Executive Intellectual Property Bulletin
Software Copyrights - Non-literal elements are protected
In a recent decision, Harbor Software, Inc., v. Applied Systems, Inc., the U.S. District Court for the Southern District of New York found that copyright protection extended to some non-literal portions of a computer software package designed to provide automated client development and management. The court analyzed the software under the "abstraction-filtration-comparison" test announced by the Second Circuit Court of Appeal in 1992 in Computer Associates Int'l Inc. v. Altai, Inc.
Copyright law offers protection for the "expression" of an idea, but does not extend to the idea itself. In most cases, literal, textual elements of software, such as source code, fall within the "expression" category. Less clear is the protection afforded to non-literal software elements such as its architecture or data structures. The abstraction and filtration steps are used to separate elements of the computer program that are protectable under copyright law from those elements that are not. Once the scope of the copyright protection for the software is determined by the court, the comparison between the protected elements and the alleged infringing software is performed by the jury to determine infringement.
The abstraction part of the Altai test requires that the court classify each element of the software as a level of abstraction. The main purpose of the software defines the highest level of abstraction, with the elements becoming less abstract as the court examines, in turn, the architectural structure, modules, algorithms, data structures, source code, and object code, with object code considered the least abstract. The higher the level of abstraction of an element, the more likely the element's "expression" will be deemed "merged" with the idea behind the element and thus be unprotectable. Once the court has determined the level of abstraction of the elements, it "filters" out those elements that are unprotectable because they have merged with the idea behind the software, result from efficiency considerations, represent common programming techniques found in the public domain, constitute unprotectable functions, or are unprotectable processes or methods.
In Harbor Software, the judge appointed an expert to work with the parties to develop a series of exhibits that graphically represented the elements of the software. The exhibits included diagrams that illustrated the overall program architecture and associated data flow, program module data and control flows, database files, and source code descriptions, among other software elements. After determining the abstraction level of each element represented in the exhibits, the judge found the architecture and overall data flow as unprotectable due to its merger with the idea of automated prospecting. Similarly, the control flow of the software at the module level was also deemed merged with the idea.
However, the judge ruled that the data flow through the modules was protectable because "the programmer made a series of choices in deciding how the information processed in the module progresses through the program for the purpose of effectuating automated prospecting." The court also found that the selection and organization of the database fields were protectable expression since the idea did not dictate a precise arrangement of the fields in the database. The source code, as a whole, was also deemed protected under copyright law.
While Harbor Software reiterates Altai in finding that some non-literal software elements are copyrightable, the abstraction step of the Altai test introduces a large amount of uncertainty into the scope of the protection. This is one reason we advise our clients to consider the more exact protection of patent law for their critical software products.
For more information on this topic or other topics, please contact any of the attorneys at Schwegman, Lundberg & Woessner, P.A. at 612-339-0331 or by facsimile at 612-339-3061 or via this web site.
