Re: Consideration in a Shrinkwrap Contract

>>> Eric Eldred <eldred[_at_]eldritchpress.org> 10/05 6:53 PM >>>
Let's say Motus Software creates a successful spreadsheet program. Let's say Papersmith Software later independently creates another spreadsheet program. I say independently, because the PS programmers could never have seen MS source code, only how the program worked--and the PS program is written in Forth, entirely different from the MS binary code. <<<<<

Sorry, Eric, that is NOT independent creation. A computer program has many copyrightable elements, including the source code, the object code, AND the screen displays it generates. Anyone who saw and copied the screen displays could be liable for infringement, if they copied original expression.

A true "clean room" defense would require testimony that the Papersmith programmers had never seen Motus program at all, even in operation; and were provided only with functional specifications that were not themselves infringing. [This is where the clean room defense sometimes runs into problems.] If you can make the showing that the second author had no "access" to the original work, then you are not infringing as a matter of law.

The only problem with this theory is that if the works are nearly identical, a court will infer that "access" existed from the "striking similarity" of the two works. So, even though in theory independent creation is a complete defense, it may not always work as a practical matter.

Tyler T. Ochoa
Associate Professor
Whittier Law School Received on Wed Oct 11 2000 - 18:42:38 GMT