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Developments in Law, Technology and Business
February 27, 2014
Software Copyrights: Less Than Meets the Eye?

Most developers know, vaguely at least, that their code is protected by copyright and is entitled to the “©” symbol just like the script on the average cereal box. Some developers might even know that their source code is considered a “literary work”, just like Moby Dick. Just how far does this protection go? Come to think of it, just what is copyright and how does it really apply to code? Funny thing, there’s even a recent case that sheds some light about how you decide what code is protected and what’s not. First, though, a general briefing on the subject.

Calling All Authors . . .

Like trademark law, software copyrights protection is derived from a federal statute, the Copyright Revisions Act of 1976 (the “Copyright Act”). Copyright registration and oversight are handled by the Copyright Office, which is a branch of the Library of Congress. The first thing to bear in mind is that the Copyright Act protects “original works of authorship” whether published or
unpublished, from the time the work is created in “fixed form.” Under the Copyright Act, “fixed form” means “any tangible medium of expression, now known or later developed, for which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” A copyright as a work of authorship becomes the immediate property of the author, and only the author, or those claiming rights through the author, can rightfully claim copyright. Now, we know that literary works are protected (that’s your code). In addition, the Copyright Act also protects musical works, including any accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, and sound recordings.

“Idea” versus “Expression”

Keep in mind that these are broad categories into which many types of authorship may fall. Whether a work is copyrightable rests upon a key distinction between “ideas” and “expressions” of ideas. The Copyright Act states that protection “for a work of authorship” does not extend “to any idea, procedure, process, system, method or operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such works.” “Ideas” may be patentable, but only the “expression” of an idea may be copyrighted.

“Originality” is Key

As we previously noted, the Copyright Act applies to “original” works of authorship. Just how original must a work be to enjoy protection? The answer is simple: not very. To be considered original, a work must merely embody something more than a trivial change or modification. It does not have to contain new thoughts, or some special artistic innovation. For instance, thousands of books have been published about Abraham Lincoln or the Civil War and countless artists have painted roses. Some new expression is required to copyright variations on a theme. When it comes to painting, the artistic texture, composition and form must be
distinguished from other renderings of the same subject matter.

What Are My Rights in Code?

The Copyright Act grants certain exclusive rights and remedies to software copyright holders. Chief among the rights are the rights to reproduce the copyrighted works, distribute copies of the work or prepare derivative works based on the original. Trouble is, what is original and therefore protectable? Code occupies a strange netherworld of creativity because the instructions tend to functional in nature. This inherent functionality tends to push code into the realm of “ideas” rather than “expressions.” Moreover, the functionality itself is, well, functional. This means that it may well flunk the originality test. In a recent case, a federal court set forth the commonly accepted standard to determine whether code is, in fact, protectable expression. A few years back in Torah Soft Ltd v. Drosnin, a software company sued an author and his publisher for copyright infringement because the author reproduced output from the Torah Software program. The output in this case consisted of matrices containing results of search query algorithms utilizing the “Bible Code” popularized by orthodox Jewish biblical scholars and eventually reduced to a software product. The court was left to determine whether Drosnin’s use of the output, derived from databases incorporated within the software product, merited copyright protection. The analysis used by court is instructive as to how much (or how little) of computer code may be protected by copyright.


The court noted the obvious. Computer programs contain both “literal” and “non-literal” elements. Literal elements consist of the computer program’s “source” and “object” codes, while non-literal elements may generally be described as the “structure, sequence, and organization” of the underlying program. Such non-literal elements include the program architecture, screen displays, and computer-user interface. While non-literal elements may be copyrightable, as one slides from the literal code to more general levels of a program, it becomes more difficult to distinguish between unprotectable ideas, processes, methods or functions, on one hand, and copyrightable expression on the other.

Courts love little “tests.” Because there is a scale of protection when considering nonliteral elements (and to avoid utter subjectivity), the court employed a three-step analysis of “abstraction-filtration-comparison” to weed out the unprotectable elements of the program and determine similarity. Under this analysis, a court first abstracts the program in question, breaking it into its structural parts at varying levels of abstraction. Next, the court filtered out those elements that are not protectable. Finally, the court compared the remaining protectable elements of the Torah Soft program to Drosnin’s work to determine if substantial similarity existed.


In the abstraction process, the court dissected the Torah Soft program into its functional elements. Conveniently, Torah Soft had already presented the court with a list of features that it believed were protectable, thus eliminating the need for any further abstraction.


The court then attempted to determine the core of protectable “expression” by employing “filters” to screen out unprotectable materials. The filters through which the material must pass include the requirement of originality, the Copyright Act’s distinction between expression and ideas or processes, the doctrines of “merger” and “scenes a faire,” and the public domain exception.

Originality. As used in copyright, the term “original” means only that the work was independently created by the author rather than copied from other works. It does not mean that the work must be “novel”, only that it possesses some creativity. There must be some intellectual production, thought and conception.

Functional Elements. Copyright distinguishes ideas and functional items, neither of which is protected, from creative and expressive works, which are protected. When one speaks of function, the emphasis is on procedures, processes, systems, methods of operation, concepts, principles, or discoveries, regardless of the form in which they are described, explained, illustrated, or embodied in a particular work.

Merger. The concept of “merger” means that “expressions” are not protected in those instances where there are so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself. In the case of software design, efficiency concerns may so narrow the practical range of choice as to make only one or two forms of expression workable options. Efficiency considerations may dictate one or two choices so compelling so as to eliminate any other form of expression.

“Scenes a Faire.” This doctrine states that protection does not extend to expressions that are, as a practical matter, indispensable or at least standard in the treatment of a given idea. Software design is often dictated by considerations such as hardware architecture, software compatibility, design standards and widely accepted programming practices.

Public Domain. It goes without saying that elements taken from the public domain are not protectable. Such items are free for the taking and cannot be appropriated by a single author even though it might be imbedded in a copyrighted work.


In the final step, the court compares the protected elements — or “golden nugget” – of a computer program with the infringing work. As the Torah Soft court noted, the focus should be on “whether the defendant[s] copied any aspect of this protected expression, as well as an assessment of the copied portion’s relative importance with respect to the plaintiff’s overall program.”


Torah Soft did not fair well at the hands of the court. The court concluded that the matrices used by Mr. Drosnin were low on originality, were largely functional, were limited in their arrangement by design considerations and contained large portions that came directly from the public domain (like the portions from the Bible). The key here for developers is that any copyright obtained may be “thin” to say the least. Much software design is severely limited by functional considerations and indeed, much code is composed of standard routines generated by the development tools used. Although there may be some modicum of originality, much code would flunk the test.

Law is ever-changing. This briefing is a synopsis only and cannot substitute for personal legal advice. Everyone’s facts and circumstances are different and you should not rely on the contents of this publication to make substantive legal decisions. Please contact me for a further consultation.

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