Re: Double Creation

From: Bruce Hayden <bhayden[_at_]copatlaw.com>
Date: Fri, 25 Jul 1997 02:52:58 -0700

Harold Federow <hfederow[_at_]u.washington.edu> wrote:
>
> On Wed, 23 Jul 1997, Carlos de Miguel <ectil06[_at_]sis.ucm.es> wrote:
> >
> > Do you think that it is possible, that two different people, create
> > independently the same computer program? Given that both creations
> > may vary accidentally in any concrete development or ornament, but
> > remaining substantially the same?

There are really three reasons why two programs may be the same. One is that one party copied for another. This often constitutes copyright infringement. Secondly, the simularities can be caused by external reasons. These simularities are usually acceptable, and shouldn't be counted when comparing works for infringement (see discussion below for A/F/C analysis). Finally, the simularities can be purely coincidential. However, the more complex the program, the more implausible this becomes. Indeed, showing enough simularities of protectable expression is often sufficient to overcome any such defense (and with good reason).

> If you are talking about scientific calculation programs, then there
> is considerable chance that the code itself is virtually identical,
> since there are only so many ways to do various calculations, although
> various aspects, such as input and output might be somewhat different.

At a theoretical level this is why the abstraction/filtration/comparison analysis as required by a number of the circuits in determining software copyright infringement makes so much sense. If the simularities can be attributable to external concerns, such as here there being only a very limited number of ways to do verious things, and when there are standard ways of doing things, these things get filtered out before any comparison is made for protectable expression. This is of course because these things are not really part of that protectable expression.

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The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1997 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain.

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Bruce E. Hayden                      bhayden[_at_]acm.org               
Austin, Texas                        bhayden[_at_]copatlaw.com

Received on Fri Jul 25 1997 - 12:31:03 GMT