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Mark Grossman

Software and Intellectual Property

11 May 2000

The hottest commodity in Internet commerce today seems to be talented computer programmers. The Internet frenzy and dreams of striking it rich with stock options have made the talented ones switch jobs three and four times in less than a year.

Before you put your newest hot shot programmer to work, you need to make sure that she takes certain steps to avoid violating copyright law. Failure to take these steps may result in liability for your company for copyright infringement of her former employer's computer programs.

Your New Software Programmer

Software programmers have really struck oil. Companies just like yours are recruiting them for big bucks and serious stock options. Good programmers receive calls seemingly almost everyday from recruiters. Just as soon as a programmer finishes (or heck, just as soon as she starts) writing a program for your company, she's out the door writing code for your competitor. (The enforceability of computer programmer non-compete contracts is for another column.)

To what extent does the new code that she wrote for you look like the code she wrote for her former employer? To what extent do the two programs have the same “look and feel” or contain the same routines? (A routine is like a paragraph in a book-it's a group of instructions contained within a program.)

If you answered the above questions with something like, “Hey, the two codes are kind of similar,” you better keep reading. Computer programs can be copyrighted and you don't want to have to defend a copyright infringement claim against a behemoth like Microsoft.

Copyrighting a Computer Program

Copyright law defines a “computer program” as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

Just like a book, a magazine, a tape, or a card, you can register a computer program (in copyright jargon, it's known as an “original work fixed in a tangible medium”) for copyright protection. Along with the computer program, you can also register accompanying instruction manuals, texts, and similar materials that are your original work. Registering a computer program protects not only the program, but also the screen displays produced by the computer program.

The more inventive and original your computer program, the greater likelihood that it will be able to enjoy strong copyright protection. If you write a program from scratch that totally revolutionizes the search engine industry, you should copyright that program. As an aside, you also better find your way to an excellent patent attorney. On the other hand, if your program is merely the translation of a set of someone else's instructions into computer language, your program may not enjoy the benefits of a copyright registration.

When a computer program also includes an automated database, you can sometimes even copyright the database too. For example, let's say that you own a professional term paper company. Students find your website at They can search your library of papers by subject (Arthurian Literature), author (Shakespearean Literature 301), title (A Freudian Analysis of The Road Less Traveled), etc.

You could probably copyright the database as a compilation. This means that your database is a copyrightable work formed by the collection and assembling of term papers that users select in such a way that the resulting work as a whole constitutes an original work of authorship. Basically, when a student types in “roman architecture” the bibliography of 30 term papers that your program pumps out could be copyrighted.

The contents of the database could also be copyrightable if they are original works. In other words, if you actually took the time to write each of the term papers, you'd probably want to copyright each paper too.

How to Tell if your Former Employee Took your Code with Her

We all know that it's tough to keep a programmer happy these days. And we all know that occasionally, no matter what perks you offer her, your competitor's perks are just a bit better. So, you get your hands on the latest program of your competitor which, of course, is selling off the shelves faster than you can say “shrinkwrap.” And what do you find? That program is looking a heck of a lot like yours.

Since it will be almost impossible to prove that your programmer left with the code, you can examine certain factors to determine if the two works are similar enough to prove copyright infringement.

The traditional approach would require you to simply compare the two programs to determine if they are substantially similar. So can you just set the two source codes side by side and see what you find? Nope. You'll be foiled by even a marginally sophisticated programmer. That programmer can alter the source code to make it appear different enough from the original work that you wouldn't pick up the similarities.

Also, for even minimally sophisticated programs, it still isn't easy to sit there and compare the two codes.

One trick is to compare the sequence of screen displays that the two programs create. Are any of the screens the same? Do both of the programs contain the same "look and feel?"

You could also try to apply the "abstraction-filtration-comparison" test (the "AFC Test"). To apply this test, you'll first have to divide your program and the infringing program into its elements or "abstractions."

Basically, you separate the programs and divide them into the following groups: the main program, the program structure or architecture, the modules, the algorithmic and data structures, the source code (the computer program as the programmer originally wrote it, in the actual programming language), and the object code (the computer program in actual machine language which the computer executes).

Next, you "filter" out the non-copyrightable portions of the programs. This may include blank forms that the program creates (like time cards, order forms, or a baseball pitcher statistics form), and compilations. For example, the computation of interest amounts based upon a fixed interest rate or the translation of Fahrenheit temperatures to sluices.

Now, compare the remaining elements. The reason this test is so important is that it allows you to discard all unprotectable elements of the programs first. Then, when you're comparing what's left, just the "golden nuggets," it's easier to determine if somebody copied your copyrighted material.

Courts are split as to the best test to use to determine copyright infringement. For example, in Whelan Associates v. Jaslow Dental Laboratory, Inc., the court used a test that focused on the structure, sequence, and organization of the code. The court acknowledged that under certain circumstances, the code of two programs could look different, but one could still infringe the copyright protection of another.

Other courts have rejected the Whelan analysis. For example, in Computer Associates International, Inc. v. Altai, the court instead applied the AFC Test that I explained above to determine whether the two codes were "substantially similar." Once the court appointed expert "abstracted" the code, he assigned each separate "golden nugget" a level of importance. The court considered this test much better than the Whelan test because it takes into account more dynamic aspects of computer code.

Make sure that your programmers understand when their actions could amount to copyright infringement. Adopt rules that your programmers must follow and insist that they abide by these rules. Don't find yourself in the situation of having to interrogate your programmers as to whether their code is original or copied. In short, taking these steps now will prevent mishaps later and will serve to ensure that your programs are copyrightable for your benefit.

Software and Intellectual Property is republished from
Mark Grossman
Mark Grossman