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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}}
The court in the Whelan case 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 code.{{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}}
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{{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.}}
The court noted that computer programs are literary works under U.S. law.{{sfn|Hansen|2006|p=170}}
The court drew an analogy 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}}
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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}}
The Whelan ruling has been criticized as being "dangerously broad".
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==Computer Associates v. Altai==
In Computer Associates International, Inc. v. Altai, Inc. in 1992 the Second Circuit
However, the court 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.{{sfn|Abramson|2001|pp=49-50}}
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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}}
However, most circuits have accepted Altai in preference to Whelan.{{sfn|Epstein|2006|p=11-26}}
==Further considerations==
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.
The same look and feel can be created by entirely different software products, and two internally very similar software products may present very different look and feel.
However, the courts have tried to maintain common standards and tests for both types of SSO.{{sfn|Epstein|2006|p=11-17}}
==References==
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|publisher=Aspen Publishers Online |year=1997
|ISBN=0471167037}}
*{{cite book |ref=harv |url=http://books.google.ca/books?id=Wne6MqjEk-AC&pg=SA11-PA17
|title=Epstein on Intellectual Property
|first=Michael A. |last=Epstein
|publisher=Aspen Publishers Online |year=2006 |ISBN=073555983X}}
*{{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
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|publisher=Greenwood Publishing Group |year=1999
|ISBN=1567201784}}
*{{cite book |ref=harv |url=http://books.google.ca/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 |ISBN=1402077084}}
*{{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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|first1=Marci A. |last1=Hamilton |first2=Ted |last2=Sabety
|accessdate=2012-05-30}}
*{{cite book |ref=harv |url=http://books.google.ca/books?id=wepc2ljYrJEC&pg=PA170
|title=U.S. Intellectual Property Law And Policy
|first=Hugh C. |last=Hansen
|publisher=Edward Elgar Publishing |year=2006 |ISBN=1845428668}}
*{{cite journal |ref=harv |url=http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2911&context=flr
|journal=Fordham Law Review
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|first=Laura Lee |last=Stapleton
|publisher=Aspen Publishers Online |year=2002 |ISBN=0735529442}}
*{{cite book |ref=harv |url=http://books.google.ca/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 |ISBN=1843769301}}
{{refend}}
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