Structure, sequence and organization: Difference between revisions

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{{Intellectual property}}

'''SequenceStructure, structuresequence and organization''' (SSO) is a term used in the United States to define a waybasis infor whichcomparing one software work may be compared to another software work in order to determine if copying has occurred that infringes on copyright, even when the twosecond arework is not exacta literal copy of the copiesfirst.
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 discourage innovation.{{sfn|Abramson|2001|p=57}}

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

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==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}}

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.{{sfn|Kappel|1991|p=704}}

He formed a company named Dentcom and wrote a program in a different computer language but with similar functionality that he called ''DentcomDentlab'', and marketedmarketing it as a ''Dentalab'' successor. On 30 June 1983 Jaslow's Dentcom filed a suit alleging that Whelan had misappropriated its trade secrets.

Whelan filed a countersuit in federal court in Pennsylvania alleging that the ''Dentlab'' software violated Whelan's copyrights in the ''Dentalab'' software.

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

Whelan won the case and was awarded damages on the basis that ''Dentlab'' had substantially similar structure and orverall organization.{{sfn|Graham|1999|p=89}}

The district 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) 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}}

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

Jaslow appealed the decision.

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}}

In evaluating the appeal, the Court of Appeals for the Third Circuit rejected the "extrinsic-intrinsic" test that had commonly been used until then, where an expert and a lay observer are asked to independently determine whether the works are substantially similar.{{sfn|Graham|1999|p=90}}

The Court of Appeals for the Third Circuitcourt 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}}

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 court found that the [[Copyright Act of 1976]] supported its view of a software work as a compilation{{#tag:ref

|In U.S. copyright law a "compilation" is defined as a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.{{sfn|Scott|2006|p=5-55}}

|group=fn}}, saying:{{sfn|Scott|2006|p=5-55}}

{{blockquote|Although the Code does not use the terms "sequence," "order," or "structure," it is clear from the definition of compilations and derivative works, and the protection afforded them, that Congress was aware of the fact that the sequencing and ordering of materials could be copyrighted, i.e. that the sequence and order could be parts of the expression, not the idea, of a work.}}

AnThe analogycourt maydrew bean foundanalogy with a concept defined by Judge [[Learned Hand]] who noted, talking about a play, that the exact wording was 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 any alleged copying lay, and to 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}}

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

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

In thisthese casecases 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}}

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

==Early adoption and 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 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 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}}

In the 1990 case of Lotus v. Paperback the U.S. District Court for Massachusetts decided that Paperback's VP-Planner software violated the copyright of Lotus's 1-2-3 spreadsheet program since it had the same user interface, even though the underlying code was completely different.{{sfn|Davidson|1997|p=115}}

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}}

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 the 1988 Healthcare Affiliated Services, Inc. v. Lippany the court took a position more in line with the idea-expression merger concept, saying that the defendent's choice of scope, variables to be used and other aspects of what its software would do did not constitute the SSO.{{sfn|Scott|2006|p=5-57}}

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}}

An analogy may be found with a concept defined by Judge [[Learned Hand]] who noted, talking about a play, that the exact wording was 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 any alleged copying lay, and to 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==

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In the comparison step the court decides whether there is enough similarity between the remaining elements to constitute infringement, and if so the severity of the infringement.{{sfn|Abramson|2001|pp=49-50}}

One effect of the Altai case may have been that companies that thought they were protected under Whelan, and had therefore not filed patent applications, now found themselves exposed.{{sfn|Graham|1999|p=92}}

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}}

==References==

;Notes

{{reflist |group="fn"}}

;Citations

{{reflist |colwidth=30em}}

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|publisher=Aspen Publishers Online |year=1997

|ISBN=0471167037}}

*{{cite book |ref=harv |url=http://books.google.ca/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 |ISBN=0899309747}}

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

|title=Legal Battles That Shaped the Computer Industry

|first=Lawrence D. |last=Graham

|publisher=Greenwood Publishing Group |year=1999

|ISBN=1567201784}}

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

|journal=Harvard Journal of Law & Technology

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|first=Robert |last=Mnookin

|publisher=Simon and Schuster |year=2010 |ISBN=1416583327}}

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

|title=Scott on Outsourcing: Law And Practice

|first=Michael D. |last=Scott

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

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

|title=E-Copyright Law Handbook