Gabriel Wachob <gwachob[_at_]aimnet.com> wrote:
>
> OK. I have a real-world question for cni-copyright that at first seems
> really simple, but upon further reflection troubles me.
>
[snip]
That problem is not really simple at all. It is a classic "look and
feel" non-literal copying question.
The answer is clear as mud, IMHO. Depends what federal circuit you are
in. In my circuit (10) and the Second Circuit, the three part Altai
test may be useful (Computer Associates International, Inc. v. Altai,
982 F2d 693 (2d Cir. 1992), which you probably know is
- Abstraction: "[I]n a manner that resembles reverse engineering on a
theoretical plane, a court should dissect the alleged copied program's
structure and isolate each level of abstraction contained within it.
This process begins with the code and ends with the articulation of the
program's ultimate function. Along the way, it is necessary essentially
to retrace and map each of the designer's steps - in the opposite order
in which they were taken during the program's creation."
- Filtration "[E]xamining the structural components at each level of
abstraction to determine whether their particular inclusion at that
level was 'idea' or was dictated by considerations of efficiency, so as
to be merely incidental to that idea; required by factors external to
the program itself; or taken from the public domain and hence is
non-protectable expression."
- Comparison: "Once a court has sifted out all the elements of the
allegedly infringed program which are 'idea' or are dictated by
efficiency or external factors, or taken from the public domain, there
may remain a core of protectable expression.... At this point, the
court's substantial similarity inquiry focuses on whether the defendant
copied any aspect of this protected expressioni, as well as an
assessment of the copied portion's relative importance with respect to
the plaintiff's overall program."
Anyway, your use of idea/expression dichotomy is part of the filtration
step in this three part analysis. As a rule, the 1st, 2nd, 9th and 10th
circuits are adopting pretty tough filtration (even when they don't use
the three part test) so little of the allegedly infringed program
remains that is protectable when it comes down to comparison with the
allegedly infringing work.
Does that help?
Anthony Claiborne
<abc[_at_]ares.csd.net>
Received on Wed May 28 1997 - 17:25:01 GMT