Defeating an eight-figure claim in a copyright case, Ballard Spahr took a novel approach in its arbitration defense of The Common Application, Inc., a provider of standardized college applications. The company had been sued by its former technology provider after it hired a new vendor to enhance its admission management system.

ApplicationsOnline, LLC, accused The Common Application and its new provider, Applyyourself, Inc., of copying software codes and other intellectual property. The suit sought nearly $23.5 million in damages.

The case involved novel theories about what constitutes creative authorship in the translation of paper-based products to Web-focused products, and also in the migration of Web-focused products from one generation of tools to another.

Because website programming codes are highly stylized and many of the typical indicia of copying (access and similarity) appeared to be present, Ballard Spahr attorney Carl G. Roberts and his team felt that something more than a traditional hearing presentation was needed—the panel would have to be shown what is true “creativity” in the Web development context.

To effectively demonstrate this, Ballard Spahr used an electronic courtroom to take the arbitrators inside the creative process. The panel was able to observe, step by step, how code was assembled to generate the screens and link with databases and user input. As a result, the panel could see how common building blocks—dictated by the requirements of the coding language—were used in very different ways by the new team. By assisting the panel in understanding the process at that level of detail, we were able to demonstrate that the systems were different and one was not a copy of the other or a derivative of the other.

The presentation effectively distinguished the differences between the previous and the new systems from superficial similarities of input and output. In a victory for The Common Application, the arbitrators rejected all claims, concluding that ApplicationsOnline could not substantiate its accusations of copying and had failed to prove key elements of its case. The panel found that ApplicationsOnline’s “data dictionary” did not show the requisite level of creativity to qualify for copyright protection, and that, even if it had, there was no proof of “substantial similarity” with the technology provided by Applyyourself.