Structure, sequence and organization: Difference between revisions

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{{Intellectual property}}

'''Sequence, structure and organization''' (SSO) is a term used in the United States to define a way in which one software work may violatebe thecompared copyright held into another software work in order to determine if copying has occurred that infringes on copyright, even thoughwhen the two are not exact copies. The term was introduced in the case of Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc. in 1986.{{sfn|Kappel|1991|p=699}}

More recently, the concept has been brought up in a major case brought against [[Google]] by [[Oracle]].{{sfn|Lee|2012}}

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 discourage innovation.{{sfn|Abramson|2001|p=57}}

More recently, the concept has been brought upused in a major case brought against [[Google]] by [[Oracle]].{{sfn|Lee|2012}}

==Whelan v. Jaslow==

==Origins==

InWhelan theAssocs., Whelan Inc. v. Jaslow case Dental Laboratory, Inc. was a landmark case in defining principles that applied to copyright of computer software.
Whelan had developed software for Jaslow to manage the operations of a dental laboratory, and later took it to market under the trade name ''Dentalab''.
Jaslow was engaged in selling the ''Dentalab'' software.
He wrote a program in a different computer language but with similar functionality that he called ''Dentcom'', and marketed it as a ''Dentalab'' successor.

Whelan sued Jaslow for copyright infringement.{{sfn|Kappel|1991|p=704}}

In this case SSO 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}}

The court ruling in the Whelan case 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}}

In this case Sequence, structure and organization (SSO) 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}}

The district court ruled that Dentcom was substantially similar to Dentalab because its structure and overall organization were substantially similar.{{sfn|Hamilton|Sabety|1997|p=250}}

The Court of Appeals for the Third Circuit reasoned that with literary works a non-literal element such as the plot of a novel 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, but the basic purpose or function would not.{{sfn|Kappel|1991|p=704}}

The only exception was where the functionality could only be achieved in a very small number of ways.

In another 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 this case 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.

Also in 1987 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 were anything in common in the underlying code.{{sfn|Kappel|1991|p=705}}

The Whelan decision initiated a period of excessively tight protection, suppressing innovation.{{sfn|Abramson|2001|p=57}}

==Early adoption and criticism==

==Criticism==

Most courts came to adopt the SSO concept in one form or another, but not all.{{sfn|Kappel|1991|p=705}}

Some considered that the concept covered data structures and interfaces in addition to program logic.

In anotherone 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}}

Also inIn 1987 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 were anything in common in the underlying code.{{sfn|Kappel|1991|p=705}}

The Whelan ruling has been criticized as being "dangerously broad".

By saying that the purpose of the program was to assist a Dental lab operation, and that anything not essential to that purpose was an expression,

it left open a wide range of functions that could be deemed "not essential" and therefore subject to protection.{{sfn|Kappel|1991|p=708}}

In 1987 the Court of Appeals for the Fifth Circuit rejected the extension of copyright protection to the non-literal elements of computer programs in

the case of Plains Cotton Cooperative Ass'n v. Goodpasture Computer Serv.

The court held that input formats were idea rather than expression and refused to extend protection to these formats.

The court said: "We decline to embrace Whelan."{{sfn|Kappel|1991|p=705}}

PartAn ofanalogy themay difficultybe datesfound backwith toa theconcept statementdefined by Judge [[Learned Hand]] who noted, talking specifically about a play, that the exact wordswording werewas certainly protected, and then there were a series of layers of increasing abstraction before the high-level plot outline is reached, which is not protected. An ad hoc judgement based on careful comparison of the works would be needed to determine where in this spectrum anany alleged copycopying lay, and thusto decide whether it was at a sufficiently specific level to be a violation rather than a different expression of the same idea. But "careful comparison" in the case of software works might involve checking millions of lines of code.{{sfn|Mnookin|2010|p=158}}

==Computer Associates v. Altai==

In Computer Associates International, Inc. v. Altai, Inc. in 1992 the Second Circuit found that program structure was worthy of protection, but went on to say:{{sfn|Hamilton|Sabety|1997|p=250}}

{{blockquote|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.}}

The Second Circuit introduced the three-step [[Abstraction-Filtration-Comparison test]], and several other circuits later adopted this test. In the abstraction step the court identifies all similarites. In the filtration step any legitimate similarities are discarded such as obvious expressive interpretations of the same underlying idea or software that has been licensed. In the comparison step the court decides whether there is sufficient similarity between what remains to constitute infringement.{{sfn|Abramson|2001|pp=49-50}}

The Altai case may have gone too far, in effect removing protection from all but the literal elements of a program and thus leading to underprotection.

Aware of this risk, many courts that followed the Altai ruling seem to have in practice performed less filtration than was required by the test.{{sfn|Abramson|2001|p=57}}

The Whelan ruling has been criticized as being "dangerously broad".

By saying that the purpose of the program was to assist a Dental lab operation, and that anything not essential to that purpose was an expression,

it left open a wide range of functions that could be deemed "not essential" and therefore subject to protection.{{sfn|Kappel|1991|p=708}}

Part of the difficulty dates back to the statement by Judge [[Learned Hand]] who noted, talking specifically about a play, that the exact words were certainly protected, and then there were a series of layers of increasing abstraction before the high-level plot outline is reached, which is not protected. An ad hoc judgement based on careful comparison of the works would be needed to determine where in this spectrum an alleged copy lay, and thus whether it was a violation. But "careful comparison" in the case of software works might involve checking millions of lines of code.{{sfn|Mnookin|2010|p=158}}

==See also==

*[[Abstraction-Filtration-Comparison test]]

==References==

;Citations

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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

|accessdate=2012-05-31}}

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

|journal=Harvard Journal of Law & Technology