2017 was a big year for raising the profile of copyright in protecting computer programs. Two cases in particular helped bring attention to a myth that was addressed and dispelled some time ago but persists in some circles nonetheless. Many lawyers hold on to the notion that copyright protection for software is weak because such protection inheres in the source code of computer programs. Because most companies that generate code take extensive (and often successful) measures to keep source code out of the hands of third parties, the utility of copyright protection for code is often viewed as limited. However, copyright also extends to the “non-literal elements” of computer programs, such as their sequence, structure and organization, as well as to things such as screen displays and certain user interfaces. In other words, copyright infringement can occur when copying certain outputs of the code without there ever having been access to the underlying code itself.

Two jury verdicts, one in late 2016 and one in early 2017, helped emphasize just how valuable copyrights can be in the protection of software. On December 14, 2016, Cisco Systems Inc. lost a case to Arista Networks Inc. for alleged copying of the command line interfaces of Cisco software used to manage ethernet switches. Although Cisco did not prevail, the case, Cisco v. Arista, Case No. 5:14-cv-5344-BLF (N.D. Cal. NC), is noteworthy in that Cisco claimed more than $300 million in damages and proceeded to a jury verdict in a software copyright case that did not involve copying of code. The verdict is on appeal, with multiple amici filing supporting briefs. By contrast, on February 1, 2017, in the case of Zenimax v. Oculus, Case No. 3:16-mc-00098 (N.D. Tex.), virtual reality video game publisher ZeniMax Media Inc. obtained a $500 million verdict against Facebook subsidiary Oculus VR Inc., $50 million of which has been attributed to the copying of software architecture.

What these cases suggest is that large companies are seeking large verdicts in cases where the user-facing aspects of computer programs have been copied. In an enforcement environment where patent protection for software innovations faces challenges that have shaken confidence in the value of such patents, it is natural that companies would look to other avenues of protection. However, making sense of the tangle of cases that have addressed the scope of copyright protection for non-literal software elements is a daunting task. Court decisions have come down both for and against protection of a great variety of features of computer software programs, including:

  • the overall sequence, structure and organization of the programs;
  • user interfaces and visual design elements;
  • protection of certain command, classification and menu structures;
  • protection of rule sets, parameters and algorithms; and
  • protection of reports and other program outputs.

It is often difficult to identify the boundaries of where copyright protection begins and ends for these features.

To aid in the legal industry’s assessment of this protection, BakerHostetler is happy to make available a new tool, called Beyond Source Code, to the industry and public at large. Beyond Source Code digests the cases addressing protection of non-literal elements of computer programs, organizing the decisions the cases by whether they extended or rejected such protection, and includes with a separate section identifying cases based on the type of non-literal element at issue.