Bob Zeidman, Zeidman Consultng, Legaltech News
In order to bring copyright litigation, a work must be
registered with the U.S. Copyright Office. For most written works, like novels,
authors can simply obtain the version of the novel that is on file with the
U.S. Copyright Office and compare it to the allegedly infringing copy to
determine what they have in common. These common sections may constitute
copyright infringement if they are not covered by fair use.
With software, this
simple process doesn't work. Software code contains both trade secrets in the
functionality and copyrightable expression in the way it is written.
Registering the software to protect the expression would expose the
functionality and destroy all trade secrets that must, by definition, be kept
secret.
The U.S. Copyright
Office has a solution to this problem that is unique, and unusual. When a
program contains trade secret or other confidential material, the copy filed
with the copyright office may consist of the first 10 and last 10 pages of the
source code; or the first 25 and last 25 pages of object code with a 10-page
consecutive segment of source code from any part of the program; or the first
25 and last 25 pages of source code with the portions containing trade secrets
or confidential material blocked out.
What is particularly
strange about this accommodation, though, is that the purpose of copyright law
is to give protection to authors to encourage them to release their works so
that the ideas expressed within can be disseminated, understood, and improved
upon. With software, you can submit 50 pages of almost entirely redacted code
(i.e., nearly blank pages) and still register the copyright.
There is, however, a
downside. In order to litigate against an infringer, the copyright must be
registered with the copyright office. It can be registered any time before the
litigation is filed, and I've seen copyrights registered minutes before.
Therefore, to perform a
forensic analysis of software in a copyright infringement case, these steps
should be performed:
First, the allegedly
infringed code should be compared against the code on file with the copyright
office. The un-redacted code on file should exactly match code in the program
code that was registered. In that case, the expert can confirm "to the best
of his or her ability" that the code that the plaintiff claims was
registered is the code that was actually registered. The less code that was
submitted to the copyright office, the less confident the expert can be, which
leaves the defendant with an argument that the appropriate code was never
registered and thus ineligible for a lawsuit.
Even worse though is if
the plaintiff cannot produce the exact version of the code that was registered.
In that case, this first comparison may show that the code produced by the
plaintiff is definitely different from that registered with the copyright
office, leaving serous doubt as to whether the allegedly infringed code is
covered by the registration.
The next step is to
compare all of the code from the registered program with all of the code from
the allegedly infringed program. Remember, while the code submitted to the
copyright office is only a fraction of the entire program, it is the entire
program code that is considered to be registered. This comparison must show that
there are not substantial differences, so that the allegedly infringed code is
covered by the registration. What is meant by "substantially the
same" is open to interpretation. Spelling corrections and changes to lines
here and there throughout the program are generally not considered substantial.
Adding a new routine would be considered substantial, and the new routine would
not be covered by the previous registration.
The third step is to
compare the allegedly infringed code to the allegedly infringing code to find
similarities. Any "substantial" correlations that cannot be explained
by reasons other than copying are indications of copyright infringement. The
six reasons for correlation include common author, common algorithms, commonly
used identifier names, third-party code, automatically generated code, and
copying. The meaning of "substantial" in this context is open to
interpretation but is definitely not related to percentages of matching lines.
A small percentage of copied code can be very useful or creative and thus be
considered substantial for showing infringement.
Only if these steps are
performed can an accurate and correct conclusion be drawn in a copyright
litigation.
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