The next contact between the parties was on August 18, 1989. On that date, Sabin says he spoke with the defendants for fifteen minutes, during which conversation the defendants informed him that Washington area builders liked the idea of the proposed publication, explained that the defendants were showing the plaintiffs' Index around Washington, D.C., and gave Sabin certain financial information for use in preparing the pro forma for the project. Subsequently, the plaintiffs made three short calls to the defendants between August 18 and November 2, 1989 to "touch base". No pro forma was forwarded at any time to the defendants.
On November 3, 1989, Sabin called the defendants and learned that they had decided to publish a Washington, D.C. index without the plaintiffs. Plaintiffs filed this suit on August 9, 1990,
raising claims of copyright infringement, breach of contract, fraud and quantum meruit. The Court denied the defendants' Motion to Dismiss the plaintiffs' copyright infringement claims on October 4, 1990. The defendants have now moved for summary judgment as to all of the plaintiffs' causes of action. In addition, the plaintiffs have moved to add claims for violation of Section 2 of the Sherman Act; Contract, Combination and Conspiracy in Restraint of Trade; violation of the D.C. Antitrust Act; and tortious interference with plaintiffs' business. Finally, the plaintiffs have filed a Motion to Compel Discovery.
I. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1. Copyright Infringement
The Court considered the merits of the plaintiffs' copyright infringement claim in its earlier order denying dismissal of that claim. In its October 4, 1990 Order, the Court refused to dismiss the claim without affording the plaintiffs an opportunity for discovery on the infringement issue. The Court held that the plaintiffs' Guide format was copyrightable but noted that plaintiffs "may be hard-pressed, even through discovery and argument" to establish that the two guides are "substantially similar".
A high standard for determining "substantial similarity" applies to factual works which, by their nature, contain "a great many unprotectible facts and very little protectible expression of arrangement of those facts." Cooling Sys. and Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 491 (9th Cir. 1985). The Ninth Circuit has held that "the author of a factual work ultimately must show that what has been taken from his expression is something more than what 'must unavoidably be produced by anyone who wishes to use and restate' the facts from the greater part of the work." Id. at 492 (citing Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 489 (9th Cir.), cert. denied, 469 U.S. 1037, 83 L. Ed. 2d 403, 105 S. Ct. 513 (1984)).
In justifying the plaintiffs' claim of infringement, Sabin claims
Defendants' Guide is substantially similar to the INDEX in the following manner: it duplicates my two-page format, it copies my separate treatment of community information and model information, the elements included in the community information section block are similar, (for example both publications include the name, address and telephone number of the community, phone numbers and hours of operation, price range of homes and information about nearby amenities such as schools and shopping), both publications have a separate Co-op Policy block and both publications contain floor plans and renderings of homes.