Selected Papers

CASE SUMMARIES OF
COMPUTER COPYRIGHT CASES

Synercom Technology, Inc. v. University Computing Co., 462 F.Supp. 1003 (N.D. Tex. 1978)

Synercom sued for copyright infringement of their instruction manuals and input formats used with Synercom's computer program used to solve engineering problems. Synercom developed input card formats which made the program easier to use. University Computing developed a preprocessor which accepted Synercom's formats from standard 80-column cards. The sequence and ordering of data by Synercom was the idea and as such no copyright protection exists in the forms.

Midway Mfg. Co. v. Dirkschneider, 543 F.Supp. 466 (D. Neb. 1981)

Preliminary injunction granted to Midway, a manufacturer of Galaxian, Pac-Man and Rally-X video games, against Dirkschneider, who distributed almost identical games, having virtually the same play modes, attract modes, and sound effects.

Tandy Corp. v. Personal Micro Computers, Inc., 524 F. Supp. 171 (N.D. Cal. 1981)

Tandy claimed that Personal Micro Computers took Tandy's I/O routine from a ROM chip and copied the chip for use in Personal Micro's computer. A computer program is subject to copyright protection. A silicon chip having the program imprinted on it is a "tangible medium of expression" of the program and so is also subject to copyright laws. Personal Micro's motion to dismissed was denied.

Atari, Inc. v. North American, 672 F.2d 607 (7th Cir. 1982)

Court of Appeals allowed a preliminary injunction for alleged copyright infringement of Atari's Pac-Man video game. North American's K.C. Munchkin game was not exactly like Atari's, but it used the same characters and portrayed them in a manner making the North American game substantially similar to Atari's game. Applying the abstractions test, the court held that the audio and concrete details of the visual presentation constitute the copyrightable expression of the game idea. The court treated elements of the game as scenes a faire and thus only protected from literal copying.

Midway Mfg. Co. v. Bandai-America, Inc., 546 F.Supp. 125 (1982)

Midway, producer of arcade video games, brought copyright infringement action of Pac-Man and Galaxian against, Bandai, a producer of handsized video games. Videogames are audiovisual works. Court held that substantial similarity review should be made with respect to gross features rather than detailed analysis of the games' minutia. It is for the trier of fact to find whether a lay person would detect such substantial similarity between the games as to show copying went so far as to constitute improper appropriation.

Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3rd Cir. 1983), cert. denied, 464 U.S. 1033 (1984)

Franklin copied some of Apple's operating system programs in order to make its ACE 100 computer compatible with the Apple II computer. Appeals court reversed the District Court's denial of a preliminary injunction for Apple. Court held that whether in object or source code, a computer program is a literary work and is thus protected by copyright; object code embedded in ROM is also subject to copyright protection; and operating system programs are not per se precluded from copyright protection as being processes, systems or methods of operation.

Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521 (9th Cir. 1984)

Preliminary injunction entered to prohibit Formula from copying or distributing computer programs whose copyrights are registered by Apple and from using the trademark "Pineapple" on its computers. Formula argued that the programs were not predictable because since they were operating system programs instead of application programs, section 102(b) of the Copyright Act excluded them like any other idea, procedure or process. The court rejected this argument, holding that the Copyright Act makes no distinction between operating system and application programs.

SAS Inst., Inc. v. S&H Computer Systems, Inc., 605 F.Supp. 816 (M.D. Tenn. 1985)

SAS claimed S&H infringed SAS's copyright in it statistical analysis computer system. S&H wished to create a version of the SAS system to run on non-IBM computers. S&H licensed a copy of the SAS system in order to create its own program. S&H converted SAS's source code from EBCDIC to ASCII and stored it on disk in order to examine the source code. This source code was an infringing copy of the program and was extensively used by S&H in preparing its system. S&H incorporated functionless code surviving in the SAS system, indicating intentional copying of the SAS system. S&H also copied the organization and structural details of the SAS system. SAS was granted injunctive relief.

E.F. Johnson Co. v. Uniden Corp. of Am., 623 F.Supp. 1485 (D.C. Minn. 1985)

Preliminary injunction issued against Uniden for alleged infringing E.F. Johnson's program for 2-way trunked mobile radio system. Uniden disassembled the E.F. Johnson's programs from EPROM and reverse engineered the competing software. Copying can be proved by showing access and sufficient similarities and proving infringer's work is an iterative reproduction (one produced by iterative or exact duplication of substantial portions of the copyrighted work). Uniden's infringing program not only copied portions necessary to make the program compatible, but also non-essential code which code have been coded more efficiently by Uniden. A line-by-line comparison was not used because the infringing code was written to execute on a different type of processor.

Q-Co Indus., Inc. v. Hoffman, 625 F.Supp. 608 (S.D.N.Y. 1985)

Q-Co developed and copyrighted the VPS-500 teleprompting computer program for use on Atari computers. Hoffman developed nearly the same program, the CPC-1000, for use on IBM computers. However, this program was written in Pascal rather than Basic and used new algorithms since the IBM did not have the graphic capabilities that were available on the Atari computer. The two programs share similar terminology in their menus, including "create," "edit," "save," etc. Because Q-Co did not show any unique expression from its Atari program which appeared in the IBM program, it failed to establish copyright infringement. Q-Co's preliminary injunction was denied.

M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421 (4th Cir. 1986)

M. Kramer produced a computer video poker game and sued Andrews for copyright infringement after Andrews had an engineer take ROMs from M. Kramer's game and make minor changes to them. Such changes included inserting the name of Andrew's company on the screen displays and changing some of the wording displayed on the screen during the game. The court held that a copyright in the audiovisual display, which display is created by a computer program, protects not only the audiovisual from copying, but also the underlying computer program to the extent the program embodies the game's expression. This is because the program in ROM is a copy in which the audiovisual work is fixed. Thus, Andrew's actions held to be infringing of M. Kramer's valid copyrights.

Whelan Assoc., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3rd Cir. 1986), cert. denied, 479 U.S. 1031 (1987)

Jaslow accused of copying the non-literal structure of Whelan's copyrighted dental lab management program. Most of the file structures, screen outputs and programs were virtually identical. Five subroutines performed almost identically in both programs. In the extrinsic/intrinsic test, the court would first decide where is sufficient similarity to hold that alleged infringer used the original work in crafting its program. At this state, expert testimony is used. The court next decides, without using expert testimony, whether a lay observer would find the copying illicit or misappropriating.

Another type of test for infringement is the ordinary observer test. This test is of doubtful value in computer copyright cases since they may be too complex for the lay person. This Court decided to use a single substantial similarity inquiry according to which both lay and expert testimony is admissible.

In assessing infringement, court devised a new test on which aspects of the programs were ideas and which were expressions. This rule states that the purpose or function of a utilitarian work is the work's idea and everything that is not necessary to that purpose or function is part of the expression of the idea. Where there are various means of achieving the purpose, then the means chosen isn't necessary and hence it is expression, not idea. In this way, scenes a faire are not protected and fact intensive works are given limited copyright protection. Critics to the court say that a program can have more than one idea.

Court held that copyright in a computer program protects the non-literal structure, sequence and organization of that program even in the absence of direct source code or object code copying. Computer files, like blank forms, that by their arrangement and organization convey some information can be copyrighted. Copyright infringement finding affirmed.

Broderbund Software, Inc. v. Unison World, Inc., 648 F.Supp. 1127 (N.D. Cal. 1986)

Broderbund sued Unison, claiming its Print Shop computer program for Apple II computers was infringed by Unison's Printmaster program for IBM computers. Unison's program development commenced during license negotiations between the two parties. During this time, the programmer was instructed to make the IBM version a copy of Print Shop. When negotiations broke down, the programmer was then instructed to take the present state of the program and enhance it to be a better product than Print Shop. Court took a broad view of copyright, holding that the copyright in a computer program extends beyond the literal program codes to the structures of the program, including the sequencing and arrangement of its audiovisual displays. Unison's Printmaster held to infringe Print Shop. This court extended Whelan to include screen displays. Later, the Digital v. Softklone court found this extension of Whalen to be erroneous.

Digital Communications Assoc., Inc. v. Softklone Distrib. Corp., 449 F.Supp. 449 (N.D. Ga. 1987)

Digital Communications' infringement action sought injunctive relief for its Crosstalk XVI communications program. Softklone intentionally created its Mirror program to be a clone of Crosstalk. Mirror did not infringe the copyrights of the source or object code, but just programmed a very similar screen display.

Copyright protection does extend to both a program's source code and object code, written in machine readable binary language. What other literal/non-literal elements does copyright protection extend? Because the identical screen displays can be created by a variety of different computer programs which are in no way direct copies or reproductions of the copyrighted program and because screen displays generated by computer programs are not direct "copies" or "reproductions" of the literary of substantive content of the computer programs, court held that copyright protection of a computer program does not extend to screen displays generated by the program.

A separate copyright registration of the status screen display, however, was held to protect the expression of the display. The protected portion of was the method by which the idea expressed in the display was communicated. Regarding the status screen of the program, use of a screen to reflect the status of the program, or the use of a command driven program, are unprotectable ideas. A program's elements can both be used and can explain. The parts which explain, if not necessary to the idea of the program, are copyrightable. Thus, the arrangement and design of the status screen are copyrightable. Therefore, Softklone was enjoined from infringing Digital Communications' copyright in their Crosstalk program

Plains Cotton Coop. Ass'n v. Goodpasture Computer Serv., 807 F.2d 1256 (5th Cir. 1987)

Plains Cotton developed a mainframe cotton market program, called Telcot. Former Plains Cotton programmers, developed a PC version of the program for Goodpasture, called GEMS. Court declined to follow Whelan because since cotton market factors (such as standardized information) may have decided the sequence and organization of the software, making them unprotectable. Since Plains Cotton did not prove irreparable harm and substantial likelihood of success, its motion for preliminary injunction was denied.

Frybarger v. Int'l Business Mach. Corp., 812 F.2d 525 (9th Cir. 1987)

Frybarger claimed infringement of predictable elements in his Apple II "Tricky Trapper" computer video game by IBM in its licensed "Mouser" video game. When similar features in a video game are as a practical matter indispensable, or at least standard, in the treatment of a given idea, they are treated like ideas and are therefore not protected by copyright. The similar features between the two games were all standard expressions of a given idea and thus protected only against virtual identical copying. Indispensable expression is given such thin protection because it is so close to the nonprotectable idea itself that the expression provides nothing new to the idea. Summary judgement entered for IBM.

Pearl Sys., Inc. v. Competition Electronics Inc., 8 U.S.P.Q.2d 1520 (S.D. Fla. 1988)

Competition Electronics created the Pro Timer III program, which used by competitive pistol shooters as a shot timer. Pearl Systems, created a competing program, called the PST-10 Shot Timer. Copyright protection of a computer program is not limited to the source code and object code, but also protects the separate subroutines in the program. The two primary subroutines in each device were found to be substantially similar, therefore, injunctive relief was awarded to Competition Electronics.

Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204 (9th Cir. 1988)

Data East distributes a video game called Karate Champ. Epyx distributes a video game entitled World Karate Championship. Data East sued Epyx for copyright infringement and the district awarded it injunctive relief. On appeal, the court held that the number of combatants, the stances used, the use of a referee and the manner of scoring were all inherent to the sport of karate. As such, these portions of the two games are unprotectable ideas for which only identical copying is prohibited. Since the similarities between the games consisted of unprotectable ideas, the lower court's judgment against Epyx was reversed.

Manufacturers Technologies, Inc. v. Cams, Inc., 706 F. Supp. 984 (D. Conn 1989)

Cost-estimation software developer brought copyright infringement action against former sales reps. The district court held Costimator screen displays were copyrightable expressions. Copyright registration of computer program causes the program itself to be registered and the screen display or user interface to be registered (to the extent such displays or interface have copyrightable expression). [36 Pat. Trademark & Copyright J. (BNA) 155 (1988)]. Sequencing and flow of screen displays constituted copyrightable expression. Screen display formatting style did not constitute copyrightable expression since formatting was limited to a very narrow range of possibilities. Issue arises from the fact that two different computer programs, whose source codes were created independently of one another, can produce computer screen displays which are very similar, if not totally alike.

NEC Corp. v. Intel Corp., 10 U.S.P.Q.2d (BNA) 1177 (N.D. Cal. 1989)

NEC sought to have Intel's copyrights on its 8086 and 8088 microcodes invalidated and Intel filed a counterclaim for copyright infringement. The issue of a limited number of ways to express an idea is relevant to infringement, but not to the origination of copyright. NEC's microcodes found not to infringe Intel's copyright because NEC's microcodes were not substantially similar to Intel's. Some of the very small subroutines were similar, but this was because their underlying ideas were straightforward and capable of only a limited range of expression. Intel's microcodes were proper subject matter for copyright, but NEC did not infringe such rights because its microcodes were not substantially similar.

Ashton-Tate Corp. v. Ross, 12 U.S.P.Q.2d (BNA) 1734 (D.N. Ca. 1989), aff'g 916 F.2d 516 (1990)

Ashton-Tate's spreadsheet program, Full Impact, incorporated user commands which Ross wrote down on paper. The court held that this document was only a list of labels for user commands and since many of the labels are common commands already used in other software programs, there is nothing innovative or novel about the labels or the order in which they are listed. Therefore, the list is only an idea that is not protected by copyright. Summary judgment for Ashton-Tate was granted.

S.O.S. Inc. v. Payday, Inc., 12 U.S.P.Q.2d (BNA) 1241 (9th Cir. 1989)

S.O.S. licensed a copy of its Brown Tank accounting program to Payday for its use. When S.O.S. refused to give Payday a copy of the software so that Payday could modify it, two former employees that were acting as independent consultants, copied the S.O.S. software and loaded it on Payday's system. Payday's summary judgment was denied because Payday's use of the software by copying and modifying it, exceeded its license.

Healthcare Affiliated Serv., Inc. v. Lippany, 701 F.Supp. 1142 (W.D. Pa. 1988)

Healthcare maintained computer programs for hospital productivity and cost management. After 15 years of employment by Healthcare, Lippany started his own competing business venture. Injunctive relief granted for Healthcare not because Healthcare established likelihood of success in showing infringement of Whelan's structure, sequence, and organization elements, but because Healthcare showed Lippany had developed the software by misappropriated trade secrets. Healthcare would have needed to present evidence as to the structure, sequence, or organizations of the programs' modules or subroutines.

Johnson Controls, Inc. v. Phoenix Control Sys., 886 F.2d 1173 (9th Cir. 1989)

Johnson sued Phoenix for infringing Johnson's copyright in a wastewater treatment control program, the JC-5000S. Former Johnson employees formed Phoenix. Computer programs have several components, including: source code, object code, structure, sequence, organization, user interface, function/purpose. Whether one of these components of a computer program is predictable depends on whether it is an expression of an idea, or just the idea itself. The nonliteral components of computer software are protected by copyright as long as they comprise expression rather than ideas. Because Johnson showed sufficient evidence that Phoenix's computer program was substantially similar to its own, Johnson's request for preliminary injunction was granted.

Integral Sys., Inc. v. PeopleSoft, No. C-90-2598-DLJ, 1991 U.S. Dist. LEXIS 20878 (N.D. Cal. July 19, 1991)

Both companies create human resource management systems software. Integral claimed that Peoplesoft's program was either an unauthorized copy of or a derivative work based on Integral's copyrighted software. Integral did not claim infringement of source code, object code, or user-interface. Instead, Integral claimed infringement of the program design. The court stated that it is impossible for viable commercial systems to be completely dissimilar. "Where an expression is, as a practical matter, indispensable, or at least standard, in the treatment of a given idea, the expression is protected only against verbatim, or virtually identical copying." (quoting Johnson Controls)

Integral's motion for a preliminary injunction was denied.

Consul Tec Inc. v. Interface Sys., Inc., 22 U.S.P.Q.2d 1538 (E.D. Mich. 1991)

Counter-defendant Consul Tec's 3780Fast computer program found by court to infringe Interface System's 3780Plus program. No copyright protection in the idea of the program -- to enable two computers to communicate with one another and to permit the user to transmit information from one computer to another computer. Interface System's copyright protects all original aspects of the program above this underlying idea, including its command line syntax and status message codes. Consul's claim of copying the commands out of "commercial necessity" were not justified. Consul's program was designed to recognize 3780Plus commands and, from the user's perspective, behave in the same manner. This "translation" does not prevent a finding of substantial similarity. Because Counsel's 3780Fast program is really a copied 3780Plus clone, injunctive relief granted to Interface System.

Engineering Dynamics v. Structural Software, Inc., 21 U.S.P.Q.2d 1524 (E.D. La. 1991)

Engineering Dynamics ("EDI") maintains a structural analysis computer system called SACS. Structural Software markets a competing system, called StruCAD. EDI claims that Structural Software infringed its copyright in user interface of the SACS system. This user interface is primarily a set of input and output reports. Both programs provide basically the same standardized information to the user. The law of the present circuit provides that a user interface, in the form of input and output reports, is not copyrightable. Hence, Structural Software was not guilty of copyright infringement with respect to the computer programs.

Autoskill Inc. v. Ness, 24 U.S.P.Q.2d 1107 (1992)

Autoskill produces computer software for reading testing and training. Autoskill claimed that the NESSI program copied substantially from the Autoskill program with respect to sequence, structure, organization, and total concept and feel. Court rejected the Whelan test since several ideas can exist in a computer program and used the abstraction approach. Components of the program are placed on a continuum from the most general to the most specific. Next, a line is drawn separating ideas from expression. Afterwards, the ideas which have merged with expression and the scenes a faire elements are withdrawn from protection. Autoskill's motion for preliminary injunction was granted because it was held that the NESS program was likely substantially similar to the Autoskill program.

Computer Assoc. v. Altai Inc., 982 F.2d 693 (2nd Cir. 1992)

Computer Associates ("CA") sued Altai for copyright infringement of CA's ADAPTER program by Altai's OSCAR program. These programs were operating system compatibility components used by each companies job scheduling systems. A former CA employee went to work for Altai and was the developer of OSCAR. About 30% of OSCAR was taken from ADAPTER. Once Altai learned of this misappropriation, the stolen code was purged and a team of programmers rewrote the offending portions of OSCAR.

The court introduced the Abstraction-Filtration-Comparison test. First, break down the copyrighted program into structural parts. Then, filter out the public domain, incorporated ideas, and expression necessarily to those ideas from all the parts. Finally, compare the kernels of creative expression with the possibly infringing work to see if the protectable elements are substantially similar. The court held that nonliteral elements of the rewritten OSCAR program were not substantially similar to copyrighted ADAPTER program.

Brooktree Crop. v. Advanced Micro Devices, Inc., 977 F.2d 1555 (Fed. Cir. 1992)

Brooktree, a manufacturer of semiconductor chips, sued competitor AMD for mask work infringement. Under Semiconductor Chip Protection Act (17 U.S.C. ßß 901-914), copying a chip for reverse engineering reasons is not an infringement of the mask work as long as the end product itself is original. AMD found to have infringed Brooktree's mask works, in violation of the Chip Act.

Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)

Accolade reversed engineered Sega's video game computer software in order to obtain information for making Accolade's programs compatible with Sega's video game system. The court found Accolade's copying to be a fair use, holding that where disassembly (reverse engineering) is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.

Kepner-Tregoe Inc. v. Leadership Software Inc., 12 F.3d 527 (5th Cir. 1994)

Kepner-Tregoe ("KT") sued Leadership for copyright infringement, stating that Leadership's "Managing Participation in Organization" computer program infringed KT's copyrighted management training materials. KT had been granted an exclusive license to the materials by the two authors, one of whom owned 50% interest in Leadership Software. The licensed materials consist of 8 questions and 5 processes in paragraph form. The computer program used the same 8 questions and 5 processes and added 4 more questions. Although Leadership argued that the questions and processes are unprotectable ideas, the court held that the paragraphs could have been rewritten without such similarity to the licensed materials. Leadership later tried to revise the paragraphs, but these changes were not sufficient enough and thus the revised computer program infringes KT's rights as well.

KT was granted injunctive relief as to the infringing computer program and modified computer program.

Apple Computer, Inc. v. Microsoft Corp., No. 93-16883 (9th Cir. Sept. 19, 1994)

Apple sued Microsoft for infringement of its graphical user interface (GUI). Apple registered GUIs as audiovisual works. The court determined which elements had been licensed to Microsoft from Apple, and which of the remaining elements contained protectable expression. Court found the similarities between the works to only exist in unprotectable or licensed elements. Therefore, instead of testing for substantially similarity, the court tested for virtual identity.

Bateman v. Mnemonics, Inc., 37 U.S.P.Q.2d 1225 (11th Cir. 1995)

Bateman sued Mnemonics, alleging copyright infringement of Bateman's single board computer operating system (SBCOS) software program used in automated parking systems. Mnemonics admits it copied portions of the code and so the issue is whether the resulting work by Mnemonics is legally actionable because there is substantial similarity between it and Bateman's work. Instructing the jury to apply the Altai abstraction-filtration-comparison test and in doing so filter out only the nonliteral similarities between the two computer programs was found by the appeals court to be improper. Court held that literal similarities must also be considered (either during the filtration step or during a separate step altogether) so that issues of merger, compatibility requirement, or scenes a faire can be addressed by the jury as well. With respect to copying dictated by compatibility requirements, the appeals court held that external considerations such as compatibility may negate a finding of infringement.

Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995), aff'd per curiam U.S., No. 94-2003 (Jan. 16, 1996)

Lotus, developer of the Lotus 1-2-3 computer spreadsheet program, brought a copyright infringement action against, Borland, the developer of the competing Quatro Pro spreadsheet program. The court held that although copyright can exist in software, the Lotus 1-2-3 menu command hierarchy (469 commands such as commands "Copy", "Print" and "Quit" arranged into over 50 menus and sub-menus) was not protected by copyright law because the menu command hierarchy was a "method of operation". Systems, methods of operation, and processes are not copyrightable under section 102(b) of the Copyright Act. The menu command hierarchy provides the means by which users control and operate the program. Users may also use these commands to write macros to be executed by the spreadsheet program. This case goes against the Tenth Circuit's Autoskill decision.