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Originality Requirements under U.S. and E.U. Copyright Law
27 September 2007
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1Executive summary
Understanding how copyright law applies to software is essential to making informed
decisions about how to develop and distribute code. The first step of this analysis is
to consider whether the code in question is in fact copyrightable. This document
discusses the requirements for software to be considered within the scope of copyright
under U.S. law. Because open source and free software development is very often
conducted worldwide, a brief discussion of the applicability of copyright laws in the
European Union is also included.
The originality requirement under both U.S. and E.U. copyright law is minimal,
such that courts have ruled computer programs insufficiently original to be eligible
for copyright protection in only a very small number of cases. While the
originality standard is low, it does exist. In particular, the laws stress that it is a
programmer’sexpression of some functionality that may be protected by
copyright, and not the functionality itself. If code embodies the only way
(or one of very few ways) to express its underlying functionality, that code
will be considered unoriginal because the expression is inseparable from the
functionality. Similarly, if a program’s expression is dictated entirely by
practical or technical considerations, or other external constraints, it will also
be considered unoriginal. The originality of a program’s functionality is
irrelevant to its eligibility for copyright. Code implementing a completely
novel algorithm may not be copyrightable due to a dearth of expressive
alternatives. Meanwhile, code which behaves identically to other existing
programs may be copyrightable because of the original expression of its
implementation. A program is also unoriginal to the extent that its expression (but
not ideas or functionality) is taken from public domain or other existing
code.
In addition to protecting wholly original programs, both E.U. and U.S. copyright
laws protect programs based in part on preexisting code (i.e. “derivative works”),
insofar as the resulting work incorporates an original expression of the later
contributor. The size of the contribution in relation to the underlying work is
irrelevant. Original contributions are copyrightable and unoriginal contributions are
not. Furthermore, it is the contribution’sexpression, not its functionality, which must
be original.
2The U.S. copyright standard: originality plus fixation
No objective minimum amount of content is required for a work to be
included within the scope of copyright. The Copyright Act defines only two
requirements for copyrightability: original authorship (“originality”) and
fixation.
Though there remains controversy regarding the application of the fixation
requirement to software in some forms (in particular, with regard to copies in RAM
), source
code in most incarnations is considered sufficiently “fixed” within the meaning of the
statute.
Thus for the purposes of this analysis, fixation is not at issue, and the only express
barrier to copyrightability is the originality requirement.
3 The originality standard (Feist)
In the U.S., originality is a constitutional requirement for copyright applicability, though
it was first stated explicitly by statute only with the introduction of the 1976 Copyright
Act.
“[T]he originality requirement is not particularly stringent,” and, as discussed in the
U.S. Supreme Court case Feist Publications, Inc. v. Rural Telephone Service, Co. which
considered the copyrightability of an alphabetically organized phone book, is comprised
of two elements: “that the work was independently created by the author (as opposed
to copied from other works), and that it possesses at least some minimal degree of
creativity.”
A work satisfies the “independent creation” element so long as it was not
literally copied from another, even if it is fortuitously identical to an existing
work. The
“creativity” element sets an “extremely low” bar that is cleared “quite easily” by “[t]he vast majority
of works.” It
requires only that a work “possess some creative spark, ‘no matter how crude, humble, or obvious
it might be.”’
3.1 Originality and merger
The originality requirement is designed to withhold copyright not only from works
that are too similar to existing original works, but also to prevent authors
from appropriating that which is considered inherently unoriginal, hence
uncopyrightable. Thus, the Copyright Act explicitly excludes from protection “any
idea, procedure, process, system, method of operation, concept, principle, or
discovery.” For
example, when a work’s “expression is essential to the statement of the idea” embodied therein,
the author’s expression of that idea is said to “merge” with the idea itself, and is rendered
uncopyrightable.
This is so even if the idea, process, or other type of uncopyrightable
element expressed is “novel” in the sense that it has never before been
expressed.
Merger applies where the author’s expression is the only way,
or “one of very few ways,” of expressing some uncopyrightable
element.
When a work contains both original and unoriginal aspects,
copyright protects the work but “is limited to those aspects of the
work—termed ‘expression’—that display the stamp of the author’s
originality.”
The Supreme Court established the framework for analyzing such hybrid works in
Feist.
Though Feist dealt in particular with mixed factual and expressive works, it applies
with equal force to other hybrid works, and has been applied as such by lower
courts.
Feist recognized that an author’s original contribution to a hybrid work
may comprise two types of expression: an author may “clothe[] facts with
an original collocation of words…[and] claim a copyright in this written
expression,” and she may also “select[] and arrange[]” uncopyrightable
elements in an original manner and claim copyright in that selection and
arrangement.
Feist emphatically reiterated that mere collections of unoriginal
elements are not copyrightable, stated that only a “thin” copyright
subsists in “original selection[s] or arrangement[s]” of unoriginal
elements,
and established that some arrangements undertaken by (and thus in a sense originating
with) the author will nonetheless be “so mechanical or routine as to require no creativity
whatsoever.”
The Court held that alphabetical arrangement was such an arrangement, and
described generically the indicia of unoriginal selections and arrangements—in
addition to being “mechanical or routine,” they are “entirely typical,” of the
“garden-variety,” and “could not be more obvious.”Id.
4 The originality standard and derivative works
The Copyright Act expressly recognizes copyright in derivative works, but this right
covers only the original contribution of the author who prepares the derivative work,
and does not extend to any portion of the underlying work upon which it is
based. Put
differently, the later contribution must meet the standard for copyright independently, and thus must
itself be original.
Beyond this minimum, some circuit courts of appeals have set the standard
for copyrightability of derivative works higher than that for non-derivative
works.
4.1 Non-trivial originality (Durham)
InDurham Industries, Inc. v. Tomy
Corp., the
Second Circuit Court of Appeals stated that copyright’s applicability to derivative works is
subject to the limitation that “the original aspects of a derivative work must be more than
trivial.”
This language derived from the court’s earlier statement of the originality
standard in the seminal case Alfred Bell & Co. v. Catalda Fine Arts,
Inc.
However, the Alfred Bell court considered non-trivial variation to be a
requirement of the originality standard, and merely a restatement of the
principle that, to be original, a work must be “recognizably [the author’s]
own.”
This accords with the originality standard as later stated by the Supreme Court in Feist,
which held that the “minimal level of creativity” requirement would be met by any work
in which “the creative spark is [not] utterly lacking or so trivial as to be virtually
nonexistent.”
The Durham court, in contrast, read non-triviality to be a separate bar
to copyrightability of derivative works, requiring contributions to be both
“original” and “non-trivial.” While this formulation seems redundant upon
review of the originality standard, courts and commentators have read
Durham to establish a separate non-triviality requirement for derivative
works.
If a derivative work must satisfy two separate non-triviality standards, the
question is raised as to what circumstances will a derivative work author’s
contribution be non-trivial under the originality standard yet too trivial
a variation from the original for copyright eligibility. The cases citing the
Durham test are largely consistent with pre-Durham case law, implying
that there is no difference between variations which are original (hence
non-trivial) and variations
which are non-trivially original.
The Durham test has only been applied to a derivative computer program
in a single unpublished opinion. In E.F. Johnson Co. v. Uniden Corp. of
America,
a Minnesota District Court cited Durham’s non-trivial variation standard
in determining whether an application derived largely from public domain
components contained sufficient originality for copyright. Though the court
found that the algorithms and data structures used in the plaintiff’s radio
firmware were based on “textbook” techniques, it found that the “degree of
originality contributed by plaintiff to [its implementation of them] is far from
‘trivial.”’
Specifically, it found the following elements probative evidence of non-trivial
originality:
(一)the arrangement of bits in a 7-bit binary code commonly used in radio
pulse compression (the plaintiff inverted the string and flipped the bits),
(二)a 56-bit table representing the output of the public-domain Barker
correlation function as sampled at eight regular intervals, and
(三)a binary matrix comprised of the output of a pseudo-random number
generator (and which, the judge noted, could have been “configured any of
32 different ways”).
These are highly questionable indicia of originality even if original is taken
only to mean “having its source in the author,” and leaving to one side the
creativity requirement. Furthermore, E.F. Johnson Co. was decided before
Altai,
and the features identified by the judge as non-trivial original contributions
would most likely be considered not copyrightable under Altai as elements
“dictated by efficiency…[or] external factors,” or as residing in the public
domain.
For all of these reasons, the Minnesota District Court’s interpretation of Durham can
be considered incorrect under current law.
4.2 Substantial difference (Gracen)
A still higher standard was set by Judge Posner in the
controversial
Seventh Circuit case Gracen v. Bradford
Exchange.
Where a derivative work very closely resembles the original (and even
when the derivative is rendered in a wholly different medium), the court’s
reasoning goes, it will be difficult for a court to determine whether a different
derivative work was copied from the first derivative or is based upon the
original.
In order to avoid this result, the court denied copyright to the first derivative work for its
failure to exhibit “a sufficiently gross difference between the underlying and the derivative
work to avoid entangling subsequent artists depicting the underlying work in copyright
problems.”
The Gracen standard has never been directly applied to source code, so no guidance
is available on what the appropriate application would be. Gracen involved a painting
depicting a scene from a film, and the court’s hypothetical “subsequent artist” refers
to another painter who wishes to depict the same scene. An analogous situation
within the software development context might involve two developers wishing
adapt an existing application to a different programming language or coding
paradigm. Applying Gracen to the issue of whether the first developer’s
adaptation was sufficiently original to qualify as a derivative work, a court
might focus on the likelihood that a later developer undertaking the same
sort of adaptation would produce a work confusingly similar to the first
developer’s.
5Originality as applied in software copyright infringement cases
There generally have been two types of cases which have considered the originality of
some specific piece of software. The first line of cases (Sega, Lexmark) involves the
literal copying of a program or other portion of code so insubstantial that it is
questionable whether it could possibly contain expressive content or structure. The
other line of cases (Whelan, Altai) contemplates the originality of structural and
other non-literal components from programs whose literal components are clearly or
concededly copyrighted.
For programs between these two types of cases that are of some minimum
length or complexity, the originality of the program’s literal components
becomes a foregone conclusion. However, apart from early cases establishing the
copyrightability of source code as a general proposition, there are no federal cases on
record which rule directly that a program’s literal components are sufficiently
substantial to deserve protection. The question of how much literal content a
program must contain to qualify for copyright, however, was addressed in the
Sixth Circuit’s decision of Lexmark Int’l, Inc. v. Static Control Components,
Inc.
5.1 Minimum standard for copyright in literal elements (Lexmark)
The Lexmark court identified two doctrines—the merger doctrine discussed supra,
and the scenes a faire doctrine—as the appropriate tools for determining how
little expression was too little. Applying the merger doctrine to source code,
the court stated that “if the [program’s unprotected underlying] process
is embodied inextricably in the line-by-line instructions of the computer
program, then the process merges with the expression and precludes copyright
protection.”
If a work represents one of only a few possible means of accomplishing a
task, it is not copyrightable. The scenes a faire doctrine has its origins in
narrative works, and means that expressions which are “standard, stock,
or that necessarily follow from a common theme or setting” cannot be
protected.
“In the computer-software context, the doctrine means that the elements
of a program dictated by practical realities—e.g., by hardware standards
and mechanical specifications, software standards and compatibility
requirements, computer manufacturer design standards, target industry
practices, and standard computer programming practices—may not obtain
protection.”
If a portion of a program’s expression merges with its underlying idea or is dictated
by external technical considerations, that portion is not copyrightable under
Lexmark. In applying this rule to code, the Lexmark decision directs courts to “ask
whether the ideas, methods of operation and facts of the program could have been
expressed in any form other than that chosen by the programmer, taking into
consideration the functionality, compatibility and efficiency demanded of the
program.”
The court clearly implies that the capacity for originality in a computer
program is to some degree a function of the program’s size, stating that
for a very large and complex program, “it would have been exceedingly
difficult to say that practical alternative means of expression did not
exist,”
and that a small program’s “size…[may] dictate the content of
the…[p]rogram.”
Lexmark provides some specific guidance as to what sorts of available
variations are insufficient to demonstrate a program’s originality: that there
exist “different ideas or methods of operation altogether” for achieving
comparable functionality, because these are not “copyright-protectable
expression;” representing a
formula with a look-up table;
and re-ordering constituent formulae in a manner analogous to
paraphrasing.
More generally, the court exhibited disregard for conceivable
variations that would be “trivial,” and would not constitute “material
changes” or “make any ‘substantial difference’ to the nature of the
program.”
5.2 Minimum standard for copyright in non-literal elements (Altai)
The Altai
decision preceded Lexmark, and the two cases employ similar approaches to
somewhat different issues. Whereas Lexmark involved the wholesale copying of an
entire program, and turned mostly on whether the entirety of the program’s
expression merged with its functionality, Altai was concerned “only with [the
program’s] non-literal components” and whether its structure as copied by the
defendants was sufficiently original to be afforded a selection and arrangement
copyright. In Altai, the Court of Appeals for the Second Circuit expounded its
“abstraction-filtration-comparison” test for ascertaining which structural or
non-literal elements of a program are sufficiently original to qualify for copyright
protection.
5.3 The Altai Abstraction-Filtration-Comparison test
The Altai Abstraction-Filtration-Comparison is typically applied by using a three
step process, each step of which is included in the name of the test.
5.3.1 Abstraction
The first step in Altai’s Abstraction-Filtration-Comparison test, Abstraction, requires a
court to separate a program into conceptual layers or stages so as to evaluate the
originality invested by the author in the design of each. The analysis begins at the
“lowest” conceptual layer (the source code) and works to higher levels of generality,
identifying the structural elements at each level and mindful that at some “point
in this series of abstractions,” the program’s structure will “no longer [be]
protected.”
5.3.2 Filtration
The second step, Filtration, defines a method of determining, at each level
of abstraction, which elements of a computer program may be copied.
Appropriable elements are broken down into three categories: those “dictated
by efficiency,” “dictated by external factors,” or “taken from the public
domain.”
The first two relate closely to the merger doctrine.
Elements dictated by efficiency:
Altai holds that when “efficiency concerns…so narrow the practical range of choice as
to make only one or two forms of expression workable options,” there is
merger.
Consistent with the court’s “abstraction” inquiry, this doctrine applies
to design choices embodied at various layers of the application, from
the structure of the code to the operation and visual layout of the
interface.
The question central to this inquiry, according to the court, is “whether
the use of this particular set of modules is necessary to efficiently
implement that part of the program’s process being implemented.”
If so, “it should be disregarded in the overall substantial similarity
analysis.”
Elements dictated by external factors:
By analogy to the scenes a faire
doctrine,
the Altai court directed that “elements dictated by external factors”
should be “filtered out of the infringement analysis,” noting that it
would be “virtually impossible to write a program to perform particular
functions in a specific computing environment without employing standard
techniques.”
The decision also lists “the mechanical specifications of the computer on which
a particular program is intended to run; [] compatibility requirements of
other programs with which a program is designed to operate in conjunction;
[] computer manufacturers’ design standards;[] demands of the industry
being serviced; and [] widely accepted programming practices within the
computer industry” as examples of “extrinsic considerations” which constrain “a
programmer’s freedom of design choice” and may negate an inference of
copying.
Elements taken from the public domain:
In addition to functionally necessary elements, the Second Circuit directed in Altai that
“elements taken from the public domain” should be excluded from the infringement
analysis. The decision refers in particular to “computer program[s] that have entered
the public domain by virtue of freely accessible program exchanges and the like” and
“expression that is, if not standard, then commonplace in the computer software
industry.”
The structural elements of a program which survive filtration are those which are
original.
5.3.3 Comparison
The third step, Comparison, directs the court evaluating an infringement
claim to compare only these elements with the allegedly infringing
program, to determine whether any were copied. If so, the court must then
consider “the copied portion’s relative importance with respect to the
plaintiff’s overall program” to determine whether the similarities are
“substantial.”
5.4 Applying Altai to derivative works
Altai holds that “the non-literal structures of computer programs are protected by
copyright.”
It follows that a program which is derivative of and restructures another existing
program will be eligible for a copyright to the extent that the structure it
contributes is original within the meaning of the Copyright Act. Altai’s
abstraction-filtration-comparison test can be applied to a derivative work, as to any
other, to determine whether the new structural contributions are sufficiently
original. However, when dealing with a derivative work, the entirety of the
underlying work must be put to the side at the “filtration” stage of the
analysis.
6 Size and substantiality: affirmative defenses to infringement
A work’s size is examined in the context of two affirmative defenses to infringement.
The first, the affirmative defense of fair use, does not implicate the infringed work’s
copyrightability. A court ruling on a fair use claim is required to consider, inter alia,
the amount and substantiality of the portion of a work used by the defendant,
in relation to the work as a whole. However, a finding of fair use assumes
infringement (and by implication, copyrightability) and merely reflects the court’s
judgment that the infringement at issue was “fair” in light of the relevant
factors.
The second infringement defense that implicates the size of the copied work is that
of “de minimis” copying. The de minimis analysis touches on two of the
factors in the fair use analysis: whether a substantial portion of the work
was copied, and also whether the copying would “diminish the value of the
original.”
Some courts have held that de minimis copying is insufficient to constitute
“substantial similarity,” a necessary element for a finding of infringement,
and thus would preclude a finding of infringement, unlike a finding of fair
use.
The classic formulation of de minimis, however, involves “a technical
violation of a right so trivial that the law will not impose legal
consequences,”
and would suggest a finding of no liability despite a finding of infringement. Both
theories have been applied by the circuit courts.
The leading case on de minimis copying of source code, Dun & Bradstreet Software Servs. v. Grace
Consulting, Inc.,
provides little guidance in tailoring the doctrine to software. Pointing out that the
quantitative amount of code copied (in this case, 27 out of 525,000 lines) is
“irrelevant as a matter of law” and that the substantiality element refers to
whether the copied code is qualitatively “material,” the court found the
copied portion was “highly critical” and dispensed with the de minimis
claim.
No federal court case on record has considered when a derivative work’s original
contribution may be so insignificant that in appropriating the entire derivative work,
the author of the underlying work will be considered to have engaged in only de
minimis copying. However, to apply the elements of the de minimis doctrine, the
appropriation would be greater than de minimis, and infringing, if either of two tests
were met:
(一)if the contributions of the author who prepared the derivative work were
a substantial portion of the derivative work taken as a whole, or
(二)if the original author’s appropriation of the entire derivative work
diminished the value of the derivative work.
This latter part of the test implies that appropriation of a derivative work by the
original author would constitute more than de minimis copying if the additions of the
later contributor were of any value at all.
7 Transnational considerations: European Union
In 1991, the European Community issued the Software Copyright
Directive,
establishing unified legal standards for copyright in computer programs across the
E.C. member countries, and largely harmonizing European law with that of the
United States. The Directive established a single requirement that a program must
meet in order to be eligible for copyright protection: it must be original. As in the
U.S., the originality requirement is not a stringent one, and is met merely if the
“program…is the author’s own intellectual creation.” The E.C. Software Directive
expressly prohibits member countries from establishing any other criteria by
which to determine software’s eligibility for copyright. It is irrelevant, then,
whether a program (or contribution thereto) is small or large; courts may
consider only whether it is original in the sense that the author created
it.
On a more international scale, the WIPO Copyright Treaty (WCT) and the World
Trade Organization Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) have made explicit that the standards set forth in
the Berne Convention for the Protection of Literary and Artistic Works
are also applicable to software. The Berne Convention does not provide
for a uniform originality test but refers to the laws as established by each
country..
Nevertheless, the Conventions make clear that no other requirements have
to be met by software to be protected under international copyright law.
In addition, the Berne Convention specifically states that “Translations,
adaptations…and other alterations of a literary or artistic work shall be
protected as original works without prejudice to the copyright in the original
work.”
This provision is also applicable to software. Therefore, derivative works of software
are protected under the Berne Convention if they meet the normal standards for
derivative works of literary and artistic works.
For E.U. signatories to the Berne Convention, these agreements ensure that works of
software, including derivative works, containing the requisite originality will be
eligible for copyright. Because the E.C. standard is so similar to that of the U.S., for
practical purposes, originality under one indicates originality under the other.
Consequently, copyright for software will be coextensive under both sets of
laws.
Copyright © 2007, Software Freedom Law Center, Inc. Verbatim copying and
distribution of this document is permitted in any medium provided this notice is
preserved.
17 U.S.C. §102(a).
See R. Anthony Reese, Assistant Professor, School of Law, The University of Texas at
Austin, Address at the University of Illinois Law Review Symposium: The Public Display
Right: The Copyright Act’s Neglected Solution to the Controversy Over RAM “Copies”
(2001).
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1243 (3d Cir. 1983).
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 355 (1991).
Id. at 358–359.
Id.
Id. at 349.
Id.
17 U.S.C. §102(b).
Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 535 (6th Cir. 2004). The
earliest and quintessential expression of the merger doctrine is found in the Supreme Court’s 1880
decision in Baker v. Selden, which denied copyright in a ledger sheet which merely embodied the
system of accounting described in the plaintiff’s book. Baker v. Selden, 101 U.S. 99
(1880).
See Lexmark at 20.
See Lexmark at 22.
Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 546 (1985).
499 U.S. at 342.
See, e.g., Computer Assocs. Int’l v. Altai, Inc., 982 F.2d 693, 711 (2d Cir. 1992).
499 U.S. at 348–349.
Id. at 349. “Where the compilation author adds no written expression but rather lets the facts
speak for themselves…. [t]he only conceivable expression is the manner in which the compiler has
selected and arranged the facts.” Id.
Id. at 362.
Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 909 (2d Cir. 1980).
Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 782 (2d Cir. 1994).
630 F.2d 905 (2d Cir. 1980).
Id. at 909.
191 F.2d 99 (2d Cir. 1951).
Id. at 102–103
499 U.S. at 358.
See, e.g., Leo J. Raskind, Professor of Law, University of Minnesota, Address at the University
of Pittsburgh Law Review Symposium: The Uncertain Case for Special Legislation Protecting
Computer Software (1986) (citing Durham for the proposition that “A somewhat higher standard of
merit is required for copyright protection of derivative works”); Entm’t Research Group
v. Genesis Creative Group, 122 F.3d 1211 (9th Cir. 1997) (“[T]he Durham test…ensure[s]
that copyright protection is not given to derivative works whose originality is merely
trivial.”).
See, e.g., L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 487 (2d Cir. 1976) (Cast-iron toy
bank in the public domain substantially copied in plastic form insufficient variation).
See, e.g., Winfield Collection, Ltd. v. Gemmy Indus., Corp., 147 Fed. Appx. 547 (6th
Cir. 2005) (Three-dimensional crafts constructed from two-dimensional designs demonstrate only
trivial variation).
1985 U.S. Dist. LEXIS 12800 (D. Minn. 1985).
Id. at 1499.
Id.
See infra notes 49–61 and accompanying text.
See Computer Associates Intern., Inc. v. Altai, Inc., 982 F.2d 693, 707–710 (2d
Cir. 1992).
See, e.g., Steven S. Boyd, Deriving Originality in Derivative Works: Considering the Quantum
of Originality Needed to Attain Copyright Protection in a Derivative Work, 40 Santa Clara
L. Rev. 325, 362–365
698 F.2d 300 (7th Cir. 1983)
See id. at 304.
See id. at 305.
387 F.3d 522 (6th Cir. 2004).
Id. at 535.
Id.
Id.
Id. at 554.
Id. at 539.
Id. at 541.
Id. at 540.
Id.
Id.
Id. at 539–540.
Computer Associates Intern., Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
The court summarized the test:
In ascertaining substantial similarity…a court would first break down the
allegedly infringed program into its constituent structural parts[, t]hen…sift out
all non-protectable material…, [then] compare [the remaining] material with the
structure of an allegedly infringing program.
Id. at 706.
Id. (quoting Nichols v. Universal Pictures Co., 45 F.2d 119, 121 (2d Cir. 1930).
Id. at 707–710.
Id. at 708.
Id. at 708–709.
Id. at 709.
This doctrine also informs the court’s third unprotected category, “elements in the public
domain.” Altai, 982 F.2d at 710.
Id. at 709 (quoting 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §13.03[F][3],
at 13-65.).
Id. at 709–10.
Id. at 710 (quoting Brown Bag Software v. Symantec Corp., 960 F.2d 1465, (9th
Cir. 1992).
Id. at 710–711.
Id. at 701.
Mathews Conveyer Co. v. Palmerbee Co., 135 F.2d 73, 85 (6th Cir. 1943).
Gordon v. Nextel Communs., 345 F.3d 922, 924 (6th Cir. 2003).
Ringgold v. Black Ent. TV, 126 F.3d 70, 74 (2d Cir. 1997).
307 F.3d 197 (3d Cir. 2002)
See id. at 208.
Council Directive 91/250, 1991 O.J. (L 122) 42 (E.C.) [hereinafter “E.C. Software
Directive”].
Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, art. 2,
para. 7, as last revised July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221.
Berne Convention for the Protection of Literary and Artistic Works, supra note 68, art. 2,
para. 3.
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