Case ClIPs

With the increase in patentable subject matter rejections, particularly in the business-method and e-commerce art units, copyright deserves renewed attention as a means of protecting software and websites.  While copyright generally protects only the expression of the software and websites, e.g., the code itself, such protection can arise automatically and copyrights can also be inexpensive to register.

With respect to software, the literal elements of a program, e.g., its source and object code, are found to be protectable. In Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983), the court here held that a computer program, whether in object code or source code, is a literary work protected from unauthorized copying in either form. Non-literal elements can be protectable as well, subject to limits. In Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3d Cir. 1986), the court here held that copyright extends to a program’s structure, sequence, and organization, treating the program’s purpose or function as the unprotectable idea and everything not necessary to that purpose as protectable expression. However, another court found that approach too reliant on metaphysical distinctions. In Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), the court used an abstraction-filtration-comparison test: break the program into its levels of abstraction, filter out basic ideas, public-domain material, and elements dictated by efficiency or by external factors such as hardware standards or compatibility requirements, and compare what remains for substantial similarity. Applying that test, the court found no infringement where the accused program shared only elements that were in the public domain or dictated by functional demands. Abstraction-filtration-comparison is now the predominant test for non-literal infringement.

Litigation over Java API illustrates both the reach and the limits of copyright in code. In Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021), the Supreme Court held Google’s use of some of Oracle’s Java API code to be fair use. In determining the use to be fair use, the Supreme Court found that Google used a small fraction (0.4%) of the Java API code to create a transformative platform for smartphones, allowing programmers to use skills they already had without harming Oracle’s core market.

With respect to websites, while a “website” is not itself a recognized category of copyrightable subject matter, a website may still be registered as a compilation or collective of individual content where there is sufficient creativity in the selection, organization, and arrangement of such content. While human-written HTML may be registered, doing so does not protect the formatting or layout that the code produces. Instead, website content is registered in the form in which it is visible to users.

The Digital Millennium Copyright Act (DMCA) supplies two practical tools for websites and content hosted on websites. For website and app operators that allow users to post or store content, the Act includes a safe harbor provision, barring monetary liability and restricting injunctive relief for user-stored infringing content when certain conditions are met. These conditions include registering as a designated agent with the Copyright Office, expeditiously removing or blocking access to alleged infringing material upon receiving notice, and implementing a repeat-infringer policy. Courts have treated takedowns completed within periods ranging from 24 hours to 22 days as expeditious while finding fifteen days too long in at least one case, so 24 to 72 hours is a typical safe margin. Further, the repeat-infringer policy must actually be enforced, as simply having a policy is not enough. Implementing the policy generally should include terminating accounts that are repeatedly reported for infringement.

For copyright holders, the DMCA provides what is required for a compliant takedown notice. Such a notice includes identifying the infringed work and the infringing material and stating a good-faith belief that the use is unauthorized. Notices are typically directed to the site owner, its hosting provider, and search engines that index the material, with contact information available from the site itself or the Copyright Office’s online agent directory. Takedowns carry obligations of their own, however. Anyone who knowingly and materially misrepresents that content is infringing may be liable for damages and attorney’s fees. Automated monitoring systems that flag matching content and fire off notices without human review are a particular source of exposure.

Author: Matthew Shatynski

Edited by Natalie Richer and Craig Drachtman

For more articles like this, click the link below:

https://www.lernerdavid.com/news-successes/case-clips