MMAS Research LLC v. Boston Children Hospital et al. (D. Mass. 24-cv-12108).

MMAS created software, the “MMAS Research Widget Code,” that is asserted to determine whether patients are taking their medicine in accordance with the prescription.  MMAS registered the Widget software with the U.S. Copyright Office, and further claimed trade secret protection in certain scoring and coding algorithms.  MMAS licensed the software to a number of entities, including Boston Children Hospital.

MMAS says that the Widget creator and former MMAS co-owner, Defendant David Morisky, had sought to undermine MMAS by posting to his website that the Widget software was being phased out.  MMAS further says that Morisky interfered with existing licenses by falsely claiming ownership of the copyright in the software, which it says was assigned to MMAS previously, and by threatening legal action against existing licensees, including Boston Children Hospital.  MMAS says that Boston Children Hospital breached the license agreement by modifying the software without authorization and by administering and scoring the test outside of the software and that Boston Children Hospital breached the DCMA by replacing MMAS’ copyright attribution.  Defendants moved to dismiss the claims for failure to state a claim on which relief could be granted.

As an initial matter, Judge Casper determined that he would take judicial notice of the Copyright registration and of the proceedings in different court proceedings involving some of the same parties, although the latter would not be considered for the truth of the facts asserted therein.  He did not consider a declaration and new exhibits submitted by MMAS in its opposition that were not otherwise contained in the complaint, as they fell outside the scope of material to be considered in a Rule 12(b)(6) motion.

Judge Casper upheld the breach of contract claim against Boston Children Hospital but dismissed the breach of contract claims against individuals who acted on BCH’s behalf, as they were not signatories to the contract, and under Massachusetts law, a person who makes a contract on behalf of a disclosed principal does not him or herself become a party to the contract.  He rejected BCH’s argument that copyright misuse precluded the contract claim, because the misuse doctrine has never been affirmatively accepted (or rejected) in the First Circuit, and where it has been accepted, copyright misuse is a defense only to copyright infringement and not as to state law claims.

Judge Casper dismissed the DCMA claim.  The DCMA prohibits the unauthorized removal or alteration of copyright management information (“CMI”), but the complaint did not allege that the software itself was being distributed with its CMI removed.  Instead, it argued that clinical results referenced the software but either omitted attribution or replaced attribution with an attribution to Morisky.  In the absence of allegations of distribution of the software itself (minus the CMI), the DCMA count could not stand.

Judge Casper also dismissed the Defend Trade Secrets Act count, finding that no misappropriation had been adequately alleged.  MMAS had alleged that NCH personnel had altered the trade secret scoring and coding algorithm, but the alleged alteration took place while the personnel were being trained and certified by MMAS, which infers that the activity was authorized or not otherwise improper.