Page:Datastorm Technologies v. Excalibur Communications.pdf/2

 G. Gervaise Davis III, Davis & Schroeder, Monterey, CA.

Joshua Tropper, Greene, Chauvel & Descalso, San Mateo, CA.

Frank J. Catalano, Catalano, Zingerman & Associates, Tulsa, OK.

AGUILAR, District Judge.

Datastorm Technologies, Inc. (“Datastorm”) alleges in this lawsuit that Excalibur Communications, Inc. (“Excalibur”) has infringed its copyright in the PROCOMM PLUS for Windows, Version 1.0 software program (“PROCOMM PLUS”) in violation of 17 U.S.C. § 106. Specifically, Datastorm alleges that Excalibur copied the “WMODEMS.DAT” file from the PROCOMM PLUS program. Excalibur now moves for a Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted pursuant to Fed.R.Civ.P. 12(b)(6). The matter was scheduled for hearing on May 26, 1995, but was deemed submitted without oral argument by order of the Court. For the reasons expressed below, Excalibur’s motion is DENIED.

Datastorm provides computer communications software programs to end users. One of its products is PROCOMM PLUS for Windows, Version 1.0. Datastorm was issued a Certificate of Registration by the Copyright Office for PROCOMM PLUS effective October 1, 1993. PROCOMM PLUS consists of a group of separate file modules, including a file entitled “WMODEM.DAT.” This file permits the user to specify the particular manufacturer of his or her modem, and to use the desired characteristics of the selected modem. “WMODEM.DAT” is a compilation of selected modems and other items of information, known as “Initialization Strings.” According to Datastorm, Excalibur has distributed a computer program entitled “EXCALTRM.EXE.” Within this program, Datastorm alleges, is a file called “MODEMS.EXC” which contains a list of modems and Initialization Strings “substantially identical” to Plaintiff’s “WMODEM.DAT” file. Thus, Datastorm asserts that Excalibur copied the list of modems from Datastorm’s “WMODEM.DAT” file and incorporated it into the “MODEMS.EXC” file.

I. THE LAW


 * A. Legal Standard on a Motion to Dismiss

Under the liberal federal pleading policies, a plaintiff need only give defendant fair notice of the claims against it. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). A claim should not be dismissed unless it is certain that the law would not permit the requested relief even if all of the allegations in the complaint were proven true. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987), ''cert. denied'', 484 U.S. 944, 108 S.Ct. 330, 98 L.Ed.2d 358 (1987). Therefore, for purposes of this motion to dismiss, the Court assumes the truth of all factual allegations in the complaint, as well as all reasonable inferences drawn from them.

In deciding a motion to dismiss, the court is not limited by the allegations contained in the complaint if the complaint is accompanied