An alleged infringer may choose to argue initially that the program at issue was not copyrightable. According to the Fifth Circuit, “for a work to qualify for copyright protection, it must be original…and originality, as the term is used in copyright, requires both ‘independent creation’ and ‘a modicum of creativity’.” It is settled that “the literal elements of computer programs, i.e., their source and object codes, are the subject of copyright protection.” If the work has been copied from the public domain, it cannot be copyrighted. A defendant may be able to contend that the software at issue is merely a compilation of pre-existing protocols. Such a compilation is copyrightable under 17 U.S.C. § 101. In Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), the Supreme Court indicated that “notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in an author’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement.” Feist at 349.
Subsequent cases have interpreted Feist to mean that compilation copyright protection is very limited and usually requires substantial verbatim copying. See e.g., Key Publications v. Chinatown Today, 945 F.2d 509, 514 (2d Cir.1991). In addition, some programming choices are either too trivial to support a finding of originality or are so constrained by practical reality as to lack originality. See Ross, Brovins & Oehmke, P.C. v. Lexis Nexis Group, 463 F.3d 479, 485 (6th cir. 2006). To the extent the defendant is able to demonstrate that the software program was a compilation of non-original elements, the court may conclude that the copyright was invalid, particularly if the court concludes that the amount of original contribution to the program was de minimis. Lexmark, 387 F.3d at 540. See Sega Enterprises, Ltd. v. Accolade, Inc., 977 F2d 1510, 1524 n.7 (8th Cir. 1992) (noting that 20-byte code is of de minimis length and therefore likely a “word” or “short phrase” that is not protected by copyright law).
About the author
Julie Machal-Fulks:
As a partner at Scott & Scott, LLP, Julie Machal-Fulks leads a team of attorneys in representing and defending clients in legal matters relating to information technology. Her practice focuses on complex litigation ranging from privacy and network security, data breach notification and crisis management, intellectual property disputes, service provider negligence claims, and content-based injuries such as copyright and trademark infringement in software, the Internet, and all forms of tangible media.
Get in touch: jfulks@scottandscottllp.com | 800.596.6176