A Jaunt into Copyright Law

Occasionally I’ll post on interesting developments in copyright law, especially when it concerns computer technology like software. I write software in my very limited spare time. I can write programs in several programming languages, although I’m by no means an expert in any of them.

So let’s assume that I own a copyright registration for software—a “computer program” as defined by the Copyright Act—and I think someone copied my work. How can I prove this? Well, if it’s an exact copy, then it’s fairly easy. But what if I can’t show that it’s an exact copy, but it’s really close. Perhaps I wrote my software in Ruby while the alleged infringer wrote his copy in Python. In that case, I need to prove two things: access and substantial similarity. This is true of all copyright claims, so there’s nothing new here with regard to software. For this discussion, I’m also going to assume that I can prove access; I can show that the alleged infringer had access to my copyrighted work.

Now I need to prove substantial similarity. What elements do I need to show to prove that the other guy copied my software? Interestingly, the Fourth Circuit has never decided this issue. Several other appeals courts have weighed in on the issue, fashioning tests with dubious reasoning, and some district courts have also tried to fashion tests to determine whether two pieces of software are substantially similar. As noted by William Patry, the federal district court case are in disarray.

Part of the problem, it seems, stems from the conflict between copyright in general and copyright in software. Generally, the Copyright Act forbids registration of methods or algorithms or ideas: functional things. For software, the Copyright Act defines software such that it must “bring about a certain result”. In other words, the software must be functional. This conflict has led courts down various paths of futility, leaving practitioners and businesses alike to walk blindly through the maze of opinions, hoping not to infringe someone else’s work.

I have a solution, but it doesn’t fit within the statutory scheme as written by Congress. What say you? How would you decide?