Structure, sequence and organization: Difference between revisions

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{{Intellectual property}}

'''Structure, sequence and organization''' ('''SSO''') is a term used in the United States to define a basis for comparing one software work to another in order to determine if copying has occurred that infringes on copyright, even when the second work is not a literal copy of the first.

The term was introduced in the case of ''[[Whelan v. Jaslow]]'' in 1986.{{sfn|Kappel|1991|p=699}}

The method of comparing the SSO of two software products has since evolved in attempts to avoid the extremes of over-protection and under-protection, both of which are considered to discourage innovation.{{sfn|Abramson|2001|p=57}}

More recently, the concept has been used in a''[[Oracle majorAmerica, caseInc. broughtv. against [[Google]], by [[Oracle Corporation|OracleInc.]].''{{sfn|Lee|2012}}

==ChristianWhelan Alquizolav. Jaslow==

{{main|Whelan v. Jaslow}}

''Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc.'' was a landmark case in defining principles that applied to copyright of computer software.{{sfn|Graham|1999|p=88}}

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The district court ruling in ''Whelan'' drew on the established doctrine that even when the component parts of a work cannot be copyrightable, the structure and organization of a work may be.{{sfn|Hamilton|Sabety|1997|p=241}}

The court also drew support from the 1985 ''SAS Inst. Inc. v. S&H Computer Sys. Inc.'' in which it had been found that copyright protected organizational and structural details, not just specific lines of source or object code.{{#tag:ref

|Software is written in [[source code]], a collection of instructions written in a human-readable programming language. With many languages this is translated by a compiler into [[object code]], where the instructions are in a form that the computer can execute. Source code copying may be crudely disguised by changing the names of procedures and variables. This form of disguise will be immediately visible when the object code is compared, since the object code will be the same.

|group=fn}}{{sfn|Epstein|2006|p=11-27}}

Sequence, structure and organization (SSO) in this case was defined as "the manner in which the program operates, controls and regulates the computer in receiving, assembling, calculating, retaining, correlating, and producing useful information."{{sfn|Kappel|1991|p=699}}

SSO refers to non-literal elements of computer programs that include "data input formats, file structures, design, organization and flow of the code, screen outputs or user interfaces, and the flow and sequencing of the screens.".{{sfn|Scott|2006|p=5-56}} However, the SAS Inst. Inc. V. S&H Computer Sys. Inc. demonstrated that copyright can exist in derived works from publicly funded developed source code in the public ___domain <ref>S & H COMPUTER SYSTEMS v. SAS Institute, Inc., 568 F. Supp. 416 - Dist. Court, MD Tennessee 1983</ref> rather than address the issue of SSO.

Jaslow appealed the decision.

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The court reasoned that with literary works a non-literal element is protected to the extent that it is an expression of an idea rather than the idea itself. By analogy, the purpose or function of a software work would be the work's "idea", while everything not necessary to that purpose or function would be part of the expression of the idea. The expression would be protected, although the basic purpose or function would not.{{sfn|Kappel|1991|p=704}}

On this basis the Court of Appeals upheld the district court's ruling of copyright violation due to similarity of SSO.{{sfn|Graham|1999|p=91}}

The ''Whelan'' decision initiated a period of excessively tight protection, suppressing innovation, since almost everything other than the broad purpose of a software work would be protected. The only exception was where the functionality could only be achieved in a very small number of ways.

In these cases there could be no protection due to the [[Merger doctrine (copyright law)|merger doctrine]], which applies when the expression and the idea are inextricably merged.{{sfn|Abramson|2001|p=57}}

==Early adoption and criticism==

For the next few years most, but not all, circuit courts accepted the ''Whelan'' decision on SSO in one form or another.{{sfn|Kappel|1991|p=705}} This resulted in a period of tight protection for software, since almost everything other than the broad purpose of a software work would be protected. The only exception was where the functionality could only be achieved in a very small number of ways. In these cases there could be no protection due to the [[Merger doctrine (copyright law)|merger doctrine]], which applies when the expression and the idea are inextricably merged.{{sfn|Abramson|2001|p=57}}

For the next few years most, but not all, circuit courts accepted the ''Whelan'' decision on SSO in one form or another.{{sfn|Kappel|1991|p=705}}

In one case a court found that a defendant had infringed the right to prepare a derivative work when they copied the sequence, structure, and organization of the plaintiff's file formats, screen, reports, and transaction codes, even though different data fields were present.{{sfn|Stapleton|2002|p=9.6}}

In 1986 the ruling in ''[[Broderbund Software, Inc v. Unison World, Inc]]'' appeared to prevent software developers from marketing products with the same or similar user interfaces, regardless of whether there was anything in common in the underlying code.{{sfn|Kappel|1991|p=705}}

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A technical criticism of ''Whelan'' is that it fails to distinguish between the sequence in which instructions are presented in the text of a program and the sequence in which the instructions are executed - the program's behavior. Both the textual and behavioral aspects have their own SSO, but a programmer would see the textual SSO as relatively unimportant.{{sfn|Galler|1995|p=87}}

A related point is that although the text of a computer program may be an "original work of authorship", protected by copyright laws., the algorithms and designs that the program embodies may be better considered to be "processes, procedures, systems, methods of operation", which are explicitly excluded from copyright protection although they may be protectable by patents.{{sfn|Hansen|2006|p=196}}

The distinction between the code's SSO, which is protected by copyright, and the protocol or algorithm, which is patentable, is however extremely difficult to maintain.{{sfn|Granstrand|2003|p=407}}

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==Computer Associates v. Altai==

{{main|Computer Associates Int. Inc. v. Altai Inc.}}

In ''[[Computer Associates Int. Inc. v. Altai Inc.]]'' in 1992 the Second Circuit Court of Appeals agreed with the conclusion in ''Whelan'' that the structure, sequence and organization of a program might bybe protected by copyright where appropriate.{{sfn|Takeyama|Gordon|Towse|2005|p=11}}

However, the court went on to say, "As we have already noted, a computer program's ultimate function or purpose is the composite result of interacting subroutines. Since each Subroutine is itself a program, and thus, may be said to have its own 'idea,' Whelan's general formulation that a program's overall Purpose equates with the program's idea is descriptively inadequate."{{sfn|Hamilton|Sabety|1997|p=250}}

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==Later decisions==

Both the code and the "look and feel" of a software product have structure, sequence and organization.

Technically there is little or no connection between the two.

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However, the courts have tried to maintain common standards and tests for both types of SSO.{{sfn|Epstein|2006|p=11-17}}

Following the 1986 ''Broderbund'' ruling, [[Lotus Development Corporation]] sued two competing spreadsheet program vendors for copying the look and feel of their [[Lotus 1-2-3]] spreadsheet program, and [[Apple ComputersComputer]] sued [[Microsoft]] and [[Hewlett-Packard]] for copying the [[Classic Mac OS|Macintosh operating system]]'s use of icons, pull-down menus and a mouse pointing device. Both companies drew criticism, since key elements of their look and feel had been introduced earlier by [[VisiCalc]] and [[Xerox]].

A 1992 federal court finding against Apple largely rejected the idea that copyright law could protect look and feel.

The Lotus case went to the Supreme Court, which could not reach a decision, thus by default confirming the lower court's 1995 declaration that the words and commands used to manipulate the spreadsheet were a "method of operation", which is not subject to copyright.{{sfn|Overbeck|Belmas|2011|p=270-271}}

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The ideas can be implemented in a competing program as long as the developers do not copy the original expression.{{sfn|Yusuf|2008|pp=51-52}}

With a [[clean room design]] approach one team of engineers derives a functional specification from the original code,

and then a second team uses that specification to design and builtbuild the new code.

This was piloted in the mid-1980s by a team from [[Phoenix Technologies]] to produce a [[BIOS]] functionally equivalent to that of the [[IBM Personal Computer]] without infringing on IBM's copyright.{{sfn|Schwartz|2001}}

In August 2010 [[Oracle Corporation]] initiated a lawsuit against [[Google]] claiming a combination of patent and copyright violations related to Google's implementation of the [[Java (programming language)|Java programming language]] in Google's [[Android (operating system)|Android operating system]].

On 7 May 7, 2012 a jury decided that Google had infringed the SSO copyright of 37 Java [[Application programming interface]] (API) packages, but were unable to decide whether this was fair use.{{sfn|Ritti|2012}}

The judge asked both Google and Oracle to provide further detail of their positions over whether an API or a programming language such as Java can be copyrighted.

He also asked for both sides to comment on a ruling by the [[European Court of Justice]] in a similar case that found "Neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression. Accordingly, they do not enjoy copyright protection."{{sfn|King|Farber|2012}}

On 31 May 31, 2012 the judge ruled that "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API."{{sfn|Mullin|2012}}

In reviewing the ''[[Oracle v. Google]]'' case history, the court noted:{{blockquote|...the above summary of the development of the law reveals a trajectory in which enthusiasm for protection of "structure, sequence and organization" peaked in the 1980s, most notably in the Third Circuit’s ''Whelan'' decision. That phrase has not been re-used by the Ninth Circuit since ''Johnson Controls'' in 1989, a decision affirming preliminary injunction. Since then, the trend of the copyright decisions has been more cautious. This trend has been driven by fidelity to Section 102(b) and recognition of the danger of conferring a monopoly by copyright over what Congress expressly warned should be conferred only by patent. This is not to say that infringement of the structure, sequence and organization is a dead letter. To the contrary, it is not a dead letter. It is to say that the ''Whelan'' approach has given way to the ''Computer Associates'' approach, including in our own circuit. See ''[[Sega Enters., Ltd. v. Accolade, Inc.]]'', 977 F.2d 1510, 1525 (9th Cir. 1992); ''[[Apple Computer, Inc. v. Microsoft Corp.]]'', 35 F.3d 1435, 1445 (9th Cir. 1994).{{sfn|Alsup|2012}}}}

to the ''Computer Associates'' approach, including in our own circuit. See ''[[Sega Enters., Ltd. v. Accolade, Inc.]]'', 977 F.2d 1510, 1525 (9th Cir. 1992); ''[[Apple Computer, Inc. v. Microsoft Corp.]]'', 35 F.3d 1435, 1445 (9th Cir. 1994).{{sfn|Alsup|2012}}}}

==References==

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;Sources

{{refbegin}}

*{{cite web |ref=harv |url=http://www.bu.edu/law//central/jd/organizations/journals/scitech/volume81/abramson.pdf

|title=Promoting Innovation in the Software Industry: A First Principles Approach to Intellectual Property Reform

|first=Bruce |last=Abramson

|year=2001

|publisher=Boston University

|accessdateaccess-date=2012-05-31}}

*{{cite web |ref=harv |url=http://www.groklaw.net/pdf3/OraGoogle-1202.pdf

|title=ORACLE AMERICA, INC., Plaintiff, v. GOOGLE INC., Defendant. ORDER GRANTING MOTION FOR JUDGMENT AS A MATTER OF LAW ON DECOMPILED FILES

|publisher=U.S. District Court for the Northern District of California

|first=William |last=Alsup

|date=May 11, 2012 |accessdateaccess-date=2012-06-02}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=pUfFpzC3ks4C&pg=PA115

|title=Intellectual Property for the Internet

|first=J. Scott |last=Davidson

|publisher=Aspen Publishers Online |year=1997

|ISBNisbn=0471167037}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=Wne6MqjEk-AC&pg=SA11-PA17

|title=Epstein on Intellectual Property

|first=Michael A. |last=Epstein

|publisher=Aspen Publishers Online |year=2006 |ISBNisbn=073555983X}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=QACY2JCu4BUC&pg=PA87

|title=Software and Intellectual Property Protection: Copyright and Patent Issues for Computer and Legal Professionals

|first=Bernard A. |last=Galler

|publisher=Greenwood Publishing Group |year=1995 |ISBNisbn=0899309747}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=c6IS3RnN6qAC&pg=PA89

|title=Legal Battles That Shaped the Computer Industry

|first=Lawrence D. |last=Graham

|publisher=Greenwood Publishing Group |year=1999

|ISBNisbn=1567201784}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=9NKTDmiXb14C&pg=PA407

|title=Economics, Law, and Intellectual Property: Seeking Strategies for Research and Teaching in a Developing Field

|first=Ove |last=Granstrand

|publisher=Springer |year=2003 |ISBNisbn=1402077084}}

*{{cite journal |ref=harv |url=http://jolt.law.harvard.edu/articles/pdf/v10/10HarvJLTech239.pdf

|journal=Harvard Journal of Law & Technology

|volume=10 |issue=2 |date=Winter 1997 |year =1997

|title=COMPUTER SCIENCE CONCEPTS IN COPYRIGHT CASES: THE PATH TO A COHERENT LAW

|first1=Marci A. |last1=Hamilton |first2=Ted |last2=Sabety

|accessdateaccess-date=2012-05-30}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=wepc2ljYrJEC&pg=PA170

|title=U.S. Intellectual Property Law And Policy

|first=Hugh C. |last=Hansen

|publisher=Edward Elgar Publishing |year=2006 |ISBNisbn=1845428668}}

*{{cite journal |ref=harv |url=http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2911&context=flr

|journal=Fordham Law Review

|volume=59 |issue=4 |date=January 1-1-1991, |year=1991

|title=Copyright Protection of SSO: Replete with Internal Deficiencies and Practical Dangers

|first=Cary S. |last=Kappel

|accessdateaccess-date=2012-05-30}}

*{{cite journal |ref=harv |url=http://news.cnet.com/8301-1035_3-57428612-94/oracle-v-google-jury-returns-partial-verdict-favoring-oracle/

|journal=CNET

|title=Oracle v. Google jury returns partial verdict, favoring Oracle

|first1=Rachel |last1=King |first2=Dan |last2=Farber

|date=May 7, 2012 |accessdateaccess-date=2012-05-30}}

*{{cite web |ref=harv |url=httphttps://arstechnica.com/tech-policy/2012/05/oracle-google-judge-asks-for-comment-on-eu-court-ruling/

|work=Ars Technica

|title=Oracle v. Google judge asks for comment on EU court ruling

|first=Timothy B. |last=Lee

|date=May 3, 2012 |accessdateaccess-date=2012-05-30}}

*{{cite web |ref=harv |url=httphttps://arstechnica.com/tech-policy/2012/05/google-wins-crucial-api-ruling-oracles-case-decimated/

|work=ars technica

|title=Google wins crucial API ruling, Oracle's case decimated

|first=Joe |last=Mullin

|date=May 31, 2012 |accessdateaccess-date=2012-05-31}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=y6uJ7u4331cC&pg=PA270

|title=Major Principles of Media Law

|first1=Wayne |last1=Overbeck |first2=Genelle |last2=Belmas

|publisher=Cengage Learning |year=2011 |ISBNisbn=0495901954978-0495901952}}

*{{cite web |url=http://www.lexisnexis.com/community/litigationresourcecenter/blogs/litigationblog/archive/2012/05/07/jury-says-google-infringed-but-it-can-t-agree-on-fair-use.aspx

*{{cite web |ref=harv

|url=http://www.lexisnexis.com/community/litigationresourcecenter/blogs/litigationblog/archive/2012/05/07/jury-says-google-infringed-but-it-can-t-agree-on-fair-use.aspx

|work=LexisNexis

|date=05/07/2012May 7, |year=2012

|title=Jury Says Google Infringed, But It Can't Agree On Fair Use

|first=Melissa |last=Ritti

|accessdateaccess-date=2012-05-31}}

*{{cite journal |ref=harv |url=http://www.computerworld.com/s/article/65532/Reverse_Engineering

|journal=Computerworld

|title=Reverse-Engineering

|first=Mathew |last=Schwartz

|date=November 12, 2001 |accessdateaccess-date=2012-05-31}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=mko89ZDIVx0C&pg=SA5-PA55

|title=Scott on Outsourcing: Law And Practice

|first=Michael D. |last=Scott

|publisher=Aspen Publishers Online |year=2006 |ISBNisbn=0735561788}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=NMHEZ_TBBXgC&pg=SA9-PA6

|title=E-Copyright Law Handbook

|first=Laura Lee |last=Stapleton

|publisher=Aspen Publishers Online |year=2002 |ISBNisbn=0735529442}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=ecPJSiHIi2kC&pg=PA11

|title=Developments In The Economics Of Copyright: Research And Analysis

|first1=Lisa |last1=Takeyama |first2=Wendy J. |last2=Gordon |first3=Ruth |last3=Towse

|publisher=Edward Elgar Publishing |year=2005 |ISBNisbn=1843769301}}

*{{cite book |ref=harv |url=httphttps://books.google.cacom/books?id=fe9af6rf3lkC&pg=PA52

|title=Intellectual Property and International Trade: The TRIPs Agreement

|first=Abdulqawi |last=Yusuf

|publisher=Kluwer Law International |year=2008 |ISBNisbn=9041124292978-9041124296}}

{{refend}}