintosh displays the special discard folder as
an icon resembling a trash can (as does Lisa).
A simple comparison of the "Waste Basket" icons used in NewWave 3.0 and NewWave
1.0 reveals that each icon is dissimilar from the "Trash" icons used in the
Macintosh and Lisa works. The "Trash" icon in Macintosh Finder is a
two-dimensional side view of an outdoor alley-style cylindrical garbage can. The
depiction includes a set of four vertical lines to simulate a ribbed or fluted
surface, and a closed lid with a handle on top. The Lisa Desktop "Waste Basket"
icon shows the same view of an alley-style garbage can, also with vertical lines
to indicate a ribbed surface, but with an open lid and a handle on the front
[**17] of the can.
In contrast, the "Waste Basket" icons in NewWave 3.0 and 1.0 are perspective
views of an indoor kitchen-style rectangular flip-top container. The NewWave 3.0
and 1.0 icons include a foot pedal and depict the top as partially open. In
addition, the NewWave 3.0 icon is displayed in a box that appears to be recessed
into the desktop. In short, the waste basket icons in NewWave 3.0 and 1.0
constitute different artistic expressions from that contained in the trash icons
in Macintosh Finder and Lisa Desktop. Thus, item H2 in NewWave 3.0 and 1.0 is
not substantially similar to item H2 in any of Apple's works, and HP's motion is
GRANTED as to NewWave 3.0 and 1.0.
The same, however, cannot be said of NewWave Developer's Release. Like the
garbage icons in the Macintosh and Lisa, the "Waste Basket" icon in NewWave
Developer's Release is depicted as an outdoor alley-style cylindrical garbage
can with a lid and a handle on the top. Although the garbage can in NewWave
Developer's Release does not have vertical lines to indicate a fluted surface or
a handle, a trier of fact could reasonably find substantial similarity between
it and the garbage icons in Apple's works. Accordingly, [**18] HP's motion for
lack of substantial similarity is DENIED as to item H2 in NewWave
A summary of the court's rulings with respect to each item discussed above is
provided in attached Table A.
In its tentative ruling dated May 5, 1993, the court proposed submission of the
following issues for trial:
(1) Applying the appropriate test to each element, are the remaining
unadjudicated elements substantially similar or virtually identical to their
equivalents in Apple's works?
(2) If so, does the presence of the elements found to be substantially
similar [*623] or virtually identical significantly alter the works in
suit as a whole?
(3) If the answer to (2) is yes, are the allegedly infringing works, viewed
as a whole, substantially similar to the copyrighted work?
If the answer to (2) is no, are the allegedly infringing works, viewed as a
whole, virtually identical to the copyrighted work?
In section II above, the court granted summary judgment in Microsoft's favor on
each of the remaining protectible element found in Windows, namely items A1, D1
and G4. See attached Table A. In so doing, the court has determined that
Microsoft's Windows consists [**19] only of elements that are either
unprotectible, licensed, or protectible but lacking sufficient similarity to
Apple's works. Even so, Microsoft's Windows may still infringe Apple's works. As
noted by the court in Apple Computer, Inc v Microsoft Corp, 779 F Supp 133,
135-36 (ND Cal 1991), copyright protection may attach to an innovative "melding"
of unprotectible features. The Ninth Circuit in Harper House, Inc v Thomas
Nelson, Inc, 889 F2d 197, 205 (9th Cir 1989), held that works consisting largely
of uncopyrightable elements are entitled to copyright protection, but receive
only limited protection. The court added that infringement should not be found
in the absence of "bodily appropriation of expression," and that bodily
appropriation occurs only if there is "copying or unauthorized use of
substantially the entire item." Id. Hence, because the court has determined that
Windows consists only of elements that are either unprotectible, licensed, or
protectible but lacking sufficient similarity to Apple's works, the jury must
apply the virtual identity standard when comparing the similarities of
Microsoft's works as a whole [**20] to Apple's.
Although the court found that each remaining protectible element in Windows
lacks substantial similarity to any elements in Apple's works, the same may not
be true of the protectible elements in NewWave. In HP's case, the court denied
HP's motion for summary judgment as to items G28, G29, G33 and H2 in part.
Having made the foregoing rulings, the court now finds that it need not submit
question (2) above to the jury. Instead, the court concludes, as a matter of
law, that the remaining unadjudicated elements (G28, G29, G33 and H2), even if
found substantially similar, do not significantly alter the works in suit as a
whole. Thus, the answer to question (2) is negative.
In Computer Associates International, Inc v Altai, Inc, 982 F2d 693, 710 (2d Cir
1992), the Second Circuit stated that after filtering out all unprotectible
elements, the court's substantial similarity inquiry should focus on the
remaining "core of protectible expression," and whether defendant copied any
aspect of this protected expression, as well as "the copied portion's relative
importance with respect to the plaintiff's overall program." (Emphasis added).
Similarly, [**21] Professor Nimmer states that "once plaintiff's work has been
filtered down to it protectible core, comparing those protected elements against
defendant's program poses essentially a value judgment, involving an assessment
of the importance of the material that was copied." 3 Melville B. Nimmer and
David Nimmer, Nimmer on Copyright § 13.03[F] at 13-102 (1992).
In the present case, G28, G29, G33 and H2 do not significantly alter (either
quantitatively or qualitatively) the works in suit as a whole. Quantitatively
these four elements constitute a small fraction of the total work. The
audiovisual works in Macintosh and Lisa are complex works, and Apple originally
alleged that approximately one-hundred fifty elements of its works were similar
to expression in NewWave. Here, the four possibly infringing elements of NewWave
are relatively minor in the context of the entire work.
Professor Nimmer states that "in some cases, the amount copied will be so small
as to be de minimis, and will not justify a finding of substantial similarity."
3 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 13.03[F] at 13-102
(1992). For example, in See v Durang, 711 F2d 141, 143 (9th Cir 1983), [**22]
the Ninth Circuit, upon conducting an analytical dissection of a play, found
that five similarities out of twenty [*624] were protectible. The court held
that as a matter of law there was no substantial similarity of the works, and
affirmed a grant of summary judgment of noninfringement:
The remaining five similarities are not sufficient to convince any
reasonable trier of fact that the [works in suit] are substantially similar.
Of course, quantitatively insignificant infringement may be substantial if the
material is qualitatively important to plaintiff's work. Narell v Freeman, 872
F2d 907, 913 (9th Cir 1989). In the present case, however, the remaining four
elements also lack qualitative significance to the works in suit.
Items G28 and G29 cover the animation effect achieved by the zooming rectangles
every time an icon is opened or a window closed. As mentioned above, it takes
only a fraction of a second to open an icon or close a window. Therefore, even
if this zooming rectangle effect is important, the whole process is of such
short duration that no jury could reasonably conclude that items G28 and G29 are
qualitatively significant to the [**23] work as a whole. Furthermore, the
zooming effect only comes into play when icons are opened or windows closed,
which takes up a small percentage of the user's time on the computer.
Item G33 pertains to the dimming of an icon to indicate it has been opened into
a window. While a dimmed icon provides useful information to the user, the icons
are typically small relative to the entire computer screen. Moreover, when an
icon is opened into a window, the newly opened window often covers up the dimmed
icon, hiding the dimmed icon from view. No jury could reasonably conclude that
the dimmed icon significantly alters the audiovisual works as a whole.
Item H2 covers the trash can icon. While clever, functional and aesthetically
pleasing, the trash icon is only one of many such icons displayed on the default
screen. Other icons include a "Diagnostic" icon depicted in the form of a
wrench, a "Printer" icon shown in the image of a printer, and a "File Drawer"
icon illustrated as a filing cabinet drawer full of folders. All of these icons
perform some useful function and are depicted in a clever and aesthetically
pleasing manner. Thus, because the trash icon is only one of several such
icons [**24] and because the screen is filled with many other images, the court
finds as a matter of law that item H2 does not significantly alter the
audiovisual works as a whole.
Of course, the law requires the court to consider the collective impact of these
four elements on the works in suit, not their individual effect. See Computer
Associates, 982 F2d at 710, (court's substantial similarity inquiry should focus
on the "core of protectible expression") (emphasis added). Yet, the collective
impact of items G28, G29, G33 and H2 is de minimis. Apple itself has never
contended that these four isolated similarities are qualitatively significant to
Apple's works as a whole. In fact, Apple itself has consistently maintained that
it has never based its infringement claims on just a few items of similarity. At
a hearing on April 14, 1992, Apple's counsel explained to the court:
I don't want to end up with this case saying, "Oh, well, all we have to do
is change a trash can or change this or that." That isn't what this case is
involving. We didn't bring a small case; we brought a case of tremendous
significance to the client and to the industry. It's virtually [**25] the
most important -- certainly the most important case I have ever tried -- but
it's important because of the impact, the importance of this intellectual
property asset of Apple's that they created and they owned and the totality
of that expression * * * .
Transcript of April 14, 1992 hearing at 38:24-39:9. Apple's counsel also offered
the following explanation of its infringement charge, again dismissing the
significance of a few individual alleged similarities:
We wouldn't complain * * * if somebody takes a graphical user interface and
makes use of the overlapping window. We wouldn't complain if somebody wanted
to even use a trash can in the riqht-hand corner or maybe -- obviously we
can protect our particular drawing of that * * *, but we wouldn't probably
complain if they took that and several other things just as closely as * * *
Microsoft and Hewlett-Packard did.
[*625] Id at 33:3-11 (emphasis added). As Apple has admitted, the remaining
items simply do not significantly alter (either quantitatively or qualitatively)
the works in suit. Therefore, the answer to question (2) above is negative, and
the virtual identity standard provides the appropriate standard [**26] when
comparing HP's works as a whole to Apple's.
Apple, of course, objects to the court's application of the virtual identity
standard in comparing the works as a whole and moves for reconsideration of the
court's April 14, 1993, ruling. Apple contends the works in suit are not
"compilations" as defined in 17 USC § 101, and that the court's reliance on
Harper House to support an application of the virtual identity standard is
The applicability of the virtual identity standard does not, however, depend on
whether the work at issue is deemed to be a compilation, but rather on the range
of possible expression. As the Ninth Circuit explained in Landsberg v Scrabble
Crossword Game Players, Inc, 736 F2d 485, 488 (9th Cir 1984),
Some ideas can be expressed in myriad ways, while others allow only a narrow
range of expression. Fictional works generally fall into the first category
* * * . An author wishing to write yet another work using the "boy meets
girl" idea can choose from a wide range of materials in composing his or her
own expression of the idea. Therefore, a new work incorporating that idea
need [**27] not be a verbatim copy or close paraphrase of an earlier work
to infringe that work.
* * *
Factual works are different. Subsequent authors wishing to express the ideas
contained in a factual work can choose from only a narrow range of
expression * * * . Therefore, similarity of expression may have to amount to
verbatim reproduction or very close paraphrasing before a factual work will
be deemed infringed.
Thus, the critical factor in deciding whether to apply a virtual identity
standard is whether the work is capable of only a narrow range of expression,
not, as Apple contends, whether the work can be labelled a compilation. Although
the works at issue here are not "factual" works per se, they are works whose
ideas can be expressed in limited ways. Landsberg teaches that the virtual
identity standard should apply in comparing such works, even if they are not
true compilations. Accordingly, the court DENIES Apple's motion for
reconsideration and REAFFIRMS that the jury shall apply a virtual
identity standard in comparing the works as a whole.
Apple alleges that Microsoft is contributorily liable for any infringement by
HP, and Microsoft has moved for [**28] partial summary judgment on this claim.
Liability for contributory infringement arises when a defendant knowingly
induces, causes, or materially contributes to the infringing activity. Gershwin
Publishing Corp v Columbia Artists Management, 443 F2d 1159 (2d Cir 1971);
Casella v Morris, 820 F2d 362, 365 (11th Cir 1987). The participation of the
alleged contributory infringer must be "substantial." Demetriades v Kaufmann,
690 F Supp 289, 294 (SDNY 1988).
Microsoft contends that it did not materially contribute to the development of
NewWave, nor did it exercise any control over the content of NewWave or its
visual displays. Microsoft further asserts that the agreement it entered into
with HP, which permitted HP to obtain master copies of Windows, make minor
hardware-specific adjustments and distribute Windows to end users, was no
different from Microsoft's standard OEM (Original Equipment Manufacturer)
agreement entered into with other OEMs such as IBM, Compaq and Digital Equipment
Corporation. In no event, according to Microsoft, did its agreement with HP
constitute a special agreement to split [**29] the efforts of developing
Apple, on the other hand, maintains that Microsoft and HP had entered into a
"highly customized" OEM license agreement in which HP and Microsoft agreed to
"split [the] efforts of development." Apple further claims that Microsoft
assisted HP with its [*626] NewWave project by making certain changes and
enhancements to Windows at HP's request and that Microsoft continues to assist
HP in solving NewWave problems, including bug fixing and "a lot of technical
issues" related to the management of memory and of system resources.
Microsoft replies that it has hundreds of customers from which it can receive
requests for bug fixes and technical information. The fact that it responded to
such requests from HP, one of its customers, does not evidence any special
relationship between the parties. Accordingly, Microsoft urges the court not to
rely on such "routine software developer behavior" as evidence that Microsoft
substantially contributed to HP's development of NewWave. The court finds,
however, that Apple has raised enough questions of material fact concerning the
extent and nature of Microsoft's involvement in the development of HP's NewWave
and the nature [**30] of the OEM agreement between HP and Microsoft to warrant
DENIAL of Microsoft's motion for summary judgment on contributory
HP also moves for summary adjudication that it is not jointly and severally
liable with Microsoft. According to Apple, HP should be held jointly and
severally liable with Microsoft because: (1) HP and Microsoft collaborated in
the development of a routine called WINOLDAP; n3 (2) HP and Microsoft
collaborated in the development of a multidocument interface program ("MDI");
and (3) HP suggested to Microsoft that Microsoft develop a program for
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 WINOLDAP is software that enables a user to run prior generations of
application programs with subsequent generations of Windows programs.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
HP contends that although it did provide modification code for the WINOLDAP
program, HP's contribution did not affect the graphic user interface of any of
the Windows programs. HP also argues MDI was developed entirely by Microsoft
without any assistance from HP. Finally, HP [**31] claims that it had no
involvement in the design or implementation of overlapping windows in the 2.03
and 3.0 versions of Windows, nor did it suggest including overlapping windows to
Apple, on the other hand, argues just the opposite. According to Apple, (1) HP
assisted in the inclusion of enhancements to Windows that added to the
infringing nature of Windows; (2) HP encouraged Microsoft to change to
overlapping windows and to support the MDI in Windows 2.03; (3) HP developed for
Windows 2.03 an application-saving feature adding significant value to the
product; and (4) HP assisted in the promotion of Windows through HP's
advertising and participation on promotional tours.
Again, the court finds that Apple has raised enough questions of material fact
concerning the extent and nature of HP's involvement in the development of
Windows and whether HP's contributions, if any, actually affected the graphical
user interface of Windows to warrant DENIAL of HP's summary judgment
Apple alleges that HP has no right to rely on the 1985 Agreement between
Microsoft and Apple as a defense to copyright infringement because HP admitted
in a letter dated August 3, 1992, [**32] that "Microsoft did not issue a
formal written license to HP specifically sublicensing HP under the 1985
Microsoft/Apple Agreement." See August 3, 1992, letter from Jonathan Marshall.
While it is true that Microsoft issued no "formal written sublicense to HP,"
nothing in the 1985 Agreement nor in the copyright law requires Microsoft to
enter "formal written" licenses of the type Apple seeks to require. See Nimmer
on Copyright § 10.03[A] ("A nonexclusive license may be granted orally, or may
even be implied by conduct."). There is no dispute that Microsoft authorized HP
to use Windows visual displays in connection with HP's NewWave products.
Furthermore, under its 1985 license agreement with Apple, Microsoft clearly had
the right and power to do so.
In any event, Judge Schwarzer has already found HP to be a licensee of
Microsoft. See Apple Computer, Inc v Microsoft Corp, 717 F Supp 1428, 1435 (ND
Cal 1989), which held:
[*627] Microsoft and its licensee HP are therefore entitled to partial
summary judgment on Apple's infringement claim insofar as it is based on the
use of Windows 2.03 and in NewWave of visual displays in Windows 1.0 and the
[**33] named application programs.
Accordingly, this ruling constitutes a summary adjudication that defendants'
use in Windows 2.03 and in NewWave of the visual displays in Windows 1.0 and
the named applications programs is protected against Apple's infringement
claim by the license provision in the 1985 Agreement.
Thus, Apple's contention is meritless since the facts clearly demonstrate that
HP is a licensee of Microsoft, and is therefore entitled to the protection of
the 1985 Agreement.
In addition, Microsoft requests ruling on its Motion for Partial Summary
Judgment Dismissing Apple's Claims Against Window 2.03 and 3.0 Based on Certain
Copyrights, and HP requests the court to rule on its Motion For Summary Judgment
On The Literary And Application Program Works In Suit. These two motions are
related. In Microsoft's motion, Microsoft moves to dismiss Apple's claims that
Windows 2.03 and 3.0 infringe the audiovisual copyrights of MacPaint, MacDraw,
MacProject, Macintosh Finder, LisaDraw and LisaProject. In HP's motion, HP moves
to dismiss Apple's claims that NewWave infringes MacPaint, MacDraw, MacProject,
LisaDraw and LisaProject.
Apple alleges [**34] that Windows 2.03 and 3.0 infringe seven of Apple's
separately registered audiovisual works -- MacPaint, MacDraw, MacProject,
Macintosh Finder, LisaDraw and LisaProject. In its motion, Microsoft seeks to
dismiss Apple's claims based on MacPaint, MacDraw, MacProject, Macintosh Finder
and LisaDraw on the grounds that: (1) all alleged similarities contained in the
works have been determined to be licensed; (2) the remaining alleged
similarities are not contained in the works; (3) the work are derivative works
whose copyrights do not extend to the remaining alleged similarities; and (4)
the works lack substantial similarity of ideas with Windows 2.03 and 3.0, and so
are not infringed. Section 1 below discusses Windows 2.03, while section 2
addresses Windows 3.0.
In Windows 2.03, all of the MacPaint based alleged similarities, sixty in total,
have been determined to be licensed. Apple Computer, 717 F Supp at 1435.
Therefore, these visual displays may not form the basis of a copyright
infringement claim against Microsoft.
Of the original 189 alleged similarities between Apple's copyrighted works and
Windows 2.03, only the following ten remain at issue: [**35] A1, A8, B1, B2,
D1, D2, D3, G4, G5 and G6. Apple Computer, Inc v Microsoft Corp, 717 F Supp
1428, 1435 (ND Cal 1989). Apple's designated Rule 30(b)(6) witness, Stephen
Capps, has testified that these remaining ten alleged similarities are not
present in Apple's MacPaint, MacDraw or MacProject applications. Accordingly,
Apple may not base its claims against Windows 2.03 upon these three works.
Apple disagrees with Microsoft's interpretation of Capps' testimony. According
to Apple, Capps was asked a much narrower question, namely whether various
visual displays relating to overlapping windows and icons appear in the "content
area" of the MacDraw, MacPaint or MacProject windows. The "content area is
defined as the area inside the title bar and scroll bars of a window. Apple
objects to defendant artificially restricting Capps' attention to the "content
area" alone. Apple argues that the works in suit are audiovisual works that
consist of and incorporate all visual displays that appear on the screen when
the programs are running, not just that which lies within the title bar and
The court finds, however, that the application programs [**36] (MacDraw,
MacPaint, MacProject, etc.) are responsible only for what appears in the
"content area." Other components of Apple's system, namely the System Software,
generate the rest of the visual displays, such as the scroll bars and title bar
which surround the "content area." Since all of the alleged similarities lie
outside the " [*628] content area" and do not arise out of the application
programs, the copyrighted application programs MacDraw, MacPaint and MacProject
cannot be infringed.
Any other conclusion would make no sense. If Apple is permitted to pursue an
infringement claim based on application programs that merely run under Lisa
Desktop or Macintosh Finder, without requiring that the programs provide any of
the allegedly similar displays, then there is no limit to the number of
copyrights that Apple could assert. Under Apple's rationale, any application,
whether a word processor, a spreadsheet, or even a computer game, could be the
basis of an infringement claim merely because it runs within a window system,
which has similarities to Apple's works. Therefore, Apple may not base its claim
against Windows 2.03 on MacPaint, MacDraw or MacProject.
Furthermore, the ten remaining [**37] alleged similarities from Windows 2.03
are not covered by the Macintosh Finder copyrights either. Apple's Macintosh
Finder is an acknowledged derivative work of Lisa Desktop, and is so registered.
See Apple's Copyright Registration No. PA 336 105, Section 6(a) (Exhibit B).
Section 103(b) of title 17 of the United States Code clearly provides that
copyrights in a derivative work are limited to the "new material" added to the
derivative work. Preexisting material in a derivative work which is carried
forward from a prior work is only protected under the copyrights for the prior
work. Id. Since the ten remaining allegedly infringing visual displays from
Apple's 2.03 list are found in Lisa Desktop, they are carried forward from Lisa
Desktop and covered by the Lisa Desktop copyrights. If Apple wishes to maintain
a claim against Windows 2.03 based on these ten similarities, it must do so
under the Lisa Desktop copyrights.
Apple responds that as creator and registered owner of all material, Apple is
entitled to sue on the original Lisa works as well as the later Macintosh
derivative works. Apple claims that there is nothing in the Copyright Act or the
case law that would compel Apple to [**38] sue only on its original copyrights
or to limit its protection of its derivative copyrights.
The case law clearly provides, however, that copyrights in derivative works
protect only the incremental addition made to the preexisting material.
Silverman v CBS, Inc, 870 F2d 40, 49-50 (2d Cir 1989). Unless an alleged
similarity arises from the new material in a derivative work, the copyright in
the derivative work is not at issue, and there is no basis to include it in
suit. The court should therefore dismiss the claims against Windows 2.03 based
on the Macintosh Finder since the copyrights in Macintosh Finder do not extend
to these ten alleged similarities.
Finally, there is no substantial similarity of ideas between Windows 2.03 and
MacDraw, MacProject, LisaDraw and LisaProject. To establish a prima facie case
of copyright infringement, plaintiff must prove that the works at issue are
substantially similar in both ideas ("extrinsic test") and expression
("intrinsic test"). Sid & Marty Krofft, 562 F2d at 1164. No jury could
reasonably conclude that there is substantial similarity between Windows 2.03
and MacDraw, MacProject, [**39] LisaDraw and LisaProject.
The Windows 2.03 product includes a graphical operating environment and several
application programs, such as Calendar (a basic calendar application), Terminal
(a telecommunications program) and Reversi (a simple game program). In contrast,
MacProject and LisaProject are application programs which provide scheduling and
flow charting capabilities, and MacDraw and LisaDraw offer drawing capabilities
to users. However, the functionality, idea and purpose behind the MacDraw,
MacProject, LisaDraw and LisaProject application programs could not be more
different from any of the programs found in Windows 2.03.
Apple responds that the underlying idea of MacDraw and LisaDraw is to "present,
in the context of a graphics program to create charts and diagrams, a graphical
user interface based on a desktop metaphor." Similarly, the idea of MacProject
and LisaProject is to "present, in the context of a graphics application to
create schedules and timeline related charts, a graphical user interface based
on a desktop metaphor." Apple contends that even though these works provide
[*629] specific functions as applications programs, they "more importantly * *
* reflect the graphical [**40] user interface of the Lisa and Macintosh
Apple's argument that Windows's underlying idea, which is to provide a graphical
user interface based on a desktop metaphor, and MacDraw's underlying idea, which
is to provide drawing capabilities to the user, are substantially similar is
ridiculous. The same can be said about MacProject, LisaDraw and LisaProject. As
aptly noted by HP, "Apple's ongoing struggle to define one idea of sufficient
breadth to encompass all of the works in suit reveals how illogical it is to
maintain a claim for infringement of the application program works."
For the foregoing reasons, the court GRANTS Microsoft's motion for
summary judgment based on MacPaint, MacDraw, MacProject, Macintosh Finder and
LisaDraw as to Windows 2.03.
The nine MacPaint visual displays asserted against Windows 3.0 are licensed.
Accordingly, they provide no basis for a copyright claim against Windows 3.0.
Apple has asserted the same ten remaining alleged similarities of Windows 2.03
against Windows 3.0, namely items A1, A8, B1, B2, D1, D2, D3, G4, G5 and G6. As
in the case with Windows 2.03, Apple's designated witness, Mr. Capps, testified
that these remaining [**41] ten alleged similarities in Windows 3.0 are not
present in Apple's MacPaint, MacDraw or MacProject applications. In addition,
the twenty-six visual displays now asserted against Windows 3.0, namely A2, A4,
A5, A9, E1, F3, F15, G7, J1, J6, N3, O4, P4, P5, P22, P33, P37, P41, P52, P56,
P60, R1, R2, R3, T5 and W3, are licensed features. To the extent that they are
present in MacPaint, MacDraw and MacProject, they may not serve as a basis for
Apple's claims against Windows 3.0.
Moreover, Apple has asserted "additional similarities" pertaining to the
following aspects of Windows 3.0: (1) Program Manager, (2) File Manager, and (3)
Fonts, Colors and Miscellaneous. First, Apple claims that, like MacPaint,
MacDraw and MacProject, Windows 3.0's Program Manager and File Manager are
iconic filing systems. Yet, MacPaint, MacDraw and MacProject are not iconic
filing systems. Lisa Desktop and Macintosh Finder are Apple's filing programs;
hence, Apple may not base its claim against Windows 3.0 upon MacPaint, MacDraw
and MacProject. Second, Apple alleges similarities based on proportional spaced
fonts and muted colors. Yet, these fonts and colors are found in Lisa Desktop
and are, therefore, [**42] properly covered under the Lisa Desktop copyrights.
For the foregoing reasons, Microsoft is entitled to summary judgment on Apple's
claims against Windows 3.0 based on MacPaint, MacDraw and MacProject.
In addition, MacDraw, MacProject and Macintosh Finder are derivative works. To
the extent that any of the alleged similarities of Windows 3.0 appear on the
screen when MacDraw, MacProject and Macintosh Finder are running, they are
carried forward from LisaDraw, LisaProject and Lisa Desktop respectively.
Accordingly, these allegedly similar visual displays are covered by LisaDraw,
LisaProject and Lisa Desktop copyrights.
Lastly, MacDraw, MacProject, LisaDraw and LisaProject lack substantial
similarity of ideas with Windows 3.0. As noted above, Windows presents a graphic
operating environment and includes a few application programs. MacDraw and
LisaDraw are applications which provide drawing capabilities to users, and
MacProject and LisaProject provide scheduling and flow charting capabilities.
These programs lack similarity of ideas.
Accordingly, the court finds that elimination of Apple's claims based on
MacPaint, MacDraw, MacProject, Macintosh Finder, LisaDraw and LisaProject
appropriate, [**43] and hereby GRANTS Microsoft's motion for summary
judgment on these works. In so doing, the court has not unduly prejudiced Apple
because all of its copyright allegations remain intact under its Lisa Desktop
In HP's Motion For Summary Judgment On The Literary And Application Program
Works In Suit, HP seeks dismissal of LisaDraw, MacDraw, MacPaint, LisaProject
and MacProject. Having considered the papers [*630] submitted, the court
hereby GRANTS HP's motion on the following grounds.
First, HP correctly contends that no substantial similarity of ideas exists
between NewWave and any of the five application program works -- LisaDraw,
MacDraw, MacPaint, LisaProject and MacProject. NewWave has no drawing, painting
or project scheduling tools. As such, it cannot share those ideas, or be
substantially similar in idea, to Apple's application programs.
Second, Apple has stipulated that the vast majority of the alleged similarities
appear nowhere in the five application programs. Apple's own Rule 30(b)(6)
witness, Mr. Capps, testified that none of the forty-four alleged NewWave
similarities n4 appears in the LisaProject, and Apple stipulated that none of
these alleged similarities [**44] appeared in the other four application
programs -- LisaDraw, MacDraw, MacPaint and MacProject. Based upon the
foregoing, the court finds there can be no infringement of the five application
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 After the court's decision in Apple Computer, Inc v Microsoft, Corp, 759 F
Supp 1444, 1452 (ND Cal 1991), fifty-four items pertaining to NewWave remained:
A1, A8, B1, B2, D1-3, G1-2, G4-6, G10-21, G23-33, H1-6, I1-2, I4, I6-11, J8-11.
This list consists of the ten items allegedly applicable to NewWave because they
are found in Windows 2.03 (A1, A8, B1, B2, D1-3, G4, G5, G6; id at 1449-50)
("the ten Windows items"), and the forty-four items applicable to NewWave alone
(G1-2, G10-21, G23-33, H1-6, I1-2, I4, I6-11, J8-11) ("the 44 NewWave items").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Third, all of the alleged similarities that are actually displayed are generated
by the System Software, not by the application programs. Since LisaDraw,
LisaProject, MacDraw, MacPaint and MacProject do not create any [**45] of the
alleged visual similarities in Apple's list, they cannot be infringed by
Finally, HP and Microsoft also urge the court to rule on their motions relating
to damages, profits and prejudgment interest before trial. The court DENIES
defendants' requests at this time. Instead, in the interest of judicial economy
and convenience, the court hereby BIFURCATES the damages phase of the
trial from the liability phase pursuant to FRCP 42(b). See Ellingson Timber Co v
Great Northern Railroad Co, 424 F2d 497 (9th Cir 1970); Baxter Travenol
Laboratories, Inc v Le May, 536 F Supp 247 (SD Ohio 1982). The court will
address defendants' damages motions only if the jury finds liability.
Additionally, the court notified the parties at the May 5, 1993, hearing that
payment of fees and expenses to jurors in civil trials may be suspended before
the June 28 trial date. In response, counsel for Apple suggested that Apple, HP
and Microsoft share the cost of the jurors' fees and expenses. Under such an
arrangement the jurors would not know the source of their compensation and all
parties would have to agree to the [**46] arrangement. The court asked the
parties to investigate the legality and appropriateness of such a plan and to
prepare the matter for discussion at the pretrial conference on June 1, 1993, at
Since the May 5 hearing, the court has found two cases which bear on the issue.
In United States v Branscome, 682 F2d 484, 485 (4th Cir 1982), the court held
that selection of volunteers to serve on a grand jury from a pool of prospective
jurors who had been randomly selected violated the Jury Selection and Service
Act, 28 USC § 1861-76. The court noted that the selection of volunteers
introduced a subjective criterion for grand jury service not authorized by the
Act, and violated Congress' intent to ensure random selection throughout the
entire selection process. Id.
Similarly, in United States v Kennedy, 548 F2d 608, 610 (5th Cir 1977), the
court ruled that the trial court's emergency use of volunteer jurors selected
from citizens who had just finished a term of jury service violated both the
letter and spirit of the Jury Selection and Service Act. Section 1866(f) of
title 28 of the [**47] United States Code requires random selection of jurors.
The court stated that,
Providing prospective jurors with complete discretion whether or not to
serve negates the statutory mandate of random selection.
Id at 612.
The court added:
[*631] We need not speculate as to what sort of biases will be reflected
in a jury chosen on the basis of its members' willingness to depart from
their daily business and serve as jurors. It is enough to recognize that a
substantial variable, not contemplated by the Act's few, narrow categories
of qualifications, exemptions, and excuses, has confounded the selection
Unlike the jurors in Branscome and Kennedy, the jurors in this case would not be
volunteers. As required by 28 USC § 1866(f), they would be selected in a random
manner from the usual jury pool. Any juror selected would not have the option of
declining service unless he or she were unqualified, fell within one of the
narrowly drawn exemptions, or provided a legitimate excuse. Thus, it appears to
the court that the method of compensating and reimbursing jurors proposed above
could be lawful. [**48] As a precaution, the court reiterates its earlier
directive for the parties to research the issue and to notify the court of their
In summary, the court will submit the following questions for the trial which is
scheduled to commence on June 28, 1993:
(1) Are items G28, G29 and G33 in all versions of NewWave and H2 in NewWave
Developer's Release alone substantially similar to their equivalents in
(2) Are any of HP's works as a whole virtually identical to any of Apple's
(3) Are any of Microsoft's works as a whole virtually identical to any of
(4) If any of HP's works infringe any of Apple's works, is Microsoft
contributorily liable for any infringement on the part of HP?
(5) If any of Microsoft's works infringe any of Apple's works, is HP jointly
and severally liable for any infringement on the part of Microsoft?
IT IS SO ORDERED.
VAUGHN R. WALKER
United States District Judge
D = Deny.
G = Grant.