                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0063n.06

                                     Nos. 12-2513, 13-1712

                                                                                      FILED
                         UNITED STATES COURTS OF APPEALS                          Jan 24, 2014
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk
DICE CORPORATION                                        )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )      ON APPEAL FROM THE
v.                                                      )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE EASTERN
BOLD TECHNOLOGIES,                                      )      DISTRICT OF MICHIGAN
                                                        )
       Defendant-Appellee.                              )

BEFORE: GUY, GIBBONS, and ROGERS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Dice Corporation and

defendant-appellee Bold Technologies are competitors that provide services and license software

to companies in the alarm industry. Dice claims that Bold committed a host of intellectual

property violations when converting one of Dice’s former customers to its systems. The district

court granted Bold’s motion for summary judgment on all of Dice’s claims and denied Dice’s

motions for reconsideration and indicative ruling. For the following reasons, we affirm.

                                               I.

                                               A.

       Dice Corporation and Bold Technologies are in the same business—both license software

to companies in the alarm industry. Alarm companies monitor signals sent from their respective

subscribers’ alarm systems. When an alarm signal is tripped, the alarm company contacts the

appropriate authorities such as the police or fire department.     Alarm companies collect an

impressive amount of data. The data typically consists of names, addresses, contact information,
Nos. 12-2513, 13-1712
Dice v. Bold

billing information, and information regarding the type and location of alarms. As a general

matter, both companies’ software monitors alarm signals and compiles information in databases.

Dice’s software is known as Dice software; Bold’s is licensed under the trade name Manitou.

       Despite providing similar services, the technical features of their software are

significantly different. By way of quick background, computers operate in a binary number

system: 0 for off and 1 for on. Current computers are capable only of executing functions based

on this basic language consisting of strings of 1’s and 0’s. This is known as object code.

Computer programming languages—such as C++ and Thoroughbred Basic—facilitate human

programming by obviating the need for programmers to write in cumbersome object code. The

text of these languages is known as source code. Whether directly or indirectly, the instructions

written in source code are ultimately translated into object code so that commands can be

executed by the computer. See generally Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.

2d 294, 305 (S.D.N.Y. 2000).      Dice software is written using the programming language

Thoroughbred Basic and runs on the Linux operating system. Manitou is written in the C++ and

Visual Basic languages and runs on the Windows operating system.

                                               B.

       This dispute stems from a customer defection. ESC Central was a Dice customer for a

decade. In 2011, it transitioned to Bold. Switching software systems is no easy task. The

conversion process must be undertaken carefully because the alarm company continues to

monitor alarm signals from its subscribers. The transition must be seamless to ensure that the

new software is interpreting the incoming alarm signal in the same manner as the old so that no

alarm signals are misread or missed. As Bold’s chief of operations explained:

       After the customer data is extracted and converted, there will be a period of time,
       usually about 3 months when the customer’s central station is running live on the

                                               -2-
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Dice v. Bold

       old software, but the new software is running in parallel on different servers. The
       purpose of running the two software systems in parallel is to ensure that the new
       software is monitoring the alarm signals consistent with the old software. After
       this period is completed the customer will go live on the new software and will
       often terminate its license for the old software.

       Following this protocol, Bold first extracted ESC Central customer data from Dice’s

software databases. This data—names, addresses, etc.—is owned by ESC Central and not by

Dice. Matt Narowski, a current Bold employee and former Dice employee, wrote the computer

program (“Extraction Program”) used to extract customer data from Dice’s database.           He

explained that he wrote the program using information available to the public together with

general knowledge of computer programming; he did not read, review, copy, or rely upon any

information about Dice source or object code; the Extraction Program does not contain any Dice

source or object code; and, since being employed at Bold, he has not seen a copy of Dice source

or object code. And he explained that “the database files where the customer data is stored are

not subject to any Dice security features and can be accessed by anyone who has a copy of

Thoroughbred Basic, which Bold licensed from that company.”

       Not so, says Dice. Dice maintains that Bold used and copied Dice’s proprietary software

in operating the Extraction Program. Clifford Dice stated that he “analyzed the conversion

program created by” Narowski and concluded that “[t]he program which Bold has created for

converting information belonging to Dice customers cannot operate without access to Dice

software and the source code contained within that software.”

                                               C.

       Following extraction, the Bold and Dice software systems were run in parallel from June

2011 to August 2011. Although not aware at the time that ESC Central was converting to Bold’s

Manitou, Dice subsequently became aware through Facebook activity by ESC Central’s vice

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Dice v. Bold

president, Kristi Harris Jennings.        Immediately thereafter, Dice’s Director of Software

Development, Julie Coppens, logged into the ESC Central system. She found that someone had

accessed Dice’s ALSCHART file.              Coppens testified that although ESC Central had

disconnected Dice, it had not removed access to a phone connection. ESC Central described this

as “illegal entering,” and sent a cease and desist letter, threatening suit if Dice did it again. Dice,

on numerous occasions, admitted that it has no evidence that it was anyone at Bold who accessed

the file.

          The ALSCHART is a file containing a master list or database of alarm codes.

Manufacturers code1 outgoing alarm signals to identify the type of emergency. For example, a

fire signal may be coded “F” by one company and “1” by another. The alarm panel sends these

signals to receivers at alarm companies where the information is converted into Dice’s standard

and compiled in the ALSCHART, a part of Dice’s software. Dice’s receiver-drivers software

performs the conversion from manufacturers’ signals to Dice’s standard. Dice contends that the

ALSCHART and its receiver drivers are proprietary. According to Dice, its standards are

unique.

                                                  D.

          On December 5, 2011, Dice filed its operative complaint in the Eastern District of

Michigan. Dice asserted claims under Michigan’s Uniform Trade Secrets Act (“MUTSA”),

Mich. Comp. Laws §§ 445.1901–1910, the Copyright Act, 17 U.S.C. §106, the Digital

Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201 et seq., and the Computer Fraud and

Abuse Act (“CFAA”), 18 U.S.C. § 1030. Dice alleged three basic wrongs: (1) Bold’s Extraction


          1
         These are not computer codes in the same way that object and source code are computer
code—i.e., they do not function to allow humans to operate the computer. Alarm codes function
as labels indicating the type of alarm.
                                                 -4-
Nos. 12-2513, 13-1712
Dice v. Bold

Program impermissibly accessed and utilized Dice’s proprietary code; (2) former Dice employee

and current Bold employee Amy Condon accessed Dice servers and initiated file transfers of

proprietary software; and (3) Bold circumvented Dice security protections to access protected

material.

       Clifford Dice was deposed on February 29, 2012. Bold did not provide Dice with a copy

of the Extraction Program until May 14, 2012. Bold moved for summary judgment on June 29,

2012, attaching twenty exhibits covering most of the factual material discussed thus far. Dice

filed a cursory response. The response relied in large part on an attached affidavit in which

Clifford Dice attested that he had “analyzed the conversion program created by former Dice and

current Bold employee Matt Narowski.” He claimed that the Extraction Program could not

“operate without access to Dice software and the source code contained within that software.”

       Bold’s reply attached a rebuttal expert report from Dr. William McUmber. The report

analyzed the Extraction Program and concluded that:

       Bold Extract only performs the task of pulling data from the customer’s database
       so that it can be transferred to a different system. . . . Bold Extract does not and
       cannot read program source code, and does not need to use the Dice source code
       to perform the data extraction. Bold Extract has no decryption functions, either
       for data or source code. All of the customer data Bold Extract pulls from the
       database is unencoded and requires no special handling with decoding functions.
       No proprietary knowledge is required to write Bold Extract. All of the
       information that would be needed to write it can be found in ThoroughBred
       reference guides.

       Dice requested that Bold produce Dr. McUmber for deposition prior to filing its summary

judgment motion. On this basis, Dice moved to strike Dr. McUmber’s report. Dr. McUmber

was deposed on September 26, 2012. Dice did not move to file a sur-reply or supplement the

record following the deposition. Dice’s motion to strike was eventually denied as moot.



                                               -5-
Nos. 12-2513, 13-1712
Dice v. Bold

       The district court rejected Dice’s claims in a forty-page opinion, finding them conclusory

and devoid of factual support. Dice moved for reconsideration on two grounds. First, Dice

claimed that the district court improperly credited the affidavit of Narowski, which Dice claimed

was at odds with his deposition testimony. Second, Dice claimed that new evidence—a copy of

the “entire extraction program”—was improperly withheld until after Bold filed its motion for

summary judgment. Dice claimed that at the time of Dr. McUmber’s deposition, Bold produced

for the first time the File List used by Bold’s Extraction Program (known as “FILELIST.txt”).

“Receipt of the entire program,” Dice claimed, “permitted [Dice] for the first time to quantify the

extent to which [Bold’s program was dependent upon Dice source code” and “also permitted

[Dice] to disprove the [notion] that [Bold’s] extraction program simply utilized commercially-

available software produced by Thoroughbred.”

       Dice attached a comparison highlighting several areas which, Dice claimed, showed

literal copying. But as the district court noted in its opinion denying the motion for

reconsideration, Clifford Dice did not explain how this evidence demonstrated that Bold used

Dice’s source code. “Instead he attache[d] a computer printout to his affidavit that [Bold]

charitably describes as ‘virtually incomprehensible.’ . . . The Court’s own review, in contrast,

finds the document completely incomprehensible.” The printout contained hundreds of pages of

unexplained computer code. Moreover, the File List on which Clifford Dice’s analysis was

based was not attached to Dice’s motion. Dice claims that the failure to attach this document

was inadvertent.

       After filing its motion for reconsideration but before the district court ruled on that

motion, Dice filed a notice of appeal. Subsequently, the district court denied Dice’s motion for

reconsideration. Dice did not amend its notice of appeal within 30 days of that date. On May


                                                -6-
Nos. 12-2513, 13-1712
Dice v. Bold

16, 2013, Dice filed a motion for indicative ruling and relief from judgment pursuant to Federal

Rules of Civil Procedure 60(b) and 62.1. Dice asserted that its clerical error in attaching the

wrong exhibit caused the district court to deny the motion for reconsideration and asked the

district court to enter an order indicating that it would grant Dice’s motion for reconsideration if

the court of appeals remanded for that purpose. The district court denied the motion, holding

that Dice again failed to explain how the proffered evidence demonstrated that Bold

misappropriated its property.

       Dice filed an amended notice of appeal within 30 days of the denial of its motion for

indicative ruling expressly seeking review of the order granting Bold’s motion for summary

judgment and the order denying Dice’s motion for indicative ruling; it did not seek review of the

reconsideration order.

                                                 II.

       The first question is one of jurisdiction. Dice attempts to appeal the district court’s denial

of its motion for indicative ruling. Under Rule 62.1, a district court may make certain indicative

rulings on motions that the court lacks authority to grant because of a pending appeal. A district

court may defer considering the motion, deny the motion, or state that it would grant the motion

or that the motion raises a substantial issue. See Fed. R. Civ. P. 62.1(a).

       Corresponding to Rule 62.1 is Federal Rule of Appellate Procedure 12.1. Rule 12.1(b)

provides that “if the district court states that it would grant the motion or that the motion raises a

substantial issue, the court of appeals may remand for further proceedings.” Bold argues that

because Rule 12.1(b) does not expressly provide for circumstances in which the district court

denies a motion for indicative ruling, courts of appeal lack jurisdiction to entertain appeals from

such motions. We are unaware of any case which so holds. See Fed. R. App. P. 12.1 advisory


                                                 -7-
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Dice v. Bold

committee’s notes (citing Jordan v. Bowen, 808 F.2d 733, 736–37 (10th Cir. 1987) (refusing to

review order denying motion for indicative ruling where party failed to appeal from that order));

see also Ray v. Pinnacle Health Hosps., Inc., 416 F. App’x 157, 161 (3d Cir. 2010) (reviewing

denial of motion for indicative ruling). Nor do we believe Rule 12.1 requires a party to wait until

its initial appeal is adjudicated, file a new Rule 60(b) motion, and then appeal that motion’s

denial. Rule 12.1 does not foreclose our review.

       Next is Dice’s unappealed motion for reconsideration. In its amended notice of appeal,

Dice did not mention the order denying its motion for reconsideration. Bold argues that under

Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) and this court’s opinions construing that rule,

we lack jurisdiction to review the order denying reconsideration as well as the evidence put

forward in Dice’s motion.

       Rule 4’s strictures are jurisdictional. See, e.g., Browder v. Director, 434 U.S. 257, 264

(1978). It provides in part that a party challenging an order disposing of any motion listed in

Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice

of appeal. Fed. R. App. P. 4(a)(4)(B)(ii). Rule 3(c)(1)(B), with which Rule 4(a)(4)(B)(ii)

requires compliance, requires the designation of the judgment or order from which an appeal is

taken. See United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir. 1999

(citing Fed. R. App. P. 3(c)(1)(B)). Although jurisdictional, the notice requirements of Rule

3(c)(1) are liberally construed and applied. See Caudill v. Hollan, 431 F.3d 900, 907 (6th Cir.

2005) (citing Foman v. Davis, 371 U.S. 178, 180–81 (1962)).

       We consider all arguments asserted prior to the final disposition of a case if the party

indicates in its notice of appeal that it appeals either the final judgment or the final order. Id. at

906. Where the notice of appeal limits the orders appealed, we will not, “absent specific mention


                                                 -8-
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Dice v. Bold

in the notice of appeal, entertain issues raised in post-judgment motions.” Id. However, “[t]o the

extent that the post-judgment motions relate to issues raised before judgment, the appellate court

will deal with them anyway.” Id. Although the case law speaks of issues raised before the “final

order” or the “final judgment,” there is no principled reason to hold that this language bars

consideration of issues raised before the last order appealed. The only concern motivating this

jurisprudence is compliance with the Federal Rules of Appellate Procedure’s notice requirement.

See id. Parties receive the same notice of the issues on appeal whether they were raised in a

notice of appeal of a motion granting summary judgment or subsequent motion for indicative

ruling. What matters is that the issues flagged in the notice of appeal have already been raised.

The dividing line is the last appealed judgment: issues raised before the last appealed judgment

will be considered, issues raised after will not. Here, the last appealed judgment was the motion

for indicative ruling.

        Dice raised two issues in its motion for reconsideration. The first issue was whether the

district court erred in relying on Narowski’s affidavit. This issue was before the district court in

Bold’s motion for summary judgment.           The second issue was whether Bold’s untimely

production of the File List prevented Dice from demonstrating that Bold misappropriated its

copyrighted source code. Dice’s motion for indicative ruling argued that the district court erred

in denying the motion for reconsideration because Dice inadvertently attached the wrong exhibit.

The motion for indicative ruling, relying on the same arguments and evidence and the properly

attached exhibit, sought to cure that defect. Indeed, it would be impossible to consider the

motion for indicative ruling—which was properly appealed—without considering the motion for

reconsideration. Accordingly, this court has jurisdiction to consider the issues and facts raised in

Dice’s motion for reconsideration.


                                                -9-
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Dice v. Bold

                                               III.

       It is the parties, in our adversarial system, who frame the issues before the court. This is

true of both factual and legal arguments. The rules of civil procedure and standards of appellate

review acknowledge this. The nub of this dispute is the district court’s summary judgment order.

Rule 56(c) requires a party objecting to a motion for summary judgment to support its assertions

by “citing to particular parts of materials in the record.” Accordingly, we do not “‘entertain on

appeal factual recitations not presented to the district court’ when reviewing a district court’s

decision.” Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007) (quoting

Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir. 1992)). The “proper focus is

on the factual evidence submitted below.” Id. at 996; Cacevic v. City of Hazel Park, 226 F.3d

483, 491 (6th Cir. 2000) (“Although [plaintiffs] proffered evidence that might or might not show

a genuine issue of material fact after the district court had granted the defendants’ motion for

summary judgment, that evidence will not be considered by us on review.”); Estate of Mills v.

Trizec Props., 965 F.2d 113, 115 (6th Cir. 1992).         “This burden to respond is really an

opportunity to assist the court in understanding the facts. But if the non-moving party fails to

discharge that burden . . . its opportunity is waived and its case wagered.” Guarino, 980 F.2d at

405.

       The same is true of legal arguments.           This court requires “timely and reasoned

presentation of non-jurisdictional issues to avoid forfeiture.” Winnett v. Caterpillar, Inc., 553

F.3d 1000, 1006 (6th Cir. 2009). “It is well-settled that this court’s ‘function is to review the

case presented to the district court, rather than a better case fashioned after an unfavorable

order.’” Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (internal alterations

and quotation marks omitted) (quoting Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th


                                               -10-
Nos. 12-2513, 13-1712
Dice v. Bold

Cir. 2005). Arguments not squarely presented to the district court are not reviewed on appeal.

See, e.g., Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996).

       With these parameters in mind, we review the district court’s order granting summary

judgment de novo, see Crouch v. Honeywell Int’l Inc., 720 F.3d 333, 338 (6th Cir. 2013), and,

treating a denial of indicative relief as we would a Rule 60(b) motion, we review the district

court’s order denying Dice’s motion for indicative ruling for abuse of discretion, see Ray, 416 F.

App’x at 161 n.3. As will be discussed in greater detail below, Dice’s appeal suffers from both

aforementioned ailments—it presents new legal arguments supported by previously unmentioned

record evidence.

                                               IV.

                                               A.

       Dice argues that the district court erred in granting summary judgment to Bold on the

MUTSA claim. A claim for misappropriation of trade secrets, as the cause of action suggests,

requires: (1) a trade secret; and (2) misappropriation. See Mich. Comp. Laws § 445.1902.2

       A trade secret consists of two component parts. It is information that derives independent

economic value from not being generally known to, and not being readily ascertainable by

proper means by, other persons who could obtain economic value from its disclosure or use. Id.

§ 445.1902(d).     And the information must be the subject of reasonable efforts under the

circumstances to maintain its secrecy. Id. As a general matter, trade secret law does not protect

“an idea which is well known or easily ascertainable.” Manos v. Melton, 100 N.W.2d 235, 238

(Mich. 1960).      “Trivial advances or differences in formulas or process operation are not

       2
         The district court and the parties rely on Stromback v. New Line Cinema’s articulation of
a three-part trade secret claim. 384 F.3d 283, 302 (6th Cir. 2004). Stromback explicitly stated
that the three-element trade-secret claim was the common-law claim and that the common-law
claim was displaced by MUTSA. Id.
                                               -11-
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Dice v. Bold

protectable as trade secrets.”      Id. at 239 (internal quotation marks omitted); Agency

Solutions.Com, LLC v. Trizetto Grp., Inc., 819 F. Supp. 2d 1001, 1017 (E.D. Cal. 2011)

(“Proprietary ways of doing the same thing that others in the same field do are not trade

secrets.”).   “Of critical importance here, to be worthy of trade secret status, the secret

information must afford the owner a competitive advantage by having value to the owner and

potential competitors.” Daimler-Chrysler Servs. N. Am., LLC v. Summit Nat’l, Inc., 289 F.

App’x 916, 922 (6th Cir. 2008) (applying MUTSA).

        MUTSA defines misappropriation as acquisition, disclosure, or use of a trade secret by a

person who knows or has reason to know that the trade secret was acquired by improper means.

See Mich. Comp. Laws § 445.1902(b).

        Dice argues that Bold misappropriated two trade secrets: (1) the ALSCHART; and (2) its

receiver drivers software.

                                                1.

        Dice argues that the district court erred in concluding that the data obtained from the

ALSCHART file via the Thoroughbred query was not a trade secret. Again, the ALSCHART is

a file containing a master list or database of alarm codes.       Dice argues that because the

ALSHCART contains codes converted to Dice’s standards, the ALSCHART was subject to trade

secret protection.

        Dice fails to explain how this information, even if uniquely coded, is a trade secret. The

ALSCHART is a compilation of labelling codes created by manufacturers, not Dice. The codes

were collected by Dice’s customers, not Dice. Dice has not put forward an explanation of how

the value of its unique labelling is derived from it not being readily ascertainable by proper

means. And Dice has not produced any evidence to that effect. See Mich. Comp. Laws §


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Dice v. Bold

450.1902(d); see also Daimler-Chrysler, 289 F. App’x at 922 (plaintiff bears the burden to

produce sufficient evidence to suggest that information derives independent economic value

secrecy); Utilase, Inc. v. Williamson, 188 F.3d 510, 1999 WL 717969, at *6 (6th Cir. Sept. 10,

1999) (plaintiff must identify trade secret with specificity); Dura Global Techs., Inc. v. Magna

Donnelly Corp., 662 F. Supp. 2d 855, 859 (E.D. Mich. 2009) (same).

       In addition, Dice failed to present competent evidence of misappropriation to the district

court. Noting the fact that Dice did not cite any record evidence, the district court granted Bold’s

well-supported motion for summary judgment. Dice, for the first time on appeal, cites record

evidence that it claims supports a finding of misappropriation. We do not, however, “entertain

on appeal factual recitations not presented to the district court any more readily than [we] will

tolerate attempts to enlarge the record itself.” Guarino, 980 F.2d at 404. The district court did

not err in rejecting Dice’s conclusory allegations of misappropriation in the face of competent

evidence to the contrary. See Fed. R. Civ. P. 56(c).

                                                 2.

       Dice also argues that its software is a trade secret. Specifically, Dice claims that Bold

misappropriated its receiver drivers that take incoming signals and convert the data to Dice’s

standard. Although Dice’s briefing on this claim is opaque, we are skeptical whether Dice raised

this claim before the district court. Neither in the operative complaint nor in Dice’s response to

Bold’s motion for summary judgment can we find a trade secret claim based on receiver drivers

or software that performs that function. In Bold’s motion for summary judgment, Bold discussed

only the ALSCHART as material potentially subject to trade secret protection. In response, Dice

referred only to software that compiles information—a description consistent with the

ALSCHART’s function and not the receiver drivers.            The district court then treated the


                                               -13-
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Dice v. Bold

ALSCHART file as the subject of Dice’s trade secret claim in its order granting summary

judgment. Had the district court made so plain an error in failing to consider an entirely

independent trade secret claim, we would expect Dice to mention that in its motions for

reconsideration or indicative ruling. It did not.

       Even if not forfeited for this reason, Dice’s claim is defective for two independent

reasons.    First, as discussed above, Dice failed to present competent evidence of

misappropriation to the district court. Second, much like the ALSCHART claim, Dice has never

put forward any evidence, let alone make the argument, that its receiver drivers are actually a

trade secret. Other than a generalized explanation of what the receiver drivers do, Dice has

failed to explain whether the receiver drivers derive economic value from their secrecy.

                                                    B.

       Dice alleges that to undertake the extraction process, Bold created an unauthorized

derivative work in violation of the Copyright Act, 17 U.S.C. § 106(2). 17 U.S.C. § 411(a)

provides: “no civil action for infringement of the copyright in any United States work shall be

instituted until preregistration or registration of the copyright claim has been made in accordance

with this title.”   In Reed Elsevier, Inc. v. Muchnick, the Supreme Court clarified that this

requirement is a precondition to suit and not a jurisdictional rule. 559 U.S. 154, 161 (2010).

       Dice did not seek copyright protection until after it filed suit.3 We do not decide whether

late registration can cure this non-jurisdictional defect. See Positive Black Talk Inc. v. Cash

Money Records, Inc., 394 F.3d 357, 365 (5th Cir. 2004), abrogated by Reed Elsevier, 559 U.S. at

157.   Dice’s claim fails for a separate reason.         Not all copying amounts to copyright

       3
         Dice’s reliance on Coles v. Wonder, 283 F.3d 798, 801 (6th Cir. 2002), is misplaced.
Coles stands for the unremarkable proposition that although an action for infringement cannot be
enforced until § 411’s filing requirements have been satisfied, copyright protection extends
retroactively to the time the artist creates the work. Id.
                                                -14-
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Dice v. Bold

infringement. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Allowing

that registration constitutes prima facie evidence of the copyright’s validity, see 17 U.S.C. §

410(c)4, the plaintiff must still prove “that the defendant copied protectable elements of the

work.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir.

2004); see also Feist, 499 U.S. at 361. Only original material is subject to copyright protection

and, even then, elements of a computer program dictated by practical realities may not be

protectable. See Lexmark, 387 F.3d at 535.

       Dice has not attempted to demonstrate which aspects of its programs were protectable.

Dice does not identify any original elements in its software and does not argue that the receiver

drivers represent non-functional expression. Irrespective of how unique the Dice standard or its

source code, the district court was right not to find a fact question on the basis only of Dice’s

say-so. Dice attempts to explain its failure to produce any such evidence by pointing to the fact

that Bold belatedly produced the File List document, which, according to Dice, finally allowed it

to inspect Bold’s Extraction Program. But in its motion for reconsideration and in its motion for

indicative ruling, Dice failed to identify the original and non-functional elements of its work.

Instead, it provided hundreds of pages of incomprehensible computer code without explanation

other than Clifford Dice’s claim that “Bold’s extraction program utilized Dice source code in the

conversion process.”




       4
         Dice does not make this argument. Moreover, at least at the time Dice filed suit, it was
not entitled to this benefit of registration. And finally, Dice does not claim a copyright in the
ALSCHART, only in its receiver drivers.
                                              -15-
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Dice v. Bold

                                                C.

       Dice asserts on appeal that Bold violated the Digital Millennium Copyright Act

(“DMCA”), 17 U.S.C. § 1201(a), because customers allowed Bold to use their passwords to

login to the Dice servers through the “Go To Assist function.”

       For two reasons this claim fails. First, Dice did not cite any evidence of circumvention of

technological measures to the district court. The district court rejected Dice’s claim for this

reason. Likewise on appeal, to the extent we are inclined to allow Dice to resurrect its argument,

Dice cites no evidence. Second, Dice’s general theory before the district court was that Bold

circumvented Dice’s attempts to encrypt its software. Dice now argues that Bold violated the

DMCA because ESC Central improperly allowed Bold to use its passwords to login to the Dice

software operating at the customer’s site through the Go To Assist function. This is a new

argument not appropriately considered on appeal.

                                                D.

       Dice argues that the district court erred in dismissing its private cause of action under the

Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. 1030(g).5 Generally, the CFAA protects

against unauthorized computer access. Dice puts forward a complex claim of unauthorized

access. It claims that, although ESC Central’s servers running Dice software were owned by

ESC Central, they were connected to the Dice disaster recovery network at Dice’s office in

Michigan. According to Dice, customer-owned servers, like the ESC Central server running the

Dice software, were actually a branch of Dice’s network. This is because, when a Dice system is

installed, Dice’s Michigan servers mirror its customers’ servers. Consequently, according to

Dice, when Bold employees accessed ESC Central servers they necessarily accessed the Dice

       5
         Dice does not clarify under which subsection it brings its claims, but this is ultimately
irrelevant.
                                               -16-
Nos. 12-2513, 13-1712
Dice v. Bold

disaster recovery network. This argument, like many before, was not fairly made to the district

court.6

          Even assuming this claim were fairly raised, it would still fail. Liability under the CFAA

requires a showing of intentional access. 18 U.S.C. § 1030(a)(2). Neither Narowski nor Condon

was aware that performing a Go To Assist Function on ESC Central servers allowed access to

Dice servers in Bay City, Michigan. Dice also does not explain how, even if the Go To Assist

function allowed access to Dice servers, Condon or Narowski used the Go To Assist function to

obtain Dice source code. See 18 U.S.C. § 1030(e)(6). Condon explains:

          If permission is granted by the customer, the Go To Assist function allows me to
          view the computer screen of the customer from Bold’s Colorado office and to
          perform commands on the customer’s computer. . . . The result is the same as if I
          was at the customer’s office and the customer allowed me to sit at their computer
          terminal and view their computer screen. . . .

          Using Go To Assist I was able to view ESC’s computer screens for the ESC
          server running Dice and the ESC server running Bold to help diagnose [a]
          discrepancy in the signal interpretations. As far as I am aware, the Go to Assist
          function would not allow myself or any other Bold user to access Dice source
          code in the Dice software running on ESC’s servers and I have never used Go To
          Assist for that purpose.”

And Narowski attested: “With GoToAssist I cannot access any Dice source code even if the Dice

software is running on the customer’s computer which grants access and I have never used




          6
          Dice’s response to Bold’s motion for summary judgment stated: “gotoassist enabled Mr.
Narowski and any other qualified Bold employee to access Dice servers without alerting Dice.”
Dice did not explain that this occurred through the mirroring function of the disaster recovery
network nor did Dice cite any evidence for that claim. On appeal, Dice points to the fact that in
an affidavit attached as an exhibit, Clifford Dice explained the mirroring function. But the
district court was not required to comb through the uncited record to make sense of Dice’s claim
and, at the very least, Dice was obligated to explain the factual basis for its claim to the district
court. See Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008).
                                                 -17-
Nos. 12-2513, 13-1712
Dice v. Bold

GoToAssist to access any Dice source code.” As for Dice’s claim that Condon accessed Dice’s

servers to acquire the ALSCHART file, Dice has not presented any evidence.

                                              V.

       For the foregoing reasons, we affirm the district court’s grant of Bold’s motion for

summary judgment and its denial of Dice’s motion for indicative ruling.




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