Copyright Infringement Law

Where a party uses the work of another without its express written permission, authorization or consent, that party may violate Section 501 of the United States Copyright, Title 17 of the United States Code.

Pursuant to Section 106 of the Act, the owner of copyright under Title 17 has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

Anyone who violates any of the exclusive rights of the copyright owner as provided by Section 106 is considered an "infringer" of the copyright as well as an "infringer" of the rights of the author.

In order to prevail on a claim for copyright infringement, a Plaintiff must initially show that the application has been filed and either factual evidence of copying or that the defendant had access to the copyrighted work and that the offending and copyrighted works are so similar, that the Court may infer that there was factual copying.

Pursuant to Section 501(b), the owner of the exclusive rights granted under the Act may institute an action for damages for infringement. The owner may seek "Statutory Damages" for each and every infringement committed by the company.
For purposes of the Act, "Statutory Damages" allow for the recovery of damages per infringement "in a sum of not less than $750 or more than $30,000".

Web Site Infringement

As for web sites, there are a number of different forms of copyright infringement. Generally, one may allege infringement when either the text, graphics, unique features, general design or configuration appears to be substantially similar to that of the offended party and where the offended party's site was constructed and posted prior to that of the infringer's site. The amount of infringement occurring with specific regard to web site features has become ever increasing on the Internet and is exceptionally difficult to monitor. It is simply impossible to police the Internet for all potential infringement of your site. The most important way in which to protect the integrity of your site, however, is to file your copyright registration with the United States copyright Office. As long as the application has been filed, a party may seek prosecution for infringement upon learning of the possible infringement. If the application has not been filed, it can be very difficult to enforce your rights for protection. Under the Copyright Act, filing of the application is a prerequisite to suit. As such, as with all intellectual property ownership, every party should always be diligent in seeking protection of their property rights.

Software Programs

In its simplest sense, computer is a machine that processes data and instructions and generates information through the use of programs and applications that direct the machine how to operate or to perform. The machine then conveys a form of functionality or communication to the user through the use of the applications enabling the user to effectively operate the machine through various commands and instructions.
The same general standard of infringement applies for claims of infringement in the context of computer programs. Generally, the claimant must show that he is the owner of a copyrighted work and that the defendant copied protected elements of the work. The owner must then show direct evidence of copying or that the defendant had access to the owner's work and that the works are substantially similar. The tests applicable for infringement for software programs, however, becomes much more complicated and requires a very meticulous analysis.
There are two standards applicable in deciding the level of similarity: the "virtual identity" standard and the test of "substantial similarity." The test for substantial similarity is "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." If the test of substantial similarity is met, then the inquiry becomes whether the defendant misappropriated a significant element of the owner's work or if the appropriation is so small as to be trivial or what is referred to as de minimis. The terms itself is somewhat vague and ambiguous. It can be difficult to discern whether the elements of a program when copied are considered de minimus or not. The issue turns on the nature of the programs at hand and requires a case-by-case analysis.
Where claims concern works that are not entirely protected by copyright or only portions of the program are copyrightable, such works will only garner minimal protection and will be evaluated pursuant to the virtual identity standard. Pursuant to this test, a "bodily appropriation of expression," must be found in order to "win the day" on infringement. In other words there must be an unauthorized use or copying of substantially the entire item at issue. Put simply, under the virtual identity standard, there must be almost an exact replica of the owner's work in order to find that the defendant has indeed engaged in copyright infringement.

Limitations on Protection

While a computer program is clearly protected under the Copyright Act, there are many limitations on that protection. First, it is necessary to determine whether the program at issue is itself protected under the Act. Except where acts of copyright infringement are done so with obvious and blatant intention, it is rare that the issue of applicability of protection will be clear. It is, therefore, necessary to analyze the elements of the program allegedly copied. Then, if the program can be found to warrant protection, the analysis turns to whether the work has been infringed. Infringement itself is a much more complicated concept than it appears. Finally, each case must be scrutinized in terms of whether or not a legitimate defense applies. There are many defenses to copyright infringement. These defenses are generally referred to as "limiting doctrines."
The main limiting doctrines include the "idea-expression" concept; what has been referred to as "scenes a faire"; the "merger doctrine"; components in the "public domain"; and, purely "functional elements".

Idea vs. Expression
A principle tenet of copyright law holds that an idea itself cannot be copyrighted. Rather, it is the expression of the idea that generally qualifies for expression. In particular, the Act provides as follows:

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
The same follows for computer programs. In other words, the very idea of the design of a computer program can be implemented by any party in their work. The expression of that idea, however, in the embodiment of that work, whether through source or object code, cannot be copied. Needless to say, the analysis itself can be quite complicated. Whether particular elements of the program constitute an idea or expression is a difficult question. While some ideas themselves may be original and not entitled to protection, some expressions of certain ideas in software programs may not be protected under copyright law. As with most determinations, the issue must be evaluated according to the software at issue.
In addition to the idea-expression issue, many courts have made the analysis even more complicated. Section 102(b) of the Act expressly provides that copyright protection is not available for procedures, processes, systems or a "method of operation". Whether or not certain elements of a program constitute a method of operation or the expression of an original, protected idea depends upon the nature of the element at issue. Expert testimony will often prove dispositive.

"Scenes a faire"
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Under the doctrine referred to as "Scènes à faire" any "expressions" that are standard, stock, or common to a particular topic are excluded from copyright protection under the statute. For example, in the realm of film, certain plots are considered so common that they are no longer protectable. While a screenplay itself may be protected under copyright law, the underlying theme may not. Similar to the realm of film, there are certain features or functions in a software program that are considered so common that they are no longer protectable. As such, the factor of originality once again plays a significant role in the copyright protection analysis.

The Scènes à faire doctrine is also used in the computer context to deny protection to expression dictated by "extrinsic" factors or "externalities" which limit or constrain the programmer's choices. In addition, the same doctrine limits copyright protection that is dictated by or dependent upon extrinsic factors to the software program which have the effect of causing limitation the choice of the programmer. The Second Circuit has identified the following as examples including, "(1) the mechanical specifications of the computer on which a particular program is intended to run; (2) compatibility requirements of other programs with which a program is designed to operate in conjunction; (3) computer 'manufacturer's design standards; (4) demands of the industry being serviced; and (5) widely accepted programming practices within the computer industry." Clearly then, the concept can apply in an expansive fashion.

The Merger Doctrine

The doctrine of merger in the copyright realm is somewhat similar to the theory in the field of trademark known as the color depletion theory. According to the color depletion theory, the allowance of a valid trademark for a particular color would have the effect of granting the exclusive use of that color thereby preventing any other party from using the color itself as a mark. Similarly, under copyright law, where the expression of an idea is limited to only a certain amount of possibilities, the expression is not protected. In certain instances involving software programs, there may be a limited amount of ways in expressing the functionality of an element of the program. As such, the granting of copyright expression to an element that has a limited realm of possibilities would have the effect of allowing a monopoly on the element. Thus, where the possible ways of expressing an idea are so limited, the idea and the expression are said to have merged, and the expression itself is not protected by copyright.

Public Domain

Elements of a program found to be in the public domain do not warrant protection.

Functional Elements

Purely functional elements of a program are generally not protected under copyright law. Courts have held that elements of a user interface and the arrangement thereof are simply not protectable. Furthermore, as another example, a menu command arrangement may not be held protected. In fact, Courts have held that the menu arrangement itself may be considered a "method of operation" rather than a protected element of expression.
Infringement analysis.

Given the limitations presented above, the analysis of whether substantial similarity exists between two programs has been reduced to three-tiered test. With regard to the non-literal elements of a program the test is as follows:

1. Abstraction: In the Altai decision, a seminal case on software infringement, the first strand can be summarized as follows: "In a manner that resembles reverse engineering on a theoretical plane, a court should dissect the allegedly copied program's structure and isolate each level of abstraction contained within it. This process begins with the code and ends with an articulation of the program's ultimate function. Along the way, it is necessary essentially to retrace and map each of the designer's steps -- in the opposite order in which they were taken during the program's creation [from the top down]." Altai at 707.

2. Filtration: The second tire provides as follows: "examining the structural components at each level of abstraction to determine whether their particular inclusion at that level was 'idea' or was dictated by considerations of efficiency, so as to be necessarily incidental to that idea; required by factors external to the program itself; or taken from the public domain and hence non-protectable expression." (Id).

3. Comparison: Finally, the analysis concludes with the following: "Once a court has sifted out all elements of the allegedly infringed program which are 'idea' or are dictated by efficiency or external factors, or taken from the public domain, there may remain a core of protectable expression. ... At this point, the court's substantial similarity inquiry focuses on whether the defendant copied any aspect of this protected expression, as well as an assessment of the copied portion's relative importance with respect to the plaintiff's overall program." Id. at 710.

While the analysis appears fairly clear, in practice, the tests has not provided much guidance for the federal courts.

Literal and Non-literal elements of a program.

The source code and object code of a computer program are generally referred to as the "literal" elements of a program because they are within the literal definition of a computer program. Section 101 of the Act provides as follows: "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result."

The "look and feel" of a program, however, is considered more of the non-literal element of a program. As the creativity and development of the graphical user interface of a program increased, experts began to recognize that the source code of a program was no longer the only identifiable part of the program to which one could attribute its creativity. Instead, experts began to see the unique value in the "look and feel of the interface." As a result, the courts began to find that the user interface itself was independently protectable. A number of different issues, however, have since arisen out of the same analysis. Specifically, with regard to menu command hierarchies, the courts are somewhat split as to what is or is not protected by copyright. Once again, much of the more complicated issues underlying copyright in computer programs remain unresolved.

One should always consult a knowledgeable copyright attorney before undertaking any litigation matters. As you can see, the matters are very complicated and can be quite costly if you fail to properly address these issues from an early stage.



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