OPINION AND ORDER
SCHEINDLIN, District Judge.
Torah Soft Ltd. ("Torah Soft") is suing Michael Drosnin, the author of The Bible Code (the "Book"), and the Book's publishers, distributors and retailers for copyright infringement caused by the unauthorized reproduction in the Book of printouts of output generated by plaintiff's computer program. Plaintiff asserts twelve claims, the first of which is for copyright infringement in violation of 17 U.S.C. §§ 501 et seq.
I. LEGAL STANDARD
When matters outside the pleadings are presented to a district court, the court should convert a motion to dismiss to a summary judgment motion and afford all parties the opportunity to present supporting material. See Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000). This conversion requirement is strictly enforced whenever there is a "legitimate possibility" that the district court will rely on material outside the complaint. Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir.1999). Because both plaintiff and defendants have submitted material outside the pleadings on which the Court relies, this motion is treated as one for summary judgment.
In assessing the record to determine whether genuine issues of material fact are in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, No. 00 126, 2001 WL 8559, at *3 (2d Cir. Jan. 4, 2001). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir.1999); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) ("If the evidence presented by the non-moving party is merely colorable,
A. The Bible Code
The Book is a non-fiction account of Drosnin's introduction to and adventure with the "Bible code". See Statement of Material Facts by Defendants Pursuant to Local Rule 56.1 ("Def.56.1") ¶ 3. Drosnin — a reporter formerly with The Washington Post and The Wall Street Journal — was introduced to the Bible code while meeting with the Israeli mathematician Dr. Eliyahu Rips in 1992. See Affidavit of Michael Drosnin ("Drosnin Aff.") ¶¶ 3, 5.
According to Bible code scholars, the Hebrew Bible
For example, as explained in the Book, the Hebrew letters forming the name "Yitzhak Rabin" are found consecutively only once in the Bible, with 4,772 letters separating each letter of his name. See Michael Drosnin, The Bible Code, at 27. The skip sequence is thus 4,772. See id. The code reveals itself with the discovery that intersecting the name "Yitzhak Rabin" is the Hebrew phrase "assassin will assassinate." See id. at 28;
B. The Torah Soft Software and Database
Until the early or mid-1990's, researchers in the field of Bible code research consisted primarily of Orthodox Jews. See 12/4/00 Declaration of Yochanan Spielberg ("Spielberg Decl."), principal shareholder and sole officer of Torah Soft, ¶ 22. In addition, prior to 1988, there was no commercially available computer software for searching the Bible code. See id. This is due, in part, to the fact that no Bible code program complied with the Jewish doctrine of sheimot, which prohibits forming the letters that constitute certain of the several Hebrew names of God in a medium that is expected to be deleted.
In the late 1980's, Yochanan Spielberg, an ordained Rabbi with a Ph.D. in physics, placed the Torah on a database (the "Database") without violating the sheimot rules. See Spielberg Decl. ¶ 5. Spielberg took an electronic version of the Torah and substituted
Spielberg eventually added the texts of the Prophets and the Writings to the Database. See Spielberg Decl. ¶ 29. However, because "there are hundreds of cases of disagreement as to the[ir] authentic text," id. ¶ 31, Spielberg had to determine which is the authentic text of the Prophets and the Writings. See Pl. 56.1 ¶ 50. As a result, there is no version of the Prophets and the Writings that is wholly identical to plaintiff's version. See Spielberg Decl. ¶ 32. Spielberg also made his sheimot substitutions to the text of the Prophets and the Writings. See id. ¶ 30. Finally, Spielberg replaced final consonants in the Bible with non-final consonants.
Spielberg also wrote a computer program (the "Software"), designed to be used with the Database, which permits Bible code research that does not violate the sheimot rules. See Spielberg Decl. ¶ 5; Pl. 56.1 ¶ 41. The Software executes a unique algorithm which displays ELS finds by searching for the least common letter of the search term. See Spielberg Decl. ¶ 52. In searching the Database, the Software treats the non-Hebrew characters as the Hebrew letters for which they substitute, thus preserving the accuracy of Bible code finds. See id. ¶ 27. The Software then displays the ELS's in a two-dimensional matrix format similar to a crossword puzzle. See Pl. 56.1 ¶ 33. In addition, the Software does not count the spaces between the words of the Biblical text and removes the spaces when displaying a Bible code matrix. See Spielberg Decl. ¶ 26; Pl. 56.1 ¶ 10.
Drosnin bought a copy of the Software in the summer of 1992.
The Book was published in English by S & S in May 1997, and became a national best-seller. See Def. 56.1 ¶ 4. The Book was also published and distributed in over twenty-five other languages. See id. ¶ 5. Plaintiff alleges that the Book could not have been published — or, alternatively, could not have become a best-seller — were it not for the inclusion of these printouts. See Pl. 56.1 ¶ 3.
Plaintiff filed this action on July 28, 2000. The only federal claim asserted is for copyright infringement in violation of 17 U.S.C. §§ 501 et seq. See Am. Compl. ¶¶ 66-79. Plaintiff maintains that the Software and the Database are original works of authorship within the meaning of
It is critical to understand what this case is not about. Plaintiff does not claim to have discovered the Bible code, invented the concept of ELS's, or even created the original Bible code software. Plaintiff does not claim that it is the author of Drosnin's specific Bible code finds. Nor does plaintiff accuse defendants of creating an infringing Bible code software or database. Rather, plaintiff claims that defendants' reproduction of the Printouts constitutes copyright infringement.
In a suit for copyright infringement, a plaintiff must establish that: (1) it owns a valid copyright; and (2) the defendants copied constituent elements of the work that are original. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 674, 679 (2d Cir.1998), cert. denied sub nom. West Publ'g Co. v. Hyper-Law, Inc., 526 U.S. 1154, 119 S.Ct. 2039, 143 L.Ed.2d 1048 (1999). With respect to the second prong, not all copying is actionable. A plaintiff must demonstrate that the allegedly infringing material bears a substantial similarity to copyrightable elements of plaintiff's work. See Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir.1992).
Defendants are entitled to summary judgment if they can show that "at least one requisite element of the claim cannot be proven." Cantor v. NYP Holdings, Inc., 51 F.Supp.2d 309, 311 (S.D.N.Y. 1999). Although the question of substantial similarity often raises questions of fact not appropriately resolved on a motion for summary judgment, noninfringement may be decided as a matter of law "either when the similarity concerns only noncopyrightable elements of plaintiff's work, or when no reasonable trier of fact could find the works substantially similar." O.P. Solutions, Inc. v. Intellectual Prop. Network, Ltd., No. 96 Civ. 7952, 1999 WL 47191, at *5 (S.D.N.Y. Feb. 2, 1999) (quotation marks, citation, and alteration omitted).
Defendants do not contest plaintiff's ownership of a valid copyright. Rather, defendants argue that: (1) the Printouts are not substantially similar to the Software or the Database; and (2) any similarity concerns only non-protectable elements of the Software and Database. In addition, defendants contend that the Printouts are a fair use of the Software and Database.
A. Substantial Similarity
Defendants assert that the Printouts are not substantially similar to any arguably protectable expression in the Software and the Database because "although the Printouts are `created' by the Software, they do not exist in it or appear, as matri[x]es, in the Database. Stated otherwise, the Printouts do not exist in either the Software or the Database, because they are not fixed in either." Defendants' Memorandum of Law in Support of Motion to Dismiss and/or For Summary Judgment ("Def.Mem.") at 14 (emphasis in original). In short, defendants argue that Drosnin, rather than plaintiff, is the author of the Printouts because he inputted the particular queries from which the Software created the matrixes. See id. at 14 n. 20 ("Drosnin fixed the Printouts on his computer screen by formulating and initiating the search.").
Section 102 of the 1976 Copyright Act provides in relevant part:
17 U.S.C. § 102 (emphasis added). A work, in turn, is "fixed" when "its embodiment in a copy ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C. § 101. In the context of video games, the Second Circuit has held that "all portions of the program, once stored in memory devices anywhere in the game, are fixed in a tangible medium within the meaning of the Act." Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 856 n. 4 (2d Cir.1982). In that case, the court squarely rejected an argument similar to the one advanced by the defendants here:
Id. at 856; see also Williams Elecs., Inc. v. Artic Int'l, Inc., 685 F.2d 870, 874 (3d Cir.1982) (rejecting same argument).
Here, Spielberg created the Software which, in response to an end-user's input of a particular term, sifts through the Database, reorganizes it according to its algorithm, and then creates a matrix that displays that search term. Although the matrixes do not appear either in the Software or the Database, they are "fixed" insofar as the output is repeatable whenever the input is identical. That is to say, each time an end-user inputs the phrase "Yitzhak Rabin," the Software will produce the same matrix. See Drosnin Aff. ¶ 8 (stating that Bible code finds that Drosnin made utilizing another Bible code computer program could be replicated using plaintiff's Software). This "repetitive sequence" fixes the matrixes in the Software and the Database.
In addition, an end-user's role in creating a matrix is marginal. Creating a matrix is unlike the creative process used in many computer art programs, which permit an end-user to create an original work of art in an electronic medium. It is fair to say that users of such programs often supply the lion's share of the creativity to create the screen display. By contrast, an end-user of the Software merely inputs a word or phrase which the Software searches for in the Database. Thus, the Software does the lion's share of the work. Indeed, Drosnin's inputs, generally consisting of no more than a single word or phrase, would fail to meet the minimum threshold of originality. See infra Part III.B.2. In short, Drosnin is not the author of the matrixes.
Defendants do not contest that the Printouts are reproductions of the matrixes. In effect, defendants concede that they copied constituent elements of plaintiff's work. This is not, however, the end of the inquiry. The central question is whether the matrixes contain protectable expression. See Arica Inst., 970 F.2d at 1072. Because the matrixes are generated by the Software's search of the Database, whether they are protectable turns on
B. Protectable Elements of a Computer Program
It is well-established that computer programs are protected by copyright law as literary works. See Computer Assoc. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 702 (2d Cir.1992). And like literary works, computer programs contain both "literal" and "non-literal" elements. Literal elements consist of the computer program's "source" and "object" codes,
"[A]s one moves from the literal code to more general levels of a program, it becomes more difficult to distinguish between unprotectible ideas, processes, methods or functions, on one hand, and copyrightable expression on the other." Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1341 (5th Cir.1994). The Second Circuit, therefore, employs a three-step analysis of "abstraction-filtration-comparison" to weed out the unprotectable elements of a computer program and determine substantial similarity. Altai, 982 F.2d at 706. Under this analysis, a court must first abstract the program, breaking it into its structural parts at varying levels of abstraction. See id. Next, the court filters out those elements that are not protectable. See id. Finally, the court compares the remaining protectable elements of the plaintiffs program to the defendants' work to determine if substantial similarity exists. See id.
The abstraction process is a method of theoretically dissecting the plaintiff's program into its constituent structural parts. Here, however, plaintiff has already presented the Court with a list of features that it believes are protectable, see infra Part III.C, thus eliminating the need for any further abstraction. See Mitek Holdings, Inc. v. Arce Eng'g Co., 89 F.3d 1548, 1555 (11th Cir.1996) ("[I]f the copyright holder presents the court with a list of features that it believes to be protectable ..., the court need not abstract further such features.").
The filtration step merely "appl[ies] well developed doctrines of copyright law" in an attempt to "leave behind a `core of protectable material.'" Altai, 982 F.2d at 707 (citation omitted). The filters through which the material must pass include the constitutional and statutory requirement of originality, the Copyright Act's distinction between expression and ideas or processes, the doctrines of "merger" and "scènes à faire," and the public domain exception. Each is discussed in turn below.
"The sine qua non of copyright is originality." Feist, 499 U.S. at 345, 111 S.Ct. 1282. As used in copyright, the term original means only that the work was independently created by the author rather than copied from other works, and that it
b. Functional Elements
In addition, the Copyright Act distinguishes ideas and functional items, neither of which is protected, from creative and expressive works, which are protected:
17 U.S.C. § 102(b).
The Second Circuit has explained the "merger" doctrine, first articulated in Baker v. Selden, 101 U.S. 99, 11 Otto 99, 25 L.Ed. 841 (1879), as follows:
Hart v. Dan Chase Taxidermy Supply Co., 86 F.3d 320, 322 (2d Cir.1996) (quotation marks omitted). This doctrine is particularly relevant when dealing with computer programs because "efficiency concerns may so narrow the practical range of choice as to make only one or two forms of expression workable options." Altai, 982 F.2d at 708; see also 4 Melville B. Nimmer, Nimmer on Copyright, § 13.03[F], at 12-129 (1998) ("Although, theoretically, many ways may exist to implement a particular idea, efficiency concerns can make one or two choices so compelling as to virtually eliminate any other form of expression.").
d. Scènes à Faire
Nor can copyright protection be afforded to "scènes à faire" — expressions that are "as a practical matter, indispensable or at least standard in the treatment of a given [idea]." Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 208 (9th Cir. 1988) (quotation marks omitted). A computer programmer's freedom of design is often circumscribed by extrinsic considerations such as (1) the mechanical specifications of the computer; (2) compatibility requirements with other programs; (3) computer manufacturers' design standards; (4) demands of the industry being serviced; and (5) widely accepted programming practices within the computer industry. See Altai, 982 F.2d at 709-10. "Perhaps the most significant external factors influencing program design are the business practices and technical requirements of the end user." 4 Nimmer § 13.03[F][d], at 13-136.
e. Public Domain
Finally, related to the scènes à faire doctrine is the principle that expressive
In the final step, a court is to compare the protected elements — or "golden nugget" — of the plaintiff's computer program with the allegedly infringing work. See id. A court should focus on "whether the defendant[s] copied any aspect of this protected expression, as well as an assessment of the copied portion's relative importance with respect to the plaintiff's overall program." Id.
C. Applying the
1. The Database
Plaintiff wisely admits that the Hebrew Bible, which is the backbone of the Database, is in the public domain and thus unprotectable. See Pl. 56.1 ¶ 25. Nevertheless, plaintiff contends that the changes Spielberg made to the Hebrew Bible — changes which appear in the matrixes— warrant protection for the Database as a compilation.
A work comprised of material which in itself is not protected may become protectable as a compilation if the copyright holder has utilized sufficient creativity in selecting and arranging the material. See Feist, 499 U.S. at 358, 111 S.Ct. 1282 (compiling facts in an area-wide telephone directory does not meet the constitutional requirement of originality); Matthew Bender, 158 F.3d at 681, 683-86 (holding that enhancements made by publisher of judicial opinions — such as shortening the form of titles, inserting parallel citations, providing subsequent case history, and providing information concerning counsel — are not copyrightable because they miss the creative spark). "All that is needed for a finding of sufficient originality is a `distinguishable variation' that is not merely trivial, even if the copyrighted work is based on prior copyrighted or public domain works." Re-Alco Indus., Inc. v. National Ctr. for Health Educ., Inc., 812 F.Supp. 387, 393 (S.D.N.Y.1993) (citation omitted); see also Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 102-103 (2d Cir.1951) ("[A] copy of something in the public domain will support a copyright if it is a distinguishable variation.") (quotation marks omitted). Originality in selection and arrangement "is a function of (i) the total number of options available; (ii) external factors that limit the viability of certain options and render others noncreative;
Spielberg's sheimot changes are functional in nature. As plaintiff admits, Spielberg departed from the traditional method of complying with the sheimot rules for functional reasons:
Pl. Opp. at 10 (emphasis in original). As a functional, as opposed to a creative, alteration, the sheimot changes are not protectable. See Productivity Software Int'l, Inc. v. Healthcare Techs. Inc., No. 93 Civ. 6949, 1995 WL 437526, at *5 (S.D.N.Y. July 25, 1995) (denying protection to plaintiff's design of input boxes because they were dictated by functionality).
Moreover, plaintiff admits that his compliance with the sheimot rules was required by the end-users to which he was marketing the Software — namely, Orthodox Jews. See Spielberg Decl. ¶ 22. His changes, therefore, are merely scenes a faire. See Plains Cotton Co-op. v. Good-pasture Computer Serv., Inc., 807 F.2d 1256, 1262 (5th Cir.1987) (affirming denial of preliminary injunction against alleged program infringer because, in part, "many of the similarities between the ... programs [were] dictated by the externalities of the cotton market.").
Plaintiff argues that Spielberg's sheimot substitutions are original because he "had numerous options from which to chose [sic] in making the sheimot substitutions ... but he chose his set of four symbols because he thought that they would be distinctive." Pl. Opp. at 20. Plaintiff has failed to demonstrate how an asterisk or a pound symbol is any more distinctive than a plus sign or an ampersand. Spielberg's choice of symbols are "obvious, garden-variety, or routine selections." Matthew Bender, 158 F.3d at 681. Not only are the symbols in themselves unprotectable,
b. Adding Authentic Versions of the Prophets and the Writings
Spielberg's selection of which version of the Prophets and the Writings to include in the Database does not contribute to its protectability as a compilation. The Hebrew Bible necessarily consists of a compilation of the Torah, the Prophets, and the Writings arranged in precisely the same order as arranged in the Database. Plaintiff has not claimed that all of the text of the Prophets and the Writings is subject to debate, but only limited portions. Not only has plaintiff failed to identify precisely how Spielberg altered the text of the Prophets and the Writings, but Spielberg's selection and arrangement of the Hebrew Bible is nothing more than a trivial distinguishable variation.
Implicitly conceding as much, plaintiff argues that Spielberg's choice should be protected because of the time and effort expended deciding which texts are authentic. See Pl. Opp. at 9 ("In order to arrive at an understanding of what is the authentic text of the Prophets and the Writings, and in order to arrive at a determination as to what sheimot changes to make, Spielberg consulted and carefully studied dozens of sources of Jewish law. In addition, he consulted with at least a dozen scholars of Jewish law...."). However, it is clearly established that such "sweat of the brow" does not confer copyright protection. See Feist, 499 U.S. at 354, 111 S.Ct. 1282 (holding that substantial effort and expense alone do not render compilation protectable); Altai, 982 F.2d at 711 ("[S]ubstantial effort alone cannot confer copyright status on an otherwise uncopyrightable work.... [D]espite the fact that significant labor and expense often goes into computer program flow-charting and debugging, that process does not always result in inherently protectable expression.").
c. Replacing Final Consonants with Non-Final Consonants
Plaintiff further contends that the Database is original because Spielberg replaced
Taken as a whole, Spielberg's changes to the Bible do not transform the text of the Bible — a work clearly in the public domain — into an original compilation. Spielberg's alterations are nothing more than non-original changes dictated by the technological requirements of Bible code software and the end-user market, and thus, are not protectable.
2. The Software
Plaintiff maintains that the Software is protectable because: (1) it displays Bible code finds in a matrix format; (2) it displays multiple Bible code finds on one screen display; (3) unlike other Bible code programs' source code, the algorithm used in the Software searches for the least common letter of the search term; and (4) it removes the spaces between words in searching for and displaying Bible code finds. See Spielberg Decl. ¶¶ 26, 42, 45-49, 52. When closely examined, none of these features are protectable.
a. The Matrix Format
Plaintiff contends that Bible code finds need not be displayed in a matrix format. See Pl. 56.1 ¶¶ 12, 47. Indeed, in 1992, when Drosnin obtained a copy of the Software, it was "the only commercially available computer program that displayed the Biblical text in a matrix format." Pl. 56.1 ¶ 45. Plaintiff maintains that Spielberg's decision to display Bible code finds in a matrix format demonstrates a sufficient degree of originality. See Pl. Opp. at 20.
However, Spielberg did not originate the idea of displaying Bible code finds in a matrix format.
Even if Spielberg had originated the idea of displaying Bible code finds in a
b. Displaying Multiple Bible Code Finds
The Software's ability to display multiple Bible code finds in a single matrix is not a protectable element. The expression of displaying multiple finds in a single matrix merges with the idea of the Bible code, which ascribes particular significance to finds that intersect one another. To grant protection to plaintiff for devising a formula capable of displaying Bible code finds in such a manner would grant plaintiff a monopoly over the unprotectable idea of a Bible code.
Plaintiff argues that the merger doctrine should not be applied here because defendants have actually copied plaintiff's work. See Pl. Opp. at 13 n. 5. The Second Circuit has stated that "`if a defendant has actually copied the plaintiff's work, it is unlikely to be allowed to rely on merger to avoid liability.'" Matthew Bender, 158 F.3d at 688 (quoting Kregos v. Associated Press, 937 F.2d 700, 716 (2d Cir.1991) (Sweet, J., concurring in part and dissenting in part)). However, not all copying bars application of the merger doctrine. Otherwise, the merger doctrine would stand for nothing more than the fundamental principle that independent creation is never infringement. See Kregos, 937 F.2d at 716. The Second Circuit has distinguished between "wholesale copying of a compilation [and] some more limited copying from a compilation." CCC Info. Servs., Inc. v. Maclean
Here, defendants have not engaged in wholesale copying of plaintiff's compilation (i.e., the Database), but in more limited copying from the Database (e.g., the matrixes). The consequences of giving defendants the benefit of the merger doctrine are not "too destructive of the protection the [Copyright] Act intends to confer on compilations." Id. (refusing to apply merger doctrine where competitor placed on its computer database substantial portions of The Red Book, a compendium of projections of used car valuations, such that competitor effectively offered to sell its customers The Red Book through its database). Just the opposite is true. Withholding the benefit of the merger doctrine would grant plaintiff a monopoly over the idea of a Bible code and seriously impair the policy of the copyright law that seeks to preserve free public access to ideas.
In addition, the Software's ability to display multiple Bible code finds in a single matrix is a "process, system, [or] method of operation." See Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 815 (1st Cir.1995) (holding menu command hierarchy of spreadsheet program to be an unprotectable "method of operation," which "refers to the means by which a person operates something"); OP Solutions, 1999 WL 47191, at *16 (holding that organization of computer program's "action grid," which permits grid to retain and display all current and historical actions in a single grid, is an unprotectable method of operation). This function is unprotectable notwithstanding its expressive elements. See 17 U.S.C. § 102(b); Lotus Dev., 49 F.3d at 818 ("[W]hile original expression is necessary for copyright protection, we do not think that it is alone sufficient [because] [c]ourts must still inquire whether original expression falls within one of the categories foreclosed from copyright protection by § 102(b), such as being a `method of operation.'"); see also Altai, 982 F.2d at 703 ("`Section 102(b) is intended ... to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of copyright law.'") (quoting H.R.Rep. No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S.C.C.A.N. 5657, 5670).
c. The Software's Algorithm
Plaintiff also contends that the Software's algorithm is original because unlike other programs' algorithms, the Software searches for the least common letter of the search term. An algorithm, however, is clearly a method of operation which cannot be protected. See 17 U.S.C. § 102(b); OP Solutions, 1999 WL 47191, at *16 (stating that elements of a computer program that "describe the way that the program works and the manner in which the user operates the program ... are processes and methods of operation and are unprotectable under § 102(b)."). Moreover, to the extent that this algorithm is the most efficient method of searching for Bible code finds, it is not protectable under the merger doctrine:
4 Nimmer § 13.03[F], at 13-128 to 13-129.
d. Removal of Spaces Between Words
The Software's ability to disregard spaces between words of the Bible in calculating ELS's and not to display any of these spaces in the matrix does not render the Software protectable. First, this function is not sufficiently original or creative to be worthy of protection. See 1 Party at 335 (stating that the Copyright Office denies registration "to `mere variations' in typographic ornamentation or lettering and `arrangement, spacing, juxtaposition of text matter that is involved in book design.'"). Second, just like the matrix format, this function is a commonplace feature of Bible code computer software and, therefore, is not protectable. See Pl. 56.1 ¶ 10; see also Brown Bag Software, 960 F.2d at 1473. Third, the Software's ability to exclude spaces between words in searching for ELS's, like the algorithm, is merely an unprotectable method of operation.
In sum, none of the features of the Database or the Software are sufficiently original to merit protection. Plaintiff has failed to satisfy its burden of proving that the Software's outputs of Bible code finds, as displayed in the matrixes, contain protectable expression. Accordingly, defendants' motion for summary judgment is granted.
C. The Foreign Law Claims
Pursuant to 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over claims that arise under foreign law where "the district court has dismissed all claims over which it has original jurisdiction." Because plaintiff's only federal claim have been dismissed, I decline to exercise supplemental jurisdiction over plaintiff's remaining copyright infringement claims arising under foreign law. See Martinez v. Simonetti, 202 F.3d 625, 636 (2d Cir. 2000) (directing dismissal of supplemental claims where no federal claims remained); Information Res., Inc. v. Dun & Bradstreet Corp., 127 F.Supp.2d 411, 418 (S.D.N.Y.2000) (declining to exercise supplemental jurisdiction over foreign law claim because its application would present sufficiently novel and complex issues of foreign law).
For the reasons stated above, defendants' motion for summary judgment is granted.