Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement

65 Pages Posted: 3 Feb 2017

See all articles by Pamela Samuelson

Pamela Samuelson

University of California, Berkeley - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: January 31, 2017

Abstract

Courts have struggled for decades to develop a test for judging infringement claims in software copyright cases that distinguishes between program expression that copyright law protects and program functionality for which copyright protection is unavailable. The case law thus far has adopted four main approaches to judging copyright infringement claims in software cases. One, now mostly discredited, test would treat all structure, sequence, and organization (SSO) of programs as protectable expression unless there is only one way to perform a program function. A second, now widely applied, three-step test calls for creation of a hierarchy of abstractions for an allegedly infringed program, filtration of unprotectable elements, and comparison of the protectable expression of the allegedly infringed program with the expression in the second program that is the basis of the infringement claim. A third approach has focused on whether the allegedly infringing elements are program processes or methods of operation that lie outside the scope of protection available from copyright law. A fourth approach has concentrated on whether the allegedly infringing elements of a program are instances in which ideas or functions have merged with program expression. This Article offers both praise and criticism of the approaches taken thus far to judging software copyright infringement, and it proposes an alternative unified test for infringement that is consistent with traditional principles of copyright law and that will promote healthy competition and ongoing innovation in the software industry.

Keywords: Copyright Infringement, Infringement, IP, Software Copyright

Suggested Citation

Samuelson, Pamela, Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement (January 31, 2017). Berkeley Technology Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2909152

Pamela Samuelson (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
341 North Addition
Berkeley, CA 94720-7200
United States
(510) 642-6775 (Phone)
(510) 643-2673 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
316
rank
38,077
Abstract Views
1,606
PlumX Metrics