Structure, sequence and organization
Sequence, structure and organization (SSO) is a term used in the United States to define a way in which one software work may be compared to another software work in order to determine if copying has occurred that infringes on copyright, even when the two are not exact copies. The term was introduced in the case of Whelan v. Jaslow in 1986.[1] The method of comparing the SSO of two software products has since evolved in attempts to avoid the extremes of over-protection and under-protection, both of which discourage innovation.[2] More recently, the concept has been used in a major case brought against Google by Oracle.[3]
Whelan v. Jaslow
Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc. was a landmark case in defining principles that applied to copyright of computer software. Whelan had developed software for Jaslow to manage the operations of a dental laboratory, and later took it to market under the trade name Dentalab. Jaslow was engaged in selling the Dentalab software. He wrote a program in a different computer language but with similar functionality that he called Dentcom, and marketed it as a Dentalab successor. Whelan sued Jaslow for copyright infringement.[4]
The court ruling in the Whelan case drew on the established doctrine that even when the component parts of a work cannot be copyrightable, the structure and organization of a work may be.[5] In this case Sequence, structure and organization (SSO) was defined as "the manner in which the program operates, controls and regulates the computer in receiving, assembling, calculating, retaining, correlating, and producing useful information."[1] The district court ruled that Dentcom was substantially similar to Dentalab because its structure and overall organization were substantially similar.[6]
The Court of Appeals for the Third Circuit reasoned that with literary works a non-literal element such as the plot of a novel is protected to the extent that it is an expression of an idea rather than the idea itself. By analogy, the purpose or function of a software work would be the work's "idea", while everything not necessary to that purpose or function would be part of the expression of the idea. The expression would be protected, but the basic purpose or function would not.[4] The only exception was where the functionality could only be achieved in a very small number of ways. In this case there could be no protection due to the merger doctrine, which applies when the expression and the idea are inextricably merged. The Whelan decision initiated a period of excessively tight protection, suppressing innovation.[2]
Early adoption and criticism
Most courts came to adopt the SSO concept in one form or another, but not all.[7] Some considered that the concept covered data structures and interfaces in addition to program logic. In one case a court found that a defendant had infringed the right to prepare a derivative work when they copied the sequence, structure, and organization of the plaintiff's file formats, screen, reports, and transaction codes, even though different data fields were present.[8] In 1987 the ruling in Broderbund Software, Inc v. Unison World, Inc appeared to prevent software developers from marketing products with the same or similar user interfaces, regardless of whether there were anything in common in the underlying code.[7] In the 1990 case of Lotus v. Paperback the U.S. District Court for Massachusetts decided that Paperback's VP-Planner software violated the copyright of Lotus's 1-2-3 spreadsheet program since it had the same user interface, even though the underlying code was completely different.[9]
The Whelan ruling has been criticized as being "dangerously broad". By saying that the purpose of the program was to assist a Dental lab operation, and that anything not essential to that purpose was an expression, it left open a wide range of functions that could be deemed "not essential" and therefore subject to protection.[10] In 1987 the Court of Appeals for the Fifth Circuit rejected the extension of copyright protection to the non-literal elements of computer programs in the case of Plains Cotton Cooperative Ass'n v. Goodpasture Computer Serv. The court held that input formats were idea rather than expression and refused to extend protection to these formats. The court said: "We decline to embrace Whelan."[7]
An analogy may be found with a concept defined by Judge Learned Hand who noted, talking about a play, that the exact wording was certainly protected, and then there were a series of layers of increasing abstraction before the high-level plot outline is reached, which is not protected. An ad hoc judgement based on careful comparison of the works would be needed to determine where in this spectrum any alleged copying lay, and to decide whether it was at a sufficiently specific level to be a violation rather than a different expression of the same idea. But "careful comparison" in the case of software works might involve checking millions of lines of code.[11]
Computer Associates v. Altai
In Computer Associates International, Inc. v. Altai, Inc. in 1992 the Second Circuit found that program structure was worthy of protection, but went on to say:[6]
As we have already noted, a computer program's ultimate function or purpose is the composite result of interacting subroutines. Since each Subroutine is itself a program, and thus, may be said to have its own "idea," Whelan's general formulation that a program's overall Purpose equates with the program's idea is descriptively inadequate.
The Second Circuit introduced the three-step Abstraction-Filtration-Comparison test, and several other circuits later adopted this test. In the abstraction step the court identifies all similarites. In the filtration step any legitimate similarities are discarded.[12] Elements removed in this step include obvious expressive interpretations of broad ideas, elements dictated by efficiency or external considerations, elements in the public domain and industry standards.[13] In the comparison step the court decides whether there is enough similarity between the remaining elements to constitute infringement, and if so the severity of the infringement.[12]
The Altai case may have gone too far, in effect removing protection from all but the literal elements of a program and thus leading to underprotection. Aware of this risk, many courts that followed the Altai ruling seem to have in practice performed less filtration than was required by the test.[2]
References
- Citations
- ^ a b Kappel 1991, p. 699.
- ^ a b c Abramson 2001, p. 57.
- ^ Lee 2012.
- ^ a b Kappel 1991, p. 704.
- ^ Hamilton & Sabety 1997, p. 241.
- ^ a b Hamilton & Sabety 1997, p. 250.
- ^ a b c Kappel 1991, p. 705.
- ^ Stapleton 2002, p. 9.6.
- ^ Davidson 1997, p. 115.
- ^ Kappel 1991, p. 708.
- ^ Mnookin 2010, p. 158.
- ^ a b Abramson 2001, pp. 49–50.
- ^ Davidson 1997, p. 116.
- Sources
- Abramson, Bruce (2001). "Promoting Innovation in the Software Industry: A First Principles Approach to Intellectual Property Reform" (PDF). Boston University. Retrieved 2012-05-31.
{{cite web}}: Cite has empty unknown parameter:|1=(help); Invalid|ref=harv(help) - Davidson, J. Scott (1997). Intellectual Property for the Internet. Aspen Publishers Online. ISBN 0471167037.
{{cite book}}: Invalid|ref=harv(help) - Hamilton, Marci A.; Sabety, Ted (Winter 1997). "COMPUTER SCIENCE CONCEPTS IN COPYRIGHT CASES: THE PATH TO A COHERENT LAW" (PDF). Harvard Journal of Law & Technology. 10 (2). Retrieved 2012-05-30.
{{cite journal}}: Invalid|ref=harv(help)CS1 maint: date and year (link) - Kappel, Cary S. (1-1-1991). "Copyright Protection of SSO: Replete with Internal Deficiencies and Practical Dangers". Fordham Law Review. 59 (4). Retrieved 2012-05-30.
{{cite journal}}: Check date values in:|date=(help); Invalid|ref=harv(help)CS1 maint: date and year (link) - Lee, Timothy B. (May 3 2012). "Oracle v. Google judge asks for comment on EU court ruling". Ars Technica. Retrieved 2012-05-30.
{{cite web}}: Check date values in:|date=(help); Invalid|ref=harv(help)CS1 maint: date and year (link) - Mnookin, Robert (2010). Bargaining with the Devil: When to Negotiate, When to Fight. Simon and Schuster. ISBN 1416583327.
{{cite book}}: Invalid|ref=harv(help) - Stapleton, Laura Lee (2002). E-Copyright Law Handbook. Aspen Publishers Online. ISBN 0735529442.
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