The Tenth Circuit recently reviewed a summary judgment by a district court on the scope of the term “intellectual property” in a contract governed by Colorado law. [LINK]. Particularly, the dispute dealt with whether password information was “intellectual property” that had to be returned. Interestingly, the Tenth Circuit reversed the district court and held, based on the arguments presented by the parties in this instance, that the contract’s use of the term “intellectual property” was ambiguous as to whether it included password information.
Both sides present plausible interpretations. On the one hand, login information does involve a mental creation, which could trigger the district court’s broad definition of intellectual property. In addition, the login information is needed for the Commission to access account records, which could constitute intellectual property. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 360 (1991)(stating that compilations of facts or preexisting data can be copyrighted to the extent that the work features an original selection, coordination, or arrangement).
On the other hand, the Commission relies on the login information itself rather than the account records. The login information serves as identifying information, like a birthdate or Social Security number, and few people would regard a birthdate or Social Security number as intellectual property. So the contract is ambiguous on whether the login information constituted intellectual property.
INTERSTATE MEDICAL LICENSURE COMPACT COMMISSION v. Bowling, No. 23-1291 at 17-18 (10th Cir. Aug. 30, 2024).
The oral argument was notable in that it was argued on one side by students from the University of Colorado Law School Appellate Advocacy Practicum. I thought they did an excellent job.
How comfortable are you that a court would know the scope of “intellectual property” under your state’s law?
You can listen to the oral argument here: [Listen].