Re: Copyright? extracting the public domain parts?

>Bruce Hayden writes:
>
>Of course I would ask these days whether we should be applying at
>least the Filtration/Comparison portion of the A/F/C software test
>to essentially everything, and filtering out anything not in the
>public domain, etc. before making the substantial similarity test.
>
>The reason of course that this could be important here is that
>in the proposed scenerio there would indeed be substantial similarity
>between the original and derived works - but the similarity would
>presumably result from the copying of public domain material. Thus,
>I would argue that it would not be a derivative work, since it should
>be necessary to filter the public domain material first.
>

We *already* apply some form of the AFC test to all copyright cases, though we don't call it that. For example, read Feist. There was unquestionably similarity between the original and accused works, but there was no infringement because the original work did not qualify for copyright protection. In that case, the whole work was "filtered out" of the analysis. But we also engage in partial filtration all the time, when considering copyrights for stock quotes, sports cards, auto price books, etc.

The only gloss AFC puts on the prior law has to do with the idea of "abstraction" and how you break down a computer program to look at it.

Mark Lemley
Assistant Professor
University of Texas School of Law
mlemley[_at_]mail.law.utexas.edu Received on Mon Mar 27 1995 - 20:22:30 GMT